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State v. Finlay

Court of Appeals of Oregon

July 17, 2013

STATE OF OREGON, Plaintiff-Appellant,
v.
JERRY EDWARD FINLAY, Defendant-Respondent.

Argued and submitted on August 29, 2012.

Marion County Circuit Court 11C43608 Gale M. Rieder, Judge pro tempore.

Michael A. Casper, Deputy Solicitor General, argued the cause for appellant. On the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Laura A. Frikert, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge.

SERCOMBE, J.

The state appeals an order suppressing evidence discovered during a warrantless search of a trailer attached to defendant's vehicle. It contends that the search was lawful under the automobile exception to the warrant requirement and, therefore, that the trial court erred in granting defendant's motion to suppress. On review for errors of law, State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993), we conclude that the search fell within the automobile exception. Accordingly, we reverse and remand.

The relevant facts are undisputed. Operating on a tip from an informant, Silverton Detective Aljets arranged two controlled buys in which defendant agreed--through monitored telephone calls and text messages--to sell methamphetamine to the informant. Before the first controlled buy, police learned that defendant drove a Ford Ranger pickup truck, frequently with a trailer attached, and that he used that truck and trailer to operate a landscaping business.

The first controlled buy occurred on April 13, 2011. Defendant agreed to meet the informant at a grocery store in Silverton. Aljets waited at that location and observed defendant arrive in his truck, which was not pulling the trailer; a passenger then got out of the truck, walked directly toward the informant, and handed the informant methamphetamine. Defendant and the passenger then left. Aljets testified that, although she believed that she had probable cause to arrest defendant that day, she chose not to do so in order to continue her investigation.

The second controlled buy occurred on April 22. Defendant agreed to meet the informant at a restaurant near Silverton. While waiting in the parking lot, Aljets observed defendant's truck enter the parking lot and pull up directly in front of her. That time, defendant's truck was pulling a large, fully enclosed trailer. Defendant got out of his truck, walked inside the restaurant, looked around briefly, and walked back outside, where he was arrested approximately 100 feet from his truck. As defendant walked to the restaurant, two passengers got out of the truck and were arrested.

Defendant was searched, but no methamphetamine was found. Aljets then believed that she had probable cause to search defendant's truck and trailer for methamphetamine. Approximately 30 to 40 minutes after defendant's arrest, officers did so and found methamphetamine in the trailer.

The state charged defendant with one count of delivery of methamphetamine, ORS 475.890. Defendant moved to suppress the methamphetamine, arguing that the warrantless search of the trailer was unlawful under Article I, section 9, of the Oregon Constitution.[1] As relevant here, defendant argued that the search did not fall within the automobile exception for two reasons: First, defendant argued that his truck was not mobile when police "encountered" it in connection with a crime. That was so, he argued, because the relevant "encounter" occurred not when officers observed his truck driving into the parking lot but, rather, when officers arrested him. Second, defendant argued that the automobile exception did not apply to the search of his trailer because a trailer is not a motor vehicle. The state responded that the truck was mobile when police "encountered" it and that the trailer was a part of the truck for purposes of the automobile exception.

The trial court granted defendant's motion to suppress. Specifically, as to defendant's first argument, the court found that Aljets observed defendant drive his truck into the parking lot and park. However, the court agreed with defendant that police did not "encounter" the truck until they had arrested him--that is, when the truck was parked and unoccupied. On that basis, the court concluded that the state was required to prove "that exigent circumstances other than the inherent mobility of the vehicle exist[ed] to justify the warrantless search" and that the state had failed to do so. As to defendant's second argument, the court concluded that, had the truck been mobile when police encountered it, the "quality of mobility [was] as true for the trailer attached to defendant's pickup as for the pickup itself."

The state appeals. Relying on State v. Kurokawa-Lasciak, 351 Or 179, 263 P.3d 336 (2011), it argues that application of the automobile exception requires only (1) that a vehicle is mobile at the time that the police encounter it in connection with a crime and (2) that probable cause supports the search of that vehicle. Further, relying on State v. Meharry, 342 Or 173, 149 P.3d 1155 (2006), the state maintains that police "encountered" defendant's truck in connection with a crime when Aljets ...


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