Argued and Submitted March 6, 2014.
Reargued and Submitted En Banc October 1, 2014.
Washington County Circuit Court C111600CR. Kirsten E. Thompson, Judge.
Jonah Morningstar argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Susan G. Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Haselton, Chief Judge, and Armstrong, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, Egan, DeVore, Tookey, Garrett, and Flynn, Judges, and Wollheim, Senior Judge. DeVore, J., dissenting.
[269 Or.App. 707] ARMSTRONG, J.
Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine that was based on evidence obtained from a warrantless search of defendant's Jeep. Defendant assigns error to the trial court's denial of her motion to suppress evidence, arguing that the automobile exception to the warrant requirement did not apply to the search of her Jeep and, hence, that the search violated Article I, section 9, of the Oregon Constitution. We agree with defendant and reverse her conviction.
A Beaverton police officer, McNair, arranged a drug transaction between an informant and Compton, a suspect in drug activity for whom an arrest warrant had been issued. Compton agreed to meet the informant to facilitate the purchase of half an ounce of methamphetamine. Compton served in the deal as a drug broker, telling the informant that defendant would supply the drugs. Compton told the informant to look for a silver Jeep or a red sedan in a WinCo parking lot.
Henderson, a plainclothes officer, circled the WinCo parking lot in an unmarked car, awaiting the transaction. When he returned to the front area of the parking lot, he saw a silver Jeep that had not been there a minute before. The Jeep had stopped some distance away from other vehicles and was positioned askew, across several parking spaces. Henderson watched Compton speak to the occupants and then lean through the open passenger window. Henderson advised other officers of what he believed to be a drug transaction. The officers approached and arrested Compton on the outstanding warrant. Defendant sat in the driver's seat of the Jeep with the engine running while the police arrested Compton. Defendant asked if she could leave, and McNair said that she could not because she was a subject of a police investigation. Defendant told McNair that she did not want to get out of the Jeep. McNair was concerned, however, about a sheathed dagger on the rear passenger floorboard at the feet of a passenger and ordered everyone in the Jeep to step out of it.
Although she initially refused, defendant ultimately agreed to allow a drug dog to sniff the exterior of the Jeep. The dog sniffed the outside of the Jeep and twice [269 Or.App. 708] alerted officers to the presence of drugs. Based on the dog's responses, the officers decided to search the interior of the Jeep. Inside the Jeep, the dog alerted to defendant's purse, in which the police found half an ounce of methamphetamine and a lipstick case containing additional drugs. The state subsequently charged defendant with both unlawful possession and unlawful delivery of methamphetamine.
Before trial, defendant moved to suppress all evidence obtained from the search of the Jeep, arguing that the automobile exception to the warrant requirement did not apply to the search and, hence, that the search violated Article I, section 9. The trial court denied defendant's motion. It determined that the automobile exception applied because the Jeep was mobile when the police first encountered it even though it was not moving at that time. A jury convicted defendant of the charged crimes, which led the court to enter a judgment that merged the crimes into a single conviction for unlawful delivery of methamphetamine. Defendant appeals the judgment, assigning error to the denial of her suppression motion.
Article I, section 9, guarantees " the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure."  Under that provision, a search or seizure conducted without a warrant is unreasonable and, hence, violates the guarantee unless it comes " within one of the few specifically established and carefully delineated exceptions to the warrant requirement." State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988). One of those exceptions is the exigent-circumstances exception, which allows the police to conduct a warrantless search or seizure if it is supported by probable cause and conducted under exigent circumstances. For purposes of the exception, exigent circumstances are those that require the police to act to prevent the loss or destruction of evidence or contraband when they cannot get a warrant before acting.
[269 Or.App. 709] The Oregon Supreme Court established the Oregon automobile exception as a subcategory of the exigent-circumstances exception in 1986 in State v. Brown, 301 Or. 268, 721 P.2d 1357 (1986). Before the court created the automobile exception, Oregon police officers who stopped a car that they had probable cause to believe contained evidence of a crime or contraband had to determine whether, in the absence of consent to search the car, exigent circumstances made it necessary for them to seize the car and obtain a warrant to search it or to seize and search the car without a warrant if it was not feasible for them to apply for a warrant.
The court established the Oregon automobile exception in Brown as a " ' per se exigency rule.'" Id. at 277. Under the exception articulated in Brown, police who have lawfully brought a moving automobile to a stop have authority to search it without a warrant if they have probable cause to believe that the automobile contains crime evidence or contraband. Id. at 276. It is the mobility of the automobile at the time that the police stop it that establishes the exigency.
The Brown court acknowledged the importance of the warrant requirement and anticipated that technological advances would likely soon allow " the warrant requirement of the state and federal constitutions [to] be fulfilled virtually without exception." Id. at 278 n 6. It nonetheless chose to create the Oregon automobile exception because it believed that the police " need clear guidelines by which they can gauge and regulate their conduct rather than trying to follow a complex set of rules dependent upon particular facts regarding the time, location and manner of highway stops." Id. at 277.
An automobile that is mobile can mean one that is movable, that is, capable of moving, as well as one that is moving. Brown dealt with an automobile that was moving when the police stopped its driver and, hence, brought it to a stop. Three months after Brown, the court considered in State v. Kock, 302 Or. 29, 725 P.2d 1285 (1986), whether the Oregon automobile exception applied to an automobile [269 Or.App. 710] that was not moving but was
movable when the police first encountered it in connection with a crime.
In Kock, the defendant's employer suspected that the defendant was stealing merchandise from the store at which the defendant worked and arranged for police officers to stake out the store parking lot during the defendant's work shift, which was roughly from 4:00 a.m. to 6:30 a.m. while the store was closed. The officers saw the defendant park his car in the lot before 4:00 a.m. and enter the store without carrying anything with him. He came out of the store at 5:42 a.m. pushing a floor-washing machine with a two-foot long brown box on top that was covered by a newspaper. He left the machine at a loading dock, took the box to his car, removed a package from the box, placed the package behind the passenger seat of his car, and partially covered the package with a pair of pants. After smoking a cigarette, the defendant re-entered the store with the machine, box, and newspaper. Believing that the package that the defendant had placed in his car was merchandise that he had stolen from the store, the police opened the door to the defendant's car and seized the package, which turned out to contain diapers. After obtaining additional police support, the police entered the store and arrested the defendant for theft. The trial court denied the defendant's motion to suppress the evidence obtained from the warrantless search of his car, and we affirmed.
The Supreme Court reversed, concluding, among other things, that the search of the car did not come within the Oregon automobile exception. It explained:
" [W]e emphasized in [ Brown ] that we were not confronted with the search of a vehicle that was not mobile or that had not just been lawfully stopped by a police officer. We are now confronted with such a case. Although logically it can be argued that the rationale of the seminal case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, T.D. 3686 (1925), and its progeny * * * would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line of Brown just where we left it in that case: * * * [ A ] utomobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration [269 Or.App. 711] of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence. In this case, we assume for the sake of argument that there was probable cause for the search of the automobile. We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist."
Kock, 302 Or. at 32-33 (emphasis added).
In other words, the Oregon automobile exception established in Brown to which the court adhered in Kock applies to automobiles that have just been lawfully brought to a stop by the police, that is, to automobiles that are moving when stopped by the police. It does not apply to automobiles that are parked, immobile, and unoccupied when first encountered by the police in connection with a crime.
The Supreme Court next confronted the reach of the Oregon automobile exception twenty years after Brown and Kock in State v. Meharry, 342 Or. 173, 149 P.3d 1155 (2006). In Meharry, the fire chief of the City of Umatilla saw the defendant driving her van erratically in Umatilla and noticed that a child was moving from side to side in the back seat of the van. The fire chief called the Umatilla police department on his cell phone while following the defendant. The defendant eventually drove into the parking lot of a convenience store, parked her van, and entered the store. The chief followed the defendant into the parking lot and parked next to the defendant's van.
A Umatilla police officer responded to the chief's call and drove out of the parking lot of the police department as the defendant and the chief drove by him. The officer watched as the defendant pulled into the convenience-store parking lot. He followed the defendant
into the parking lot in time to see her get out of her van and enter the store. The officer parked his patrol car behind the defendant's van, saw the child in the van, spoke briefly with the chief, and then followed the defendant into the store. The officer ultimately arrested the defendant for driving under the influence of [269 Or.App. 712] intoxicants and searched the defendant's van for evidence of that crime, which led to the discovery of evidence that provided the basis for the state to charge the defendant with a number of crimes.
Before trial, the defendant moved to suppress the evidence obtained from the warrantless search of her van. The trial court granted the motion, and we affirmed. On review, the Supreme Court concluded that the search of the van came within the Oregon automobile exception and, hence, that the trial court had erred in granting the defendant's suppression motion.
Both we and the trial court had concluded that the van was not mobile when the police officer first encountered it in connection with a crime because the van was parked in the store parking lot when the officer parked his patrol car behind the van and confronted the defendant in the store. The Supreme Court rejected that conclusion, reasoning that the officer
" first encountered defendant's van in connection with a crime when he saw her drive by the police station. At that point, the van was mobile and [the fire chief's] reported observations gave [the officer] reasonable suspicion to believe that defendant was driving under the influence of intoxicants."
Id. at 179.
Further, although the officer had not stopped the defendant and, hence, her van while the van was moving, as the officer had done in stopping the car in Brown, the court did not believe that that difference affected the exigency on which the Brown court had based the Oregon automobile exception. The van in Meharry was as mobile at the time of the search as was the car in Brown notwithstanding that difference, in that both could readily be moved " '" out of the locality or jurisdiction in which the warrant must be sought." '" Id. at 180 (quoting Brown, 301 Or. at 275 (quoting Carroll, 267 U.S. at 153)).
As the Supreme Court subsequently confirmed in State v. Kurokawa-Lasciak, 351 Or. 179, 263 P.3d 336 (2011), the effect of Meharry was twofold. It established that the [269 Or.App. 713] Oregon automobile exception does not require the police to bring a moving vehicle to a stop in order for the exception to apply. In other words, the exception is not limited to the search of vehicles that have just been lawfully brought to a stop. However, for a vehicle that was not moving when stopped by the police, the exception requires the vehicle to be mobile when the police first encounter it in connection with a crime and, as in Meharry, that means that the vehicle must be moving at the time of the encounter for the exception to apply.
The Supreme Court had to revisit the application of the Oregon automobile exception in Kurokawa-Lasciak because, relying on Meharry and several of our own cases, we had held in Kurokawa-Lasciak that " 'a vehicle is " mobile" for purposes of the automobile exception as long as it is operable,'" 351 Or. at 185 (quoting State v. Kurokawa-Lasciak, 237 Or.App. 492, 497-98, 239 P.3d 1046 (2010), rev'd, 351 Or. 179, 263 P.3d 336 (2011)), and, based on that understanding, we had upheld under the automobile exception a search of a van that was parked, immobile, and unoccupied when the police first encountered it in connection with a crime. Neither the defendant nor the state agreed with our interpretation of Meharry. As for the state, it framed the question on review as one that was " left open" after Meharry--viz.,
" 'when officers first encounter a car in connection with a crime, does the automobile exception's " mobility" requirement demand evidence that the officers saw the car being driven, or is it enough that (1) officers develop probable cause that the car contains evidence of a crime, and (2) no evidence exists that the car is inoperable?'"
Id. at 186.
In answering that question, the court undertook an extensive ...