and submitted January 12, 2016
review from the Court of Appeals.[*] CC C111600CR; CA A150872
G. Howe, Assistant Attorney General, Salem, argued the cause
and filed the briefs for petitioner on review. Also on the
briefs were Ellen F. Rosenblum, Attorney General, and Paul L.
Smith, Deputy Solicitor General.
MacFarlane, Chief Deputy Defender, Salem, argued the cause
and filed the brief for respondent on review. Also on the
brief was Ernest G. Lannet, Chief Defender, Office of Public
Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin,
and Brewer, Justices. [**]
decision of the Court of Appeals is reversed. The judgment of
the circuit court is affirmed.
Walters, J., concurred and filed an opinion.
Summary: Defendant moved to suppress evidence that police
offcers discovered during a search of her car while
investigating a possible drug sale. The trial court denied
defendant's motion, reasoning that the automobile
exception to Article I, section 9, justifed the warrantless
search. A jury found defendant guilty of unlawful possession
and unlawful delivery of 10 grams or more of methamphetamine.
The Court of Appeals reversed, concluding that the automobile
exception did not apply because defendant's car was not
moving when the offcers frst saw it. Held: (1) it
was not necessary for offcers to visually observe the vehicle
moving because the offcers listened to a running account of
the car's progress and arrival; (2) the trial court
reasonably could have found that defendant had stopped her
car only momentarily; (3) the court declined defendant's
invitation to overrule the automobile exception on the basis
that exigency no longer justifes the exception.
decision of the Court of Appeals is reversed. The judgment of
the circuit court is affrmed.
the automobile exception to Article I, section 9, officers
may search a car if they have probable cause to believe that
the car contains evidence of a crime and the car is mobile at
the time they stop it. State v. Brown, 301 Or 268,
274, 721 P.2d 1357 (1986). The automobile exception does not
apply, however, if the car is "parked, immobile and
unoccupied at the time the police first encounte[r] it in
connection with the investigation of a crime." State
v. Kock, 302 Or 29, 33, 725 P.2d 1285 (1986). In this
case, two officers were waiting for defendant's car to
arrive at a WinCo parking lot to complete a drug sale. One
officer was out of sight of the parking lot but listened as
defendant's passenger explained over his cell phone that
he and defendant were arriving at the parking lot. The second
officer left one part of the parking lot to see if defendant
had arrived at a different part of the lot. When he did not
see defendant's car, he returned to where he had been a
minute earlier and saw defendant's car parked across
several parking spaces. Defendant was sitting in the
driver's seat with the engine running as two passengers
stepped out of the car and were walking towards the area
where the drug sale was supposed to occur.
trial court held that, although defendant's car
momentarily had come to rest before the second officer saw
and stopped it, the car was mobile for the purposes of the
automobile exception. The court accordingly denied
defendant's motion to suppress the evidence that the
officers found when they later searched the car and its
contents. The Court of Appeals reversed. State v.
Andersen, 269 Or.App. 705, 346 P.3d 1224 (2015) (en
banc). In its view, the automobile exception applied only if
defendant's car was moving when the officer first saw it.
Because defendant's car momentarily had come to rest
before the officer saw it, the Court of Appeals held that the
automobile exception did not apply. We allowed the
state's petition for review and now reverse the Court of
Appeals decision and affirm the trial court's judgment.
2011, Officer McNair of the Beaverton City Police Department
arranged a methamphetamine purchase through a confidential
reliable informant. Specifically, on
25, 2011, around 4:00 p.m., the informant contacted Compton,
a known "player" around Beaverton, to ask about
buying a half ounce of methamphetamine. Initially, Compton
said that he did not know anyone who had that much
methamphetamine on them. However, around 8:00 p.m., the
informant spoke with Compton again, who said that he had
found a seller. Compton identified the seller as "his
girl" and said that she would be driving a silver Jeep.
The informant and Compton agreed that the sale would take
place near the WinCo store on Cedar Hills Boulevard in
the informant and Compton arranged the sale, they exchanged a
series of text messages and phone calls. The informant asked
when Compton and the seller were coming, which was followed
by a series of messages from Compton saying that they were
leaving soon and that he would call "when we're on
our way." "[E]ventually, [Compton] called [the
informant sometime before 11:00 p.m] and said that they were
on their way, and at that time they said something about a
red four-door car." As the informant and Compton exchanged
calls and text messages, the location for the sale changed
several times. The parties ultimately settled on a Plaid
Pantry across the street (Cedar Hills Boulevard) from the
WinCo parking lot. Compton was going to park in the WinCo
parking lot and walk across the street to the Plaid Pantry.
The informant was going to be coming from a house behind the
Plaid Pantry, where he and Compton would complete the sale.
Compton and defendant were approaching the WinCo parking lot,
Compton was on his cell phone talking with the informant
while Officer McNair was listening to their conversation.
"[J]ust when [Compton and defendant] were arriving"
at the parking lot, Compton told the informant (and McNair)
over the phone, "We're pulling in." Compton
then said over the cell phone, "I'm-I'm here.
I'm arriving." Compton asked the informant,
"Where are you at?" The informant replied,
"I'll be walking up" to the Plaid Pantry from
the nearby house to complete the sale. Because McNair and the
informant were parked out of sight of the
lot, McNair did not see defendant's car arrive at the
WinCo parking lot. However, he heard Compton's running
account of the car's arrival.
had arranged for other officers to be around the WinCo
parking lot and told them "that they should be either
looking for the silver Jeep that had been described earlier,
or some red four-door" car. McNair also told the
officers to be looking for Compton, whom they knew. One of
the officers, Officer Henderson, was parked at the east end
of the WinCo parking lot, next to Cedar Hills Boulevard,
waiting for defendant's arrival. As defendant's car
was approaching the parking lot, Henderson left the east end
of the parking lot and drove to the side of the WinCo store
to look for a silver Jeep or a red four-door
Henderson did not see either car parked there, and he
returned to the east end of the parking lot approximately a
minute later. When he did, he saw a silver Jeep "parked
within a few hundred-or maybe 100 feet of Cedar Hills
Boulevard." The Jeep had not been there when Henderson
left a minute earlier. The Jeep was not parked in a parking
spot but was instead "parked crossing over the
lines." Defendant was sitting in the driver's seat
with the engine running.
Henderson saw the Jeep, he noticed that there were several
people inside. He also saw a person whom he recognized as
Compton walking away from the Jeep in the direction of the
Plaid Pantry. Compton was talking with another man. As
Henderson watched, both men turned around and walked back to
the Jeep. The other man got in the front passenger seat of
the Jeep. Compton spoke to the man through the car window and
then "leaned in the vehicle, putting most of his torso
in the vehicle. It appeared to [Henderson] as though
[Compton] was reaching across [the other man]." Based on
what he saw and what he had learned from McNair about the
proposed drug sale, Henderson concluded that he had probable