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State v. Andersen

Supreme Court of Oregon

March 9, 2017

STATE OF OREGON, Petitioner on Review,
v.
BELL MURPHY ANDERSEN, Respondent on Review.

          Argued and submitted January 12, 2016

         On review from the Court of Appeals.[*] CC C111600CR; CA A150872

          Susan 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.

          Ingrid 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 Defense Services.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices. [**]

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

          Walters, J., concurred and filed an opinion.

         Case 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.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is affrmed.

          KISTLER, J.

         Under 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.

         The 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.

         In 2011, Officer McNair of the Beaverton City Police Department arranged a methamphetamine purchase through a confidential reliable informant. Specifically, on

          July 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 Beaverton.

         After 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."[1] 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.

         As 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

          WinCo 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.

         McNair 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 car.[2] 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.

         When 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 cause ...


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