State v. Andersen ( 2017 )

No. 14 March 9, 2017 187
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
BELL MURPHY ANDERSEN,
Respondent on Review.
(CC C111600CR; CA A150872; SC S063169)
On review from the Court of Appeals.*
Argued and submitted January 12, 2016.
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.**
KISTLER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
Walters, J., concurred and filed an opinion.
______________
**  On appeal from the Washington County Circuit Court, Steven L. Price,
Judge. 269 Or App 705, 346 P3d 1224 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
188 State v. Andersen
Case Summary: Defendant moved to suppress evidence that police officers
discovered during a search of her car while investigating a possible drug sale.
The trial court denied defendant’s motion, reasoning that the automobile excep-
tion to Article I, section 9, justified the warrantless search. A jury found defen-
dant guilty of unlawful possession and unlawful delivery of 10 grams or more of
methamphetamine. The Court of Appeals reversed, concluding that the automo-
bile exception did not apply because defendant’s car was not moving when the
officers first saw it. Held: (1) it was not necessary for officers to visually observe
the vehicle moving because the officers listened to a running account of the car’s
progress and arrival; (2) the trial court reasonably could have found that defen-
dant had stopped her car only momentarily; (3) the court declined defendant’s
invitation to overrule the automobile exception on the basis that exigency no lon-
ger justifies the exception.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
Cite as 361 Or 187 (2017) 189
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 P2d 1357 (1986). The automobile exception does not
apply, however, if the car is “parked, immobile and unoc-
cupied at the time the police first encounte[r] it in connec-
tion with the investigation of a crime.” State v. Kock, 302 Or
29, 33, 725 P2d 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 park-
ing 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 defen-
dant’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 P3d 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
190 State v. Andersen
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 meth-
amphetamine 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 loca-
tion for the sale changed several times. The parties ulti-
mately 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 infor-
mant (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
1
It turned out that Compton was a passenger in the car defendant was
driving.
Cite as 361 Or 187 (2017) 191
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 offi-
cers 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 sil-
ver 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 cross-
ing 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 vehi-
cle, 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 con-
cluded that he had probable cause to believe that there were
drugs inside the Jeep and that he also had probable cause
“to believe that Mr. Compton had come to the location with
the intent to distribute.”
2
The WinCo store was located at the west end of the parking lot. The east
end of the parking lot borders Cedar Hills Boulevard.
192 State v. Andersen
At that point, Henderson and other officers
approached the Jeep. When they did so, the “vehicle was
running, with the keys in the ignition with [defendant] * * *
behind the wheel.” The Jeep, however, “was not actually in
physical motion.” The officers stopped the Jeep until a drug
detection dog arrived, which initially alerted on the outside
of the Jeep and later on defendant’s purse, which the officers
found inside the Jeep. Inside defendant’s purse, the officers
found approximately 14 grams of methamphetamine.
The state charged defendant with possession and
delivery of 10 or more grams of methamphetamine. Before
trial, defendant moved to suppress the evidence that the offi-
cers had found in her vehicle. Among other things, defendant
argued that the automobile exception to Article I, section 9,
did not apply because the car was not mobile when the offi-
cers first encountered it. The trial court was not persuaded.
It found “that this was a mobile vehicle, as that term is
meant in the vehicle exception. So that does justify search-
ing the vehicle, if there’s probable cause.” The trial court
determined that Henderson had probable cause to believe
that the Jeep contained evidence of a crime, and it held that
the search of the Jeep and its contents came within the
automobile exception to Article I, section 9. Based in part on
the evidence discovered in the Jeep, a jury found defendant
guilty of unlawful possession and unlawful delivery of 10
grams or more of methamphetamine.
On appeal, defendant argued that the trial court
erred in ruling that the automobile exception to Article I,
section 9, applied.3 On that issue, defendant did not dis-
pute that the officers had probable cause to believe that the
Jeep contained methamphetamine. She argued, however,
that “the automobile exception requires an actual stop of
a moving vehicle.” (Emphases in original.) She reasoned
that, because the officers “never saw [her] car moving” and
because the officers did not contact her “until her car was
parked,” the automobile exception did not apply. The Court
of Appeals agreed. After reviewing our automobile excep-
tion cases, the Court of Appeals concluded that Oregon’s
3
Defendant has not argued on appeal or review that the officer’s search of
the Jeep and her purse violated the Fourth Amendment.
Cite as 361 Or 187 (2017) 193
automobile exception “requires officers to see [a] car being
driven when they first encounter it.” Andersen, 269 Or App
at 715. Because defendant’s Jeep had arrived at the WinCo
parking lot and had momentarily come to rest before the
officers first saw it, the court concluded that the Jeep was
not “moving” but was merely “movable.” Id. It followed, the
Court of Appeals reasoned, that Oregon’s automobile excep-
tion did not apply, and the officers’ warrantless search of the
Jeep violated Article I, section 9. Id.
Judge DeVore dissented. In his view, the majority
was “overcorrect[ing]” in response to State v. Kurokawa-
Lasciak, 351 Or 179, 263 P3d 336 (2011), which reversed
a Court of Appeals decision holding that the automobile
exception applied whenever a car is “operable.” Andersen,
269 Or App at 727 (DeVore, J., dissenting). Judge DeVore
reasoned that the mere fact that a parked car is “operable”
does not mean that it is mobile for the purposes of the auto-
mobile exception. Conversely, he reasoned, seeing a car in
motion is not the sine qua non of mobility. Id. at 729. Rather,
the dissent would have held that it is sufficient if the offi-
cers reasonably could infer based on their perceptions that
the Jeep had come to a momentary stop and would have
resumed moving had they not stopped it. Id. at 733. The
dissent concluded:
“To be precise, if a vehicle is still operating, with a driver
at the steering wheel and the engine running, and police
have objective evidence that the vehicle has moved recently
or will move imminently, then that vehicle ‘remains mobile’
[for the purposes of Oregon’s automobile exception].”
Id. at 733-34. We allowed the state’s petition for review to
consider that issue.4
4
The state did not argue in the Court of Appeals that the search in this case was
permissible under the search-incident-to-arrest exception to Article I, section 9.
See State v. Caraher, 293 Or 741, 759, 653 P2d 942 (1982) (holding that a search
incident to arrest under Article I, section 9, is not limited to “considerations of
the officer’s safety and [the] destruction of evidence” but also “permit[s] a search
when it is relevant to the crime for which [the] defendant is being arrested and
so long as it is reasonable in light of all the facts”). Because the state lost in the
Court of Appeals, that issue is not before us, and we express no opinion on it. See
State v. Ghim, 360 Or 425, 442, 381 P3d 789 (2016) (a party challenging a Court
of Appeals decision is ordinarily limited to the grounds that the party raised in
the Court of Appeals).
194 State v. Andersen
Thirty years ago, this court recognized an auto-
mobile exception to the warrant requirement of Article I,
section 9, “provided (1) that the automobile is mobile at the
time it is stopped by police or other governmental author-
ity, and (2) that probable cause exists for the search of the
vehicle.” Brown, 301 Or at 274. As this court explained in
Brown, the exigency that permits officers to conduct a war-
rantless search of a mobile vehicle arises from the fact that
“ ‘the vehicle can be quickly moved out of the locality or juris-
diction in which the warrant must be sought.’ ” Id. at 275
(quoting Carroll v. United States, 267 U.S. 132, 153, 45 S. Ct.
280, 69 L. Ed. 2d 543 (1925)). The court was careful to make
clear, however, that the mere fact that a vehicle is opera-
ble does not mean that it is mobile for the purposes of the
Oregon automobile exception. See id. at 277 (distinguishing
the search of a parked car). Similarly, the court observed
in a companion case that, in recognizing an Oregon auto-
mobile exception, “we do not reach the issue of warrantless
searches of unoccupied, parked or immobile vehicles.” State
v. Bennett, 301 Or 299, 304, 721 P2d 1375 (1986).
Three months after this court decided Brown and
Bennett, it addressed the issue that it had noted but not
decided in those cases—whether the Oregon automobile
exception applies when officers engage in a warrantless
search of a parked car. Kock, 302 Or at 31-32. In Kock, the
defendant had parked his car at his workplace. Midway
through his shift, he took merchandise from the store where
he worked, put it in his parked car, and then returned to
work. Id. Given those facts, this court held that Oregon’s
automobile exception did not apply. It explained “that any
search of an automobile that was parked, immobile and
unoccupied at the time the police first encountered it in con-
nection with the investigation of a crime must [either] be
authorized by a warrant” or come within some other excep-
tion to the warrant requirement. Id. at 33. In placing that
limitation on the Oregon automobile exception, this court
noted that it sought to give officers “clear guidelines” for
their actions and that it “ch[o]se not to stretch the auto-
mobile exception [under Article I, section 9,] as far as the
Supreme Court of the United States has done in interpret-
ing the Fourth Amendment.” Id.
Cite as 361 Or 187 (2017) 195
Brown and Kock arose out of factual situations that
fell at either end of a spectrum. In Brown, officers stopped a
car as it drove on a highway based on reasonable suspicion
that the driver had committed a crime. By contrast, in Kock,
the defendant had parked his car at work during his shift.
The car was operable but it was not in transit; the defen-
dant’s car was, in the court’s words, “parked, immobile and
unoccupied at the time that the police first encountered it in
connection with the investigation of a crime.” Id.
Although Brown and Kock sought to provide guid-
ance to officers and citizens, neither case had occasion to
consider factual situations that fall somewhere between the
facts in those two cases. More recently, this court has con-
sidered two such cases. See Kurokawa-Lasciak, 351 Or at
181-85; State v. Meharry, 342 Or 173, 149 P3d 1155 (2006).
In Meharry, a local fire chief saw the defendant driving
erratically and reported his observations to a local police
officer, who came out of the police station. When he did, he
saw the defendant drive past him and park her van at a
convenience store before he could stop her on suspicion of
driving under the influence of intoxicants. The officer pulled
his car behind the defendant’s parked van, stopping it from
leaving, and searched her van for evidence of intoxicants
after developing probable cause that the defendant had been
driving under the influence.
In holding that the officer’s search came within
the automobile exception recognized in Brown, this court
observed initially that the officer “first encountered [the]
defendant’s van in connection with a crime when he saw
her drive by the police station. At that point, the van was
mobile.” See id. at 179. Additionally, the court rejected the
argument that the defendant’s car was not mobile when the
officer stopped it because the defendant had already parked
the car and gone into the convenience store. As the court
framed the question, the issue was whether stopping “an
otherwise mobile car from resuming its journey,” as the offi-
cer had done in Meharry, differed for the purposes of the
Oregon automobile exception from causing a moving car to
come to a stop, as the officer had done in Brown. Id. at 180.
As the court explained, the fact that the officer “did not have
196 State v. Andersen
time to effectuate a stop before [the] defendant pulled into
the [convenience store] parking lot but instead effectuated
a stop by preventing [the] defendant from continuing her
journey d[id] not make her van any less mobile, nor d[id]
it make it any less likely that her van—and any evidence
inside the van—could have been moved once [the officer]
relinquished control over it.” Id. at 180-81. The court accord-
ingly held that the automobile exception applied to a vehicle
that momentarily had come to rest.
In Kurokawa-Lasciak, the facts fell on the other side
of the line that the court had drawn in Brown and Kock.
In Kurokawa-Lasciak, the defendant was gambling at the
Seven Feathers Casino when casino employees began to
suspect that he was laundering money. 351 Or at 181. The
casino prohibited the defendant from engaging in further
cash transactions for 24 hours and posted his photograph in
its cashiers’ cages. Id. Early in the morning, the defendant
attempted to engage in a cash transaction and, in the course
of that attempt, reached into the cashier’s cage and grabbed
his photograph. Approximately 10 minutes later, he left the
casino, got into his van, and drove to a gas station. Fifteen
minutes after that, he returned to the casino, parked his
van, got out, and began walking back towards the casino.
Id. at 182. After he had gotten approximately 30 feet from
his van, an officer saw defendant walking towards the
casino and stopped him on suspicion of money laundering.
Id. Neither that officer nor another officer who arrived later
saw the defendant drive his van. Id. However, the officers
relied on the automobile exception to search the defendant’s
parked van, where they found evidence of illegal drug use
and approximately $48,000 in cash. Id. at 184-85.
In Kurokawa-Lasciak, this court adhered to the line
that it had drawn in Brown and Kock. It explained that, con-
trary to the Court of Appeals decision, this court had not
held in Meharry that Oregon’s automobile exception applies
whenever a car is “operable.” Id. at 192-93. Rather, the court
reiterated that “the vehicle that the police search must be
mobile at the time that the police encounter it in connection
with a crime.” Id. at 192. Applying that standard, the court
noted that the trial court had found that, “when [the officer]
Cite as 361 Or 187 (2017) 197
stopped [the] defendant, [the] defendant was approximately
30 feet from his van, which was parked, immobile, and unoc-
cupied, and that, when [the other officer] questioned [the]
defendant, [the] defendant was no longer near the van.” Id.
at 194. In reaching that conclusion, the court accepted the
state’s admission that “there was no evidence from which
the trial court could have found that [the] defendant’s van
was mobile when [either officer] encountered it in connection
with a crime.” Id.
In both Meharry and Kurokawa-Lasciak, this court
adhered to the line that it drew in Brown and Kock. We do so
here as well. That is, we reaffirm that the Oregon automo-
bile exception applies if the automobile is mobile when the
officers first encounter it in connection with the investiga-
tion of a crime. We also reaffirm that the exception does not
apply if the car is parked, unoccupied, and immobile when
officers encounter it. After explaining why those decisions
lead us to affirm the trial court’s judgment in this case, we
explain why we decline defendant’s invitation to overrule
our decisions.
In this case, defendant’s Jeep momentarily had
come to rest in the WinCo parking lot when the officers
stopped it from resuming its journey. The Court of Appeals
reasoned that, because the officers had not seen the Jeep
in motion before they stopped it, the Jeep was not mobile
when the officers first encountered it. The Court of Appeals’
reasoning is difficult to square with our decision in Meharry.
More specifically, the Court of Appeals took an unnecessar-
ily restrictive view of the kind of evidence that will establish
that a car is mobile when officers first encounter it.
As discussed above, Compton had told the informant
(and Officer McNair) that defendant was driving either a
Jeep or a red sedan to the WinCo parking lot to complete
a drug transaction. More importantly, McNair overheard
Compton give the informant a running account of the car’s
progress as it approached and entered the WinCo parking
lot. Compton told the informant and McNair over his cell
phone, “I’m here. I’m arriving,” and “We’re pulling in[to]”
the lot.
198 State v. Andersen
It is true, as the Court of Appeals noted, that
McNair did not see defendant’s Jeep pull into the WinCo
parking lot. And it may be that, in many cases, officers will
determine that a car is mobile when they first encounter it
by seeing the car in motion. However, Compton’s running
account of the car’s progress and arrival at the WinCo park-
ing lot provided McNair with as clear a confirmation of the
Jeep’s mobility as did the officer’s sighting of the defendant
driving her van erratically past the police station in Meharry
or the officer’s view of the car’s movement in Brown. Put
differently, the fact that McNair learned aurally what the
officer in Meharry learned visually—that the car that was
the subject of each officer’s investigation was mobile when
the officer first encountered it—provides no principled basis
for distinguishing this case from either Meharry or Brown.
One other issue deserves brief mention. Defendant’s
Jeep had come to rest before the officers stopped it. The trial
court, however, reasonably could have found that defendant
had stopped her car only momentarily—just long enough to
complete the drug transaction—before resuming her trip.
Defendant’s momentary pause in her trip is no different
from the defendant’s momentary stop at the convenience
store in Meharry before resuming her journey. Indeed, in
Meharry, the defendant had turned off the engine, stepped
out of her van, and stepped into the convenience store. In
this case, defendant remained in the driver’s seat of her Jeep
with the engine running while Compton stepped out of the
Jeep to complete the drug transaction. If the defendant’s van
in Meharry remained mobile for the purposes of Oregon’s
automobile exception, then it is difficult to see why defen-
dant’s Jeep was not also mobile. When the officers stopped
her Jeep, it was not “parked, immobile, and unoccupied” as
the defendants’ cars were in Kock and Kurokawa-Lasciak.
Because we perceive no meaningful distinction
between this case and Meharry, we uphold the trial court’s
ruling that defendant’s Jeep was mobile when the officers
first encountered it in connection with their investigation
of the drug sale. Because defendant does not dispute that
the officers also had probable cause to believe that her Jeep
contained methamphetamine, it follows that the trial court
correctly held that the officers’ warrantless search of the
Cite as 361 Or 187 (2017) 199
Jeep and its contents came within the automobile exception
to Article I, section 9. See Brown, 301 Or at 274.
We address one final issue. Defendant argues that,
if we conclude that the search in this case comes within the
automobile exception, as our cases have described it, then
we should overrule those cases. We have considered the var-
ious grounds that defendant has asserted for overruling our
automobile exception cases, and we write to address one of
them. This court explained in Brown that the “[m]obility
of the vehicle at the time of the stop, by itself, creates the
exigency.” Id. at 276. The court also recognized, however,
that changes in technology could eliminate the exigency
that underlies the automobile exception. Id. at 278 n 6.
Brown accordingly held out the possibility that technologi-
cal and other changes might permit warrants to be obtained
“within minutes,” with the result that the automobile excep-
tion might no longer be justified. Id. Defendant argues that
we should overrule Brown because warrants can now be
obtained within minutes.
We question the premises on which defendant’s
argument rests. As an initial matter, the length of time that
it takes to write a warrant application and obtain a warrant
is a factual issue for the trial court, and not all warrants
will take the same amount of time. Depending on the com-
plexity of the circumstances that give rise to probable cause
and the significance of the case, some warrants will require
a longer time to prepare and obtain than others. In this
case, the only evidence in the record is that it would have
taken hours, not minutes, to prepare a warrant application
and obtain a warrant. Officer McNair testified without con-
tradiction that, “[j]ust [to get a warrant] for a cell phone
it takes me several hours to write a search warrant, and
go get that approved by a DA.” The officer also explained
that, if the district attorney had suggestions or corrections,
it could take another hour to add those corrections to the
warrant application. Not only did the trial court implicitly
credit the officer’s testimony, but defendant identifies no con-
trary evidence in the record.
Beyond that, defendant’s argument appears to
assume that the only impediment to obtaining a warrant
200 State v. Andersen
quickly is the time that it takes to transmit a completed
warrant application to a magistrate and have the magis-
trate review and act on the application. While technology
has made it easier to prepare and transmit completed appli-
cations, the testimony in this case illustrates what our cases
have recognized. An officer must prepare the warrant appli-
cation before submitting it to a magistrate for approval,
and the process of preparing a warrant application can
sometimes entail a substantial amount of time. Affidavits
submitted in support of a warrant are subject to technical
requirements that are intended to protect citizens’ privacy.
When the affiant lacks personal knowledge of the facts that
give rise to probable cause and relies instead on information
from other persons, the affidavit must demonstrate the rea-
sons why the affiant finds the informant credible or reliable,
and the affidavit must be written with sufficient specific-
ity to ensure that the resulting warrant does not authorize
searches and seizures of people or places for which probable
cause has not been established.5
Ultimately, not only must search warrant applica-
tions be sufficient to satisfy issuing magistrates, but they
also must withstand scrutiny in later motions to suppress if
evidence discovered while executing the warrant leads to a
criminal prosecution. As in this case, district attorneys may
review warrant applications drafted by officers who may be
experienced in criminal matters but untrained in the law.
Without that review, warrant applications might fail to com-
ply with the technical specifications our cases have required.
Those human efforts can sometimes entail substantial expen-
ditures of time despite technological advances.
We do not foreclose the possibility that Brown held
out—that changes in technology and communication could
5
For example, if probable cause is based on statements from one or more
informants, the application must establish the basis of each informant’s knowl-
edge and the credibility or reliability of that informant. See State v. Alvarez, 308
Or 143, 149, 776 P2d 1283 (1989) (describing relationship between two unnamed
informants and why the affidavit provided sufficient facts to establish that
each informant was credible or reliable). Moreover, the places and people to be
searched must be identified with sufficient particularity. See State v. Reid, 319 Or
65, 71, 872 P2d 416 (1994) (authorization to search “persons present” at residence
too broad because that authorization could include persons who had no connec-
tion to illegal activity); State v. Ingram, 313 Or 139, 143, 145, 831 P2d 674 (1992)
(warrant authorizing officers to search “all vehicles determined to be associated
with the occupants of said premises” overbroad).
Cite as 361 Or 187 (2017) 201
result in warrants being drafted, submitted to a magis-
trate, and reviewed with sufficient speed that the automo-
bile exception may no longer be justified in all cases. Nor
do we foreclose a showing in an individual case that a war-
rant could have been drafted and obtained with sufficient
speed to obviate the exigency that underlies the automobile
exception. See State v. Machuca, 347 Or 644, 657, 227 P3d
729 (2010) (explaining that, under Article I, section 9, the
exigency arising from the dissipation of alcohol ordinarily
will permit a warrantless blood draw while recognizing that
the particular facts in an individual case may show other-
wise); cf. Missouri v. McNeely, 569 US ___, 133 S. Ct. 1552,
185 L. Ed. 2d 696 (2013) (rejecting the state’s argument that
the exigency resulting from the dissipation of alcohol will be
present in every case).
Ordinarily, the speed with which a warrant reason-
ably could be obtained is, in the first instance, a factual ques-
tion for the trial court. Cf. State v. Wagner, 305 Or 115, 153-
54, 752 P2d 1136 (1988) (declining to rely for the first time
on appeal on reports and facts found in other cases), vac’d
on other grounds sub nom Wagner v. Oregon, 492 U.S. 914,
109 S. Ct. 3235, 106 L. Ed. 2d 583 (1989). As noted above, the
only evidence in this record, which the trial court implicitly
credited, was that it would have taken hours, not minutes,
to obtain a warrant. Given that record and the trial court’s
resolution of defendant’s motion, we decline to overrule the
automobile exception in all cases, as defendant urges, or
to conclude that it is inapplicable in this case. Rather, we
affirm the trial court’s conclusion that the automobile excep-
tion applied here.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
WALTERS, J., concurring.
I write to emphasize an important point that the
majority makes and with which I agree: The Oregon auto-
mobile exception permits a showing, in an individual case,
“that a warrant could have been drafted and obtained with
sufficient speed to obviate the exigency.” State v. Andersen,
361 Or 187, 201, ___ P3d ___. Thus, although the majority
does not overrule State v. Brown, 301 Or 268, 721 P2d 1357
202 State v. Andersen
(1986), the majority recognizes that the exception created in
that case is and must be aligned with other Oregon exigency
exceptions to the warrant requirement.
This court has long held that Article I, section 9,
does not require a warrant when exigent circumstances
exist; that exigent circumstances exist when the facts
demonstrate that the police must “act swiftly to prevent
danger to life or serious damage to property, or to forestall
a suspect’s escape or the destruction of evidence”; and that
whether exigent circumstances exist must be determined
based on the particular facts presented, and not on a cat-
egorical basis or pursuant to a per se rule. State v. Snow,
337 Or 219, 223-25, 94 P3d 872 (2004) (internal quotation
marks omitted) (stating rule and finding that facts demon-
strated exigent circumstances); State v. Stevens, 311 Or 119,
126-30, 806 P2d 92 (1991) (same); State v. Bridewell, 306 Or
231, 235-36, 759 P2d 1054 (1988) (facts did not demonstrate
exigent circumstances); State v. Jimenez, 357 Or 417, 426,
353 P3d 1227 (2015) (refusing to adopt per se rule recogniz-
ing exigent circumstances in all instances); State v. Cocke,
334 Or 1, 9, 45 P3d 109 (2002) (declining to recognize per
se exception to warrant requirement for “protective sweep,”
but permitting use where particular circumstances justify
it); State v. Guggenmos, 350 Or 243, 258-59, 253 P3d 1042
(2011) (reviewing totality of the circumstances to deter-
mine whether officers’ “sweep” justified by officer safety con-
cerns); State v. Machuca, 347 Or 644, 656-57, 227 P3d 729
(2010) (refusing to recognize per se exigency rule and pro-
hibiting warrantless searches and seizures to obtain blood
alcohol evidence if facts of particular case establish that “ ‘a
warrant [could have been] obtained without sacrificing the
evidence’ ” (quoting State v. Milligan, 304 Or 659, 665-66,
748 P2d 130 (1988))); see also State v. Moore, 354 Or 493,
497 n 5, 318 P3d 1133 (2013), adh’d to as modified on recons,
354 Or 835, 322 P3d 486 (2014) (noting that Machuca is
consistent with federal constitutional law, which rejects a
per se exigency rule for alcohol dissipation (citing Missouri
v. McNeely, 569 US ___, 133 S. Ct. 1552, 185 L. Ed. 2d 696
(2013))).
In permitting that same case-by-case analysis
when the state relies on the automobile exception to justify
Cite as 361 Or 187 (2017) 203
a warrantless search, the majority assures that, unless exi-
gent circumstances are actually present, a neutral magis-
trate, and not the individual who performs the search, will
determine whether there is probable cause to search. That
mode of analysis is essential to protect Oregonians’ right
to privacy. Any other rule would “improperly ignore the
current and future technological developments in warrant
procedures,” and “diminish the incentive for jurisdictions ‘to
pursue progressive approaches to warrant acquisition that
preserve the protections afforded by the warrant while meet-
ing the legitimate interests of law enforcement.’ ” McNeely,
133 S Ct at 1563 (quoting State v. Rodriguez, 570 Utah Adv
Rep 55, 156 P3d 771, 779 (2007)).
When this court created the Oregon automobile
exception in 1986, it expected that technological advances
would occur and that this state would pursue progressive
approaches to warrant acquisition. State v. Brown, 301 Or
at 278 n 6. Those advances have occurred, and state law
permits police departments to make use of them. ORS
133.545(8) authorizes the electronic transmission of pro-
posed warrants and affidavits to a judge, as well as the elec-
tronic transmission of the signed warrant back to the person
who made the application. In Multnomah County, warrant
affidavits can be submitted “in person, by telephone or by
email,” City of Portland Police Bureau Directives Manual,
ch 652.00, and, in State v. Machuca, 231 Or App 232, 245,
218 P3d 145 (2009), an officer “conceded that he could have
obtained a telephonic search warrant in one hour.”
Evidence from other jurisdictions suggests that
police officers should be able to obtain warrants in less than
one hour. In 1973, before the introduction of the first commer-
cially available cell phone,1 the San Diego District Attorney’s
Office estimated that 95 percent of warrants were obtained
in less than forty-five minutes. Comment, Oral Search
Warrants: A New Standard of Warrant Availability, 21 UCLA
L Rev 691, 694 n 23 (1973); see also People v. Blackwell,
195 Cal Rptr 298, 302 n 2 (Cal Ct App 1983) (citing same
1
See Zachary M. Seward, The First Mobile Phone Call Was Made 40 Years
Ago Today, The Atlantic, (Apr 3, 2013), available at http://www.theatlantic.com/
technology/archive/2013/04/the-first-mobile-phone-call-was-made-40-years-
ago-today/274611/ (accessed Mar 7, 2017).
204 State v. Andersen
estimate). In United States v. Baker, 520 F Supp 1080, 1084
(SD Iowa 1981), the district court concluded that the entire
process of obtaining a warrant by telephone would have taken
20 to 30 minutes. And, in 2015, the New Jersey Supreme
Court cited to a pilot program that examined 42 telephonic
automobile search warrant applications and found that
“[t]he average request for an automobile warrant took
approximately 59 minutes, from the inception of the call to
its completion.” State v. Witt, 223 NJ 409, 436, 126 A3d 850,
865-66 (2015).
However, the fact that that technology exists is just
one factor in the exigency analysis that this case permits.
If an officer testifies that, in the particular circumstances
presented, the time it reasonably would have taken to get a
warrant would have resulted in the destruction of evidence,
then that testimony may demonstrate that a warrantless
search was justified. See, e.g., Snow, 337 Or at 223 (holding
exigency exists when situation requires police to act swiftly
to prevent destruction of evidence). In this case, the officer
who conducted the search testified at trial that it would have
taken him three hours to write a warrant application and
two hours to get authorization from an on-call district attor-
ney to seek judicial approval, after which he would have had
to go to a judge’s residence to get the warrant signed. Those
are facts from which the trial court could have found an exi-
gency and that could have served as the basis for denial of
defendant’s motion to suppress.2 Although the trial court did
not expressly cite that evidence as a basis for its ruling, the
delay to which the officer testified could support it. I there-
fore concur with the result that the majority reaches and
would affirm the trial court’s judgment.
2
I do not mean to imply that that is the only conclusion that a trial court
could have reached. The delay that gives rise to an exigency must be reason-
able. See Stevens, 311 Or at 130 (noting that case was not one in which delay
was unreasonable). Washington County may not provide for telephonic or other
electronic search warrants, see State v. Sullivan, 265 Or App 62, 65, 333 P3d
1201 (2014) (officer testified that telephone warrants not available in Washington
County), and, in a future case, a trial court could find that an officer’s failure
to use statutorily-authorized and widely-available technology was unreasonable
and precluded a finding of exigent circumstances.