State v. Hopkins , 316 Or. App. 466 ( 2021 )

466
Submitted November 8; affirmed December 15, 2021; appellant’s petition for
reconsideration filed January 12 allowed by opinion April 13, 2022
See 319 Or App 53, 508 P3d 599 (2022)
STATE OF OREGON,
Plaintiff-Respondent,
v.
KELLY DALE HOPKINS,
Defendant-Appellant.
Curry County Circuit Court
19CR45352; A173356
502 P3d 785
Jesse C. Margolis, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Affirmed.
Cite as 316 Or App 466 (2021) 467
PER CURIAM
Defendant appeals from a judgment of conviction
for theft in the first degree by receiving (ORS 164.055(1)(c)),
raising three assignments of error. We reject defendant’s
second and third assignments of error without discussion.
For the reasons briefly discussed below, we also reject defen-
dant’s first assignment of error that contends that the trial
court erred in denying his motion to suppress. As a result,
we affirm.
A complete recitation of the facts would not benefit
the bench, bar, or public. In summary, the owner of a coin
and collectibles shop in Brookings discovered one morning
that his shop had been burglarized. The owner obtained
information from an informant that identified a suspect,
defendant, in that burglary. The informant arranged for
a meeting in which defendant would attempt to sell back
the stolen goods to the owner at the owner’s store. Several
hours before that planned meeting, the owner relayed the
information to the police that defendant was coming back
to the store with the stolen goods in an older green van or
sport utility vehicle with California plates. Minutes before
the planned meeting, he also relayed that defendant was
headed into Oregon. When defendant arrived in the county
for the meeting, the owner also transmitted information
about defendant’s location near a Dutch Brothers coffee
shop in the vicinity. The officers located defendant sitting in
his automobile at the Dutch Brothers. The automobile was
similar but not an exact match to the vehicle information
that the police had obtained.
The police observed defendant’s automobile leave
the coffee shop and followed it. After the police observed a
traffic violation and later deployed a drug dog, which alerted
for drugs in defendant’s car, they searched the automobile
and found packaged coins, cards, and collectibles. The owner
later identified the recovered coins, silver bullion, and cards
as ones that had been stolen from his shop.
Defendant moved to suppress, among other things,
the evidence found in defendant’s vehicle. Defendant argued
that police should have obtained a warrant to search
468 State v. Hopkins
defendant’s automobile, contending that the automobile
exception did not apply because the police “cannot create
[the] exigent circumstances” to fit into that exception. The
state responded that (1) the officer’s search was legal, (2) a
warrant was not required under the automobile exception
to the warrant requirement, and, (3) a warrant was not pos-
sible based on the limited information that the police had,
including the fact that they did not even know when defen-
dant would enter the state or county. The court denied the
motion to suppress, concluding that “[t]he vehicle exception
does apply. There were exigent circumstances.” The court
specifically found that the officers did not have sufficient
information to obtain a warrant based on their limited
knowledge about defendant’s vehicle and the fact that they
only learned he was driving into Oregon “at the time he
came into Oregon or shortly before then.”
On appeal, defendant essentially raises two argu-
ments in support of his contention that the trial court erred in
concluding that the warrantless search of defendant’s auto-
mobile did not violate his rights under Article I, section 9,
of the Oregon Constitution and the Fourth Amendment
to the United States Constitution. He contends that the
police manufactured any exigency here such that the per se
“automobile exception” to the warrant requirement should
not apply. He also contends that, because the exception is
subject to manipulation by the police, we should abandon
the automobile exception to the warrant requirement. With
respect to that latter argument, defendant recognizes both
that we are bound by precedent recognizing the automobile
exception and that the Supreme Court is currently consider-
ing a challenge to that exception in State v. McCarthy, 302
Or App 82, 459 P3d 890, rev allowed, 366 Or 691 (2020).
We need not address defendant’s second argument. We also
disagree with the premise of his first, that the police manu-
factured an exigency that did not otherwise exist.
The trial court found that there was an exigency
that justified a warrantless search of defendant’s automo-
bile, which was not dependent on any per se rule arising
from the automobile exception. The court also found that
that exigency was not manufactured by the police; rather,
the police were provided information by the victim of the
Cite as 316 Or App 466 (2021) 469
burglary soon before the victim’s own planned meeting
with defendant. The trial court further determined that the
police would not have been able to obtain a warrant based
on the limited information that they had prior to stopping
defendant’s automobile. Having reviewed the record, there
is evidence to support the trial court’s findings. We also con-
clude that the trial court did not legally err in concluding
that there were independent exigent circumstances justify-
ing the police search of the automobile that existed apart
from the automobile exception. We therefore affirm.
Affirmed.