State v. Warner

ROSSMAN, J.,

dissenting.

Although I agree with the majority that the search of the pickup cannot be sustained as incident to defendant’s arrest, I will not follow the majority in its detour around the automobile exception. I must, therefore, dissent.

Too often, appellate courts are reluctant — or even unwilling — to accept that fact finding is a task best left to the “on the scene” trial judge. In fact, it is a task that we are required to leave to the trial judge. If there is evidence to support findings made by the trial judge, those findings cannot be disturbed on appeal. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Here, the record shows that, only minutes before the stop, McCartney saw defendant driving the pickup on the highway, albeit very slowly, and that, when defendant attempted to restart the engine after it quit running, the engine did, in fact, start and run briefly before dying. On that evidence, the trial judge made the finding that the pickup was “startable and movable” at the time of the stop. That finding is supported by the evidence, and we are bound by it. Ball v. Gladden, supra.

The finding also supports the trial judge’s conclusion that the pickup was “mobile” at the time of the stop. In interpreting the mobility requirement of the automobile exception, I urge that we be mindful that the principal rationale for the exception is to prevent evidence of criminal activity from being “quickly moved out of the locality or jurisdiction in which the warrant must be sought.” Carroll v. United States, 267 US 132, 153, 45 S Ct 280, 69 L Ed 543 (1925); see State v. Brown, 301 Or 268, 721 P2d 1357 (1986). The exception should permit a warrantless search if there is a genuine threat¹ that the vehicle would, or could, be moved by the time a warrant could be secured. See, e.g., State v. Cromwell, supra, n 1.

Here, the trial judge found that the pickup was “startable and movable.” There was, therefore, a genuine threat that defendant could have started his pickup and driven it away in the time it would have taken the officers to obtain a warrant. It “draws too fine a distinction,” and strays from the purpose underlying the automobile exception, to say that the pickup was rendered “immobile” based on the mere fortuity that it did not start on the first few turns of the key. State v. Cromwell, supra, 109 Or App at 659.

1 The cases cited by the majority and defendant in which the court held that the vehicle was “immobile” are inapposite. In those cases, there was no genuine threat that the vehicle would be driven away in the time that it would have taken the officers to get a warrant. State v. Giffen, 98 Or App 332, 778 P2d 1001 (1989), and State v. Kock, 302 Or 29, 725 P2d 1285 (1986), both held that the vehicle was “immobile,” because it was parked and unoccupied when the officers first encountered it. Indeed, in State v. Cromwell, 109 Or App 654, 659, 820 P2d 888 (1991), which is cited by the majority, the court found that the vehicle was mobile, because there was a genuine threat that the “defendant could have driven it away at any moment.”