State v. McCarthy

82

Argued and submitted September 17, 2018, reversed and remanded

January 29, petition for review allowed July 2, 2020 (366 Or 691)

See later issue Oregon Reports

STATE OF OREGON,

Plaintiff-Appellant,

v.

CHARLES STEVEN McCARTHY,

Defendant-Respondent.

Marion County Circuit Court

16CR75546; A165026

459 P3d 890

The state appeals from a pretrial order granting, in part, defendant’s motion

to suppress evidence that was seized pursuant to a warrantless search of defen-

dant’s automobile. The state assigns error to that order, arguing that the search

was lawful under the automobile exception to the warrant requirement. In

response, defendant contends that the trial court properly granted his motion to

suppress because the state failed to demonstrate an actual exigency in this spe-

cific case according to the standards articulated in State v. Andersen, 361 Or 187,

390 P3d 992 (2017). Specifically, the parties disagree over the significance of the

Oregon Supreme Court’s statement, “Nor do we foreclose a showing in an indi-

vidual case that a warrant could have been drafted and obtained with sufficient

speed to obviate the exigency that underlies the automobile exception.” Andersen,

361 Or at 201. Held: Although Andersen contemplated the effects of technology

on the assumptions underlying the automobile exception, Oregon’s automobile

exception does not require the state to show any particular exigency under the

facts of the encounter, nor does it require the state to establish that a telephonic

warrant was unavailable.

Reversed and remanded.

Lindsay R. Partridge, Judge.

Christopher A. Perdue, Assistant Attorney General, argued

the cause for appellant. Also on the briefs were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Zachary J. Stern argued the cause for respondent. Also

on the brief was Ferder Casebeer French & Thompson, LLP.

Before Lagesen, Presiding Judge, and James, Judge, and

Sercombe, Senior Judge.

JAMES, J.

Reversed and remanded.

Cite as 302 Or App 82 (2020) 83

JAMES, J.

The state appeals from a pretrial order granting,

in part, defendant’s motion to suppress evidence that was

seized pursuant to a warrantless search of defendant’s auto-

mobile. The state assigns error to that order, arguing that

the search was lawful under the automobile exception to

the warrant requirement. In response, defendant contends

that the trial court properly granted his motion to suppress

because it correctly held that the automobile exception is not

a per se exception, and here, the state failed to demonstrate

an actual exigency in his specific case according to the stan-

dards articulated in State v. Andersen, 361 Or 187, 390 P3d

992 (2017). Specifically, the parties disagree over the signif-

icance of the Oregon Supreme Court’s statement, “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.” Id. at 201 (internal citations omitted). Although

we agree with defendant that, in making that statement

the court in Andersen, echoing State v. Brown, 301 Or 268,

274, 721 P2d 1357 (1986), was contemplating the effects of

technology on the assumptions underlying the automobile

exception, we conclude that Oregon’s automobile exception,

as articulated by the collective weight of Oregon Supreme

Court precedent, does not require the state to show any par-

ticular exigency under the facts of the encounter, nor does it

require the state to establish that a telephonic warrant was

unavailable. Accordingly, we reverse and remand.

“We review the trial court’s ruling on a motion to

suppress for errors of law, and are bound by the trial court’s

express and implicit findings of fact if there is constitution-

ally sufficient evidence in the record to support them.” State

v. Perrott, 288 Or App 837, 838, 407 P3d 892 (2017) (relying

on State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993)).

Two detectives, Garland and Bidiman, were sur-

veilling a suspected drug house when they saw defendant

and two other men in a truck outside. The detectives fol-

lowed the truck because they recognized defendant as a per-

son of interest based on previous investigations. While fol-

lowing defendant, the detectives saw the truck drift into the

84 State v. McCarthy

bike lane and pulled it over. Defendant drove the truck into

a tavern parking lot and legally parked the vehicle. Garland

blocked the truck from leaving by parking his unmarked

police car behind the truck in the parking lot. Another

detective, Smith, shortly arrived on the scene as backup.

Garland asked defendant for his driver’s license,

registration, and proof of insurance. Defendant immediately

told the detective that his license was suspended, that he did

not own the truck he was driving, and that he did not know

which insurance company insured the truck. While inter-

acting with defendant, the detectives noticed that defendant

and his two passengers appeared nervous and that they had

black tar stains on their hands that the detectives consid-

ered consistent with handling heroin. Smith asked defen-

dant about the black tar stains on his hands and defendant

claimed the stains were from food and working on engines.

Smith told Garland and Bidiman that Street Crimes

Unit Detective Carney still had probable cause to arrest

defendant for conspiracy to deliver heroin stemming from

an investigation five months earlier.1 From the tavern park-

ing lot, Smith called Carney and explained that the detec-

tives had pulled over defendant. Carney requested that they

arrest defendant.

However, the detectives did not immediately arrest

defendant; instead, the detectives decided to call Trooper

Freitag, a drug enforcement K9 officer. When Freitag

arrived, the detectives removed defendant and his passen-

gers from the truck and arrested defendant for conspiracy to

deliver heroin. The drug dog alerted to the interior passen-

ger door, and Freitag concluded that it was more likely than

not that the truck contained drugs. The detectives had also

called the registered owner of the truck but had to detain

him on an outstanding warrant when he arrived. The detec-

tives could not tow the truck because the tow policy at the

Salem Police Department did not authorize the detectives

to impound a legally parked truck in a public parking lot.

Moreover, the detectives believed that applying for a war-

rant would have taken at least four or five hours. So, the

1

In June 2016, defendant had allegedly agreed to sell heroin to an under-

cover police detective, Carney, but the deal fell through.

Cite as 302 Or App 82 (2020) 85

detectives searched the truck relying on the automobile

exception to the warrant requirement and discovered drug

paraphernalia with heroin and methamphetamine residue.

The state charged defendant with possession of heroin and

delivery of heroin.

Before trial, defendant moved to suppress various

items seized after his arrest, including the items discovered

during the search of the truck. The trial court ruled on the

motion in two separate letter opinions, concluding that the

automobile exception did not apply for two reasons: (1) the

detectives did not demonstrate an actual exigency given

the possibility of a telephonic warrant and (2) the otherwise

legally parked truck was immobile.

In the first letter opinion issued by the trial court

on April 11, 2017, the court made the following findings:

“3. During the ‘lull’ Officer Garland had contact with

Agent Carney and Agent Carney requested that Officer

Garland arrest defendant for an alleged drug offense on

May 16, 2016.

“* * * * *

“5. Immediately prior to the traffic stop the vehicle

was mobile. During the traffic stop the vehicle was lawfully

parked in a parking lot accessible to the public.

“6. Once defendant was in custody[,] the vehicle was at

least temporarily immobile. * * *

“7. Probable cause existed to believe the vehicle would

contain contraband due to the following:

“a. Officer Garland observed defendant leaving from a

residence that he knew to be a known drug house[;]

“b. Police officers knew there was probable cause to

arrest defendant for a drug offense from May 16, 2016;

“c. During the traffic stop officers observed stains on

defendant’s shirt and fingers consistent with tar heroin;

“d. Defendant appeared nervous and shaky during his

contact with police;

“e. A drug detection dog alerted to the presence of con-

trolled substances during the traffic stop.”

86 State v. McCarthy

The trial court explained that “Oregon appellate

courts have clarified that the mobility of the vehicle and the

existence of probable cause to believe defendant has com-

mitted a crime must exist at the same time for the exception

to apply.” Given the trial court’s understanding of the excep-

tion, it held that “the police did not develop probable cause

that defendant committed a crime until after the vehicle

was stopped. Additionally, during the investigation of the

traffic stop, the police determined that neither defendant

nor the registered owner could move the vehicle. * * * The

police developed probable cause to search the vehicle after

that point [and] the vehicle was unoccupied at * * * the point

probable cause was developed.” Thus, the trial court ruled:

“The legal basis for applying the automobile exception is

based upon the concern that a vehicle containing evidence

of a crime will be moved and the state will lose the ability to

seize such evidence. However, the exception requires that

the state demonstrate at least a realistic likelihood that

someone will move the vehicle prior to the police obtaining

judicial authorization to search the automobile. In this case,

the state only presented a general theory that the vehicle

was operable. However, neither the registered owner nor

defendant could move the vehicle as both were in custody.

The vehicle was unoccupied and otherwise was parked in a

manner that did not create a safety hazard. The state pre-

sented no other evidence that the vehicle could be moved.

Accordingly, the warrantless search of the vehicle [was] not

justified through the automobile exception.”

The state filed a motion for reconsideration, request-

ing a second evidentiary hearing with further argument.

The trial court granted the request. On May 3, 2017, in its

second letter opinion on defendant’s motion to suppress, the

trial court addressed some arguments raised by the state at

the second hearing regarding the automobile exception. The

trial court explained:

“The court must give more than lip service to the axiom

that warrantless searches are per se unreasonable under

Art. I, Section 9 and the Fourth Amendment. The rationale

for the automobile exception is that evidence of crime may

be lost as the automobile drives away from the traffic stop.

It takes into account the reality that the evidence is mobile.

Cite as 302 Or App 82 (2020) 87

However, that rationale does not exist under the facts of

this case.

“The state presented no evidence that anyone would

move the automobile from the scene while the police sought

judicial authorization for the search. At the supplemen-

tal hearing, the state went to great lengths to discuss the

time consuming process to obtain a written search war-

rant. One rationale proposed by the state for not seeking a

search warrant is the need for accuracy when presenting

the warrant to a judge. * * *

“However, the state fails to prove how inconvenient it

would have been to obtain judicial authorization in this

case. The arrest occurred on a regular working day in

the early afternoon. The state fails to address why one of

the officers could not avail themselves of an existing pro-

cess under Oregon law, make a call on a cell phone to the

courthouse, lay out the facts under oath to a judicial officer

and have the judicial officer determine if probable cause

existed. The answer seems to be that ‘we just don’t do it

that way.’

“Additionally, the state seemed to argue that there is a

‘policy’ from the Marion County Circuit Court bench that

judges will not accept telephonic warrant requests. The

court rejects that such a policy exists although acknowl-

edges the bench has had discussions about some of the

practical problems associated with telephonic warrants.

“In the final analysis the state must show that conduct-

ing a warrantless search is reasonable. Under the facts

in this case no showing has been made. The holding in

Brown[, 301 Or 268,] has never been universally accepted

by all judges. At the time of the Brown decision, Justice

Linde pointed out how the statute and technology back in

1986 called into question the bright line test in Brown. No

one would dispute that the technology today is even much

more advanced 30 years later.

“Today, everyone has a cellphone. * * * It is unreason-

able under the circumstances in this case that no one even

considered the idea of calling a judge from the site of the

traffic stop to seek judicial authorization. Accordingly, this

court cannot find that the state has proven that the war-

rantless search of the automobile was reasonable.”

88 State v. McCarthy

Ultimately, the trial court granted, in part, defendant’s

motion to suppress evidence discovered as a result of the

warrantless search of the truck, and this appeal followed.

Article I, section 9, of the Oregon Constitution

states, “No law shall violate the right of the people to be

secure in their persons, houses, papers, and effects, against

unreasonable search, or seizure; and no warrant shall issue

but upon probable cause[.]” As such, “[t]hat provision gener-

ally requires law enforcement officers to obtain a warrant

before executing a search. As [the Oregon Supreme Court

has] stated, warrantless searches are per se unreasonable

unless they fall within one of the few specifically established

and limited exceptions to the warrant requirement.” State

v. Bliss, 363 Or 426, 430, 423 P3d 53 (2018) (citing State v.

Blair, 361 Or 527, 534, 396 P3d 908 (2017) (internal citations

omitted)).

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.” Andersen, 361 Or at 189

(internal citation omitted). The automobile exception only

applies if the car is not “parked, immobile and unoccupied

at the time the police first encountered it in connection with

the investigation of a crime.” State v. Kock, 302 Or 29, 33, 725

P2d 1285 (1986). Therefore, the automobile exception to the

warrant requirement of Article I, section 9, requires “(1) that

the automobile is mobile at the time it is stopped by police

or other governmental authority, and (2) that probable cause

exists for the search of the vehicle.” Brown, 301 Or at 274.

As originally adopted, the automobile exception to

the Oregon Constitution was clearly a per se exception to the

warrant requirement. As Brown noted:

“We are convinced that adoption of a ‘per se exigency rule’

is a sound approach which provides the clearest guidelines

for police in conducting automobile searches. Exigencies

should not be determined on a case-by-case basis.”

301 Or at 277.

However, the Oregon Supreme Court cast some

doubt on that per se nature in Andersen when it stated:

Cite as 302 Or App 82 (2020) 89

“We do not foreclose the possibility that Brown held

out—that changes in technology and communication could

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.”

361 Or at 200-01 (internal citations omitted).

Andersen did not elaborate, however, on how such a

showing would be made, nor upon whom the burden of pro-

duction and persuasion falls. As a warrantless search, nor-

mally it is the state’s burden to establish an exception to the

warrant requirement. State v. Ritz, 361 Or 781, 790, 399 P3d

421 (2017) (“The state has the burden of proving that the cir-

cumstances at the time of the warrantless search fall within

the exigent circumstances exception.” (Internal citation

omitted.)). However, requiring the state to show the unavail-

ability of a telephonic warrant contravenes Brown, which

stated that “we emphasize that the key to the automobile

exception is that the automobile need be mobile at the time

it is lawfully stopped. No exigent circumstances other than

the mobility of the stopped vehicle need be demonstrated.”

301 Or at 276. Nothing in Andersen indicates that the court

sought to overrule this aspect of Brown.

Andersen seems to imply by its wording that it is

not the state’s burden to show unavailability of a telephonic

warrant. Rather, Andersen appears to envision “a showing

in an individual case that a warrant could have been drafted

and obtained with sufficient speed to obviate the exigency.

361 Or at 201 (emphasis added). Defendant, not the state,

would be the party with motivation to attempt such a show-

ing. In that respect, Andersen appears to cast the theoret-

ical exigency that underlies the automobile exception as a

rebuttable presumption.2

2

In so doing, Andersen appears to make the automobile exception some-

thing of a unicorn, being the only warrant exception in Oregon containing a

component for which it is a defendant’s burden to prove the exception does not

apply.

90 State v. McCarthy

After Andersen—and after the trial court ruled in

this case—the Oregon Supreme Court revisited the automo-

bile exception in Bliss, clarifying that “the court intended

the automobile exception to apply to all lawful roadside

stops of mobile vehicles,” meaning that “it will sometimes

be the case that police will reasonably suspect at the time of

the initial stop that a driver has committed a traffic viola-

tion and that the driver has committed a crime.” 363 Or at

434 (emphasis in original). In that situation, the “police may

stop a driver because, for example, she has failed to stay in

her lane, signal when required, or stop at a stop sign—all

traffic violations—and may not develop probable cause to

search the vehicle to investigate the crime of driving under

the influence until they have interacted with the driver.” Id.

If Andersen created some uncertainty about the per

se nature of the Oregon automobile exception, Bliss appears

to have retreated from that view, instead reiterating that

the automobile exception exists to “provide law enforcement

with ‘simple guidelines’ and a ‘per se’ rule for all highway

stops, rather than a ‘complex set of rules dependent on par-

ticular facts regarding the time, location and manner’ of the

stop.” Id. (quoting Brown, 301 Or at 277). In light of Bliss,

whatever Andersen contemplated by a “showing in an indi-

vidual case that a warrant could have been drafted,” the

possibility of such a showing does not undermine the pre-

sumptively per se nature of the automobile exception. And,

in turn, such a possibility does not create any extra burden

upon the state to avail itself of the exception.

In this case, detectives testified at the evidentiary

hearing that defendant was initially pulled over for a traffic

violation when detectives saw the truck defendant was driv-

ing drift into the bike lane. Moreover, detectives were famil-

iar with defendant’s association with known drug activity,

and, upon interacting with defendant, detectives believed

that they had developed probable cause of heroin use, pos-

session, and delivery. Eventually, detectives initiated an

arrest and search of defendant and the truck he was driving

when he was initially pulled over. The trial court made find-

ings of fact to similar effect in its letter opinions and those

findings are supported by evidence in this record.

Cite as 302 Or App 82 (2020) 91

Applying Brown to this case, detectives were per-

mitted to execute a warrantless search of defendant’s truck

under the automobile exception “(1) [if] the automobile [was]

mobile at the time it [was] stopped by police * * * and (2) [if]

probable cause exist[ed] for the search of the vehicle.” 301

Or at 274. As to the first prong—mobility—Bliss made clear

that detectives are permitted to pull a defendant over for a

traffic violation. If detectives later develop probable cause

of a more serious crime requiring a search of the vehicle, as

long as the vehicle was mobile at the time of the initial law-

ful encounter, the probable cause that follows is permissible

under the second prong. Accordingly, any resulting war-

rantless search is permitted under the automobile excep-

tion. Here, the record shows that the vehicle was mobile at

the time of the initial traffic encounter. Further, no party is

contesting that, upon interacting with defendant, detectives

developed probable cause of his use, possession, and delivery

of heroin. Both prongs of Brown are therefore met.

Quite correctly, the trial court noted that it “must

give more than lip service to the axiom that warrantless

search are per se unreasonable under Art. I, Section 9 and

the Fourth Amendment.” Brown held out the promise of “a

time in the near future when the warrant requirement of

the state and federal constitutions can be fulfilled virtually

without exception.” 301 Or at 278 n 6. In many respects,

the trial court’s reasoning in this case echoes the concerns

later expressed by the dissent in Bliss. There, Chief Justice

Walters indicated that she “would hold that the officers

were not permitted to conduct a warrantless search of [the]

defendant’s vehicle based on an assumed exigency. Rather, a

warrant, a showing of actual exigent circumstances, or the

establishment of another exception to the warrant require-

ment was necessary.” 363 Or at 439. The Bliss dissent

explained:

“In Brown, this court assumed the existence of an exi-

gency with the understanding that that assumed exigency

would be short-lived—that, due to anticipated technolog-

ical advances, there would be ‘a time in the near future

when the warrant requirement of the state and federal

constitutions can be fulfilled virtually without exception.’

That was over 30 years ago, and technological advances

92 State v. McCarthy

have occurred. Officers should now be able to obtain war-

rants without significant delay. But, be that as it may, it is

one thing to routinely permit a warrantless search when

officers stop vehicles with probable cause to believe that

a crime has been committed. It is another thing to do so

when officers pull drivers over for traffic infractions. When

such routine stops are extended, constitutional concerns

abound.”

Bliss, 363 Or at 439-40 (Walters, C. J., dissenting) (internal

citation omitted).

Nevertheless, as the automobile exception currently

is crafted in Oregon pursuant to Brown, Andersen, and

Bliss, the state is only required to show “(1) that the auto-

mobile [was] mobile at the time it [was] stopped by police or

other governmental authority, and (2) that probable cause

exist[ed] for the search of the vehicle.” The state in this case

was not required to demonstrate, in addition to the above

test, that someone was likely to move this specific vehicle—

that is, that the movement exigency underlying the automo-

bile exception actually exists rather than existed in theory.

Similarly, as currently constructed, Oregon’s automobile

exception does not require the state to establish the unavail-

ability of a telephonic warrant. See Brown, 301 Or at 274.

The trial court erred when it granted, in part, defendant’s

motion to suppress evidence collected incident to a warrant-

less search of a truck in accordance with the automobile

exception.

Reversed and remanded.