State v. Colman-Pinning

383

Argued and submitted August 30, 2017, affirmed February 26, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

NICHOLAS COLMAN-PINNING,

Defendant-Appellant.

Lincoln County Circuit Court

141564; A159431

461 P3d 994

Defendant appeals a judgment of conviction for multiple drug offenses,

assigning error to the trial court’s denial of his motion to suppress evidence

obtained in a warrantless search of his vehicle after he was stopped on his way

to a police-arranged drug buy. Defendant argues that, because law enforce-

ment officers could have obtained a warrant to search his person, residence, or

vehicle hours before the warrantless search, and because they arranged for the

time and place of the stop, they created their own exigent circumstances and,

therefore, the automobile exception was inapplicable to the search of his vehicle.

Held: Because the automobile exception is a per se rule and its requirements were

met, law enforcement officers were not required to obtain a warrant to search

defendant’s vehicle.

Affirmed.

Sheryl Bachart, Judge.

Anne Fujita Munsey, Deputy Public Defender, argued

the cause for appellant. Also on the briefs was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services.

Susan G. Howe, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge,

and Shorr, Judge.

ARMSTRONG, P. J.

Affirmed.

384 State v. Colman-Pinning

AMSTRONG, P. J.

Defendant appeals a judgment of conviction after

a conditional guilty plea for multiple drug offenses that the

trial court entered. He assigns error on appeal to the trial

court’s denial of his motion to suppress evidence obtained in

a warrantless search of his vehicle after he was stopped on

his way to a police-arranged drug buy. We conclude that the

warrantless search was valid under the automobile excep-

tion to the warrant requirement, State v. Brown, 301 Or 268,

276, 721 P2d 1357 (1986), and that the trial court did not

err in denying defendant’s suppression motion. We therefore

affirm.

BACKGROUND

The relevant facts are undisputed. Two or three

days before defendant’s arrest, police in Lincoln County

stopped a person who was in possession of heroin. The per-

son reported that, for the past six months, he had been pur-

chasing significant amounts of heroin (15 grams for $1,600

per buy) from defendant every two to four days. Police

viewed the person and his information as reliable and told

him that, if he would help law enforcement locate drug deal-

ers in the county, they would explain to the district attorney

that he had been cooperative and helpful to their efforts. He

agreed that he would be a “confidential person” (CP) for an

investigation of defendant.

Detectives and officers in the Lincoln Interagency

Narcotics Team (LINT) met with the CP at about 8:30 a.m.

on the day of defendant’s arrest and developed a plan that

would lead defendant to believe that the CP would buy the

usual amount of drugs from defendant at a certain location.

The CP confirmed defendant’s home address and described

defendant’s vehicle, a dark green Toyota pickup truck. Police

then obtained defendant’s license plate number from the

Department of Motor Vehicles. Based on the CP’s past pur-

chases, the CP believed that defendant would take a partic-

ular route, viz., he would head north on Highway 101 from

his residence to the CP’s workplace in Newport, the planned

drug-buy location. With that in mind, LINT planned to rely

on the automobile exception announced in Brown to stop

defendant and conduct a warrantless search of defendant’s

Cite as 302 Or App 383 (2020) 385

pickup while he was on his way to the arranged drug buy.

See Brown, 301 Or at 274 (announcing a per se exception to

the warrant requirement “provided (1) that the automobile

is mobile at the time it is stopped by police or other govern-

mental authority, and (2) that probable cause exists for the

search of the vehicle”). LINT had regularly used such a plan

in the past, where the police “create [their] probable cause

prior to the person coming to a particular location.”

At LINT’s direction, the CP exchanged text mes-

sages with defendant and arranged for a drug buy at the

CP’s workplace, to occur before the CP started his shift.

Detective Dorsey positioned himself about 10 minutes from

defendant’s home near Ona Beach, and other LINT officers

waited further north along Highway 101. At approximately

11:25 a.m., Dorsey saw defendant traveling in his pickup; 10

or 15 minutes earlier, defendant had texted the CP to say

that he was on his way to the buy location. At 11:35 a.m.,

other officers spotted defendant’s pickup and pulled him over.

A detective explained to defendant that he had been stopped

because officers had probable cause to believe that defen-

dant had controlled substances in the vehicle. Defendant got

out of his pickup, and a detective patted defendant down

and felt a round, cylindrical shape. After patting defendant

down, a detective handcuffed defendant and explained that

he was not under arrest but that he was being detained.

Detective Meister arrived and spoke with defen-

dant, and defendant admitted that he possessed marijuana.

Meister said that police were looking for other controlled

substances, and defendant said that police did not have

consent to search his pickup. Defendant asked Meister if he

had a search warrant, and Meister replied that a warrant

to search the pickup was not required because the stop was

a “Brown stop.” Police placed defendant in a patrol car, a

police dog and officers searched the pickup, and the officers

found heroin and other controlled substances. Defendant

was arrested and charged with multiple counts of posses-

sion and delivery of controlled substances.

Defendant filed a motion to suppress evidence

derived from the warrantless search of his pickup, and a

hearing was held on the motion. Meister testified, and when

386 State v. Colman-Pinning

asked why LINT did not use a controlled buy and a wire to

apprehend defendant with heroin, he answered that using a

wire was unnecessary, because LINT could build probable

cause by the exchange of texts between the CP and defen-

dant. Moreover, Meister explained that an automobile stop

is generally a safer approach. As for why LINT did not get a

warrant for the search, Meister said:

“The nature of this investigation did not preclude [sic] the

need to get a warrant. This is a very common way of com-

pleting an investigation that there could be all sorts of little

things that are involved that are going to cause concern

whether a confidential person is going to be around after

that day, whether he’s going to [be] willing to continue to

cooperate, sometimes you need to just go with what you

have, and complete the investigation.”

When Meister was asked if he could have obtained a war-

rant by 11:00 a.m. or 12:00 p.m, he replied, “Possibly,” and,

if he could have obtained a telephonic warrant, he replied,

“Yes.”

After the hearing testimony, defendant pointed out

that officers had information about defendant days before the

arrest, and referred to Meister’s testimony that a telephonic

warrant could have been obtained by “11:30 [a.m.] at a mini-

mum.” Defendant also argued that the automobile exception

“generally would not apply in a situation where the plan was

at all times to remove the defendant from the vehicle, ren-

dering the vehicle immobile because the plan was to search

the vehicle.” For its part, the state argued that the search

was permissible under the automobile exception because the

vehicle was mobile when it was stopped and there was prob-

able cause to believe it would contain controlled substances.

As to when probable cause arose, the state asserted that it

had “repeatedly been denied warrants” when a belief could

not be articulated whether the drugs would be located either

on the person or in their residence, and that sometimes

drug dealers would need to go to their supplier before they

could complete a drug transaction. According to the state,

the police did not have probable cause until the last text

message from the CP when they had reason to believe that

defendant was on his way to the arranged drug buy with the

heroin.

Cite as 302 Or App 383 (2020) 387

The trial court denied defendant’s suppression

motion, concluding that the search was valid under the auto-

mobile exception, because the officers had lawfully stopped

defendant in connection with a crime—viz., the delivery and

possession of heroin—while his vehicle was mobile, and,

when the officers stopped defendant’s vehicle, the officers

had probable cause to believe controlled substances were in

the pickup. Ultimately, the court relied on the “bright-line”

nature of the automobile exception to the warrant require-

ment to deny defendant’s motion. Moreover, the court said,

the fact “[t]hat police had available to them other investiga-

tory tools, i.e., a controlled buy or applying for a search war-

rant of defendant’s vehicle and/or residence, does not inval-

idate the applicability of the automobile exception so long

as the requirements of [the automobile exception] are met.”

Defendant entered a conditional guilty plea, reserving the

right to challenge on appeal the denial of his suppression

motion.

ANALYSIS

Article I, section 9, of the Oregon Constitution pro-

hibits unreasonable searches and seizures. A warrantless

search is per se unreasonable unless it falls within one of

the limited exceptions to the warrant requirement. State

v. Bliss, 363 Or 426, 430, 423 P3d 53 (2018). The automo-

bile exception is one of those exceptions and allows police

to search a vehicle without a warrant if (1) the vehicle is

mobile when the officers first encounter it in connection with

a crime and (2) the officers have probable cause to believe

that the vehicle contains contraband or evidence of a crime.

Brown, 301 Or at 276; State v. Andersen, 361 Or 187, 200-01,

390 P3d 992 (2017). As explained in Brown, the automobile

exception is a subcategory of the warrant exception for exi-

gent circumstances, necessitated by the fact that a vehicle

that is mobile can be quickly moved out of the locality or

jurisdiction in which the warrant must be sought. Brown,

301 Or at 275. The mobility of the vehicle creates a per se

exigency, meaning that there is no need to establish other

exigencies or that a warrant could not have been quickly

obtained. Id. at 276.

In Andersen, the Supreme Court revisited the auto-

mobile exception announced in Brown—casting “some doubt

388 State v. Colman-Pinning

on the per se nature” of the exception, State v. McCarthy, 302

Or App 82, 88, 459 P3d 890 (2020)—when it explained:

“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 magistrate, and

reviewed with sufficient speed that the automobile excep-

tion may no longer be justified in all cases. Nor do we foreclose

a showing in an individual case that a warrant 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).

The court did not elaborate in Andersen “on how

such a showing would be made, nor upon whom the burden

of production and persuasion falls.” McCarthy, 302 Or App

at 89. More recently, in Bliss, 363 Or at 434, the court again

revisited the automobile exception and “appears to have

retreated from” the uncertainty about the per se nature of the

exception indicated in Andersen, “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.’ ” McCarthy, 302 Or App at 90 (quoting Bliss, 363 Or at

434 (quoting Brown, 301 Or at 277)). Accordingly, “whatever

Andersen contemplated by a ‘showing in an individual case

that a warrant could have been drafted,’ the possibility of

such a showing does not undermine the presumptively 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.” Id.

On appeal, defendant raises four arguments as to

why the automobile exception does not apply to the warrant-

less search of his pickup, two of which we address here.1

First, defendant argues that the automobile exception does

not apply when officers “create their own exigency” by choos-

ing the time when it decides to stop a suspect in the act of

delivery. That is, in defendant’s view, officers had probable

1

We reject without discussion defendant’s contention that this court should

abandon the automobile exception or that the warrantless search of defendant’s

pickup truck violated the Fourth Amendment to the United States Constitution.

Cite as 302 Or App 383 (2020) 389

cause to obtain a warrant to search defendant’s person,

vehicle, or residence at the 8:30 a.m. meeting with the CP on

the day of defendant’s arrest, and therefore executing a war-

rantless search under the guise of the automobile exception

was unjustified because the officers could have obtained a

warrant much earlier than the time of the search. Cf. State

v. Matsen/Wilson, 287 Or 581, 587, 601 P2d 784 (1979) (“The

police cannot weave together a web of information, then

claim exigent circumstances when the suspect arrives and

can conveniently be snared.”). Second, defendant argues that

LINT caused defendant to enter his automobile at a specific

time and to travel over a specific route with the heroin that

they sought to seize as evidence, thereby manufacturing the

situation to allow them to take advantage of the automobile

exception. That, defendant contends, is not allowed by the

automobile exception to the warrant requirement.

The state answers that, to begin with, the Supreme

Court has steadfastly adhered to the “bright-line” per se exi-

gency that a vehicle’s mobility permits the justification to

search a vehicle under the exception announced in Brown.

Thus, the automobile exception’s per se exigency continues to

apply in all cases in which the requirements of the exception

are met and, in this case, defendant’s vehicle was mobile

and police had probable cause to believe that a search of

defendant’s pickup would result in evidence of a crime. Even

so, assuming that the per se nature of the exigency does not

apply in the circumstances of defendant’s case, the state

further argues, contrary to defendant’s assertion that LINT

had probable cause to search defendant’s person, house, or

vehicle at 8:30 a.m., probable cause to believe that defen-

dant was in possession of a significant amount of heroin

did not “crystallize until defendant texted the informant

that he was en route” to the CP’s workplace with the drugs.

Accordingly, police did not create the exigency by unrea-

sonably delaying the search. As to defendant’s argument

that police caused defendant to transport controlled sub-

stances at a particular time and place and therefore man-

ufactured the exigency, the state responds that defendant’s

choice to drive with the heroin to the agreed-upon meeting

site was entirely defendant’s own: the fact that defendant’s

actions conformed to LINT’s expectations does not mean

390 State v. Colman-Pinning

that they were constitutionally compelled to obtain a search

warrant.

Reviewing the trial court’s denial of defendant’s

suppression motion for legal error, State v. Ehly, 317 Or 66,

74-75, 854 P2d 421 (1993), we conclude that the automobile

exception provided a valid basis for the police to conduct

a warrantless search of defendant’s pickup and therefore

affirm.

Before we address defendant’s two specific argu-

ments, we first note that both arguments presume that the

automobile exception is inapplicable if police “created” the

exigency. That is, defendant takes aim at the “bright-line”

per se exception, positing that, in some cases, like this one,

the per se nature of the rule does not apply. In McCarthy,

the defendant raised a different challenge to the excep-

tion, arguing that the state failed to demonstrate an actual

exigency given the possibility of a telephonic warrant and

the immobility of the defendant’s otherwise legally parked

truck. 302 Or App at 85. The trial court in that case agreed

with the defendant, but we reversed, explaining that, under

Brown, Andersen, and Bliss, the state is required to show

only (1) that the vehicle was mobile at the time that it was

stopped by police and (2) that probable cause existed for the

search of the vehicle. Id. at 92. Further, the state was

“not required to demonstrate, in addition to the above test,

that someone was likely to try and move this specific vehicle—

that is, that the movement exigency underlying the auto-

mobile exception actually exists rather than existed in the-

ory. Similarly, as currently constructed, Oregon’s automo-

bile exception does not require the state to establish the

unavailability of a telephonic warrant.”

Id.

Likewise, here, we see nothing in the Supreme

Court’s automobile exception cases that would lead to us

conclude—as a general proposition—that the circumstance

of who “created” the exigency undercuts the bright-line

character of the exception. It is the “mobility of the vehicle,

by itself, [that] creates an exigency because the vehicle can

be quickly moved out of the locality or jurisdiction in which

the warrant must be sought.” State v. Meharry, 342 Or 173,

Cite as 302 Or App 383 (2020) 391

177, 149 P3d 1155 (2006) (internal quotation marks omitted;

emphasis added). That is, under the Brown court’s reason-

ing, if a vehicle that police officers have probable cause to

believe contains evidence of a crime that could be moved

outside the legal reach of police, the vehicle’s mobility puts at

risk an officer’s ability to obtain that evidence. How the sus-

pect and the police arrived at such a circumstance is, under

Brown, beside the point. Further, the Brown court provided

a bright-line rule for police officers when conducting auto-

mobile searches so that they need not try “to follow a com-

plex set of rules dependent upon particular facts regarding

the time, location and manner of highway stops.” Brown, 301

Or at 277. To accept defendant’s argument would necessar-

ily add complexity to that bright-line rule, something that

the Bliss court declined to do. With that said, even assum-

ing that the categorical nature of the automobile exception

is up for debate, we reject defendant’s arguments on appeal

that contend otherwise.

We first consider defendant’s argument that posits

that law enforcement had probable cause to conduct a search

about three hours before the vehicle stop of defendant,

thereby creating the exigency. For that argument, defen-

dant relies on two cases, Matsen/Wilson, 287 Or at 587, and

State v. Fondren, 285 Or 361, 591 P2d 1374, cert den, 444 US

834 (1979). As we explain, both cases are legally inapposite:

Neither case, both decided before Brown, concerned the per

se automobile exception.

In Matsen/Wilson, the police gathered informa-

tion regarding a drug house for two weeks but, wanting

to catch the defendant in the act of delivery, did not seek

a warrant and instead made a warrantless entry shortly

after the defendant arrived. 287 Or at 587. The Supreme

Court held that the state could not claim exigent circum-

stances, because the “police cannot weave together a web

of information, then claim exigent circumstances, when the

suspect arrives and can conveniently be snared. The war-

rant process is more than an inconvenient formality.” Id. In

Fondren, the court held that there were no exigent circum-

stances when the police officer had the necessary informa-

tion to obtain a warrant four hours before the defendant was

due to finish his work shift and go to his car, but the officer

392 State v. Colman-Pinning

waited two hours before attempting to obtain a warrant

and then decided that there was insufficient time to obtain

one. 285 Or at 366-67. The court explained that the “officer

cannot create exigent circumstances by his own inaction.”

Id. at 367. Matsen/Wilson, a search of premises, and Fondren,

a search of a vehicle before the automobile exception was

announced (and even so, the car was not mobile when the

officer encountered it), both concerned the ordinary analysis

for determining exigent circumstances, viz., “a situation

that requires police to act swiftly to prevent danger to life or

serious damage to property, or to forestall a suspect’s escape

or the destruction of evidence.” State v. Stevens, 311 Or 119,

120, 800 P2d 92 (1991) (emphasis added). That is not the

case here, because the per se nature of the automobile excep-

tion does not require an analysis of whether an exigency

exists, so long as the two requirements of the exception are

met.

Further, those cases are factually inapposite. That

is, we reject defendant’s argument that police had probable

cause to search defendant’s house, person, or car at the time

of their meeting with the CP and that police therefore could

have obtained a warrant at that time. To begin with, defen-

dant asserts that probable cause existed to search defen-

dant’s person, vehicle, or residence at 8:30 a.m. the day of

defendant’s arrest. At that meeting, the information that

LINT had was that defendant regularly delivered heroin to

the CP in defendant’s pickup and that that information was

reliable. There is nothing in the record to suggest that there

was probable cause to believe that there would be heroin

or other controlled substances on defendant’s person or in

his home. See State v. Miller, 254 Or App 514, 528, 295 P3d

158 (2013) (holding that, because the three controlled buys

occurred at an undisclosed location other than defendant’s

residence, there was not the “necessary factual nexus” to

establish that it was more likely than not that drug-related

evidence would be found in the residence). Nor was there

any evidence in the record that indicated that defendant

stored heroin in his pickup, or that, based on an officer’s

training and experience, drugs are often kept in vehicles by

persons trafficking in controlled substances. Cf. id. at 529

(holding that affidavit was sufficient to establish probable

Cite as 302 Or App 383 (2020) 393

cause to search a vehicle because the “defendant drove his

black Hyundai sedan to each of the controlled drug buys”

and that, based on the officer’s “training and experience,

[i]tems of value including drugs * * * are often kept in auto-

mobiles by persons trafficking in control[led] substances”).

Rather, we agree with the state that the moment

that probable cause “crystallized” is when defendant texted

the CP to say that he was on his way to the arranged drug

buy, which was less than an hour from the search of defen-

dant’s pickup. At that point, it was more likely than not,

based on the text communications, the reliability of the CP,

and that defendant regularly delivered heroin to the CP in

his pickup, that police would discover evidence of controlled

substances in defendant’s pickup when they stopped it.

Additionally, given that, “as currently constructed, Oregon’s

automobile exception does not require the state to establish

the unavailability of a telephonic warrant,” McCarthy, 302

Or App at 92, the state was not obligated to show that the

police could not have obtained a warrant before the search

of defendant’s pickup within that window of time. There was

no intentional delay by the police.

We turn to defendant’s argument that the police

“manufactured” the situation allowing them to take advan-

tage of the exigency, viz., that they controlled the circum-

stances when they would stop defendant’s pickup, and,

therefore, those circumstances obviated the exigency under-

lying the automobile exception. It is true that the LINT

operation went as planned, but it does not follow that the

success of the operation meant that the police were required

to obtain a warrant before their anticipated engagement

with defendant. Implicit in defendant’s argument is that

the police could have obtained an anticipatory warrant—a

warrant that would have been based on probable cause to

believe that defendant would have evidence of a drug crime

at a future time and place. See United States v. Grubbs, 547

US 90, 96, 126 S Ct 1494, 164 L Ed 2d 195 (2006) (holding

that, under the Fourth Amendment, an anticipatory war-

rant is permitted if the magistrate determines “(1) that it

is now probable that (2) contraband, evidence of a crime, or a

fugitive will be on the described premises (3) when the war-

rant is executed”) (emphases in original); id. at 94 (quoting

394 State v. Colman-Pinning

Wayne R. LaFave, 2 Search and Seizure § 3.7(c) at 398 (4th

ed 2004) (“An anticipatory warrant is ‘a warrant based upon

an affidavit showing probable cause that at some future

time (but not presently) certain evidence of crime will be

located at a specified place.’ ”). However, assuming without

deciding that an anticipatory warrant is permitted under

Article I, section 9, just as the automobile exception does not

require the state to show the unavailability of a telephonic

warrant, the exception as it is currently understood does not

require the state to show that it could not have obtained an

anticipatory warrant.

To be sure, we recognize the dissonance between a

planned operation designed to ensnare a suspect at a par-

ticular time and place in order to take advantage of the

automobile exception, like the one here, and the fact that

the automobile exception to the warrant requirement is an

exigent circumstances exception. That is, we typically view

an exigency as an unforeseen circumstance that requires

urgent action, and, the orchestrated method used by law

enforcement in this case—an apparently regular practice in

Lincoln County—does not have those qualities, which are

ordinarily present in the type of traffic stop to which the

automobile exception is intended to apply. Nevertheless, as

we explained in McCarthy, the Supreme Court has made

clear the per se nature of the automobile exception, and we

consequently cannot say that the police officers in this case

were unjustified in planning the operation and relying on

the automobile exception in the manner that they did, with-

out having an obligation to seek a warrant.

Affirmed.