State v. McCarthy

129

Argued and submitted January 5; decision of Court of Appeals reversed, order

of circuit court affirmed December 30, 2021

STATE OF OREGON,

Respondent on Review,

v.

CHARLES STEVEN McCARTHY,

Petitioner on Review.

(CC 16CR75546) (CA A165026) (SC S067608)

501 P3d 478

Law enforcement officers initiated a traffic stop of a vehicle that defendant

was driving. During the stop, officers developed probable cause to believe that

the vehicle contained contraband. After arresting defendant, officers conducted

a warrantless search of the vehicle, relying on the “automobile exception” to the

warrant requirement that this court created in State v. Brown, 301 Or 268, 721

P2d 1357 (1986). Defendant moved to suppress evidence discovered during the

search, and the trial court granted the motion on the ground that the state had

failed to prove that exigent circumstances existed at the time of the search. The

Court of Appeals reversed, holding that, under Brown, exigent circumstances

are presumed to exist if a vehicle was mobile when it was stopped by the police,

regardless of whether there is an actual exigency after that point. Held: In order

to justify a warrantless seizure or search of a vehicle based on exigent circum-

stances, the state must prove that exigent circumstances actually existed at the

time of the seizure or the search; the contrary holding of Brown is overruled.

The decision of the Court of Appeals is reversed. The order of the circuit court

is affirmed.

On review from the Court of Appeals.*

Zachary J. Stern, Ferder, Casebeer, French and Stern,

LLP, Salem, argued the cause and filed the briefs for peti-

tioner on review.

Christopher A. Perdue, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent on

review. Also on the brief were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Rosalind M. Lee, Eugene, filed the brief for amici curiae

Oregon Criminal Defense Lawyers Association and Oregon

Justice Resource Center.

______________

* On appeal from Marion County Circuit Court, Lindsay Partridge, Judge.

302 Or App 82, 459 P3d 890 (2020).

130 State v. McCarthy

Before Walters, Chief Justice, Nakamoto, Flynn, Duncan,

Nelson, and Garrett, Justices, and Landau, Senior Judge,

Justice pro tempore.**

DUNCAN, J.

The decision of the Court of Appeals is reversed. The

order of the circuit court is affirmed.

______________

** Balmer, J., did not participate in the consideration or decision of this case.

Cite as 369 Or 129 (2021) 131

DUNCAN, J.

In this criminal case, defendant moved to suppress

evidence that law enforcement officers obtained during a

warrantless search of a truck. Defendant had been driv-

ing the truck when officers stopped it for a traffic viola-

tion. During the stop, the officers developed probable cause

to believe that the truck contained contraband. Although

the stop occurred on a weekday afternoon near the county

courthouse and the officers had mobile phones and a com-

puter, the officers did not attempt to contact a magistrate—

either in person or by phone or computer—to obtain a war-

rant to search the truck. Instead, they searched it without

a warrant. At the time of the search, the truck was lawfully

parked in a parking lot and defendant had been arrested.

In his motion to suppress, defendant argued that

the warrantless search of the truck violated Article I, sec-

tion 9, of the Oregon Constitution, which prohibits unrea-

sonable searches and seizures.1 Under Article I, section 9,

searches and seizures must be conducted pursuant to a

warrant or one of the few specifically established and lim-

ited exceptions to the warrant requirement. State v. Bliss,

363 Or 426, 430, 423 P3d 53 (2018). Searches and seizures

are distinct events requiring separate justifications. State v.

Tanner, 304 Or 312, 316, 745 P2d 757 (1987).

In response to defendant’s motion to suppress, the

state argued that the warrantless search of the truck was

justified under the “automobile exception” to the warrant

requirement. This court created the automobile exception

in State v. Brown, 301 Or 268, 278, 721 P2d 1357 (1986),

in which it held that an officer may conduct a warrant-

less search of a car if “(1) the car was mobile at the time it

was stopped by the police; and (2) the police had probable

cause to believe that the car contained contraband or crime

evidence.”

The trial court rejected the state’s argument, rea-

soning that the automobile exception is premised on the

1

Article I, section 9, provides, in part, “No law shall violate the right of the

people to be secure in their persons, houses, papers, and effects, against unrea-

sonable search, or seizure[.]”

132 State v. McCarthy

existence of exigent circumstances, and the state had failed

to prove that exigent circumstances existed at the time the

officers searched the truck.

The state appealed, and the Court of Appeals

reversed on the ground that, under Brown, exigent circum-

stances are presumed to exist if a vehicle was mobile when it

was stopped by the police, regardless of whether there is an

actual exigency after that point. State v. McCarthy, 302 Or

App 82, 92, 459 P3d 890 (2020). Applying Brown’s “ ‘per se exi-

gency rule,’ ” the Court of Appeals held that all that the state

was required to show was that the truck was mobile at the

time it was stopped by the officers and that the officers had

probable cause to search it. Id. at 90-91 (quoting Brown, 301

Or at 277). Therefore, the court concluded that, under Brown,

the state was not required to demonstrate that there had been

an actual exigency at the time of the search. Id. at 92.

On defendant’s petition, we allowed review. For the

reasons we explain below, we overrule Brown’s per se exi-

gency rule and hold that, in order to justify a warrantless sei-

zure or search of a vehicle based on exigent circumstances,

the state must prove that exigent circumstances actually

existed at the time of the seizure or search. Because the

state did not do so here, we conclude that the trial court cor-

rectly granted defendant’s motion to suppress.

I. BACKGROUND

On the afternoon of Monday, November 28, 2016,

Salem Police Detectives Garland and Bidiman were surveil-

ling a residence from an undercover police car. They saw a

truck occupied by defendant and two passengers parked in

front of the residence.

When defendant began driving away from the res-

idence, Garland and Bidiman decided to follow him. As the

truck drove by the officers, Bidiman recognized defendant as

the driver. Garland was familiar with defendant from prior

drug investigations in May and June of 2016. During the

June 2016 investigation, defendant reportedly had agreed

to sell heroin to an informant working with another officer,

Detective Carney, but the sale never occurred. As Garland

drove behind defendant, he saw the truck drift into a bike

Cite as 369 Or 129 (2021) 133

lane. Garland initiated a traffic stop at 1:31 p.m. as defen-

dant turned into a parking lot. Defendant legally parked the

truck in a parking stall, and Garland positioned the police

car behind it. The stop occurred approximately one mile east

of the Marion County Circuit Court building in downtown

Salem.

The officers approached the truck and Garland

asked defendant for his driver’s license, registration, and

proof of insurance. Defendant stated that his license was

suspended and that he was not the registered owner of the

truck. Defendant provided a copy of the truck’s registration

but said that he did not know where the truck’s insurance

card was. Garland asked defendant to look around the cab

of the truck for proof of insurance while he returned to the

police car to check the status of defendant’s license.

After using the police car’s onboard computer to

confirm that defendant’s license was suspended, Garland

returned to the truck and asked defendant if he had found

proof of insurance. Defendant said that he had not, and

Garland then allowed defendant to make a phone call to the

truck’s registered owner to determine whether the truck

was insured. Meanwhile, Garland began processing cita-

tions for failure to maintain a lane and driving while sus-

pended. After calling the truck’s registered owner, defen-

dant told Garland that the truck was insured through State

Farm, at which point Garland asked Bidiman to call State

Farm to verify the truck’s insurance. While Bidiman was on

the phone with State Farm, a third officer, Detective Smith,

arrived on the scene. At that point, Garland tried to contact

Detective Carney to ask whether there was a lawful basis

to arrest defendant in connection with the June 2016 drug

investigation.

During their interactions with defendant, the offi-

cers noticed that defendant and his passengers seemed ner-

vous. The officers also observed dark brown stains on the

hands of defendant and one passenger, which the officers

believed were consistent with handling heroin.

Garland’s attempts to contact Carney were unsuc-

cessful, but Smith was able to reach Carney on Carney’s

personal cellphone. Carney told Smith that there was

134 State v. McCarthy

probable cause to arrest defendant for conspiracy to deliver

heroin based on the June 2016 investigation. Smith then

approached the truck and asked defendant about the pres-

ence of controlled substances, which defendant denied.

Smith also requested consent to search the truck, but defen-

dant refused.

Instead of arresting defendant immediately, at

1:39 p.m. Garland and Smith contacted Oregon State Police

Trooper Freitag, a K-9 handler, and asked him to come to

the scene with a drug detection dog. At the time the offi-

cers called Freitag, defendant had still not been issued

any citations. Freitag arrived at 1:57 p.m., and the officers

asked defendant and his passengers to vacate the truck.

Defendant was arrested for conspiracy to deliver heroin

based on the June 2016 drug investigation. Freitag then

deployed his drug detection dog, who alerted to the presence

of a controlled substance near the front passenger door of

the truck, at which point defendant’s passengers were both

arrested. Eventually, the truck’s registered owner arrived

at the scene, but he was detained on an outstanding war-

rant and, therefore, was unable to drive the truck away.

Because the truck was legally parked and was not

a traffic hazard, Salem Police Department policy did not

authorize the officers to impound it. During his testimony

before the trial court, Smith estimated that obtaining a

warrant to search the truck would have taken “four hours,

if not longer.” Garland testified that, instead of applying for

a warrant, the officers relied on the automobile exception

to the warrant requirement to search the truck. Garland

also explained that he could have sought a warrant but had

chosen not to do so because he believed the unoccupied truck

was still “mobile.”

The search of the truck uncovered heroin, a scale,

and drug paraphernalia. Based on that evidence, defendant

was charged with possession and delivery of heroin.

Defendant moved to suppress various items seized

after his arrest, including the items discovered during the

search of the truck. After an evidentiary hearing, the trial

court issued a letter opinion in April 2017, making the fol-

lowing findings regarding when the truck was mobile and

Cite as 369 Or 129 (2021) 135

when the officers developed probable cause to believe it con-

tained contraband:

“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 and the vehicle was

at least temporarily immobile[,] [o]fficers contacted the reg-

istered owner and determined that he had a warrant for

his arrest and therefore he was unable to move the vehicle.

“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 [June] 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.”

The trial court went on to explain that a warrant-

less search under the automobile exception is valid under

Brown if (1) the automobile is mobile at the time it is stopped

by police and (2) probable cause exists for the search. (Citing

Brown, 301 Or at 274.) The trial court further explained

that “the mobility of the vehicle and the existence of proba-

ble cause to believe defendant has committed a crime must

exist at the same time for the exception to apply.” (Citing

State v. Kurokawa-Lasciak, 351 Or 179, 263 P3d 336 (2011)

(Kurokawa-Lasciak II); State v. Pirtle, 255 Or App 195, 296

P3d 625 (2013); and State v. Groom, 249 Or App 118, 274 P3d

876 (2012).)

Applying those rules, the trial court held that the

automobile exception did not apply because the truck was

not mobile and was unoccupied at the time the officers devel-

oped probable cause that it contained contraband. The trial

court also held that the automobile exception did not apply

136 State v. McCarthy

because there were no exigent circumstances at the time of

the search:

“The state cannot justify the search of the vehicle

through the automobile exception. The state bears the

burden to establish an exception to the warrant require-

ment. Under the circumstances in this case, it is clear

that the police lacked any reason to believe an imminent

threat existed that someone would move the vehicle prior

to obtaining a warrant.

“Officer Garland testified that he was concerned about

how long it would take to get a warrant. However, he was

completely unaware of the option of seeking a telephonic

warrant. In fact, he responded he was not trained in the

area of obtaining a telephonic warrant and stated, ‘I don’t

believe we can do that.’ Furthermore, he did not explain ade-

quately why the police could not observe the vehicle during

the period of time needed to obtain a warrant and only seize

the vehicle if there was an attempt to move the vehicle.

“* * * [T]he automobile exception is based upon the con-

cern 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 judi-

cial 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 is not

justified through the automobile exception.”

The state filed a motion for reconsideration. At the

state’s request, the trial court held a second evidentiary

hearing with additional argument. During the hearing,

Smith testified that applying for a warrant that is sup-

ported by a written affidavit could “[e]asily [take] four or

more hours.” Smith also testified about the use of telephonic

warrants in Marion County, stating: “My understanding,

Marion County Circuit Court system does not do telephonic

warrants. And nor have I ever had any training on how to

Cite as 369 Or 129 (2021) 137

do one, how to apply for one, and what the policies and pro-

cedures would be if that ability was there.” Deputy District

Attorney Suver also testified about the use of telephonic

warrants in Marion County. She explained that the Marion

County District Attorney’s Office trained officers with the

instruction that “we don’t do telephonic search warrants

in Marion County.” She further testified that every search

warrant affidavit is reviewed by the Marion County District

Attorney’s Office prior to being submitted for judicial

approval, and that the use of telephonic warrants would “cut

out that review process.”

At the end of the hearing, the trial judge addressed

the issue of telephonic warrants, explaining that he could

not understand why the officers and district attorney’s office

did not utilize them in general or why they could not have

attempted to get one in this case:

“So, I’m a little frustrated that we keep coming back to this

issue that, well, the bench likes it done this certain way, so

we are not going to do telephonic warrants. Well, it’s the

law. And it seems striking to me that 1:30 on a Monday

afternoon, with 14 judges in Marion County and four judi-

cial officers in addition to that, that there couldn’t be some-

body that gets a call from an officer, swears the officer in,

and says, ‘Tell me what you’ve got.’ * * * Not much different

than the testimony that I took from four officers in less

than an hour when we did the original [hearing]. And the

judge makes a decision.”

In May 2017, the trial court issued a second letter

opinion in which it (1) found that the state had failed to prove

that there was a risk that the truck would have been moved

in the time it would have taken the officers to obtain a war-

rant, (2) rejected the claim that the county’s circuit court

had a policy against telephonic warrants, and (3) concluded

that the warrantless search of the truck violated Article I,

section 9:

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

that warrantless searches are per se unreasonable under

[Article] I, section 9, and the Fourth Amendment. The ratio-

nale 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

138 State v. McCarthy

mobile. 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 supplemental

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

consuming process to obtain a written search warrant. * * *

“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 process

under Oregon law, make a call on a cellphone to the court-

house, 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 it 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 conducting

a warrantless search is reasonable. Under the facts in this

case no showing has been made. The holding in Brown 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.”

(Emphasis in original.) Accordingly, the trial court granted

defendant’s motion to suppress the evidence discovered as a

result of the warrantless search of the truck.2

2

Defendant’s motion also sought the suppression of evidence obtained during

a search of defendant’s person. The trial court denied that part of the motion, and

that ruling is not at issue on appeal.

Cite as 369 Or 129 (2021) 139

The state appealed, asserting that the trial court

erred by granting defendant’s motion to suppress. It argued

that “the trial court added a third requirement [for the auto-

mobile exception to apply] not found in case law: that the

state show that it could not have obtained a warrant before

someone tried to move the truck.” In response, defendant

argued that, as a result of this court’s decision in State v.

Andersen, 361 Or 187, 390 P3d 992 (2017) (Andersen II), the

automobile exception is no longer a per se exception and the

state had failed to meet its burden of proving that an actual

exigency existed at the time of the search. Defendant based

that argument on the following statement in Andersen II:

“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.”

Id. at 200-01.

The Court of Appeals determined that, in making

that statement, this court “cast some doubt” on whether

the automobile exception continued to be a per se excep-

tion because the statement “appear[ed] to cast the theoret-

ical exigency that underlies the automobile exception as a

rebuttable presumption.” McCarthy, 302 Or App at 89. But

the court further determined that this court, in its subse-

quent decision in Bliss, “appear[ed] 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 “com-

plex set of rules dependent on particular 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)). Therefore, the Court of Appeals concluded that,

“whatever Andersen [II] 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.

140 State v. McCarthy

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

burden upon the state to avail itself of the exception.”

Id. (quoting Andersen II, 361 Or at 201). With that under-

standing of the state of the law, the Court of Appeals held

that the automobile exception, as articulated in Brown,

applied to the search of the truck that defendant had been

driving because the truck was “ ‘mobile at the time it [was]

stopped by police’ ” and “ ‘probable cause exist[ed] for the

search.’ ” Id. at 91 (quoting Brown, 301 Or at 274 (brackets in

McCarthy)). Accordingly, the court reversed and remanded

the case to the trial court. Id. at 92.

Defendant petitioned for review, which we allowed

to address the status of the automobile exception. On review,

defendant urges us to overrule Brown’s per se rule and to

hold that, in order for a warrantless seizure or search of a

vehicle to be justified by exigent circumstances, there must

be an actual exigency at the time of the seizure or search.

The state, on the other hand, urges us to retain Brown’s

per se rule, which allows for warrantless seizures and

searches of vehicles even when there is no actual exigency.

For the reasons we explain below, we overrule Brown’s

per se rule and hold that, when the state seeks to justify

a warrantless seizure or search of a vehicle based on exi-

gent circumstances, the state must prove that exigent cir-

cumstances actually existed at the time of the seizure or

search.

II. DISCUSSION

To address the parties’ arguments, we begin, in

section A below, with a discussion of Article I, section 9.

Then, in section B, we discuss the doctrine of stare decisis

and identify considerations relevant to whether we should

adhere to Brown’s per se exigency exception. In sections C,

D, and E, we explain why those considerations support revis-

iting Brown’s per se exception and overruling it. Based on

that explanation, in section F, we hold that, to justify a war-

rantless seizure or search of a vehicle, the state must show

that exigent circumstances actually existed at the time of

the seizure or search. Finally, in section G, we conclude that

the trial court in this case correctly ruled that the state had

failed to make that showing, and we affirm its suppression of

Cite as 369 Or 129 (2021) 141

the evidence obtained during the warrantless search of the

truck.

A. Article I, Section 9

The starting point of our analysis is Article I, sec-

tion 9, which guarantees individuals the right “to be secure

in their persons, houses, papers, and effects, against unrea-

sonable search, or seizure.” Article I, section 9, protects

both possessory and privacy interests. State v. Barnthouse,

360 Or 403, 413, 380 P3d 952 (2016). For the purposes of

Article I, section 9, a seizure of property occurs when there

is a significant interference with a person’s possessory inter-

ests, and a search of property occurs when a person’s pri-

vacy interests are invaded. Id.

Generally, to comply with Article I, section 9, a sei-

zure or search must be supported by both probable cause and

a warrant. Bliss, 363 Or at 430. In this case, defendant does

not dispute that the officers had probable cause to search

the truck; the issue is whether they needed a warrant.

“The constitution requires a warrant so that a dis-

interested branch of government—the judicial branch—and

not the branch that conducts the search—the executive

branch—makes the decision as to whether there is probable

cause to search.” Kurokawa-Lasciak II, 351 Or at 186. As

this court has explained,

“[t]he time to make the judicial determination whether

there is probable cause for a search or a seizure, if time per-

mits, is before the individual’s privacy is invaded. A later

adjudication upon a motion to suppress evidence, although

necessary, does not undo the invasion, does not help per-

sons who are cleared and never prosecuted, and colors the

perception of ‘probable cause’ by what the search in fact

revealed.”

State v. Lowry, 295 Or 337, 346-47, 667 P2d 996 (1983), over-

ruled on other grounds by State v. Owens, 302 Or 196, 729

P2d 524 (1986).

Under Article I, section 9, warrantless seizures and

searches “are per se unreasonable unless they fall within

one of the few specifically established and limited excep-

tions to the warrant requirement.” Bliss, 363 Or at 430. The

142 State v. McCarthy

scope of a warrant exception “is limited by the purposes for

that exception.” State v. Fulmer, 366 Or 224, 236, 460 P3d

486 (2020).

One exception to the warrant requirement is the

“exigent circumstances” exception. Under that exception,

police may conduct a warrantless seizure or search if they

have probable cause and exigent circumstances exist. State

v. Ritz, 361 Or 781, 791, 399 P3d 421 (2017). Exigent cir-

cumstances are circumstances “where prompt responsive

action by police officers is demanded.” State v. Davis, 295

Or 227, 237, 666 P2d 802 (1983). In the search and seizure

context, exigent circumstances are emergency situations

“that require[ ] the police to act swiftly to prevent dan-

ger 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, 126, 806 P2d 92 (1991); accord State

v. Miskell/Sinibaldi, 351 Or 680, 696, 277 P3d 522 (2012)

(stating that exigent circumstances are circumstances

that, “without swift action, likely would have immedi-

ate consequences to persons, property, or law enforcement

operations”).

Exigent circumstances justifying a warrantless

search “include situations where the delay caused by obtain-

ing a warrant would likely lead to the loss of evidence.” Ritz,

361 Or at 790. The exigency must be an actual exigency, not

merely a theoretical one. See, e.g., State v. Peller, 287 Or 255,

264, 598 P2d 684 (1979) (holding that “the mere possibility

that defendant could make a break if he were so inclined”

did not give rise to exigent circumstances when “there [was]

no indication that he [was], in fact, so inclined”); State v.

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

fact that drugs are usually of a destructible nature, and the

fact that suspects are likely to run out the back door when

police enter the front door does not ipso facto create exigent

circumstances.”).

Generally, whether exigent circumstances exist is

determined on a case-by-case basis. Andersen II, 361 Or at

202 (Walters, J., concurring) (collecting cases). That means

law enforcement officers in the field must make their own

assessments regarding whether circumstances justify

Cite as 369 Or 129 (2021) 143

proceeding without a warrant. If later challenged through

a motion to suppress, those assessments are reviewed by a

court, and the state bears the burden of proving that the

circumstances were actually exigent.

This court announced the “Oregon automobile

exception” in Brown in 1986. 301 Or at 273-74. The auto-

mobile exception is a “subset of the exigent circumstances

exception.” State v. Meharry, 342 Or 173, 177, 149 P3d 1155

(2006) (Meharry II). It is based on the idea that the mobil-

ity of vehicles creates exigent circumstances. Brown, 301

Or at 275-76. As mentioned, defendant asks us to overrule

Brown’s per se exigency exception, whereas the state asks us

to adhere to it. The parties’ competing arguments implicate

the doctrine of stare decisis.

B. The Doctrine of Stare Decisis

Under the doctrine of stare decisis, this court

assumes that its fully considered prior cases are correctly

decided. State v. Ciancanelli, 339 Or 282, 290, 121 P3d 613

(2005). The idea underlying the doctrine is that adherence

to precedent leads to stability in the law, which helps ensure

predictability, efficiency, and fairness. Farmers Ins. Co. v.

Mowry, 350 Or 686, 693, 261 P3d 1 (2011). Stability is import-

ant to “the consistent administration of justice and the legit-

imacy of this court’s decisions.” Horton v. OHSU, 359 Or 168,

256, 376 P3d 998 (2016) (Landau, J., concurring).3

This court has “emphasized the ‘undeniable impor-

tance of stability in legal rules and decisions.’ ” Farmers Ins.

Co., 350 Or at 693 (quoting Stranahan v. Fred Meyer, Inc.,

331 Or 38, 53, 11 P3d 228 (2000)). At the same time, how-

ever, it has recognized “ ‘the need * * * to correct past errors.’ ”

Id. (quoting Stranahan, 331 Or at 53). That is because

“[c]orrectness is also important to the administration of

3

See also Farmers Ins. Co., 350 Or at 698 (“Stability and predictability are

important values in the law; individuals and institutions act in reliance on this

court’s decisions, and to frustrate reasonable expectations based on prior deci-

sions creates the potential for uncertainty and unfairness. Moreover, lower courts

depend on consistency in this court’s decisions in deciding the myriad cases that

come before them.”); Couey v. Atkins, 357 Or 460, 485, 355 P3d 866 (2015) (“Stare

decisis does not permit this court to revisit a prior decision merely because the

court’s current members may hold a different view than its predecessors about a

particular issue.”).

144 State v. McCarthy

justice and this court’s legitimacy.” Horton, 359 Or at 256

(Landau, J., concurring). If an earlier decision is not well

reasoned or conflicts with other decisions, it can be diffi-

cult to apply and can result in confusion and uncertainty.

Id. at 282 (stating that adherence to erroneous and con-

flicting decisions “produces its own threats to stability and

predictability—the very virtues that stare decisis is sup-

posed to promote”). Consequently, this court is willing to

reconsider an earlier decision when it appears that the deci-

sion was incorrect, especially if, in making the decision, the

court did not apply its usual interpretative methodology or

was not presented with an important argument. Farmers

Ins. Co., 350 Or at 698. This court is also willing to recon-

sider an earlier decision when it conflicts with other deci-

sions. Couey, 357 Or at 486. And this court is willing to

reconsider an earlier decision when there have been subse-

quent legal or factual changes that seriously undermine the

reasoning or result of the decision. Farmers Ins. Co., 350 Or

at 698. Thus, stare decisis is “not absolute.” Couey v. Atkins,

357 Or 460, 485, 355 P3d 866 (2015). It is a “prudential doc-

trine that is defined by the competing needs for stability

and flexibility in Oregon law.” Farmers Ins. Co., 350 Or at

697-98.

This case involves a question of state constitutional

law, and, in cases involving such questions, “the value of

stability that is served by adhering to precedent may be

outweighed by the need to correct past errors” because this

court “ ‘is the body with the ultimate responsibility for con-

struing our constitution, and, if we err, no other reviewing

body can remedy that error.’ ” Couey, 357 Or at 485 (quoting

Stranahan, 331 Or at 53).

“The answer to the question whether a case should

be overruled cannot be reduced to the mechanical applica-

tion of a formula but requires instead an exercise of judg-

ment that takes all appropriate factors into consideration.”

Horton, 359 Or at 187. There is no fixed list of factors; the

circumstances in which such determinations are made are

“simply too varied.” Farmers Ins. Co., 350 Or at 693 n 3;

accord Couey, 357 Or at 485 (“Precisely what constitutes

an ‘error’ sufficient to warrant reconsideration of a consti-

tutional precedent cannot be reduced to a neat formula.”).

Cite as 369 Or 129 (2021) 145

But the considerations include (1) whether the case was

inadequately considered or wrong when it was decided;4

(2) whether the case conflicts with other decisions;5 and

(3) whether the factual or legal underpinnings of the case

have changed, including whether the case was based on a

significant assumption that has proven to be erroneous.6

As we explain in the following sections, each of

those three factors supports reconsideration of this court’s

decision in Brown. In section C, we review Brown. We first

explain why the court’s choice to create a per se exigency

exception was not well founded. Although the case pre-

sented a state constitutional issue, this court imported fed-

eral constitutional law with little explanation of why doing

so was appropriate despite the differences between state

and federal constitutional protections against unreason-

able searches and seizures. In addition, the court’s analysis

of the state constitutional rights at issue was unclear at

best. We also explain that the court believed that the per se

exception would be temporary. The premise underlying the

per se exception is that the mobility of vehicles creates a

risk that they will become inaccessible in the time it takes

to get a warrant, and the court expected that advances in

4

E.g., State v. Skillicorn, 367 Or 464, 492-93, 479 P3d 254 (2021) (overrul-

ing prior decision that was internally inconsistent and had created confusion

in the law); State v. Christian, 354 Or 22, 36-40, 307 P3d 429 (2013) (overruling

prior decisions that imported federal constitutional analysis without adequately

explaining why it was appropriate to do so to resolve a state constitutional issue);

Yancy v. Shatzer, 337 Or 345, 363, 97 P3d 1161 (2004), abrogated on other grounds

by Couey, 357 Or 460 (overruling prior case that had recognized an exception

to the mootness doctrine “without undertaking any effort to determine whether

such an exception was compatible with the scope of the judicial power granted

under the Oregon Constitution”).

5

E.g., State v. Payne, 366 Or 588, 606-07, 468 P3d 445 (2020) (reversing

case based on conflict with subsequently decided cases); Multnomah County v.

Mehrwein, 366 Or 295, 314, 322, 462 P3d 706 (2020) (recognizing that it is appro-

priate to reconsider those decisions that cannot fairly be reconciled with other

decisions, and overruling prior decision that conflicted with prior and subsequent

case law); Couey, 357 Or at 486 (overruling prior decision that could not “be fairly

reconciled with other decisions of this court on the same constitutional provi-

sion”); State v. Savastano, 354 Or 64, 94, 309 P3d 1083 (2013) (overruling prior

case that conflicted with “cases that both preceded and followed it”).

6

E.g., State v. Lawson, 352 Or 724, 746-63, 291 P3d 673 (2012) (revising test

for admissibility of eyewitness identifications because test was “incomplete and,

at times, inconsistent with modern scientific findings” and “somewhat at odds

with its own goals and current Oregon evidence law”).

146 State v. McCarthy

technology would reduce that time and, thereby, eliminate

the need for a per se exception. Consequently, in section C,

we conclude that, because Brown did not focus on state con-

stitutional law, was based on unclear reasoning, and cre-

ated a per se rule that the court intended to be temporary,

Brown itself provides reasons for reconsidering its per se

rule.

In section D, we review the automobile exception

cases this court has decided since Brown. In Brown, this

court created a per se exigency exception because it believed

that doing so would provide clarity in the law regarding

when officers can seize and search vehicles without war-

rants. Subsequent cases show, however, that Brown’s per se

rule has not created the clarity that the court hoped it

would. That is in part because the rule is ambiguously

phrased. It is also because the rule is disconnected from

its rationale: The rule is based on the asserted risk that

contraband or evidence will be lost, but it applies even when

there is no such risk. Because there is little logic to the rule,

it is difficult to apply and has not led to clarity or stabil-

ity in the law. In addition, Brown’s per se exigency excep-

tion is inconsistent with subsequently decided cases in

two ways. First, it is inconsistent with this court’s recent

decision in Andersen II, which altered the per se nature

of the exception (although the extent of that alteration is

unclear because, after this court decided Andersen II, it

decided Bliss, which described Brown as having created

a per se rule and did not mention that Andersen II had

altered it). Second, it is inconsistent with recent cases in

which this court has made clear that the scope of an excep-

tion to the warrant requirement must be limited by the

purposes of the exception. Consequently, in section D, we

conclude that the cases this court has decided since Brown

weigh in favor of revisiting Brown’s per se rule because

they show that the rule has not created the clarity that

the court hoped it would, that the rule is inconsistent with

Andersen II and unclear after Bliss, and that the rule is at

odds with this court’s recent cases—decided since Brown

and Andersen II—holding that a warrant exception must

be applied consistently with the purposes animating the

exception.

Cite as 369 Or 129 (2021) 147

In section E, we discuss technological and legisla-

tive changes since Brown that weigh in favor of reconsidering

its per se exigency exception. As mentioned, in Brown this

court anticipated that advances in technology would make it

possible to reduce the time it takes to get a warrant and, as

a result, reduce the need to seize and search vehicles without

warrants. Brown was decided in 1986, and technology has

changed substantially since then. The law governing war-

rants has also changed: The legislature has regularly updated

the statute governing warrants to expedite the warrant pro-

cess for telephonic and electronic warrants. As a result, it

is now possible, as Brown anticipated, for officers to apply

for and receive warrants in a matter of minutes, not hours.

Consequently, in section E, we conclude that technological

and legislative changes relevant to warrant processing weigh

in favor of revisiting Brown’s per se exigency exception.

Ultimately, we conclude that there are numerous

reasons to reconsider Brown’s per se exigency exception.

Some have existed since Brown itself; others have accumu-

lated in the years since Brown; and still others have arisen

as a result of our most recent automobile exception cases

and other warrant exception cases. We further conclude

that, in light of those same reasons, that Brown should be

overruled: the per se exception was not well founded, it has

not created clarity, it is inconsistent with recent cases, it

was intended to be temporary, it is no longer justified given

changes in technology and the processes for obtaining elec-

tronic warrants, and it can diminish the incentives for offi-

cers to apply for warrants and for jurisdictions to improve

warrant processes.

Therefore, in section F, we hold that there is no lon-

ger a special exigency rule for vehicles. Instead, vehicles are

subject to the general “exigent circumstances” exception to

the warrant requirement that applies to other types of prop-

erty. In order to justify a warrantless seizure or search based

on exigent circumstances, the state must prove that there

was a situation requiring law enforcement “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.”

Stevens, 311 Or at 126.

148 State v. McCarthy

C. State v. Brown

In Brown, the defendant’s girlfriend told two offi-

cers that the defendant had assaulted her and stolen her

property. She also told them that the defendant always car-

ried a handgun in a “black purse” either on his person or in

the trunk of his car. The next day, the officers stopped the

defendant while he was driving his car. The officers told the

defendant that the reason for the stop was to arrest him

for assault and theft, and they also told him about his girl-

friend’s statement regarding the handgun. After the defen-

dant declined to consent to a search of his car, the officers

searched the car without a warrant. In the trunk, they

found a closed black leather bag that contained a handgun.

One officer later testified that the defendant had

been handcuffed during the entire search. The other offi-

cer could not remember when, or if, the defendant had been

handcuffed, but he testified that the officers had put the

defendant in their patrol car before they searched the trunk.

Based on the discovery of the handgun, the defen-

dant was charged with two weapons offenses. The trial court

ruled that the warrantless search of the defendant’s car

did not violate Article I, section 9, but the Court of Appeals

reversed, and this court allowed review.

On review, the court stated that the case presented

“the heretofore unanswered question: Is there “an ‘automo-

bile exception’ to the warrant requirement of Article I, sec-

tion 9, of the Oregon Constitution?” Brown, 301 Or at 274.

The court emphasized that the question was one of state law

and that it was “deciding th[e] case independent of federal

law.” Id. But the court did not ground its analysis in the text

of Article I, section 9, or any of its cases construing that

provision independently of federal law. Instead, it relied on

United States Supreme Court cases construing the Fourth

Amendment’s prohibition against unreasonable searches

and seizures. Id. at 275-77.

The court quoted Carroll v. United States, 267 US

132, 45 S Ct 280, 69 L Ed 543 (1925), for the proposition

that there is a difference between searches of stationary

structures and searches of vehicles because vehicles “ ‘can

Cite as 369 Or 129 (2021) 149

be quickly moved out of the locality or jurisdiction in which

the warrant must be sought.’ ” Brown, 301 Or at 275 (quoting

Carroll, 267 US at 153). And the court relied on United States

v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982),

for the proposition that, if officers have probable cause to

search a vehicle for an object, they can search “ ‘every part

of the vehicle and its contents that may conceal the object.’ ”

Brown, 301 Or at 279 (quoting Ross, 456 US at 825). Thus,

the court understood Carroll and Ross as establishing that

the risk that a vehicle will be moved out of a jurisdiction can

create an exigency that justifies a search of the entire vehi-

cle and its contents.

From there, the court went on to reason that

“if police have probable cause to believe that a person’s

automobile, which is mobile when stopped by the police,

contains contraband or crime evidence, the privacy rights of

our citizens are subjected to no greater governmental intru-

sion if the police are authorized to conduct an immediate

on-the-scene search of the vehicle than to seize the vehicle

and hold it until a warrant is obtained. The police ticket to

admission into a stopped mobile vehicle is probable cause.”

Id. at 276 (emphasis added). Thus, it appears that the court

weighed the intrusiveness of an immediate warrantless

search against the intrusiveness of a later warranted search.

In other words, it appears that the court assumed that offi-

cers seeking to search vehicles will always have probable

cause and, therefore, warrant applications will always be

granted, so there is no harm in allowing officers to conduct

immediate warrantless searches.

The court repeated that reasoning later in the opin-

ion, stating:

“[F]or constitutional purposes no difference exists between,

on the one hand, seizing and holding a car before present-

ing the probable cause issue to a magistrate and, on the

other hand, carrying out an immediate search without a

warrant. Given probable cause to search, either course is

reasonable under the Oregon Constitution.”

Id. at 278 (emphasis added). That statement also indicates

that, when creating its automobile exception, the court

assumed away the very risk that the warrant requirement

150 State v. McCarthy

is intended to protect against: the risk that an officer will

not actually have probable cause to search.

Alternatively, it may be that the court reasoned

that, given the length of time that it generally took to obtain

a warrant, there was no constitutional difference between

immediately searching a vehicle, on the one hand, and

detaining the vehicle for the duration of the warrant pro-

cess, on the other hand. In other words, it may be that the

court reasoned that an immediate search is no more intru-

sive than a lengthy seizure.

Ultimately, the court’s reasoning regarding the

intrusiveness of the government actions it was comparing

is unclear. What is clear, however, is that the court chose

to create an exigent circumstances exception based on the

risk that a vehicle will be moved and, as a result, evidence

will be lost. What is also clear is that the court chose not

to limit the exception to circumstances where there is an

actual risk that a vehicle will be moved. Instead, in order to

provide clarity to law enforcement officers, the court chose

to create a categorical rule based on whether a vehicle was

“mobile when stopped by the police.” Id. at 276-78. The court

explained:

“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. Police

need clear guidelines by which they can gauge and regu-

late their conduct rather than trying to follow a complex

set of rules dependent upon particular facts regarding the

time, location and manner of highway stops.”

Id. at 277. Consequently, the court ruled that an officer

may conduct a warrantless search of a car if “(1) the car

was mobile at the time it was stopped by the police; and

(2) the police had probable cause to believe that the car con-

tained contraband or crime evidence.” Id. at 278. The court

further ruled that, during such a search, an officer may look

in any place “ ‘in which there is probable cause to believe’ ”

that the contraband or evidence “ ‘may be found.’ ” Id. at 279

(quoting Ross, 456 US at 824). Applying those rules, the

court held that the warrantless search of the defendant’s

Cite as 369 Or 129 (2021) 151

car and black leather bag did not violate Article I, section 9.

Id.

Notably, the court did not intend the automobile

exception to be permanent. The exception was based on

the length of time it generally took to get warrants, which

the court expected would be reduced in the “near future”

because of advances in technology:

“In this modern day of electronics and computers, we

foresee a time in the near future when the warrant require-

ment of the state and federal constitutions can be fulfilled

virtually without exception. All that would be needed in

this state would be a central facility with magistrates on

duty and available 24 hours a day. All police in the state

could call in by telephone or other electronic device to the

central facility where the facts, given under oath, consti-

tuting the purported probable cause for search and seizure

would be recorded. The magistrates would evaluate those

facts and, if deemed sufficient to justify a search and sei-

zure, the magistrate would immediately issue an electronic

warrant authorizing the officer on the scene to proceed.

The warrant could either be retained in the central facility

or electronically recorded in any city or county in the state.

Thus, the desired goal of having a neutral magistrate could

be achieved within minutes without the present invasion of

the rights of a citizen created by the delay under our current

cumbersome procedure and yet would fully protect the rights

of the citizen from warrantless searches.”

301 Or at 278 n 6 (emphasis added). Thus, the court envi-

sioned a process in which officers would call magistrates who

would determine whether the officers had probable cause to

search and, if the officers did, the magistrates would imme-

diately issue electronic warrants.

Brown was decided by a six-person court, the same

day as State v. Bennett, 301 Or 299, 721 P2d 1375 (1986),

which also involved the warrantless seizure and search of

a vehicle. In each case, four justices joined in the majority

opinion. In Bennett, Chief Justice Peterson confessed that he

was troubled by the majority’s per se rule because it deviated

from the “basic constitutional rule” that, “[i]f it is possible

to get a warrant,” officers should “get a warrant.” 301 Or at

307 (Peterson, C. J., concurring). But, he explained, search

152 State v. McCarthy

and seizure law at the time was unclear; the court had

recently decided several cases relying on Supreme Court

cases that the Supreme Court later overruled. Id. at 305.

Believing that the majority’s rule was clear and workable,

Chief Justice Peterson joined in the majority with the aim of

“putting the question to rest, to the end that everyone will

know and understand what is the rule.” Id. at 308.

Justice Linde dissented in Brown, joined by Justice

Lent. The dissent argued that the majority’s rule was based

on a false premise: “that the mobility of a motor vehicle does

not allow time to obtain a warrant to search it.” Brown, 301

Or at 291 (Linde, J., dissenting). According to the dissent,

“[a]s a statement about ‘exigency,’ the proposition that it

always, or generally, is impossible to obtain a warrant to

search a vehicle after it has been stopped in transit is sim-

ply contrary to fact, especially in cases where the occupants

have been placed in custody outside the vehicle.”

Id. at 292. The dissent argued that whether there is a risk

that evidence will be lost if police are required to obtain a

warrant is a question that should be resolved on a case-by-

case basis: “Exigencies are emergencies, circumstances that

require urgent action; of course they arise case by case.” Id.

In addition, the dissent pointed out that the majority’s justi-

fication for it its rule did not support the breadth of the rule.

According to the dissent, the majority’s desire to rest its rule

“on the exception for exigent circumstances and also to give

police officers general permission for warrantless searches

of automobiles irrespective of actual exigency leads only to

an unresolved contradiction.” Id.

The dissent also took issue with the majority’s con-

clusion that conducting an immediate warrantless search of

a vehicle is no more intrusive than holding a vehicle while a

warrant is requested. Id. at 294-95. The dissent explained:

“The faulty assumption is that the court must choose

between the ‘intrusiveness’ of an immediate search and

of a temporary seizure to await a warrant and make that

choice as a categorical matter of law. That is not so. The

obvious, and correct, alternative is that the choice belongs

to the person whose constitutional interests are at stake.

An officer reasonably believing that he has probable cause

Cite as 369 Or 129 (2021) 153

to search an automobile trunk in the presence of the owner

or driver can offer the person an informed choice between

consenting to an immediate search or having the automo-

bile held for the time necessary to obtain a warrant.

“This is even more obviously true of bags or other closed

containers. The person, not the officer, is the one to decide

whether to insist on the right to have the supposed proba-

ble cause tested by a magistrate and to accept the inconve-

nience of the necessary seizure. There simply is no basis for

this court or any court to make such a categorical choice for

all owners of automobile trunks or closed containers found

in automobiles as a class. If a person insists on the required

warrant, there well may be exigent circumstances for a sei-

zure when there are not for searching a container after it

has been seized.”

Id. (footnote omitted).

In addition, the dissent cautioned that the per se rule

would not bring clarity. Id. at 291-92. And, although the dis-

sent appreciated that the majority’s rule was a “temporary

accommodation” and “open to future reconsideration” in the

event of changes in the warrant process, the dissent thought

that the state would make those desired changes sooner if

the court enforced the warrant requirement instead of rec-

ognizing a new exception to it. Id. at 280, 293-94.

What our review of Brown shows is that, although

the case concerned Article I, section 9, the court relied on

cases construing the Fourth Amendment. That is significant

because this court has a duty to analyze state constitutional

provisions independently from similar federal ones. State v.

Caraher, 293 Or 741, 756, 653 P2d 942 (1982) (“It is our belief

that the citizens of Oregon are entitled to an analysis of the

protections afforded by the Oregon Constitution independent

of the United States Constitution.”). Moreover, Article I, sec-

tion 9, analysis differs from Fourth Amendment analysis.

Although federal law construing the Fourth Amendment

uses a “reasonable expectations of privacy” test to evalu-

ate warrantless searches and seizures, state law constru-

ing Article I, section 9, does not. This court has expressly

rejected the “reasonable expectations of privacy” approach

for assessing whether a government action violates Article I,

section 9. State v. Campbell, 306 Or 157, 164, 759 P2d 1040

154 State v. McCarthy

(1988). That is because “the privacy protected by Article I,

section 9, is not the privacy one reasonably expects but the

privacy to which one has a right.” Id. (citing Tanner, 304

Or at 321 n 7) (emphases in original). For the purposes of

Article I, section 9, privacy rights are determined by “an

objective test of whether the government’s conduct ‘would

significantly impair an individual’s interest in freedom from

scrutiny, i.e., his privacy.’ ” State v. Wacker, 317 Or 419, 425,

856 P2d 1029 (1993) (quoting State v. Dixson/Digby, 307 Or

195, 211, 766 P2d 1015 (1988)).

As mentioned, seizures and searches are separate

events, requiring separate justifications. Tanner, 304 Or at

316. Thus, in Brown, the court should have first analyzed

whether seizure of the defendant’s car was justified, and,

if it was, then the court should have analyzed whether the

search of the car was justified. If the court had undertaken

that two-step analysis, it would have had to determine

whether, after the seizure, any exigency justified the search.

But the court did not undertake that analysis. Instead, it

relied on federal cases, which, as we will explain, do not pro-

vide a sound foundation for Brown’s per se exigency excep-

tion to the state constitution’s warrant requirement. One

of those cases, Carroll, did not establish a per se exigency

exception, and the other, Ross, establishes a per se exigency

exception for seizures, but not searches.

In Brown, this court stated that, in announcing

its automobile exception, it was aligning itself “with the

traditional federal ‘automobile exception’ to the Fourth

Amendment warrant requirement as set forth in the semi-

nal case of Carroll v. United States * * * and its progeny.” 301

Or at 274. In Carroll, the Supreme Court did distinguish

between structures and vehicles, as the Brown court noted.

Specifically, the Court stated:

“[T]he guaranty of freedom from unreasonable searches

and seizures by the Fourth Amendment has been con-

strued, practically since the beginning of the Government,

as recognizing a necessary difference between a search

of a store, dwelling house or other structure in respect of

which a proper official warrant readily may be obtained,

and a search of a ship, motor boat, wagon or automobile,

for contraband goods, where it is not practicable to secure a

Cite as 369 Or 129 (2021) 155

warrant because the vehicle can be quickly moved out of the

locality or jurisdiction in which the warrant must be sought.”

267 US at 153 (emphasis added). But the Court did not hold

that the difference between structures and vehicles justifies

warrantless seizures of all vehicles, or even all vehicles that

are stopped in transit. To the contrary, the Court empha-

sized that, when officers can get a warrant, they must get a

warrant:

“In cases where the securing of a warrant is reasonably prac-

ticable, it must be used, and when properly supported by

affidavit and issued after judicial approval protects the

seizing officer against a suit for damages. In cases where

seizure is impossible except without warrant, the seizing

officer acts unlawfully and at his peril unless he can show

the court probable cause.”

Id. at 156 (emphasis added). Thus, Carroll recognized a true

exigency exception for the seizure of vehicles, that is, an

exception that applies only when a seizure would be “impos-

sible except without a warrant.” Id.

In later cases, including Chambers v. Maroney,

399 US 42, 48-52, 90 S Ct 1975, 26 L Ed 2d 419 (1970), the

Supreme Court relied on Carroll to create a per se exigency

exception to the Fourth Amendment’s warrant requirement.

But, as described in Chambers, the exception does not apply

to all vehicles; it applies only to those that are “readily mov-

able.” Chambers, 390 US at 51. That is, it applies in circum-

stances where, “if an effective search is to be made at any

time, either the search must be made immediately without

a warrant or the car itself must be seized and held without

a warrant for whatever period is necessary to obtain a war-

rant for the search.” Id.

After Chambers, the Court, in Ross, addressed the

permissible scope of a search conducted pursuant to the

federal automobile exception. The Court recognized that, if

officers seize a vehicle, the seizure can eliminate any exi-

gency that would justify a warrantless search. As the court

explained, “although failure to seize a moving automobile

believed to contain contraband might deprive officers of the

illicit goods, once a vehicle has been stopped the exigency

does not necessarily justify a warrantless search.” Ross, 456

156 State v. McCarthy

US at 807 n 9 (emphasis in original). As Justice Marshall

observed, where law enforcement can seize a vehicle such

that it is “in the exclusive control of the authorities”—for

example, after its occupants have been arrested—a war-

rantless search is justified not on the basis of any exigency,

but on another basis: the reduced expectation of privacy

individuals have in their vehicles. Id. at 830 (Marshall, J.,

dissenting).

To summarize, in Brown, this court did not engage

in an independent analysis of Article I, section 9. Instead, it

relied on federal Fourth Amendment law to create a per se

exigency exception that allows not only for warrantless sei-

zures of vehicles, but also for warrantless searches of seized

vehicles. And it did so even though Carroll did not estab-

lish a per se exigency exception, and Ross does not support a

per se exigency exception for searches of seized vehicles.

Moreover, as described above, the court’s reason-

ing is unclear. The court either reasoned that an immediate

warrantless search is no more intrusive than a later war-

ranted search, in which case it failed to recognize the pur-

pose of the warrant requirement, which is to protect against

searches that are not supported by probable cause. Or it

reasoned that an immediate warrantless search is no more

intrusive than a prolonged seizure, but, as Justice Linde

explained, that reasoning was unsound. Thus, Brown itself

provides several bases for reconsidering its per se exigency

exception: the court did not utilize its usual framework for

analyzing a state constitutional question, it imported fed-

eral law without adequate explanation, and its reasoning is

unclear at best. See Farmers Ins. Co., 350 Or at 698 (recog-

nizing that reconsideration of a prior decision is appropriate

where the court had “failed to apply [the] usual framework

for decision or adequately analyze the controlling issue”).

To be sure, several of those aspects of Brown were

apparent at the time the case was decided and were men-

tioned by the dissent. But it is still appropriate to consider

them here because, when determining whether to adhere to

precedent this court considers, among other things, whether

a case was inadequately considered or wrong when it was

decided.

Cite as 369 Or 129 (2021) 157

In addition, when it comes to the doctrine of stare

decisis, Brown is a unique case. The court did not intend its

per se exigency exception to be permanent. It expected that,

in the “near future,” technological changes would occur and

reduce the amount of time that it took to process a war-

rant application and, as a result, there would be no basis

for assuming as a general matter that obtaining a warrant

would create a risk that a vehicle would be moved before

it could be seized or searched. Brown, 301 Or at 278 n 6.

Brown’s per se exigency exception was intended as a tem-

porary accommodation to provide clarity to officers. But, as

we explain in the following section, it has not provided that

clarity, and it is now in conflict with other cases—two addi-

tional reasons to reconsider Brown’s per se rule.

D. Post-Brown Cases

In Brown, the court announced its per se rule that

an officer may conduct a warrantless search of a car if

“(1) the car was mobile at the time it was stopped by the

police; and (2) the police had probable cause to believe that

the car contained contraband or crime evidence.” 301 Or at

278. Although the rule was intended to create clarity in the

law, post-Brown cases show that there has been confusion

about the basic elements of the rule, including about what

it means for a vehicle to be mobile, whether the police need

to bring a moving vehicle to a stop, and at what point police

need to have probable cause.

1. State v. Kock

In Brown, the police stopped the defendant’s car

when the defendant was driving it. Consequently, the court

did not address “whether a warrant for the search and sei-

zure of a parked or impounded automobile is required.”

Id. at 277. But, three months after Brown, the court

addressed the warrantless search of a parked car. State v.

Kock, 302 Or 29, 725 P2d 1285 (1986).

In Kock, two officers conducting surveillance in the

parking lot of the store where the defendant worked saw the

defendant come to work and enter the store. Approximately

two hours later, the officers saw the defendant leave the

store, place a package in his car, and return to the store.

158 State v. McCarthy

To determine what the defendant had put in his car, the

officers searched the car without a warrant and seized the

package, which contained merchandise from the store. The

state charged the defendant with theft, and the defendant

moved to suppress the results of the search.

On review, this court assumed for the sake of argu-

ment that the officers had probable cause to search the car

and, therefore, the court focused on whether the search

was lawful under an exception to the warrant requirement.

Id. 32-33. As relevant here, the court held that the search

was not lawful under the automobile exception. Id. at 33.

The court explained that it was adhering to the rule it had

announced in Brown:

“Although logically it can be argued that the rationale of

the seminal case of Carroll v. United States and its progeny,

including United States v. Ross, would justify extending

the automobile exception to automobiles that are capable of

mobility, we elect to draw the so-called bright line of Brown

just where we left it in that case: * * * [A]utomobiles that

have just been lawfully stopped by police may be searched

without a warrant and without a demonstration of exigent

circumstances when police have probable cause to believe

that the automobile contains contraband or crime evidence.”

Id. at 32-33 (citations omitted). The court further explained

that Brown established the “outer limit for warrantless

automobile searches without other exigent circumstances.”

Id. at 33. Therefore, the court ruled:

“Any search of an automobile that was parked, immobile

and unoccupied at the time the police first encountered it in

connection with the investigation of a crime must be autho-

rized by a warrant issued by a magistrate or, alternatively,

the prosecution must demonstrate that exigent circum-

stances other than the potential mobility of the automobile

exist.”

Id. Applying that rule, the court held that, because the state

had “failed to demonstrate any individualized exigent cir-

cumstances,” the warrantless search of the defendant’s car

violated Article I, section 9. Id. at 33-34.

In sum, the automobile exception did not apply in

Kock because the defendant’s car was parked and unoccupied

Cite as 369 Or 129 (2021) 159

when the officers “first encountered it in connection with

the investigation of a crime”—that is, when the officers first

developed probable cause. Thus, Kock indicates that officers

“encounter” a car in connection with a crime when they have

probable cause to seize or search it, not simply when they

see it. It also indicates that the exception does not apply sim-

ply because a car was recently driven and the person who

drove it is still nearby, and, relatedly, that “mobile” means

“moving,” not “operable or capable of moving.”

2. State v. Meharry

Following this court’s decision in Kock, the Court

of Appeals held that the automobile exception did not apply

to the warrantless search of a van that was parked when

an officer developed probable cause to search it. State

v. Meharry, 201 Or App 609, 617-18, 120 P3d 520 (2005)

(Meharry I), rev’d, 342 Or 173 (2006). In Meharry, a local

fire chief saw a van being driven erratically and reported

his observations to a police officer, who spotted the van and

followed it in his patrol car, without using his siren or over-

head lights. The officer saw the defendant drive the van into

the parking lot of a convenience store, park, and go into the

store. The officer parked his patrol car behind the van and

went into the store, where he questioned the defendant and

developed probable cause to believe that the defendant had

been driving under the influence of intoxicants. The defen-

dant agreed to take field sobriety tests outside the store,

and, after she failed the tests, the officer arrested her. After

finding a syringe in the defendant’s pocket, the officer then

conducted a warrantless search of the van. Based in part

on evidence found during that search, the state charged the

defendant with driving under the influence of intoxicants

and with several drug crimes.

The defendant moved to suppress the evidence

found in the warrantless search of the van, and the trial

court granted the motion. The Court of Appeals affirmed,

relying on Kock and holding that the van was not mobile

when the officer first encountered it. Meharry I, 201 Or App

at 617-18. Quoting an earlier case in which it had addressed

the scope of the automobile exception, the court stated that,

“ ‘although the meaning and contours of “encounter” as used

160 State v. McCarthy

in the case law are somewhat amorphous, it is clear that

merely observing a vehicle from a distance without any show

or exercise of police authority is not an “encounter” for pur-

poses of the automobile exception.’ ” Id. at 618 (quoting State

v. Mosely, 178 Or App 474, 479, 38 P3d 278 (2001), rev den,

334 Or 121 (2002)). Applying that understanding, the court

concluded that the automobile exception did not apply. Id.

On review, this court reversed the Court of Appeals’

decision. State v. Meharry, 342 Or 173, 149 P3d 1155 (2006)

(Meharry II). Although the Brown rule is that an officer may

seize and search a car if (1) the car was mobile at the time

it was stopped by the police, and (2) the police have probable

cause to believe that the car contains contraband or crime

evidence, this court concluded that it did not matter that the

officer had not caused the defendant’s van to stop or that the

defendant had parked the van and gone into the store before

the officer parked his patrol car behind it. The court noted

that the officer had seen the van being driven shortly before

he searched it, that the officer “had not impounded the van,”

and that “there was no physical or mechanical impediment

to the van’s being driven away once [the officer] relinquished

control over it.” Meharry II, 342 Or at 180. Therefore, the

court concluded, “the van remained mobile and the exigency

continued.” Id. (emphasis added).

Thus, although in Brown the court appeared to use

the term “mobile” to mean “moving,” 301 Or at 277, and in

Kock the court expressly declined to extend the automobile

exception to vehicles that are “capable of mobility,” 302 Or

at 32-33, the court in Meharry II appeared to use the term

“mobile” to mean capable of movement, concluding that the

defendant’s parked van “remained mobile,” 342 Or at 180.

Justice Durham concurred in the court’s decision,

noting that the defendant had not argued that the court

had erred in Brown. Id. at 182 (Durham, J., concurring). He

wrote separately to raise two concerns about Brown. One

concern was that Brown “understated the constitutional pol-

icy requiring a judicial examination of the particular facts

to determine whether a particular search is reasonable.”

Id. at 181. In Justice Durham’s view, “The one-size-fits-all

rule of Brown for searching a citizen’s property is difficult

Cite as 369 Or 129 (2021) 161

to harmonize with the state constitutional prohibition on

searches that are not reasonable under all the particular

circumstances.” Id. at 181-82. The other concern was that

“the Brown court’s decision oversold the notion that it would

lead to certainty,” because “whether a vehicle is ‘mobile,’ or

sufficiently mobile under the particular facts to permit a

warrantless search, can change with every stop.” Id. at 181

(emphasis in original).

3. State v. Kurokawa-Lasciak

Unsurprisingly, after Meharry II, the Court of

Appeals held that the automobile exception applied to a vehi-

cle because the vehicle was capable of moving at the time an

officer developed probable cause. State v. Kurokawa-Lasciak,

237 Or App 492, 239 P3d 1046 (2010) (Kurokawa-Lasciak I),

rev’d, 351 Or 179 (2011). In Kurokawa-Lasciak, casino offi-

cials suspected the defendant of money laundering, and,

when the defendant refused to provide identification, the

officials barred him from making future transactions and

distributed a photograph of him to all the casino’s cashiers.

When the defendant saw one of the photographs, he grabbed

it and walked away. A casino employee then alerted a state

trooper assigned to the casino as a gaming detective. Video

surveillance showed that the defendant left the casino,

walked to his rental van in the casino’s parking lot, drove

to a gas station operated by the casino, and then returned

to the parking lot with his girlfriend, parked the van, and

began walking back to the casino. When the defendant was

approximately 30 feet from the van, a deputy sheriff stopped

and detained him until the state trooper arrived. Neither

the deputy nor the trooper had seen defendant drive the van

and neither had reviewed the video surveillance before con-

tacting the defendant.

The trooper questioned and arrested the defendant,

who refused to consent to a search of the van. The trooper

then questioned the defendant’s girlfriend, Campbell, ask-

ing, among other things, whether there was any marijuana

in the van. Campbell answered that there was a “little bit,”

and that it was “probably under [an ounce], but could be over

a little bit.” Ultimately the trooper obtained Campbell’s con-

sent to a search of the van and searched it, finding several

162 State v. McCarthy

ounces of marijuana and hashish, electronic gram scales,

and approximately $48,000 in cash.

The defendant moved to suppress the evidence

obtained through the search, and the trial court granted

his motion, ruling that Campbell’s consent was involuntary

and the automobile exception did not apply because the

trooper did not have probable cause to search the van until

Campbell admitted that there were drugs inside it and, at

that time, the van was not mobile. The Court of Appeals

reversed on the ground that the van was mobile. Kurokawa-

Lasciak I, 237 Or App at 499. The court noted that, although

in Kock this court had “in no uncertain terms rejected the

theory that the exception extended to ‘stationary but oper-

ational vehicle[s],’ ” the courts had since “ ‘refined the auto-

mobile exception analysis,’ ” and “at present, a vehicle is

‘mobile’ for purposes of the automobile exception as long as

it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33;

then quoting State v. Coleman, 167 Or App 86, 92, 2 P3d 399

(2000); and then citing Meharry II, 342 Or at 181).7

7

When doing so, the Court of Appeals mentioned the lack of stability in the

case law applying the automobile exception, commenting that the exception had

“what charitably might be called an irregular history.” Kurokawa-Lasciak I, 237

Or App at 497.

Earlier, in State v. Snow, 179 Or App 222, 226-27, 39 P3d 909 (2002), aff’d,

337 Or 219, 94 P3d 872 (2004), the court had similarly stated that “the exception’s

development [had] not necessarily always been internally consistent.” In Snow,

the court recapped the following automobile exception cases, which illustrate

that inconsistency. Id. at 227-31.

In State v. Vaughn, 92 Or App 73, 77, 757 P2d 441, rev den, 306 Or 661 (1988),

the court held that a vehicle was not mobile because, even though officers had

seen it moving earlier, it was parked and unoccupied when the officers confronted

its driver about criminal activity.

Then, in State v. Cromwell, 109 Or App 654, 659, 820 P2d 888 (1991), the

court held that a vehicle was mobile—even though officers had not seen it move

and its engine was not running—because it was parked in the middle of the road-

way with its parking lights on and the defendant was in the driver’s seat when

the police developed probable cause that it contained contraband.

Next, in State v. Warner, 117 Or App 420, 424, 844 P2d 272 (1992), the court

held that a vehicle was not mobile, even though an officer had seen it moving,

because it appeared to be having mechanical problems when the police developed

probable cause to search it.

Later, in State v. Burr, 136 Or App 140, 150, 901 P2d 873, rev den, 322 Or 360

(1995), the court held that a pickup truck was mobile, even though officers had

never seen it move and no one was in it, because it was “parked along a public

highway at night in an isolated area” and four persons were attempting to load a

raft into it shortly before the officers developed probable cause to search it.

Cite as 369 Or 129 (2021) 163

On review, this court reversed the decision of the

Court of Appeals, noting that “the court in Meharry did not

dispense with the Brown and Kock requirement that, to qual-

ify for the automobile exception, the vehicle that the police

search must be mobile at the time that the police encounter

it in connection with a crime.” Kurokawa-Lasciak II, 351 Or

at 192. The court explained that its statement in Meharry II,

that the defendant’s van “remained mobile” after it was

parked, was “only to correct the Court of Appeals’ statement

that the initial exigency no longer existed when the police

searched the van.” Id. The court further explained that it

had not intended that statement “to eliminate the require-

ment of the automobile exception that the vehicle be mobile

at the time of the initial encounter or to replace it with a

requirement of operability at the time of the initial encoun-

ter.” Id. at 193. Applying that requirement, the court found

that the deputy had stopped the defendant 30 feet from his

van, which was parked, immobile, and unoccupied, and that,

when the trooper questioned the defendant, they were no

longer near the van. Id. at 194. Thus, the court concluded,

“there was no evidence from which the trial court could have

found that defendant’s van was mobile when [the deputy] or

[the trooper] encountered it in connection with a crime” and

the automobile exception did not apply. Id.

3. State v. Andersen

In this court’s next automobile exception case,

Andersen II, 361 Or 187, the issue related to what consti-

tutes an “encounter.” In that case, two officers were wait-

ing for the defendant’s car to arrive at a parking lot to

complete a drug sale arranged through a confidential infor-

mant. The first officer overheard a cellphone conversation

between the defendant’s passenger and the informant, in

which the passenger told the informant that the defendant’s

But, in State v. Coleman, 167 Or App at 96, the court held that the defendant’s

car was not mobile, even though the defendant was a few feet from it when the

officers first saw him, because it was unclear whether the officers focused their

attention on the car before or after they arrested the defendant.

As that relatively small sample of cases shows, the Brown rule—that an offi-

cer may search a vehicle without a warrant if the vehicle was mobile when the

officer first encountered it and the officer has probable cause—has given rise to

questions regarding what it means for a car to be mobile, what constitutes an

encounter, and when the officer must have developed probable cause.

164 State v. McCarthy

car was arriving at the parking lot. The second officer then

drove to another area of the parking lot, where he saw the

defendant’s car parked with the motor running. Both offi-

cers approached the car and prevented it from leaving until

a drug detection dog arrived and alerted to the presence

of drugs, giving the officers probable cause to search the

car. The officers searched the car and its contents without

a warrant and discovered drugs in the defendant’s purse,

which she later moved to suppress. The trial court denied

the defendant’s motion, ruling “that this was a mobile vehi-

cle, as that term is meant in the vehicle exception,” but the

Court of Appeals reversed on the ground that the police

had not encountered the car until it was parked. State v.

Andersen, 269 Or App 705, 346 P3d 1224 (2015) (Andersen I),

rev’d, 361 Or 187 (2017).

On review, this court held that, although the offi-

cers did not see the defendant’s car drive into the parking

lot, the running account of the car’s movement provided by

the defendant’s passenger provided them with confirmation

that the car was mobile, despite the fact that it was parked

when officers first saw it in the parking lot. Andersen II, 361

Or at 198. The court therefore concluded that the car was

mobile when the police first encountered it in connection

with a crime. Id.

In Andersen II, the defendant had argued that, if

this court concluded that the search of his car came within

the automobile exception, as the court’s cases had described

it, then the court should overrule the exception. The court

declined to do so, and it wrote to address the defendant’s

argument that the court “should overrule Brown because

warrants can now be obtained within minutes.” Id. at 199.

The court questioned the defendant’s premise, observ-

ing that although technological advances can reduce the

amount of time required for communications during the

warrant process, other aspects of the process—which can

include the completion of a written warrant application by

an officer and the review of that application by a district

attorney—can take substantial amounts of time. Id. at 200.

But the court acknowledged that there may be cir-

cumstances where the exception will no longer apply:

Cite as 369 Or 129 (2021) 165

“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. 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

otherwise); cf. Missouri v. McNeely, 569 US 141, [163-65,]

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).”

Id.

In a concurrence, then-Justice Walters highlighted

the significance of that paragraph, stating that in it the

majority recognized “that the exception created in [Brown] is

and must be aligned with other Oregon exigency exceptions

to the warrant requirement.” Id. at 202 (Walters, J., concur-

ring).8 Justice Walters explained that this court “has long

held * * * that whether exigent circumstances exist must be

determined based on the particular facts presented, and not

on a categorical basis or pursuant to a per se rule.” Id. She

further explained:

“In permitting that same case-by-case analysis when

the state relies on the automobile exception to justify 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

8

Justice Walters became Chief Justice in 2018, after Andersen II, but before

Bliss.

166 State v. McCarthy

meeting the legitimate interests of law enforcement.” ’

McNeely, [569 US at 156] (quoting State v. Rodriguez, * * *

156 P3d 771, 779 (2007)).”

Id.

Andersen II is significant because it altered the sig-

nature aspect of the Brown rule. In Brown, the court held

that nothing “in addition to the mobility of an automobile

at the time it is lawfully stopped is required to create exi-

gency under the automobile exception.” 301 Or at 277. To

illustrate, the court stated:

“[I]t does not matter whether the passenger could have

taken over the custody of the car * * *, whether the police

had adequate personnel to back-up the arrest, whether a

tow truck was available, whether a magistrate was avail-

able by telephone or otherwise, or whether a threatening

crowd gathered, etc.”

Id. at 278 (emphasis added; footnote omitted). Thus, under

Brown, whether an exigency exists does not depend on case-

specific facts, other than whether the vehicle at issue was

mobile when it was stopped and whether probable cause

exists. It “does not matter” whether, for example, a warrant

could have been obtained. Id. But, under Andersen II, it does.

4. State v. Bliss

The effect of Andersen II is unclear, however,

because of this court’s most recent automobile exception

case, Bliss, 363 Or 426. The defendant in Bliss did not chal-

lenge the automobile exception itself; he argued only that

the exception did not apply in his case because he had been

stopped in connection with a traffic violation and not in con-

nection with a crime. Noting that Brown was intended to

create a bright-line rule that established the outer limits

of the automobile exception, the defendant relied on sev-

eral of this court’s cases in which this court considered the

mobility of a vehicle at the time the police encounter it “in

connection with a crime.” E.g., Kurokawa-Lasciak II, 351 Or

at 192 (affirming that “to qualify for the automobile excep-

tion, the vehicle that the police search must be mobile at

the time that the police encounter it in connection with a

crime”); Andersen II, 361 Or at 197 (same); Kock, 302 Or at

Cite as 369 Or 129 (2021) 167

33 (considering the mobility of a car when “the police first

encountered it in connection with the investigation of a

crime”). This court rejected the defendant’s argument, con-

cluding that its prior use of the phrase “in connection with

a crime” merely described the facts of the cases in which the

phrase was used and was not intended to be a requirement.

Bliss, 363 Or at 437.

Because the defendant’s argument was that the

automobile exception did not apply to stops like his at all,

the court did not address whether, as it had just stated in

Andersen II, there could be circumstances in which a war-

rant could be obtained quickly enough to obviate the exi-

gency underlying the exception. But, in rejecting the defen-

dant’s argument, the court stated that

“much of the rationale of Brown was to provide law enforce-

ment with ‘simple guidelines’ and a ‘per se’ rule for all high-

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

particular facts regarding the time, location and manner’

of the stop. * * * Defendant’s proposed distinction between

stops based on traffic violations and stops based on crimi-

nal activity would be complex in practice and undercut the

clarity Brown sought to establish.”

Bliss, 363 Or at 434 (quoting Brown, 301 Or at 277). Thus,

although this court altered the per se nature of the automo-

bile exception in Andersen II, in Bliss it based its decision in

part on the court’s goal of providing a per se rule.

Chief Justice Walters dissented in Bliss and was

joined by Justice Nakamoto. Noting that, in Kurokawa-

Lasciak II, this court had stated that “ ‘the “automobile

exception” to the warrant requirement of Article I, section

9, of the Oregon Constitution, does not permit a warrantless

search of a defendant’s vehicle when the vehicle is parked,

immobile, and unoccupied at the time that the police encoun-

ter it in connection with a crime,’ ” the dissent would have

held that the exception does not apply to vehicles that were

mobile when stopped for a traffic violation, but were not

mobile when the police later developed probable cause that

a defendant had committed a crime. Bliss, 363 Or at 439

(Walters, C. J., dissenting) (quoting Kurokawa-Lasciak II,

351 Or at 181) (emphasis added). Therefore, the dissent

168 State v. McCarthy

would have concluded that the officers were not permitted

to search the defendant’s vehicle based on an assumed exi-

gency; instead, they had to either obtain a warrant or rely

on another exception to the warrant requirement. Id. at 439.

5. Summary of post-Brown automobile exception cases

What our review of cases from Brown to Bliss shows

is that the automobile exception has created confusion and is

currently unclear. The purpose of the exception is to enable

officers to respond to the risk that contraband or evidence

will be lost because a vehicle can be moved out of the juris-

diction in which a warrant must be sought. But the scope

of the exception exceeds its purpose. Although it is an exi-

gent circumstances exception, it applies when there are no

exigent circumstances. That is, it applies when there is no

actual risk that a vehicle will be moved and that contraband

or evidence will be lost.

Of course, that is because the exception is a per se

exception, intended to provide clarity for law enforcement

officers. So, instead of focusing on whether there is a risk

that a vehicle will be moved, officers (and lawyers and

judges) must focus on the rule as this court has phrased it.

Thus, there is a disconnect between the rationale for the

rule and the rule itself, and that can be confusing. See, e.g.,

Kurokawa-Lasciak II, 351 Or at 193 (acknowledging the

“logic of the state’s position” that it is just as likely that a

person in control of an operable car that was parked when

the police encountered it will drive away with evidence or

contraband as will a person who was in control of an oper-

able car that was moving when the police encountered it);

Kock, 302 Or at 32 (recognizing that it could be logically

argued that the exception should be extended to vehicles

that are capable of mobility).

Moreover, the phrasing of the rule has created con-

fusion. In Brown, this court held that an officer may conduct

a warrantless search of a car if “(1) the car was mobile at

the time it was stopped by the police; and (2) the police had

probable cause to believe that the car contained contraband

or crime evidence.” 301 Or at 278. And, in Kock, this court

added that “any search of an automobile that was parked,

Cite as 369 Or 129 (2021) 169

immobile and unoccupied at the time the police first encoun-

tered it in connection with the investigation of a crime must

be authorized by a warrant issued by a magistrate or, alter-

natively, the prosecution must demonstrate that exigent cir-

cumstances other than the potential mobility of the automo-

bile exist.” 302 Or at 33. Courts have disagreed about the

basic elements of the exception. There has been confusion

about the meaning of “mobile,” what constitutes an “encoun-

ter,” and whether the encounter must be in “connection with

a crime.” And the confusion has not been minor: In Meharry,

Kurokawa-Lasciak, and Andersen, the Court of Appeals

understood the rule one way, and this court understood it

another.

In addition, Brown is in conflict with other, more

recent cases. Most notably, it is in conflict with Andersen II,

as described above. That conflict is another reason to revisit

Brown’s per se exigency exception and clarify its current

status.

The state argues that we should adhere to Brown’s

per se rule because the defendant in Andersen II made some

of the arguments that defendant makes in this case and

the court in Andersen II declined to overrule Brown’s per se

rule. But Andersen II did not affirm that rule; it altered it.

Consequently, Andersen II does not support the state’s claim

that we should adhere to Brown.

The state also relies on Bliss, but as discussed, the

defendant in Bliss did not raise the issue of whether the

automobile exception is a per se rule. The defendant’s “sole

argument” was that the exception “does not apply when the

initial stop is for a traffic violation, rather than for a crim-

inal offense.” Bliss, 363 Or at 430. The defendant did not

argue that the exception requires an actual exigency, as

defendant does here. Thus, Bliss does not resolve the ques-

tion in this case. Instead, in light of Andersen II, it raises

questions about the current status of the exception.

6. Other post-Brown warrant exception cases

In addition to the automobile exception cases just

described, other cases decided since Brown (and since

Andersen II) support reconsideration of Brown’s per se

170 State v. McCarthy

exigency exception. Those cases concern other exceptions to

the Article I, section 9, warrant requirement, and they make

clear that a warrant exception “must be applied consistently

with the purposes animating the exception.” Fulmer, 366

Or at 233-34. In other words, “the contours of the particu-

lar exception are circumscribed by the justification for that

exception.” Id. at 234; see also State v. Arreola-Botello, 365

Or 695, 712, 451 P3d 939 (2019) (holding that the scope of

a stop is limited by its purpose, and therefore an officer’s

conduct during a stop must be “reasonably related to the

purpose” of the stop). Those cases support the conclusion

that Brown’s per se rule is impermissibly overbroad in that

it allows for seizures and searches that are not justified by

the purpose of the exception.

Moreover, since Brown, both this court and the

Supreme Court have recognized problems with per se

exceptions to warrant requirements. In McNeely, the Court

rejected an argument that the natural metabolization of

alcohol in the bloodstream establishes a per se exigency that

justifies an exception to the Fourth Amendment’s warrant

requirement for nonconsensual blood testing in all cases

involving driving under the influence of alcohol. 569 US at

165.

In doing so, the Court acknowledged that “some cir-

cumstances will make obtaining a warrant impractical such

that the dissipation of alcohol from the bloodstream will

support an exigency justifying a properly conducted war-

rantless blood test,” but it determined that each case should

be decided on its own facts, and that a per se rule would

reflect “ ‘considerable overgeneralization.’ ” Id. at 153 (quot-

ing Richards v. Wisconsin, 520 US 385, 393, 117 S Ct 1416,

137 L Ed 2d 615 (1997)). In addition, the Court observed that

a per se rule would “improperly ignore the current and future

technological developments in warrant procedures, and

might well diminish the incentive for jurisdictions ‘to pursue

progressive approaches to warrant acquisition that preserve

the protections afforded by the warrant while meeting the

legitimate interests of law enforcement.’ ” Id. at 156 (quot-

ing Rodriguez, 156 P3d at 779). And, as Justice Sotomayor

explained, “[w]hile the desire for a bright-line rule is under-

standable, the Fourth Amendment will not tolerate adoption

Cite as 369 Or 129 (2021) 171

of an overly broad categorical approach that would dilute the

warrant requirement in a context where significant privacy

interests are at stake.” Id. at 158 (opinion of Sotomayor, J.).

Moreover, “a case-by-case approach is hardly unique within

our Fourth Amendment jurisprudence. Numerous police

actions are judged based on fact-intensive, totality-of-the-

circumstances analyses rather than according to categorical

rules, including in situations that are more likely to require

police officers to make difficult split-second judgments.”

Id.

Thus, even in circumstances where the sought-after

evidence is actually dissipating, the Court declined to create

a per se rule. Such a rule would be overbroad, could discour-

age the development and utilization of improvements to the

warrant process, and was not necessary.

Following McNeely, this court has also expressed

concern about creating broad exceptions to the warrant

requirement based on generalizations about the length

of time it takes to get a warrant. For example, in State v.

Fessenden/Dicke, 355 Or 759, 333 P3d 278 (2014), this court

stated:

“The fact that an exception to the Article, I, section

9, warrant requirement is at issue is an additional rea-

son for caution. Since 1986, this court has been aware

that, ‘in this modern day of electronics and computers,’ a

day will come when the warrant requirement can be ful-

filled expeditiously. * * * Brown, 301 Or [at] 278 n 6 * * *;

see also * * * Kurokawa-Lasciak [II], 351 Or [at] 188 * * *

(discussing desirability of ‘a neutral magistrate’s evalua-

tion of probable cause’ and anticipating ‘advances in tech-

nology permit[ting] quick and efficient electronic issuance

of warrants’). In many places and circumstances, obtain-

ing a warrant no longer entails undue delay or prevents

timely police action. See Riley v. California, [573] US [373,

401], 134 S Ct 2473, 189 L Ed 2d 430 (2014) (discussing

‘[r]ecent technological advances’ that have ‘made the pro-

cess of obtaining a warrant itself more efficient’); * * *

McNeely, [569] US [at 173] (Roberts, C. J., concurring in

part and dissenting in part) (describing jurisdiction where

warrants may be obtained electronically in as little as

15 minutes). Given the perplexing questions presented and

the current state of technology, we are hesitant to extend or

172 State v. McCarthy

broadly apply exceptions to the warrant requirement with-

out firm constitutional basis.”

Id. at 771.

Not only can a per se exception diminish the incen-

tive for improving warrant processes, but it can also under-

mine the warrant requirement by allowing officers to plan to

conduct warrantless searches even when they could obtain

warrants. State v. Colman-Pinning, 302 Or App 383, 461

P3d 994 (2020), illustrates that possibility. In that case, offi-

cers working with an informant arranged a drug buy and

“planned to rely on the automobile exception announced in

Brown to stop defendant and conduct a warrantless search

of [his] pickup while he was on his way to the arranged

drug buy.” Id. at 384-85. The officers planned the stop in

advance, which one of the officers described as a “very com-

mon” practice. Id. at 386. The defendant was charged with

drug crimes based on evidence found during the stop, and

he moved to suppress the evidence on the ground that the

warrant search of the pickup violated Article I, section 9.

The trial court denied the motion, and the Court of Appeals

affirmed, explaining that Brown’s per se rule allows offi-

cers to plan to stop vehicles in order to conduct warrantless

searches. Id. at 393-94. The court recognized

“the dissonance between a planned operation designed

to ensnare a suspect at a particular 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 excep-

tion 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 unjus-

tified in planning the operation and relying on the automo-

bile exception in the manner that they did, without having

an obligation to seek a warrant.”

Id. at 394 (emphases in original).

Cite as 369 Or 129 (2021) 173

In sum, cases decided since Brown show that Brown’s

per se exigency exception has not created clarity in the law,

is in conflict with other, more recent cases, is the type of rule

that both this court and the Supreme Court have recognized

is overbroad, is not necessary given advances in technology

that can eliminate undue delay, and can diminish the incen-

tives for making improvements to the warrant process and

obtaining warrants when it is practicable to do so.

E. Post-Brown Technological and Legislative Changes

In addition to the case law developments since Brown,

there have been technological and legislative changes that

support reconsidering Brown’s per se exigency exception.

When Brown was decided in 1986, “[i]t was the present

unavailability of a general speedy warrant procedure that

led the court to allow an exception for warrantless searches

after stops of mobile vehicles.” State v. Wise, 305 Or 78, 82

n 3, 749 P2d 1179 (1988). But, as described above, the court

anticipated that that situation would change, stating, “In

this modern day of electronics and computers, we foresee

a time in the near future when the warrant requirement

of the state and federal constitutions can be fulfilled virtu-

ally without exception.” Brown, 301 Or at 278 n 6. The court

envisioned a process in which an officer would call a mag-

istrate at a central facility and make a recorded statement

under oath describing the facts that the officer believed

constituted probable cause to seize or search a vehicle, the

magistrate would evaluate the facts, and, if the magistrate

concluded that they were sufficient to justify the intended

seizure or search, the magistrate would immediately issue

an electronic warrant. Id. That way, the court explained,

“the desired goal of having a neutral magistrate could be

achieved within minutes without the present invasion of

the rights of a citizen created by the delay under our cur-

rent cumbersome procedure and yet would fully protect the

rights of the citizen from warrantless searches.” Id.

In the 35 years since Brown, technology has

advanced more than the court even imagined. Computers

and smartphones have made instant, wireless communica-

tion not only possible, but commonplace. See Riley, 573 US

at 385 (noting that cellphones “are now such a pervasive

174 State v. McCarthy

and insistent part of daily life that the proverbial visitor

from Mars might conclude they were an important feature

of human anatomy”).9 Law enforcement officers and mag-

istrates have computers and smartphones. Not only can

officers call and speak to magistrates from the field, but

they can also make and send audio and video recordings;

they can prepare, sign, and send documents; and they can

have recorded videoconferences with multiple other people.

Advances in technology have enabled officers and district

attorneys to more quickly and easily prepare, exchange,

and record information necessary to apply for warrants and

enabled magistrates to more quickly and easily review that

information and issue and record warrants.

As the Supreme Court has observed, “[w]ell over

a majority of States allow police officers or prosecutors to

apply for search warrants remotely through various means,

including telephonic or radio communication, electronic

communication such as e-mail, and video conferencing.”

McNeely, 569 US at 154-55. Those processes can “enable

police officers to secure warrants more quickly, and do so

without undermining the neutral magistrate judge’s essen-

tial role as a check on police discretion.” Id. at 155. And, as

Chief Justice Roberts has described, it is now possible for

warrants to be obtained in less than 15 minutes:

“At least 30 States provide for electronic warrant applica-

tions. * * * Utah has an e-warrant procedure where a police

officer enters information into a system, the system notifies

a prosecutor, and upon approval the officer forwards the

information to a magistrate, who can electronically return

a warrant to the officer. Judges have been known to issue

warrants in as little as five minutes. And in one county

in Kansas, police officers can e-mail warrant requests

to judges’ iPads; judges have signed such warrants and

e-mailed them back to officers in less than 15 minutes.”

Id. at 172-73 (Roberts, C. J., concurring) (internal citations

omitted).10 Even before the advent of current e-warrant

9

See also Mobile Fact Sheet (Apr 7, 2021), Pew Research Center, https://

www.pewresearch.org/internet/fact-sheet/mobile/ (noting that 97% of adults in

the United States own some sort of cellphone, and 85% own a smartphone).

10

See also Andersen II, 361 Or at 203 (Walters, J., concurring) (observing that

“[e]vidence from other jurisdictions suggests that police officers should be able to

Cite as 369 Or 129 (2021) 175

technology, law enforcement could still obtain telephonic

warrants in well under an hour. See, e.g., State v. Flannigan,

194 Ariz 150, 154, 978 P2d 127 (Ariz Ct App 1998) (“[T]he

Mesa Police Department is able to obtain a [telephonic] war-

rant within as little as fifteen minutes and that delays of

only fifteen to forty-five minutes are commonplace.”); United

States v. Baker, 520 F Supp 1080, 1084 (SD Iowa 1981) (not-

ing that obtaining a telephonic warrant after probable cause

arose in a drug sting operation “would probably not have

taken more than 20 minutes, 30 at the most”).

Not only has the technology changed since Brown,

but the statute governing the warrant process has changed

as well. When Brown was decided, ORS 133.545 authorized

warrants based on oral statements, commonly referred to

as “telephonic warrants,” but only when circumstances

made it “impracticable for a district attorney or police offi-

cer to obtain a warrant in person.” ORS 133.545 (1985).

And it required that the oral statements be recorded and

transcribed. Id. Since then, the legislature has regularly

updated ORS 133.545 to authorize increased use of tele-

phonic warrants, to simplify the telephonic warrant process,

and to keep pace with changes in technology.

In 1999, the legislature amended ORS 133.545

to enable district attorneys and police officers to obtain

obtain warrants in less than one hour”); State v. Hawley, No. 2015AP1113-CR,

2018 WL 8221526 at *3 (Wis Ct App Nov 21, 2018) (officers testified that obtain-

ing a warrant for a blood draw would have taken 30 to 45 minutes); Lindsey Erin

Kroskob, Police Take First Forced Blood Draw, Wyoming Trib. Eagle (Aug 19,

2011), https://www.wyomingnews.com/news/police-take-first-forced-blood-draw/

article_2a6c7748-c565-55b5-89ae-bb411b5d80af.html (According to the Police

Chief of the Cheyenne, Wyoming, Police Department, obtaining a search war-

rant over the phone usually takes under five minutes.); Gazette Opinion: Evidence

Shows Value of DUI Search Warrants, Billings Gazette (May 30, 2012), https://

billingsgazette.com/news/opinion/editorial/gazette-opinion/gazette-opinion-

evidence-shows-value-of-dui-search-warrants/article_f0d1513d-beb1-54b2-a903-

b22ca26d2d7c.html (noting that, in Billings, Montana, it takes about fifteen

minutes to obtain a telephonic search warrant from the time an officer develops

probable cause that a suspect was driving under the influence of intoxicants);

Palm Bay Police, Innovative Policing Creating a Safer Community at 10 (2011)

(discussing expedited warrant process that involves emailing an affidavit to a

judge and then videoconferencing with the judge via Skype, allowing officers to

obtain blood search warrants and arrest warrants in “an average of less than

thirty minutes in comparison to several hours it would have taken using tradi-

tional means”), archived at https://web.archive.org/web/20120510122330/https://

www.palmbayflorida.org/police/documents/annual_report_2011.pdf.

176 State v. McCarthy

warrants even in situations where it is practicable to obtain

a warrant in person. Or Laws 1999, ch 56, § 1. The 1999

amendments also permitted district attorneys and police

officers to submit proposed warrants and accompanying

affidavits to courts “by facsimile * * * or any similar elec-

tronic transmission,” and permitted courts to return signed

warrants to a district attorney or police officer by the same

electronic means. Id. In 2013, the legislature abrogated the

original requirement that the oral statement by the person

seeking the warrant be transcribed. Or Laws 2013, ch 225,

§ 1. Finally, in 2019, the legislature permitted an electronic

signature on an electronic affidavit to which an affiant

swears by telephone. Or Laws 2019, ch 399, § 7.

In sum, technological and legislative changes since

Brown have made it faster and easier to obtain warrants.

Now, it is possible for warrant applications to be readily pre-

pared and reviewed from separate locations and, if probable

cause exists, for warrants to be quickly issued.11 The tech-

nological changes that Brown anticipated have occurred.

Consequently, we can no longer assume, as the Brown court

did, that, as a general matter, it is impracticable for officers

to obtain warrants to seize and search vehicles that they

stop.12

11

In many cases, an officer’s reasons for believing that probable cause exists

for seizure and search of a vehicle that was mobile when stopped can be quickly

and clearly relayed to a magistrate. Such seizures and searches are often based

on an officer’s observations during a traffic stop, which are likely to be simple and

few. Consequently, the time-consuming processes of drafting and reviewing that

the state’s witnesses described in this case are more complex than necessary for

many warrants. Indeed, when the court in Brown described the warrant process

that it believed would eliminate the need for warrantless seizures and searches, it

described a process involving telephonic warrant applications, not written ones.

To be sure, in some cases the facts underlying an officer’s probable cause

determination are based on observations over a longer period of time and are

more complex, such as when an automobile seizure and search is conducted based

on information gathered over the course of a long-term investigation. But that

does not necessarily support retention of the per se exigency exception because,

in the course of a long-term investigation, officers are likely to have time to apply

for a warrant.

12

The experiences of law enforcement agencies that use telephonic or elec-

tronic warrants show that such warrants are practicable and save agencies

time and other resources. See, e.g., Jason Bergreen, Utah Cops Praise Electronic

Warrant System, Salt Lake Trib. (Dec 26, 2008), https://www.police1.com/fugitive/

articles/utah-cops-praise-electronic-warrant-system-umEE2WsodJ9mNKhv/

(reporting that officers using Utah’s e-warrant process say it saves time, is easy

Cite as 369 Or 129 (2021) 177

F. Conclusion Regarding Brown

For all the reasons discussed above, we conclude that

it is necessary to overrule Brown’s per se exigency exception.

The exception was not well founded or clearly reasoned; it

was not intended to be permanent; it has not provided sta-

bility or clarity; it is inconsistent with other, more recent

cases; given technological changes, it is no longer justified;

and maintaining it might well diminish the incentives for

jurisdictions to improve warrant processes and for officers

to seek warrants when practicable.

Therefore, in order to justify a warrantless seizure

or search of a vehicle based on exigent circumstances, the

state must prove that exigent circumstances actually existed

at the time of the seizure or the search, each of which must

be separately analyzed. That is, it must prove that there

was a situation requiring swift action “to prevent danger to

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

escape or the destruction of evidence.” Stevens, 311 Or at

126.

To prove that such an exigency existed, the state

must prove that it could not obtain a warrant through rea-

sonable steps, which include utilizing available processes for

electronic warrants. Officers “cannot create exigent circum-

stances by [their] own inaction.” Matsen/Wilson, 287 Or at

587 (internal quotation marks omitted); see also id. (“The

police cannot weave together a web of information, then

claim exigent circumstances when the suspect arrives and

can conveniently be snared.”). Similarly, law enforcement

agencies and courts cannot create exigent circumstances by

failing to take reasonable steps to develop warrant processes

that protect against the “invasion of the rights of a citizen,”

Brown, 301 Or at 278 n 6, that results from an unnecessar-

ily cumbersome warrant process.

to use, and improves investigations); Heather R. Cotter, How the Traditional

Warrant Process Impacts Officer Safety and a PD’s Budget, Police1.com (Aug 29,

2018), https://www.police1.com/police-products/ewarrants/articles/how-the-traditional-

warrant-process-impacts-off icer-safety-and-a-pds-budget-rm0581PPArV-

JGtYX/ (discussing the benefits to police officers of e-warrants, including

improved officer safety, greater data integrity, and significant long-term cost

savings).

178 State v. McCarthy

If an exigency exists, it may justify the seizure of a

vehicle. But the seizure itself may eliminate any exigency

that would justify proceeding further without a warrant.

Once officers have seized a vehicle, their control over it may

eliminate the need to search it before a warrant application

can be processed.

G. Application

Having concluded that the state must demonstrate

an actual exigency, we return to the facts of this case. On

review, we are bound by the facts found by the trial court if

there is evidence in the record to support them. Bliss, 363 Or

at 428.

The evidence before the trial court was that the

stop occurred on a Monday afternoon. Multiple officers were

at the scene and each of them used a telephone during the

stop to communicate with others who were not present. The

truck was legally parked in a parking lot, and defendant

was in custody.

The trial court concluded that the state had failed

to show that there was an exigency. It explained that the

“state presented no evidence that anyone would move the

automobile from the scene while the police sought judicial

authorization for the search.” It also explained that the

state’s witness had failed to “adequately explain why the

police could not observe the vehicle during the period of time

needed to obtain a warrant and seize the vehicle only if there

was an attempt to move the vehicle.” And, it explained that

the state had failed to prove that it could not have obtained

a warrant, commenting that it was “unreasonable 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.”

The state presented evidence that it would take the

officers four to five hours to obtain a warrant and that the

officers did not know how to seek a telephonic warrant. But

the trial court rejected the argument that it was imprac-

tical for the state to obtain a warrant, noting the ubiquity

of cellphones, the statutory process for obtaining telephonic

Cite as 369 Or 129 (2021) 179

warrants, and the number of judges and judicial officers in

the county.

The trial court’s factual findings are supported by

the record and its legal conclusions are correct. The state

failed to establish that exigent circumstances actually

existed at the time of the warrantless search. Therefore, the

trial court correctly granted defendant’s motion to suppress.

The decision of the Court of Appeals is reversed.

The order of the circuit court is affirmed.