State v. Andersen

No. 14 March 9, 2017 187

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

BELL MURPHY ANDERSEN,

Respondent on Review.

(CC C111600CR; CA A150872; SC S063169)

On review from the Court of Appeals.*

Argued and submitted January 12, 2016.

Susan G. Howe, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on review.

Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Paul L. Smith, Deputy Solicitor General.

Ingrid MacFarlane, Chief Deputy Defender, Salem,

argued the cause and filed the brief for respondent on review.

Also on the brief was Ernest G. Lannet, Chief Defender,

Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Baldwin, and Brewer, Justices.**

KISTLER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

Walters, J., concurred and filed an opinion.

______________

**  On appeal from the Washington County Circuit Court, Steven L. Price,

Judge. 269 Or App 705, 346 P3d 1224 (2015).

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

case.

188 State v. Andersen

Case Summary: Defendant moved to suppress evidence that police officers

discovered during a search of her car while investigating a possible drug sale.

The trial court denied defendant’s motion, reasoning that the automobile excep-

tion to Article I, section 9, justified the warrantless search. A jury found defen-

dant guilty of unlawful possession and unlawful delivery of 10 grams or more of

methamphetamine. The Court of Appeals reversed, concluding that the automo-

bile exception did not apply because defendant’s car was not moving when the

officers first saw it. Held: (1) it was not necessary for officers to visually observe

the vehicle moving because the officers listened to a running account of the car’s

progress and arrival; (2) the trial court reasonably could have found that defen-

dant had stopped her car only momentarily; (3) the court declined defendant’s

invitation to overrule the automobile exception on the basis that exigency no lon-

ger justifies the exception.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is affirmed.

Cite as 361 Or 187 (2017) 189

KISTLER, J.

Under the automobile exception to Article I, section 9,

officers may search a car if they have probable cause to

believe that the car contains evidence of a crime and the car

is mobile at the time they stop it. State v. Brown, 301 Or 268,

274, 721 P2d 1357 (1986). The automobile exception does not

apply, however, if the car is “parked, immobile and unoc-

cupied at the time the police first encounte[r] it in connec-

tion with the investigation of a crime.” State v. Kock, 302 Or

29, 33, 725 P2d 1285 (1986). In this case, two officers were

waiting for defendant’s car to arrive at a WinCo parking lot

to complete a drug sale. One officer was out of sight of the

parking lot but listened as defendant’s passenger explained

over his cell phone that he and defendant were arriving at

the parking lot. The second officer left one part of the park-

ing lot to see if defendant had arrived at a different part of

the lot. When he did not see defendant’s car, he returned

to where he had been a minute earlier and saw defendant’s

car parked across several parking spaces. Defendant was

sitting in the driver’s seat with the engine running as two

passengers stepped out of the car and were walking towards

the area where the drug sale was supposed to occur.

The trial court held that, although defendant’s car

momentarily had come to rest before the second officer saw

and stopped it, the car was mobile for the purposes of the

automobile exception. The court accordingly denied defen-

dant’s motion to suppress the evidence that the officers

found when they later searched the car and its contents.

The Court of Appeals reversed. State v. Andersen, 269 Or

App 705, 346 P3d 1224 (2015) (en banc). In its view, the

automobile exception applied only if defendant’s car was

moving when the officer first saw it. Because defendant’s

car momentarily had come to rest before the officer saw it,

the Court of Appeals held that the automobile exception did

not apply. We allowed the state’s petition for review and now

reverse the Court of Appeals decision and affirm the trial

court’s judgment.

In 2011, Officer McNair of the Beaverton City

Police Department arranged a methamphetamine purchase

through a confidential reliable informant. Specifically, on

190 State v. Andersen

July 25, 2011, around 4:00 p.m., the informant contacted

Compton, a known “player” around Beaverton, to ask about

buying a half ounce of methamphetamine. Initially, Compton

said that he did not know anyone who had that much meth-

amphetamine on them. However, around 8:00 p.m., the

informant spoke with Compton again, who said that he had

found a seller. Compton identified the seller as “his girl” and

said that she would be driving a silver Jeep. The informant

and Compton agreed that the sale would take place near the

WinCo store on Cedar Hills Boulevard in Beaverton.

After the informant and Compton arranged the

sale, they exchanged a series of text messages and phone

calls. The informant asked when Compton and the seller

were coming, which was followed by a series of messages

from Compton saying that they were leaving soon and

that he would call “when we’re on our way.” “[E]ventually,

[Compton] called [the informant sometime before 11:00 p.m]

and said that they were on their way, and at that time they

said something about a red four-door car.”1 As the informant

and Compton exchanged calls and text messages, the loca-

tion for the sale changed several times. The parties ulti-

mately settled on a Plaid Pantry across the street (Cedar

Hills Boulevard) from the WinCo parking lot. Compton was

going to park in the WinCo parking lot and walk across the

street to the Plaid Pantry. The informant was going to be

coming from a house behind the Plaid Pantry, where he and

Compton would complete the sale.

As Compton and defendant were approaching the

WinCo parking lot, Compton was on his cell phone talking

with the informant while Officer McNair was listening to

their conversation. “[J]ust when [Compton and defendant]

were arriving” at the parking lot, Compton told the infor-

mant (and McNair) over the phone, “We’re pulling in.”

Compton then said over the cell phone, “I’m—I’m here. I’m

arriving.” Compton asked the informant, “Where are you

at?” The informant replied, “I’ll be walking up” to the Plaid

Pantry from the nearby house to complete the sale. Because

McNair and the informant were parked out of sight of the

1

It turned out that Compton was a passenger in the car defendant was

driving.

Cite as 361 Or 187 (2017) 191

WinCo lot, McNair did not see defendant’s car arrive at the

WinCo parking lot. However, he heard Compton’s running

account of the car’s arrival.

McNair had arranged for other officers to be around

the WinCo parking lot and told them “that they should be

either looking for the silver Jeep that had been described

earlier, or some red four-door” car. McNair also told the offi-

cers to be looking for Compton, whom they knew. One of the

officers, Officer Henderson, was parked at the east end of the

WinCo parking lot, next to Cedar Hills Boulevard, waiting

for defendant’s arrival. As defendant’s car was approaching

the parking lot, Henderson left the east end of the parking

lot and drove to the side of the WinCo store to look for a sil-

ver Jeep or a red four-door car.2 Henderson did not see either

car parked there, and he returned to the east end of the

parking lot approximately a minute later. When he did, he

saw a silver Jeep “parked within a few hundred—or maybe

100 feet of Cedar Hills Boulevard.” The Jeep had not been

there when Henderson left a minute earlier. The Jeep was

not parked in a parking spot but was instead “parked cross-

ing over the lines.” Defendant was sitting in the driver’s seat

with the engine running.

When Henderson saw the Jeep, he noticed that

there were several people inside. He also saw a person whom

he recognized as Compton walking away from the Jeep in

the direction of the Plaid Pantry. Compton was talking with

another man. As Henderson watched, both men turned

around and walked back to the Jeep. The other man got in

the front passenger seat of the Jeep. Compton spoke to the

man through the car window and then “leaned in the vehi-

cle, putting most of his torso in the vehicle. It appeared to

[Henderson] as though [Compton] was reaching across [the

other man].” Based on what he saw and what he had learned

from McNair about the proposed drug sale, Henderson con-

cluded that he had probable cause to believe that there were

drugs inside the Jeep and that he also had probable cause

“to believe that Mr. Compton had come to the location with

the intent to distribute.”

2

The WinCo store was located at the west end of the parking lot. The east

end of the parking lot borders Cedar Hills Boulevard.

192 State v. Andersen

At that point, Henderson and other officers

approached the Jeep. When they did so, the “vehicle was

running, with the keys in the ignition with [defendant] * * *

behind the wheel.” The Jeep, however, “was not actually in

physical motion.” The officers stopped the Jeep until a drug

detection dog arrived, which initially alerted on the outside

of the Jeep and later on defendant’s purse, which the officers

found inside the Jeep. Inside defendant’s purse, the officers

found approximately 14 grams of methamphetamine.

The state charged defendant with possession and

delivery of 10 or more grams of methamphetamine. Before

trial, defendant moved to suppress the evidence that the offi-

cers had found in her vehicle. Among other things, defendant

argued that the automobile exception to Article I, section 9,

did not apply because the car was not mobile when the offi-

cers first encountered it. The trial court was not persuaded.

It found “that this was a mobile vehicle, as that term is

meant in the vehicle exception. So that does justify search-

ing the vehicle, if there’s probable cause.” The trial court

determined that Henderson had probable cause to believe

that the Jeep contained evidence of a crime, and it held that

the search of the Jeep and its contents came within the

automobile exception to Article I, section 9. Based in part on

the evidence discovered in the Jeep, a jury found defendant

guilty of unlawful possession and unlawful delivery of 10

grams or more of methamphetamine.

On appeal, defendant argued that the trial court

erred in ruling that the automobile exception to Article I,

section 9, applied.3 On that issue, defendant did not dis-

pute that the officers had probable cause to believe that the

Jeep contained methamphetamine. She argued, however,

that “the automobile exception requires an actual stop of

a moving vehicle.” (Emphases in original.) She reasoned

that, because the officers “never saw [her] car moving” and

because the officers did not contact her “until her car was

parked,” the automobile exception did not apply. The Court

of Appeals agreed. After reviewing our automobile excep-

tion cases, the Court of Appeals concluded that Oregon’s

3

Defendant has not argued on appeal or review that the officer’s search of

the Jeep and her purse violated the Fourth Amendment.

Cite as 361 Or 187 (2017) 193

automobile exception “requires officers to see [a] car being

driven when they first encounter it.” Andersen, 269 Or App

at 715. Because defendant’s Jeep had arrived at the WinCo

parking lot and had momentarily come to rest before the

officers first saw it, the court concluded that the Jeep was

not “moving” but was merely “movable.” Id. It followed, the

Court of Appeals reasoned, that Oregon’s automobile excep-

tion did not apply, and the officers’ warrantless search of the

Jeep violated Article I, section 9. Id.

Judge DeVore dissented. In his view, the majority

was “overcorrect[ing]” in response to State v. Kurokawa-

Lasciak, 351 Or 179, 263 P3d 336 (2011), which reversed

a Court of Appeals decision holding that the automobile

exception applied whenever a car is “operable.” Andersen,

269 Or App at 727 (DeVore, J., dissenting). Judge DeVore

reasoned that the mere fact that a parked car is “operable”

does not mean that it is mobile for the purposes of the auto-

mobile exception. Conversely, he reasoned, seeing a car in

motion is not the sine qua non of mobility. Id. at 729. Rather,

the dissent would have held that it is sufficient if the offi-

cers reasonably could infer based on their perceptions that

the Jeep had come to a momentary stop and would have

resumed moving had they not stopped it. Id. at 733. The

dissent concluded:

“To be precise, if a vehicle is still operating, with a driver

at the steering wheel and the engine running, and police

have objective evidence that the vehicle has moved recently

or will move imminently, then that vehicle ‘remains mobile’

[for the purposes of Oregon’s automobile exception].”

Id. at 733-34. We allowed the state’s petition for review to

consider that issue.4

4

The state did not argue in the Court of Appeals that the search in this case was

permissible under the search-incident-to-arrest exception to Article I, section 9.

See State v. Caraher, 293 Or 741, 759, 653 P2d 942 (1982) (holding that a search

incident to arrest under Article I, section 9, is not limited to “considerations of

the officer’s safety and [the] destruction of evidence” but also “permit[s] a search

when it is relevant to the crime for which [the] defendant is being arrested and

so long as it is reasonable in light of all the facts”). Because the state lost in the

Court of Appeals, that issue is not before us, and we express no opinion on it. See

State v. Ghim, 360 Or 425, 442, 381 P3d 789 (2016) (a party challenging a Court

of Appeals decision is ordinarily limited to the grounds that the party raised in

the Court of Appeals).

194 State v. Andersen

Thirty years ago, this court recognized an auto-

mobile exception to the warrant requirement of Article I,

section 9, “provided (1) that the automobile is mobile at the

time it is stopped by police or other governmental author-

ity, and (2) that probable cause exists for the search of the

vehicle.” Brown, 301 Or at 274. As this court explained in

Brown, the exigency that permits officers to conduct a war-

rantless search of a mobile vehicle arises from the fact that

“ ‘the vehicle can be quickly moved out of the locality or juris-

diction in which the warrant must be sought.’ ” Id. at 275

(quoting Carroll v. United States, 267 US 132, 153, 45 S Ct

280, 69 L Ed 2d 543 (1925)). The court was careful to make

clear, however, that the mere fact that a vehicle is opera-

ble does not mean that it is mobile for the purposes of the

Oregon automobile exception. See id. at 277 (distinguishing

the search of a parked car). Similarly, the court observed

in a companion case that, in recognizing an Oregon auto-

mobile exception, “we do not reach the issue of warrantless

searches of unoccupied, parked or immobile vehicles.” State

v. Bennett, 301 Or 299, 304, 721 P2d 1375 (1986).

Three months after this court decided Brown and

Bennett, it addressed the issue that it had noted but not

decided in those cases—whether the Oregon automobile

exception applies when officers engage in a warrantless

search of a parked car. Kock, 302 Or at 31-32. In Kock, the

defendant had parked his car at his workplace. Midway

through his shift, he took merchandise from the store where

he worked, put it in his parked car, and then returned to

work. Id. Given those facts, this court held that Oregon’s

automobile exception did not apply. It explained “that any

search of an automobile that was parked, immobile and

unoccupied at the time the police first encountered it in con-

nection with the investigation of a crime must [either] be

authorized by a warrant” or come within some other excep-

tion to the warrant requirement. Id. at 33. In placing that

limitation on the Oregon automobile exception, this court

noted that it sought to give officers “clear guidelines” for

their actions and that it “ch[o]se not to stretch the auto-

mobile exception [under Article I, section 9,] as far as the

Supreme Court of the United States has done in interpret-

ing the Fourth Amendment.” Id.

Cite as 361 Or 187 (2017) 195

Brown and Kock arose out of factual situations that

fell at either end of a spectrum. In Brown, officers stopped a

car as it drove on a highway based on reasonable suspicion

that the driver had committed a crime. By contrast, in Kock,

the defendant had parked his car at work during his shift.

The car was operable but it was not in transit; the defen-

dant’s car was, in the court’s words, “parked, immobile and

unoccupied at the time that the police first encountered it in

connection with the investigation of a crime.” Id.

Although Brown and Kock sought to provide guid-

ance to officers and citizens, neither case had occasion to

consider factual situations that fall somewhere between the

facts in those two cases. More recently, this court has con-

sidered two such cases. See Kurokawa-Lasciak, 351 Or at

181-85; State v. Meharry, 342 Or 173, 149 P3d 1155 (2006).

In Meharry, a local fire chief saw the defendant driving

erratically and reported his observations to a local police

officer, who came out of the police station. When he did, he

saw the defendant drive past him and park her van at a

convenience store before he could stop her on suspicion of

driving under the influence of intoxicants. The officer pulled

his car behind the defendant’s parked van, stopping it from

leaving, and searched her van for evidence of intoxicants

after developing probable cause that the defendant had been

driving under the influence.

In holding that the officer’s search came within

the automobile exception recognized in Brown, this court

observed initially that the officer “first encountered [the]

defendant’s van in connection with a crime when he saw

her drive by the police station. At that point, the van was

mobile.” See id. at 179. Additionally, the court rejected the

argument that the defendant’s car was not mobile when the

officer stopped it because the defendant had already parked

the car and gone into the convenience store. As the court

framed the question, the issue was whether stopping “an

otherwise mobile car from resuming its journey,” as the offi-

cer had done in Meharry, differed for the purposes of the

Oregon automobile exception from causing a moving car to

come to a stop, as the officer had done in Brown. Id. at 180.

As the court explained, the fact that the officer “did not have

196 State v. Andersen

time to effectuate a stop before [the] defendant pulled into

the [convenience store] parking lot but instead effectuated

a stop by preventing [the] defendant from continuing her

journey d[id] not make her van any less mobile, nor d[id]

it make it any less likely that her van—and any evidence

inside the van—could have been moved once [the officer]

relinquished control over it.” Id. at 180-81. The court accord-

ingly held that the automobile exception applied to a vehicle

that momentarily had come to rest.

In Kurokawa-Lasciak, the facts fell on the other side

of the line that the court had drawn in Brown and Kock.

In Kurokawa-Lasciak, the defendant was gambling at the

Seven Feathers Casino when casino employees began to

suspect that he was laundering money. 351 Or at 181. The

casino prohibited the defendant from engaging in further

cash transactions for 24 hours and posted his photograph in

its cashiers’ cages. Id. Early in the morning, the defendant

attempted to engage in a cash transaction and, in the course

of that attempt, reached into the cashier’s cage and grabbed

his photograph. Approximately 10 minutes later, he left the

casino, got into his van, and drove to a gas station. Fifteen

minutes after that, he returned to the casino, parked his

van, got out, and began walking back towards the casino.

Id. at 182. After he had gotten approximately 30 feet from

his van, an officer saw defendant walking towards the

casino and stopped him on suspicion of money laundering.

Id. Neither that officer nor another officer who arrived later

saw the defendant drive his van. Id. However, the officers

relied on the automobile exception to search the defendant’s

parked van, where they found evidence of illegal drug use

and approximately $48,000 in cash. Id. at 184-85.

In Kurokawa-Lasciak, this court adhered to the line

that it had drawn in Brown and Kock. It explained that, con-

trary to the Court of Appeals decision, this court had not

held in Meharry that Oregon’s automobile exception applies

whenever a car is “operable.” Id. at 192-93. Rather, the court

reiterated that “the vehicle that the police search must be

mobile at the time that the police encounter it in connection

with a crime.” Id. at 192. Applying that standard, the court

noted that the trial court had found that, “when [the officer]

Cite as 361 Or 187 (2017) 197

stopped [the] defendant, [the] defendant was approximately

30 feet from his van, which was parked, immobile, and unoc-

cupied, and that, when [the other officer] questioned [the]

defendant, [the] defendant was no longer near the van.” Id.

at 194. In reaching that conclusion, the court accepted the

state’s admission that “there was no evidence from which

the trial court could have found that [the] defendant’s van

was mobile when [either officer] encountered it in connection

with a crime.” Id.

In both Meharry and Kurokawa-Lasciak, this court

adhered to the line that it drew in Brown and Kock. We do so

here as well. That is, we reaffirm that the Oregon automo-

bile exception applies if the automobile is mobile when the

officers first encounter it in connection with the investiga-

tion of a crime. We also reaffirm that the exception does not

apply if the car is parked, unoccupied, and immobile when

officers encounter it. After explaining why those decisions

lead us to affirm the trial court’s judgment in this case, we

explain why we decline defendant’s invitation to overrule

our decisions.

In this case, defendant’s Jeep momentarily had

come to rest in the WinCo parking lot when the officers

stopped it from resuming its journey. The Court of Appeals

reasoned that, because the officers had not seen the Jeep

in motion before they stopped it, the Jeep was not mobile

when the officers first encountered it. The Court of Appeals’

reasoning is difficult to square with our decision in Meharry.

More specifically, the Court of Appeals took an unnecessar-

ily restrictive view of the kind of evidence that will establish

that a car is mobile when officers first encounter it.

As discussed above, Compton had told the informant

(and Officer McNair) that defendant was driving either a

Jeep or a red sedan to the WinCo parking lot to complete

a drug transaction. More importantly, McNair overheard

Compton give the informant a running account of the car’s

progress as it approached and entered the WinCo parking

lot. Compton told the informant and McNair over his cell

phone, “I’m here. I’m arriving,” and “We’re pulling in[to]”

the lot.

198 State v. Andersen

It is true, as the Court of Appeals noted, that

McNair did not see defendant’s Jeep pull into the WinCo

parking lot. And it may be that, in many cases, officers will

determine that a car is mobile when they first encounter it

by seeing the car in motion. However, Compton’s running

account of the car’s progress and arrival at the WinCo park-

ing lot provided McNair with as clear a confirmation of the

Jeep’s mobility as did the officer’s sighting of the defendant

driving her van erratically past the police station in Meharry

or the officer’s view of the car’s movement in Brown. Put

differently, the fact that McNair learned aurally what the

officer in Meharry learned visually—that the car that was

the subject of each officer’s investigation was mobile when

the officer first encountered it—provides no principled basis

for distinguishing this case from either Meharry or Brown.

One other issue deserves brief mention. Defendant’s

Jeep had come to rest before the officers stopped it. The trial

court, however, reasonably could have found that defendant

had stopped her car only momentarily—just long enough to

complete the drug transaction—before resuming her trip.

Defendant’s momentary pause in her trip is no different

from the defendant’s momentary stop at the convenience

store in Meharry before resuming her journey. Indeed, in

Meharry, the defendant had turned off the engine, stepped

out of her van, and stepped into the convenience store. In

this case, defendant remained in the driver’s seat of her Jeep

with the engine running while Compton stepped out of the

Jeep to complete the drug transaction. If the defendant’s van

in Meharry remained mobile for the purposes of Oregon’s

automobile exception, then it is difficult to see why defen-

dant’s Jeep was not also mobile. When the officers stopped

her Jeep, it was not “parked, immobile, and unoccupied” as

the defendants’ cars were in Kock and Kurokawa-Lasciak.

Because we perceive no meaningful distinction

between this case and Meharry, we uphold the trial court’s

ruling that defendant’s Jeep was mobile when the officers

first encountered it in connection with their investigation

of the drug sale. Because defendant does not dispute that

the officers also had probable cause to believe that her Jeep

contained methamphetamine, it follows that the trial court

correctly held that the officers’ warrantless search of the

Cite as 361 Or 187 (2017) 199

Jeep and its contents came within the automobile exception

to Article I, section 9. See Brown, 301 Or at 274.

We address one final issue. Defendant argues that,

if we conclude that the search in this case comes within the

automobile exception, as our cases have described it, then

we should overrule those cases. We have considered the var-

ious grounds that defendant has asserted for overruling our

automobile exception cases, and we write to address one of

them. This court explained in Brown that the “[m]obility

of the vehicle at the time of the stop, by itself, creates the

exigency.” Id. at 276. The court also recognized, however,

that changes in technology could eliminate the exigency

that underlies the automobile exception. Id. at 278 n 6.

Brown accordingly held out the possibility that technologi-

cal and other changes might permit warrants to be obtained

“within minutes,” with the result that the automobile excep-

tion might no longer be justified. Id. Defendant argues that

we should overrule Brown because warrants can now be

obtained within minutes.

We question the premises on which defendant’s

argument rests. As an initial matter, the length of time that

it takes to write a warrant application and obtain a warrant

is a factual issue for the trial court, and not all warrants

will take the same amount of time. Depending on the com-

plexity of the circumstances that give rise to probable cause

and the significance of the case, some warrants will require

a longer time to prepare and obtain than others. In this

case, the only evidence in the record is that it would have

taken hours, not minutes, to prepare a warrant application

and obtain a warrant. Officer McNair testified without con-

tradiction that, “[j]ust [to get a warrant] for a cell phone

it takes me several hours to write a search warrant, and

go get that approved by a DA.” The officer also explained

that, if the district attorney had suggestions or corrections,

it could take another hour to add those corrections to the

warrant application. Not only did the trial court implicitly

credit the officer’s testimony, but defendant identifies no con-

trary evidence in the record.

Beyond that, defendant’s argument appears to

assume that the only impediment to obtaining a warrant

200 State v. Andersen

quickly is the time that it takes to transmit a completed

warrant application to a magistrate and have the magis-

trate review and act on the application. While technology

has made it easier to prepare and transmit completed appli-

cations, the testimony in this case illustrates what our cases

have recognized. An officer must prepare the warrant appli-

cation before submitting it to a magistrate for approval,

and the process of preparing a warrant application can

sometimes entail a substantial amount of time. Affidavits

submitted in support of a warrant are subject to technical

requirements that are intended to protect citizens’ privacy.

When the affiant lacks personal knowledge of the facts that

give rise to probable cause and relies instead on information

from other persons, the affidavit must demonstrate the rea-

sons why the affiant finds the informant credible or reliable,

and the affidavit must be written with sufficient specific-

ity to ensure that the resulting warrant does not authorize

searches and seizures of people or places for which probable

cause has not been established.5

Ultimately, not only must search warrant applica-

tions be sufficient to satisfy issuing magistrates, but they

also must withstand scrutiny in later motions to suppress if

evidence discovered while executing the warrant leads to a

criminal prosecution. As in this case, district attorneys may

review warrant applications drafted by officers who may be

experienced in criminal matters but untrained in the law.

Without that review, warrant applications might fail to com-

ply with the technical specifications our cases have required.

Those human efforts can sometimes entail substantial expen-

ditures of time despite technological advances.

We do not foreclose the possibility that Brown held

out—that changes in technology and communication could

5

For example, if probable cause is based on statements from one or more

informants, the application must establish the basis of each informant’s knowl-

edge and the credibility or reliability of that informant. See State v. Alvarez, 308

Or 143, 149, 776 P2d 1283 (1989) (describing relationship between two unnamed

informants and why the affidavit provided sufficient facts to establish that

each informant was credible or reliable). Moreover, the places and people to be

searched must be identified with sufficient particularity. See State v. Reid, 319 Or

65, 71, 872 P2d 416 (1994) (authorization to search “persons present” at residence

too broad because that authorization could include persons who had no connec-

tion to illegal activity); State v. Ingram, 313 Or 139, 143, 145, 831 P2d 674 (1992)

(warrant authorizing officers to search “all vehicles determined to be associated

with the occupants of said premises” overbroad).

Cite as 361 Or 187 (2017) 201

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 other-

wise); cf. Missouri v. McNeely, 569 US ___, 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).

Ordinarily, the speed with which a warrant reason-

ably could be obtained is, in the first instance, a factual ques-

tion for the trial court. Cf. State v. Wagner, 305 Or 115, 153-

54, 752 P2d 1136 (1988) (declining to rely for the first time

on appeal on reports and facts found in other cases), vac’d

on other grounds sub nom Wagner v. Oregon, 492 US 914,

109 S Ct 3235, 106 L Ed 2d 583 (1989). As noted above, the

only evidence in this record, which the trial court implicitly

credited, was that it would have taken hours, not minutes,

to obtain a warrant. Given that record and the trial court’s

resolution of defendant’s motion, we decline to overrule the

automobile exception in all cases, as defendant urges, or

to conclude that it is inapplicable in this case. Rather, we

affirm the trial court’s conclusion that the automobile excep-

tion applied here.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

WALTERS, J., concurring.

I write to emphasize an important point that the

majority makes and with which I agree: The Oregon auto-

mobile exception permits a showing, in an individual case,

“that a warrant could have been drafted and obtained with

sufficient speed to obviate the exigency.” State v. Andersen,

361 Or 187, 201, ___ P3d ___. Thus, although the majority

does not overrule State v. Brown, 301 Or 268, 721 P2d 1357

202 State v. Andersen

(1986), the majority recognizes that the exception created in

that case is and must be aligned with other Oregon exigency

exceptions to the warrant requirement.

This court has long held that Article I, section 9,

does not require a warrant when exigent circumstances

exist; that exigent circumstances exist when the facts

demonstrate that the police must “act swiftly to prevent

danger to life or serious damage to property, or to forestall

a suspect’s escape or the destruction of evidence”; and that

whether exigent circumstances exist must be determined

based on the particular facts presented, and not on a cat-

egorical basis or pursuant to a per se rule. State v. Snow,

337 Or 219, 223-25, 94 P3d 872 (2004) (internal quotation

marks omitted) (stating rule and finding that facts demon-

strated exigent circumstances); State v. Stevens, 311 Or 119,

126-30, 806 P2d 92 (1991) (same); State v. Bridewell, 306 Or

231, 235-36, 759 P2d 1054 (1988) (facts did not demonstrate

exigent circumstances); State v. Jimenez, 357 Or 417, 426,

353 P3d 1227 (2015) (refusing to adopt per se rule recogniz-

ing exigent circumstances in all instances); State v. Cocke,

334 Or 1, 9, 45 P3d 109 (2002) (declining to recognize per

se exception to warrant requirement for “protective sweep,”

but permitting use where particular circumstances justify

it); State v. Guggenmos, 350 Or 243, 258-59, 253 P3d 1042

(2011) (reviewing totality of the circumstances to deter-

mine whether officers’ “sweep” justified by officer safety con-

cerns); State v. Machuca, 347 Or 644, 656-57, 227 P3d 729

(2010) (refusing to recognize per se exigency rule and pro-

hibiting warrantless searches and seizures to obtain blood

alcohol evidence if facts of particular case establish that “ ‘a

warrant [could have been] obtained without sacrificing the

evidence’ ” (quoting State v. Milligan, 304 Or 659, 665-66,

748 P2d 130 (1988))); see also State v. Moore, 354 Or 493,

497 n 5, 318 P3d 1133 (2013), adh’d to as modified on recons,

354 Or 835, 322 P3d 486 (2014) (noting that Machuca is

consistent with federal constitutional law, which rejects a

per se exigency rule for alcohol dissipation (citing Missouri

v. McNeely, 569 US ___, 133 S Ct 1552, 185 L Ed 2d 696

(2013))).

In permitting that same case-by-case analysis

when the state relies on the automobile exception to justify

Cite as 361 Or 187 (2017) 203

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 meet-

ing the legitimate interests of law enforcement.’ ” McNeely,

133 S Ct at 1563 (quoting State v. Rodriguez, 570 Utah Adv

Rep 55, 156 P3d 771, 779 (2007)).

When this court created the Oregon automobile

exception in 1986, it expected that technological advances

would occur and that this state would pursue progressive

approaches to warrant acquisition. State v. Brown, 301 Or

at 278 n 6. Those advances have occurred, and state law

permits police departments to make use of them. ORS

133.545(8) authorizes the electronic transmission of pro-

posed warrants and affidavits to a judge, as well as the elec-

tronic transmission of the signed warrant back to the person

who made the application. In Multnomah County, warrant

affidavits can be submitted “in person, by telephone or by

email,” City of Portland Police Bureau Directives Manual,

ch 652.00, and, in State v. Machuca, 231 Or App 232, 245,

218 P3d 145 (2009), an officer “conceded that he could have

obtained a telephonic search warrant in one hour.”

Evidence from other jurisdictions suggests that

police officers should be able to obtain warrants in less than

one hour. In 1973, before the introduction of the first commer-

cially available cell phone,1 the San Diego District Attorney’s

Office estimated that 95 percent of warrants were obtained

in less than forty-five minutes. Comment, Oral Search

Warrants: A New Standard of Warrant Availability, 21 UCLA

L Rev 691, 694 n 23 (1973); see also People v. Blackwell,

195 Cal Rptr 298, 302 n 2 (Cal Ct App 1983) (citing same

1

See Zachary M. Seward, The First Mobile Phone Call Was Made 40 Years

Ago Today, The Atlantic, (Apr 3, 2013), available at http://www.theatlantic.com/

technology/archive/2013/04/the-first-mobile-phone-call-was-made-40-years-

ago-today/274611/ (accessed Mar 7, 2017).

204 State v. Andersen

estimate). In United States v. Baker, 520 F Supp 1080, 1084

(SD Iowa 1981), the district court concluded that the entire

process of obtaining a warrant by telephone would have taken

20 to 30 minutes. And, in 2015, the New Jersey Supreme

Court cited to a pilot program that examined 42 telephonic

automobile search warrant applications and found that

“[t]he average request for an automobile warrant took

approximately 59 minutes, from the inception of the call to

its completion.” State v. Witt, 223 NJ 409, 436, 126 A3d 850,

865-66 (2015).

However, the fact that that technology exists is just

one factor in the exigency analysis that this case permits.

If an officer testifies that, in the particular circumstances

presented, the time it reasonably would have taken to get a

warrant would have resulted in the destruction of evidence,

then that testimony may demonstrate that a warrantless

search was justified. See, e.g., Snow, 337 Or at 223 (holding

exigency exists when situation requires police to act swiftly

to prevent destruction of evidence). In this case, the officer

who conducted the search testified at trial that it would have

taken him three hours to write a warrant application and

two hours to get authorization from an on-call district attor-

ney to seek judicial approval, after which he would have had

to go to a judge’s residence to get the warrant signed. Those

are facts from which the trial court could have found an exi-

gency and that could have served as the basis for denial of

defendant’s motion to suppress.2 Although the trial court did

not expressly cite that evidence as a basis for its ruling, the

delay to which the officer testified could support it. I there-

fore concur with the result that the majority reaches and

would affirm the trial court’s judgment.

2

I do not mean to imply that that is the only conclusion that a trial court

could have reached. The delay that gives rise to an exigency must be reason-

able. See Stevens, 311 Or at 130 (noting that case was not one in which delay

was unreasonable). Washington County may not provide for telephonic or other

electronic search warrants, see State v. Sullivan, 265 Or App 62, 65, 333 P3d

1201 (2014) (officer testified that telephone warrants not available in Washington

County), and, in a future case, a trial court could find that an officer’s failure

to use statutorily-authorized and widely-available technology was unreasonable

and precluded a finding of exigent circumstances.