# State v. Meharry

> Oregon Supreme Court · December 21, 2006 · 342 Or. 173

URL: https://www.frixlaw.com/law-library/cases/9503330

## Case

- **Full name:** STATE OF OREGON, Petitioner on Review, v. KATHY LOUISE MEHARRY, Respondent on Review
- **Court:** Oregon Supreme Court
- **Decided:** December 21, 2006
- **Citations:** 342 Or. 173; 149 P.3d 1155; 2006 Ore. LEXIS 1348
- **Precedential status:** Published
- **Opinion:** Concurrence by Durham
- **Judges:** De Muniz, Carson, Gillette, Durham, Riggs, Balmer, Kistler
- **Cited by:** 40 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503330

## How later opinions describe it (automated extraction)

- explaining that warrantless search or seizure is reasonable—and therefore constitutional—under the exigent circumstances exception to the warrant requirement, if it is “supported by probable cause and conducted under exigent circumstances,” e.g., circumstances in which “immedi…
- explaining that, although the defendant had been arrested and her van was blocked by a police vehicle, the van was mobile because the officer “had not impounded the van, and there was no physical or mechanical impediment to the van’s being driven away once [the officer] relinq…
- noting the “exigent cir- cumstances” exception “allows the police to conduct a search without a warrant if the search is both supported by probable cause and conducted under exigent circumstances”

## Opinion text

DURHAM, J.,
concurring.
I join the majority’s decision. Given this court’s opinion in State v. Brown, 301 Or 268 , 721 P2d 1357 (1986), the “mobility” of defendant’s van created an exigent circumstance that supported the officer’s decision to search it without a warrant. The presence in the van of an unsupervised minor might have contributed to the exigency, or perhaps created another exigency, but the state did not argue those points below.
The proposition that Article I, section 9, of the Oregon Constitution allows the police to search every stopped vehicle in Oregon without a warrant based on a flexible criterion like “mobility’ remains controversial. The Brown majority adopted that proposition to lend certainty to the decision-making process of law enforcement officers. That is, of course, a worthwhile goal. But, in my view, the Brown court’s decision oversold the notion that it would lead to certainty. Whether a vehicle is “mobile,” or sufficiently mobile under the particular facts to permit a warrantless search, can change with every stop.
The decision in Brown also understated the constitutional policy requiring a judicial examination of the particular facts to determine whether a particular search is reasonable. The one-size-fits-all rule of Brown for searching a *182 citizen’s property is difficult to harmonize with the state constitutional prohibition on searches that are not reasonable under all the particular circumstances.
Defendant asserts no argument that this court erred in deciding Brown . It is appropriate, therefore, to wait for a different case before taking up the questions that surround the Brown decision.
Accordingly, I concur.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503330. Public record. Not legal advice.