the issue whether the search violated the state constitution having been raised, the fact that the state argued on appeal that the search was justified as “incidental to arrest” rather than as a “mobile automobile exception” was irrelevant, and the state and defendant were entitled to argue any justification or lack of it for the search
How later courts described this case
- the issue whether the search violated the state constitution having been raised, the fact that the state argued on appeal that the search was justified as “incidental to arrest” rather than as a “mobile automobile exception” was irrelevant, and the state and defendant were entitled to argue any justification or lack of it for the search
- where officers smelled marijuana from the time the car door was first opened, “Brown would uphold the search as constitutionally valid because a magistrate could have authorized the search of the entire vehicle and its contents”
- “[W]e do not reach the issue of warrant-less searches of unoccupied, parked or immobile vehicles.”
Written by the judges who cited it.
The opinion
PETERSON, C. J.,
concurring.
How many angels can you get on the head of a pin? Looking at the last generation of search and seizure decisions of this and other courts, one wonders if there ever will be certainty in the law of search and seizure.
Shortly before I became a judge, this court decided four search cases: State v. Groda, 285 Or 321 , 591 P2d 1354 (1979) (officer could not search briefcase removed from automobile trunk); State v. Greene, 285 Or 337 , 591 P2d 1362 (1979) (search of automobile and trunk upheld because exigent circumstances existed); State v. Fondren, 285 Or 361 , 591 P2d 1374 (1979) (absent exigent circumstances, warrant needed to search parked car believed to contain marijuana); and State v. Downes, 285 Or 369 , 591 P2d 1352 (1979) (officer cannot search a closed unlocked trunk found in converted bus absent exigent circumstances). In those opinions we relied upon decisions of the Supreme Court of the United States. Some of those federal decisions since have been overruled.
I wondered in 1979 whether there ever would be order in this area of the law. Events since 1979 convince me that there is no more order and there is less certainty today than then.
Certainty is near the top rung in the hierarchy of law’s social values. 1 The law must accommodate changed *306 societal conditions. And it does. But in the field of search and seizure there has been little certainty; rather, increased uncertainty with little change in societal conditions.
The end result of the proliferation of search and seizure decisions has been a body of confusing state and federal decisions, the meaning of which is alike unclear to legal scholars, police officers and the public. The Supreme Court of the United States is as guilty as we. Some of its rules have turned out to have limited life expectancy, as noted in the discussions of recent Supreme Court decisions in the other opinions in this case and the opinions in State v. Brown, 301 Or 268 , 721 P2d 1357 (1986).
In deciding cases involving stopped automobiles, a variety of defensible rules might be considered, including these (simplified for purpose of illustration):
1. No search of an automobile or its contents without a warrant.
2. “Search” of an automobile without a warrant is limited to what is in plain view.
3. The automobile can be searched without a warrant if exigent circumstances exist and there is probable cause to believe that the automobile contains contraband or evidence of crime.
4. Only the passenger compartment can be searched without a warrant. A warrant is needed to search the trunk.
5. The interior and trunk can be searched without a warrant, but a warrant must be obtained to search closed containers.
6. The interior, trunk and closed containers contained therein can be searched if there is probable cause to believe that contraband or evidence of crime is contained therein.
Notwithstanding the mile upon square mile of trees sacrificed to print search and seizure opinions since 68 bottles of gin and whiskey were discovered in Mr. Carroll’s seat cushion in 1921, the conditions concerning the use of automobiles have not changed that much since Carroll v. United *307 States, 267 US 132 , 45 S Ct 280 , 69 L Ed 543 , was decided in 1925. It was and is good law.
Justice Stevens, writing for the majority in United States v. Ross, 456 US 798, 821 , 102 S Ct 2157, 2171 , 72 L Ed 2d 572, 591 (1982), referred to “nice distinctions between closets, drawers, and containers, in the case of a home, or between glove compartments, upholstered seats, trunks and wrapped packages, in the case of a vehicle.” He then referred to these “practical considerations”:
“The practical considerations that justify a warrantless search of an automobile continue to apply until the entire search of the automobile and its contents has been completed. Arguably, the entire vehicle itself (including its upholstery) could be searched without a warrant, with all wrapped articles and containers found during that search then taken to a magistrate. But prohibiting police from opening immediately a container in which the object of the search is most likely to be found and instead forcing them first to comb the entire vehicle would actually exacerbate the intrusion on privacy interests. Moreover, until the container itself was opened the police could never be certain that the contraband was not secreted in a yet undiscovered portion of the vehicle; thus in every case in which a container was found, the vehicle would need to be secured while a warrant was obtained. * * *” 456 US at 822 n 28, 102 S Ct at 2171 n 28, 72 L Ed 2d at 591 -92 n 28.
Justice Blackmun, concurring in Ross , stated:
“My dissents in prior cases have indicated my continuing dissatisfaction and discomfort with the Court’s vacillation in what is rightly described as ‘this troubled area.’ [Citations omitted.]
“I adhere to the views expressed in those dissents. It is important, however, not only for the Court as an institution, but also for law enforcement officials and defendants, that the applicable legal rules be clearly established. Justice Stevens’ opinion for the Court now accomplishes much in this respect, and it should clarify a good bit of the confusion that has existed. In order to have an authoritative ruling, I join the Court’s opinion and judgment.” 456 US at 825 , 102 S Ct at 2173 , 72 L Ed 2d at 594 .
A basic constitutional rule permeates federal and Oregon search and seizure law: If it is possible to get a warrant, get a warrant. The dissents in this case and in Brown *308 argue that the majority decisions here and in Brown repeal that rule, insofar as automobiles are concerned. 2 1 confess that the result in this case troubles me. Even so, I join the majority because the rule is clear, it is workable and it is consistent with the federal rule.
I aim at putting the question to rest, to the end that everyone will know and understand what is the rule. I therefore join in the opinion of the majority.
“* * * In time there comes a logically sound and practically workable principle derived from judicial experience of many causes. In the meantime there has been sacrifice of particular litigants and sacrifice of certainty and order in the law, as decision has fluctuated between regard to the one or to the other of the two sides of a judge’s duty.” Pound, The Theory of Judicial Decision, 36 Harv L Rev 940, 943 (1923).
I do not suggest that certainty exists at the expense of fairness. This is not the occasion for an extended discussion of the role of certainty. On the need for certainty, see Jones, An Invitation to Jurisprudence, 74 Colum L Rev 1023,1026-27 (1974).
Justice Marshall, dissenting in United States v. Ross, 456 US 798, 827 , 102 S Ct 2157, 2174 , 72 L Ed 2d 572, 595 (1982), stated:
“The majority today not only repeals all realistic limits on warrantless automobile searches, it repeals the Fourth Amendment warrant requirement itself. * * *”