State v. Hartley

WARREN, J.,

specially concurring.

Although I agree with the majority that the search of the trunk was lawful, I disagree with the rationale of both the majority and the dissent. I disagree with the majority’s holding that the search of the trunk is justified as incident to his arrest. The majority relies on our version of State v. Kosta, 75 *727 Or App 713 , 708 P2d 365 (1985), aff’d on other grounds, 304 Or 549 , 748 P2d 72 (1987), for the proposition that, under that exception, the trunk of a vehicle may be searched. Although we did say in Kosta that the search of the trunk was proper incident to the defendant’s arrest, the police had obtained a warrant to search for the package and had executed that warrant before the defendant put the package in his trunk. We held that there was no purpose in “judicially testing the officers’ probable cause to seize the package after they had obtained a warrant to search it, simply because defendant had put the package in a larger container — his car trunk.” 75 Or App at 720 . Here, the police did not have a search warrant for the gun and, therefore, the justification for expanding the search to the trunk of the vehicle did not exist.

Moreover, as the dissent points out, the Supreme Court, on review, did not accept our rationale. Rather, it held that the search was valid under the “automobile exception.” See State v. Brown, 301 Or 268 , 721 P2d 1357 (1986). I agree with the dissent that neither State v. Kosta, supra, nor any other Oregon case, justifies this search as incident to arrest.

I also agree with the dissent that the search of the trunk of defendant’s vehicle could be understood not to fall within the “bright line” mobility test that the Supreme Court has defined for the application of the automobile exception. In State v. Brown, supra, 301 Or at 276 , the court held that the vehicle must be “mobile at the time it is lawfully stopped.” It further defined the concept of mobility in State v. Kock, 302 Or 29, 33 , 725 P2d 1285 (1986), in which it held that the search of a “parked, immobile and unoccupied” vehicle does not fall within the exception and that the criteria in Brown sets the “outer limit” for it. The vehicle in this case was parked and not moving when the police approached it. However, it certainly was, as far as the officers could tell, mobile in the sense that it was capable of being moved and would have been moved but for the fortuitous circumstance that defendant had not yet turned the key. The Supreme Court has not yet told us what it means when it says the automobile exception applies only to “mobile” vehicles. If, as the dissent assumes, it must actually be moving, no matter how slightly, then the application of the court’s mobility requirement to the facts in this case illustrates that that test is illogical and demonstrates that the court should revisit the issue.

*728 The automobile exception is a “per se exigency rule,” based on a vehicle’s mobility at the time of the stop. State v. Brown, supra, 301 Or at 276-77 . The purpose of the rule is to prevent the removal of evidence before a search warrant can be obtained. Undoubtedly, a per se exigency exists when an automobile is brought to a stop by the police and the driver remains in it. See State v. Brown, supra. At the other extreme, it is also readily apparent that, when the driver of a parked and immobile vehicle is not near the vehicle, or is near it but does not have keys or immediate access to the ignition, there is no per se exigency. See State v. Kock, supra. The facts in this case more closely resemble those in Brown . Although the car was “immobile” in the sense that it was not moving, defendant was opening the front door of the vehicle, and it appeared that, unless he was stopped, he would immediately drive away. There is no sound basis for drawing a bright line distinction between a vehicle that is actually moving, no matter how slightly, and one that could be made readily capable of movement by the mere turning of a key in the ignition by a driver in a position to do so. Such a distinction ignores the fact that the exigency supporting an immediate search is identical in either case.

If, indeed, a bright line should be drawn, then it should be drawn consistently with the purpose behind the per se exigency rule. A defendant who is within reach of the keys and the ignition of a vehicle creates the same justification for an immediate search as a defendant who is coming to a stop as he parks his vehicle or one who is starting his vehicle as he leaves a curb. In fact, it is not really significant in a practical sense whether or not the vehicle is moving or stopped. What is significant in justifying an immediate search is whether the vehicle is likely to be moved from where it is stopped. Therefore, I would hold that the warrantless search of the trunk was justified under the automobile exception.

Rossman and Riggs, JJ., join in this opinion as well as in the opinion of the majority.