defendant attempted to elude by driving at unlawful speeds, making at least three turns in rapid succession, running a stop sign after the stop was initiated, and then fleeing the vehicle
How later courts described this case
- defendant attempted to elude by driving at unlawful speeds, making at least three turns in rapid succession, running a stop sign after the stop was initiated, and then fleeing the vehicle
- describing such cases as involving “constructive mobility”
Written by the judges who cited it.
The opinion
WOLLHEIM, J.,
dissenting.
A police officer is chasing a car for speeding. The officer loses the car. When the officer finds the car, it is parked in a parking lot. Neither the car’s driver nor the car’s keys are present. Based on those facts, the majority concludes that the officer’s warrantless search of the automobile was permissible under the automobile exception to the warrant requirement because the car was mobile. I disagree with the majority’s application of the automobile exception to the warrant requirement. I, therefore, respectfully dissent.
“The rationale underlying the automobile exception is to prevent evidence of criminal activity from being quickly moved out of the locality in which the warrant must be sought.” State v. Burr, 136 Or App 140, 149 , 901 P2d 873 , rev den 322 Or 360 (1995) (citing State v. Brown, 301 Or 268, 275 , 721 P2d 873 (1986)). The exigency that allows police to circumvent the warrant requirement is the mobility of the vehicle at the time of the stop. Brown, 301 Or at 276 . The mobility principle has justified warrantless searches subsequent to routine traffic stops, as was the case in Brown, as well as in cases where, although the vehicle is never seen moving, the car is constructively mobile when encountered by the police. See State v. Cromwell, 109 Or App 654, 659 , 820 P2d 888 (1991) (car was sufficiently mobile to justify a warrantless search where the defendant was in his truck and the “fact that defendant had not yet turned the key was merely fortuitous”); Burr, 136 Or App at 149 (in light of rationale for the rule, a vehicle is “occupied and operable” where defendants are standing immediately outside truck parked along a public highway when police encounter it).
As the majority admits, this case does not present us with a routine traffic stop. Nonetheless, the majority holds that a “stop” occurred for purposes of Article I, section 9, of *237 the Oregon Constitution, at some time before the actual, physical stopping of the car and that thereafter the police could circumvent the warrant requirement once the vehicle was found. I disagree with the majority’s conclusion that the search was lawful under the automobile exception.
Considering the rationale for the automobile exception, this case is more analogous to State v. Vaughn, 92 Or App 73 , 757 P2d 441 , rev den 306 Or 661 (1988). In Vaughn, the police suspected that the defendant was transporting narcotics and were following the defendant in his vehicle when the defendant pulled off the highway and stopped at a residence. The officers watched the residence for 25 minutes before they approached and ordered all of the occupants, including the defendant, out of the house, and then searched the defendant’s vehicle. We held that the automobile exception did not apply because, “[although the vehicle was mobile when the police first saw it, it was not when they first confronted defendant.” Id. at 77.
In the present case, even though the officer may have initiated a “stop” in a constitutional sense when he activated his overhead lights, neither defendant nor anyone else capable of operating the car was anywhere to be seen when the officer searched the vehicle.
I respectfully dissent.