Petition — Oregon v. Fondren

78-1760

=

In the Supreme Court

of the Gaited States

OCTOBER TERM, 1978

No. _

STATE OF OREGON,

Petitioner,

GARY LEE FONDREN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

JAMES A. REDDEN

Attorney General of Oregon

WALTER L. BARRIE

Solicitor General

THOMAS H. DENNEY

Assistant Attorney General

JAMES M. BROWN

Assistant Attorney General

State Office Building

Salem, Oregon 97310

Phone: (503) 378-4402

Counsei for Petitioner

TABLE OF CONTENTS

Page

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ai shes eieictedlnienateseneeonnneetenes 2

a osc asscrinsbnnounanueneceecenses 2

Constitutional Provisions Involved ................::cssssssseeeeeeseeeees oe

as ass naetvestnnsctsitcicaeinticcececess 3

Reasons for Granting the Writ ...................:ccsssssssssessseeseeeeees 8

EESTI SRST SIRS ESE? UNEP oa ee 10

Appendix A: Opinion of Oregon Supreme Court .................... 13

Appendix B: Opinion of Oregon Court of Appeals ................. 21

Appendix C: Order of Circuit Court, Deschutes County ........ 23

Appendix D: Opinion of Circuit Court, Deschutes County .... 25

Appendix E: Motion to Suppress Evidence ..................s0c0e00 29

TABLE OF AUTHORITIES

Cases

Page

Cardwell v. Lewis, 417 US 583 (1974) .....ssssssssssssescsssnesessnneeeeen 8, 9

Chambers v. Maroney, 399 US 42 (1970) .........:ccsscsseesseeeseeees 8,9

Commonwealth v. Holzer, 480 Pa 93, 389 A2d 101 (1978) ... 9, 10

State v. Fondren, 30 Or App 1045, 568 P2d 721 (1977) ............ 7

State v. Fondren, 285 Or 361, 591 P2d 1374 (1979) ..........:000+ 1

United States v. Abascal, 564 F2d 821 (9th Cir 1977), cert.

denied sub nom. Abascal v. United States, 435 US 953

CIPI cvosisrinnsiobicsindisnininsdedemncinsbsnig sienna seannisiein slbiebidieddabingiasapmataiplintsiilbhiis 9

United States v. Ramirez, 513 F2d 72 (5th Cir 1975), cert.

denied sub nom. Ramirez v. United States, 423 US 912

CRIN cscs belshistih 5 dn cadlecahachiestuecuntinniedonds Adi enmei ade dauncatcastéies 9

Constitutional and Statutory Provisions

United States Constitution, Amendment [V ...........c.cccesese0e00: 2.3

United States Constitution, Amendment XIV ..................:0000 3

SOTERA BOO wsrsisincaserehaccscssvtuliahonsntbicibadaisesteiblowiineniamaaanans 2

CRETE, PCS extciecictistss clarachttintscominuetalens <ahilidipdeeemsaaabaadas 3

il

In the Supreme Court

of the United States

October Term, 1978

No.

STATE OF OREGON,

Petitioner,

GARY LEE FONDREN,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF OREGON

The petitioner, State of Oregon, respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the Supreme Court of the State of

Oregon entered in this proceeding on February 27,

1979.

OPINIONS BELOW

The opinion of the Court of Appeals of the State of

Oregon reversing the order suppressing evidence en-

tered by the Circuit Court of the State of Oregon for

Deschutes County and remanding for trial, Appendix

B hereto, is reported at 30 Or App 1045, 568 P2d 721

(1977). The opinion of the Supreme Court of the State

of Oregon reversing the decision of the court of

appeals, Appendix A hereto, is reported at 285 Or 361,

591 P2d 1374 (1979).

2

JURISDICTION

The decision of the Supreme Court of the State of

Oregon, Appendix A hereto, was filed on February 27,

1979, and this petition for a writ of certiorari was filed

within 90 days of that date, pursuant to Rule 22(1).

This Court’s jurisdiction is invoked under 28 USC §

1257(3).

QUESTIONS PRESENTED

1. Does the Fourth Amendment, as applied to the

States by the Fourteenth Amendment, prohibit, in the

absence of further “exigent circumstances,” the war-

rantless seizure of an automobile from an employee

parking lot by a police officer who has probable cause

to believe that contraband drugs are contained therein

and who proposes to obtain a search warrant to search

for them, when the operator of the automobile has

been informed of the officer’s intentions and is not in

custody?

2. Is the warraniless seizure of an automobile

under the circumstances described in question (1)

rendered Constitutionally unreasonable by the offi-

cer’s failure to obtain a search warrant when he first

acquired probable cause to believe that the automobile

contained contraband drugs?

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment IV:

“The right of the people to be secure in their

persons, houses, papers, and effects, against un-

3

reasonable searches and seizures, shall not be

violated. . . .”

United States Constitution, Amendment XIV, § 1:

“, . . [Nbr shall any State deprive any person

“i life, liberty or property, without due process of

Wg tare

STATEMENT OF THE CASE

A. Generai Background

Fondren was indicted by the Grand Jury for Des-

chutes County, Oregon, upon two counts of Criminal

Activity in Drugs (possession of marijuana, ORS

167.207, and possession of peyote, ORS 167.207). Prior

to trial, he filed a “Motion to Suppress” evidence

(Appendix E, hereto) seized from his car, including

marijuana and peyote. Following hearing, the trial

court granted the motic . (See Appendix C, hereto).

The state appealed to the Oregon Court of Appeals,

which reversed (see Appendix B hereto). The Oregon

Supreme Court granted review and reversed the deci-

sion of the Court of Appeals, affirming the decision of

the trial court.

B. Facts Material to the Questions Presented

During the early evening hours of July 22, 1976,

between 6:30 p.m. and 7:30 p.m., Bend, Oregon city

police officer Meier received a telephone call at home

from a confidential reliable informant. (Tr. 2-3, 12).

Meier was told that the informant had observed

4

within the past 24 hours a quantity of marijuana in

the trunk of an automobile driven or owned by Gary

Fondren, the defendant herein. (Tr. 2-3). After chang-

ing clothes, Meier dreve to the Brooks-Willamette

particle board manufacturing plant, the location given

by informant, and located the described car in the

plain sight in a parking area that appeared to be a

private lot for the employees at Brooks-Willamette.

(Tr. 4-5, 13). Thereafter, Meier went to the police

station where he ran a registration check on the car,

checked for arrest records and background informa-

tion on Gary Fondren, talked by telephone with a

deputy district attorney, made a second trip to check

on the car with another police officer, discussed the

case with the police department’s shift commander

and made arrangements with the sheriff's department

for assistance because the car was located outside of

the city limits. (Tr. 5-6, 14, 15). Meier considered

writing or preparing an affidavit for search warrant

but because it was then 10 to 10:30 p.m. in the evening

and he had learned that the work shift at Brooks-

Willamette ended at midnight, he stopped work on the

application for search warrant and returned to the

plant with the sheriffs deputy. (Tr. 6). At the plant

Meier contacted defendant, identified himself, asked

him to step outside, told him that he had information

that marijuana was hidden in the trunk of his car,

5

advised him of his constitutional rights and asked for

consent to search the car which Fondren declined to

give. (Tr. 7). Meier then told Fondren that he intended

to seize and hold the car until he could make applica-

tion for a search warrant —- Fondren rejoined that no

one would touch his car and that he wanted to consult

his attorney. (Tr. 7). Fondren went back inside and

Meier summoned a tow truck. When preparations for

removal of the car were completed, Meier went back

into the plant to look for Fondren and found that he

had left. The car was then towed to the police garage

at the Bend Police Department. (Tr. 7-8). The car was

searched the following day under a search warrant.

(Tr. 8). (The validity of the search warrant has not

been an issue in proceedings below).

Following hearing on defendant’s motion to sup-

press evidence, the trial court filed its “Memorandum

Opinion” (Appendix D hereto) allowing the motion.

C. Manner in Which the Federal Question Was

Raised

The Federal question presented herein was origi-

nally raised by defendant Fondren by his timely

“Motion to Suppress” evidence:

“This motion is based upon the ground that the

warrantless seizure of said automobile was un-

reasonable and hence a violation of defendant’s

rights under the Fourth and Fourteenth Amend-

ments of the United States Constitution. The

6

informant upon which police officers relied to

establish probable cause for seizing the automobile

as well as for obtaining a search warrant was not

reliable. Defendant did not show the contents of

the trunk of said automobile to anyone on July 21,

or 22, 1976. There was therefore no probable cause

for seizure of the automobile. Furthermore, no

exigent circumstances existed which justified its

seizure.” (See Appendix E hereto).

In its Memorandum Opinion, the trial court held that

the Constitution required exigent circumstances prior

to the lawful seizure of the car:

“Cardwell v. Lewis, 417 US 583, 41 L Ed 2d 235

(1974) does not control. It involved scrapings from

the exterior of a vehicle parked in a public place.

Nothing from the interior of the car and no

personal effects were searched or seized. The Court

stated, ‘This is not to say that no part of the interior

of an automobile has Fourth Amendment protec-

tion ... it is the right to privacy that is the

touchstone of our inquiry’, at 335.

“The State contends ORS 167.247 allows a

warrantless search absent the requirements of

exigent circumstances. This argument was made in

State v. Pearson, 15 Or App 1. The Court of Appeals

declined to decide the issue even though apparently

it was properly presented. In light of Coolidge v.

New Hampshire, supra, this Court concludes that

ORS 167.247(1) cannot be constitutionally applied

without the requirements of exigent circum-

stances.” (Appendix D hereto)

The Order of the trial court, allowing defendant's

motion to suppress evidence, set forth its finding and

ruling:

7

“The court has since considered the evidence

and written briefs which both parties have filed,

and, now being fully advised, finds upon the basis

of the evidence and record that exigent circum-

stances did not exist and concludes therefore, that

the warrantless seizure of the defendant’s vehicle

and subsequent search of defendant’s vehicle and

seizure of the evidence contained therein were

unreasonable and illegal.” (Appendix C hereto).

On the state’s appeal to the Oregon Court of Appeals,

this ruling of the trial court was assigned as error in

the state’s brief: “The circuit court erred in granting

defendant’s motion to suppress evidence.” (App. Br. at

5). In reversing the trial court’s, order suppressing

evidence, the Oregon Court of Appeals stated:

“The trial judge held that in addition to prob-

able cause, exigent circumstances to seize or search

an operable automobile must exist before such can

be done without a warrant. This was error.” 30 Or

App 1045, 1047, 568 P2d 721 (1977) (Appendix B

ereto).

In seeking review of the court of appeals decision,

defendant urged the following:

“1. The presence of exigent circumstances is

required to justify the warrantless seizure of

defendant’s automobile.

“2. Neither mobility nor operability of an auto-

mobile is by itself a sufficiently exigent circum-

stance to justify a warrantless seizure on probable

cause.” (Petition for Review, p. 2, 10).

In its opinion reversing the decision of the court of

appeals, the Oregon Supreme Court concluded that

exigent circumstances were required under the Fourth

8

Amendment as a precondition for the lawful seizure of

the vehicle and that such circumstances were not

present in this case.

The Federal question presented herein has demon-

strabiy been properly raised and appropriately pre-

served at all stages of this case.

REASONS FOR GRANTING THE WRIT

A. The Oregon Supreme Court has decided an impor-

tant question of Federal constitutional law in a

manner in conflict with the applicable decisions of

this Court.

The decision of the Oregon Supreme Court that police

could not lawfully seize an automobile without a

warrant because information necessary to make appli-

cation for a warrant was available at least four hours

before the seizure is at substantial variance with the

principles of Cardwell v. Lewis, 417 US 583 (1974) and

Chambers v. Maroney, 399 US 42 (1970).

In Cardwell v. Lewis, supra, the Court held that

the warrantless seizure of an automobile from a

commercial parking lot did not violate the protections

of the Fourth and Fourteenth Amendments even if it

were assumed that probable cause had existed prior to

the circumstances deemed exigent. Chambers v.

Maroney, supra, upheld on Constitutional grounds the

proceeds of a vehicle search even though probable

cause existed when the car was stopped and the car

was then driven to the police station where it was

thoroughly searched.

9

The Oregon Supreme Court opinion fails to recog-

nize and apply the long-standing distinction of this

Court between the circumstances justifying a war-

rantless search of home or office and those circum-

stances justifying warrantless seizure and search of

automobiles. The opinion below has engrafted an

element of foreseeability upon the Fourth Amend-

ments’ standard for the immobilization of an auto-

mobile without a warrant. Such a rule is at odds with

the decisions of this Court.

B. The Oregon Supreme Court has decided an impor-

tant question of Federal constitutional law in a

manner contrary to that of other courts, State and

Federal.

The principles of Cardwell v. Lewis, supra, and

Chambers v. Mar ney, supra; have been followed by

several courts that have held evidence admissible

which was taken from automobiles seized without

warrants where police might have obtained search

warrants prior to the seizures. See, for example,

United States v. Ramirez, 513 F2d 72 cert. denied sub

nom. Hamirez v. United States, 423 US 912 (1975) (5th

Cir 1975) (federal agents could have obtained warrant

to search truck but had not planned to need warrant),

United States v. Abascal, 564 F2d 821 (9th Cir 1977)

cert. denied sub nom. Abascal v. United States, 435 US

953 (1978) (the court noting absence of any rule

requiring officers to strike the instant they have

10

probable cause); Commonwealth v. Holzer, 480 Pa 93,

389 A2d 101 (1978) (vehicle located on street nine

hours after defendant’s arrest, impounded and trans-

ported prior to obtaining of search warrant). The

conflict between these decisions and the decision

herein merits resolution by this Court.

CONCLUSION

The decision of the Oregon Supreme Court expand-

ing the warrant requirement for the seizure of a

vehicle from premises open to the public unreasonably

and unnecessarily restricts police practices and oper-

ates to the confusion and confoundment of Oregon

police and prosecutors. Accordingly, and for the

reasons given above, a writ of certiorari should issue

to review the judgment and opinion of the Supreme

Court of the State of Oregon herein.

Respectfully submitted,

JAMES A. REDDEN

Attorney General

WALTER L. BARRIE

Solicitor General

THOMAS H. DENNEY

Assistant Attorney General

JAMES M. BROWN

Assistant Attorney General

May, 1979 Counsel for Petitioner

APPENDICES

13

Appendix A

No. 32—February 27, 1979

IN THE SUPREME COURT OF THE

STATE OF OREGON

In Banc

STATE OF OREGON, Fespondent,

v.

GARY LEE FONDREN, Petitioner.

(No. 20990, CA 7504, SC 25651)

On review from the Court of Appeals.*

Argued and submitted April 3, 1978.

J. P. Graff, of Gildea & McGavic, P. C., Eugene,

arguedd the cause and filed the briefs for petitioner.

John W. Burgess, Assistant Attorney General,

Salem, argued the cause for respondent. With him on

the briefs were James A. Redden, Attorney General,

and W. Michael Gillette, Solicitor General, Salem.

Stephen Kanter, Portland, filed a brief amicus

curiae in behalf of Oregon American Civil Liberties

Union.

DENECKE, C. J.

Reversed.

* Appeal from Circuit Court, Deschutes County. Walter I. Edmonds, Jr.,

Judge. 30 Or App 1045, 568 P2d 721 (1977).

14

DENECKE, C. J.

This is another of the search and seizure of vehicle

cases in which we granted review. State v. Greene, 30

Or App 1019, 568 P2d 716 (1977); State v. Downes, 31

Or App 419, 571 P2d 914 (1977); State v. Groda, 32 Or

App 287, 573 P2d 1269 (1978).

In State v. Greene, supra, 285 Or ——, --- P2d ——,

decided this date, we discussed the general principles

governing searches and seizures of automobiles.

The facts in this case are that early one evening an

officer received reliable information that the defend-

ant had marijuana in the trunk of his car which was

parked at the defendant’s place of employment. The

officer verified the location and ownership of the car.

At about 11:30 p.m. the officer went to defendant’s

place of employment and asked defendant if he could

look in his trunk. The defendant refused and the

officer had the car towed to the police garage. The next

day the officer secured a search warrant and found the

marijuana.

The defendant filed a motion to suppress. The trial

court found there were no exigent circumstances

permitting the seizure of the car without a warrant

and suppressed the evidence. The Court of Appeals

reversed in a per curiam opinion which appears to

state that no exigent circumstances need exist to seize

an operable automobile without a warrant. State v.

Fondren, 30 Or App 1045, 568 P2d 721 (1977).

15

The state argues in this case and in State v. Greene,

supra, (285 Or ——), that exigent circumstances are

not necessary in this case or in Greene because the

officer did not have to “invade an enclave of the

defendant’s privacy to make a seizure”; the employe

parking lot was not an enclave of privacy, neither was

the residential driveway in Greene.

Some past decisions lend plausibility to this con-

tention; however we are of the opinion that it does not

apply in the present case. The principle germinated in

Hester v. United States, 265 US 57, 44S Ct 445, 68 L

Ed 898 (1924), in which the officers trespassed on

private land and seized containers of moonshine whis-

key which had been dropped by the fleeing suspects.

The Court stated the containers and their contents had

been abandoned and the Fourth Amendment does not

apply to a seizure of abandoned property in “open

fields.”

Hester was cited in support of the decision in G.M.

Leasing Corp. v. United States, 429 US 338, 97 S Ct

619, 50 L Ed2d 530 (1977), in which the officers seized

automobiles in satisfaction of tax assessments. The

Court held that because the seizures took place on

public streets, no invasion of privacy was involved and

the seizures were not unconstitutional. The Oregon

Court of Appeals followed the rationale of Hester in

State v. Stanton, 7 Or App 286, 490 P2d 1274 (1971),

16

and held the seizure of a marijuana plant in an “open

field” was not subject to Fourth Amendment protec-

tion.

We conclude that the absence of Fourth Amend-

ment protections in these circumstances is because of

the nature of the object: seized as well as the place of

seizure. In Hester it was abandoned contraband; in.

Stanton it was contraband; in G.M. Leasing it was

property that the government was entitled to seize to

satisfy taxes. The government has traditionaily been

granted broad powers to seize property to satisfy taxes.

Notes, 23 NY Law School L Rev 791 (1978); 29 Mercer

L Rev 359 (1974).

An automobile on the public street is protected by

the Fourth Amendment. Chambers v. Maroney, 399

US 42, 51, 90 S Ct 1975, 26 L Ed2d 419 (1970), so held.

Chambers was based upon an interpretation of the

Fourth Amendment commenced in Carroll v. United

States, 267 US 132, 45 S Ct 280, 69 L Ed 543, 39 ALR

790 (1925). The doctrine of Carroll is that if the

officers have probable cause to believe that a car

contains evidence of a crime and there are exigent

circumstances requiring immediate action, the car can

be seized and searched without a warrant. In Carroll

and in almost all of its offspring, the car involved was

stopped by the officers on a public street or in a public

place where there was no expectation of privacy.

17

Nevertheless, in all of those cases the applicability of

the Fourth Amendment was assumed and a warrant-

less search and seizure was weighed by the criteria of

probable cause and exigent circumstances. We are of

the opinion that whether the seizure was valid in this

case depends upon the same criteria.

The defendant does not contend the officers did not

have probable cause. The issue is, were there exigent

circumstances; that is, was the contraband likely to

disappear if the officers could not seize the car without

securing a warrant? State v. Greene, supra (285 Or

——). The trial court held there were no exigent

circumstances and we concur. The Court of Appeals

was in error in holding that the trial court erred in

holding “that in addition to probable cause, exigent

circumstances to seize or search an operable auto-

mobile must exist before such can be done without a

warrant.” 30 Or App at 1047.

The facts on the issue of exigency are: Between

6:30 and 7:30 p.m. the officer obtained the information

that marijuana was in the trunk of a car driven or

owned by defendant, the make and license number of

the car, that the defendant was employed by Brooks-

Willamette and that the car was now parked in a

Brooks-Willamette employes’ parking lot. The infor-

mation and the source of the information were suffi-

cient to provide the officers with probable cause to

18

believe marijuana was in the car. Within 45 minutes

after receiving the information the officer found the

car on the Brooks-Willamette lot. He then discussed

the matter with his shift commander and verified that

the car was registered to a Fondren; however, not to

the defendant Gary Fondren. The officer discussed

with his commander whether to seek a search war-

rant. At 8:45 the officer, with another officer, went

back and looked at the car. The officer then did ‘some

checking’ on defendant. At some time during the

evening the officer talked to a deputy district attorney

about the matter. At 10:00 or 10:30 p.m. the officer

contemplated preparing an affidavit to apply for a

search warrant but decided there was not enough time

as the defendant would finish his shift at 12:00. The

officer testified an affidavit can be prepared and a

search warrant can be obtained within an hour and a

half to four hours.

At 11:30 p.m. the officer went to Brooks-

Willamette and had the defendant called from his job.

The defendant refused to consent to a search of his car.

The officer had the defendant’s car towed to the police

garage. The next day the officer prepared an affidavit

containing the information he had from the previous

evening and the court issued a searach warrant. The

trunk was searched and the marijuana was seized.

As we observed in State v. Greene, supra (285 Or

———), decided this date: “Underlying both of these

19

propositions [probable cause and exigent circum-

stances] is the overall principle * * * that searches

[and seizures] conducted without a warrent are per se

unreasonable, subject only to a few exceptions.” 285

Or at ——.

In this case, at least four hours before the defend-

ant was due to finish his shift and go to his car, the

officer had all the information he needed to establish

probable cause to secure a warrant from a magistrate.

He had the same information he stated in his affidavit

prepared the next day. The officer testified four hours

was the maximum time needed to secure a warrant.

There is no intimation that anyone other than the

defendant would have had access to the car before the

defendant finished his shift at midnight. The officer

was not concerned with someone else gaining access to

the car as he did not put the car under surveillance.

That the officer waited until 10:00 p.m. or thereafter

to attempt to obtain a warrant and then decided there

was insufficient time does not create exigent circum-

stances. The officer testsified that at a time which

must have been around 8:00 p.m. he discussed obtain-

ing a warrant. The officer cannot create exigent

circumstances by his own inaction.

The only automobile decision by the United States

Supreme Court which held exigent circumstances

were not present is Coolidge v. New Hampshire, 403

20

US 443, $1 S Ct 2022, 29 L Ed2d 564 (1971). Whether

that part of the decision concerning exigent circum-

stances was by a plurality or a majority is uncertain,

but in any event the facts which we discuss in State v.

Greene, supra, (285 Or ——), are not comparable.

We are of the opinion that exigent circumstances

continue to be a valid criteria under the Fourth

Amendment as most recently held in United States v.

Chadwick, 433 US 1, 14, 97S Ct 2476, 53 L Ed2d 538

(1977), and they are not present in this case.

Reversed.

21

Appendix B

Argued A t 24, reversed and remanded September 19, reconsideration

nied October 26, 1977, petition for review pending

STATE OF OREGON, Appellant,

v.

GARY LEE FONDREN, Aespondent.

(No. 20990, CA 7504)

668 P2d 721

The atate appealed from an order of the Circuit Court, Deschutes

County, Walter r Edmonda, Jr., J., which suppressed certain contraband

seized from defendanta automobile. The Court of Appeals held that where the

police had probable cause to think that defendant's automobile contained the

contraband, the warrantleas seizure of the automobile from a parking lot

maintained by defendant's employer was lawful even in the absence og

exigent circumstances.

Reversed and remanded.

Searches and seizures—Warrantless seizure of automobile lawful

Where police had probable cause to think that defendant's automobile

contained contraband, it was not neceasary that exigent circumsatnaces exist

before the automobile could be seized or searched without a warrant and,

therefore, warrantless seizure of the automobile from parking lot was lewful

CJS, Searches and Seizures.

Appeal from Circuit Court, Deschutes County.

Walter I. Edmonds, Jr., Judge.

John W. Burgess, Assistant Attorney General,

Salem, argued the cause for appellant. With him on

the briefs were James A. Redden, Attorney General,

and W. Michael Gillette, Solicitor General, Salem.

J. P. Graff, Eugene, argued the cause and filed the

brief for respondent.

Before Schwab, Chief Judge, and Tanzer and

Richardson, Judges.

PER CURIAM.

Reversed and remanded.

22

PER CURIAM.

The state appeals from an order suppressing

contraband—marijuana and peyote—seized from the

defendant's automobile. As the trial judge found, the

police had probable cause to think that defendant's

automobile contained the contraband. The police,

without a warrant, seized the automobile which was

on the parking lot maintained by defendant's

employer for employes, and had it towed to the police

garage. The police thereafter obtained a search

warrant.

The trial judge held that in addition to probable

cause, exigent circumstances to seize or search an

operable automobile must exist before such can be

done without a warrant. This was error. See State v.

Greene, 30 Or App 1019, 568 P2d 716 (1977).

Reversed and remanded.

23

Appendix C

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR DESCHUTES COUNTY

STATE OF OREGON, )

Plaintiff, )

) Case No.

vs. ) 20990

)

GARY LEE FONDREN, ) ORDER

Defendant. )

)

)

THIS MATTER was heard at 8:30 A.M. on

November 4, 1976 pursuant to defendant’s motion to

suppress evidence. The State appeared through Des-

chutes County Deputy District Attorney Warren J.

West. The defendant appeared personally and with his

attorney, Larry O. Gildea, of the firm of Gildea &

McGavic, P.C., Eugene, Oregon. The court heard

evidence and arguments of counsel, and, not being

fully advised, took the matter under advisement. The

court has since considered the evidence and written

briefs which both parties have filed, and, now being

fully advised, finds upon the basis of the evidence and

record that exigent circumstances did not exist and

concludes, therefore, that the warrantless seizure of

the defendant's vehicle and subsequent search of

defendant's vehicle and seizure of the evidence con-

tained therein were unreasonable and illegal. There-

24

fore, and upon the basis of the findings and conclu-

sions set forth in the court’s memorandum opinion

filed on November 29, 1976,

IT IS HEREBY ORDERED that defendant’s mo-

tion be and the same hereby is allowed.

IT IS FURTHER ORDERED that any and all

evidence obtained from the defendant’s vehicle or

otherwise as a result of its seizure and subsequent

impoundment shall be suppressed in this and any

other criminal proceeding against the defendant.

DATED: December 7, 1976.

Walter I. Edmonds, Jr.

Circuit Judge

25

Appendix D

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR THE COUNTY OF DESCHUTES

STATE OF OREGON,

)

)

Plaintiff, ) Case No.

) 20990

vs )

) MEMORANDUM

GARY LEE FONDREN, ) OPINION

)

Defendant. ) é

This matter comes before this Court upon defend-

ant’s motion to suppress contraband recovered from

defendant’s automobile after it was seized without a

warrant from the defendant’s employer’s parking lot

and then searched pursuant to a warrant.

In applying constitutional requirements, there is

no difference between seizing and holding a vehicle

before presenting the probable cause issue to a magis-

trate and carrying out an immediate search without a

warrant. State v. Baggett, 75 Or Ad Sh 3533, Cham-

bers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d

419 (1970).

The State must prove that probable cause existed

to believe that the search would disclose incriminatory

evidence and show that exigent circumstances ob-

viated the need for an independent judicial determina-

26

tion of probable cause. State v. Selmer, 26 Or App 555.

Under the facts of this case probable cause existed

based upon information from a confidential reliable

informer corroborated by independent investigation

by the investigating officer. State v. Delker, 26 Or App

497.

The officer first obtained the information between

6:30 and 7:30 p.m. on the day in question. The

information was corroborated by several methods

within the next two hours. He started preparing an

affidavit for a search warrant around 10:00 p.m., then

abandoned it and contacted the defendant at work

prior to defendant’s work shift terminating around

midnight. Defendant refused to consent to a search

and left work. No attempt was made by defendant to

remove the vehicle. The officer ordered the vehicle

towed from the parking lot and impounded.

“Exigent circumstances” are delineated in State v.

Keith, 2 Or App 133. In this case, the policeman should

have asked himself, “Do I have reasonable cause to

believe that I must immediately search the vehicle in

order to prevent the loss of evidence?”

An automobile is no more sacrosanct from warrant-

less search than a person. State v. Diaz, 3 Or App 498.

A parked unoccupied car presents different exigent

circumstances than a moving vehicle. State v. Amor,

(Mont.) 520 P2d 773; Coolidge v. New Hampshire, 403

27

US 443, 29 L Ed 2d 564, 91 S Ct 2022 (1971). If the

defendant had made an attempt to remove the vehicle,

then exigent circumstances would exist. People v.

Chavez, (Col.) 485 P2d 709. Otherwise, the vehicle was

subject to surveillance until a warrant could be ob-

tained. State v. Girard, 25 Or App 169, Rev. 276 Or

511 (exigent circumstances existed when defendant

tried to escape).

Cardwell v. Lewis, 417 US 583, 41 L Ed 2d 325

(1974) does not control. It involved scrapings from the

exterior of a vehicle parked in a public place. Nothing*

from the interior of the car and no personal effects

were searched or seized. The Court stated, “This is not

to say that no part of the interior of an automobile has

Fourth Amendment protection . . . it is the right of

privacy that is the touchstone of our inquiry”, at 335.

The State contends ORS 167.247 allows a warrant-

less search absent the requirements of exigent circum-

stances. This argument was made in State v. Pearson,

15 Or App 1. The Court of Appeals declined to decide

the issue even though apparently it was properly

presented. In light of Coolidge v. New Hampshire,

supra, this Court concludes that ORS 167.247(1) can-

not be constitutionally applied without the require-

ments of exigent circumstances.

Finally, the State contends that the vehicle may be

seized as an instrumentality of a crime. ORS

28

133.535(3). By incorporation, the instrumentality of a

crime may only be seized upon compliance with ORS

133.525 to 133.703. State v. McCoy, 249 Or 160, State

v. Keith, supra, and State v. Walden, 15 Or App 259,

all involved seizures pursuant to an arrest. Even the

justification for permitting the search of an accused

incident to a lawful arrest are absent when a search is

remote in time or place from the arrest. Cardwell v.

Lewis, supra. Here no arrest or warrant ever occured

prior to the seizure.

Counsel for the defendant may present an appro-

priate order allowing defendant’s motion.

Dated this 29 day of November, 1976.

Walter I. Edmonds, Jr.

Circuit Judge

29

Appendix E

IN THE CIRCUIT COURT OF THE STATE OF

OREGON FOR DESCHUTES COUNTY

THE STATE OF OREGON, )

)

Plaintiff, )

)

vs. ) MOTION

) TO

GARY LEE FONDREN, ) SUPPRESS

)

Defendant. )

)

)

COMES NOW the defendant by and through his

attorney, Larry O. Gildea, and moves the court for an

order suppressing any and all evidence seized as a

result of the warrantless seizure of a 1976 Buick

four-door sedan, Oregon license ECL 267, from the

parking lot of the Brooks-Willamette Corporation on

or about July 22, 1976, and the subsequent execution

of a search warrant of said automobile while im-

pounded at the Bend City Police Station, on or about

July 23, 1976, and all evidence derivative therefrom.

This motion is based upon the ground that the

warrantless seizure of said automobile was unreason-

able and hence a violation of defendant’s rights under

the Fourth and Fourteenth Amendments of the United

States Constitution. The informant upon which police

30

officers relied to establish probable cause for seizing

the automobile as well as for obtaining a search

warrant was not reliable. Defendant did not show the

contents of the trunk of said automobile to anyone on

July 21 or 22, 1976. There was therefore no probable

cause for seizure of the automobile. Furthermore, no

exigent circumstances existed which justified its

seizure.

WHLDEA & McGAVIC, P.C.

Larry O. Gildea

Of Attorneys for Defendant

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