# Petition — Oregon v. Fondren

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1979
- **Citation:** 444 U.S. 834

## Text

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
ike lid ticcncaion panhiiaighshanbiintdiennubanidaeesbentectssseeseese 1
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_0234%3A1. Public record. Not legal advice.