State v. McCarthy

                                        82

      Argued and submitted September 17, 2018, reversed and remanded
       January 29, petition for review allowed July 2, 2020 (

)
                        See later issue Oregon Reports


                     STATE OF OREGON,
                       Plaintiff-Appellant,
                                 v.
                 CHARLES STEVEN McCARTHY,
                     Defendant-Respondent.
                   Marion County Circuit Court
                      16CR75546; A165026
                                   

     The state appeals from a pretrial order granting, in part, defendant’s motion
to suppress evidence that was seized pursuant to a warrantless search of defendant’s automobile. The state assigns error to that order, arguing that the search
was lawful under the automobile exception to the warrant requirement. In
response, defendant contends that the trial court properly granted his motion to
suppress because the state failed to demonstrate an actual exigency in this specific case according to the standards articulated in State v. Andersen, 

,

 (2017). Specifically, the parties disagree over the significance of the
Oregon Supreme Court’s statement, “Nor do we foreclose a showing in an individual case that a warrant could have been drafted and obtained with sufficient
speed to obviate the exigency that underlies the automobile exception.” Andersen,

. Held: Although Andersen contemplated the effects of technology
on the assumptions underlying the automobile exception, Oregon’s automobile
exception does not require the state to show any particular exigency under the
facts of the encounter, nor does it require the state to establish that a telephonic
warrant was unavailable.
    Reversed and remanded.


   Lindsay R. Partridge, Judge.
   Christopher A. Perdue, Assistant Attorney General, argued
the cause for appellant. Also on the briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Zachary J. Stern argued the cause for respondent. Also
on the brief was Ferder Casebeer French & Thompson, LLP.
   Before Lagesen, Presiding Judge, and James, Judge, and
Sercombe, Senior Judge.
   JAMES, J.
   Reversed and remanded.
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        JAMES, J.
         The state appeals from a pretrial order granting,
in part, defendant’s motion to suppress evidence that was
seized pursuant to a warrantless search of defendant’s automobile. The state assigns error to that order, arguing that
the search was lawful under the automobile exception to
the warrant requirement. In response, defendant contends
that the trial court properly granted his motion to suppress
because it correctly held that the automobile exception is not
a per se exception, and here, the state failed to demonstrate
an actual exigency in his specific case according to the standards articulated in State v. Andersen, 

, 

 (2017). Specifically, the parties disagree over the significance of the Oregon Supreme Court’s statement, “Nor do
we foreclose a showing in an individual case that a warrant could have been drafted and obtained with sufficient
speed to obviate the exigency that underlies the automobile
exception.” 

 (internal citations omitted). Although
we agree with defendant that, in making that statement
the court in Andersen, echoing State v. Brown, 

, 

 (1986), was contemplating the effects of
technology on the assumptions underlying the automobile
exception, we conclude that Oregon’s automobile exception,
as articulated by the collective weight of Oregon Supreme
Court precedent, does not require the state to show any particular exigency under the facts of the encounter, nor does it
require the state to establish that a telephonic warrant was
unavailable. Accordingly, we reverse and remand.
         “We review the trial court’s ruling on a motion to
suppress for errors of law, and are bound by the trial court’s
express and implicit findings of fact if there is constitutionally sufficient evidence in the record to support them.” State
v. Perrott, 

, 838, 

 (2017) (relying
on State v. Ehly, 

, 

 (1993)).
         Two detectives, Garland and Bidiman, were surveilling a suspected drug house when they saw defendant
and two other men in a truck outside. The detectives followed the truck because they recognized defendant as a person of interest based on previous investigations. While following defendant, the detectives saw the truck drift into the
84                                                   State v. McCarthy

bike lane and pulled it over. Defendant drove the truck into
a tavern parking lot and legally parked the vehicle. Garland
blocked the truck from leaving by parking his unmarked
police car behind the truck in the parking lot. Another
detective, Smith, shortly arrived on the scene as backup.
         Garland asked defendant for his driver’s license,
registration, and proof of insurance. Defendant immediately
told the detective that his license was suspended, that he did
not own the truck he was driving, and that he did not know
which insurance company insured the truck. While interacting with defendant, the detectives noticed that defendant
and his two passengers appeared nervous and that they had
black tar stains on their hands that the detectives considered consistent with handling heroin. Smith asked defendant about the black tar stains on his hands and defendant
claimed the stains were from food and working on engines.
         Smith told Garland and Bidiman that Street Crimes
Unit Detective Carney still had probable cause to arrest
defendant for conspiracy to deliver heroin stemming from
an investigation five months earlier.1 From the tavern parking lot, Smith called Carney and explained that the detectives had pulled over defendant. Carney requested that they
arrest defendant.
         However, the detectives did not immediately arrest
defendant; instead, the detectives decided to call Trooper
Freitag, a drug enforcement K9 officer. When Freitag
arrived, the detectives removed defendant and his passengers from the truck and arrested defendant for conspiracy to
deliver heroin. The drug dog alerted to the interior passenger door, and Freitag concluded that it was more likely than
not that the truck contained drugs. The detectives had also
called the registered owner of the truck but had to detain
him on an outstanding warrant when he arrived. The detectives could not tow the truck because the tow policy at the
Salem Police Department did not authorize the detectives
to impound a legally parked truck in a public parking lot.
Moreover, the detectives believed that applying for a warrant would have taken at least four or five hours. So, the
    1
      In June 2016, defendant had allegedly agreed to sell heroin to an undercover police detective, Carney, but the deal fell through.
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detectives searched the truck relying on the automobile
exception to the warrant requirement and discovered drug
paraphernalia with heroin and methamphetamine residue.
The state charged defendant with possession of heroin and
delivery of heroin.
         Before trial, defendant moved to suppress various
items seized after his arrest, including the items discovered
during the search of the truck. The trial court ruled on the
motion in two separate letter opinions, concluding that the
automobile exception did not apply for two reasons: (1) the
detectives did not demonstrate an actual exigency given
the possibility of a telephonic warrant and (2) the otherwise
legally parked truck was immobile.
        In the first letter opinion issued by the trial court
on April 11, 2017, the court made the following findings:
     “3. During the ‘lull’ Officer Garland had contact with
   Agent Carney and Agent Carney requested that Officer
   Garland arrest defendant for an alleged drug offense on
   May 16, 2016.
      “…
      “5. Immediately prior to the traffic stop the vehicle
   was mobile. During the traffic stop the vehicle was lawfully
   parked in a parking lot accessible to the public.
      “6. Once defendant was in custody[,] the vehicle was at
   least temporarily immobile. …
      “7. Probable cause existed to believe the vehicle would
   contain contraband due to the following:
      “a. Officer Garland observed defendant leaving from a
   residence that he knew to be a known drug house[;]
      “b. Police officers knew there was probable cause to
   arrest defendant for a drug offense from May 16, 2016;
      “c. During the traffic stop officers observed stains on
   defendant’s shirt and fingers consistent with tar heroin;
      “d. Defendant appeared nervous and shaky during his
   contact with police;
       “e. A drug detection dog alerted to the presence of controlled substances during the traffic stop.”
86                                               State v. McCarthy

          The trial court explained that “Oregon appellate
courts have clarified that the mobility of the vehicle and the
existence of probable cause to believe defendant has committed a crime must exist at the same time for the exception
to apply.” Given the trial court’s understanding of the exception, it held that “the police did not develop probable cause
that defendant committed a crime until after the vehicle
was stopped. Additionally, during the investigation of the
traffic stop, the police determined that neither defendant
nor the registered owner could move the vehicle. … The
police developed probable cause to search the vehicle after
that point [and] the vehicle was unoccupied at … the point
probable cause was developed.” Thus, the trial court ruled:
         “The legal basis for applying the automobile exception is
     based upon the concern that a vehicle containing evidence
     of a crime will be moved and the state will lose the ability to
     seize such evidence. However, the exception requires that
     the state demonstrate at least a realistic likelihood that
     someone will move the vehicle prior to the police obtaining
     judicial authorization to search the automobile. In this case,
     the state only presented a general theory that the vehicle
     was operable. However, neither the registered owner nor
     defendant could move the vehicle as both were in custody.
     The vehicle was unoccupied and otherwise was parked in a
     manner that did not create a safety hazard. The state presented no other evidence that the vehicle could be moved.
     Accordingly, the warrantless search of the vehicle [was] not
     justified through the automobile exception.”

         The state filed a motion for reconsideration, requesting a second evidentiary hearing with further argument.
The trial court granted the request. On May 3, 2017, in its
second letter opinion on defendant’s motion to suppress, the
trial court addressed some arguments raised by the state at
the second hearing regarding the automobile exception. The
trial court explained:
         “The court must give more than lip service to the axiom
     that warrantless searches are per se unreasonable under
     Art. I, Section 9 and the Fourth Amendment. The rationale
     for the automobile exception is that evidence of crime may
     be lost as the automobile drives away from the traffic stop.
     It takes into account the reality that the evidence is mobile.
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  However, that rationale does not exist under the facts of
  this case.

      “The state presented no evidence that anyone would
  move the automobile from the scene while the police sought
  judicial authorization for the search. At the supplemental hearing, the state went to great lengths to discuss the
  time consuming process to obtain a written search warrant. One rationale proposed by the state for not seeking a
  search warrant is the need for accuracy when presenting
  the warrant to a judge. …

     “However, the state fails to prove how inconvenient it
  would have been to obtain judicial authorization in this
  case. The arrest occurred on a regular working day in
  the early afternoon. The state fails to address why one of
  the officers could not avail themselves of an existing process under Oregon law, make a call on a cell phone to the
  courthouse, lay out the facts under oath to a judicial officer
  and have the judicial officer determine if probable cause
  existed. The answer seems to be that ‘we just don’t do it
  that way.’

      “Additionally, the state seemed to argue that there is a
  ‘policy’ from the Marion County Circuit Court bench that
  judges will not accept telephonic warrant requests. The
  court rejects that such a policy exists although acknowledges the bench has had discussions about some of the
  practical problems associated with telephonic warrants.

     “In the final analysis the state must show that conducting a warrantless search is reasonable. Under the facts
  in this case no showing has been made. The holding in
  Brown[, 

,] has never been universally accepted
  by all judges. At the time of the Brown decision, Justice
  Linde pointed out how the statute and technology back in
  1986 called into question the bright line test in Brown. No
  one would dispute that the technology today is even much
  more advanced 30 years later.

     “Today, everyone has a cellphone. … It is unreasonable under the circumstances in this case that no one even
  considered the idea of calling a judge from the site of the
  traffic stop to seek judicial authorization. Accordingly, this
  court cannot find that the state has proven that the warrantless search of the automobile was reasonable.”
88                                               State v. McCarthy

Ultimately, the trial court granted, in part, defendant’s
motion to suppress evidence discovered as a result of the
warrantless search of the truck, and this appeal followed.
          Article I, section 9, of the Oregon Constitution
states, “No law shall violate the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable search, or seizure; and no warrant shall issue
but upon probable cause[.]” As such, “[t]hat provision generally requires law enforcement officers to obtain a warrant
before executing a search. As [the Oregon Supreme Court
has] stated, warrantless searches are per se unreasonable
unless they fall within one of the few specifically established
and limited exceptions to the warrant requirement.” State
v. Bliss, 

, 

 (2018) (citing State v.
Blair, 

, 

 (2017) (internal citations
omitted)).
         Under the automobile exception to Article I, section 9,
officers may search a car if they have “probable cause to
believe that the car contains evidence of a crime and the car
is mobile at the time they stop it.” Andersen, 

(internal citation omitted). The automobile exception only
applies if the car is not “parked, immobile and unoccupied
at the time the police first encountered it in connection with
the investigation of a crime.” State v. Kock, 

, 

 (1986). Therefore, the automobile exception to the
warrant requirement of Article I, section 9, requires “(1) that
the automobile is mobile at the time it is stopped by police
or other governmental authority, and (2) that probable cause
exists for the search of the vehicle.” Brown, 

.
        As originally adopted, the automobile exception to
the Oregon Constitution was clearly a per se exception to the
warrant requirement. As Brown noted:
         “We are convinced that adoption of a ‘per se exigency rule’
     is a sound approach which provides the clearest guidelines
     for police in conducting automobile searches. Exigencies
     should not be determined on a case-by-case basis.”

.
        However, the Oregon Supreme Court cast some
doubt on that per se nature in Andersen when it stated:
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       “We do not foreclose the possibility that Brown held
   out—that changes in technology and communication could
   result in warrants being drafted, submitted to a magistrate, and reviewed with sufficient speed that the automobile exception may no longer be justified in all cases. Nor
   do we foreclose a showing in an individual case that a warrant could have been drafted and obtained with sufficient
   speed to obviate the exigency that underlies the automobile
   exception.”

361 Or at 200-01 (internal citations omitted).
         Andersen did not elaborate, however, on how such a
showing would be made, nor upon whom the burden of production and persuasion falls. As a warrantless search, normally it is the state’s burden to establish an exception to the
warrant requirement. State v. Ritz, 

, 

 (2017) (“The state has the burden of proving that the circumstances at the time of the warrantless search fall within
the exigent circumstances exception.” (Internal citation
omitted.)). However, requiring the state to show the unavailability of a telephonic warrant contravenes Brown, which
stated that “we emphasize that the key to the automobile
exception is that the automobile need be mobile at the time
it is lawfully stopped. No exigent circumstances other than
the mobility of the stopped vehicle need be demonstrated.”

. Nothing in Andersen indicates that the court
sought to overrule this aspect of Brown.
         Andersen seems to imply by its wording that it is
not the state’s burden to show unavailability of a telephonic
warrant. Rather, Andersen appears to envision “a showing
in an individual case that a warrant could have been drafted
and obtained with sufficient speed to obviate the exigency.
361 Or at 201 (emphasis added). Defendant, not the state,
would be the party with motivation to attempt such a showing. In that respect, Andersen appears to cast the theoretical exigency that underlies the automobile exception as a
rebuttable presumption.2

    2
      In so doing, Andersen appears to make the automobile exception something of a unicorn, being the only warrant exception in Oregon containing a
component for which it is a defendant’s burden to prove the exception does not
apply.
90                                         State v. McCarthy

         After Andersen—and after the trial court ruled in
this case—the Oregon Supreme Court revisited the automobile exception in Bliss, clarifying that “the court intended
the automobile exception to apply to all lawful roadside
stops of mobile vehicles,” meaning that “it will sometimes
be the case that police will reasonably suspect at the time of
the initial stop that a driver has committed a traffic violation and that the driver has committed a crime.” 

 (emphasis in original). In that situation, the “police may
stop a driver because, for example, she has failed to stay in
her lane, signal when required, or stop at a stop sign—all
traffic violations—and may not develop probable cause to
search the vehicle to investigate the crime of driving under
the influence until they have interacted with the driver.” 

         If Andersen created some uncertainty about the per
se nature of the Oregon automobile exception, Bliss appears
to have retreated from that view, instead reiterating that
the automobile exception exists to “provide law enforcement
with ‘simple guidelines’ and a ‘per se’ rule for all highway
stops, rather than a ‘complex set of rules dependent on particular facts regarding the time, location and manner’ of the
stop.” 

 (quoting Brown, 

). In light of Bliss,
whatever Andersen contemplated by a “showing in an individual case that a warrant could have been drafted,” the
possibility of such a showing does not undermine the presumptively per se nature of the automobile exception. And,
in turn, such a possibility does not create any extra burden
upon the state to avail itself of the exception.

         In this case, detectives testified at the evidentiary
hearing that defendant was initially pulled over for a traffic
violation when detectives saw the truck defendant was driving drift into the bike lane. Moreover, detectives were familiar with defendant’s association with known drug activity,
and, upon interacting with defendant, detectives believed
that they had developed probable cause of heroin use, possession, and delivery. Eventually, detectives initiated an
arrest and search of defendant and the truck he was driving
when he was initially pulled over. The trial court made findings of fact to similar effect in its letter opinions and those
findings are supported by evidence in this record.
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         Applying Brown to this case, detectives were permitted to execute a warrantless search of defendant’s truck
under the automobile exception “(1) [if] the automobile [was]
mobile at the time it [was] stopped by police … and (2) [if]
probable cause exist[ed] for the search of the vehicle.” 

. As to the first prong—mobility—Bliss made clear
that detectives are permitted to pull a defendant over for a
traffic violation. If detectives later develop probable cause
of a more serious crime requiring a search of the vehicle, as
long as the vehicle was mobile at the time of the initial lawful encounter, the probable cause that follows is permissible
under the second prong. Accordingly, any resulting warrantless search is permitted under the automobile exception. Here, the record shows that the vehicle was mobile at
the time of the initial traffic encounter. Further, no party is
contesting that, upon interacting with defendant, detectives
developed probable cause of his use, possession, and delivery
of heroin. Both prongs of Brown are therefore met.
         Quite correctly, the trial court noted that it “must
give more than lip service to the axiom that warrantless
search are per se unreasonable under Art. I, Section 9 and
the Fourth Amendment.” Brown held out the promise of “a
time in the near future when the warrant requirement of
the state and federal constitutions can be fulfilled virtually
without exception.” 

 n 6. In many respects,
the trial court’s reasoning in this case echoes the concerns
later expressed by the dissent in Bliss. There, Chief Justice
Walters indicated that she “would hold that the officers
were not permitted to conduct a warrantless search of [the]
defendant’s vehicle based on an assumed exigency. Rather, a
warrant, a showing of actual exigent circumstances, or the
establishment of another exception to the warrant requirement was necessary.” 

. The Bliss dissent
explained:
   “In Brown, this court assumed the existence of an exigency with the understanding that that assumed exigency
   would be short-lived—that, due to anticipated technological advances, there would be ‘a time in the near future
   when the warrant requirement of the state and federal
   constitutions can be fulfilled virtually without exception.’
   That was over 30 years ago, and technological advances
92                                               State v. McCarthy

     have occurred. Officers should now be able to obtain warrants without significant delay. But, be that as it may, it is
     one thing to routinely permit a warrantless search when
     officers stop vehicles with probable cause to believe that
     a crime has been committed. It is another thing to do so
     when officers pull drivers over for traffic infractions. When
     such routine stops are extended, constitutional concerns
     abound.”
Bliss, 

 (Walters, C. J., dissenting) (internal
citation omitted).
          Nevertheless, as the automobile exception currently
is crafted in Oregon pursuant to Brown, Andersen, and
Bliss, the state is only required to show “(1) that the automobile [was] mobile at the time it [was] stopped by police or
other governmental authority, and (2) that probable cause
exist[ed] for the search of the vehicle.” The state in this case
was not required to demonstrate, in addition to the above
test, that someone was likely to move this specific vehicle—
that is, that the movement exigency underlying the automobile exception actually exists rather than existed in theory.
Similarly, as currently constructed, Oregon’s automobile
exception does not require the state to establish the unavailability of a telephonic warrant. See Brown, 

.
The trial court erred when it granted, in part, defendant’s
motion to suppress evidence collected incident to a warrantless search of a truck in accordance with the automobile
exception.
           Reversed and remanded.