State v. McCarthy

                                       129

 Argued and submitted January 5; decision of Court of Appeals reversed, order
                of circuit court affirmed December 30, 2021


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
               CHARLES STEVEN McCARTHY,
                    Petitioner on Review.
          (CC 16CR75546) (CA A165026) (SC S067608)
                                    

     Law enforcement officers initiated a traffic stop of a vehicle that defendant
was driving. During the stop, officers developed probable cause to believe that
the vehicle contained contraband. After arresting defendant, officers conducted
a warrantless search of the vehicle, relying on the “automobile exception” to the
warrant requirement that this court created in State v. Brown, 

, 

 (1986). Defendant moved to suppress evidence discovered during the
search, and the trial court granted the motion on the ground that the state had
failed to prove that exigent circumstances existed at the time of the search. The
Court of Appeals reversed, holding that, under Brown, exigent circumstances
are presumed to exist if a vehicle was mobile when it was stopped by the police,
regardless of whether there is an actual exigency after that point. Held: In order
to justify a warrantless seizure or search of a vehicle based on exigent circumstances, the state must prove that exigent circumstances actually existed at the
time of the seizure or the search; the contrary holding of Brown is overruled.
     The decision of the Court of Appeals is reversed. The order of the circuit court
is affirmed.



    On review from the Court of Appeals.*
   Zachary J. Stern, Ferder, Casebeer, French and Stern,
LLP, Salem, argued the cause and filed the briefs for petitioner on review.
   Christopher A. Perdue, Assistant Attorney General,
Salem, argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  Rosalind M. Lee, Eugene, filed the brief for amici curiae
Oregon Criminal Defense Lawyers Association and Oregon
Justice Resource Center.
______________
    * On appeal from Marion County Circuit Court, Lindsay Partridge, Judge.

, 

 (2020).
130                                                      State v. McCarthy

  Before Walters, Chief Justice, Nakamoto, Flynn, Duncan,
Nelson, and Garrett, Justices, and Landau, Senior Judge,
Justice pro tempore.…
    DUNCAN, J.
   The decision of the Court of Appeals is reversed. The
order of the circuit court is affirmed.




______________
   … Balmer, J., did not participate in the consideration or decision of this case.
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           DUNCAN, J.
         In this criminal case, defendant moved to suppress
evidence that law enforcement officers obtained during a
warrantless search of a truck. Defendant had been driving the truck when officers stopped it for a traffic violation. During the stop, the officers developed probable cause
to believe that the truck contained contraband. Although
the stop occurred on a weekday afternoon near the county
courthouse and the officers had mobile phones and a computer, the officers did not attempt to contact a magistrate—
either in person or by phone or computer—to obtain a warrant to search the truck. Instead, they searched it without
a warrant. At the time of the search, the truck was lawfully
parked in a parking lot and defendant had been arrested.
         In his motion to suppress, defendant argued that
the warrantless search of the truck violated Article I, section 9, of the Oregon Constitution, which prohibits unreasonable searches and seizures.1 Under Article I, section 9,
searches and seizures must be conducted pursuant to a
warrant or one of the few specifically established and limited exceptions to the warrant requirement. State v. Bliss,

, 

 (2018). Searches and seizures
are distinct events requiring separate justifications. State v.
Tanner, 

, 

 (1987).
         In response to defendant’s motion to suppress, the
state argued that the warrantless search of the truck was
justified under the “automobile exception” to the warrant
requirement. This court created the automobile exception
in State v. Brown, 

, 

 (1986),
in which it held that an officer may conduct a warrantless search of a car if “(1) the car was mobile at the time it
was stopped by the police; and (2) the police had probable
cause to believe that the car contained contraband or crime
evidence.”
        The trial court rejected the state’s argument, reasoning that the automobile exception is premised on the

   1
     Article I, section 9, provides, in part, “No law shall violate the right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]”
132                                         State v. McCarthy

existence of exigent circumstances, and the state had failed
to prove that exigent circumstances existed at the time the
officers searched the truck.
         The state appealed, and the Court of Appeals
reversed on the ground that, under Brown, exigent circumstances are presumed to exist if a vehicle was mobile when it
was stopped by the police, regardless of whether there is an
actual exigency after that point. State v. McCarthy, 

, 

 (2020). Applying Brown’s “ ‘per se exigency rule,’ ” the Court of Appeals held that all that the state
was required to show was that the truck was mobile at the
time it was stopped by the officers and that the officers had
probable cause to search it. 

 at 90-91 (quoting Brown, 

). Therefore, the court concluded that, under Brown,
the state was not required to demonstrate that there had been
an actual exigency at the time of the search. Id. at 92.
         On defendant’s petition, we allowed review. For the
reasons we explain below, we overrule Brown’s per se exigency rule and hold that, in order to justify a warrantless seizure or search of a vehicle based on exigent circumstances,
the state must prove that exigent circumstances actually
existed at the time of the seizure or search. Because the
state did not do so here, we conclude that the trial court correctly granted defendant’s motion to suppress.
                     I. BACKGROUND
         On the afternoon of Monday, November 28, 2016,
Salem Police Detectives Garland and Bidiman were surveilling a residence from an undercover police car. They saw a
truck occupied by defendant and two passengers parked in
front of the residence.
         When defendant began driving away from the residence, Garland and Bidiman decided to follow him. As the
truck drove by the officers, Bidiman recognized defendant as
the driver. Garland was familiar with defendant from prior
drug investigations in May and June of 2016. During the
June 2016 investigation, defendant reportedly had agreed
to sell heroin to an informant working with another officer,
Detective Carney, but the sale never occurred. As Garland
drove behind defendant, he saw the truck drift into a bike
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lane. Garland initiated a traffic stop at 1:31 p.m. as defendant turned into a parking lot. Defendant legally parked the
truck in a parking stall, and Garland positioned the police
car behind it. The stop occurred approximately one mile east
of the Marion County Circuit Court building in downtown
Salem.
         The officers approached the truck and Garland
asked defendant for his driver’s license, registration, and
proof of insurance. Defendant stated that his license was
suspended and that he was not the registered owner of the
truck. Defendant provided a copy of the truck’s registration
but said that he did not know where the truck’s insurance
card was. Garland asked defendant to look around the cab
of the truck for proof of insurance while he returned to the
police car to check the status of defendant’s license.
         After using the police car’s onboard computer to
confirm that defendant’s license was suspended, Garland
returned to the truck and asked defendant if he had found
proof of insurance. Defendant said that he had not, and
Garland then allowed defendant to make a phone call to the
truck’s registered owner to determine whether the truck
was insured. Meanwhile, Garland began processing citations for failure to maintain a lane and driving while suspended. After calling the truck’s registered owner, defendant told Garland that the truck was insured through State
Farm, at which point Garland asked Bidiman to call State
Farm to verify the truck’s insurance. While Bidiman was on
the phone with State Farm, a third officer, Detective Smith,
arrived on the scene. At that point, Garland tried to contact
Detective Carney to ask whether there was a lawful basis
to arrest defendant in connection with the June 2016 drug
investigation.
         During their interactions with defendant, the officers noticed that defendant and his passengers seemed nervous. The officers also observed dark brown stains on the
hands of defendant and one passenger, which the officers
believed were consistent with handling heroin.
         Garland’s attempts to contact Carney were unsuccessful, but Smith was able to reach Carney on Carney’s
personal cellphone. Carney told Smith that there was
134                                        State v. McCarthy

probable cause to arrest defendant for conspiracy to deliver
heroin based on the June 2016 investigation. Smith then
approached the truck and asked defendant about the presence of controlled substances, which defendant denied.
Smith also requested consent to search the truck, but defendant refused.
        Instead of arresting defendant immediately, at
1:39 p.m. Garland and Smith contacted Oregon State Police
Trooper Freitag, a K-9 handler, and asked him to come to
the scene with a drug detection dog. At the time the officers called Freitag, defendant had still not been issued
any citations. Freitag arrived at 1:57 p.m., and the officers
asked defendant and his passengers to vacate the truck.
Defendant was arrested for conspiracy to deliver heroin
based on the June 2016 drug investigation. Freitag then
deployed his drug detection dog, who alerted to the presence
of a controlled substance near the front passenger door of
the truck, at which point defendant’s passengers were both
arrested. Eventually, the truck’s registered owner arrived
at the scene, but he was detained on an outstanding warrant and, therefore, was unable to drive the truck away.
          Because the truck was legally parked and was not
a traffic hazard, Salem Police Department policy did not
authorize the officers to impound it. During his testimony
before the trial court, Smith estimated that obtaining a
warrant to search the truck would have taken “four hours,
if not longer.” Garland testified that, instead of applying for
a warrant, the officers relied on the automobile exception
to the warrant requirement to search the truck. Garland
also explained that he could have sought a warrant but had
chosen not to do so because he believed the unoccupied truck
was still “mobile.”
       The search of the truck uncovered heroin, a scale,
and drug paraphernalia. Based on that evidence, defendant
was charged with possession and delivery of heroin.
         Defendant moved to suppress various items seized
after his arrest, including the items discovered during the
search of the truck. After an evidentiary hearing, the trial
court issued a letter opinion in April 2017, making the following findings regarding when the truck was mobile and
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when the officers developed probable cause to believe it contained contraband:
      “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 and the vehicle was
   at least temporarily immobile[,] [o]fficers contacted the registered owner and determined that he had a warrant for
   his arrest and therefore he was unable to move the vehicle.
      “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 [June] 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.”
         The trial court went on to explain that a warrantless search under the automobile exception is valid under
Brown if (1) the automobile is mobile at the time it is stopped
by police and (2) probable cause exists for the search. (Citing
Brown, 

.) The trial court further explained
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.” (Citing
State v. Kurokawa-Lasciak, 

, 

 (2011)
(Kurokawa-Lasciak II); State v. Pirtle, 

, 

 (2013); and State v. Groom, 

, 

 (2012).)
        Applying those rules, the trial court held that the
automobile exception did not apply because the truck was
not mobile and was unoccupied at the time the officers developed probable cause that it contained contraband. The trial
court also held that the automobile exception did not apply
136                                           State v. McCarthy

because there were no exigent circumstances at the time of
the search:
       “The state cannot justify the search of the vehicle
   through the automobile exception. The state bears the
   burden to establish an exception to the warrant requirement. Under the circumstances in this case, it is clear
   that the police lacked any reason to believe an imminent
   threat existed that someone would move the vehicle prior
   to obtaining a warrant.
      “Officer Garland testified that he was concerned about
   how long it would take to get a warrant. However, he was
   completely unaware of the option of seeking a telephonic
   warrant. In fact, he responded he was not trained in the
   area of obtaining a telephonic warrant and stated, ‘I don’t
   believe we can do that.’ Furthermore, he did not explain adequately why the police could not observe the vehicle during
   the period of time needed to obtain a warrant and only seize
   the vehicle if there was an attempt to move the vehicle.
      “… [T]he 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 is not
   justified through the automobile exception.”
         The state filed a motion for reconsideration. At the
state’s request, the trial court held a second evidentiary
hearing with additional argument. During the hearing,
Smith testified that applying for a warrant that is supported by a written affidavit could “[e]asily [take] four or
more hours.” Smith also testified about the use of telephonic
warrants in Marion County, stating: “My understanding,
Marion County Circuit Court system does not do telephonic
warrants. And nor have I ever had any training on how to
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do one, how to apply for one, and what the policies and procedures would be if that ability was there.” Deputy District
Attorney Suver also testified about the use of telephonic
warrants in Marion County. She explained that the Marion
County District Attorney’s Office trained officers with the
instruction that “we don’t do telephonic search warrants
in Marion County.” She further testified that every search
warrant affidavit is reviewed by the Marion County District
Attorney’s Office prior to being submitted for judicial
approval, and that the use of telephonic warrants would “cut
out that review process.”
        At the end of the hearing, the trial judge addressed
the issue of telephonic warrants, explaining that he could
not understand why the officers and district attorney’s office
did not utilize them in general or why they could not have
attempted to get one in this case:
   “So, I’m a little frustrated that we keep coming back to this
   issue that, well, the bench likes it done this certain way, so
   we are not going to do telephonic warrants. Well, it’s the
   law. And it seems striking to me that 1:30 on a Monday
   afternoon, with 14 judges in Marion County and four judicial officers in addition to that, that there couldn’t be somebody that gets a call from an officer, swears the officer in,
   and says, ‘Tell me what you’ve got.’ … Not much different
   than the testimony that I took from four officers in less
   than an hour when we did the original [hearing]. And the
   judge makes a decision.”
         In May 2017, the trial court issued a second letter
opinion in which it (1) found that the state had failed to prove
that there was a risk that the truck would have been moved
in the time it would have taken the officers to obtain a warrant, (2) rejected the claim that the county’s circuit court
had a policy against telephonic warrants, and (3) concluded
that the warrantless search of the truck violated Article I,
section 9:
      “The court must give more than lip service to the axiom
   that warrantless searches are per se unreasonable under
   [Article] 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
138                                                      State v. McCarthy

    mobile. 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. …
        “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 cellphone 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 it 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.”
(Emphasis in original.) Accordingly, the trial court granted
defendant’s motion to suppress the evidence discovered as a
result of the warrantless search of the truck.2

    2
      Defendant’s motion also sought the suppression of evidence obtained during
a search of defendant’s person. The trial court denied that part of the motion, and
that ruling is not at issue on appeal.
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        The state appealed, asserting that the trial court
erred by granting defendant’s motion to suppress. It argued
that “the trial court added a third requirement [for the automobile exception to apply] not found in case law: that the
state show that it could not have obtained a warrant before
someone tried to move the truck.” In response, defendant
argued that, as a result of this court’s decision in State v.
Andersen, 

, 

 (2017) (Andersen II), the
automobile exception is no longer a per se exception and the
state had failed to meet its burden of proving that an actual
exigency existed at the time of the search. Defendant based
that argument on the following statement in Andersen II:
       “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.”

.
         The Court of Appeals determined that, in making
that statement, this court “cast some doubt” on whether
the automobile exception continued to be a per se exception because the statement “appear[ed] to cast the theoretical exigency that underlies the automobile exception as a
rebuttable presumption.” McCarthy, 

. But
the court further determined that this court, in its subsequent decision in Bliss, “appear[ed] 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.’ ” McCarthy, 

 (quoting Bliss, 

 (quoting Brown, 

)). Therefore, the Court of Appeals concluded that,
   “whatever Andersen [II] 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.
140                                         State v. McCarthy

   And, in turn, such a possibility does not create any extra
   burden upon the state to avail itself of the exception.”

 (quoting Andersen II, 

). With that understanding of the state of the law, the Court of Appeals held
that the automobile exception, as articulated in Brown,
applied to the search of the truck that defendant had been
driving because the truck was “ ‘mobile at the time it [was]
stopped by police’ ” and “ ‘probable cause exist[ed] for the
search.’ ” 

 at 91 (quoting Brown, 

 (brackets in
McCarthy)). Accordingly, the court reversed and remanded
the case to the trial court. Id. at 92.
         Defendant petitioned for review, which we allowed
to address the status of the automobile exception. On review,
defendant urges us to overrule Brown’s per se rule and to
hold that, in order for a warrantless seizure or search of a
vehicle to be justified by exigent circumstances, there must
be an actual exigency at the time of the seizure or search.
The state, on the other hand, urges us to retain Brown’s
per se rule, which allows for warrantless seizures and
searches of vehicles even when there is no actual exigency.
For the reasons we explain below, we overrule Brown’s
per se rule and hold that, when the state seeks to justify
a warrantless seizure or search of a vehicle based on exigent circumstances, the state must prove that exigent circumstances actually existed at the time of the seizure or
search.
                     II. DISCUSSION
          To address the parties’ arguments, we begin, in
section A below, with a discussion of Article I, section 9.
Then, in section B, we discuss the doctrine of stare decisis
and identify considerations relevant to whether we should
adhere to Brown’s per se exigency exception. In sections C,
D, and E, we explain why those considerations support revisiting Brown’s per se exception and overruling it. Based on
that explanation, in section F, we hold that, to justify a warrantless seizure or search of a vehicle, the state must show
that exigent circumstances actually existed at the time of
the seizure or search. Finally, in section G, we conclude that
the trial court in this case correctly ruled that the state had
failed to make that showing, and we affirm its suppression of
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the evidence obtained during the warrantless search of the
truck.
A.    Article I, Section 9
         The starting point of our analysis is Article I, section 9, which guarantees individuals the right “to be secure
in their persons, houses, papers, and effects, against unreasonable search, or seizure.” Article I, section 9, protects
both possessory and privacy interests. State v. Barnthouse,

, 

 (2016). For the purposes of
Article I, section 9, a seizure of property occurs when there
is a significant interference with a person’s possessory interests, and a search of property occurs when a person’s privacy interests are invaded. 

         Generally, to comply with Article I, section 9, a seizure or search must be supported by both probable cause and
a warrant. Bliss, 

. In this case, defendant does
not dispute that the officers had probable cause to search
the truck; the issue is whether they needed a warrant.
        “The constitution requires a warrant so that a disinterested branch of government—the judicial branch—and
not the branch that conducts the search—the executive
branch—makes the decision as to whether there is probable
cause to search.” Kurokawa-Lasciak II, 

. As
this court has explained,
     “[t]he time to make the judicial determination whether
     there is probable cause for a search or a seizure, if time permits, is before the individual’s privacy is invaded. A later
     adjudication upon a motion to suppress evidence, although
     necessary, does not undo the invasion, does not help persons who are cleared and never prosecuted, and colors the
     perception of ‘probable cause’ by what the search in fact
     revealed.”
State v. Lowry, 

, 

 (1983), overruled on other grounds by State v. Owens, 

, 

 (1986).
         Under Article I, section 9, warrantless seizures and
searches “are per se unreasonable unless they fall within
one of the few specifically established and limited exceptions to the warrant requirement.” Bliss, 

. The
142                                         State v. McCarthy

scope of a warrant exception “is limited by the purposes for
that exception.” State v. Fulmer, 

, 

 (2020).
         One exception to the warrant requirement is the
“exigent circumstances” exception. Under that exception,
police may conduct a warrantless seizure or search if they
have probable cause and exigent circumstances exist. State
v. Ritz, 

, 

 (2017). Exigent circumstances are circumstances “where prompt responsive
action by police officers is demanded.” State v. Davis, 

, 

 (1983). In the search and seizure
context, exigent circumstances are emergency situations
“that require[ ] the police to act swiftly to prevent danger to life or serious damage to property, or to forestall a
suspect’s escape or the destruction of evidence.” State v.
Stevens, 

, 

 (1991); accord State
v. Miskell/Sinibaldi, 

, 

 (2012)
(stating that exigent circumstances are circumstances
that, “without swift action, likely would have immediate consequences to persons, property, or law enforcement
operations”).
         Exigent circumstances justifying a warrantless
search “include situations where the delay caused by obtaining a warrant would likely lead to the loss of evidence.” Ritz,

. The exigency must be an actual exigency, not
merely a theoretical one. See, e.g., State v. Peller, 

, 

 (1979) (holding that “the mere possibility
that defendant could make a break if he were so inclined”
did not give rise to exigent circumstances when “there [was]
no indication that he [was], in fact, so inclined”); State v.
Matsen/Wilson, 

, 

 (1979) (“The
fact that drugs are usually of a destructible nature, and the
fact that suspects are likely to run out the back door when
police enter the front door does not ipso facto create exigent
circumstances.”).
        Generally, whether exigent circumstances exist is
determined on a case-by-case basis. Andersen II, 361 Or at
202 (Walters, J., concurring) (collecting cases). That means
law enforcement officers in the field must make their own
assessments regarding whether circumstances justify
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proceeding without a warrant. If later challenged through
a motion to suppress, those assessments are reviewed by a
court, and the state bears the burden of proving that the
circumstances were actually exigent.
         This court announced the “Oregon automobile
exception” in Brown in 1986. 

. The automobile exception is a “subset of the exigent circumstances
exception.” State v. Meharry, 

, 

(2006) (Meharry II). It is based on the idea that the mobility of vehicles creates exigent circumstances. Brown, 

. As mentioned, defendant asks us to overrule
Brown’s per se exigency exception, whereas the state asks us
to adhere to it. The parties’ competing arguments implicate
the doctrine of stare decisis.
B.   The Doctrine of Stare Decisis
         Under the doctrine of stare decisis, this court
assumes that its fully considered prior cases are correctly
decided. State v. Ciancanelli, 

, 

(2005). The idea underlying the doctrine is that adherence
to precedent leads to stability in the law, which helps ensure
predictability, efficiency, and fairness. Farmers Ins. Co. v.
Mowry, 

, 

 (2011). Stability is important to “the consistent administration of justice and the legitimacy of this court’s decisions.” Horton v. OHSU, 

, 

 (2016) (Landau, J., concurring).3
          This court has “emphasized the ‘undeniable importance of stability in legal rules and decisions.’ ” Farmers Ins.
Co., 

 (quoting Stranahan v. Fred Meyer, Inc.,

, 

 (2000)). At the same time, however, it has recognized “ ‘the need … to correct past errors.’ ”

 (quoting Stranahan, 

). That is because
“[c]orrectness is also important to the administration of
    3
      See also Farmers Ins. Co., 

 (“Stability and predictability are
important values in the law; individuals and institutions act in reliance on this
court’s decisions, and to frustrate reasonable expectations based on prior decisions creates the potential for uncertainty and unfairness. Moreover, lower courts
depend on consistency in this court’s decisions in deciding the myriad cases that
come before them.”); Couey v. Atkins, 

, 

 (2015) (“Stare
decisis does not permit this court to revisit a prior decision merely because the
court’s current members may hold a different view than its predecessors about a
particular issue.”).
144                                        State v. McCarthy

justice and this court’s legitimacy.” Horton, 

(Landau, J., concurring). If an earlier decision is not well
reasoned or conflicts with other decisions, it can be difficult to apply and can result in confusion and uncertainty.

 (stating that adherence to erroneous and conflicting decisions “produces its own threats to stability and
predictability—the very virtues that stare decisis is supposed to promote”). Consequently, this court is willing to
reconsider an earlier decision when it appears that the decision was incorrect, especially if, in making the decision, the
court did not apply its usual interpretative methodology or
was not presented with an important argument. Farmers
Ins. Co., 

. This court is also willing to reconsider an earlier decision when it conflicts with other decisions. Couey, 

. And this court is willing to
reconsider an earlier decision when there have been subsequent legal or factual changes that seriously undermine the
reasoning or result of the decision. Farmers Ins. Co., 

. Thus, stare decisis is “not absolute.” Couey v. Atkins,

, 

 (2015). It is a “prudential doctrine that is defined by the competing needs for stability
and flexibility in Oregon law.” Farmers Ins. Co., 

.
          This case involves a question of state constitutional
law, and, in cases involving such questions, “the value of
stability that is served by adhering to precedent may be
outweighed by the need to correct past errors” because this
court “ ‘is the body with the ultimate responsibility for construing our constitution, and, if we err, no other reviewing
body can remedy that error.’ ” Couey, 

 (quoting
Stranahan, 

).
         “The answer to the question whether a case should
be overruled cannot be reduced to the mechanical application of a formula but requires instead an exercise of judgment that takes all appropriate factors into consideration.”
Horton, 

. There is no fixed list of factors; the
circumstances in which such determinations are made are
“simply too varied.” Farmers Ins. Co., 

 n 3;
accord Couey, 

 (“Precisely what constitutes
an ‘error’ sufficient to warrant reconsideration of a constitutional precedent cannot be reduced to a neat formula.”).
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But the considerations include (1) whether the case was
inadequately considered or wrong when it was decided;4
(2) whether the case conflicts with other decisions;5 and
(3) whether the factual or legal underpinnings of the case
have changed, including whether the case was based on a
significant assumption that has proven to be erroneous.6
         As we explain in the following sections, each of
those three factors supports reconsideration of this court’s
decision in Brown. In section C, we review Brown. We first
explain why the court’s choice to create a per se exigency
exception was not well founded. Although the case presented a state constitutional issue, this court imported federal constitutional law with little explanation of why doing
so was appropriate despite the differences between state
and federal constitutional protections against unreasonable searches and seizures. In addition, the court’s analysis
of the state constitutional rights at issue was unclear at
best. We also explain that the court believed that the per se
exception would be temporary. The premise underlying the
per se exception is that the mobility of vehicles creates a
risk that they will become inaccessible in the time it takes
to get a warrant, and the court expected that advances in

     4
       E.g., State v. Skillicorn, 

, 

 (2021) (overruling prior decision that was internally inconsistent and had created confusion
in the law); State v. Christian, 

, 

 (2013) (overruling
prior decisions that imported federal constitutional analysis without adequately
explaining why it was appropriate to do so to resolve a state constitutional issue);
Yancy v. Shatzer, 

, 

 (2004), abrogated on other grounds
by Couey, 

 (overruling prior case that had recognized an exception
to the mootness doctrine “without undertaking any effort to determine whether
such an exception was compatible with the scope of the judicial power granted
under the Oregon Constitution”).
     5
       E.g., State v. Payne, 

, 

 (2020) (reversing
case based on conflict with subsequently decided cases); Multnomah County v.
Mehrwein, 

, 

 (2020) (recognizing that it is appropriate to reconsider those decisions that cannot fairly be reconciled with other
decisions, and overruling prior decision that conflicted with prior and subsequent
case law); Couey, 

 (overruling prior decision that could not “be fairly
reconciled with other decisions of this court on the same constitutional provision”); State v. Savastano, 

, 

 (2013) (overruling prior
case that conflicted with “cases that both preceded and followed it”).
     6
       E.g., State v. Lawson, 

, 

 (2012) (revising test
for admissibility of eyewitness identifications because test was “incomplete and,
at times, inconsistent with modern scientific findings” and “somewhat at odds
with its own goals and current Oregon evidence law”).
146                                         State v. McCarthy

technology would reduce that time and, thereby, eliminate
the need for a per se exception. Consequently, in section C,
we conclude that, because Brown did not focus on state constitutional law, was based on unclear reasoning, and created a per se rule that the court intended to be temporary,
Brown itself provides reasons for reconsidering its per se
rule.
          In section D, we review the automobile exception
cases this court has decided since Brown. In Brown, this
court created a per se exigency exception because it believed
that doing so would provide clarity in the law regarding
when officers can seize and search vehicles without warrants. Subsequent cases show, however, that Brown’s per se
rule has not created the clarity that the court hoped it
would. That is in part because the rule is ambiguously
phrased. It is also because the rule is disconnected from
its rationale: The rule is based on the asserted risk that
contraband or evidence will be lost, but it applies even when
there is no such risk. Because there is little logic to the rule,
it is difficult to apply and has not led to clarity or stability in the law. In addition, Brown’s per se exigency exception is inconsistent with subsequently decided cases in
two ways. First, it is inconsistent with this court’s recent
decision in Andersen II, which altered the per se nature
of the exception (although the extent of that alteration is
unclear because, after this court decided Andersen II, it
decided Bliss, which described Brown as having created
a per se rule and did not mention that Andersen II had
altered it). Second, it is inconsistent with recent cases in
which this court has made clear that the scope of an exception to the warrant requirement must be limited by the
purposes of the exception. Consequently, in section D, we
conclude that the cases this court has decided since Brown
weigh in favor of revisiting Brown’s per se rule because
they show that the rule has not created the clarity that
the court hoped it would, that the rule is inconsistent with
Andersen II and unclear after Bliss, and that the rule is at
odds with this court’s recent cases—decided since Brown
and Andersen II—holding that a warrant exception must
be applied consistently with the purposes animating the
exception.
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         In section E, we discuss technological and legislative changes since Brown that weigh in favor of reconsidering
its per se exigency exception. As mentioned, in Brown this
court anticipated that advances in technology would make it
possible to reduce the time it takes to get a warrant and, as
a result, reduce the need to seize and search vehicles without
warrants. Brown was decided in 1986, and technology has
changed substantially since then. The law governing warrants has also changed: The legislature has regularly updated
the statute governing warrants to expedite the warrant process for telephonic and electronic warrants. As a result, it
is now possible, as Brown anticipated, for officers to apply
for and receive warrants in a matter of minutes, not hours.
Consequently, in section E, we conclude that technological
and legislative changes relevant to warrant processing weigh
in favor of revisiting Brown’s per se exigency exception.
         Ultimately, we conclude that there are numerous
reasons to reconsider Brown’s per se exigency exception.
Some have existed since Brown itself; others have accumulated in the years since Brown; and still others have arisen
as a result of our most recent automobile exception cases
and other warrant exception cases. We further conclude
that, in light of those same reasons, that Brown should be
overruled: the per se exception was not well founded, it has
not created clarity, it is inconsistent with recent cases, it
was intended to be temporary, it is no longer justified given
changes in technology and the processes for obtaining electronic warrants, and it can diminish the incentives for officers to apply for warrants and for jurisdictions to improve
warrant processes.
          Therefore, in section F, we hold that there is no longer a special exigency rule for vehicles. Instead, vehicles are
subject to the general “exigent circumstances” exception to
the warrant requirement that applies to other types of property. In order to justify a warrantless seizure or search based
on exigent circumstances, the state must prove that there
was a situation requiring law enforcement “to act swiftly to
prevent danger to life or serious damage to property, or to
forestall a suspect’s escape or the destruction of evidence.”
Stevens, 

.
148                                        State v. McCarthy

C. State v. Brown
         In Brown, the defendant’s girlfriend told two officers that the defendant had assaulted her and stolen her
property. She also told them that the defendant always carried a handgun in a “black purse” either on his person or in
the trunk of his car. The next day, the officers stopped the
defendant while he was driving his car. The officers told the
defendant that the reason for the stop was to arrest him
for assault and theft, and they also told him about his girlfriend’s statement regarding the handgun. After the defendant declined to consent to a search of his car, the officers
searched the car without a warrant. In the trunk, they
found a closed black leather bag that contained a handgun.
         One officer later testified that the defendant had
been handcuffed during the entire search. The other officer could not remember when, or if, the defendant had been
handcuffed, but he testified that the officers had put the
defendant in their patrol car before they searched the trunk.
         Based on the discovery of the handgun, the defendant was charged with two weapons offenses. The trial court
ruled that the warrantless search of the defendant’s car
did not violate Article I, section 9, but the Court of Appeals
reversed, and this court allowed review.
          On review, the court stated that the case presented
“the heretofore unanswered question: Is there “an ‘automobile exception’ to the warrant requirement of Article I, section 9, of the Oregon Constitution?” Brown, 

.
The court emphasized that the question was one of state law
and that it was “deciding th[e] case independent of federal
law.” 

 But the court did not ground its analysis in the text
of Article I, section 9, or any of its cases construing that
provision independently of federal law. Instead, it relied on
United States Supreme Court cases construing the Fourth
Amendment’s prohibition against unreasonable searches
and seizures. 

.
        The court quoted Carroll v. United States, 

, 

, 

 (1925), for the proposition
that there is a difference between searches of stationary
structures and searches of vehicles because vehicles “ ‘can
Cite as 

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be quickly moved out of the locality or jurisdiction in which
the warrant must be sought.’ ” Brown, 

 (quoting
Carroll, 

). And the court relied on United States
v. Ross, 

, 

, 

 (1982),
for the proposition that, if officers have probable cause to
search a vehicle for an object, they can search “ ‘every part
of the vehicle and its contents that may conceal the object.’ ”
Brown, 

 (quoting Ross, 

). Thus,
the court understood Carroll and Ross as establishing that
the risk that a vehicle will be moved out of a jurisdiction can
create an exigency that justifies a search of the entire vehicle and its contents.
         From there, the court went on to reason that
   “if police have probable cause to believe that a person’s
   automobile, which is mobile when stopped by the police,
   contains contraband or crime evidence, the privacy rights of
   our citizens are subjected to no greater governmental intrusion if the police are authorized to conduct an immediate
   on-the-scene search of the vehicle than to seize the vehicle
   and hold it until a warrant is obtained. The police ticket to
   admission into a stopped mobile vehicle is probable cause.”
Id. at 276 (emphasis added). Thus, it appears that the court
weighed the intrusiveness of an immediate warrantless
search against the intrusiveness of a later warranted search.
In other words, it appears that the court assumed that officers seeking to search vehicles will always have probable
cause and, therefore, warrant applications will always be
granted, so there is no harm in allowing officers to conduct
immediate warrantless searches.
         The court repeated that reasoning later in the opinion, stating:
   “[F]or constitutional purposes no difference exists between,
   on the one hand, seizing and holding a car before presenting the probable cause issue to a magistrate and, on the
   other hand, carrying out an immediate search without a
   warrant. Given probable cause to search, either course is
   reasonable under the Oregon Constitution.”
Id. at 278 (emphasis added). That statement also indicates
that, when creating its automobile exception, the court
assumed away the very risk that the warrant requirement
150                                            State v. McCarthy

is intended to protect against: the risk that an officer will
not actually have probable cause to search.
         Alternatively, it may be that the court reasoned
that, given the length of time that it generally took to obtain
a warrant, there was no constitutional difference between
immediately searching a vehicle, on the one hand, and
detaining the vehicle for the duration of the warrant process, on the other hand. In other words, it may be that the
court reasoned that an immediate search is no more intrusive than a lengthy seizure.
         Ultimately, the court’s reasoning regarding the
intrusiveness of the government actions it was comparing
is unclear. What is clear, however, is that the court chose
to create an exigent circumstances exception based on the
risk that a vehicle will be moved and, as a result, evidence
will be lost. What is also clear is that the court chose not
to limit the exception to circumstances where there is an
actual risk that a vehicle will be moved. Instead, in order to
provide clarity to law enforcement officers, the court chose
to create a categorical rule based on whether a vehicle was
“mobile when stopped by the police.” Id. at 276-78. The court
explained:
       “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. Police
   need clear guidelines by which they can gauge and regulate their conduct rather than trying to follow a complex
   set of rules dependent upon particular facts regarding the
   time, location and manner of highway stops.”
Id. at 277. Consequently, the court ruled that an officer
may conduct a warrantless search of a car if “(1) the car
was mobile at the time it was stopped by the police; and
(2) the police had probable cause to believe that the car contained contraband or crime evidence.” Id. at 278. The court
further ruled that, during such a search, an officer may look
in any place “ ‘in which there is probable cause to believe’ ”
that the contraband or evidence “ ‘may be found.’ ” Id. at 279
(quoting Ross, 

). Applying those rules, the
court held that the warrantless search of the defendant’s
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car and black leather bag did not violate Article I, section 9.

        Notably, the court did not intend the automobile
exception to be permanent. The exception was based on
the length of time it generally took to get warrants, which
the court expected would be reduced in the “near future”
because of advances in technology:
       “In this modern day of electronics and computers, we
   foresee a time in the near future when the warrant requirement of the state and federal constitutions can be fulfilled
   virtually without exception. All that would be needed in
   this state would be a central facility with magistrates on
   duty and available 24 hours a day. All police in the state
   could call in by telephone or other electronic device to the
   central facility where the facts, given under oath, constituting the purported probable cause for search and seizure
   would be recorded. The magistrates would evaluate those
   facts and, if deemed sufficient to justify a search and seizure, the magistrate would immediately issue an electronic
   warrant authorizing the officer on the scene to proceed.
   The warrant could either be retained in the central facility
   or electronically recorded in any city or county in the state.
   Thus, the desired goal of having a neutral magistrate could
   be achieved within minutes without the present invasion of
   the rights of a citizen created by the delay under our current
   cumbersome procedure and yet would fully protect the rights
   of the citizen from warrantless searches.”

 n 6 (emphasis added). Thus, the court envisioned a process in which officers would call magistrates who
would determine whether the officers had probable cause to
search and, if the officers did, the magistrates would immediately issue electronic warrants.
         Brown was decided by a six-person court, the same
day as State v. Bennett, 

, 

 (1986),
which also involved the warrantless seizure and search of
a vehicle. In each case, four justices joined in the majority
opinion. In Bennett, Chief Justice Peterson confessed that he
was troubled by the majority’s per se rule because it deviated
from the “basic constitutional rule” that, “[i]f it is possible
to get a warrant,” officers should “get a warrant.” 301 Or at
307 (Peterson, C. J., concurring). But, he explained, search
152                                           State v. McCarthy

and seizure law at the time was unclear; the court had
recently decided several cases relying on Supreme Court
cases that the Supreme Court later overruled. Id. at 305.
Believing that the majority’s rule was clear and workable,
Chief Justice Peterson joined in the majority with the aim of
“putting the question to rest, to the end that everyone will
know and understand what is the rule.” Id. at 308.
         Justice Linde dissented in Brown, joined by Justice
Lent. The dissent argued that the majority’s rule was based
on a false premise: “that the mobility of a motor vehicle does
not allow time to obtain a warrant to search it.” Brown, 

 (Linde, J., dissenting). According to the dissent,
   “[a]s a statement about ‘exigency,’ the proposition that it
   always, or generally, is impossible to obtain a warrant to
   search a vehicle after it has been stopped in transit is simply contrary to fact, especially in cases where the occupants
   have been placed in custody outside the vehicle.”

. The dissent argued that whether there is a risk
that evidence will be lost if police are required to obtain a
warrant is a question that should be resolved on a case-bycase basis: “Exigencies are emergencies, circumstances that
require urgent action; of course they arise case by case.” 

In addition, the dissent pointed out that the majority’s justification for it its rule did not support the breadth of the rule.
According to the dissent, the majority’s desire to rest its rule
“on the exception for exigent circumstances and also to give
police officers general permission for warrantless searches
of automobiles irrespective of actual exigency leads only to
an unresolved contradiction.” 

         The dissent also took issue with the majority’s conclusion that conducting an immediate warrantless search of
a vehicle is no more intrusive than holding a vehicle while a
warrant is requested. 

. The dissent explained:
       “The faulty assumption is that the court must choose
   between the ‘intrusiveness’ of an immediate search and
   of a temporary seizure to await a warrant and make that
   choice as a categorical matter of law. That is not so. The
   obvious, and correct, alternative is that the choice belongs
   to the person whose constitutional interests are at stake.
   An officer reasonably believing that he has probable cause
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   to search an automobile trunk in the presence of the owner
   or driver can offer the person an informed choice between
   consenting to an immediate search or having the automobile held for the time necessary to obtain a warrant.
       “This is even more obviously true of bags or other closed
   containers. The person, not the officer, is the one to decide
   whether to insist on the right to have the supposed probable cause tested by a magistrate and to accept the inconvenience of the necessary seizure. There simply is no basis for
   this court or any court to make such a categorical choice for
   all owners of automobile trunks or closed containers found
   in automobiles as a class. If a person insists on the required
   warrant, there well may be exigent circumstances for a seizure when there are not for searching a container after it
   has been seized.”

 (footnote omitted).
         In addition, the dissent cautioned that the per se rule
would not bring clarity. Id. at 291-92. And, although the dissent appreciated that the majority’s rule was a “temporary
accommodation” and “open to future reconsideration” in the
event of changes in the warrant process, the dissent thought
that the state would make those desired changes sooner if
the court enforced the warrant requirement instead of recognizing a new exception to it. Id. at 280, 293-94.
         What our review of Brown shows is that, although
the case concerned Article I, section 9, the court relied on
cases construing the Fourth Amendment. That is significant
because this court has a duty to analyze state constitutional
provisions independently from similar federal ones. State v.
Caraher, 

, 

 (1982) (“It is our belief
that the citizens of Oregon are entitled to an analysis of the
protections afforded by the Oregon Constitution independent
of the United States Constitution.”). Moreover, Article I, section 9, analysis differs from Fourth Amendment analysis.
Although federal law construing the Fourth Amendment
uses a “reasonable expectations of privacy” test to evaluate warrantless searches and seizures, state law construing Article I, section 9, does not. This court has expressly
rejected the “reasonable expectations of privacy” approach
for assessing whether a government action violates Article I,
section 9. State v. Campbell, 

, 

154                                           State v. McCarthy

(1988). That is because “the privacy protected by Article I,
section 9, is not the privacy one reasonably expects but the
privacy to which one has a right.” 

 (citing Tanner, 

 n 7) (emphases in original). For the purposes of
Article I, section 9, privacy rights are determined by “an
objective test of whether the government’s conduct ‘would
significantly impair an individual’s interest in freedom from
scrutiny, i.e., his privacy.’ ” State v. Wacker, 

,

 (1993) (quoting State v. Dixson/Digby, 

, 

 (1988)).
         As mentioned, seizures and searches are separate
events, requiring separate justifications. Tanner, 

. Thus, in Brown, the court should have first analyzed
whether seizure of the defendant’s car was justified, and,
if it was, then the court should have analyzed whether the
search of the car was justified. If the court had undertaken
that two-step analysis, it would have had to determine
whether, after the seizure, any exigency justified the search.
But the court did not undertake that analysis. Instead, it
relied on federal cases, which, as we will explain, do not provide a sound foundation for Brown’s per se exigency exception to the state constitution’s warrant requirement. One
of those cases, Carroll, did not establish a per se exigency
exception, and the other, Ross, establishes a per se exigency
exception for seizures, but not searches.
         In Brown, this court stated that, in announcing
its automobile exception, it was aligning itself “with the
traditional federal ‘automobile exception’ to the Fourth
Amendment warrant requirement as set forth in the seminal case of Carroll v. United States … and its progeny.” 301
Or at 274. In Carroll, the Supreme Court did distinguish
between structures and vehicles, as the Brown court noted.
Specifically, the Court stated:
   “[T]he guaranty of freedom from unreasonable searches
   and seizures by the Fourth Amendment has been construed, practically since the beginning of the Government,
   as recognizing a necessary difference between a search
   of a store, dwelling house or other structure in respect of
   which a proper official warrant readily may be obtained,
   and a search of a ship, motor boat, wagon or automobile,
   for contraband goods, where it is not practicable to secure a
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   warrant because the vehicle can be quickly moved out of the
   locality or jurisdiction in which the warrant must be sought.”

 (emphasis added). But the Court did not hold
that the difference between structures and vehicles justifies
warrantless seizures of all vehicles, or even all vehicles that
are stopped in transit. To the contrary, the Court emphasized that, when officers can get a warrant, they must get a
warrant:
   “In cases where the securing of a warrant is reasonably practicable, it must be used, and when properly supported by
   affidavit and issued after judicial approval protects the
   seizing officer against a suit for damages. In cases where
   seizure is impossible except without warrant, the seizing
   officer acts unlawfully and at his peril unless he can show
   the court probable cause.”

 (emphasis added). Thus, Carroll recognized a true
exigency exception for the seizure of vehicles, that is, an
exception that applies only when a seizure would be “impossible except without a warrant.” 

         In later cases, including Chambers v. Maroney,

, 

, 

 (1970), the
Supreme Court relied on Carroll to create a per se exigency
exception to the Fourth Amendment’s warrant requirement.
But, as described in Chambers, the exception does not apply
to all vehicles; it applies only to those that are “readily movable.” Chambers, 390 US at 51. That is, it applies in circumstances where, “if an effective search is to be made at any
time, either the search must be made immediately without
a warrant or the car itself must be seized and held without
a warrant for whatever period is necessary to obtain a warrant for the search.” Id.
          After Chambers, the Court, in Ross, addressed the
permissible scope of a search conducted pursuant to the
federal automobile exception. The Court recognized that, if
officers seize a vehicle, the seizure can eliminate any exigency that would justify a warrantless search. As the court
explained, “although failure to seize a moving automobile
believed to contain contraband might deprive officers of the
illicit goods, once a vehicle has been stopped the exigency
does not necessarily justify a warrantless search.” Ross, 456
156                                        State v. McCarthy

US at 807 n 9 (emphasis in original). As Justice Marshall
observed, where law enforcement can seize a vehicle such
that it is “in the exclusive control of the authorities”—for
example, after its occupants have been arrested—a warrantless search is justified not on the basis of any exigency,
but on another basis: the reduced expectation of privacy
individuals have in their vehicles. Id. at 830 (Marshall, J.,
dissenting).
         To summarize, in Brown, this court did not engage
in an independent analysis of Article I, section 9. Instead, it
relied on federal Fourth Amendment law to create a per se
exigency exception that allows not only for warrantless seizures of vehicles, but also for warrantless searches of seized
vehicles. And it did so even though Carroll did not establish a per se exigency exception, and Ross does not support a
per se exigency exception for searches of seized vehicles.
         Moreover, as described above, the court’s reasoning is unclear. The court either reasoned that an immediate
warrantless search is no more intrusive than a later warranted search, in which case it failed to recognize the purpose of the warrant requirement, which is to protect against
searches that are not supported by probable cause. Or it
reasoned that an immediate warrantless search is no more
intrusive than a prolonged seizure, but, as Justice Linde
explained, that reasoning was unsound. Thus, Brown itself
provides several bases for reconsidering its per se exigency
exception: the court did not utilize its usual framework for
analyzing a state constitutional question, it imported federal law without adequate explanation, and its reasoning is
unclear at best. See Farmers Ins. Co., 

 (recognizing that reconsideration of a prior decision is appropriate
where the court had “failed to apply [the] usual framework
for decision or adequately analyze the controlling issue”).
         To be sure, several of those aspects of Brown were
apparent at the time the case was decided and were mentioned by the dissent. But it is still appropriate to consider
them here because, when determining whether to adhere to
precedent this court considers, among other things, whether
a case was inadequately considered or wrong when it was
decided.
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          In addition, when it comes to the doctrine of stare
decisis, Brown is a unique case. The court did not intend its
per se exigency exception to be permanent. It expected that,
in the “near future,” technological changes would occur and
reduce the amount of time that it took to process a warrant application and, as a result, there would be no basis
for assuming as a general matter that obtaining a warrant
would create a risk that a vehicle would be moved before
it could be seized or searched. Brown, 

 n 6.
Brown’s per se exigency exception was intended as a temporary accommodation to provide clarity to officers. But, as
we explain in the following section, it has not provided that
clarity, and it is now in conflict with other cases—two additional reasons to reconsider Brown’s per se rule.
D. Post-Brown Cases
         In Brown, the court announced its per se rule that
an officer may conduct a warrantless search of a car if
“(1) the car was mobile at the time it was stopped by the
police; and (2) the police had probable cause to believe that
the car contained contraband or crime evidence.” 301 Or at
278. Although the rule was intended to create clarity in the
law, post-Brown cases show that there has been confusion
about the basic elements of the rule, including about what
it means for a vehicle to be mobile, whether the police need
to bring a moving vehicle to a stop, and at what point police
need to have probable cause.
    1.   State v. Kock
        In Brown, the police stopped the defendant’s car
when the defendant was driving it. Consequently, the court
did not address “whether a warrant for the search and seizure of a parked or impounded automobile is required.”
Id. at 277. But, three months after Brown, the court
addressed the warrantless search of a parked car. State v.
Kock, 

, 

 (1986).
         In Kock, two officers conducting surveillance in the
parking lot of the store where the defendant worked saw the
defendant come to work and enter the store. Approximately
two hours later, the officers saw the defendant leave the
store, place a package in his car, and return to the store.
158                                           State v. McCarthy

To determine what the defendant had put in his car, the
officers searched the car without a warrant and seized the
package, which contained merchandise from the store. The
state charged the defendant with theft, and the defendant
moved to suppress the results of the search.
        On review, this court assumed for the sake of argument that the officers had probable cause to search the car
and, therefore, the court focused on whether the search
was lawful under an exception to the warrant requirement.

. As relevant here, the court held that the search
was not lawful under the automobile exception. 

.
The court explained that it was adhering to the rule it had
announced in Brown:
   “Although logically it can be argued that the rationale of
   the seminal case of Carroll v. United States and its progeny,
   including United States v. Ross, would justify extending
   the automobile exception to automobiles that are capable of
   mobility, we elect to draw the so-called bright line of Brown
   just where we left it in that case: … [A]utomobiles that
   have just been lawfully stopped by police may be searched
   without a warrant and without a demonstration of exigent
   circumstances when police have probable cause to believe
   that the automobile contains contraband or crime evidence.”

 (citations omitted). The court further explained
that Brown established the “outer limit for warrantless
automobile searches without other exigent circumstances.”

. Therefore, the court ruled:
   “Any search of an automobile that was parked, immobile
   and unoccupied at the time the police first encountered it in
   connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively,
   the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile
   exist.”

 Applying that rule, the court held that, because the state
had “failed to demonstrate any individualized exigent circumstances,” the warrantless search of the defendant’s car
violated Article I, section 9. 

.
        In sum, the automobile exception did not apply in
Kock because the defendant’s car was parked and unoccupied
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when the officers “first encountered it in connection with
the investigation of a crime”—that is, when the officers first
developed probable cause. Thus, Kock indicates that officers
“encounter” a car in connection with a crime when they have
probable cause to seize or search it, not simply when they
see it. It also indicates that the exception does not apply simply because a car was recently driven and the person who
drove it is still nearby, and, relatedly, that “mobile” means
“moving,” not “operable or capable of moving.”
    2. State v. Meharry
         Following this court’s decision in Kock, the Court
of Appeals held that the automobile exception did not apply
to the warrantless search of a van that was parked when
an officer developed probable cause to search it. State
v. Meharry, 

, 

 (2005)
(Meharry I), rev’d, 

 (2006). In Meharry, a local
fire chief saw a van being driven erratically and reported
his observations to a police officer, who spotted the van and
followed it in his patrol car, without using his siren or overhead lights. The officer saw the defendant drive the van into
the parking lot of a convenience store, park, and go into the
store. The officer parked his patrol car behind the van and
went into the store, where he questioned the defendant and
developed probable cause to believe that the defendant had
been driving under the influence of intoxicants. The defendant agreed to take field sobriety tests outside the store,
and, after she failed the tests, the officer arrested her. After
finding a syringe in the defendant’s pocket, the officer then
conducted a warrantless search of the van. Based in part
on evidence found during that search, the state charged the
defendant with driving under the influence of intoxicants
and with several drug crimes.
         The defendant moved to suppress the evidence
found in the warrantless search of the van, and the trial
court granted the motion. The Court of Appeals affirmed,
relying on Kock and holding that the van was not mobile
when the officer first encountered it. Meharry I, 

. Quoting an earlier case in which it had addressed
the scope of the automobile exception, the court stated that,
“ ‘although the meaning and contours of “encounter” as used
160                                        State v. McCarthy

in the case law are somewhat amorphous, it is clear that
merely observing a vehicle from a distance without any show
or exercise of police authority is not an “encounter” for purposes of the automobile exception.’ ” 

 at 618 (quoting State
v. Mosely, 

, 

 (2001), rev den,

 (2002)). Applying that understanding, the court
concluded that the automobile exception did not apply. 

         On review, this court reversed the Court of Appeals’
decision. State v. Meharry, 

, 

 (2006)
(Meharry II). Although the Brown rule is that an officer may
seize and search a car if (1) the car was mobile at the time
it was stopped by the police, and (2) the police have probable
cause to believe that the car contains contraband or crime
evidence, this court concluded that it did not matter that the
officer had not caused the defendant’s van to stop or that the
defendant had parked the van and gone into the store before
the officer parked his patrol car behind it. The court noted
that the officer had seen the van being driven shortly before
he searched it, that the officer “had not impounded the van,”
and that “there was no physical or mechanical impediment
to the van’s being driven away once [the officer] relinquished
control over it.” Meharry II, 

. Therefore, the
court concluded, “the van remained mobile and the exigency
continued.” 

 (emphasis added).
        Thus, although in Brown the court appeared to use
the term “mobile” to mean “moving,” 301 Or at 277, and in
Kock the court expressly declined to extend the automobile
exception to vehicles that are “capable of mobility,” 302 Or
at 32-33, the court in Meharry II appeared to use the term
“mobile” to mean capable of movement, concluding that the
defendant’s parked van “remained mobile,” 

.
         Justice Durham concurred in the court’s decision,
noting that the defendant had not argued that the court
had erred in Brown. 

 (Durham, J., concurring). He
wrote separately to raise two concerns about Brown. One
concern was that Brown “understated the constitutional policy requiring a judicial examination of the particular facts
to determine whether a particular search is reasonable.”

. In Justice Durham’s view, “The one-size-fits-all
rule of Brown for searching a citizen’s property is difficult
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to harmonize with the state constitutional prohibition on
searches that are not reasonable under all the particular
circumstances.” Id. at 181-82. The other concern was that
“the Brown court’s decision oversold the notion that it would
lead to certainty,” because “whether a vehicle is ‘mobile,’ or
sufficiently mobile under the particular facts to permit a
warrantless search, can change with every stop.” Id. at 181
(emphasis in original).
    3. State v. Kurokawa-Lasciak
          Unsurprisingly, after Meharry II, the Court of
Appeals held that the automobile exception applied to a vehicle because the vehicle was capable of moving at the time an
officer developed probable cause. State v. Kurokawa-Lasciak,

, 

 (2010) (Kurokawa-Lasciak I),
rev’d, 

 (2011). In Kurokawa-Lasciak, casino officials suspected the defendant of money laundering, and,
when the defendant refused to provide identification, the
officials barred him from making future transactions and
distributed a photograph of him to all the casino’s cashiers.
When the defendant saw one of the photographs, he grabbed
it and walked away. A casino employee then alerted a state
trooper assigned to the casino as a gaming detective. Video
surveillance showed that the defendant left the casino,
walked to his rental van in the casino’s parking lot, drove
to a gas station operated by the casino, and then returned
to the parking lot with his girlfriend, parked the van, and
began walking back to the casino. When the defendant was
approximately 30 feet from the van, a deputy sheriff stopped
and detained him until the state trooper arrived. Neither
the deputy nor the trooper had seen defendant drive the van
and neither had reviewed the video surveillance before contacting the defendant.
          The trooper questioned and arrested the defendant,
who refused to consent to a search of the van. The trooper
then questioned the defendant’s girlfriend, Campbell, asking, among other things, whether there was any marijuana
in the van. Campbell answered that there was a “little bit,”
and that it was “probably under [an ounce], but could be over
a little bit.” Ultimately the trooper obtained Campbell’s consent to a search of the van and searched it, finding several
162                                                      State v. McCarthy

ounces of marijuana and hashish, electronic gram scales,
and approximately $48,000 in cash.
          The defendant moved to suppress the evidence
obtained through the search, and the trial court granted
his motion, ruling that Campbell’s consent was involuntary
and the automobile exception did not apply because the
trooper did not have probable cause to search the van until
Campbell admitted that there were drugs inside it and, at
that time, the van was not mobile. The Court of Appeals
reversed on the ground that the van was mobile. Kurokawa-Lasciak I, 

. The court noted that, although
in Kock this court had “in no uncertain terms rejected the
theory that the exception extended to ‘stationary but operational vehicle[s],’ ” the courts had since “ ‘refined the automobile exception analysis,’ ” and “at present, a vehicle is
‘mobile’ for purposes of the automobile exception as long as
it is operable.” 

 (first quoting Kock, 

;
then quoting State v. Coleman, 

, 

(2000); and then citing Meharry II, 

).7
     7
       When doing so, the Court of Appeals mentioned the lack of stability in the
case law applying the automobile exception, commenting that the exception had
“what charitably might be called an irregular history.” Kurokawa-Lasciak I, 

.
     Earlier, in State v. Snow, 

, 

 (2002), aff’d,

, 

 (2004), the court had similarly stated that “the exception’s
development [had] not necessarily always been internally consistent.” In Snow,
the court recapped the following automobile exception cases, which illustrate
that inconsistency. 

.
     In State v. Vaughn, 

, 

, rev den, 

 (1988),
the court held that a vehicle was not mobile because, even though officers had
seen it moving earlier, it was parked and unoccupied when the officers confronted
its driver about criminal activity.
     Then, in State v. Cromwell, 

, 

 (1991), the
court held that a vehicle was mobile—even though officers had not seen it move
and its engine was not running—because it was parked in the middle of the roadway with its parking lights on and the defendant was in the driver’s seat when
the police developed probable cause that it contained contraband.
     Next, in State v. Warner, 

, 

 (1992), the court
held that a vehicle was not mobile, even though an officer had seen it moving,
because it appeared to be having mechanical problems when the police developed
probable cause to search it.
     Later, in State v. Burr, 

, 

, rev den, 

(1995), the court held that a pickup truck was mobile, even though officers had
never seen it move and no one was in it, because it was “parked along a public
highway at night in an isolated area” and four persons were attempting to load a
raft into it shortly before the officers developed probable cause to search it.
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          On review, this court reversed the decision of the
Court of Appeals, noting that “the court in Meharry did not
dispense with the Brown and Kock requirement that, to qualify for the automobile exception, the vehicle that the police
search must be mobile at the time that the police encounter
it in connection with a crime.” Kurokawa-Lasciak II, 351 Or
at 192. The court explained that its statement in Meharry II,
that the defendant’s van “remained mobile” after it was
parked, was “only to correct the Court of Appeals’ statement
that the initial exigency no longer existed when the police
searched the van.” Id. The court further explained that it
had not intended that statement “to eliminate the requirement of the automobile exception that the vehicle be mobile
at the time of the initial encounter or to replace it with a
requirement of operability at the time of the initial encounter.” Id. at 193. Applying that requirement, the court found
that the deputy had stopped the defendant 30 feet from his
van, which was parked, immobile, and unoccupied, and that,
when the trooper questioned the defendant, they were no
longer near the van. Id. at 194. Thus, the court concluded,
“there was no evidence from which the trial court could have
found that defendant’s van was mobile when [the deputy] or
[the trooper] encountered it in connection with a crime” and
the automobile exception did not apply. Id.
     3. State v. Andersen
          In this court’s next automobile exception case,
Andersen II, 

, the issue related to what constitutes an “encounter.” In that case, two officers were waiting for the defendant’s car to arrive at a parking lot to
complete a drug sale arranged through a confidential informant. The first officer overheard a cellphone conversation
between the defendant’s passenger and the informant, in
which the passenger told the informant that the defendant’s

     But, in State v. Coleman, 

, the court held that the defendant’s
car was not mobile, even though the defendant was a few feet from it when the
officers first saw him, because it was unclear whether the officers focused their
attention on the car before or after they arrested the defendant.
     As that relatively small sample of cases shows, the Brown rule—that an officer may search a vehicle without a warrant if the vehicle was mobile when the
officer first encountered it and the officer has probable cause—has given rise to
questions regarding what it means for a car to be mobile, what constitutes an
encounter, and when the officer must have developed probable cause.
164                                        State v. McCarthy

car was arriving at the parking lot. The second officer then
drove to another area of the parking lot, where he saw the
defendant’s car parked with the motor running. Both officers approached the car and prevented it from leaving until
a drug detection dog arrived and alerted to the presence
of drugs, giving the officers probable cause to search the
car. The officers searched the car and its contents without
a warrant and discovered drugs in the defendant’s purse,
which she later moved to suppress. The trial court denied
the defendant’s motion, ruling “that this was a mobile vehicle, as that term is meant in the vehicle exception,” but the
Court of Appeals reversed on the ground that the police
had not encountered the car until it was parked. State v.
Andersen, 

, 

 (2015) (Andersen I),
rev’d, 

 (2017).
         On review, this court held that, although the officers did not see the defendant’s car drive into the parking
lot, the running account of the car’s movement provided by
the defendant’s passenger provided them with confirmation
that the car was mobile, despite the fact that it was parked
when officers first saw it in the parking lot. Andersen II, 361
Or at 198. The court therefore concluded that the car was
mobile when the police first encountered it in connection
with a crime. Id.
         In Andersen II, the defendant had argued that, if
this court concluded that the search of his car came within
the automobile exception, as the court’s cases had described
it, then the court should overrule the exception. The court
declined to do so, and it wrote to address the defendant’s
argument that the court “should overrule Brown because
warrants can now be obtained within minutes.” Id. at 199.
The court questioned the defendant’s premise, observing that although technological advances can reduce the
amount of time required for communications during the
warrant process, other aspects of the process—which can
include the completion of a written warrant application by
an officer and the review of that application by a district
attorney—can take substantial amounts of time. Id. at 200.
       But the court acknowledged that there may be circumstances where the exception will no longer apply:
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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. See State v. Machuca, 

, 

 (2010) (explaining that, under Article I, section 9, the
      exigency arising from the dissipation of alcohol ordinarily
      will permit a warrantless blood draw while recognizing
      that the particular facts in an individual case may show
      otherwise); cf. Missouri v. McNeely, 

, [163-65,]
      

, 

 (2013) (rejecting the state’s
      argument that the exigency resulting from the dissipation
      of alcohol will be present in every case).”

          In a concurrence, then-Justice Walters highlighted
the significance of that paragraph, stating that in it the
majority recognized “that the exception created in [Brown] is
and must be aligned with other Oregon exigency exceptions
to the warrant requirement.” 

 (Walters, J., concurring).8 Justice Walters explained that this court “has long
held … that whether exigent circumstances exist must be
determined based on the particular facts presented, and not
on a categorical basis or pursuant to a per se rule.” 

 She
further explained:
         “In permitting that same case-by-case analysis when
      the state relies on the automobile exception to justify a
      warrantless search, the majority assures that, unless exigent circumstances are actually present, a neutral magistrate, and not the individual who performs the search, will
      determine whether there is probable cause to search. That
      mode of analysis is essential to protect Oregonians’ right
      to privacy. Any other rule would ‘improperly ignore the
      current and future technological developments in warrant
      procedures,’ and ‘diminish the incentive for jurisdictions
      “to pursue progressive approaches to warrant acquisition
      that preserve the protections afforded by the warrant while

      8
          Justice Walters became Chief Justice in 2018, after Andersen II, but before
Bliss.
166                                            State v. McCarthy

      meeting the legitimate interests of law enforcement.” ’
      McNeely, [

] (quoting State v. Rodriguez, …
      

 (2007)).”

         Andersen II is significant because it altered the signature aspect of the Brown rule. In Brown, the court held
that nothing “in addition to the mobility of an automobile
at the time it is lawfully stopped is required to create exigency under the automobile exception.” 301 Or at 277. To
illustrate, the court stated:
      “[I]t does not matter whether the passenger could have
      taken over the custody of the car …, whether the police
      had adequate personnel to back-up the arrest, whether a
      tow truck was available, whether a magistrate was available by telephone or otherwise, or whether a threatening
      crowd gathered, etc.”
Id. at 278 (emphasis added; footnote omitted). Thus, under
Brown, whether an exigency exists does not depend on casespecific facts, other than whether the vehicle at issue was
mobile when it was stopped and whether probable cause
exists. It “does not matter” whether, for example, a warrant
could have been obtained. Id. But, under Andersen II, it does.
       4. State v. Bliss
         The effect of Andersen II is unclear, however,
because of this court’s most recent automobile exception
case, Bliss, 

. The defendant in Bliss did not challenge the automobile exception itself; he argued only that
the exception did not apply in his case because he had been
stopped in connection with a traffic violation and not in connection with a crime. Noting that Brown was intended to
create a bright-line rule that established the outer limits
of the automobile exception, the defendant relied on several of this court’s cases in which this court considered the
mobility of a vehicle at the time the police encounter it “in
connection with a crime.” E.g., Kurokawa-Lasciak II, 351 Or
at 192 (affirming that “to qualify for the automobile exception, the vehicle that the police search must be mobile at
the time that the police encounter it in connection with a
crime”); Andersen II, 361 Or at 197 (same); Kock, 302 Or at
Cite as 

 (2021)                                        167

33 (considering the mobility of a car when “the police first
encountered it in connection with the investigation of a
crime”). This court rejected the defendant’s argument, concluding that its prior use of the phrase “in connection with
a crime” merely described the facts of the cases in which the
phrase was used and was not intended to be a requirement.
Bliss, 

.
        Because the defendant’s argument was that the
automobile exception did not apply to stops like his at all,
the court did not address whether, as it had just stated in
Andersen II, there could be circumstances in which a warrant could be obtained quickly enough to obviate the exigency underlying the exception. But, in rejecting the defendant’s argument, the court stated that
   “much of the rationale of Brown was 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. … Defendant’s proposed distinction between
   stops based on traffic violations and stops based on criminal activity would be complex in practice and undercut the
   clarity Brown sought to establish.”
Bliss, 

 (quoting Brown, 

). Thus,
although this court altered the per se nature of the automobile exception in Andersen II, in Bliss it based its decision in
part on the court’s goal of providing a per se rule.
          Chief Justice Walters dissented in Bliss and was
joined by Justice Nakamoto. Noting that, in Kurokawa-Lasciak II, this court had stated that “ ‘the “automobile
exception” to the warrant requirement of Article I, section
9, of the Oregon Constitution, does not permit a warrantless
search of a defendant’s vehicle when the vehicle is parked,
immobile, and unoccupied at the time that the police encounter it in connection with a crime,’ ” the dissent would have
held that the exception does not apply to vehicles that were
mobile when stopped for a traffic violation, but were not
mobile when the police later developed probable cause that
a defendant had committed a crime. Bliss, 

(Walters, C. J., dissenting) (quoting Kurokawa-Lasciak II,
351 Or at 181) (emphasis added). Therefore, the dissent
168                                         State v. McCarthy

would have concluded that the officers were not permitted
to search the defendant’s vehicle based on an assumed exigency; instead, they had to either obtain a warrant or rely
on another exception to the warrant requirement. Id. at 439.
      5. Summary of post-Brown automobile exception cases
         What our review of cases from Brown to Bliss shows
is that the automobile exception has created confusion and is
currently unclear. The purpose of the exception is to enable
officers to respond to the risk that contraband or evidence
will be lost because a vehicle can be moved out of the jurisdiction in which a warrant must be sought. But the scope
of the exception exceeds its purpose. Although it is an exigent circumstances exception, it applies when there are no
exigent circumstances. That is, it applies when there is no
actual risk that a vehicle will be moved and that contraband
or evidence will be lost.
          Of course, that is because the exception is a per se
exception, intended to provide clarity for law enforcement
officers. So, instead of focusing on whether there is a risk
that a vehicle will be moved, officers (and lawyers and
judges) must focus on the rule as this court has phrased it.
Thus, there is a disconnect between the rationale for the
rule and the rule itself, and that can be confusing. See, e.g.,
Kurokawa-Lasciak II, 351 Or at 193 (acknowledging the
“logic of the state’s position” that it is just as likely that a
person in control of an operable car that was parked when
the police encountered it will drive away with evidence or
contraband as will a person who was in control of an operable car that was moving when the police encountered it);
Kock, 

 (recognizing that it could be logically
argued that the exception should be extended to vehicles
that are capable of mobility).
         Moreover, the phrasing of the rule has created confusion. In Brown, this court held that an officer may conduct
a warrantless search of a car if “(1) the car was mobile at
the time it was stopped by the police; and (2) the police had
probable cause to believe that the car contained contraband
or crime evidence.” 301 Or at 278. And, in Kock, this court
added that “any search of an automobile that was parked,
Cite as 

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immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must
be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist.” 302 Or at 33. Courts have disagreed about the
basic elements of the exception. There has been confusion
about the meaning of “mobile,” what constitutes an “encounter,” and whether the encounter must be in “connection with
a crime.” And the confusion has not been minor: In Meharry,
Kurokawa-Lasciak, and Andersen, the Court of Appeals
understood the rule one way, and this court understood it
another.
        In addition, Brown is in conflict with other, more
recent cases. Most notably, it is in conflict with Andersen II,
as described above. That conflict is another reason to revisit
Brown’s per se exigency exception and clarify its current
status.
         The state argues that we should adhere to Brown’s
per se rule because the defendant in Andersen II made some
of the arguments that defendant makes in this case and
the court in Andersen II declined to overrule Brown’s per se
rule. But Andersen II did not affirm that rule; it altered it.
Consequently, Andersen II does not support the state’s claim
that we should adhere to Brown.
         The state also relies on Bliss, but as discussed, the
defendant in Bliss did not raise the issue of whether the
automobile exception is a per se rule. The defendant’s “sole
argument” was that the exception “does not apply when the
initial stop is for a traffic violation, rather than for a criminal offense.” Bliss, 

. The defendant did not
argue that the exception requires an actual exigency, as
defendant does here. Thus, Bliss does not resolve the question in this case. Instead, in light of Andersen II, it raises
questions about the current status of the exception.
    6.   Other post-Brown warrant exception cases
        In addition to the automobile exception cases just
described, other cases decided since Brown (and since
Andersen II) support reconsideration of Brown’s per se
170                                         State v. McCarthy

exigency exception. Those cases concern other exceptions to
the Article I, section 9, warrant requirement, and they make
clear that a warrant exception “must be applied consistently
with the purposes animating the exception.” Fulmer, 

. In other words, “the contours of the particular exception are circumscribed by the justification for that
exception.” 

; see also State v. Arreola-Botello, 

, 

 (2019) (holding that the scope of
a stop is limited by its purpose, and therefore an officer’s
conduct during a stop must be “reasonably related to the
purpose” of the stop). Those cases support the conclusion
that Brown’s per se rule is impermissibly overbroad in that
it allows for seizures and searches that are not justified by
the purpose of the exception.
         Moreover, since Brown, both this court and the
Supreme Court have recognized problems with per se
exceptions to warrant requirements. In McNeely, the Court
rejected an argument that the natural metabolization of
alcohol in the bloodstream establishes a per se exigency that
justifies an exception to the Fourth Amendment’s warrant
requirement for nonconsensual blood testing in all cases
involving driving under the influence of alcohol. 

.
          In doing so, the Court acknowledged that “some circumstances will make obtaining a warrant impractical such
that the dissipation of alcohol from the bloodstream will
support an exigency justifying a properly conducted warrantless blood test,” but it determined that each case should
be decided on its own facts, and that a per se rule would
reflect “ ‘considerable overgeneralization.’ ” 

 (quoting Richards v. Wisconsin, 

, 

,

 (1997)). In addition, the Court observed that
a per se rule would “improperly ignore the current and future
technological developments in warrant procedures, and
might well diminish the incentive for jurisdictions ‘to pursue
progressive approaches to warrant acquisition that preserve
the protections afforded by the warrant while meeting the
legitimate interests of law enforcement.’ ” Id. at 156 (quoting Rodriguez, 

). And, as Justice Sotomayor
explained, “[w]hile the desire for a bright-line rule is understandable, the Fourth Amendment will not tolerate adoption
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of an overly broad categorical approach that would dilute the
warrant requirement in a context where significant privacy
interests are at stake.” Id. at 158 (opinion of Sotomayor, J.).
Moreover, “a case-by-case approach is hardly unique within
our Fourth Amendment jurisprudence. Numerous police
actions are judged based on fact-intensive, totality-of-thecircumstances analyses rather than according to categorical
rules, including in situations that are more likely to require
police officers to make difficult split-second judgments.”
Id.
         Thus, even in circumstances where the sought-after
evidence is actually dissipating, the Court declined to create
a per se rule. Such a rule would be overbroad, could discourage the development and utilization of improvements to the
warrant process, and was not necessary.
        Following McNeely, this court has also expressed
concern about creating broad exceptions to the warrant
requirement based on generalizations about the length
of time it takes to get a warrant. For example, in State v.
Fessenden/Dicke, 

, 

 (2014), this court
stated:
        “The fact that an exception to the Article, I, section
   9, warrant requirement is at issue is an additional reason for caution. Since 1986, this court has been aware
   that, ‘in this modern day of electronics and computers,’ a
   day will come when the warrant requirement can be fulfilled expeditiously. … Brown, 301 Or [at] 278 n 6 …;
   see also … Kurokawa-Lasciak [II], 351 Or [at] 188 …
   (discussing desirability of ‘a neutral magistrate’s evaluation of probable cause’ and anticipating ‘advances in technology permit[ting] quick and efficient electronic issuance
   of warrants’). In many places and circumstances, obtaining a warrant no longer entails undue delay or prevents
   timely police action. See Riley v. California, [573] US [373,
   401], 

, 

 (2014) (discussing
   ‘[r]ecent technological advances’ that have ‘made the process of obtaining a warrant itself more efficient’); …
   McNeely, [569] US [at 173] (Roberts, C. J., concurring in
   part and dissenting in part) (describing jurisdiction where
   warrants may be obtained electronically in as little as
   15 minutes). Given the perplexing questions presented and
   the current state of technology, we are hesitant to extend or
172                                          State v. McCarthy

   broadly apply exceptions to the warrant requirement without firm constitutional basis.”
Id. at 771.
          Not only can a per se exception diminish the incentive for improving warrant processes, but it can also undermine the warrant requirement by allowing officers to plan to
conduct warrantless searches even when they could obtain
warrants. State v. Colman-Pinning, 

, 

 (2020), illustrates that possibility. In that case, officers working with an informant arranged a drug buy and
“planned to rely on the automobile exception announced in
Brown to stop defendant and conduct a warrantless search
of [his] pickup while he was on his way to the arranged
drug buy.” 

. The officers planned the stop in
advance, which one of the officers described as a “very common” practice. 

. The defendant was charged with
drug crimes based on evidence found during the stop, and
he moved to suppress the evidence on the ground that the
warrant search of the pickup violated Article I, section 9.
The trial court denied the motion, and the Court of Appeals
affirmed, explaining that Brown’s per se rule allows officers to plan to stop vehicles in order to conduct warrantless
searches. 

. The court recognized
   “the dissonance between a planned operation designed
   to ensnare a suspect at a particular time and place in
   order to take advantage of the automobile exception, like
   the one here, and the fact that the automobile exception
   to the warrant requirement is an exigent circumstances
   exception. That is, we typically view an exigency as an
   unforeseen circumstance that requires urgent action, and,
   the orchestrated method used by law enforcement in this
   case—an apparently regular practice in Lincoln County—
   does not have those qualities, which are ordinarily present
   in the type of traffic stop to which the automobile exception is intended to apply. Nevertheless, as we explained in
   McCarthy, the Supreme Court has made clear the per se
   nature of the automobile exception, and we consequently
   cannot say that the police officers in this case were unjustified in planning the operation and relying on the automobile exception in the manner that they did, without having
   an obligation to seek a warrant.”

 (emphases in original).
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         In sum, cases decided since Brown show that Brown’s
per se exigency exception has not created clarity in the law,
is in conflict with other, more recent cases, is the type of rule
that both this court and the Supreme Court have recognized
is overbroad, is not necessary given advances in technology
that can eliminate undue delay, and can diminish the incentives for making improvements to the warrant process and
obtaining warrants when it is practicable to do so.
E.   Post-Brown Technological and Legislative Changes
         In addition to the case law developments since Brown,
there have been technological and legislative changes that
support reconsidering Brown’s per se exigency exception.
When Brown was decided in 1986, “[i]t was the present
unavailability of a general speedy warrant procedure that
led the court to allow an exception for warrantless searches
after stops of mobile vehicles.” State v. Wise, 

, 82
n 3, 

 (1988). But, as described above, the court
anticipated that that situation would change, stating, “In
this modern day of electronics and computers, we foresee
a time in the near future when the warrant requirement
of the state and federal constitutions can be fulfilled virtually without exception.” Brown, 

 n 6. The court
envisioned a process in which an officer would call a magistrate at a central facility and make a recorded statement
under oath describing the facts that the officer believed
constituted probable cause to seize or search a vehicle, the
magistrate would evaluate the facts, and, if the magistrate
concluded that they were sufficient to justify the intended
seizure or search, the magistrate would immediately issue
an electronic warrant. 

 That way, the court explained,
“the desired goal of having a neutral magistrate could be
achieved within minutes without the present invasion of
the rights of a citizen created by the delay under our current cumbersome procedure and yet would fully protect the
rights of the citizen from warrantless searches.” 

         In the 35 years since Brown, technology has
advanced more than the court even imagined. Computers
and smartphones have made instant, wireless communication not only possible, but commonplace. See Riley, 573 US
at 385 (noting that cellphones “are now such a pervasive
174                                                       State v. McCarthy

and insistent part of daily life that the proverbial visitor
from Mars might conclude they were an important feature
of human anatomy”).9 Law enforcement officers and magistrates have computers and smartphones. Not only can
officers call and speak to magistrates from the field, but
they can also make and send audio and video recordings;
they can prepare, sign, and send documents; and they can
have recorded videoconferences with multiple other people.
Advances in technology have enabled officers and district
attorneys to more quickly and easily prepare, exchange,
and record information necessary to apply for warrants and
enabled magistrates to more quickly and easily review that
information and issue and record warrants.
          As the Supreme Court has observed, “[w]ell over
a majority of States allow police officers or prosecutors to
apply for search warrants remotely through various means,
including telephonic or radio communication, electronic
communication such as e-mail, and video conferencing.”
McNeely, 

. Those processes can “enable
police officers to secure warrants more quickly, and do so
without undermining the neutral magistrate judge’s essential role as a check on police discretion.” 

. And, as
Chief Justice Roberts has described, it is now possible for
warrants to be obtained in less than 15 minutes:
    “At least 30 States provide for electronic warrant applications. … Utah has an e-warrant procedure where a police
    officer enters information into a system, the system notifies
    a prosecutor, and upon approval the officer forwards the
    information to a magistrate, who can electronically return
    a warrant to the officer. Judges have been known to issue
    warrants in as little as five minutes. And in one county
    in Kansas, police officers can e-mail warrant requests
    to judges’ iPads; judges have signed such warrants and
    e-mailed them back to officers in less than 15 minutes.”

 (Roberts, C. J., concurring) (internal citations
omitted).10 Even before the advent of current e-warrant
     9
        See also Mobile Fact Sheet (Apr 7, 2021), Pew Research Center, https://
www.pewresearch.org/internet/fact-sheet/mobile/ (noting that 97% of adults in
the United States own some sort of cellphone, and 85% own a smartphone).
     10
        See also Andersen II, 361 Or at 203 (Walters, J., concurring) (observing that
“[e]vidence from other jurisdictions suggests that police officers should be able to
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technology, law enforcement could still obtain telephonic
warrants in well under an hour. See, e.g., State v. Flannigan,
194 Ariz 150, 154, 

 (Ariz Ct App 1998) (“[T]he
Mesa Police Department is able to obtain a [telephonic] warrant within as little as fifteen minutes and that delays of
only fifteen to forty-five minutes are commonplace.”); United
States v. Baker, 

 (SD Iowa 1981) (noting that obtaining a telephonic warrant after probable cause
arose in a drug sting operation “would probably not have
taken more than 20 minutes, 30 at the most”).
         Not only has the technology changed since Brown,
but the statute governing the warrant process has changed
as well. When Brown was decided, ORS 133.545 authorized
warrants based on oral statements, commonly referred to
as “telephonic warrants,” but only when circumstances
made it “impracticable for a district attorney or police officer to obtain a warrant in person.” ORS 133.545 (1985).
And it required that the oral statements be recorded and
transcribed. 

 Since then, the legislature has regularly
updated ORS 133.545 to authorize increased use of telephonic warrants, to simplify the telephonic warrant process,
and to keep pace with changes in technology.
        In 1999, the legislature amended ORS 133.545
to enable district attorneys and police officers to obtain

obtain warrants in less than one hour”); State v. Hawley, No. 2015AP1113-CR,

 at *3 (Wis Ct App Nov 21, 2018) (officers testified that obtaining a warrant for a blood draw would have taken 30 to 45 minutes); Lindsey Erin
Kroskob, Police Take First Forced Blood Draw, Wyoming Trib. Eagle (Aug 19,
2011), https://www.wyomingnews.com/news/police-take-first-forced-blood-draw/
article_2a6c7748-c565-55b5-89ae-bb411b5d80af.html (According to the Police
Chief of the Cheyenne, Wyoming, Police Department, obtaining a search warrant over the phone usually takes under five minutes.); Gazette Opinion: Evidence
Shows Value of DUI Search Warrants, Billings Gazette (May 30, 2012), https://
billingsgazette.com/news/opinion/editorial/gazette-opinion/gazette-opinionevidence-shows-value-of-dui-search-warrants/article_f0d1513d-beb1-54b2-a903-
b22ca26d2d7c.html (noting that, in Billings, Montana, it takes about fifteen
minutes to obtain a telephonic search warrant from the time an officer develops
probable cause that a suspect was driving under the influence of intoxicants);
Palm Bay Police, Innovative Policing Creating a Safer Community at 10 (2011)
(discussing expedited warrant process that involves emailing an affidavit to a
judge and then videoconferencing with the judge via Skype, allowing officers to
obtain blood search warrants and arrest warrants in “an average of less than
thirty minutes in comparison to several hours it would have taken using traditional means”), archived at https://web.archive.org/web/20120510122330/https://
www.palmbayflorida.org/police/documents/annual_report_2011.pdf.
176                                                       State v. McCarthy

warrants even in situations where it is practicable to obtain
a warrant in person. Or Laws 1999, ch 56, § 1. The 1999
amendments also permitted district attorneys and police
officers to submit proposed warrants and accompanying
affidavits to courts “by facsimile … or any similar electronic transmission,” and permitted courts to return signed
warrants to a district attorney or police officer by the same
electronic means. Id. In 2013, the legislature abrogated the
original requirement that the oral statement by the person
seeking the warrant be transcribed. Or Laws 2013, ch 225,
§ 1. Finally, in 2019, the legislature permitted an electronic
signature on an electronic affidavit to which an affiant
swears by telephone. Or Laws 2019, ch 399, § 7.
         In sum, technological and legislative changes since
Brown have made it faster and easier to obtain warrants.
Now, it is possible for warrant applications to be readily prepared and reviewed from separate locations and, if probable
cause exists, for warrants to be quickly issued.11 The technological changes that Brown anticipated have occurred.
Consequently, we can no longer assume, as the Brown court
did, that, as a general matter, it is impracticable for officers
to obtain warrants to seize and search vehicles that they
stop.12
     11
        In many cases, an officer’s reasons for believing that probable cause exists
for seizure and search of a vehicle that was mobile when stopped can be quickly
and clearly relayed to a magistrate. Such seizures and searches are often based
on an officer’s observations during a traffic stop, which are likely to be simple and
few. Consequently, the time-consuming processes of drafting and reviewing that
the state’s witnesses described in this case are more complex than necessary for
many warrants. Indeed, when the court in Brown described the warrant process
that it believed would eliminate the need for warrantless seizures and searches, it
described a process involving telephonic warrant applications, not written ones.
     To be sure, in some cases the facts underlying an officer’s probable cause
determination are based on observations over a longer period of time and are
more complex, such as when an automobile seizure and search is conducted based
on information gathered over the course of a long-term investigation. But that
does not necessarily support retention of the per se exigency exception because,
in the course of a long-term investigation, officers are likely to have time to apply
for a warrant.
     12
        The experiences of law enforcement agencies that use telephonic or electronic warrants show that such warrants are practicable and save agencies
time and other resources. See, e.g., Jason Bergreen, Utah Cops Praise Electronic
Warrant System, Salt Lake Trib. (Dec 26, 2008), https://www.police1.com/fugitive/
articles/utah-cops-praise-electronic-warrant-system-umEE2WsodJ9mNKhv/
(reporting that officers using Utah’s e-warrant process say it saves time, is easy
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F.   Conclusion Regarding Brown

          For all the reasons discussed above, we conclude that
it is necessary to overrule Brown’s per se exigency exception.
The exception was not well founded or clearly reasoned; it
was not intended to be permanent; it has not provided stability or clarity; it is inconsistent with other, more recent
cases; given technological changes, it is no longer justified;
and maintaining it might well diminish the incentives for
jurisdictions to improve warrant processes and for officers
to seek warrants when practicable.
          Therefore, in order to justify a warrantless seizure
or search of a vehicle based on exigent circumstances, the
state must prove that exigent circumstances actually existed
at the time of the seizure or the search, each of which must
be separately analyzed. That is, it must prove that there
was a situation requiring swift action “to prevent danger to
life or serious damage to property, or to forestall a suspect’s
escape or the destruction of evidence.” Stevens, 

.
         To prove that such an exigency existed, the state
must prove that it could not obtain a warrant through reasonable steps, which include utilizing available processes for
electronic warrants. Officers “cannot create exigent circumstances by [their] own inaction.” Matsen/Wilson, 287 Or at
587 (internal quotation marks omitted); see also id. (“The
police cannot weave together a web of information, then
claim exigent circumstances when the suspect arrives and
can conveniently be snared.”). Similarly, law enforcement
agencies and courts cannot create exigent circumstances by
failing to take reasonable steps to develop warrant processes
that protect against the “invasion of the rights of a citizen,”
Brown, 

 n 6, that results from an unnecessarily cumbersome warrant process.

to use, and improves investigations); Heather R. Cotter, How the Traditional
Warrant Process Impacts Officer Safety and a PD’s Budget, Police1.com (Aug 29,
2018), https://www.police1.com/police-products/ewarrants/articles/how-the-traditionalwarrant-process-impacts-off icer-safety-and-a-pds-budget-rm0581PPArVJGtYX/ (discussing the benefits to police officers of e-warrants, including
improved officer safety, greater data integrity, and significant long-term cost
savings).
178                                         State v. McCarthy

         If an exigency exists, it may justify the seizure of a
vehicle. But the seizure itself may eliminate any exigency
that would justify proceeding further without a warrant.
Once officers have seized a vehicle, their control over it may
eliminate the need to search it before a warrant application
can be processed.
G. Application
         Having concluded that the state must demonstrate
an actual exigency, we return to the facts of this case. On
review, we are bound by the facts found by the trial court if
there is evidence in the record to support them. Bliss, 

.
         The evidence before the trial court was that the
stop occurred on a Monday afternoon. Multiple officers were
at the scene and each of them used a telephone during the
stop to communicate with others who were not present. The
truck was legally parked in a parking lot, and defendant
was in custody.
         The trial court concluded that the state had failed
to show that there was an exigency. It explained that the
“state presented no evidence that anyone would move the
automobile from the scene while the police sought judicial
authorization for the search.” It also explained that the
state’s witness had failed to “adequately explain why the
police could not observe the vehicle during the period of time
needed to obtain a warrant and seize the vehicle only if there
was an attempt to move the vehicle.” And, it explained that
the state had failed to prove that it could not have obtained
a warrant, commenting that it was “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.”
          The state presented evidence that it would take the
officers four to five hours to obtain a warrant and that the
officers did not know how to seek a telephonic warrant. But
the trial court rejected the argument that it was impractical for the state to obtain a warrant, noting the ubiquity
of cellphones, the statutory process for obtaining telephonic
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warrants, and the number of judges and judicial officers in
the county.
         The trial court’s factual findings are supported by
the record and its legal conclusions are correct. The state
failed to establish that exigent circumstances actually
existed at the time of the warrantless search. Therefore, the
trial court correctly granted defendant’s motion to suppress.
        The decision of the Court of Appeals is reversed.
The order of the circuit court is affirmed.