State v. Belander
| Decision Date | 30 September 2015 |
| Docket Number | A152171.,1200115CR |
| Citation | 360 P.3d 580,274 Or.App. 167 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Aaron William BELANDER, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Sarah M. Villanueva, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Defendant appeals from a judgment convicting him of felon in possession of a firearm, ORS 166.270. He challenges the trial court's denial of his motion to suppress evidence obtained during a warrantless search of his vehicle. The trial court concluded that the search was justified under the “automobile exception,” which the Oregon Supreme Court has said authorizes warrantless searches when officers have probable cause to search a vehicle that is “mobile at the time that the police encounter it in connection with a crime.” State v. Kurokawa–Lasciak,351 Or. 179, 192, 263 P.3d 336 (2011). Defendant argues that the automobile exception does not justify the search in this case because the officers first encountered defendant's mobile car in connection with a welfare check, and only later, after defendant had parked the car and walked away from it, did the officers begin to investigate a crime. The state responds that the automobile exception should apply to searches when—as here—officers see a car drive down the street and, at that point, are interested in stopping the car for what the state describes as “other lawful police conduct”—here, a “welfare check” on one of the occupants—if, shortly after the stop, officers develop probable cause to believe that the car contains evidence of criminal activity. We conclude that the automobile exception did not authorize the warrantless search of defendant's car in this case because the car was not mobile when the officers encountered it “in connection with a crime.” Accordingly, we reverse.
We review a court's denial of a suppression motion for legal error and defer to the court's findings of historical fact if there is evidence to support them. State v. Soto,252 Or.App. 50, 51, 284 P.3d 1254, rev. den.,353 Or. 127, 295 P.3d 640 (2012). In the absence of express trial court findings, we resolve factual disputes in a manner consistent with the court's ultimate conclusions. State v. Hall,339 Or. 7, 10, 115 P.3d 908 (2005). We describe the facts here according to that standard.
On May 9, 2012, Detective Sergeant McNeel of the Wasco County Sheriff's Department received a call from Deputy Sheriff Princehouse of the Hood River County Sheriff's Office. Princehouse told McNeel that he was receiving text messages from Klomonsky, whom Princehouse and McNeel both knew, and that Klomonsky was “frantic, upset, [and] was talking about needing help and that she was worried about her friend, [Kent].”1Klomonsky reported that she and Kent were in a silver Hyundai driving toward Foley Lakes. One of Klomonsky's texts described defendant as “a very bad man, who is driving [with] no license and I believe [has] drugs and guns.” Princehouse conveyed to McNeel the content of the messages “in general,” and that he wasn't sure what was going on but that “something was amiss.” Princehouse and McNeel agreed that McNeel should conduct a “welfare check,” and McNeel started driving toward Foley Lakes.
Meanwhile, McNeel contacted Detectives Hall and Rosebraugh and asked for “assistance on a welfare check.”
The officers located the silver Hyundai when it was parked in an apartment complex parking lot. Rosebraugh watched the silver Hyundai drive out of the parking lot with Klomonsky (whom Rosebraugh recognized) in the back seat. The officers followed the silver Hyundai, which drove to a fast food restaurant and parked in the parking lot. All three occupants were climbing out of the car as the officers arrived. Defendant was walking toward the restaurant entrance when Rosebraugh asked to speak with him, and defendant walked back towards the car. When Klomonsky said she needed to use the restroom, Rosebraugh followed her inside. While Rosebraugh was inside the restaurant with Klomonsky, McNeel spoke to defendant and Kent. McNeel testified that, at that point, he was “still kind of looking at it as a welfare check.”
Inside the restaurant, Klomonsky told Rosebraugh that there was a red backpack in the car that “had drugs and guns in it.” Rosebraugh went outside immediately and privately relayed the information to McNeel and Hall. The officers asked Kent for consent to search the backpack, because she initially claimed it was hers. When Kent declined to give consent, Rosebraugh called an Oregon State Police trooper with a drug detection dog to come to the scene. The trooper was approximately 20 miles away. The dog arrived and alerted that the backpack contained drugs, and the trooper immediately began searching it. McNeel testified that they “could certainly” have obtained a warrant before the trooper opened the backpack but that he understood the automobile exception to make a warrant unnecessary.
At a hearing on defendant's motion to suppress, the trial court found that At another point, the court again emphasized its finding that when officers initially encountered the car it was to do a welfare check:
The court ultimately concluded, however, that “[i]n this case when the officers decide there is probable cause to search the vehicle[,] the vehicle is mobile.”
After the trial court denied defendant's motion to suppress, defendant waived his right to a jury trial and tried his case to the court. He was found guilty of one count of felon in possession of a firearm on the basis of stipulated facts, and the state agreed to dismiss the remaining drug-related counts.
We begin by emphasizing the well-established rule that a search or seizure conducted without a warrant violates Article I, section 9, of the Oregon Constitution,2“unless it comes ‘within one of the few specifically established and carefully delineated exceptions to the warrant requirement.’ ” State v. Andersen,269 Or.App. 705, 708, 346 P.3d 1224, rev. allowed,357 Or. 595, 358 P.3d 1001 (2015)(quoting State v. Bridewell,306 Or. 231, 235, 759 P.2d 1054 (1988)). “One of those exceptions is the exigent-circumstances exception, which allows the police to conduct a warrantless search or seizure if it is supported by probable cause and conducted under exigent circumstances.” Andersen,269 Or.App. at 708, 346 P.3d 1224. Here, the state did not attempt to prove that actual exigent circumstances justified the search. Rather, the state relied exclusively on the “automobile exception,” which the Supreme Court created to be a “per seexigency rule.” State v. Brown,301 Or. 268, 277, 721 P.2d 1357 (1986). On appeal, defendant renews his argument that the automobile exception does not apply to justify the search in this case.
As most recently articulated by the Oregon Supreme Court, the automobile exception requires that “the vehicle that the police search must be mobile at the time that the police encounter it in connection with a crime.” Kurokawa–Lasciak,351 Or. at 192, 263 P.3d 336. The court created the Oregon automobile exception to provide the police “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.” Brown,301 Or. at 277, 721 P.2d 1357. Unfortunately, the lines have not proved to be as clear as the Browncourt hoped to make them, and further clarification has been necessary.
Id.at 33, 725 P.2d 1285. But the court declined to “stretch” the Oregon automobile exception that far. Id.
Twenty years later, the Oregon Supreme Court clarified that the automobile exception can justify the search of a vehicle that is parked by...
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