State v. Brown

CourtSupreme Court of Oregon
Citation301 Or. 268,721 P.2d 1357
PartiesSTATE of Oregon, Petitioner on review, v. Roderick Darnell BROWN, Respondent on review. DC DA 249576; DA 249577; CA A29759; SC S31637. *
Decision Date01 July 1986

Page 1357

721 P.2d 1357
301 Or. 268
STATE of Oregon, Petitioner on review,
Roderick Darnell BROWN, Respondent on review.
DC DA 249576; DA 249577; CA A29759; SC S31637.
Supreme Court of Oregon,
In Banc *.
Argued and Submitted Sept. 10, 1985.
Reassigned March 4, 1986.
Decided July 1, 1986.

[301 Or. 269] Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on

Page 1358

review. With him on the petition were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

David C. Degner, Hillsboro, argued the cause for respondent on review.

[301 Or. 270] JONES, Justice.

This case presents the question whether police officers are required to obtain a warrant before searching the trunk of a lawfully stopped automobile when the officers who arrested the driver have probable cause to believe that the trunk contained relevant evidence of the crime for which the arrest could have been made. We hold that under these circumstances no warrant was required and the search of the trunk and the seizure of the crime evidence did not violate Article I, section 9, of the Oregon Constitution, or the Fourth Amendment to the United States Constitution.


In the early morning hours of January 27, 1983, Ms. Tillman reported to two police officers, Krohn and Hudson, that defendant, her boyfriend, had assaulted her and stolen her purse containing $15 or $20. She also told the officers that defendant always carried a handgun in a "black purse" either on his person or in the trunk of his car. The gun had not been used in the incident with Tillman. Because of an earlier domestic disturbance between Tillman and defendant, Officer Hudson was personally acquainted with defendant and had reported that during the earlier disturbance defendant had a gun in his pocket. Officer Hudson also knew the make, year, color and license number of defendant's automobile.

The following morning at about 1:15 a.m., Officers Krohn and Hudson stopped defendant while he was driving his automobile. The trial court found that "the reason for the stop was to arrest defendant on the assault and theft" charges and that "[d]efendant was advised why he was stopped, and was told of the accusations about possession of a weapon." When defendant declined to consent to a search of his automobile, the officers searched the passenger compartment and the glove box. Officer Krohn then opened the locked trunk and saw a black leather bag or purse similar to the one described by Tillman as the bag in which defendant carried a handgun. The bag was closed. When Officer Krohn picked it up he could feel a heavy handgun inside. The bag and the gun were seized.

According to Officer Krohn, defendant was handcuffed during the entire search. Officer Hudson could not [301 Or. 271] remember when, or if, defendant was handcuffed, but said that defendant was placed in the patrol car when "we decided we were going into the trunk and get the gun out."

Defendant was taken to jail and booked on the assault and theft charges; however, Tillman never signed complaints charging him with those crimes. Defendant was later charged with unlawful possession of a weapon, ORS 166.250, 1 and carrying a loaded

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firearm in violation of Portland City Code Ordinance 14.32.010. 2

The trial judge prepared written conclusions which included the following:

"8. The search in this case can be sustained only under the moveable vehicle exception to the requirement of a search warrant. Chambers v. Maroney, 399 U.S. 42 [90 S.Ct. 1975, 26 L.Ed.2d 419] (1970); CLE, [301 Or. 272] iCriminal Constitutional Procedure Sections 3.5.23, 3.5.30 (1982 Supp).

"9. Probable cause to search the vehicle under the moveable vehicles exception existed in this case because of the information provided by the citizen informer that the defendant 'always' carries a gun on his person or in his car. CLE, Criminal Constitutional Procedure Sections 3.4.11, 3.5.30 (1982 Supp).

"10. 'If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.' United States v. Ross, 456 U.S. 798 , 102 S.Ct. 2157, 2172 [72 L.Ed.2d 572] (1982) (sustaining the search of a paper bag and a zippered leather pouch seized from the trunk of a car.)

"11. Because of the mobility of the vehicle and the easy disposability of the evidence, exigent circumstances existed in this case to authorize an immediate search of the vehicle. CLE, Criminal Constitutional Procedure Sections 3.5.30, 3.5.35 (1982 Supp.)"

In sum, the trial judge reasoned that the information that defendant carried a concealed gun provided probable cause to search the vehicle for the gun 3 and upheld the warrantless search of the trunk of the automobile. The court found that exigent circumstances existed "because of the mobility of the vehicle and the easy disposability of the evidence." The trial court held that these exigent circumstances authorized the immediate search of the automobile and denied the motion to suppress. Defendant was convicted of the charges.

The Court of Appeals concluded that there was "no evidence that the officers reasonably believed that defendant did not have a license" for the gun, that the search for the weapon was not related to the arrest for theft and assault, and that the search exceeded the permissible bound of searches incident to arrests. State v. Brown, 72 Or.App. 342, 347, 695 P.2d 1383 (1985). The Court of Appeals rejected the idea, as it had in previous cases, State v. Martin, 71 Or.App. 1, 6, 691 P.2d [301 Or. 273] 154 (1984); State v. Kirsch, 69 Or.App. 418, 421, 686 P.2d 446 (1984), that the warrant requirement of Article I, section 9, is suspended for searches of automobiles.

The state seeks to validate the search on either of two independent grounds. It first points to the mobility of automobiles and contends that searches of automobiles need not be conducted pursuant to warrants in any case, so long as probable cause exists to believe that the vehicles contain evidence of a crime. Secondly, it argues that the

Page 1360

search was properly an incident to the arrest. Because we hold that the conduct of the police in this case was fully justified as a proper "automobile exception" 4 warrantless search and seizure, we need not address the state's second contention that the search could also be justified as incident to defendant's arrest.


The Fourth Amendment to the United States Constitution and the parallel but independent guarantee of personal privacy of Article I, section 9, of the Oregon Constitution, have long been interpreted to require the impartial approval of a judicial officer before the undertaking of most searches. The warrant requirement of these provisions may be dispensed with in only a few specifically established and well-delineated circumstances.

The Fourth Amendment to the United States Constitution provides:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon [301 Or. 274] probable cause, supported by oath, or affirmation, and particularly describing the place to searched, and the person or thing to be seized."

As we said in State v. Quinn, 290 Or. 383, 390-91, 623 P.2d 630 (1981):

"Two fundamental principles flow from these constitutional provisions: First, all persons are to be free from unreasonable governmental searches and seizures of their persons and property. Second, as a means of protecting that freedom, the decision to search is to be made by a disinterested branch of government, the judiciary, rather than the branch which performs the search and seizure, the executive branch. Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed 2d 564 (1971).

"The requirement that there be preliminary judicial authorization for any official search or seizure is not absolute. The exigent circumstances doctrine recognizes that what is practical may also be reasonable. Therefore, as one example, an automobile, which is mobile by its very nature, may be searched and seized without a warrant if there is probable cause to believe that it contains fruit, instrumentalities or evidence of crime and if there are also exigent circumstances which make it impracticable to obtain a warrant. This exception arises from 'practical necessity,' State v. Greene, 285 Or 337, 591 P2d 1362 (1979). * * * "

This case presents for us the heretofore unanswered question: Is there an "automobile exception" to the warrant requirement of Article I, section 9, of the Oregon Constitution? We hold that there is such an exception, provided (1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle. By adopting such a position, we align ourselves with the traditional federal "automobile exception" to the Fourth Amendment warrant requirement as set forth in the seminal case of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), and its progeny. In doing so, we wish to make clear that we are deciding this case independent of federal law; we

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decide this case under the Oregon Constitution and not the federal constitution. We cite the United States Supreme Court decisions only because we believe they are persuasive, not because they are precedent for this court in interpreting the Oregon...

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