State v. Brown
| Citation | 301 Or. 268,721 P.2d 1357 |
| Parties | STATE of Oregon, Petitioner on review, v. Roderick Darnell BROWN, Respondent on review. DC DA 249576; DA 249577; CA A29759; SC S31637. * |
| Decision Date | 01 July 1986 |
| Court | Oregon Supreme Court |
Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on 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.
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 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 firearm in violation of Portland City Code Ordinance 14.32.010. 2
The trial judge prepared written conclusions which included the following:
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 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 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 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):
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 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 Constitution.
In 1925, the United States Supreme Court in Carroll v. United States, supra, held that because of its mobility an automobile that is...
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