State v. Fondren

• Decision Date: 27 February 1979
• Docket Number: SC 25651.,No. 20990.,20990.
• Parties: STATE of Oregon, Respondent, v. Gary Lee FONDREN, Petitioner.
• Court: Oregon Supreme Court

591 P.2d 1374

285 Or. 361

STATE of Oregon, Respondent, v. Gary Lee FONDREN, Petitioner.

No. 20990.

SC 25651.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 3, 1978.

Decided February 27, 1979.

J.P. Graff, of Gildea & McGavic, P.C., Eugene, argued the cause and filed the briefs for petitioner.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the briefs were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Stephen Kanter, Portland, filed a brief amicus curiae in behalf of Oregon American Civil Liberties Union.

DENECKE, Chief Justice.

This is another of the search and seizure of vehicle cases in which we granted review. State v. Greene, 30 Or. App. 1019, 568 P.2d 716 (1977); State v. Downes, 31 Or. App. 419, 571 P.2d 914 (1977); State v. Groda, 32 Or. App. 287, 573 P.2d 1269 (1978).

In State v. Greene, supra, 285 Or. 337, 591 P.2d 1362, decided this date, we discussed the general principles governing searches and seizures of automobiles.

The facts in this case are that early one evening an officer received reliable information that the defendant had marijuana in the trunk of his car which was parked at the defendant's place of employment. The officer verified the location and ownership of the car. At about 11:30 p.m. the officer went to defendant's place of employment and asked defendant if he could look in his trunk. The defendant refused and the officer had the car towed to the police garage. The next day the officer secured a search warrant and found the marijuana.

The defendant filed a motion to suppress. The trial court found there were no exigent circumstances permitting the seizure of the car without a warrant and suppressed the evidence. The Court of Appeals reversed in a per curiam opinion which appears to state that no exigent circumstances need exist to seize an operable automobile without a warrant. State v. Fondren, 30 Or. App. 1045, 568 P.2d 721 (1977).

The state argues in this case and in State v. Greene, supra, 285 Or. 337, 591 P.2d 1362, that exigent circumstances are not necessary in this case or in Greene because the officer did not have to "invade an enclave of the defendant's privacy to make a seizure"; the employe parking lot was not an enclave of privacy, neither was the residential driveway in Greene.

Some past decisions lend plausibility to this contention; however, we are of the opinion that it does not apply in the present case. The principle germinated in Hester v. United States, 265 U.S. 57, 44 S.Ct. 445, 68 L.Ed. 898 (1924), in which the officers trespassed on private land and seized containers of moonshine whiskey which had been dropped by the fleeing suspects. The Court stated the containers and their contents had been abandoned and the Fourth Amendment does not apply to a seizure of abandoned property in "open fields."

Hester was cited in support of the decision in G.M. Leasing Corp. v. United States, 429 U.S. 338, 97 S.Ct. 619, 50 L.Ed.2d 530 (1977), in which the officers seized automobiles in satisfaction of tax assessments. The Court held that because the seizures took place on public streets, no invasion of privacy was involved and the seizures were not unconstitutional. The Oregon Court of Appeals followed the rationale of Hester in State v. Stanton, 7 Or. App. 286, 490 P.2d 1274 (1971), and held the seizure of a marijuana plant in an "open field" was not subject to Fourth Amendment protections.

We conclude that the absence of Fourth Amendment protections in these circumstances is because of the nature of the object seized as well as the place of seizure. In Hester it was abandoned contraband; in Stanton it was contraband; in G.M. Leasing it was property that the government was entitled to seize to satisfy taxes. The government has traditionally been granted broad powers to seize property to satisfy taxes. Notes, 23 N.Y. Law School L.Rev. 791 (1978); 29 Mercer L.Rev. 359 (1974).

An automobile on the public street is protected by the Fourth Amendment. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), so held. Chambers was based upon an interpretation of the Fourth Amendment commenced in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925). The doctrine of Carroll is that if the officers have probable cause to believe that a car contains evidence of a crime and there are exigent circumstances requiring immediate action, the car can be seized and searched without a warrant. In Carroll and in almost all of its offspring, the car involved was stopped by the officers on a public street or in a public place where there was no expectation of privacy. Nevertheless, in all of those cases the applicability of the Fourth Amendment was assumed and a warrantless search and seizure was weighed by the criteria of probable cause and exigent circumstances. We are of the opinion that whether the seizure was valid in this case depends upon the same criteria.

The defendant does not contend the officers did not have probable cause. The issue is, were there exigent circumstances; that is, was the contraband likely to disappear if the officers could not seize the car without securing a warrant? State v. Greene, supra, 285 Or. 337, 591 P.2d 1362. The trial court held there were no exigent circumstances and we concur. The Court of Appeals was in error in holding that the trial court erred in holding "that in addition to probable cause, exigent circumstances to seize or search an operable automobile must exist before such can be done without a warrant." 30 Or. App. at 1047.

The facts on the issue of exigency are: Between 6:30 and 7:30 p.m. the officer obtained the information that marijuana was in the trunk of a car driven or owned by defendant, the make and license number of the car, that the defendant was employed by Brooks-Willamette and that the car was now parked in a Brooks-Willamette employes' parking lot. The information and the source of the information were sufficient to provide the officers with probable cause to believe marijuana was in the car. Within 45 minutes after receiving the information the officer found the car...