State v. Greene, 76-11-109

Decision Date27 February 1979
Docket NumberNo. 76-11-109,76-11-109
Citation285 Or. 337,591 P.2d 1362
PartiesSTATE of Oregon, Respondent, v. Michael Lynn GREENE, Petitioner. ; SC 25650.
CourtOregon Supreme Court

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

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

DENECKE, Chief Justice.

We granted review in this and three other cases in order to attempt to clarify the law relating to the search and seizure of vehicles. State v. Fondren, 30 Or.App. 1045, 568 P.2d 721 (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).

We are governed by the Fourth Amendment to the Constitution of the United States and § 9, Art. I, of the Oregon Constitution. With few exceptions not pertinent here, Oregon statutes do not attempt to cover searches and seizures without a warrant.

We must accord the defendant at least as much protection as he is entitled to under the Fourth Amendment as interpreted by the United States Supreme Court. If § 9, Art. I, affords more protection to the defendant than does the Fourth Amendment, this greater protection must be accorded defendant. In at least two aspects of search and seizure we have held that the Oregon Constitution affords no more protection than the United States Constitution. State v. Florance, 270 Or. 169, 182, 527 P.2d 1202 (1974); State v. Flores, 280 Or. 273, 279, 570 P.2d 965 (1977). While the defendant relies upon the Oregon Constitution as well as the United States Constitution, he does not point out any reasons why we should depart from the analysis that the United States Supreme Court has developed in its decisions. As we stated in Flores, supra, 280 Or. at 279, 570 P.2d at 968, "we see no persuasive reason to do so." Accordingly, we look to these decisions.

The scenario in this case starts with three armed men breaking into a residence, assaulting the occupants and stealing money, jewelry and other property. A neighbor was able to describe the car in which the thieves drove away, including the license number, and to generally describe the three men. The police established that the car belonged to a Beverly Stanton. The morning after the crime at 10:15 a. m. an officer went to the address listed for Stanton and a car fitting the description given by the neighbor, including the license number, was parked in the residential driveway. Police started gathering near Stanton's house shortly thereafter and they learned by inquiring of neighbors that several men matching the general descriptions of the men who committed the burglary lived in the Stanton house. Shortly after noon, the 14 officers then gathered broke into the house. Stanton and a friend were in the house, but the defendant and his alleged accomplices were not. The car was towed to the police station and searched. The police did not attempt to get a warrant for the search of the car or house. Several blood-stained items of clothing were found in the trunk. The blood type matched that of one of the victims who had been assaulted during the robbery.

Defendant filed a motion to suppress. The trial court granted the motion as it pertained to the house search, but denied it as to the items found in the car. Defendant was convicted. The Court of Appeals affirmed the trial court's denial of defendant's motion to suppress, but reversed and remanded for a new trial because of the trial court's failure to give a requested instruction. State v. Greene, 30 Or.App. 1019, 568 P.2d 716 (1977).

If the search can be sustained, it must be on the basis of the doctrine of Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925). The Court of Appeals sustained the search on that ground. The essence of the doctrine of Carroll v. United States, supra, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, is that a search of an automobile may be made without a warrant if (1) the officers have probable cause to believe that the vehicle contains contraband, stolen goods, evidence of crime, etc., and (2) that there are exigent circumstances present which require that the vehicle be searched without obtaining a warrant. Underlying both of these propositions is the overall principle repeatedly stated by the United States Supreme Court and this court that searches conducted without a warrant are Per se unreasonable, subject only to a few exceptions. For example, Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Miller, 269 Or. 328, 334, 524 P.2d 1399 (1974).

The first inquiry is, did the officers have probable cause? More specifically, did the officers have probable cause to believe that the vehicle contained some of the property stolen the night before or some evidence of the crime? The defendant did not strongly contend there was a lack of probable cause; however, we are of the opinion that it is a close question.

"Probable cause" is a reasonable belief that the car contains evidence. United States v. Kalama, 549 F.2d 594, 595 (9th Cir. 1977); State v. Cloman, 254 Or. 1, 10, 456 P.2d 67 (1969). The case cited by the Court of Appeals supporting its opinion that the officers in the present case had probable cause illustrates when the question of probable cause is easily answered. That case is State v. Poole, 11 Or.App. 55, 500 P.2d 726 (1972). There, an officer received a broadcast that a burglary was in progress. The car involved was described, including the license number, a description of the burglars and their direction of travel. Six minutes after receiving the broadcast the officer saw the car described in the broadcast speeding in the direction stated in the broadcast. The officer followed and when the car parked, the officer stopped and searched the car. It appears obvious in these circumstances that the officer could reasonably believe that the car contained fruits or evidence of the crime.

The present case is not that obvious. The car was found the morning after the crime had been committed. It was found in the owner's driveway and the owner had not been identified as being present at the crime. It is questionable whether thieves commonly leave stolen money, jewelry and weapons overnight in the trunk of a car parked outside.

As stated, we are of the opinion that probable cause is a close issue; however, we conclude that under the facts of the present case, when a car used in a theft is found within hours after the theft at a house where persons matching the description of the thieves appear to reside, the circumstances provide probable cause to believe that the car contains evidence of the crime.

The other requirement for search without a warrant is "exigent circumstances." The principal contention of the defendant is that there were no exigent circumstances.

The exigent circumstances requirement is based upon practical necessity. The logic is as follows: Ordinarily, a search is not authorized without a warrant; however, a warrant is not necessary if there is probable cause and if any evidence that might be present likely will have disappeared if the officers cannot seize and search before securing a warrant. Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).

The sharpness of this logic has been blurred by a statement in United States v. Rabinowitz, 339 U.S. 56, 66, 70 S.Ct. 430, 435, 94 L.Ed. 653 (1950), which has been repeated. "The relevant test is not whether it is reasonable to procure a search warrant, but whether the search was reasonable." Rabinowitz was overruled by Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). However, as late as 1976 in South Dakota v. Opperman, 428 U.S. 364, 372-373, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976), the majority quoted with seeming approval an opinion by Mr. Justice Black to this effect. The majority opinion in Opperman, however, did not depend upon the application of that statement from Rabinowitz and we are of the opinion that it is no longer a pronouncement of the United States Supreme Court which we are bound to follow in interpreting the Fourth Amendment. Mr. Justice Powell specifically so stated in his concurring opinion in Opperman at pp. 377-378, 96 S.Ct. 3092. The majority also specifically so held in United States v. United States District Court, 407 U.S. 297, 315, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972).

That leaves the question, could the officers reasonably have sought a search warrant? An ancillary question is, at what time should this be determined: when the car was initially seized at Stanton's residence or when the car was searched at the police station? This question is answered by Chambers v. Maroney, supra, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. The facts in Chambers were that within an hour after the night robbery of a filling station by armed bandits, the police stopped a car matching a description of the car used in the robbery on a public street. The occupants were arrested and the car brought to the station and searched. The majority held the car could be searched when it was stopped "since there was probable cause to search and it was a fleeting target for a search." 399 U.S. at 52, 90 S.Ct. at 1981. The majority went on to reason that the right to search continues if the police choose to take the car to the station and make the search there.

The latter reasoning of the majority was based upon the premise that the alternative to taking to the station to search was a warrantless seizure of the car at the point of stopping and a denial of use or access to anyone while the officers attempted to secure a...

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