State v. Snow

• Decision Date: 30 January 2002
• Parties: STATE of Oregon, Appellant, v. Coy Randell SNOW, Respondent.
• Court: Oregon Court of Appeals

39 P.3d 909

179 Or. App. 222

STATE of Oregon, Appellant, v. Coy Randell SNOW, Respondent.

99CR0872; A110840

Court of Appeals of Oregon.

Argued and Submitted July 31, 2001.

Decided January 30, 2002.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General. Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for respondent. With her on the brief was David E. Groom, Public Defender.

Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.

HASELTON, P.J.

The state appeals from a pretrial order suppressing evidence obtained in a warrantless search of an automobile, arguing that the search fell within the "automobile exception" to the warrant requirement or, alternatively, that another exigency justified the search. We conclude that the automobile exception justified the search, and reverse and remand.

The following facts are not disputed. Just before noon on Monday, September 20, 1999, Josephine County Sheriff's Deputy Lucas was traveling northbound on Highland Avenue in Grants Pass. While on routine patrol, Lucas observed defendant in a 1981 black Mercury "laying rubber" while turning from Elm Street southbound onto Highland. Defendant rapidly accelerated past Lucas. Lucas testified that he got a good look at defendant from the neck up as they passed each other and that he did not recognize defendant at that time. Lucas slowed, waited for traffic to clear, radioed dispatch, made a U-turn, activated his overhead lights, and pursued defendant.

While Lucas was pursuing him, defendant turned left onto Prospect Street. Lucas also turned left on Prospect, but he did not see defendant's car. As Lucas approached Kinney Street, a pedestrian was pointing, apparently in the direction of defendant's line of travel. Lucas turned in that direction but was still unable to see the car. After traveling a couple more blocks, another pedestrian pointed toward the apartment complex parking lot where the car was parked and unoccupied. That pedestrian informed Lucas that the Mercury had gone through a stop sign at approximately 30 to 40 miles per hour. From the time Lucas lost sight of the vehicle until he located it in the apartment parking lot, between one and two minutes had elapsed. Lucas parked his patrol car and approached the Mercury on foot. He determined that the hood of the Mercury was still warm and confirmed that it was the same car that he had been pursuing.

By that time, another officer, Lieutenant Anderson, had arrived on the scene. Lucas and Anderson briefly searched on foot for the driver, leaving the car unattended for only a few moments.¹ As they were searching, a resident of the apartment complex told Lucas that this was the third time that the same person had eluded the police after driving recklessly in this area; however, the resident did not provide the suspect's name. At about the same time, the police dispatcher informed Lucas that a man had been spotted running through a nearby yard and house. Lucas suspected that that man was the same person he was chasing.

Lucas returned to the Mercury and determined that it was unlocked. He then called his dispatcher and learned that the car's registered owner was Debra Atwood. Knowing that the person he had observed driving the car was a male, Lucas decided to search the car for evidence of the driver's identity. During that search, Lucas found a shotgun under some clothing. In addition, Lucas found two pieces of identification in a backpack behind the front seat. Both pieces of identification belonged to defendant, and Lucas recognized the man pictured on the pieces of identification as the same man he had seen driving the Mercury.

Defendant was ultimately arrested and indicted on counts of felon in possession of a weapon, ORS 166.270, and reckless driving, ORS 811.140.² Before trial, defendant moved to suppress the evidence that Lucas had found in the car, asserting that the warrantless search of the automobile did not fall within any exceptions to the warrant requirement and, thus, violated his rights under Article I, section 9, of the Oregon Constitution.³ The state, in response, invoked the "automobile exception," State v. Brown, 301 Or. 268, 721 P.2d 1357 (1986), and argued, further, that other exigent circumstances obviated the need to obtain a warrant. Defendant countered that the automobile exception did not apply both because there was no probable cause to search the vehicle and because the vehicle was not "mobile" at the time it was searched. Defendant also argued that the search was not justified by any other exigent circumstances.

The trial court granted defendant's motion, concluding that, although there was probable cause for the search, the vehicle was not mobile at the time of the search:

"In the case at bar, [defendant's] vehicle was parked, unoccupied, the engine was off and defendant had been observed running from the scene. While the vehicle was mobile when * * * Lucas first saw it, it was not at the time of the search. Accordingly, the [c]ourt would hold that the automobile exception does not apply in the case at bar."

The trial court also rejected the state's contention that other exigent circumstances justified the search.

On appeal, the state renews its argument that the automobile exception applies. It argues that mobility of the vehicle is determined by reference to the first police encounter with the vehicle—which, in this case, was Lucas's observation of the vehicle accelerating around the corner and down Highland Avenue. The state further argues that other exigent circumstances—namely, the fear that defendant might soon acquire another vehicle and drive it at improvidently high rates of speed, possibly endangering others—justified Lucas's search of the Mercury in his attempt to quickly ascertain defendant's identity. Defendant responds that, although the vehicle was moving when first observed by Lucas, it was not mobile when Lucas searched, and there were no other exigent circumstances that justified the search.

As described below, we agree with the state that the automobile exception justified the warrantless search of the car.⁴ However, in order to fully explain that conclusion, we must first engage in a comprehensive review of the development of the automobile exception under Oregon law. We acknowledge, before embarking on that review, that the exception's development has not necessarily always been internally consistent. See Brown, 301 Or. at 283-87,

721 P.2d 1357 (Linde, J., dissenting) ("Cases on warrantless searches and seizures of vehicles * * * involve enough variables to allow almost any precedent to be distinguished in a later case.").

The Supreme Court first recognized the automobile exception in Brown. The court held:

"[P]robable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile for the object of the search, despite the absence of any additional exigent circumstances." Brown, 301 Or. at 277, 721 P.2d 1357.

In so holding, the court expressly reserved the question of the exception's potential applicability to a "search of a vehicle that is not mobile and has not just been lawfully stopped by a police officer." Id.See also State v. Bennett, 301 Or. 299, 304, 721 P.2d 1375 (1986)

("[W]e do not reach the issue of warrantless searches of unoccupied, parked or immobile vehicles.").

In State v. Kock, 302 Or. 29, 725 P.2d 1285 (1986), the Supreme Court addressed the "unoccupied" or "immobile" vehicle issue reserved in Brown and Bennett. There, two police officers were conducting surveillance at a store where the defendant worked a graveyard shift. The store manager had informed the officers that the defendant did not have permission to take merchandise from the store. During their surveillance, the officers observed the defendant leave the store and carry a box over to his parked car. The defendant removed a package from the box, placed it inside the car, and then returned to the store with the box. The officers approached the car and observed the package behind the front seat, partially covered by a pair of pants. Without a warrant, the officers opened the door of the car, seized the package, and discovered that it contained diapers stolen from the store. The trial court denied the defendant's motion to suppress and, in the defendant's ensuing appeal of his conviction, the state invited the Supreme Court to extend the automobile exception to those circumstances where the vehicle was merely capable of mobility. The court refused:

"[W]e elect to draw the so-called bright line of Brown just where we left it in that case: Searches of automobiles that have just been lawfully stopped by police may be searched without a warrant and without a demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or crime evidence." Kock, 302 Or. at 32-33, 725 P.2d 1285 (emphasis added).

In a series of cases following Kock, we declined to apply the automobile exception to unoccupied, parked cars. State v. Vaughn, 92 Or.App. 73, 757 P.2d 441 (1988), rev. den. 306 Or. 661, 763 P.2d 153 (1988), is exemplary. In Vaughn, the police, who had received information that the defendant was transporting drugs, followed the defendant's vehicle but did not stop it or attempt to pull it over. Ultimately, the defendant parked at a house, which he entered. The officers watched the residence for approximately 25 minutes before approaching it and ordering all of the occupants, including the defendant, out of the house. The occupants were ordered to lie on the ground, where they were guarded by armed officers. The defendant refused to give the officers permission to search his car, but they searched it...