257 Or App ___    State v. Finlay

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FILED: July 17, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Appellant, v. JERRY EDWARD FINLAY, Defendant-Respondent. Marion County Circuit Court 11C43608 A149582 Gale M. Rieder, Judge pro tempore. Argued and submitted on August 29, 2012. Michael A. Casper, Deputy Solicitor General, argued the cause for appellant. On the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. Laura A. Frikert, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge. SERCOMBE, J. Reversed and remanded. 1 SERCOMBE, J. 2 The state appeals an order suppressing evidence discovered during a 3 warrantless search of a trailer attached to defendant's vehicle. It contends that the search 4 was lawful under the automobile exception to the warrant requirement and, therefore, that 5 the trial court erred in granting defendant's motion to suppress. On review for errors of 6 law, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), we conclude that the search fell 7 within the automobile exception. Accordingly, we reverse and remand. 8 The relevant facts are undisputed. Operating on a tip from an informant, 9 Silverton Detective Aljets arranged two controlled buys in which defendant agreed-- 10 through monitored telephone calls and text messages--to sell methamphetamine to the 11 informant. Before the first controlled buy, police learned that defendant drove a Ford 12 Ranger pickup truck, frequently with a trailer attached, and that he used that truck and 13 trailer to operate a landscaping business. 14 The first controlled buy occurred on April 13, 2011. Defendant agreed to 15 meet the informant at a grocery store in Silverton. Aljets waited at that location and 16 observed defendant arrive in his truck, which was not pulling the trailer; a passenger then 17 got out of the truck, walked directly toward the informant, and handed the informant 18 methamphetamine. Defendant and the passenger then left. Aljets testified that, although 19 she believed that she had probable cause to arrest defendant that day, she chose not to do 20 so in order to continue her investigation. 21 The second controlled buy occurred on April 22. Defendant agreed to meet 1 1 the informant at a restaurant near Silverton. While waiting in the parking lot, Aljets 2 observed defendant's truck enter the parking lot and pull up directly in front of her. That 3 time, defendant's truck was pulling a large, fully enclosed trailer. Defendant got out of 4 his truck, walked inside the restaurant, looked around briefly, and walked back outside, 5 where he was arrested approximately 100 feet from his truck. As defendant walked to the 6 restaurant, two passengers got out of the truck and were arrested. 7 Defendant was searched, but no methamphetamine was found. Aljets then 8 believed that she had probable cause to search defendant's truck and trailer for 9 methamphetamine. Approximately 30 to 40 minutes after defendant's arrest, officers did 10 so and found methamphetamine in the trailer. 11 The state charged defendant with one count of delivery of 12 methamphetamine, ORS 475.890. Defendant moved to suppress the methamphetamine, 13 arguing that the warrantless search of the trailer was unlawful under Article I, section 9, 14 of the Oregon Constitution.1 As relevant here, defendant argued that the search did not 15 fall within the automobile exception for two reasons: First, defendant argued that his 16 truck was not mobile when police "encountered" it in connection with a crime. That was 17 so, he argued, because the relevant "encounter" occurred not when officers observed his 1 Article I, section 9, 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 be searched, and the person or thing to be seized." 2 1 truck driving into the parking lot but, rather, when officers arrested him. Second, 2 defendant argued that the automobile exception did not apply to the search of his trailer 3 because a trailer is not a motor vehicle. The state responded that the truck was mobile 4 when police "encountered" it and that the trailer was a part of the truck for purposes of 5 the automobile exception. 6 The trial court granted defendant's motion to suppress. Specifically, as to 7 defendant's first argument, the court found that Aljets observed defendant drive his truck 8 into the parking lot and park. However, the court agreed with defendant that police did 9 not "encounter" the truck until they had arrested him--that is, when the truck was parked 10 and unoccupied. On that basis, the court concluded that the state was required to prove 11 "that exigent circumstances other than the inherent mobility of the vehicle exist[ed] to 12 justify the warrantless search" and that the state had failed to do so. As to defendant's 13 second argument, the court concluded that, had the truck been mobile when police 14 encountered it, the "quality of mobility [was] as true for the trailer attached to defendant's 15 pickup as for the pickup itself." 16 The state appeals. Relying on State v. Kurokawa-Lasciak, 351 Or 179, 263 17 P3d 336 (2011), it argues that application of the automobile exception requires only (1) 18 that a vehicle is mobile at the time that the police encounter it in connection with a crime 19 and (2) that probable cause supports the search of that vehicle. Further, relying on State 20 v. Meharry, 342 Or 173, 149 P3d 1155 (2006), the state maintains that police 21 "encountered" defendant's truck in connection with a crime when Aljets observed 3 1 defendant drive it into the parking lot and park--not, as the trial court concluded, when 2 police arrested him. 3 Defendant responds that the trial court correctly concluded that the truck 4 was not mobile when police encountered it. Defendant acknowledges that recent 5 Supreme Court cases, most notably Kurokawa-Lasciak and Meharry, have required that 6 "the vehicle that the police search * * * be mobile at the time that the police encounter it 7 in connection with a crime." Kurokawa-Lasciak, 351 Or at 192 (emphasis added). 8 However, relying on State v. Brown, 301 Or 268, 721 P2d 1357 (1986), and later cases 9 citing Brown, defendant argues that police "encounter" a vehicle in connection with a 10 crime only when they lawfully stop the vehicle. See id. at 274 (requiring "that the 11 automobile [be] mobile at the time it is stopped by police or other governmental 12 authority" (emphasis added)). In defendant's view, "subsumed in [the] concept of vehicle 13 mobility is the obvious requirement of a 'stop' of a mobile vehicle." Thus, according to 14 defendant, the fact that "the officers in this case witnessed defendant driving his truck 15 shortly before they arrested him * * * is not itself sufficient to bring this case into the 16 automobile exception--when there [was] no corresponding 'stop' of defendant's truck." 17 Defendant makes two other arguments; each is presented as an alternative 18 basis for affirming the trial court's ruling. See Outdoor Media Dimensions Inc. v. State of 19 Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (explaining circumstances in which we 20 will affirm the trial court on an alternative basis). First, defendant reiterates his argument 21 below that the search of the trailer did not fall within the automobile exception because a 4 1 trailer is not a motor vehicle. He argues that the Supreme Court in Brown established the 2 exception only for motor vehicles and that later case law establishes that Brown "'sets the 3 outer limit for warrantless automobile searches without other exigent circumstances.'" 4 Kurokawa-Lasciak, 351 Or at 190 (quoting State v. Kock, 302 Or 29, 33, 725 P2d 1285 5 (1986)). Second, defendant argues that the search of the trailer was not supported by 6 probable cause. Specifically, he argues that police were required to have probable cause 7 to believe that there was contraband in the trailer when they encountered it--that is, 8 before officers arrested defendant and searched him.2 9 As noted, Article I, section 9, guarantees "the right of the people to be 10 secure in their persons, houses, papers, and effects, against unreasonable search, or 11 seizure[.]" Under that section, a warrantless search is unreasonable unless it "falls within 12 one of the few specifically established and carefully delineated exceptions to the warrant 13 requirement." Meharry, 342 Or at 177 (internal quotation marks and brackets omitted). 14 In cases involving a warrantless search, the state bears the burden of proof as to the 15 applicability of an exception to the warrant requirement. State v. Pirtle, 255 Or App 195, 16 199, 296 P3d 625 (2013) (citing ORS 133.693(4)). 2 Defendant also argues on appeal that the automobile exception is "constitutionally invalid" and that "the appropriate analysis under the state constitution should turn on a case-specific inquiry into the relevant exigent circumstances." As we have previously noted, the automobile exception derives from Supreme Court precedent, which we lack authority to overrule. See State v. Smalley, 233 Or App 263, 266 n 1, 225 P3d 844, rev den, 348 Or 415 (2010) (explaining that this court has no authority to narrow or overrule precedent establishing the automobile exception). Accordingly, we reject that argument without further discussion. 5 1 The automobile exception was first recognized by the Supreme Court in 2 Brown. That case presented the question "whether police officers are required to obtain a 3 warrant before searching the trunk of a lawfully stopped automobile when the officers 4 who arrested the driver have probable cause to believe that the trunk contain[s] relevant 5 evidence of the crime for which the arrest could have been made." 301 Or at 270. The 6 court held that a warrant is not required provided "(1) that the automobile is mobile at the 7 time it is stopped by police or other governmental authority, and (2) that probable cause 8 exists for the search of the vehicle." Id. at 274. It reasoned that a vehicle that is mobile 9 at the time it is stopped by police presents a per se exigency sufficient to overcome the 10 warrant requirement because "'the vehicle can be quickly moved out of the locality or 11 jurisdiction in which the warrant must be sought.'" Id. at 276 (quoting Carroll v. United 12 States, 267 US 132, 153, 45 S Ct 280, 69 L Ed 543 (1925)). However, the Brown court 13 noted that it was "not confronted * * * with the search of a vehicle that is not mobile and 14 has not just been lawfully stopped by a police officer." Id. at 277. 15 Only months after Brown, the Supreme Court decided Kock. In that case, 16 the court considered whether the automobile exception applied in the context of a parked, 17 immobile, and unoccupied vehicle. The court held: 18 19 20 21 22 23 24 25 "[W]e emphasized in State v. Brown * * * that we were not confronted with the search of a vehicle that was not mobile or that had not just been lawfully stopped by a police officer. We are now confronted with such a case. Although logically it can be argued that the rationale of the seminal case of Carroll, [267 US 132], and its progeny, including United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982), would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line of Brown just where we 6 1 2 3 4 5 6 7 8 9 10 11 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. * * * We * * * hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist." Kock, 302 Or at 32-33 (emphasis added). Years later, in Meharry, the Supreme Court considered whether the 12 automobile exception applied where an officer observed the defendant driving her vehicle 13 in connection with a reported crime but did not conduct a roadside stop of the vehicle. In 14 that case, a citizen reported that the defendant was driving erratically with an unrestrained 15 child in her van. An officer responded and, as he was leaving the police station, observed 16 the defendant's van pass in front of him. The officer followed the van and saw the 17 defendant pull it into a convenience store's parking lot and park. He then pulled into the 18 parking lot and parked behind the defendant's van; while doing so, he saw the defendant 19 stagger into the store. 342 Or at 175. The officer confronted the defendant inside the 20 store and observed circumstances that led him to believe that she was under the influence 21 of intoxicants. Id. at 175-76. After arresting the defendant, the officer searched her and 22 found a syringe. He then searched the van and found prescription medications, as well as 23 more syringes. The defendant was subsequently charged with multiple crimes. 24 Before trial, the defendant moved to suppress the evidence found in the 25 van, arguing that the automobile exception did not justify the warrantless search. The 7 1 trial court granted the motion, and the state appealed. Id. at 176. We affirmed, 2 explaining that the relevant "encounter" did not occur until the officer confronted the 3 defendant inside the store and that, at that time, there was no exigency relating to the 4 van's mobility. Id. at 179. On review, the Supreme Court reversed, concluding that the 5 van was mobile when police encountered it in connection with a crime. Id. at 179-80. 6 In doing so, the court noted the holding in Brown, 301 Or at 277 7 (warrantless search permitted if there is "probable cause to believe that a lawfully stopped 8 automobile which was mobile at the time of the stop contains contraband or crime 9 evidence"), and observed that, "[o]rdinarily, when the police search a vehicle, they do so 10 after stopping it on the side of the road." Meharry, 342 Or at 178. The court went on to 11 reiterate its holding in Kock that, in contrast, where a "vehicle had been 'parked, 12 immobile and unoccupied at the time the police first encountered it in connection with the 13 investigation of a crime * * *,' the vehicle was not mobile for the purposes of the 14 automobile exception." Meharry, 342 Or at 179 (quoting Kock, 302 Or at 33). 15 16 17 18 19 20 21 22 23 24 25 26 Applying those cases, the court in Meharry concluded: "First, we agree with the state that [the officer] first encountered defendant's van in connection with a crime when he saw her drive by the police station. At that point, the van was mobile and [the citizen's] reported observations gave [the officer] reasonable suspicion to believe that defendant was driving under the influence of intoxicants. Second, the Court of Appeals' reasoning fails to give effect to the exigency that ordinarily justifies the warrantless search of a vehicle. As this court explained in Brown, the exigency that permits the police to conduct a warrantless search of a mobile vehicle arises from the fact that the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought." 8 1 2 3 Id. at 179-80 (internal quotation marks and citations omitted; emphasis added). In response to an argument by the defendant that no exigency existed under Brown given that the officer had not stopped her vehicle, the court further explained: 4 5 6 7 8 9 10 11 12 "It is true, as defendant notes, that [the officer] did not effect a stop, as the officer did in Brown, by causing defendant to pull her van over to the side of the road and bring it to a stop. [The officer], however, did stop defendant when he followed her into the [convenience store's] parking lot and parked his police car behind her van, preventing her from leaving once she finished her errand. The issue that defendant's argument thus poses is whether stopping an otherwise mobile car from resuming its journey (as [the officer] did here) differs for purposes of the automobile exception from causing a moving car to come to a stop (as the officer did in Brown). 13 14 15 16 17 18 19 20 21 22 23 24 "We cannot see a difference, for constitutional purposes, between the two situations. The fact that [the officer] did not have time to effectuate a stop before defendant pulled into the [convenience store's] parking lot but instead effectuated a stop by preventing defendant from continuing her journey does not make her van any less mobile, nor does it make it any less likely that her van--and any evidence inside the van--could have been moved once [the officer] relinquished control over it. Rather, the van remained mobile, and the circumstances in this case were as exigent as they were in Brown. Because the same exigency that justified the warrantless search of the defendant's car in Brown justified [the officer's] search of defendant's van in this case, we hold that the rule announced in Brown extends to this case." 25 26 Meharry, 342 Or at 180-81 (citation and footnote omitted). The Supreme Court most recently applied the automobile exception in 27 2011 when it decided Kurokawa-Lasciak. In that case, the defendant was on foot 28 approximately 30 feet from his van when he was stopped by police. 351 Or at 182. 29 Later, an officer searched the van and discovered evidence related to various drug 30 offenses. The defendant moved to suppress that evidence, arguing that the warrantless 31 search was unlawful. Id. at 184. In response, the state argued, among other things, that 9 1 the automobile exception justified the search. Id. at 184-85. The trial court concluded 2 that the van was not mobile and suppressed the evidence. The state appealed, and we 3 reversed, concluding that Meharry stood for the principle that a vehicle that is merely 4 operable is mobile for purposes of the automobile exception and that, on that basis, the 5 search was valid. Kurokawa-Lasciak, 351 Or at 185. 6 On review, the Supreme Court reversed, concluding, as the trial court had, 7 that the van was not mobile. After an extensive discussion of Brown, Kock, and 8 Meharry, the court framed the mobility requirement as follows: 9 10 11 "[T]o qualify for the automobile exception, the vehicle that the police search must be mobile at the time that the police encounter it in connection with a crime." 12 Kurokawa-Lasciak, 351 Or at 192 (emphasis added). With that understanding in mind, 13 the court concluded that "there was no evidence from which the trial court could have 14 found that [the] defendant's van was mobile when [the officers] encountered it in 15 connection with a crime." Id. at 194. 16 As noted, in the present case, the state contends that the trial court erred in 17 concluding that defendant's truck was not mobile for purposes of the automobile 18 exception. The state argues that, under Kurokawa-Lasciak, to meet the mobility 19 requirement, it must show only that a vehicle is "mobile at the time that police encounter 20 it in connection with a crime." Id. at 192. Relying on Meharry, the state further argues 21 that police "encountered" defendant's truck in connection with a crime when, in the 22 course of a criminal investigation of defendant, they observed defendant drive the truck 10 1 into the parking lot and park. Defendant responds that, under Brown and later cases that 2 cite Brown, including Kurokawa-Lasciak and Meharry, police only "encounter" a vehicle 3 in connection with a crime if they lawfully stop that vehicle. 4 We agree with the state. Put simply, although defendant is correct that the 5 Supreme Court in Brown required "that the automobile is mobile at the time it is stopped 6 by police or other governmental authority," 301 Or at 274 (emphasis added), the court's 7 most recent decision concerning the application of the automobile exception, Kurokawa- 8 Lasciak, states that, "to qualify for the automobile exception, the vehicle that the police 9 search must be mobile at the time that the police encounter it in connection with a crime," 10 351 Or at 192 (emphasis added). Further, in Meharry, the court concluded that an officer 11 "encountered" a vehicle in connection with a crime when the officer (who had reasonable 12 suspicion to believe that the defendant was driving under the influence of intoxicants) 13 saw the defendant driving the vehicle. 342 Or at 179. 14 Applying those principles to the facts of this case, here, Aljets encountered 15 defendant's truck when she saw him drive it into the parking lot and park. Further, given 16 the police investigation of the first controlled buy and defendant's recent agreement to 17 participate in the proposed second controlled buy, there is no dispute that that 18 "encounter" occurred "in connection with a crime." Accordingly, defendant's truck was 19 mobile at the time that police encountered it in connection with a crime. 20 We disagree with defendant's argument that Meharry supports his position 21 that the automobile exception requires a roadside stop of a mobile vehicle. In that case, 11 1 the court noted that, although the officer did not effect a roadside stop of the defendant, 2 he "did stop [the] defendant when he followed her into the [convenience store's] parking 3 lot and parked his police car behind her van[.]" 342 Or at 180. The court considered 4 whether "stopping an otherwise mobile car from resuming its journey (as [the officer] did 5 [t]here) differs for purposes of the automobile exception from causing a moving car to 6 come to a stop (as the officer did in Brown)." Id. As noted, it concluded that there was 7 no difference under Article I, section 9: 8 9 10 11 12 13 14 15 16 17 18 "The fact that [the officer] did not have time to effectuate a stop before defendant pulled into the [convenience store's] parking lot but instead effectuated a stop by preventing defendant from continuing her journey does not make her van any less mobile, nor does it make it any less likely that her van--and any evidence inside the van--could have been moved once [the officer] relinquished control over it. Rather, the van remained mobile, and the circumstances in this case were as exigent as they were in Brown. Because the same exigency that justified the warrantless search of the defendant's car in Brown justified [the officer's] search of defendant's van in this case, we hold that the rule announced in Brown extends to this case." Id. at 180-81 (footnote omitted). 19 Similarly, here, the fact that officers did not effectuate a roadside stop of 20 defendant's truck is immaterial. Officers prevented defendant's truck "from resuming its 21 journey" by seizing defendant and his two passengers. More importantly, as the court in 22 Meharry explained, the lack of a roadside stop does not negate the exigency presented by 23 the fact that the truck was mobile when police first encountered it in connection with a 24 crime. 25 26 We now turn to defendant's first proffered alternative basis for affirming the trial court's ruling. As noted, defendant argues that the automobile exception did not 12 1 justify the warrantless search of his trailer because a trailer is not a motor vehicle. 2 Defendant cites no case law directly on point, and we have found none. Rather, 3 defendant argues that Brown established an exception only for motor vehicles and that, 4 under Kurokawa-Lasciak, Brown "'sets the outer limit for warrantless automobile 5 searches without other exigent circumstances.'" Kurokawa-Lasciak, 351 Or at 190 6 (quoting Kock, 302 Or at 33). In defendant's view, permitting a warrantless search of a 7 trailer that is attached to a mobile vehicle "is a broad expansion of the current automobile 8 exception." We disagree. 9 "As [the] court explained in Brown, the exigency that permits the police to 10 conduct a warrantless search of a mobile vehicle arises from the fact that the 'vehicle can 11 be quickly moved out of the locality or jurisdiction in which the warrant must be 12 sought.'" Meharry, 342 Or at 180 (quoting Brown, 301 Or at 275). That justification 13 applies equally in the case of a trailer, or any container, that is attached to a vehicle. That 14 is so because, if the vehicle "quickly move[s] out of the locality or jurisdiction," so too 15 will the container attached to it. See United States v. Carroll, 537 F Supp 2d 1290, 1297 16 (ND Ga 2008) (warrantless search of a trailer attached to a vehicle was proper under the 17 automobile exception to the warrant requirement of the Fourth Amendment to the United 18 States Constitution). Moreover, we fail to see a significant distinction between searching 19 containers inside a vehicle, which is permitted under the automobile exception, Brown, 20 301 Or 268 (automobile exception permits the search of a container in a vehicle), and 21 searching containers attached to the outside of a vehicle. Here, it is undisputed that the 13 1 trailer containing methamphetamine was attached to defendant's truck. Accordingly, we 2 agree with the trial court that the "quality of mobility is as true for the trailer attached to 3 defendant's pickup as for the pickup itself." 4 Defendant next argues that we should affirm the trial court's ruling on the 5 ground that the search of the trailer was not supported by probable cause. Specifically, 6 defendant argues that police were required to have probable cause to believe that there 7 was contraband in the trailer when police encountered the truck--that is, before officers 8 arrested defendant and searched him. We again disagree. 9 As noted, the automobile exception permits a warrantless search of a 10 vehicle when (1) it is mobile at the time that police encounter it in connection with a 11 crime and (2) police have probable cause to believe that the automobile contains 12 contraband or evidence of a crime. Kurokawa-Lasciak, 351 Or at 188, 192. If that rule 13 required police to have probable cause at the time that they encounter a mobile vehicle, 14 there would be no need for the requirement that police encounter the vehicle "in 15 connection with a crime."3 Moreover, defendant's argument is at odds with controlling 16 case law. In Meharry, the Supreme Court concluded that an officer developed probable 3 Case law is clear that the phrase "in connection with a crime" does not mean "probable cause." For example, in Meharry, the Supreme Court concluded that an officer encountered the defendant's vehicle "in connection with a crime" when the officer saw the defendant driving after receiving reports that gave him "reasonable suspicion" that the defendant was driving under the influence of intoxicants. 342 Or at 179; see also Pirtle, 255 Or App at 201 n 4 (declining to "address the requisite nature or strength of the prescribed 'connection with [a] crime'" requirement (brackets in Pirtle)); State v. Groom, 249 Or App 118, 120 n 1, 274 P3d 876, rev den, 352 Or 665 (2012) (same). 14 1 cause to search the defendant's van after the officer interacted with the defendant and 2 searched her, and that that warrantless search was justified by the automobile exception. 3 342 Or at 178 n 2. Accordingly, we reject defendant's argument. 4 In sum, defendant's truck (including the trailer) was mobile at the time that 5 police encountered it in connection with a crime, and probable cause supported the 6 search. Accordingly, the automobile exception justified the search, and the trial court 7 erred in concluding otherwise. 8 Reversed and remanded. 15

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