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Top Headlines Is It Legal?
Weirdly Legal Everyday Legal California Lawyers Federal Practice U.{/INSERTKEYS} {INSERTKEYS}Supreme Court of Oregon.
STATE of Oregon, Respondent on Review, v.
Tyler Juro KUROKAWA�LASCIAK, Petitioner on Review.
CC 07CR1309FE; CA A140430; SC S058898.
Decided: October 06, 2011 Before DE MUNIZ, Chief Justice, and DURHAM, BALMER, KISTLER, WALTERS, and LINDER, Justices.
Joyce, Assistant Attorney General, argued the cause and filed the brief for respondent on review.
With her on the brief were John R.
Kroger, Attorney General, and Mary H.
The state charged defendant with various drug offenses, and defendant filed a motion to suppress evidence that the police had obtained from a warrantless search of his rental van.
The state contended that no warrant was required under the automobile exception to Article I, section 9, announced by this court in State v.
The trial court granted defendant's motion to suppress and the state appealed.
The Court of Appeals reversed the trial court's ruling and held that the search was valid under the automobile exception.
Defendant sought review, which we allowed.
We decide that the automobile exception did not permit the warrantless search of defendant's van and remand the case to the Court of Appeals to decide the issue that it did not reach�whether the search was permitted by defendant's companion's consent.
We state the facts consistently with the trial court's factual findings and its decision granting defendant's motion to suppress.
Defendant was gambling at the Seven Feathers Casino on the Cow Creek Indian Reservation in Douglas County when a casino employee began to suspect that he was engaged in money laundering.
The casino prohibited defendant from engaging in further cash transactions for a 24�hour period and posted his photograph in its cashiers' cages.
The casino also began to monitor defendant's movements by soundless video camera, capturing the events described in the following paragraph.
At approximately 9:17 a.
At approximately 9:30 a.
At approximately 9:43 a.
When defendant was approximately 30 feet from his van, an officer, Deputy Wohls from the Douglas County Sheriff's Department, drove his patrol car to the place where defendant was walking and stopped him.
At approximately 10:09 a.
Bennett had spoken with casino employees about defendant's suspicious activity, but neither Bennett nor Wohls had seen defendant drive the van and neither had reviewed the casino surveillance tape.
Bennett spoke with defendant and recorded their conversation.
Bennett informed defendant that he was detaining him on suspicion of money laundering and administered Miranda warnings.
In response to a question from Bennett about what had happened, defendant said that he had seen his picture in the casino cage and taken it.
When asked about the van, defendant said that he had rented it in California and was going to Spokane to pick up his son.
Bennett then asked defendant what was in the bag in his pocket and told defendant that it looked like a marijuana pipe.
Bennett asked defendant how many drugs he had on him and in the van.
When defendant did not respond, Bennett told defendant that he was under arrest for disorderly conduct and third-degree theft for taking the photograph from the casino and that he would be taken to the Douglas County Jail.
Bennett asked defendant for consent to search the van; defendant refused.
Bennett told defendant that he believed that defendant was in possession of controlled substances, patted him down, and discerned that the bag in defendant's pocket did not contain a pipe, but instead felt as if it contained credit cards.
Bennett asked defendant if he was involved in identity theft; defendant denied that he was.
Bennett then told defendant that he was going to jail for disorderly conduct and theft, but that once there he could be cited and released.
However, Bennett explained, defendant had another option.
If defendant would consent to a search of the van, Bennett might cite him at the casino and release him there.
Defendant responded that what Bennett was saying was not true.
Bennett asked to search defendant's pockets, the van, and the room at the casino where defendant was staying.
Defendant said that he wanted to talk to a lawyer.
Bennett told defendant that he was impounding the van and that he would get a search warrant.
Wohls interjected that Bennett must inventory the vehicle.
At approximately 10:14 a.
Neither Wohls nor Bennett impounded the van, inventoried its contents, or made efforts to obtain a search warrant.
Instead, Bennett continued his investigation and learned that defendant had given the van's keys to his girlfriend, Laura Campbell, and instructed her to lock the van, take care of the family dog, go to the casino's restaurant to eat, and stay put until he returned.
At approximately 10:28 a.
Bennett did not record his conversation with Campbell, but the casino's surveillance camera captured silent video of the conversation.
Bennett asked Campbell whether the van contained a large amount of money or drugs.
Campbell replied that she did not know of any.
Bennett then asked whether there was marijuana in the van; Campbell said that there was.
Campbell hesitated and told Bennett that she was not sure if she could consent because she was not listed on the rental agreement.
Campbell told Bennett that she had the keys to the van and that it may be her intention to leave.
However, Campbell agreed to meet Bennett outside the restaurant, by the van, when she and her children finished their breakfast.
At approximately 11:00 a.
Bennett allowed Campbell to take the dog out of the van and make a telephone call.
At approximately 11:15 a.
After seizing the evidence, Bennett told Campbell that she was not under arrest and gave her directions so that she could drive, in the van, to the Douglas County Jail.
Defendant moved to suppress the evidence discovered in the search, contending that the warrantless search was unlawful under Article I, section 9, of the Oregon Constitution.
The state took the position that the search was permitted by the automobile exception or Campbell's consent.
After a hearing, at which the court took testimony from Bennett, defendant, and Campbell, viewed the silent casino surveillance tape, and listened to the conversations that Bennett had recorded, the court rejected both of the state's arguments.
As to the automobile exception, the court explained that it did not apply because the van was not moving at the time that the police stopped defendant and developed probable cause to search the van.
As to the validity of Campbell's consent, the trial court ruled that Campbell had authority over the van and that her consent was voluntary, but that defendant's prior refusal to give consent negated Campbell's subsequent consent, citing State v.
The state appealed and, with respect to the automobile exception, argued that that exception applied because the evidence before the trial court established that defendant's van had been moving when he drove it into the parking lot and that nothing occurred thereafter to render the van immobile.
The state did not contend that the van was moving when the officers encountered it or that the officers had seen defendant driving the van before they stopped him.
The Court of Appeals interpreted its prior cases and this court's decision in State v.
The court observed that defendant's van could be moved after the police relinquished control over it and it was not being impounded.
Defendant sought review, which we allowed.
In this court, neither defendant nor the state adopts the Court of Appeals' interpretation of Meharry.
Defendant contends that the automobile exception to the warrant requirement of Article I, section 9, of the Oregon Constitution precludes the warrantless search of a car that is parked, immobile, and unoccupied when the police encounter it in connection with a crime, and that Meharry is consistent with that rule.
The constitution requires a warrant so that a disinterested branch of government�the judicial branch-and not the branch that conducts the search�the executive branch�makes the decision as to whether there is probable cause to search.
This court first recognized the automobile exception to the warrant requirement of Article I, section 9, in 1986, in Brown, 301 Or.
In that case, the police made a roadside stop of a mobile vehicle.
Therefore, the court decided, the constitution permits an exception to the warrant requirement when 1 the automobile is mobile at the time it is stopped by police, and 2 probable cause exists for the search of the automobile.
The only exigent circumstance that the court required was the mobility of the automobile at the time of the stop.
All the trial judge needed to find was what he did find: 1 the car was mobile at the time it was stopped by the police; and 2 the police had probable cause to believe that the car contained contraband or crime evidence.
However, the court noted, a neutral magistrate's evaluation of probable cause continued to be a desired goal, and the court did not anticipate that the police would rely on the automobile exception when advances in technology permitted quick and efficient electronic issuance of warrants.
All that would be needed in this state would be a central facility with magistrates on duty and available 24 hours a day.
All police in the state could call in by telephone or other electronic device to the central facility where the facts, given under oath, constituting the purported probable cause for search and seizure would be recorded.
The magistrates would evaluate those facts and, if deemed sufficient to justify a search and seizure, the magistrate would immediately issue an electronic warrant authorizing the officer on the scene to proceed.
The warrant could either be retained in the central facility or electronically recorded in any city or county in the state.
Thus, the desired goal of having a neutral magistrate could be achieved within minutes without the present invasion of the rights of a citizen created by the delay under our current cumbersome procedure and yet would fully protect the rights of the citizen from warrantless searches.
They argued that an automobile exception to the warrant requirement could be justified only if the state could prove the existence of an actual, as opposed to an assumed, exigency.
Whether there was a sufficient risk that evidence would be lost if the police were required to obtain a warrant to search an automobile should be determined, as it is when courts assess the existence of other exigent circumstances, on a case-by-case basis.
Although the dissent welcomed the majority's suggestion that its decision was a temporary accommodation subject to change in the near future when technology would permit neutral magistrates to fulfill the role that the constitution required, the dissent thought that the state would provide and use available technology more expeditiously if the court would enforce the warrant requirement rather than recognize a new exception to it.
Some three months after its decision in Brown, the court decided State v.
In Kock, the police received a tip that the defendant was stealing from his workplace and went to the defendant's workplace to investigate.
There, the police observed the defendant's parked and unoccupied vehicle for several hours.
After the defendant emerged with a package, placed it in his vehicle, and returned to work, police searched the vehicle without a warrant and found stolen merchandise.
However, the court specifically elected not to adopt the Supreme Court's rationale or to extend the Oregon exception.
In concluding that the warrantless search of the defendant's car was unconstitutional, the court acknowledged that the line that it had drawn reflected neither the position of those who believed that the constitution permitted the police to conduct a warrantless search of any operational vehicle nor those who believed that the constitution did not permit an automobile exception to the warrant requirement in the absence of a particularized showing of exigency.
In this case, the Court of Appeals, as noted, did not apply the automobile exception as articulated in Brown and Kock.
Although neither defendant nor the state concur with that reading of Meharry, it obviously is key to our resolution of this case, and we proceed to consider it.
In Meharry, a fire chief saw the defendant drive erratically and nearly cause a collision.
The chief began to trail the defendant and called the police department to report his observations.
A police officer responded to the call and saw the fire chief and the defendant pass in front of him as he drove out of the police station.
Before the officer could overtake the defendant, she pulled into a store parking lot and brought her van to a halt.
The officer pulled in behind the defendant, blocking her from leaving.
The officer then followed the defendant into a store, saw that she was lethargic and incoherent, conducted field sobriety tests, and arrested her for driving under the influence of intoxicants.
Thereafter, the officer searched the defendant and her van, finding evidence that the defendant sought to suppress.
The Court of Appeals held that the search was unconstitutional because the relevant encounter had occurred when the officer confronted the defendant in the store, and there was no exigency relating to the mobility of the van at that time.
First, the court stated, the police officer had encountered the van in connection with a crime when he saw the defendant driving it past the police station, and the van was mobile at that time.
In short, the van remained mobile and the exigency continued.
In response to the defendant's argument that the case was not on all fours with Brown because the officer in Meharry had not caused the defendant to pull over to the side of the road as the officer in Brown had done, the court said that the officer in Meharry had effectuated a stop of the defendant by parking his car behind her van and preventing her from leaving.
The court equated the officer's action with a roadside stop because the officer's action prevented the defendant from leaving.
As the state seems to acknowledge, the court in Meharry did not dispense with the Brown and Kock requirement that, to 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.
The court cited and applied that requirement and held that the defendant's van was mobile at the time that the police encountered it in connection with a suspected crime.
The court discussed the van's continuing operability at the time of the search only to correct the Court of Appeals' statement that the initial exigency no longer existed when the police searched the van.
By noting that the defendant's van, which initially was mobile, remained operable at the time of the search, the court did not intend to eliminate the requirement of the automobile exception that the vehicle be mobile at the time of the initial encounter or to replace it with a requirement of operability at the time of the initial encounter.
When the court decided Brown and Kock in 1986, it expressly rejected operability as the basis for the automobile exception to the Oregon Constitution.
We acknowledge the logic of the state's position���that it is just as likely that a person in control of an operable car will drive off with evidence or contraband as will a person in control of a car that was mobile at the time of the initial encounter and that remains mobile thereafter.
But we also are cognizant that, when the court recognized the automobile exception in 1986, it was careful to recognize a limited exception to the constitutional requirement that a neutral magistrate, and not officers in the field, determine the existence of probable cause to search.
If we were to alter that line, we would be overruling those cases.
Neither party has asked us to do so, nor demonstrated a basis for us to do so.
Therefore, we adhere, as the court did in Meharry, to the line that the court drew in Brown and Kock.
With that understanding of the automobile exception, determining whether that exception permitted the search in this case is not difficult.
The trial court found that when Wohls stopped defendant, defendant was approximately 30 feet from his van, which was parked, immobile, and unoccupied, and that, when Bennett questioned defendant, defendant was no longer near the van.
As the state now acknowledges, there was no evidence from which the trial court could have found that defendant's van was mobile when Wohls or Bennett encountered it in connection with a crime.
Therefore, we conclude that the trial court was correct that the automobile exception did not permit the warrantless search of defendant's van.
That does not mean, however, that the trial court correctly suppressed the evidence.
The Court of Appeals did not reach the state's argument that the search was constitutionally authorized by Campbell's consent.
We remand the case to the Court of Appeals to decide that issue.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
The casino required any individual approaching that limit to provide identification and, if the individual refused, prohibited the individual from making any cash transactions for a 24�hour period.
Because defendant was approaching the cash transaction limit, a casino employee requested identification and, when defendant refused to provide it, told defendant that he was barred from making any cash transactions for 24 hours.
Casino officials then distributed a photograph of defendant, taken from surveillance camera footage, to all of the casino's cashiers.
Bennett never considered Campbell to be a criminal suspect.
Defendant primarily argued that the search was unlawful under Article I, section 9, of the Oregon Constitution, but also cited the Fourth Amendment to the United States Constitution in his motion to suppress.
Defendant does not make any arguments in this court based on the Fourth Amendment.
At the hearing on the motion to suppress, the trial court reviewed the casino surveillance tape, which showed defendant driving the van out of and back into the casino parking lot.
Bennett testified that he reviewed the casino surveillance tapes after the search was complete.
The Court of Appeals also observed that the van became the subject of the officer's focus before probable cause to arrest defendant had developed which occurred when Campbell told him that the van could contain more than an ounce of marijuana.
On the same day that it decided Brown, the court also decided State v.
In that particular respect, the court expressly followed the reasoning of the United States Supreme Court and cited Carroll v.
United States, 267 U.
The court emphasized, however, that it was deciding Brown independently of the federal standard and citing that case only because it found it persuasive in that particular regard.
The court cited Carroll, 267 U.
One of the cases included in that description was California v.
First, the vehicle is obviously readily mobile by the turn of an ignition key, if not actually moving.
Second, there is a reduced expectation of privacy stemming from its use as a licensed motor vehicle subject to a range of police regulation inapplicable to a fixed dwelling.
At least in these circumstances, the overriding societal interests in effective law enforcement justify an immediate search before the vehicle and its occupants become unavailable.
In doing so, the court in Kock called attention to the contrast between the Oregon exception and that permitted under the federal constitution.
In Meharry, this court again noted that the Oregon mobility requirement distinguishes the Oregon automobile exception from that permitted by the federal constitution.

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