automobile exception in Oregon

2026An officer merely articulated a con- cern that, if released, defendant “may come back and * * * take the vehicle.” (Emphasis added.) Although it was “very likely” that the jail would not detain defendant, the state did not demonstrate that defendant posed an imminent threat 3 In McCarthy, the Supreme Court eliminated the automobile exception to the warrant requirement of Article I, section 9, created in State v. Brown, 301 Or 268, 278 , 721 P2d 1357 (1986). 369 Or at 132 .

2026An officer merely articulated a con- cern that, if released, defendant “may come back and * * * take the vehicle.” (Emphasis added.) Although it was “very likely” that the jail would not detain defendant, the state did not demonstrate that defendant posed an imminent threat 3 In McCarthy, the Supreme Court eliminated the automobile exception to the warrant requirement of Article I, section 9, created in State v. Brown, 301 Or 268, 278 , 721 P2d 1357 (1986). 369 Or at 132 .

2021The court noted that, although in Kock this court had “in no uncertain terms rejected the theory that the exception extended to ‘stationary but oper- ational vehicle[s],’ ” the courts had since “ ‘refined the auto- mobile exception analysis,’ ” and “at present, a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33 ; then quoting State v. Coleman, 167 Or App 86, 92 , 2 P3d 399 (2000); and then citing Meharry II, 342 Or at 181 ).7 7 When doing so, the Court of Appeals mentioned the lack of stability in the case

2020The automobile exception only applies if the car is not “parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime.” State v. Kock, 302 Or 29, 33 , 725 P2d 1285 (1986).

2023In 2011, the Oregon Supreme Court reaffirmed that the automobile exception “does not 5 Accordingly, we need not decide whether the record would have permitted the post-conviction court to infer that petitioner’s counsel made such a tactical decision. 106 Martin v. Kelly permit a warrantless search of a defendant’s vehicle when the vehicle is parked, immobile, and unoccupied at the time that the police encounter it in connection with a crime.” State v. Kurokawa-Lasciak, 351 Or 179, 181 , 263 P3d 336 (2011).

2023In 2011, the Oregon Supreme Court reaffirmed that the automobile exception “does not 5 Accordingly, we need not decide whether the record would have permitted the post-conviction court to infer that petitioner’s counsel made such a tactical decision. 106 Martin v. Kelly permit a warrantless search of a defendant’s vehicle when the vehicle is parked, immobile, and unoccupied at the time that the police encounter it in connection with a crime.” State v. Kurokawa-Lasciak, 351 Or 179, 181 , 263 P3d 336 (2011).

2025That court explained, in part: “Nevertheless, as the automobile exception is currently crafted in Oregon, pursuant to [State v.] Brown, [ 301 Or 268 , 721 P2d 1357 (1986), State v.] Andersen, [ 361 Or 187 , 390 P3d 992 (2017), and State v.] Bliss, [ 363 Or 426 , 423 P3d 53 (2018),] the state is only required to show * * * that the auto- mobile was mobile at the time it was stopped by the police * * * and that probable cause existed for the search of the vehicle.* * * While McCarthy is being reviewed, the above legal landscape continues to exist.

2025That court explained, in part: “Nevertheless, as the automobile exception is currently crafted in Oregon, pursuant to [State v.] Brown, [ 301 Or 268 , 721 P2d 1357 (1986), State v.] Andersen, [ 361 Or 187 , 390 P3d 992 (2017), and State v.] Bliss, [ 363 Or 426 , 423 P3d 53 (2018),] the state is only required to show * * * that the auto- mobile was mobile at the time it was stopped by the police * * * and that probable cause existed for the search of the vehicle.* * * While McCarthy is being reviewed, the above legal landscape continues to exist.

2021Thus, although in Brown the court appeared to use the term “mobile” to mean “moving,” 301 Or at 277, and in Kock the court expressly declined to extend the automobile exception to vehicles that are “capable of mobility,” 302 Or at 32-33, the court in Meharry II appeared to use the term “mobile” to mean capable of movement, concluding that the defendant’s parked van “remained mobile,” 342 Or at 180 .

2021The court noted that, although in Kock this court had “in no uncertain terms rejected the theory that the exception extended to ‘stationary but oper- ational vehicle[s],’ ” the courts had since “ ‘refined the auto- mobile exception analysis,’ ” and “at present, a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33 ; then quoting State v. Coleman, 167 Or App 86, 92 , 2 P3d 399 (2000); and then citing Meharry II, 342 Or at 181 ).7 7 When doing so, the Court of Appeals mentioned the lack of stability in the case

2005In Burr, we observed that “[t]he rationale underlying the automobile exception is to prevent evidence of criminal activity from being quickly moved out of the locality in which the warrant must be sought.” 136 Or App at 149 .

2002See also State v. Giffen, 98 Or.App. 332, 334-35 , 778 P.2d 1001 (1989) (where police arrested the defendant in her home and seized her car keys, subsequent warrantless search of the defendant's car, which was parked 100 feet from her residence, did not fit within the automobile exception). [6] Some would say "distortion." See State v. Burr, 136 Or.App. 140, 153 , 901 P.2d 873 , rev. den. 322 Or. 360 , 907 P.2d 247 (1995) (Armstrong, J., dissenting) (asserting that Cromwell is irreconcilable with Kock and, thus, "should be overruled"). [7] We also noted that, at least in that regard, the vehic

2015The Kock court identified California v. Carney, 471 US 386 , 105 S Ct 2066 , 85 L Ed 2d 406 (1985), as a case in which the United States Supreme Court had extended “the automobile exception to a stationary but operational vehicle in a public parking lot as being as readily mobile as one just stopped on a highway.” Kock, 302 Or at 29 .

2015The Kock court identified California v. Carney, 471 US 386 , 105 S Ct 2066 , 85 L Ed 2d 406 (1985), as a case in which the United States Supreme Court had extended “the automobile exception to a stationary but operational vehicle in a public parking lot as being as readily mobile as one just stopped on a highway.” Kock, 302 Or at 29 .

2017See State v. Smalley, 233 Or App 263 , 266 n 1, 225 P3d 844 , rev den, 348 Or 415 (2010) (“Because the automobile exception derives from Oregon Supreme Court precedent, we lack the authority to narrow or overrule it.”).

2017See State v. Smalley, 233 Or App 263 , 266 n 1, 225 P3d 844 , rev den, 348 Or 415 (2010) (“Because the automobile exception derives from Oregon Supreme Court precedent, we lack the authority to narrow or overrule it.”).

2017See State v. Smalley, 233 Or App 263 , 266 n 1, 225 P3d 844 , rev den, 348 Or 415 (2010) (“Because the automobile exception derives from Oregon Supreme Court precedent, we lack the authority to narrow or overrule it.”).

2013Further, the court concluded that Sickler was justified in searching defendant’s backpack under the automobile exception to the warrant requirement, as articulated in State v. Smalley, 233 Or App 263 , 225 P3d 844 , rev den, 348 Or 415 (2010).

2017The court’s statement that a vehicle must have been mobile “when first encountered in connection with a crime” was by way of explanation that, under such circumstances, the automobile exception does not apply unless officers “see the car being driven when they first encounter it in connection with a crime.” Andersen, 269 Or App at 714-15 .

2017Moreover, defendant also points to our decision in State v. Andersen, 269 Or App 705 , 346 P3d 1224 (2015), rev’d, 361 Or 187 , 390 P3d 992 (2017), in which, in an en banc opinion, we took a narrow view of the automobile exception.

2021See State v. Machuca, 347 Or 644, 657 , 227 P3d 729 (2010) (explaining that, under Article I, section 9, the exigency arising from the dissipation of alcohol ordinarily will permit a warrantless blood draw while recognizing that the particular facts in an individual case may show otherwise); cf. Missouri v. McNeely, 569 US 141 , [163-65,] 133 S Ct 1552 , 185 L Ed 2d 696 (2013) (rejecting the state’s argument that the exigency resulting from the dissipation of alcohol will be present in every case).” Id.

2021See State v. Machuca, 347 Or 644, 657 , 227 P3d 729 (2010) (explaining that, under Article I, section 9, the exigency arising from the dissipation of alcohol ordinarily will permit a warrantless blood draw while recognizing that the particular facts in an individual case may show otherwise); cf. Missouri v. McNeely, 569 US 141 , [163-65,] 133 S Ct 1552 , 185 L Ed 2d 696 (2013) (rejecting the state’s argument that the exigency resulting from the dissipation of alcohol will be present in every case).” Id.

2006See, e.g., Owens, 302 Or at 206 ; [State v.] English, 164 Or App [580,] 583[, 994 P2d 165 (1999), rev den, 331 Or 244 (2000)]; or (2) the opening is supported by probable cause and some exception to the warrant requirement, e.g., officer safety or the automobile exception.

2001See, e.g., Owens, 302 Or at 206 ; English, 164 Or App at 583 . 5 Or (2) the opening is supported by probable cause and some exception to the warrant requirement, e.g., officer safety or the automobile exception. *52 Second, Herbert and McCrory did not establish that probable cause alone is sufficient to justify a warrantless search of a closed container.

2026An officer merely articulated a con- cern that, if released, defendant “may come back and * * * take the vehicle.” (Emphasis added.) Although it was “very likely” that the jail would not detain defendant, the state did not demonstrate that defendant posed an imminent threat 3 In McCarthy, the Supreme Court eliminated the automobile exception to the warrant requirement of Article I, section 9, created in State v. Brown, 301 Or 268, 278 , 721 P2d 1357 (1986). 369 Or at 132 .

2026The automobile exception had set out a per se “exigency” exception that permitted warrantless searches of vehicles so long as “(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.” Id. at 150 . 264 State v. Gilliland to the evidence inside the Pontiac.4 See State v. Sanders, 233 Or App 373, 378 , 226 P3d 82 (2010), rev den, 350 Or 571 (2011) (“If the purpose of the warrantless search is to pre- vent destruction of evidence * * * , the state must show that destruction * * * was immi

2008Because the stop of [the] vehicle had not been converted to an impoundment, the mobility requirement of the automobile exception was satisfied.” 178 Or App at 601 (emphasis in original).

2002Because the stop of [the car] had not been converted to an impoundment, the mobility requirement of the automobile exception was satisfied.” Id. (emphasis omitted).

2011Kurokawa-Lasciak, 237 Or App at 499 . 6 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.” 7 On the same day that it decided Brown , the court also decided State v. Bennett, 301 Or 299 , 721 P2d 1375 (1986), in which it held that the automobile exception articulated in Brown permitted office

2011Kurokawa-Lasciak, 237 Or App at 499 . 6 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.” 7 On the same day that it decided Brown , the court also decided State v. Bennett, 301 Or 299 , 721 P2d 1375 (1986), in which it held that the automobile exception articulated in Brown permitted office

2000In the years following Brown and Kock , this court further refined the automobile exception analysis in State v. Cromwell, 109 Or App 654 , 820 P2d 888 (1991), State v. Warner, 117 Or App 420 , 844 P2d 272 (1992), and State v. Burr, 136 Or App 140 , 901 P2d 873 , rev den 322 Or 360 (1995).

2000In the years following Brown and Kock , this court further refined the automobile exception analysis in State v. Cromwell, 109 Or App 654 , 820 P2d 888 (1991), State v. Warner, 117 Or App 420 , 844 P2d 272 (1992), and State v. Burr, 136 Or App 140 , 901 P2d 873 , rev den 322 Or 360 (1995).

2017See State v. Watson, 353 Or 768, 770-71 , 785 n 19, 305 P3d 94 (2013) (although deciding the case on grounds not raised by defendant here, the court noted that the automobile exception allowed the warrantless search of a vehicle based on probable cause that the vehicle contained marijuana despite the officer having determined not to issue a citation for the traffic violation for which he stopped the vehicle).

2017See State v. Watson, 353 Or 768, 770-71 , 785 n 19, 305 P3d 94 (2013) (although deciding the case on grounds not raised by defendant here, the court noted that the automobile exception allowed the warrantless search of a vehicle based on probable cause that the vehicle contained marijuana despite the officer having determined not to issue a citation for the traffic violation for which he stopped the vehicle).

2025That court explained, in part: “Nevertheless, as the automobile exception is currently crafted in Oregon, pursuant to [State v.] Brown, [ 301 Or 268 , 721 P2d 1357 (1986), State v.] Andersen, [ 361 Or 187 , 390 P3d 992 (2017), and State v.] Bliss, [ 363 Or 426 , 423 P3d 53 (2018),] the state is only required to show * * * that the auto- mobile was mobile at the time it was stopped by the police * * * and that probable cause existed for the search of the vehicle.* * * While McCarthy is being reviewed, the above legal landscape continues to exist.

2025That court explained, in part: “Nevertheless, as the automobile exception is currently crafted in Oregon, pursuant to [State v.] Brown, [ 301 Or 268 , 721 P2d 1357 (1986), State v.] Andersen, [ 361 Or 187 , 390 P3d 992 (2017), and State v.] Bliss, [ 363 Or 426 , 423 P3d 53 (2018),] the state is only required to show * * * that the auto- mobile was mobile at the time it was stopped by the police * * * and that probable cause existed for the search of the vehicle.* * * While McCarthy is being reviewed, the above legal landscape continues to exist.

2021The court noted that, although in Kock this court had “in no uncertain terms rejected the theory that the exception extended to ‘stationary but oper- ational vehicle[s],’ ” the courts had since “ ‘refined the auto- mobile exception analysis,’ ” and “at present, a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33 ; then quoting State v. Coleman, 167 Or App 86, 92 , 2 P3d 399 (2000); and then citing Meharry II, 342 Or at 181 ).7 7 When doing so, the Court of Appeals mentioned the lack of stability in the case

2021The court noted that, although in Kock this court had “in no uncertain terms rejected the theory that the exception extended to ‘stationary but oper- ational vehicle[s],’ ” the courts had since “ ‘refined the auto- mobile exception analysis,’ ” and “at present, a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33 ; then quoting State v. Coleman, 167 Or App 86, 92 , 2 P3d 399 (2000); and then citing Meharry II, 342 Or at 181 ).7 7 When doing so, the Court of Appeals mentioned the lack of stability in the case

2021The court noted that, although in Kock this court had “in no uncertain terms rejected the theory that the exception extended to ‘stationary but oper- ational vehicle[s],’ ” the courts had since “ ‘refined the auto- mobile exception analysis,’ ” and “at present, a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33 ; then quoting State v. Coleman, 167 Or App 86, 92 , 2 P3d 399 (2000); and then citing Meharry II, 342 Or at 181 ).7 7 When doing so, the Court of Appeals mentioned the lack of stability in the case

2021The court noted that, although in Kock this court had “in no uncertain terms rejected the theory that the exception extended to ‘stationary but oper- ational vehicle[s],’ ” the courts had since “ ‘refined the auto- mobile exception analysis,’ ” and “at present, a vehicle is ‘mobile’ for purposes of the automobile exception as long as it is operable.” Id. at 497-98 (first quoting Kock, 302 Or at 33 ; then quoting State v. Coleman, 167 Or App 86, 92 , 2 P3d 399 (2000); and then citing Meharry II, 342 Or at 181 ).7 7 When doing so, the Court of Appeals mentioned the lack of stability in the case

2021(Citing Brown, 301 Or at 274 .) The trial court further explained that “the mobility of the vehicle and the existence of proba- ble cause to believe defendant has committed a crime must exist at the same time for the exception to apply.” (Citing State v. Kurokawa-Lasciak, 351 Or 179 , 263 P3d 336 (2011) (Kurokawa-Lasciak II); State v. Pirtle, 255 Or App 195 , 296 P3d 625 (2013); and State v. Groom, 249 Or App 118 , 274 P3d 876 (2012).) Applying those rules, the trial court held that the automobile exception did not apply because the truck was not mobile and was unoccupied at the time the offic

2021(Citing Brown, 301 Or at 274 .) The trial court further explained that “the mobility of the vehicle and the existence of proba- ble cause to believe defendant has committed a crime must exist at the same time for the exception to apply.” (Citing State v. Kurokawa-Lasciak, 351 Or 179 , 263 P3d 336 (2011) (Kurokawa-Lasciak II); State v. Pirtle, 255 Or App 195 , 296 P3d 625 (2013); and State v. Groom, 249 Or App 118 , 274 P3d 876 (2012).) Applying those rules, the trial court held that the automobile exception did not apply because the truck was not mobile and was unoccupied at the time the offic

2021Earlier, in State v. Snow, 179 Or App 222, 226-27 , 39 P3d 909 (2002), aff’d, 337 Or 219 , 94 P3d 872 (2004), the court had similarly stated that “the exception’s development [had] not necessarily always been internally consistent.” In Snow, the court recapped the following automobile exception cases, which illustrate that inconsistency.

2021Earlier, in State v. Snow, 179 Or App 222, 226-27 , 39 P3d 909 (2002), aff’d, 337 Or 219 , 94 P3d 872 (2004), the court had similarly stated that “the exception’s development [had] not necessarily always been internally consistent.” In Snow, the court recapped the following automobile exception cases, which illustrate that inconsistency.

2012Under the automobile exception, first announced by the Supreme Court in State v. Brown, 301 Or 268 , 721 P2d 1357 (1986), “[a]n officer may lawfully search a stopped vehicle and its contents without a warrant or consent if the vehicle was mobile when it was stopped and if the officer had probable cause to believe that seizable items would be found.” State v. Foster, 350 Or 161, 169 , 252 P3d 292 (2011) (citing Brown, 301 Or at 274-76 ).

2012Under the automobile exception, first announced by the Supreme Court in State v. Brown, 301 Or 268 , 721 P2d 1357 (1986), “[a]n officer may lawfully search a stopped vehicle and its contents without a warrant or consent if the vehicle was mobile when it was stopped and if the officer had probable cause to believe that seizable items would be found.” State v. Foster, 350 Or 161, 169 , 252 P3d 292 (2011) (citing Brown, 301 Or at 274-76 ).