OR: Automobile exception still applies; availability of telephonic warrants doesn’t obviate it

Oregon passes on an invitation to impose a warrant requirement on all vehicle searches just because telephonic warrants should make them required in every case. The automobile exception applies, and the state did not have to show the realistic probability someone might come and move the vehicle. State v. McCarthy, 302 Ore. App. 82, 2020 Ore. App. LEXIS 154 (Jan. 29, 2020):

Nevertheless, as the automobile exception currently is crafted in Oregon pursuant to Brown, Andersen, and Bliss, the state is only required to show “(1) that the automobile [was] mobile at the time it [was] stopped by police or other governmental authority, and (2) that probable cause exist[ed] for the search of the vehicle.” The state in this case was not required to demonstrate, in addition to the above test, that someone was likely to move this specific vehicle—that is, that the movement exigency underlying the automobile exception actually exists rather than existed in theory. Similarly, as currently constructed, Oregon’s automobile exception does not require the state to establish the unavailability of a telephonic warrant. See Brown, 301 Ore. at 274. The trial court erred when it granted, in part, defendant’s motion to suppress evidence collected incident to a warrantless search of a truck in accordance with the automobile exception.

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