OR: Car was still “mobile” for automobile exception where somebody else was going to drive it off

Officers finally arrested defendant for violating the “no alcohol” provision of his parole because they could smell it on his breath. He got them to leave the car parked where it was–in the driveway of a friend. Nevertheless, the car was mobile enough for the automobile exception to apply because somebody else wanted access to it, ostensibly to drive off. State v. Wiggins, 245 Ore. App. 119, 260 P.3d 826 (2011), on rehearing State v. Wiggins, 247 Ore. App. 490, 2011 Ore. App. LEXIS 1798 (December 29, 2011) (reaching same result):

Here, there is no dispute that the police had probable cause that defendant’s car contained evidence of a crime—a gun—at the time of the search. The only remaining question, then, is whether defendant’s vehicle was “mobile” at the time the officers first encountered it. Compare State v. Coleman, 167 Ore. App. 86, 94, 2 P3d 399 (2000) (“The inquiry is centered on the circumstances surrounding the moment when the police first notice or focus their attention on an automobile.” (Emphasis added.)), with Meharry, 342 Ore. at 178 (“[A] vehicle is mobile for the purposes of the automobile exception because it was moving when the officer stopped it and nothing demonstrated that the vehicle would not be mobile once the officer relinquished control over it.” (Emphasis added.)). We conclude that defendant’s car was mobile, whether we define the initial point of the encounter as the moment when Brewster first observed defendant’s car in the parking lot of the convenience store or the moment when Brewster subsequently stopped defendant’s moving vehicle. In either case, the car was occupied and operable, and nothing subsequent to the stop rendered the car incapable of mobility.

We reject defendant’s argument that the vehicle was stripped of its mobility because the officers broke contact with it. …

On reconsideration:

Similarly, here, defendant’s car was mobile at the time it was stopped. That exigency persisted at the time of the search despite the intervening break in contact with the vehicle and the lapse of time. See, e.g., Meharry, 342 Ore. at 180 (“[T]he 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.” (Citations and internal quotation marks omitted.)). As we noted in our prior opinion, defendant’s car continued to be the subject of the officers’ ongoing investigation, and “[n]othing occurred between the moment of the initial encounter and the time the officers searched defendant’s car that rendered the vehicle immobile. The car had not been impounded, the car was not functionally disabled, and nothing prevented the car from being driven away once the officers relinquished control over it.” Wiggins, 245 Ore. App. at 127. That conclusion is consistent with Meharry.

We need not go further and decide when a “mobile” vehicle ceases to be mobile by virtue of police delay. The Supreme Court has made clear that the automobile exception has only two requirements: (1) the vehicle must be mobile at the time that it is first encountered by police and (2) probable cause must exist for the search of the vehicle. Kurokawa II, 351 Ore. at 187. Under the facts in this case, those requirements are met. Thus, defendant’s motion to suppress should have been denied.

[Note: First posted 8/20/11, and reposted]