OR: Exigency for automobile exception has to exist at the time of search; telephonic warrant preferred

Oregon Supreme Court holds that the exigency for an automobile exception search under the state constitution must actually exist at the time of the search. The per se rule from 1986’s Brown case is overruled. Technological changes and statute since then enable oral warrants by telephone or written by fax machine or email. State v. McCarthy, 369 Or. 129, 2021 Ore. LEXIS 1025 (Dec. 30, 2021):

In sum, technological and legislative changes since Brown have made it faster and easier to obtain warrants. Now, it is possible for warrant applications to be readily prepared and reviewed from separate locations and, if probable cause exists, for warrants to be quickly issued. The technological changes that Brown anticipated have occurred. Consequently, we can no longer assume, as the Brown court did, that, as a general matter, it is impracticable for officers to obtain warrants to seize and search vehicles that they stop.

F. Conclusion Regarding Brown

For all the reasons discussed above, we conclude that it is necessary to overrule Brown’s per se exigency exception. The exception was not well founded or clearly reasoned; it was not intended to be permanent; it has not provided stability or clarity; it is inconsistent with other, more recent cases; given technological changes, it is no longer justified; and maintaining it might well diminish the incentives for jurisdictions to improve warrant processes and for officers to seek warrants when practicable.

Therefore, in order to justify a warrantless seizure or search of a vehicle based on exigent circumstances, the state must prove that exigent circumstances actually existed at the time of the seizure or the search, each of which must be separately analyzed. That is, it must prove that there was a situation requiring swift action “to prevent danger to life or serious damage to property, or to forestall a suspect’s escape or the destruction of evidence.” Stevens, 311 Or at 126.To prove that such an exigency existed, the state must prove that it could not obtain a warrant through reasonable steps, which include utilizing available processes for electronic warrants. Officers “cannot create exigent circumstances by [their] own inaction.” Matsen/Wilson, 287 Or at 587 (internal quotation marks omitted); see also id. (“The police cannot weave together a web of information, then claim exigent circumstances when the suspect arrives and can conveniently be snared.”). Similarly, law enforcement agencies and courts cannot create exigent circumstances by failing to take reasonable steps to develop warrant processes that protect against the “invasion of the rights of a citizen,” Brown, 301 Or at 278 n 6, that results from an unnecessarily cumbersome warrant process.

If an exigency exists, it may justify the seizure of a vehicle. But the seizure itself may eliminate any exigency that would justify proceeding further without a warrant. Once officers have seized a vehicle, their control over it may eliminate the need to search it before a warrant application can be processed.

G. Application

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The trial court concluded that the state had failed to show that there was an exigency. It explained that the “state presented no evidence that anyone would move the automobile from the scene while the police sought judicial authorization for the search.” It also explained that the state’s witness had failed to “adequately explain why the police could not observe the vehicle during the period of time needed to obtain a warrant and seize the vehicle only if there was an attempt to move the vehicle.” And, it explained that the state had failed to prove that it could not have obtained a warrant, commenting that it was “unreasonable under the circumstances in this case that no one even considered the idea of calling a judge from the site of the traffic stop to seek judicial authorization.”

The state presented evidence that it would take the officers four to five hours to obtain a warrant and that the officers did not know how to seek a telephonic warrant. But the trial court rejected the argument that it was impractical for the state to obtain a warrant, noting the ubiquity of cellphones, the statutory process for obtaining telephonic warrants, and the number of judges and judicial officers in the county. The trial court’s factual findings are supported by the record and its legal conclusions are correct. The state failed to establish that exigent circumstances actually existed at the time of the warrantless search. Therefore, the trial court correctly granted defendant’s motion to suppress.

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