Did the Oregon Supreme Court Finally Drive the Automobile Exception Off the Legal Cliff--And Not Even Know It?
by: Jethompson • January 14, 2013 • no comments
This week, the Oregon Supreme Court, in State v. Hemenway, __ Or __ (Jan 10, 2013), refined the "exploitation" analysis that we all have become accustomed to since 2005 from State v. Hall, 339 Or 7 (2005). In doing so, the court held:
- the test for whether a consent search conducted following an illegal stop comports with Article I, section 9, cannot be :reduced to a simple formula. On the contrary, like all reasonableness determinations, whether a particular search or seizure is unreasonable necessarily depends on the facts of each case.
State v. Hemenway, __ Or at slip op 22. That directly contradicts all of the underlying foundational requirements for a recognized "automobile exception" as articulated in State v. Brown, 301 Or 268 (1986).
In Hemenway, the court, in considering a "consent" exception to the warrant requirement of Article I, section 9, pointed out that "all reasonableness determinations . . . depends on the facts of each case"; thus rejecting the per se rule adopted by the Hall court in 2005. Because "all reasonableness determinations" depend on the facts of each case, then, likewise, a per se rule that allows a search of every stopped automobile that was mobile when first encountered in connection with a crime by law enforcement should similarly not be recognized under Article I, section 9.
In 1986, in State v. Brown, 301 Or 268 (1986), the Oregon Supreme Court first articulated the per se "automobile exception" to the requirement under Article I, section 9, that governmental searches must be conducted after judicial authorization.
The court wrongly decided Brown, and unfortunately, wrongly announced an "automobile exception" pursuant to Article I, section 9. The court has expressed a willingness to "reconsider a previous ruling under the Oregon Constitution whenever a party presents to [it] a principled argument suggesting that, in an earlier decision, th[e] court wrongly considered or wrongly decided the issue in question." State v. Moore, 334 Or 328, 337 (2002) (quoting Stranahan v. Fred Meyer, Inc., 331 Or 38, 54 (2000)). The per se automobile exception is ripe for reconsideration.
To allow a search of every "stopped" automobile in Oregon "understate[s] the constitutional policy of requiring a judicial examination of the particular facts to determine whether a particular search is reasonable" under Article I, section 9, of the Oregon Constitution. State v. Meharry, 342 Or 173, 181 (2006).
Because Brown was decided in 1986, the Oregon Supreme Court has never applied its analytic approach more recently announced in Priest v. Pearce, 314 Or 411, 415-16 (1992), to the interpretation of Article I, section 9 of the Oregon Constitution, and its judicially created "automobile exception." If the court did so, then Brown, and the "automobile exception," would not survive constitutional scrutiny. That is so because the judicially created "per se" policy that Brown announced for "automobiles," viz., that law enforcement need certainty in decision making, and can search all "stopped" automobiles in Oregon, would fail the "three levels" on which Article I, section 9 "must be addressed" under Priest. Priest requires that courts, when interpreting original texts of the Oregon Constitution, look to the wording of the article, the case law surrounding it, and the historical circumstances surrounding its adoption. Priest, at 416. Specifically, Article I, section 9 does not recognize "per se" rules. It requires that all searches be "reasonable," and "reasonableness" can only be determined by considering the individual circumstances in individual cases, regardless of the difficulties it creates for law enforcement. See Brown, at 279-98 (Linde, J., dissenting; Lent, J., joining in dissent).
The court will, at some point, have to interpret Article I, section 9, of the Oregon Constitution with the interpretive method required under Priest. When it does so, the court should hold that a per se rule for the search of mobile vehicles violates Article I, section 9.
Hemenway certainly has its faults. However, the court may have just driven the auto exception off the cliff forever. The court, ever since it recognized the automobile exception in 1986, has been hinting around that it may not survive the test of time. It's now time for defense attorneys to argue against the per se auto exception in every case in Oregon where the prosecutor relies on it. The facts and circumstances of every search and seizure must be analyzed on their own merits, just as the Hemenway court recognized.
