State v. Andersen

The automobile exception to the warrant requirement of the Oregon Constitution, Article I, Section 9, requires that the officer executing the search must have witnessed the vehicle in motion in connection with the crime.

Defendant was the subject of a drug investigation wherein the police employed the help of an informant. The informant was to set-up and execute a drug exchange. Defendant said she would be in a silver Jeep. During the operation, the officers saw the described Jeep parked where she said that it would be, but did not see her pull into the parking lot. They performed a warrantless search and found drugs in her Jeep and arrested her. Defendant moved to have the evidence suppressed. The trial court denied her motion and Defendant appealed. The State argued that the search was pursuant to the automobile exception to the warrant requirement of Art. I, Section 9, of the Oregon Constitution. While the Automobile Exception does not require the police to bring the vehicle to a stop, it does require that the vehicle be mobile when the police first encounter it in connection with a crime. Defendant's Jeep was parked in a store parking lot when the police first witnessed it. As a result, the Automobile Exception did not apply. Here, however, the Court points out that other exceptions would likely have applied, but not the Automobile Exception, and the State failed to point out or rely on those other exceptions.

Reversed and remanded.

J. DeVore, dissenting, urged that this was an overreach in the law, and that it should be sufficient that the vehicle be one that had moved recently, had a driver who would promptly drive away, and that the question of whether the police actually witnessed the mobility of the vehicle should not be the actual test.