Oregon Supreme Court Announces Abandonment of Per Se Exigency Rule in Automobile Exception and Holds Warrantless Seizure or Search Must Be Based on Actual Exigent Circumstances
by Jacob Barrett
The Supreme Court of Oregon affirmed a circuit court order suppressing evidence discovered in a warrantless search conducted pursuant to the automobile exception. In doing so, the Court overruled the per se exigency rule of the automobile exception set forth in State v. Brown, 721 P.2d 1357 (Ore. 1986), and announced that in order to justify a warrantless seizure or search of a vehicle based on exigent circumstances, the State must prove that, at the time of the seizure or the search, exigent circumstances actually existed.
In November 2016, Salem police officers stopped a truck for a traffic violation while defendant Charles Steven McCarthy was driving. The stop occurred on a weekday afternoon, approximately one mile from the Marion County Circuit Court building in downtown Salem. McCarthy pulled into a public parking lot and legally parked the truck. During the stop, the officers arrested McCarthy and developed probable cause to search the truck. Four officers participated in the stop, and they used a computer and mobile phones during the stop. But the officers did not attempt to obtain a warrant—either in person or by phone or computer—before they searched the truck. Instead, they relied on the automobile exception to the warrant requirement. Based on evidence the officers found in the truck, the State charged McCarthy with possession and delivery of heroin.
McCarthy moved to suppress the evidence discovered during the search. The circuit court granted his motion on the ground that the automobile exception did not apply to the search. The circuit court concluded that the State had failed to prove that exigent circumstances actually existed at the time of the search and, accordingly, ruled that the officers were not justified in proceeding without a warrant.
The State appealed the circuit court’s ruling, and the Court of Appeals (“COA”) reversed the circuit court. The COA stated that under Brown, exigent circumstances are presumed to exist when law enforcement officers have probable cause to search a vehicle that is mobile at the time of the traffic stop—regardless of whether there is an actual exigency at that point—and thus, the circuit court should have denied defendant’s motion, the COA ruled. Upon appeal, the Supreme Court reversed the decision of the COA and affirmed the ruling of the circuit court.
The Court began its analysis by reviewing Article I, section 9, of the Oregon Constitution, which prohibits unreasonable government seizures and searches. Generally, in order for a seizure or search of property to be reasonable under Article I, section 9, it must be conducted pursuant to a warrant issued by a magistrate who has determined that there is probable cause to believe that the property is, or contains, contraband or evidence of a crime. State v. Bliss, 423 P.3d 53 (Ore. 2018).
The Court then discussed the automobile exception that it had established in Brown, explaining that the exception is a “subset” of the general “exigent circumstances exception” to the warrant requirement, State v. Meharry, 149 P.3d 1155 (Ore. 2006), that applies when law enforcement officers have probable cause to conduct a seizure or search and circumstances require that they act swiftly to prevent, among other things, loss of evidence. State v. Stevens, 806 P.2d 92 (Ore. 1991). The idea underlying the automobile exception is that the mobility of a vehicle gives rise to a risk that the vehicle will be moved out of the reach of law enforcement in the time that it would take to obtain a warrant. Brown.
The Court explained that because the Brown Court wanted to provide clear guidance for law enforcement, it made the automobile exception a bright-line, “per se exigency rule.” As established in Brown, the automobile exception allows an officer to conduct a warrantless search of a vehicle if “(l) the car was mobile at the time it was stopped by the police; and (2) the police had probable cause to believe that the car contained contraband or crime evidence.” Brown. Thus, although the automobile exception was premised on the risk that a vehicle could be moved in the time it takes to get a warrant, it applies even when there is no such risk, the Court stated.
McCarthy asked the Court to overrule Brown’s per se exigency exception, and the State asked the Court to adhere to it. To resolve the parties’ dispute, the Court thoroughly reviewed the Brown decision, subsequent cases that applied the automobile exception, and factual and legislative changes that occurred after Brown in order to determine whether the Court should observe the doctrine of stare decisis and adhere to precedent.
To begin, the Court concluded that the Brown decision itself supported reconsideration of its per se exigency exception for three reasons. First, the Brown Court did not follow the Supreme Court’s ordinary method of state constitutional analysis, viz., it relied on federal cases but did not explain why doing so was appropriate given the differences between the state and federal constitutional protections against unreasonable seizures and searches. Second, the Brown Court’s reasoning was unclear. Third, the Brown Court did not intend its per se exigency exception to be permanent. The exception was based on the length of time that it generally took to obtain a warrant, which the Brown Court anticipated would be reduced as a result of technological changes in the “near future.”
The Court then reviewed several cases decided after Brown and concluded that those cases show that Brown’s per se rule has not created the clarity that the Brown Court hoped it would. Appellate courts have reached conflicting conclusions about the basic elements of the exception, including what it means for a vehicle to be “mobile” and whether officers must have probable cause when the vehicle is mobile or whether they can develop it when the vehicle is no longer mobile (see opinion for collection of cases and discussion). In addition, the Court explained that Brown’s per se rule is inconsistent with recent cases in which the Oregon Supreme Court has held that the scope of a warrant exception must be limited by its purposes, see State v. Fulmer, 460 P.3d 486 (Ore. 2020), and it is inconsistent with cases that have identified a potential problem with per se exceptions to the warrant requirement—namely, that such rules can be overbroad, especially considering recent technological changes that have allowed for expedited warrant processes. See Riley v. California, 573 U.S. 373 (2014).
Finally, the Court considered technological and legislative changes that have occurred in the 35 years since Brown. The Court observed that, with advances in communication technologies, it is now possible for officers in the field to apply for and receive warrants in a matter of minutes. See State v. Flannigan, 978 P.2d 127 (Ariz. Ct. App. 1998). In addition, since Brown, the Legislature has regularly updated the statutory warrant process to allow for use of technological advances that expedite the warrant process, the Court stated. Therefore, the Court concluded, it can no longer be assumed that, as a general matter, it is impracticable for officers to obtain warrants to seize and search vehicles that they stop.
Based on Brown itself and developments in the law and technology since Brown, the Court concluded that it is appropriate to reconsider and overrule Brown’s per se exigency exception. The Court’s decision means that there is no longer a special exigency exception for seizures and searches of vehicles. Instead, vehicles are subject to the same general exigency exception that applies to other types of property. Thus, 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,” the Court declared.
The Court then applied its newly announced rule to the present case and reversed the decision of the COA, which was based on Brown’s per se exigency exception. Because the State failed to prove that an actual exigency existed at the time of the warrantless search of the truck, the automobile exception doesn’t apply to the search in question, and any evidence obtained as a result of the unlawful search must be suppressed, the Court concluded.
Accordingly, the Court affirmed the circuit court’s order suppressing the evidence obtained as a result of the warrantless search. See: State v. McCarthy, 369 Or. 129 (2021).
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Related legal cases
State v. McCarthy
|Cite||369 Or. 129 (2021)|
|Level||State Supreme Court|
State v. Fulmer
|Cite||460 P.3d 486 (Ore. 2020)|
|Level||State Supreme Court|
Riley v. California
|Cite||573 U.S. ___ (U.S. Supreme Court 2014)|
573 U.S. ___; 134 S.Ct. 2473; 188 L.Ed 2d 430; 2014 U.S. LEXIS 4497
DAVID LEON RILEY, PETITIONER v. CALIFORNIA;
UNITED STATES, PETITIONER v. BRIMA WURIE
Nos. 13-132 and 13-212.
April 29, 2014, Argued 1
June 25, 2014, Decided
1 Together with No. 13-212, United States v. Wurie, on certiorari to the United States Court of Appeals for the First Circuit.
This preliminary Lexis version is unedited and subject to revision.The LEXIS pagination of this document is subject to change pending release of the final published version.
PRIOR HISTORY: [*1]
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
DISPOSITION: No. 13-132, reversed and remanded; No. 13-212, 728 F. 3d 1, affirmed.
In No. 13-132, petitioner Riley was stopped for a traffic violation, which eventually led to his arrest on weapons charges. An officer searching Riley incident to the arrest seized a cell phone from Riley’s pants pocket. The officer accessed information on the phone and noticed the repeated use of a term associated with a street gang. At the police station two hours later, a detective specializing in gangs further examined the phone’s digital contents. Based in part on photographs and videos that the detective found, the State charged Riley in connection with a shooting that had occurred a few weeks earlier and sought an enhanced sentence based on Riley’s gang membership. Riley moved to suppress all evidence that the police had obtained from his cell phone. The trial court denied the motion, and Riley was convicted. The California Court of Appeal affirmed.
In No. 13-212, respondent Wurie was arrested after police observed him participate in an apparent drug sale. At the police station, the officers seized a cell phone [*2] from Wurie’s person and noticed that the phone was receiving multiple calls from a source identified as “my house” on its external screen. The officers opened the phone, accessed its call log, determined the number associated with the “my house” label, and traced that number to what they suspected was Wurie’s apartment. They secured a search warrant and found drugs, a firearm and ammunition, and cash in the ensuing search. Wurie was then charged with drug and firearm offenses. He moved to suppress the evidence obtained from the search of the apartment. The District Court denied the motion, and Wurie was convicted. The First Circuit reversed the denial of the motion to suppress and vacated the relevant convictions.
Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. Pp. 5-28.
(a) A warrantless search is reasonable only if it falls within a specific exception to the Fourth Amendment’s warrant requirement. See Kentucky v. King, 563 U. S. ___, ___. The well-established exception at issue here applies when a warrantless search is conducted incident to a lawful arrest.
Three related precedents govern [*3] the extent to which officers may search property found on or near an arrestee. Chimel v. California, 395 U. S. 752, requires that a search incident to arrest be limited to the area within the arrestee’s immediate control, where it is justified by the interests in officer safety and in preventing evidence destruction. In United States v. Robinson, 414 U. S. 218, the Court applied the Chimel analysis to a search of a cigarette pack found on the arrestee’s person. It held that the risks identified in Chimel are present in all custodial arrests, 414 U. S., at 235, even when there is no specific concern about the loss of evidence or the threat to officers in a particular case, id., at 236. The trilogy concludes with Arizona v. Gant, 556 U. S. 332, which permits searches of a car where the arrestee is unsecured and within reaching distance of the passenger compartment, or where it is reasonable to believe that evidence of the crime of arrest might be found in the vehicle, id., at 343. Pp. 5-8.
(b) The Court declines to extend Robinson’s categorical rule to searches of data stored on cell phones. Absent more precise guidance from the founding era, the Court generally determines whether to [*4] exempt a given type of search from the warrant requirement “by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U. S. 295, 300. That balance of interests supported the search incident to arrest exception in Robinson. But a search of digital information on a cell phone does not further the government interests identified in Chimel, and implicates substantially greater individual privacy interests than a brief physical search. Pp. 8-22.
(1) The digital data stored on cell phones does not present either Chimel risk. Pp. 10-15.
(i) Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Officers may examine the phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one. To the extent that a search of cell phone data might warn officers of an impending danger, e.g., that the arrestee’s confederates are headed to the scene, such a concern is better addressed through consideration [*5] of case-specific exceptions to the warrant requirement, such as exigent circumstances. See, e.g., Warden, Md. Penitentiary v. Hayden, 387 U. S. 294, 298-299. Pp. 10-12.
(ii) The United States and California raise concerns about the destruction of evidence, arguing that, even if the cell phone is physically secure, information on the cell phone remains vulnerable to remote wiping and data encryption. As an initial matter, those broad concerns are distinct from Chimel’s focus on a defendant who responds to arrest by trying to conceal or destroy evidence within his reach. The briefing also gives little indication that either problem is prevalent or that the opportunity to perform a search incident to arrest would be an effective solution. And, at least as to remote wiping, law enforcement currently has some technologies of its own for combatting the loss of evidence. Finally, law enforcement’s remaining concerns in a particular case might be addressed by responding in a targeted manner to urgent threats of remote wiping, see Missouri v. McNeely, 569 U. S. ___, ___, or by taking action to disable a phone’s locking mechanism in order to secure the scene, see Illinois v. McArthur, 531 U. S. 326, 331-333. [*6] Pp. 12-15.
(2) A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved. Pp. 15-22.
(i) Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers [*7] might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives. Pp. 17-21.
(ii) The scope of the privacy interests at stake is further complicated by the fact that the data viewed on many modern cell phones may in fact be stored on a remote server. Thus, a search may extend well beyond papers and effects in the physical proximity of an arrestee, a concern that the United States recognizes but cannot definitively foreclose. Pp. 21-22.
(c) Fallback options offered by the United States and California are flawed and contravene this Court’s general preference to provide clear guidance to law enforcement through categorical rules. See Michigan v. Summers, 452 U. S. 692, 705, n. 19. One possible rule is to import the Gant standard from the vehicle context and allow a warrantless search of an arrestee’s cell phone whenever it is reasonable to believe that the phone contains evidence of the crime of arrest. That proposal is not appropriate in this context, and would prove no practical limit at all when it comes to cell phone searches. [*8] Another possible rule is to restrict the scope of a cell phone search to information relevant to the crime, the arrestee’s identity, or officer safety. That proposal would again impose few meaningful constraints on officers. Finally, California suggests an analogue rule, under which officers could search cell phone data if they could have obtained the same information from a pre-digital counterpart. That proposal would allow law enforcement to search a broad range of items contained on a phone even though people would be unlikely to carry such a variety of information in physical form, and would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Pp. 22-25.
(d) It is true that this decision will have some impact on the ability of law enforcement to combat crime. But the Court’s holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. The warrant requirement is an important component of the Court’s Fourth Amendment jurisprudence, and warrants may be obtained with increasing efficiency. In addition, although the search incident to arrest exception [*9] does not apply to cell phones, the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases. Pp. 25-27.
No. 13-132, reversed and remanded; No. 13-212, 728 F. 3d 1, affirmed.
JUDGES: ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and concurring in the judgment.
CHIEF JUSTICE ROBERTS delivered the opinion of the Court.
These two cases raise a common question: whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.
In the first case, petitioner David Riley was stopped by a police officer for driving with expired registration tags. In the course of the stop, the officer also learned that Riley’s license had been suspended. The officer impounded Riley’s car, pursuant to department policy, and another officer conducted an inventory search of the car. Riley was arrested for possession of concealed and loaded firearms when that search turned up two handguns under the car’s hood. See Cal. Penal Code Ann. §§12025(a)(1), [*10] 12031(a)(1) (West 2009).
An officer searched Riley incident to the arrest and found items associated with the “Bloods” street gang. He also seized a cell phone from Riley’s pants pocket. According to Riley’s uncontradicted assertion, the phone was a “smart phone,” a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity. The officer accessed information on the phone and noticed that some words (presumably in text messages or a contacts list) were preceded by the letters “CK”—a label that, he believed, stood for “Crip Killers,” a slang term for members of the Bloods gang.
At the police station about two hours after the arrest, a detective specializing in gangs further examined the contents of the phone. The detective testified that he “went through” Riley’s phone “looking for evidence, because . . . Gang members will often video themselves with guns or take pictures of themselves with the guns.” App. In No. 13-132, p. 20. Although there was “a lot of stuff” on the phone, particular files that “caught [the detective’s] eye” included videos of young men sparring while someone yelled encouragement using the [*11] moniker “Blood.” Id., at 11-13. The police also found photographs of Riley standing in front of a car they suspected had been involved in a shooting a few weeks earlier.
Riley was ultimately charged, in connection with that earlier shooting, with firing at an occupied vehicle, assault with a semiautomatic firearm, and attempted murder. The State alleged that Riley had committed those crimes for the benefit of a criminal street gang, an aggravating factor that carries an enhanced sentence. Compare Cal. Penal Code Ann. §246 (2008) with §186.22(b)(4)(B) (2014). Prior to trial, Riley moved to suppress all evidence that the police had obtained from his cell phone. He contended that the searches of his phone violated the Fourth Amendment, because they had been performed without a warrant and were not otherwise justified by exigent circumstances. The trial court rejected that argument. App. In No. 13-132, at 24, 26. At Riley’s trial, police officers testified about the photographs and videos found on the phone, and some of the photographs were admitted into evidence. Riley was convicted on all three counts and received an enhanced sentence of 15 years to life in prison.
The California Court [*12] of Appeal affirmed. No. D059840 (Cal. App., Feb. 8, 2013), App. To Pet. For Cert. in No. 13-132, pp. 1a-23a. The court relied on the California Supreme Court’s decision in People v. Diaz, 51 Cal. 4th 84, 244 P. 3d 501 (2011), which held that the Fourth Amendment permits a warrantless search of cell phone data incident to an arrest, so long as the cell phone was immediately associated with the arrestee’s person. See id., at 93, 244 P. 3d, at 505-506.
The California Supreme Court denied Riley’s petition for review, App. To Pet. For Cert. in No. 13-132, at 24a, and we granted certiorari, 571 U. S. ___ (2014).
In the second case, a police officer performing routine surveillance observed respondent Brima Wurie make an apparent drug sale from a car. Officers subsequently arrested Wurie and took him to the police station. At the station, the officers seized two cell phones from Wurie’s person. The one at issue here was a “flip phone,” a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone. Five to ten minutes after arriving at the station, the officers noticed that the phone was repeatedly receiving calls from a source identified [*13] as “my house” on the phone’s external screen. A few minutes later, they opened the phone and saw a photograph of a woman and a baby set as the phone’s wallpaper. They pressed one button on the phone to access its call log, then another button to determine the phone number associated with the “my house” label. They next used an online phone directory to trace that phone number to an apartment building.
When the officers went to the building, they saw Wurie’s name on a mailbox and observed through a window a woman who resembled the woman in the photograph on Wurie’s phone. They secured the apartment while obtaining a search warrant and, upon later executing the warrant, found and seized 215 grams of crack cocaine, marijuana, drug paraphernalia, a firearm and ammunition, and cash.
Wurie was charged with distributing crack cocaine, possessing crack cocaine with intent to distribut
State v. Flannigan
|Cite||978 P.2d 127 (Ariz. Ct. App. 1998)|
|Level||State Court of Appeals|