State Con Law Case of the Week: Oregon Stops

Anthony Sanders · January 8, 2022

If you ever take a class in criminal procedure you’ll spend a vast amount of time learning about what the police can and (less often) can’t do in a traffic stop. Sometimes it seems criminal procedure is the law of traffic stops. And the rules governing searches and seizures of automobiles often have little semblance to the more straight-forward protections that govern when the police can search a home (in a relative sense, that is). The Fourth Amendment’s protections against “unreasonable searches and seizures” are often left by the roadside when the police pull a car over.

Perhaps frustrated with this long-noticed weaking of civil liberties, last week the Oregon Supreme Court issued a truly lane-changing decision. In State v. McCarthythe court overturned its own precedent interpreting the Oregon Constitution’s equivalent to the Fourth Amendment and held that law enforcement may not search an automobile without a warrant simply because it is an automobile. This rejects what the U.S. Supreme Court has said on the same issue and provides the citizens of Oregon a much higher level of protection than federal law provides. Further, the ruling is an interesting example of courts taking into account changes in technology and the government’s responsibility to use that technology to respect the “right of the people to be secure.”

Prohibition’s Long Shadow

The U.S. Supreme Court has treated cars differently ever since its first automobile search and seizure case, Carroll v. United States. Issued at the height of prohibition in 1925, the case concerned a stop of two bootleggers transporting whiskey and gin that had been smuggled into Michigan from Canada. Two agents recognized the bootleggers in a car and given their prior dealings thought there’s a good chance the car was carrying liquor. The officers pulled the car over and searched it without permission, finding 68 bottles of perfectly good alcohol hidden behind the seats.

The Court ruled that there was probable cause for the stop simply because the bootleggers were driving the car. It further ruled there was no need to get a warrant before searching the car because it would have been impractical to get one, given the mobile nature of the automobile. In other words, the suspects could drive away while waiting for the warrant to come back.

It’s worth here reviewing the text of the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” Although it doesn’t explicitly tie making a search or a seizure to obtaining a warrant (it just says searches and seizures can’t be “unreasonable” and that if there’s a warrant asked for it must, among other things, rest on probable cause), the courts have long interpreted that as a baseline for a search. However, that baseline is subject to a great number of exceptions.

Carroll added the “automobile exception” to the baseline. Because of its mobile nature, the police may search an automobile if they have probable cause that there’s contraband in the car without first getting a warrant to conduct the search.

Now, careful readers will see that this exception doesn’t actually justify the initial seizure of the automobile. Carroll wasn’t a traffic stop case as we’d think of that today, where the initial stop was based on the violation of a traffic law. It was based on some pretty sketchy inferences about the guys who were driving the car. But plenty of traffic stops are made, of course, based on things like speeding, wrongly using turn signals, brake lights being out, and the many other ways we all, routinely, violate traffic laws. And, of course, the police never get a warrant to, say, pull you over for going 64 in a 55 mph zone. That’s because even though there’s no warrant to justify those seizures they’re based on the police actively witnessing the violation of a law (however minor). As Carroll itself noted, there is an old common law exception to the requirement to secure an arrest warrant before an arrest for “one believed by the officer upon reasonable cause to have been guilty of a felony, and that he may only arrest without a warrant one guilty of misdemeanor if committed in his presence.” And, the rule has been found to comport with the Fourth Amendment, making “reasonable” traffic stops based on a violation of a traffic law in an officer’s presence. Where the action generally is in Fourth Amendment issues isn’t the initial stop (although it’s often contested) but whether the officer can expand that  stop into a search after pulling the automobile over. The expansion of the stop is fraught with potential for abuse, including the seizure of lawful cash and other property, as IJ’s work in civil forfeiture demonstrates.

The automobile exception reached its zenith in 1982 with United States v. Ross, where the Court expanded the rule in Carroll to allow a warrantless search not just of the automobile itself but any containers in the car, however small, if the officers have probable cause to believe the object of the search (usually drugs) can be found there. So the police cannot expand any run-of-the-mill traffic stop into a full-blow search of everything in a car, but they can if they have probable cause that there are drugs hidden in the car, including in compartments, bags, purses, etc. Often that simply means a whiff of marijuana or even a nervous driver. (And if you’re not nervous when the police pull you over I’d love to meet you because I’d get to brag to my kids that I know a unicorn.)

Stopped on the Oregon Trail

Like most states, the Oregon Supreme Court had followed the reasoning of Carroll and Ross in interpreting the Oregon Constitution’s version of the Fourth Amendment, Article I, Section 9. That provision isn’t identical to the Fourth, but it’s pretty close: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” In 1986, in State v Brown, the court took the U.S. Supreme Court’s holdings and stated, in its own words, that the fact that an automobile is mobile is an “exigency” justifying a warrantless search under Article I, Section 9. It drew a bright line and stated that for any automobile that is capable of driving away the police do not need to get a warrant before conducting a search and do not need to demonstrate that it would be impractical to get one.

However, the court left an interesting comment for the future. In 1986 police radios existed, but mobile phones barely did, mobile computers and scanners were mostly in the future, and smartphones, electronic signatures, and mobile video conferences were hardly even imagined. Nevertheless, the court understood that technology could change to make obtaining a warrant at a roadside stop much easier:

In this modern day of electronics and computers, we foresee a time in the near future when the warrant requirement of the state and federal constitutions can be fulfilled virtually without exception. All that would be needed in this state would be a central facility with magistrates on duty and available 24 hours a day. All police in the state could call in by telephone or other electronic device to the central facility where the facts, given under oath, constituting the purported probable cause for search and seizure would be recorded. The magistrates would evaluate those facts and, if deemed sufficient to justify a search and seizure, the magistrate would immediately issue an electronic warrant authorizing the officer on the scene to proceed.

Thus, with better technology one day a roadside search would perhaps cease to be an “exigency.”

It turned out that December 30, 2021, when the court handed down State v. McCarthy, was that day.

Telephonic Warrants Are a Thing

McCarthy concerned a typical traffic stop. The police pulled the vehicle over for “drift[ing] into a bike lane.” During the stop the officers found evidence that they thought was probable cause to search the vehicle for drugs. (Whether the evidence constituted probable cause wasn’t at issue in the case). The officers did not try and contact a judge to obtain a warrant. They went forward with the search and found drugs, leading to charges against the defendant, McCarthy.

One of the officers testified to the trial court that if he had tried to get a warrant he thought it would have taken “four hours, if not longer.” He also said he and his colleagues do not receive training on how to obtain a telephonic warrant. A county prosecutor also testified that telephonic warrants just weren’t a thing in that county.

In our age of actual mobile computers, smartphones, e-signature apps, etc., the court rightfully found this hard to believe. For one thing, since the Brown case the Oregon legislature has made it much easier to obtain a telephonic warrant, including via an e-signature. The court quoted a recent concurring opinion by Chief Justice John Roberts, stating that some judges can approve telephonic warrants in less than 15 minutes and that at least 30 states allow for them. And the court quoted the trial judge below, who found it incredible that with 14 judges in the local courthouse (including himself) the police couldn’t get a warrant when the stop was made at 1:30 in the afternoon. The fact that such warrants just aren’t a thing in the county isn’t the fault of the people being searched, the judges, or even the law. It’s the fault of the police and prosecutors who don’t bother to try and get them.

Therefore, concluded the court, the mere fact that an automobile is mobile isn’t an “exigency” and the government needs a better excuse to search of a car without a warrant under the Oregon Constitution.

Given similar statements at the U.S. Supreme Court in recent years—including the above one of Chief Justice Roberts, but there are others as well—it may hopefully rectify for the Fourth Amendment what it unleashed in Carroll. But for now Oregon stands out as a state taking “the right of the people to be secure” a little more seriously.

Anthony Sanders is the Director of the Center for Judicial Engagement at the Institute for Justice.