Can You Hear Me Now? Telephonic Warrants and Automobile Searches

Posted by: Joe Metcalfe
July 13, 2009
Topic: Search and Seizure

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My grandmother taught high school English in Havre, Montana, for more than 30 years. She was an excellent writer, an accomplished pianist, and always current on national and international affairs. Yet my grandmother never quite felt comfortable with technology. By way of example, she adamantly refused to leave messages on answering machines. Growing up in my house, a hang-up meant Gram called. Four hang-ups meant Gram fell and hurt her hip.

After much begging and pleading, my grandmother finally started leaving messages for my answering machine to relay to me. During college I would return to my dorm room to hear the following when I pressed "play":

Hello? [Pause.] Please tell Joe his grandmother called. [Long pause.] Thank you very much.

Of course this amused my roommate immensely, who started addressing various objects of convenience in the room as if they were dutiful servants ("My appreciation to you, sir, for sharpening my pencils!"). I told Gram that she should think of the answering machine not as a receptionist but more like...I don't know, a note left on the fridge. Eventually, she got the hang of it but I always had the idea that she wasn't quire sure what all the fuss was about and much preferred things as they were, thank you very much.

When it comes to adapting to new technology, the law is like your grandmother - slow to change and quite content to keep things as they are unless pushed and prodded. Nowhere is this more true than in the area of searches and seizures. Consider the modern significance of telephonic warrants. Today, a vast majority of law enforcement officers throughout Oregon has the ability to promptly obtain a telephonic warrant from the field in a matter of minutes, not hours. Given this reality, it is time for Oregon courts to revisit the "automobile exception" to the warrant requirement.

The Birth — and Rationale — of Oregon's Automobile Exception

In State v. Brown, 301 Or 268 (1986), a divided Oregon Supreme Court recognized for the first time an "automobile exception" to the warrant requirement of Article I, Section 9, of the Oregon Constitution. If (1) the automobile is "mobile" at the time of the stop and (2) there is probable cause to search, the court held that police are not required to obtain a warrant prior to searching the car. Highlighting the risk that evidence in a car is easily transportable and might be lost to the police, the Brown court articulated a per se rule that was (at least facially) simple: probable cause + mobility = lawful warrantless search of an automobile. The court noted in particular there need not be any inquiry into "whether a magistrate was available, whether by telephone or otherwise." Brown, 301 Or at 278.

To be sure, the court in Brown was faced with a hard choice. A rule requiring a warrant prior to searching automobiles would have turned a blind eye to the reality of policing, circa 1986. For many police officers in the field, obtaining a warrant meant a long, scenic drive back to the county courthouse, a cumbersome and time-consuming process that was hardly practical in the context of many automobile stops. I'd also venture a guess that many jurisdictions did not have in place a method of quickly approving telephonic warrants. In light of this, the majority in Brown categorized the probable cause search of a mobile car as an "exigency," falling outside the traditional warrant requirements.

At the same time, the majority in Brown anticipated that Oregon's automobile exception might very well be short-lived. Note the following language:

"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. * * * The desired goal of having a neutral magistrate could be achieved within minutes without the present invasion of the rights of a citizen created by the delay under our current cumbersome procedures and yet would fully protect the rights of the citizen from warrantless searches."

Brown, 301 Or at 278 n 6 (emphasis added). The court imagined a "central facility" with magistrates on duty 24/7, fielding warrant requests from around the state. Now, I'm not so sure about this futuristic monastery of magistrates. But the broader point is critical - once police officers in the field have the ability to obtain prompt approval of warrants via the telephone or some other means, the sole justification for Oregon's automobile exception no longer holds true. See also State v. Wise, 305 Or 78, 82 n 3 (1988) ("It was the present unavailability of a general speedy warrant procedure that led the [Brown] court to allow an exception for warrantless searches after stops of mobile vehicles * * *." (emphasis added)). And today, the police do have the ability to obtain warrants from the field.

Telephonic Warrants — The Future Has Arrived

Since its birth more than 20 years ago, Oregon's "automobile exception" has remained fixed. Frozen in time. Remember 1986? "Top Gun" was a box office smash. The Bangles were walking like Egyptians. The Gipper was still in the White House. Point is, that was a long time ago. A few things have changed since then, one being the fact that today pretty much everyone has a cell phone. I don't care if you're mentally infirm or clinically insane, a penniless vagrant or a newborn infant, you've got an iPhone in your pocket. Surely the same is true of police officers.

Moreover, it is far more likely today that no matter the jurisdiction, there are telephonic warrant procedures in place that provide a standardized, efficient mechanism by which officers in the field can obtain review of warrant applications via the telephone in relatively short order. See ORS 133.545(5) (describing process by which judge may approve warrants through "oral statement"); State v. Chapman, 107 Or App 325, 334 (1991) ("all law enforcement authorities should have a policy regarding telephonic warrants"). And outside the context of automobile searches, Oregon courts frequently reference telephonic warrants when evaluating the alternatives available to the police acting under a claim of exigency. See, e.g., State v. Stoudamire, 198 Or App 399, 412 (2005) ("Warrants areavailable by telephone, ORS 133.545(5) and 133.555(3), and the availability of such a warrant is to be considered in determining the existence of exigent circumstances."); State v. Wynn, 102 Or App 1, 4 (1990) (whether police attempted to obtain a telephonic warrant relevant on question of exigency).

So, if police officers can readily get remote approval for searching a car in a matter of minutes, remind me again...what's the emergency? Why does the law permit warrantless searches of automobiles based on the demonstrably false factual predicate that a face-to-face warrant is the only alternative currently available to the police? Why is it that, as I write these words, a police officer in Oregon is lawfully permitted to search an automobile without a warrant despite the fact that magistrate approval is just a phone call away?

The Oregon Supreme Court was sharply divided in Brown itself. Despite numerous subsequent invitations from the state to expand Oregon's automobile exception, Oregon appellate courts have steadfastly refused. See, e.g., State v. Kock, 302 Or 29, 33 (1986) ("Brown sets the outer limits for warrantless automobile searches without other exigent circumstances"). And the basic premise justifying warrantless searches of automobiles no longer holds true. With the right facts and a well-developed record at the suppression hearing, it doesn't take a legal Nostradamus to predict that Oregon's "automobile exception" is vulnerable to challenge.

Practice Pointers

The law won't change without a little friendly prodding on our part. And by "prodding," I mean aggressively litigating this issue whenever confronted with a car search. Here are a few thoughts about setting up a strong appellate challenge to Brown:

• Thoroughly cross-examine the searching officer about telephonic warrants. To rebut Brown's premise that the police are limited in their options while in the field, you'll want to establish both that telephonic warrants are available in the jurisdiction where the search took place and that the searching officer is familiar with procedures in obtaining such warrants. I anticipate this would be a significant portion of your cross-examination, not just a few questions. Let's face it - if you have a run-of-the-mill car search case, the evidence is coming in under Brown. Making a strong record to challenge the automobile exception may be your only realistic chance of success of prevailing on the suppression issue.
     
• Ignorance is no excuse. Even if the officer testifies that he or she is unfamiliar with the method of obtaining warrant approval via the telephone, the lack of adequate police training vis-à-vis telephonic warrants should not serve to create an "exigency." See, e.g., Wynn, 102 Or App at 4 ("[I]t is no excuse that police are unfamiliar with the [telephonic warrant] procedure."); State v. Roberts, 75 Or App 292, 296 (1985) ("Police officers cannot create their own exigencies by failing to familiarize themselves with constitutionally mandated procedures," referring to telephonic warrants).
  
  
• Supplement your cross-examination with evidence from the Oregon's police training academies. Officers attending the police academy today would certainly be trained on obtaining telephonic warrants. Contact the Oregon Public Safety Academy or the relevant academy responsible for training the state or county officers in your case to learn precisely what officers are told in training about obtaining approval for warrants from the field. Think about issuing a subpoena duces tecum to an academy instructor or supervisor to fully establish on the record the extent of officer training in this area, through live testimony or documents such as instructional material.
     
• Consider calling others familiar with remote warrant procedures in your jurisdiction. Depending on the state of the record after the testimony of the searching officer, you may wish to present additional evidence about remote warrant procedures in that particular jurisdiction. See, e.g., Wynn, 102 Or App at 3-4 (after arresting officer testified he had never heard of a telephonic warrant [!?!], Lane County deputy district attorney testified at suppression hearing that a telephonic warrant could have been obtained within 45 minutes to an hour). Obviously, you'll want someone with experience and first-hand knowledge about telephonic warrant procedures in that jurisdiction (police supervisor? prosecutor? member of the courthouse staff?).
     
• Remember, it's the state's burden. In the context of warrantless searches, the state has the burden of proving the search falls under an exception to the warrant requirement. Despite your best efforts, there may be gaps in the record regarding the availability of telephonic warrants. Don't despair. Because the state has the burden of proving exigency, these gaps work in your favor.

This list is hardly complete. However, I hope these ideas provide a useful point of departure as you prepare for your suppression hearing.

Conclusion

The majority in Brown was sensitive to the fact that, by recognizing an automobile exception, thousands of Oregon citizens would be subjected to warrantless roadside searches without the prior approval by a neutral, detached magistrate. This very real cost in liberty was thought justified, given that a trip to the courthouse was considered the only realistic option to an officer in the field seeking a warrant.

In State v. Bennett, 301 Or 299 (1986), a companion case to Brown, Justice Jones wrote:

"I envision a day when modern electronic techniques will provide the best of both worlds - warrants and immediate searches and seizures, but until then the decision in this case and in Brown will provide bright-line guidance for police and with less intrusion on the citizen privacy rights than our present outmoded, awkward warrant system provides."

Bennett, 301 Or at 310. With telephonic warrants, we already have "the best of both worlds," a means for officers in the field to obtain judicial review of warrants without undue delay. Bringing the law of automobile searches in accord with this reality would reaffirm the central role of the neutral magistrate under Article I, Section 9, of the Oregon Constitution as an essential buffer between the police officer and the citizen. Let's press Oregon courts to revisit the automobile exception by recognizing telephonic warrants as a viable alternative to face-to-face warrants.

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