State v. Brock
State v. Brock
Opinion of the Court
Defendant appeals a judgment of conviction for two methamphetamine offenses. He assigns error to the trial court’s denial of his motion to suppress drug-related evidence discovered in the car he was driving. He argues that the evidence was obtained in violation of his rights under Article I, section 9, of the Oregon Constitution because the automobile exception should not properly apply under the circumstances of this case.
The facts are undisputed. In the early morning hours of September 10, 2011, Deputy Freshner drove by two cars parked on the side of the road. Defendant’s car was improperly parked facing oncoming traffic. Another man stood outside of the vehicles. Freshner pulled off the road and began running defendant’s license plate with dispatch, noting that the car had 2012 registration tags. The man standing near defendant approached Freshner in his patrol car and said that they had broken down but that they were “[g]ood to go here in a second.” Within a few moments, defendant and the other man separately drove away. About that time, dispatch told Freshner that the registration on defendant’s car had expired in 2008.
Freshner turned his patrol car around and caught up to defendant. He verified the plate number on defendant’s car and turned on his overhead lights to make a traffic stop. After defendant pulled over, Freshner determined that defendant was not the registered owner of the car and that the registered owner did not have a valid driver license. Defendant admitted that his driver license had been suspended and that he did not have any identification. Dispatch ran defendant’s name and birth date to look for outstanding warrants. While waiting for dispatch’s response, Freshner
After about 10 minutes, dispatch reported that defendant was wanted on an outstanding warrant. When Freshner first attempted to arrest defendant, defendant “made a lunge back towards the car” requiring “physical force to put him against the car to get him in handcuffs.” After securing defendant, Freshner searched the car and found “a dealer amount” of methamphetamine under the driver’s seat.
Defendant was charged with unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894.
On appeal, defendant assigns error to the trial court’s denial of his motion to suppress evidence. He makes two arguments. First, he argues that, under the automobile exception, the state did not establish that the car was mobile at the time that Freshner first encountered it in connection with a crime. Second, he argues that, notwithstanding his first argument, the automobile exception does not apply because Freshner “lacked probable cause to search the vehicle for evidence of theft.” The state responds that defendant’s first argument is unpreserved and, regardless, that he is incorrect on the merits of both his arguments.
We agree that defendant’s first argument is not preserved. “Ordinarily, this court will not consider an issue on appeal unless it was first presented to the trial court.” State v. Whitmore, 257 Or App 664, 666, 307 P3d 552 (2013) (citing Kaptur and Kaptur, 256 Or App 591, 594, 302 P3d 819 (2013)); see also ORAP 5.45(1). Preservation rules exist to ensure fairness to parties and to provide the trial court an opportunity to avoid an erroneous ruling. See State v. Walker, 350 Or 540, 548, 258 P3d 1228 (2011).
At the suppression hearing, defendant argued only that there was no probable cause at the time of the search as required by the automobile exception. On appeal, he raises a different argument that, at the time police first contacted defendant, the car was not mobile, and, thus, the automobile exception should not apply. The trial court raised a separate
We turn to defendant’s argument that Freshner did not have probable cause to search. “Under the automobile exception, an officer may conduct a warrantless search of a vehicle provided that (1) it is ‘mobile’ at the time it is encountered by police or other governmental authority and (2) probable cause exists for the search.” State v. Bennett/McCall, 265 Or App 448, 454-55, 338 P3d 143 (2014) (citing Brown, 301 Or at 276). Police must have “probable cause to believe that a person’s automobile * * * contains contraband or crime evidence[.]” Brown, 301 Or at 276. “Probable cause to search requires both that an officer subjectively believe a crime has been committed and that the belief is objectively reasonable under the circumstances.” Bennett ¡McCall, 265 Or App at 455 (citing State v. Getzelman, 178 Or App 591, 595, 39 P3d 195, rev den, 334 Or 289 (2002)). “The objective reasonableness of that belief is subject to a ‘more likely than not’ standard that does not require proof beyond a reasonable doubt.” Bennett/McCall, 265 Or App at 455. Objective probable cause implicates a legal, rather than a factual question. State v. Currin, 258 Or App 715, 719, 311 P3d 903 (2013).
On appeal, defendant does not argue that Freshner lacked the requisite subjective belief to establish probable cause.
Affirmed.
Article I, section 9, provides, in part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”
At trial, a witness testified that the methamphetamine weighed 26.57 grams.
The indictment alleged that the offenses involved a substantial quantity of methamphetamine, ORS 475.900 (2013).
Defendant acknowledges that Freshner testified that he believed that if he searched the car he would find “more information about who actually owned” it and that Freshner thought that he had probable cause to believe that defendant had committed “theft by receiving of the stickers, [or] theft of mislaid property at the minimum.”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.