Cover photo by Mac Smiff
WOHM sat down with a defense attorney to understand the change. The Oregon Supreme Court said no more warrantless searches after traffic stops.
Since 1986, police in Oregon have had broad authority to conduct warrantless searches after they pull people over. In Portland, this power of the police disproportionately impacted Black residents, who, it has been shown, are disproportionately stopped in the city. Thanks to a recent Oregon Supreme Court case, this “automobile exception” to the state constitution — that allows for warrantless searches of drivers — has now been overruled.
Police say they needed the exception because they couldn’t get a warrant in time to search people they had just pulled over.
Thanks to the December 20, 2021 decision by the Oregon Supreme Court, the exception is no more. In the case, Salem Police Department officers were staking out a house they believed to be a “known drug house.” They decided to follow Charles McCarthy, who had been parked outside, and pulled him over after McCarthy drifted into a bike lane.
According to the police, a few years earlier a police informant had unsuccessfully attempted to purchase heroin from McCarthy.
Having stopped McCarthy, the officers looked for an excuse to search the car. They saw dark brown stains on McCarthy’s hands and the hands of a passenger, which the officers interpreted as signs they had been handling heroin.
As they looked into McCarthy’s license and registration status, they called a detective (not a judge) to “ask whether there was a lawful basis to arrest McCarthy.”
The detective said yes, so they searched the car and found some heroin, a scale, and paraphernalia. They charged McCarthy with possession and delivery of heroin.
Not So Fast
Why didn’t they just call a judge, and get a warrant? (New technology, like cell phones and electronic warrants, allows police to obtain warrants much faster.)
This question was central to the Oregon Supreme Court case (State of Oregon v. McCarthy).
A trial judge said they were frustrated by police who don’t take advantage of the technology available to get judicial warrants to search cars. “So,” the judge wrote, “I’m a little frustrated that we keep coming back to this issue that, well, the court likes it done this certain way, so we [the police] are not going to do telephonic warrants. Well, it’s the law.” The judge said the Salem police officers could have easily asked a judge. “It seems striking to me that 1:30 on a Monday afternoon, with 14 judges in Marion County and four judicial officers in addition to that, that there couldn’t be somebody that gets a call from an officer, swears the officer in, and says, ‘Tell me what you’ve got,’” the judge wrote.
No More Warrantless Searches After Traffic Stops in Oregon
In its decision, agreeing with the trial judge, the Supreme Court went even further, writing that the exception itself “should be overruled.” “It was not well-founded, it has not created clarity, it is inconsistent with recent cases, it was intended to be temporary, it is no longer justified given changes in technology and the processes for obtaining electronic warrants, and it can diminish the incentives for officers to apply for warrants and for jurisdictions to improve warrant processes,” the court wrote.
That means no more warrantless searches after traffic stops in Oregon.
This could help reduce racial biases in the criminal punishment system, according to the Oregon Criminal Defense Lawyers Association and Oregon Justice Resource Center. The groups filed a joint “friend of the court” brief, arguing the exception should be restricted and that, “Narrowing police discretion and promoting transparency helps to ensure that police conduct is not motivated by racial biases.”
Ask a criminal defense attorney
Multnomah County public defender Chris O’Connor told WOHM that, “Prior to the McCarthy case, Oregon courts had ruled that one of the exceptions of the need for a warrant was the ‘automobile exception.’ The automobile exception said that a search or seizure done without a warrant was valid if 1) the car was mobile at the time of a search and, 2) the officer had probable cause.”
“In the McCarthy case,” continued O’Connor, “the Oregon Supreme Court reexamined that rule. They noted that the ‘automobile exception’ was based on exigency – that is, an urgent need because the evidence might disappear or drive away. The original old-school argument for it was, ‘hey, we can’t get a warrant right now, we are sitting with a car on the side of a highway.’ Now in McCarthy, the court says that it isn’t that hard to get a warrant, you can do it electronically in like half an hour. It’s not as hard to expect a warrant when it’s easier to get. The need for an automatic per se rule is gone. It doesn’t mean the police can’t search a car if there is an ‘exigency,’ but there is no more automatic exception just because you are in a car when stopped.”
“It’s a pretty big change,” said O’Connor, “in that it means the courts are willing to more closely scrutinize officer’s decisions about stopping and searching cars, and willing to require that local jurisdictions use technology.”