State v. McCarthy

The automobile exception requires “(1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle.” State v. Brown, 301 Or. 268, 274, 721 P2d 1357 (1986).

The State appealed a pretrial order that partially granted Defendant’s motion to suppress evidence seized during a warrantless search of his automobile. On appeal, the State argued the search was performed under the automobile exception to the warrant requirement and as such was lawful. In response, the Defendant argued the trial court was correct in holding the automobile exception is not per se and the State failed to show actual exigency. The automobile exception requires “(1) that the automobile is mobile at the time it is stopped by police or other governmental authority, and (2) that probable cause exists for the search of the vehicle.” State v. Brown, 301 Or. 268, 274, 721 P2d 1357 (1986). The Court found that the State was not required to show, in addition to the test under Brown, that the underlying movement exigency actually existed rather than existed in theory. Reversed and remanded.