dissenting.
In a series of cases in 1986, the Oregon Supreme Court established an automobile exception to the requirement in Article I, section 9, that the police must get a warrant to conduct a search. The exception was crafted to create a bright-line test for police officers to use to determine whether they can conduct a warrantless search of an automobile that they have probable cause to believe contains evidence of a crime. Simply stated, and with apologies to W.P. Kinsella, the author of Shoeless Joe, whose book became the film “Field of Dreams,” the test is: “If you stop it, you can search.” See State v. Kock, 302 Or 29, 32-34, 725 P2d 1285 (1986).
The majority is not satisfied with the Supreme Court’s test and seeks to broaden it to cover the search of automobiles that have not been stopped by police officers.1 It errs in doing so, and thereby creates uncertainty in an area of the law in which the Supreme Court has sought to remove it. Because the majority fails to follow Supreme Court precedent in this area, I respectfully dissent.
*151The Supreme Court established an automobile exception to the state constitution’s warrant requirement in State v. Brown, 301 Or 268, 721 P2d 1357 (1986). Before Brown, the police could search an automobile for evidence of a crime without first obtaining a warrant if( 1) they had probable cause to believe the automobile contained such evidence and (2) exigent circumstances made it impracticable for them to obtain a warrant before conducting the search. 301 Or at 274. Whether exigent circumstances existed to justify the warrantless search of an automobile had to be evaluated by the police and by the courts on a case-by-case basis. See id. at 274-77.
In Brown, the court decided to adopt a “ ‘per se exigency rule’ ” for certain automobile searches under Article I, section 9. The searches covered by the per se rule were identified to be those involving automobiles that have been lawfully stopped and that are mobile when stopped, assuming the existence of probable cause to conduct such a search. Id. For all other automobile searches, the police still had to establish the existence of exigent circumstances sufficient to justify a warrantless search, absent some other, recognized exception to the warrant requirement. Cf. id. (by implication).
The court in Brown left open the possibility that the perse exigency rule it had adopted might be expanded to cover situations in which the automobile had not been lawfully stopped at the time of the search:
“We are not confronted in this case with the search of a vehicle that is not mobile and has not just been lawfully stopped by a police officer. We, therefore, do not address in this opinion whether a warrant for the search and seizure of a parked or impounded automobile is required.”
Id. at 277.
Within three months of its decision in Brown, the court was required to address whether it would extend its per se exigency rule to cover vehicles that have not just been lawfully stopped, and the court rejected such an extension. Kock, 302 Or at 32-34. The search in Kock involved an automobile that an employee had parked in the parking lot of *152his employer’s store. Two police officers conducting surveillance at the lot watched the employee put into his car a package that he had taken from the store. The circumstances under which that occurred gave the officers probable cause to believe that the package contained stolen merchandise, and they conducted a warrantless search of the car to seize the merchandise after the employee had returned to the store. They then arrested the employee inside the store for theft.
The defendant moved to suppress the evidence seized in the search, and the Supreme Court held that the evidence had to be suppressed because the search was unlawful. In so doing, it rejected the state’s argument that the search came within the per se exigency rule established in Brown for certain automobile searches. The court explained its decision as follows:
“Although logically it can be argued that the rationale of the seminal case of Carroll v. United States, 267 US 132, 45 S Ct 280, 69 L Ed 543 (1925), and its progeny * * * would justify extending the automobile exception to automobiles that are capable of mobility, we elect to draw the so-called bright line ofBroicnjustwhereweleftitinthatcase: * * * [AJutomobiles that have just been lawfully stopped by police may be searched without a warrant and without demonstration of exigent circumstances when police have probable cause to believe that the automobile contains contraband or evidence of a crime. In this case, we assume for the sake of argument that there was probable cause for the search of the automobile. We nevertheless hold that any search of an automobile that was parked, immobile and unoccupied at the time the police first encountered it in connection with the investigation of a crime must be authorized by a warrant issued by a magistrate or, alternatively, the prosecution must demonstrate that exigent circumstances other than the potential mobility of the automobile exist. Here, the prosecution failed to demonstrate any individualized exigent circumstances.”
302 Or at 32-33 (emphasis supplied; citation omitted).
Here, the pickup had not just been lawfully stopped by the police, and it was parked, immobile and unoccupied at the time the police first encountered it. Given the discussion of the per se exigency rule in Kock, it is impossible to see how the search in this case can be upheld as coming within the *153automobile exception to the state warrant requirement that the Supreme Court recognized in Brown.
The majority claims that our decision in State v. Cromwell, 109 Or App 654, 820 P2d 888 (1991), nevertheless provides authority by which to conclude that the search in this case comes within the state automobile exception. 136 Or App at 148-50. I disagree, because Cromwell is distinguishable from this case, and because Cromwell was wrongly decided and should be overruled.
In Cromwell, the pickup had been driven just before the police encountered it, it was parked in the middle of a dead-end road with its parking lights on and it was occupied. 109 Or App at 656, 659. The court reasoned that the pickup was mobile because the driver could have started the engine and driven the pickup away at any time. In other words, there was nothing to suggest that the pickup was immobile. In effect, then, the court distinguished Cromwell from Kock on the ground that the pickup in Cromwell was occupied and mobile, while the car in Kock was unoccupied and immobile.2
Here, the pickup was unoccupied and parked on the shoulder of a road when the police encountered it. The majority views the fact that it was unoccupied as a mere fortuity, however, because the defendants were near the truck and could have walked a few steps to get into it and driven it away. To the majority, then, the determinative issue is whether the truck was mobile, and it concludes that it was. The problem with that conclusion, however, is that the trial court concluded that the vehicle was not mobile.
There is evidence to support that conclusion. One of the officers testified that defendants had told him that the pickup had overheated. The court found that the engine was cold at the time the officers encountered the pickup, but the court did not reconcile the conflicting evidence about the amount of time the pickup had been parked on the shoulder. Furthermore, after Burr’s arrest, the officers did not determine who had the keys to the pickup. They did determine, *154however, that none of the remaining defendants had a valid driver’s license with him. As a consequence, the officers were unable to verify that any of the defendants lawfully could drive the pickup away.
In summary, the pickup was parked and had not recently been moved when the officers encountered it. It is not known whether the pickup was operable, and the trial court did not find, implicitly or otherwise, that it was. Before the officers determined that they had probable cause to search the vehicle for evidence of a crime, they had tried but failed to establish that any of the defendants lawfully could drive the pickup away. On those facts, the trial court properly concluded that the pickup was immobile.
The pickup in Cromwell might have been mobile, because it had been driven just before the police encountered it, and it was parked in the middle of a road with the driver in it who could simply have turned the ignition and lawfully driven the pickup away. The contrasting facts of this case, in which the pickup was parked off a road, had not just been driven and was not known to be operable, and in which no one was in a position lawfully to drive it away, establish that the pickup was not mobile. Hence, whatever the validity of Cromwell, it is not authority for the search of the pickup in this case under the automobile exception to the state warrant requirement.
In any event, I believe that Cromwell was wrongly decided and cannot be reconciled with the Supreme Court’s decisions in Brown and Kock. In Kock, the court explained that it was not willing to extend the automobile exception under the state constitution as far as the United States Supreme Court had done under the Fourth Amendment. In so doing, it expressly distinguished the state exception from the exception applied by the Supreme Court in California v. Carney, 471 US 386, 105 S Ct 2066, 85 L Ed 2d 406 (1985). Kock, 302 Or at 33.3
*155Significantly, the facts in Carney are legally indistinguishable from those in Cromwell. Hence, if the automobile exception that was applied in Carney goes beyond that recognized under the state constitution, and the Kock court said that it did, see id., then the exception applied in Cromwell does too.
In Carney, police officers watched an adult approach a youth in downtown San Diego. The youth then went with the adult to a motorhome that was parked in a public parking lot. They went inside, pulled shades over all the windows and remained inside for about an hour and a quarter. The police spoke to the youth after he left the motorhome, and he told them that he had engaged in sexual activity with the adult in exchange for marijuana. The youth returned to the motorhome with the police and knocked on the door. In response to the knock, the adult opened the door and stepped outside. Without a search warrafit or consent, the officers stepped into the motorhome to search it and found marijuana, plastic bags and a scale of the type used to weigh drugs. They then arrested the adult, who was later charged with possession of marijuana for sale. 471 US at 387-88.
The defendant sought to suppress the evidence obtained in the search, and the Supreme Court held that the search was valid under the automobile exception to the Fourth Amendment warrant requirement. See id. at 388-89, 394-95. It reasoned that a parked motorhome that was readily mobile “by the turn of an ignition key” came within the exception. Id. at 392-93. For that purpose, it considered the motorhome to be indistinguishable from an automobile. See id. at 392-94.
The facts in Carney are legally indistinguishable from those in Cromwell. Both involved parked, occupied *156vehicles that could have been driven away with the turn of an ignition key. The vehicle in Carney was parked in a parking lot and had not recently been moved, while the vehicle in Cromwell was parked in the middle of a dead-end road and had recently been moved, but those differences do not make the latter vehicle more mobile than the former.4
Because Carney and Cromwell involve equivalent facts, and the automobile exception recognized in Carney is inconsistent with that established in Brown and Kock, it follows that Cromwell misapplied the state automobile exception to the warrant requirement.5 A further problem with Cromwell is that it blurred the bright line that the Supreme Court had established in Brown and Kock to distinguish between searches that are subject to the state automobile exception and those that are not.
The Supreme Court recognized in Kock that people could debate whether the bright line that it had established was the appropriate dividing line, given the rationale on which the automobile exception was based, but the court found value in the fact that the line it had chosen was clear:
“As emphasized in State v. Brown, supra, and State v. Bennett, 301 Or 299, 721 P2d 1375 (1986), the police need clear guidelines for their actions. Citizens of this state also need to have their constitutional rights spelled out as clearly as possible.”
302 Or at 33. The court believed that the automobile exception that it had established met those goals. See id. at 33-34.
The bright line established in Brown and Kock distinguishes between (1) vehicles that are stopped by the police while moving and that could move again and (2) all other vehicles. There is no imprecision or ambiguity in the test. It requires no judgment by the police about the vehicles that are covered by it.
*157As formulated, the state exception covers most vehicles that the police have probable cause to search under circumstances in which it likely would be impracticable for them to obtain a warrant for the search. By limiting the exception to vehicles that are moving when stopped, the state exception also focuses on circumstances that more readily can be seen to be exigent. That is because a vehicle that is stopped short of its intended destination would almost certainly continue on once the police have released it, and it generally would be impracticable to obtain a warrant before that occurred.
Once the police start dealing with vehicles that have not just been stopped while moving, it is less certain that the vehicles will move before the police can obtain warrants to search them. Hence, it is less appropriate to apply a per se exigency rule to them.
Elimination of the requirement that the vehicle be moving when stopped by the police blurs the bright-line test that the Supreme Court sought to establish for the state exception. Instead of case-by-case judgments about exigency, which the Supreme Court sought to eliminate by creating a per se exigency rule, see Kock, 302 Or at 33-34, the police and courts must now make case-by-case judgments about likely mobility, in which likely mobility becomes a proxy for exigency.
Here, for example, the majority says that the vehicle was mobile because defendants were near it and could readily have gotten in it and driven it away. Would it reach the same result if defendants were standing 50 feet away from it, or 100 feet? What conclusion about mobility would the majority reach if the vehicle were parked at a parking meter on a city street and defendants were standing near it? Would the result be different if they were walking away from it, or if they were two blocks away but walking toward it? Would it be different if the pickup were parked in front of a house and defendants were standing near it?
The point is that the test applied in Cromwell and by the majority in this case has the same problem with case-by-case evaluation that the Supreme Court sought to eliminate by creating the state automobile exception in the first place, *158with the added vice that it focuses on an issue that is one step removed from the ultimate issue that the test seeks to address, which is whether the police should be required to get a warrant in order to search a particular vehicle. If the police and courts are to apply an imprecise standard to decide whether it is constitutionally permissible to conduct a warrantless search of an automobile, the standard should focus on the relevant, ultimate issue, which is exigency, rather than on a substitute issue, such as likely mobility.
The majority argues that adherence to the Brown and Kock rule in this case would exalt form over substance, because it would require “the officers to permit the vehicle to roll several feet before effecting the search.” 136 Or App at 149. The majority is wrong. The police could conduct a warrantless search of the pickup without waiting for it to move, but the state would have to establish that exigent circumstances made it impracticable for the police to obtain a warrant before conducting the search. See, e.g., Kock, 302 Or at 33. The state might have been able to make such a showing in this case, but it chose not to do so.6
The same argument made by the majority in this case could have been made in Kock. There the vehicle would almost certainly have been driven away within 30 minutes of the time the police first had probable cause to search it, because the defendant would have driven the car from work at that time at the conclusion of his shift. See 302 Or at 31. If it exalts form over substance to require the police to wait an indeterminate amount of time for the pickup in this case to move in order for the state automobile exception to apply, then the Supreme Court is subject to the same criticism in its application of the state exception in Kock.
Again, however, the state automobile exception recognized in Brown and Kock does not create the dilemma suggested by the majority. It only requires the police to focus on the existence of exigent circumstances before conducting a *159warrantless search of an automobile that is not covered by the exception. That presents no more problem for the police than existed before the state exception was recognized in 1986.
In summary, the majority errs in holding that the search of defendants’ pickup comes within the automobile exception to the state warrant requirement. Because the state does not argue that any other exception to the warrant requirement applies, I must dissent from the majority’s decision to reverse the trial court’s order suppressing the evidence obtained as a result of the warrantless search of the pickup.
To avoid confusion, it is important to make clear the meaning of the word “stop” in this context. It refers to the act of causing a moving vehicle to come to a stop. It is not equivalent to the stop of a person, which is a term of art that applies to police stops of people, and which applies without regard to whether the people who are stopped were going somewhere when stopped. See ORS 131.605-ORS 131.625.
As I will explain, the distinction drawn in Cromwell between the facts in that case and those in Kock is of no moment, because the per se exigency rule established in Brown and confirmed in Kock requires the police to have lawfully stopped the vehicle in order for the automobile exception to apply.
The court said in Kock
“Forensic advocates can make a good case to draw the warrantless search line elsewhere and have in fact convinced the Supreme Court of the United States to extend the automobile exception to a stationary but operational vehicle in a public parking lot as being as readily mobile as one just stopped on a highway. See California v. Carney, 471 US 386,105 S Ct 2066,85 L Ed 2d 406 (1985). On *155the other hand, constitutional scholars * * * and other state courts interpreting their own constitutions * * * believe that there should be no automobile exception as such.
“We choose not to stretch the automobile exception as far as the Supreme Court of the United States has done in interpreting the Fourth Amendment, nor do we retreat from the position taken in State v. Brown, supra. However, Brown sets the outer limit for warrantless automobile searches without other exigent circumstances.”
302 Or at 33 (citations omitted).
Cromwell does not suggest otherwise. It found that the vehicle in that case was mobile because it was occupied and could have been driven away at any moment. 109 Or App at 659. So, too, the vehicle in Carney.
Even if the facts in Cromwell somehow could be distinguished from those in Carney, the facts in this case certainly cannot be. Whatever the validity of Cromwell, the search in this case cannot be upheld under the state automobile exception without overruling Kock, which is not something that we are at liberty to do.
Of course, the same analysis applies to the search in Cromwell. Although the court erred in Cromwell in upholding the search under the state automobile exception, the search still might have been valid as a search conducted under exigent circumstances. See Kock, 302 Or at 33. For the search to be upheld on that basis, however, the state would have had to make an appropriate showing at the trial level to establish that it would have been impracticable to obtain a warrant for the search.