Child appeals from a judgment finding him to be within the jurisdiction of the court for committing acts which, if committed by an adult, would constitute unlawful possession of a firearm. ORS 166.250. He assigns error to the trial court’s denial of his motion to suppress evidence obtained during a search of his backpack. We review de novo, ORS 419A.200(5), and reverse and remand.
On March 12, 1996, Portland Police Officers McKillips and Cummings spoke with a female juvenile in the parking lot of a motel on 6th Avenue in Portland. She said that she had left personal belongings in a room of the motel and asked the officers to help her retrieve them. McKillips testified that he and Cummings went to the room and knocked on the door and child answered. 1 Cummings recognized child and remembered that thеre was an outstanding warrant for child’s arrest as a runaway. The officers entered the motel room, which was occupied by child and another juvenile, and arrested child. After handcuffing child and seating him on the bed, McKillips pickеd up a closed backpack, which was lying either on the floor or on the nightstand. McKillips asked child if the backpack was his, and child said that it was. The officer then asked child for permission to search the backpaсk. After child refused, McKillips patted the outside of the backpack and felt the outline of a small, hard object resembling a handgun. He opened the backpack and found a small automatic handgun.
The juvenile department filed a petition alleging that child’s possession of the handgun was an act that, if committed by an adult, would constitute unlawful possession of a firearm. ORS 166.250. At trial, child moved to suppress the evidence of the handgun, arguing first that the offiсers’ entry into the motel room was unlawful and second that McKillips had insufficient justification to search the backpack. The trial court denied the motion, stating that
*226 “as far as the bag is concerned, I think the officers’ safety is a legitimate reason to at least get as far as feeling the bag and finding there was a gun in it, or what he believed to be a gun. Then I think he had the authority under those exigent circumstances to look inside and take the weapon.”
Bеcause we find that McKillips improperly searched child’s backpack, we do not reach child’s argument that the entry was unlawful.
Child argues that the warrantless pat-down and opening of his backpack violated prohibitiоns on unreasonable searches and seizures contained in Article I, section 9, of the Oregon Constitution, and in the Fourth Amendment to the United States Constitution. We address state constitutional claims first, and then, if necessary, consider аrguments under the federal constitution.
State v. Nielsen,
The state contends that the initial pat-down and subsequent opening of the backpack fits within the search incident to arrest exception. Under Article I, section 9, a warrantless search incident to arrest can be justified in the interest of preserving evidence, uncovering evidence relevant to the crime for which defendant is being arrested, and protecting the officer’s safety.
State v. Caraher,
Searches incident to arrest for officer safety take two forms. First, “a pat-down or limited search for weapons to protect the officer or to prevent escape [is] justified whenever a рerson is taken into custody.”
State v. Owens,
The state argues first that McKillips’ pat-down of the backpack was part of the initial “pat-down or limited search for weapons,” which is always justified when a person is taken into custody.
See Owens,
Neither this court nor the Supreme Court has precisely defined the scope of the
Owens
“pat-down or limited search.” We have stated, however, that the intrusion must be “reasonable in time, scope and intensity in view of all the facts,”
State v. Yoakum,
In Yoakum, we affirmed the trial court’s suppression of evidence obtained during an arrest. Id. at 295. After handcuffing the defendant, the arresting officer reached inside the defendant’s pocket and removed two packages containing narcotics. The officer had not patted the defendant down before reaching into his pocket. The court held that the officer exceeded the permissible scope of the Owens pat-down by exploring the defendant’s pockets instead of merely patting the outside of his clothing. Id. at 294. Nor could the intrusion be justified as an expanded search incident to arrеst, because the officer had not articulated facts leading to a reasonable belief that the defendant was carrying a weapon or tools of escape. Id. at 295.
In
State v. Ching,
Those cases establish the general proposition that the initial Owens pat-down does not extend to a search of the interior of an arrestee’s pockets, unless that search can be justified as an expanded search incident to arrest. None of those cases is dispositive of the issue beforе us, but they demonstrate our reluctance to expand the scope of the initial Owens search beyond a pat-down of the exterior of an arrestee’s clothing and of items on his person. That is significant here, where the state is arguing that the Owens pat-down should encompass not merely the exterior of child’s clothing but the exterior of a backpack that is neither on his person nor within his reach.
We decline to extend the
Owens
exception in the manner the state urges.
Owens
states a
per se
rule defining the scope of search which is reasonable in
every
arrest. The justifications for
always
allowing some limited warrantless search incident to arrest are clear: The proximity of an officer to an arrestee during arrest and handcuffing makes it imperative that the arrestee not have immediate access to a weapon or tool of escape that might be easily concealed and reachable even if the arrestee were handcuffed.
See, e.g., State v. Dickerson,
In this case, child had no opportunity to access any weapon or tool of escape from his backpack. Child was already arrested and handcuffed, and presumably had been patted down. His backpack was not within his reach, and nothing in the record indicates that it would have been returned to him at any time before his release from custody. Mindfid that the limited Owens search must be reasonable in time, scope and intensity in view of all the facts, we are unwilling to stretch that limited exception to fit these facts. McKillips’ pat-down of child’s backpack cannot be justified as the kind of “pаt-down or limited search for weapons” that may accompany any custodial arrest.
That result is consistent with our cases addressing what officers .may do with closed containers they have seized incident to arrest. We have held that once the police have seized a closed container from an arrestee, the threat to officer safety from any item within that container has dissipated, and the police can protеct themselves by taking steps short of conducting a search while waiting to obtain a search warrant.
See, e.g., State v. Jones,
*230
Accordingly, McKillips’ pat-down of the backpack was an expanded search incident to arrest. As such, it can be upheld only if the officer testified to specific and artiсulable facts supporting a reasonable belief that the backpack contained weapons or tools of escape.
See Hoskinson,
Because of our holding, we do not reach child’s argument that the officers’ entry into the motel room was illegal.
Reversed and remanded.
Notes
Child disputed this testimony, claiming initially that the door was standing open and the officers simply walked in, and later that the door was closed but unlocked and the officers entered without knocking. The trial сourt made a specific credibility finding favoring the officer’s testimony. Because of our resolution of this case, we need not revisit that finding.
The state also relies on
State v. Dempster,