*1 10, 1985, Appeals reassigned September Argued March Court of and submitted 1,1986 July part, part case remanded to circuit court affirmed in and reversed OREGON, STATE OF review, on Petitioner BENNETT, JOEL DEAN review. Respondent on S31726) (CC A31588; C83-11-35425; SC CA P2d 1375 J., Peterson, J., opinions. filed C. and Jones concurred and Lent, J., Linde, J., opinion joined. filed in which dissented and General, Salem, Attorney Peifer, F. Assistant Stephen him on the review. With petitioner the cause for on argued Frohnmayer, Attorney petition General, Dave were General, Mountain, Jr., James E. Solicitor Salem. Londahl, Bennett, McCandlish, Jan Peter Londahl & argued respondent Portland, the cause for on review. JONES, J. *2 concurring opinion.
Peterson, C.J., filed a concurring opinion. Jones, J., filed a dissenting opinion joined by Linde, Lent, J., J. filed a JONES, J. case, petitions the state for review from the
Court of
that affirmed the
Appeals decision
trial court’s
suppressing physical
in a
pretrial order
evidence discovered
Brown,
State
warrantless search of a car trunk. As in
v.
301 Or
(1986),
whether,
the
following
P2d
issue is
stopped
car,
arrest of the defendant
he
after
was
in his
compartment
search of
passenger
warrantless
trunk
car
defendant’s
was lawful.
suppressed
physical
The trial court
all
evidence dis-
during
covered
of the
The
thought
search
vehicle.
court
our decision in
295 Or
Lowry,
State
FACTS an arrest, About hour before a defendant’s confiden- tial, police reliable informant trying told that three men were to sell ten pounds about marijuana they had their car. The informant described the men their car said that he had the marijuana seen in the car trunk. stopped matching
Police car the informant’s description. Galloway Defendant was As driving. Officer approached vehicle, the saw he defendant the driver’s seat registration. and asked for his license the driver’s vehicle window, Galloway Through open the smelled odor of the marijuana “very smoked powerful and the odor of cut mari- juana.” The officer was familiar with those odors after ten years experience. of police Galloway’s request step declined out of
Defendant Galloway for some- saw defendant reach down the car. When thing right seat, officer, the side of the with his hand safety, fearing revolver and ordered own drew his for his Galloway to the escorted defendant defendant out of the car. weapons. Although he him for rear of the car and searched bulky weapons person, he did feel a on defendant’s found no large upper pocket, object turned out to be a wad in an which Galloway request, then hand- At Officer Larsen’s of cash. patrol placed him in a car. defendant and cuffed opened passenger door and Larsen Officer point forward Larsen smelled Beach. From that removed Mr. placing green marijuana. in Gal- After Beach the odor they spoke loway’spatrol stood defendant as car, Larsen with stopped Larsen told defendant rear of the vehicle. at the possessed that he cause to believe had quantity marijuana. large that the car Defendant denied marijuana consent to search. and refused contained why a warrant he did not obtain At trial when asked replied: stop prior automobile, Larsen Officer to the of the beingmobile,I wasmobile.Andwith “The automobile that vehiclewas at a to determinewhere wouldnot be able observing upon And first the vehicle. time. That was latter upon stopping vehicle, not seemreason- that it did then ableat that time.” four hours it would have taken about
He estimated that and one- and at least an hour obtain a written search telephonic one. half to obtain searching began side, on the driver’s the car Larsen ultimately
progressed searched the seat, and the back right passenger floor- notebook from trunk. He seized a compart- passenger only closed container board. clothing on the back suitcase, there was some was a ment seat. Larsen apart,” “rip hood, car] [the did not look under opened glove locked trunk Larsen box. or search ignition. keys he found Inside the trunk from the car with the *4 knap- backpack, military-type footlockers, two a brown two camouflage military-style green briefcase, a sacks, a brown bag. bag grocery and a locked, the officers but were
The footlockers Larsen and Werner Officers inside them. could not see
303 removed the footlockers from the trunk and opened them. Inside were bags numerous of marijuana. Larsen’s search of $9,650 closed brown backpack revealed in cash.
Officer Werner pistol seized .22 caliber located in a suitcase on the back seat of the vehicle. She opened green camouflage bag from the trunk and marijuana found in it. The briefcase was opened; it money contained and identification of defendant. Werner also seized a .45 caliber automatic hand- gun grocery from the bag in the trunk. She recalled smelling marijuana green “in its form” from the time the car door was opened. first Werner testified that the officers “were search- ing incident to arrest.”
ANALYSIS
The proper sequence in evaluating any contested
governmental
intrusion is
analyze
first to
it under state law
before reaching a federal law claim. If the conduct
is lawful
under the
constitution,
state
only then need the federal issues
See,
e.g.,
addressed.
Kennedy,
State v.
260,
295 Or
666 P2d
(1983);
1316
Sterling
Cupp,
611, 614,
290 Or
This case is a application textbook I, of Article 9, section Constitution interpreted in State v. Brown, supra. This was a classic valid warrantless search and seizure of a mobile automobile as set forth in Brown. The search and seizure did not violate the Oregon Constitution.
Furthermore,
the search did not violate the federal
constitution.
United
798, 102
States v.
2157,
US
(1982).
an confined probable cause was to the container — — a in Chadwick and a in Sanders green footlocker suitcase and not to the entire vehicle. In each case officers police placed waited until the container had been inside a vehicle and proceeded make a warrantless search then of the container. temporary presence of the footlocker and the suitcase in the vehicles was fortuitous and did not relieve the officers of They task of that obtaining the warrant for the search. had Here, duty before the placed containers were vehicles. any probable and in there was no cause to search for within All had particular container the vehicle. the officers pounds ten marijuana cause to believe was of Thus, were somewhere in the car. Chadwick and Sanders are inapposite. constitution,
As state State Brown would to the magis uphold constitutionally the search as valid because could authorized search of the entire vehicle trate have the same its States v. Ross would do the and contents. United Therefore, the trial court under federal constitution. Appeals and the improperly suppressed the evidence Court of from improperly excluded the evidence seized the trunk automobile. hold search permissible
Because we this was I, exception Article the automobile under section under Brown, forth in we need requirement the warrant set constitutionality 167.247(f)1 as it address the of ORS insofar mobile stop read absent the of a can be to allow such search of war- opinion we do not reach the issue vehicle. unoccupied, parked or immobile vehicles. rantless searches of statute addressing validity Another for not of this reason in on the search justification is that it was never relied as a for authority 167.247(1), portion which ORS the statute addresses search, provides: officers peace charged attorney ORS with the enforcement of “A or officer district 167.222, personal having knowledge or reasonable information 167.212 boat, any transported possessed being unlawfully or are controlled substances may conveyance, an and without or search the same without warrant vehicle other upon being found such con- If controlled substances are in or affidavit filed. them, charge conveyance veyance, any person may and as he arrest seize possible person seized substances arrested and the controlled soon as take the also, any county without seizure is made. He shall before court in the which the by complaint any justified delay, for the evidence obtained.” make and file a crime this case and was not cited state on Since the appeal. validating was not as a ground statute raised search of Appeals defendant’s automobile in the Court of or in this court, lawful, because search was otherwise we do not constitutionality. now address the statute’s Appeals The Court of affirmed in part reversed part, the case remanded to the circuit court. PETERSON, J., concurring. C. many angels you get
How head pin? can on the of a Looking generation at the last and seizure decisions courts, of this and other one if ever wonders there will be *6 certainty in of the law search and seizure.
Shortly
judge,
before I became a
this court decided
Groda,
321,
four
cases: State v.
285 Or
law’s social must changed values. The law accommodate derived from sacrifice of decision has fluctuated between [1] (1923). judge’s duty.” * * “* In time there comes a particular judicial experience many Pound, litigants The Theory and sacrifice of regard logically of of Judicial sound and the one or to the causes. In certainty Decision, practically the meantime and order in the other Harv L Rev workable of the two there principle has been sides of law, 943 suggest certainty expense I do not exists at of fairness. This is not the certainty. certainty, for an need occasion extended discussion of the role On the for Jurisprudence, Jones, 1023,1026-27 (1974). see An Invitation Colum L Rev But in societal conditions. And it does. seizure there has been little the field of search and certainty; rather, increased uncer- tainty change with little in societal conditions. proliferation
The end
of search and
result
body
confusing state
seizure decisions has been a
meaning
decisions,
alike unclear
federal
legal
which is
Supreme
public.
scholars,
officers and the
The
guilty
its
Court of United States is as
as we. Some of
rules
expectancy,
have turned out to
limited life
as noted in
have
Supreme
discussions of recent
Court decisions in the other
opinions
opinions
Brown,
in this
and the
case
in State
Or
variety might including considered, of defensible rules illustration): (simplified purpose these 1. an its contents with- No search of automobile or out a warrant.
2. an without a warrant is “Search” of automobile plain is in limited to what view. can be searched without war-
3. automobile exigent exist and cause rant if circumstances there contraband or evi- to believe that automobile contains of crime. dence Only compartment passenger be searched
4. can *7 a warrant. A warrant is needed to search trunk. without a 5. The interior and trunk can be searched without warrant, but a warrant must be obtained to search closed containers. interior, trunk and containers con-
6. closed if cause to therein can searched there is tained be contained or evidence of crime is believe that contraband therein. upon square
Notwithstanding mile of mile trees opinions print since 68 bottles search and seizure sacrificed whiskey gin discovered in Mr. Carroll’s seat and were concerning 1921, the use of auto- in cushion the conditions changed v. United much since Carroll have not mobiles States, 132, 280, 543, 267 US L69 Ed was decided in 1925. It was and is good law. Stevens,
Justice writing majority for the in United Ross, 798, 821, 102 States 2157, 2171, S 72 Ed Ct L 2d referred to “nice distinctions between closets, drawers, containers, home, in the case of a or seats, between glove compartments, upholstered trunks and wrapped packages, case a vehicle.” He referred then “practical to these considerations”: practical
“The justify considerations a warrantless search of an automobile apply continue to until the entire search of the automobile and its completed. contents has been Arguably, the entire vehicle itself (including upholstery) its warrant, could be searched without a wrapped with all articles and containers found during that search then taken to a magistrate. prohibiting police But opening from immediately a in object container which likely of the search is most forcing found and instead them first to comb the entire actually vehicle would privacy exacerbate the intrusion on Moreover, interests. opened until the container itself was police could never be certain that the contraband was not yet in portion vehicle; secreted undiscovered thus in every found, case which a container was the vehicle would *” * * need be secured while a warrant was obtained. 456 US 28, 102 at 822 n S Ct at 2171 n L72 Ed at n 2d 591-92 28. Blackmun, Justice concurring stated: “My prior dissents in my continuing cases have indicated dissatisfaction and discomfort with the Court’s vacillation rightly what described as ‘this troubled area.’ [Citations omitted.] “I expressed adhere to the views in those It dissents. however,
important,
only
institution,
for the Court as an
defendants,
but also for law enforcement officials and
that the
applicable legal
clearly
rules be
established. Justice Stevens’
opinion
accomplishes
for the Court now
respect,
much
clarify
good
should
bit of the confusion that has
ruling,
join
existed.
order to
an
have
authoritative
opinion
judgment.”
Court’s
456 US at
S102 Ct at
2173,
argue and in Brown that the decisions here rule, concerned.21confess that insofar as automobiles are majority join so, Even the result in this case troubles me. clear, is with it is workable and it consistent because the rule the federal rule. putting question rest, the end that
I aim at everyone I there- what is the rule. will know and understand majority. join opinion of the fore concurring. JONES, J., separately respond to the colorful dissent I write by by joined Justice Linde. written Justice Lent and argues have treated the defen- The dissent that we theory unfairly by deciding the case on a not advocated dant key by party. court, in this case either issue Appeals the trial court and the trial court whether Court of suppress gained through searches warrantless evidence must of closed containers that were defendant’s automobile. question unequivocally: no. The fact We have answered justified as “inci- the search was that the state asserted that excep- automobile rather than as “mobile dent to arrest” violated issue whether tion” is irrelevant. The main and answered. The state state constitution was asked our any justification argue or lack the defendant were entitled We did their theories. search. are not bound of it We unfairly no one has been treated discussion and not fetter the procedural standpoint. from judges complains even
The dissent then subject lawyers might of their searches to warrantless be police certainly only true, if have but That is automobiles. lawyer judge probable transporting or the was that the cause to believe in the automobile. crime evidence contraband or any police stop automobile, it driven and search citizen’s If probable by judge junkman, cause to must have or constitutionality Although of the unrelated to the issue so. do 798, 827,102 Marshall, S dissenting Ct United States v. 2Justice 2157, 2174, stated: 72 L Ed 2d only repeals majority today limits on warrantless all realistic “The requirement searches, repeals Amendment warrant the Fourth automobile * * *” itself. search, if the search is not based on cause the police have invaded the privacy may the citizen rights *9 provides remedy be sued. This state a damages up to $150,000 under its Tort Claims Act for such unlawful acts. addition, ORS 30.270. In government provided federal has right to citizens to recover 42 if damages under USC 1983 § any police officer violates the federal constitutional of a rights Further, police citizen. who conduct unlawful searches and subject seizures are to discipline, administrative and in some prosecution. cases to short, criminal police cannot conduct warrantless willy-nilly. they do, they searches If will be subject to severe sanctions.
The dissent by continues its discussion condemning majority for not engaging in loose-lipped dicta it when asks ground how much opinion is meant to cover. The dissent asks us to decide if the search would be if lawful containers were not in the opinion automobile. The deals with containers in an automobile. The dissent then asks whether the opinion extends to crime evidence as well as contraband. The answer is Brown, found in State v. 301 Or 721 P2d (1986): The search in Brown was for of evidence —crime wit, gun, to and in this contraband, case for to wit, pounds the 10 marijuana. incorporation dissent’s of “The Incredible Hulk” may cute, Worse,
article
be
but trite.
the article
inapposite
in that it refers to
arrest,
cars searched incident
to
New York
Belton,
454, 101
v.
453 US
The dissent concludes of legal with a bit chest- thumping oft-quoted and refers to the words of Justice Jack- son with a snide side to oft-quoted reference even more words of Justice Frankfurter. These jurists words from famous can just aligned as well be opinion with the majority because today decision protect citizens; protects does our it rights their individuals, while allowing police protect rights citizen to have our criminal laws rights privacy enforced. A citizen’s protected are not by seizing holding him or his property and the person property or pending for hours of a receipt warrant magistrate. issued Magistrates judges. Judges are busy are during at work the day and often difficult to reach at disputes No that the containers could seized
night. one be until a can property that the owner is of that deprived Also, substantial disputes no one takes obtained. time obtain a warrant. concurring opinion, notes in his
As the Chief Justice
have been
subject
our laws on the
of search
seizure
these
confusing.
say
is no answer to
that all of
complex and
It
involved
person
at the scene if the
problems can be solved
prac-
Anyone who has been involved
gives consent.
on-
many
of those
ticalities
law enforcement knows
Further,
the law of
denials.
scene consents become in-court
Many thorny
legal
bed of roses.
produced
consent has not
Douglas,
See, e.g.,
State
procedure.
issues surround that
Israel,
(1971);
&
generally
see
LaFave
Or
will best both the decision in this seizures, but until then ate and searches guidance for provide bright-line case and in Brown will rights than our privacy the citizen and less intrusion on with system outmoded, provides. awkward warrant present LENT, J., dissenting. “trailer” to case as mere majority regards
The do so Brown, To 301 Or 721 P2d State v. that can consid- concerning matters the basic rules violates therefore, to this is, unfair and review and appeal ered on addition, agree with cannot defendant. particular reasons of the trunk the search majority concerning Brown, supra, in State expressed in the dissent reasons trunk for the found in the of the containers addressed herein. later of this case. appellate posture
I address first Oregon I, 9, of the Constitu- section Relying on both Article to the Amendments Fourth and Fourteenth tion and the States, moved in the defendant United of the Constitution to suppress gained trial court the evidence war- through rantless searches the closed containers that were automobile, contending:
“(1)
seizure,
There was no warrant issued for this search or
(2)
seizure, (3)
There was no consent for this search or
This
lawfully
any
search or seizure was not
incident
lawful
arrest, (4)
preceding
This search or seizure was not otherwise
lawful,
(5)
The arrest of the defendant was unlawful.”
state,
first two bases were not contested
and the
trial court found there was no
no consent
search. The trial
on
judge went
to find that
there was no
evidence even offered of
“emergency
either an
or condition
endanger
that would
the evidence
while
search warrant was
obtained” and further found
aas historical fact that there was
aget
time
warrant.1
binding
That
on the
finding
appellate
Gladden,
courts
under Ball v.
Or
The trial court held that all of the evidence obtained by the search of the suppressed. automobile should be 138.060(3),
Pursuant to ORS appealed the state in its brief to the Appeals Court of stated the question presented on appeal:
“Was the search of opening defendant’s car and the closed containers therein lawful as a search incident to arrest I, under Article Oregon section Constitution?”2 In the brief the state also conceded that there was then no exception” “automobile under the Constitution unless an individual case “fits a particular showing under exigent circumstances.” The state then asserted that the lawfulness of *11 this search be solely pursuant “must examined to the rule of to, incident to arrest.” The required defendant was not not, did and argue exception” about an “automobile under the Oregon Constitution.
When the Court of Appeals affirmed the trial court as trunk, to the petitioned search of the the state this court for Appeals 1The state conceded trial court and in the Court of that there was “exigency.” no participated 2One of the officers who in the search testified that the officers “were searching incident to arrest.” contending review, that the search of the trunk to arrest” therein “was a lawful search incident containers Oregon under the Constitution. The state asserted: Constitution, I, “Under Article section of the application is of the search-incident-to-arrest case a textbook rule as forth in State v Caraher.” set petition state its for review as follows: The concluded presents a situation in which a search “This case also rare justified under both the state and the federal constitu- can tion, require- exceptions under warrant but different searches, Krogness Oregon’s In the of car trunk ment. area permissive rule in apparently rule is more than the federal incident to arrest. But the search is nonethe- terms of search exception United the federal automobile less lawful under employment exceptions supra. The of different States same is under different constitutions to achieve the result by Oregon’s highest practice deserving of attention court.” questions allowing review, After this court addressed they incident to counsel. On their face addressed searches to arrest, parties them, to and counsel for both so understood respective judge from their answers. Several months oral after again argument questions court, we addressed in this application 167.247, and effect of ORS but counsel about the might questions decide is hint in those that we this there no exception” under the on of an “automobile case the basis Oregon Constitution. by presented case never
To now decide this
on basis
presented by
appeal
and never
this court
the state on
or review
patently
argument
unfair.
defendant for
is
suppose
majority might
that
answer
that the
applies
has been
that
to automobile searches
rule of law
hovering
independent
of man’s
as a truth
out there somewhere
by
thought
invented,
discovered,
has
rather than
been
something
is,
that existed
could
in Brown. That
court
argument.
Supreme
of the
Court
be affected
not
United States
apparently
sure. In Robbins v.
so
Califor-
2841, L
nia,
69 Ed 2d 744
101 S Ct
arguments presented by
case,
held
court,
counsel
on the
opening
without a search
of closed containers
during
an automobile violated the Fourth
lawful search of
rights
different
defendant. On
Amendment
Fourteenth
*12
counsel,
court,
argument by
year
different
that
less than a
later,
holding
overruled that
of Robbins in United States v.
798, 102
2157,
456 US
containers
than the
United States
Chadwick,
(1977),
97 S Ct
Underlying the federal'decisions on vehicle searches is an asserted “reduced expectation privacy” of one has in his Although may automobile. argued parts this as to of those open auto that are view the most casual passerby, just not true to the locked trunk of the auto. All of us move in our private, autos effects are most and when we sodo we are more apt put them in the trunk than some part other of us,” i.e., the vehicle. A of judges subset “all lawyers, carry autos, often highly papers confidential in our (as if be) and we are careful ought probably we we lock them in the trunk.
“Despite privacy the wealth of languagethat in automobiles is important areas, less society than other most members our undeniably frequently convey
must use automobiles to private papers example, and effects. For of this workload requires judges court often to take their work home. The provides transporting automobile the usual mode drafts of opinions, indicating outcome of sub- notations cases, messages judges. from other To mitted and confidential say expectation privacy papers, no that there is such duty, would release of which would constitute dereliction reality. judges are ignore be to And of course alone regard.” *13 Edwards, (5th 1977). 1331,
United States v. 554 F2d Cir 1338 Brown in majority am sure much the just not how very in the containers this case mean to cover. Would in this case have been constitu- searched without warrant in they were not tionally impervious to warrantless search if automobile, had cause to probable even if the officers an contraband and had therefore they believe that contained in the opinions the these cases allow majority seized them? Do containers in an auto police open to and search other closed Do the object the have the of the search? police after found crime that to search for evidence of majority opinions extend is not itself contraband?3 the persuasiveness relies on the of majority in Supreme Court of the United States
reasoning
the
as New
In
construing
the
Constitution.
cases such
Belton,
v.
2860, 69 Ed 2d 768
York
101 S Ct
L
453 US
and,
supra,
(1981),
and United States
that court
to
line
cases,
bright
of this court strive for
majority
these
may
lines
in the field.
guide
police
Bright
officer
helpful.
critic has written:
always be
One
THE
HULK
“CONCLUSION:
INCREDIBLE
THE POLICE ACADEMY
ATTENDS
possible
rules
bright
“It
to
line fourth amendment
is
view
gimmicks.
activist
simply political
doves,
Both activist hawks and
as
hand, may
tempted to
they
upper
be
when
have
of a
play
higher
appropriate
than
resolution
stakes
for
States,
280, 69
(1925),
132, 45
L Ed
the case
3In Carroll v. United
543
267
Brown,
majority
in State v.
Or
“Gazenga good is a officer. He has memorized all 437 Supreme bright Court line rules for search and seizure. For example, Gazenga has made lawful arrest in a car. rip Gazenga apart! Gazenga that car But never touch cause, trunk of car unless there is Gazenga has Belton opinion. read 4 of footnote Gazenga “Now has made a lawful arrest in a house. bright apply Gazenga may Different line rule to a house. compartment glove suspect away, of car far when may living but not search desk drawer room unless suspect right Why? Supreme say Gazenga there. Court so.
just cop.
“Gazenga now has made lawful arrest cabin cruiser. *14 Supreme forgot Oh no! Court give Gazenga bright to line poor rule for cabin Gazenga cruiser! What is to do? course, picture “Of Gazenga’s of Officer lessons at the
police academy overdrawn, depiction following and so is the might taught police academy another lesson that at be the — of 1990 a lesson that would teach most of what an officer to would need know about the fourth amendment in about sixty seconds: gentlemen,
“Ladies and the fourth amendment forbids requires you unreasonable It searches seizures. to have persuasive strong you search, a a reason before make I emphasize your seizure or arrest. invading that reason for privacy someone’s person must be that a reason another likely persuasive, very you find frequently to for will not be your judge passes the final A actions. court on that these ought difficulty actions recognize to the of the situation you, whims, that confronted but it cannot credit hunches more, you or insubstantial expected reasons. What is are to your judge making take reasons to or a before a search you by seizure can. filing whenever You must do this a sworn written statement describes the relevant facts asking judge detail and the issue or to a search arrest you may Of course there be situations which
warrant.
you
persuasive
for
believe that
have a
reason
or
Basically, however,
you
if
judge disagrees.
seizure and a
act
manner,
person’s privacy
respect
a decent
the other
can, your
you
seek a warrant whenever
actions will not
violate the fourth amendment.”
Amendment,
Alschuler, Bright
Line Fever
the Fourth
45 U
(1984).
L
of Pitt
Rev
285-86
article,
I
to be persuasive,
In another
which
find
impracticality
position
takes the
Professor Grano
only justification
for
obtaining a search warrant
should be
Rethinking
Grano,
searches.
“excusing” warrantless
Requirement,
Amendment Warrant
L
Fourth
19 Am Crim Rev
concludes:
page
At
he
in this
for
summary,
approach
“In
articulated
article
warrant branch of fourth amend-
bringing coherence to the
seizures
(1)
propositions:
plain
ment
in two
view
law results
always permissible,
upon probable
with or
cause are
based
searches are never
(2)
per-
warrant;
warrantless
without
seizure,
preserved by a
unless
if the evidence can be
missible
delay
obtain a warrant would
some other reason a
to
life, safety,
legitimate
or
law enforcement
interest.
threaten
law,
proposi-
govern
these
rules that now
Unlike the
analysis seeking
upon
depend
a convoluted
tions do not
Moreover, they
easily
distinguish
indistinguishable.
can
and, perhaps
lawyers,
most
taught
judges,
law students
Finally,
I have tried to
importantly,
officers.
demonstrate,
support
than dis-
propositions
rather
these
amendment warrant
parage
reflected
the fourth
the values
omitted.)
(Footnote
clause.”
persuasive
than
more
reasoning
I
of Professor Grano
find
zigzags
it
States as
Supreme Court of the United
that of the
interpret
Oregon
one
to another.
would
from
decision
change
not have to
that view. I would
reflect
Constitution
time the
the next
Constitution
meaning
espouses
its
about
rule
changes
mind
higher court
*15
the Fourth Amendment.4
concerning
being given
Oregon
path
majority’s
Constitution
have resulted in the
4The
would
v.
by
Supreme
in Robbins
meaning
the
States
the
Court of
United
the decision of
420, 101
2841,
being
California,
L
amended
69 Ed 2d 744
S Ct
by
Oregon,
year,
people
in United States
of
the decision
less than
without vote
798, 102
I am well aware my that brethren are tired of hearing my me express concerning fears judicial the direction deci- sions are taking us. The of all right persons subject to our federal and state of constitutions be free unlawful intrusion by way police of primary and seizure has been a concern of adopting constitutions, those the various as the inclusion therein of provisions similar to the Fourth Amend- I, ment and Article of section the Constitution will attest. Because of the widespread trafficking of illegal drugs and the praiseworthy of people efforts our or prevent punish trafficking, however, making the courts are deci- sions that rights threaten the guaranteed price to all of us. The high. is too I do not want to live in a state where for police, the purpose of any the war on or drugs activity, other criminal may commit by acts forbidden our constitution. police undoubtedly could catch criminals more
easily were it imposed not for the by restrictions our funda daresay mental law. I the task of police many U.S.S.R. and other countries around the world is easier police. than that our of The constitutional restrictions on our (I price pay are the we assuming going say was knowing) we houses, shall be persons, secure our papers and effects against police. unlawful conduct As Brinegar States, Justice Jackson said in dissent v. United 1302, 1313, (1949): 338 US 69 Ct L S 93 Ed 1879 rights] rights amendment are not mere second-class “[Fourth belong in catalog indispensable but of Among freedoms. deprivations rights, in cowing popula- none is so effective tion, crushing spirit putting individual and terror in every heart. Uncontrolled search and seizure is one weapons every arbitrary most effective arsenal * * * government. right against “But the to be secure searches and seizures is protect. one of the most difficult Since the officers are *16 invaders, chief there is no enforcement outside themselves the of court.”5 say I, does not section Constitution
Article houses, persons, shall “be secure in their people that our AND papers, and EXCEPT THEIR AUTOMOBILES effects today’s did, it decisions would THEREIN.” If CONTAINERS is, these decisions are not correct. correct. As opinion. Linde, J., joins dissenting in this Jackson) States United (joined Justice Frankfurter 5The dissent of Justice eloquent Rabinowitz, 56, 68, 70 430,94 too but L Ed 653 more 339 US quoted losing opinion. written quotation It in defendant’s long justify was this eloquence logic appear wasted on those response questions, but the court’s “efficiency.” impatient obstacles to of the constitutional