State v. Caraher

3, reargued September Argued affirmed November and submitted March rehearing petition December denied OREGON, OF STATE Review, Respondent on CARAHER, LOIS MARIE on Petitioner Review. 28360) A20330,

(CA SC P2d Eyerman, Metropolitan Linda K. Defender, Public Port- argued petitioner land, the cause and filed the brief for review. Dickey, Attorney

Christine L. Assistant General, Salem, argued respondent the cause for on review. With her on the Frohnmayer, Attorney brief were Dave General, and Gary, William F. General, Solicitor Salem.

ROBERTS, J. Campbell, only J., concurs in the result and filed an opinion joins. Tanzer, in which J. opinion. Lent, J.,C. dissented and filed an ROBERTS, J.

The issue in this case is whether a search of purse, including opening defendant’s of the coin com- partment purse, of a wallet within that conducted without a warrant, defendant in a placed police after was arrested her, car and the had been taken from is a search an exception to arrest therefore to the warrant requirement of the fourth amendment to the Constitu- U.S. tion and article the Oregon section Constitution.1 Defendant prior and, has no criminal record until here, the events discussed had never been arrested. She came to following report attention aof street altercation in Portland. Police arriving the scene found lying defendant on the a parked hood of car in a semi- called, conscious state. An ambulance was and after defen- revived, police questioned dant was her.2 Asked about her activity area, in the defendant told the officer she was selling point police “bunk.”3 At this determined that there was an arrest warrant out for defendant’s companion; when police attempted him, to handcuff he upset,” “became according police, to and said defendant had cocaine on her person. The then police placed companion defendant’s in a police transport car for jail placed to and defendant in police another car transport for to a detoxification center. On the basis of defendant’s statement that she selling was I, Oregon provides: Article section 9 of the Constitution people right persons, “No law shall violate the in of the to be secure their

houses, effects, papers, seizure; against and unreasonable search and or no cause, oath, upon probable supported by affirmation, warrant shall issue but or searched, particularly describing place person thing and the and to be or to be seized.—” provides: Amendment IV of the United States Constitution right people persons, houses, papers, “The in their to be secure and effects, seizures, violated, against unreasonable shall searches and not be and issue, cause, upon probable supported by no Warrants shall but Oath or affirmation, particularly searched, describing place and to be and the persons things or to be seized.” doing questioning appeared groggy The officer testified defendant still feet, unsteady prudent her he be leave her on and that didn’t feel would to own, appear though her him it the ambulance attendants had advised did not to emergency. be an

3Fake narcotics. companion’s

bunk and her statement pos- defendant cocaine, police sessed had a female officer search defen- dant’s before her and person handcuffing taking her into what one officer termed “protective custody” and another termed a “civil hold.”4 In a pocket jacket defendant wearing paper was the officer found a containing “bindles” officer, powder. white The suspecting substance be cocaine, placed possession defendant under arrest of a person controlled substance. A search of defendant’s weapons. purse uncovered no further contraband or Her taken from her. placed She was handcuffed and in the police back seat of a car which had a barrier between way booking facility, front and back seats. On the to the the police officer who had made the arrest and who held opened defendant’s the front seat of the car purse, within, found a wallet opened compart- coin a piece paper, ment of the wallet found white inside cross-top pill of which was a white and chunks of a similar pill. Subsequent analysis revealed the pills lab were amphetamines. state concedes the search of wallet was not Florance,

conducted for See State v. purposes. identification 169, 189, 527 P2d 1202 The state made no attempt trial the search as a or justify “booking” search, “inventory” put on no evidence of the normal practices part procedure which are at the booking jail defendant was taken. The trial court nevertheless upheld inventory the search as an search.5 The Court of handcuffs, Newman, hold,” complete a “civil with As noted procedure case law. Defendant does not undefined statutes or challenge the lawfulness of of her incident to the “civil hold” or the search the arrest which followed. holding defense the trial court’s made This was the characterization of argument had the us. At trial the court and defense counsel counsel at oral before supports following exchange, which the characterization: * * * they good I search. I think had a “THE COURT: think this was inventory purse.

right jail in in done doesn’t make a “Whether it was done car or whit of difference. They looking opening I think are in her wallet. not like containers. “It’s protection inventory possessions they obligation her and her for have an to own, identify. pill something I hard to As is not that’s so their understand, and a they’re very apparent they tops, and obvious when are cross and you see one. Brown, of State v. on the basis the search Appeals upheld court, (1981).6 this Before P2d arrest. the search was one only that argued state issue here. single That purse, her the search of challenged has

Defendant and state violating as both purse, within the and the wallet unreasonable against prohibitions federal constitutional was that argues Defendant searches or seizures. Le., a “possession purposes, for constitutional an “effect” United control,” that and an arrestee’s immediate within search, deny your good motion. and I will “I think it’s a say right. May just I other I the record that raised All for “COUNSEL: them, argue my suppress, although I don’t grounds I didn’t in and motion by default. want to lose them warrant, course, but I think it was seized without a “THE COURT: Of lady they probable considering her to search this that first of all physical had cause they companion. had her I think condition and the statements of therefore, her, they, they powder, probable search and so when found cause to they probable cause to arrest her. had substance, out, gave the but it “As it turned it was not a controlled that, selling appearance I that she was bunk or and also heard the statement my they expression. appropriate. In had an her The arrest is view whatever they custody, right obligation property and I think had a to take her into search, they inventory contraband and the course of that found make an charge. which was the basis of this they appropriate warrant. I think had I think it was to act without a “So agree probable without her her. I think I the search was cause to arrest consent, necessary thing point time. at this I think consent was a but don’t I don’t think it was overintrusive. arrest, indicated, probable I I’ve “I there cause for the as think — beyond scope a lawful arrest. So think it was not incident to that was raised, okay. any I’ve I think the search was of the reasons you’re saying searching would have been So the wallet “COUNSEL: inventory appropriate as an search? either incident to the lawful arrest or inventory they right holding I had a to make an “THE COURT: am that, wallet, wallet, they they bag and when did found her her right search of that, They probable They drug. had cause for had a to arrest her. everything then else followed. right.” All “COUNSEL: Appeals opinion approving the as characterized the Court of Defense counsel Brown, supra, a search involved arrest. State

search incident during to defendant’s justified arrest.” booking process an incident to a lawful which was “as Florance, supra, authority Brown cited as 291 Or at 655. “* * * person if made arrested as would be reasonable such any place may him at time be made at that time and the officer jail.” transporting 270 Or at 191-92. the arrested the course of

746 Chadwick, 1, 2476, v. States 433 US 97 S Ct 53 LEd 2d 538 (1977); (1979); Groda, 321, State v. 285 Or P2d 591 1354 (1979); Downes, 369, State v. 285 Or 591 P2d 1352 (1973) Keller, 622, State v. 265 Or P2d 510 568 are the applicable invalidating law the search. supra, Keller, v. this court addressed for subject “inventory

the first time the anof search” of an stopped automobile. The defendant driving in Keller was while suspicion driving her automobile on while sus- pended subsequently and was arrested for that offense. passenger, intoxicated, Defendant and her who was were placed police proceeded in the vehicle. Police then inventory towing pursuant the contents of the car before requirements among things, note, to administrative other weapons present valuables and in the car. 624. inventory During police fishing a found tackle box on the floor of the back seat. The box was tied closed with a Removing opening box, wire. the wire and found narcotics. We held that because the contents of the plain they tackle box were not in view could not be seized part inventory as of an search incident to a arrest. lawful We said they searching “The officers testified were not for evi-

dence, only inventorying but were the automobile’s con- exigent present they tents. With no circumstances could box,’ easily fishing along have inventoried ‘one tackle with plain they probable other items in view. If had cause to * * * being they believe a crime was committed could have sought magistrate.” a search warrant from a disinterested Or 265 at 625-26. Supreme

Keller was decided before the U.S. Court had ruled directly inventory on an search of an automobile without a plain search warrant where the evidence is not in Or at 625. view. 265 Relying on cases from other states we held the search of the closed box was unreasonable under both the U.S. and Constitutions. subsequently Supreme cited Keller and the

We U.S. supra, ordering Chadwick, in Court case of United States v. suppression drugs bag flight bag found in a inside contained in a closed trunk in a vehicle had been which police custody. supra, Downes, taken into State v. 285 Or at justified 371-72. We held that the search could not be as search, Keller, under “automobile per nor inventory requirement exception” to the fourth amendment warrant Ct Maroney, 90 S formulated Chambers US States, Carroll LEd 2d v. United (1925). 45 S Ct LEd 543 “immedi is an item argues that The state may be of an arrestee” ately with the associated under the booking arrest or at the time of validly searched ance, adopted Flor rule State v. announced Court U.S. the federal standard enunciated Robinson, 414 US 94 S Ct United States LEd 2d 427 recent argument the urged

The state at oral 574, Belton, 447, case York v. NY2d 429 NYS2d of New 50 (1980) 2860, 69 407 420 rev’d 453 US 101 S Ct NE2d (1981) 49, 447 grounds LEd NY2d 2d 768 on other 55 aff’d (1982), the 432 NE2d new federal fourth NYS2d 745 arrest, and amendment standard searches incident to for of in this justifies opening the the case. Counsel “may may the the this case not be state insisted facts of or Robinson, Belton, are In definitely are and not Chadwick.” Belton, Supreme held have police the U.S. Court that once auto- occupant made a lawful custodial of an of an arrest of that they may, contemporaneous mobile as a arrest, compartment the the auto- passenger search of compart- mobile, open any found within the containers pains decide apparently ment. the court took not to While exception” analysis formu- the case under the “automobile Maroney, supra, lated Chambers v. and Carroll v. United in States, Belton, US n. supra, see at 462 limits concurring, opinion J. 453 US the Rehnquist, permissible scope of search incident holding to of an occupant arrested is the being arrest when automobile: “* * straightforward emerged rule has from *[N]o — the question involved here

litigated question respecting cases proper interior of scope of a search of the its arrest of incident to a lawful custodial automobile occupants.” at 459. “* * of ‘the have no workable definition found *[C]ourts arrestee’ when control

area within immediate arguably area includes the interior of an automobile

and the arrestee is its occupant.” recent 453 US at 460. today

“Our holding does no more than determine the meaning principles of Chimel’s particular prob- this content, lematic way It [sic] no alters the fundamental principles established in the Chimel regarding case scope basic of searches incident to lawful custodial arrests.” 453 US at n. 3.

Contrary position, reading state’s in our all that apply Belton does is the “area of immediate test control” California, first enunciated Chimel v. 395 US 89 S Ct 23 LEd 2d 685 an arrest an occupant us, of an automobile. In the case before defendant was not present pedestrian. place in an automobile but was a ment of defendant and her within a car police effects presumably suddenly does not within an bring everything exception.” “auto We do not believe that Belton allows open all containers within the immediate control arrestee, any only passenger but those within the com Monclavo-Cruz, partment of a car. See States v. United (9th 1981) similarly limiting F 2d 1285 1287-88 Cir Belton. Brown, (DC 1982), But see United States v. 671 F2d 585 Cir applying Belton to street arrest and United States v. Flem (7th 1982) ing, 677 F2d applying Cir Belton to street following private arrest in a home. Florance, I, we interpret declined to article differently section Constitution than the interpreted United States Court had the federal subsequent fourth amendment. cases the court has reaffirmed that it independent responsibility has to inter I, 9, pret article section and has made the decision to follow precedents fourth amendment on a case case basis. See Holt, 343, 1, v. (1981); State 291 Or 345 n. 630 P2d 854 Kennedy, 493, 497, (1981); State v. Or 290 624 P2d 99 State 349, 353-54, v. Bishop, (1980); 288 Or 605 P2d 642 State v. Nettles, 131, 2, (1979); 287 Or 135 n. 597 P2d 1243 State v. Heintz, 239, 4, (1979); 286 Or 251 594 P2d n. 385 State v. Greene, 337, 339, (1979).7 285 Or 591 P2d 1362 7 holding basing We have often announced without it on one constitutional other, both, Newton, provision 788, 801, referring or the after State v. 291 Or (1981); Mills, 441, 444, (1981); 636 P2d 393 Roberts v. 290 Or 622 P2d 1094 State

749 I, make article Florance, however, does not State v. Oregon as the the same Constitution 9 of the section purposes. It all times and for fourth amendment federal gives Oregon very law this court well do so. When not could an opinion, corresponding interpretation our to a federal Oregon even when federal doctrine law remains decision later changes. supra Florance, and State v. v. said in State We (1977) uniformity

Flores, 273, 570 P2d 965 280 Or important consideration and federal law is between state adopt imposing deciding the same a rule whether Oregon analysis 1, Constitution article section 9 States the fourth amendment to United as that used for Florance, the law of search we noted that Constitution. In simplification,” “badly 1974, in need of was, in and seizure and concluded that adopting a different rule for searches only things would confuse under the Constitution uniformity again a further. 270 Or at 183. This need Flores, v. at 281-82. See also State factor in see 280 Or (1974) (Denecke, J., Hirsch, 613, 627, P2d 649 267 Or 518 uniformity years dissenting). Eight with U.S. brought simplification not, however, has

Court decisions point is in this state. This the law of search seizure concurring opinion in this case. The illustrated applies that a Robinson because resolves concurrence immediately purse closely property associ is more akin to just as than not. This court could ated with readily v. New this case under Chadwick and State decide (1981) man, 216, cert denied 457 US 292 Or 637 P2d 143 (1982)8 2915, 1111, 73 LEd 2d 1321 102 S Ct 163, Carlile, 161, 383, 390, (1981); Quinn, v. 290 Or P2d 630 State v. 290 Or 623 581, (1979). (1980); Matsen/Wilson, v. 287 Or 601 P2d 784 P2d State 619 1280 only grounds, or on the basis of decided on fourth amendment Sometimes a case is Brown, Linde, J., concurring, analysis. supra, 291 see fourth amendment State Jordan, 853-54; Tourtillott, 656; 288 Or at State v. Or at LEd 2d 56 101 S Ct cert denied 449 US 605 P2d 646 Fondren, 361, 367, (1980); cert denied Or 591 P2d 1374 State v. S Ct 62 LEd 2d posses purse its owner’s removed from that a search of a Newman decided situation, person. Though involving a noncriminal not a search of the sion is been opinion case it would have in the of a criminal that “even context indicates without questionable searched the defendant’s whether the could have n 8. a warrant.” 292 Or

750 by finding purses pockets” that are not mere “substitute possessions separate but are rather from the may may or not be within arrestee’s immediate control. Either determination is defensible but neither serves surrounding lessen the confusion search and law. seizure analysis The resolution this case under the federal provides guidance no next. How will later we diaper bags, backpacks, gym bags, characterize briefcases, shopping bags, types lunch buckets and all the other portable repositories people carry posses- in which their personnel sions? Neither this could our nor court law enforcement goal simplification is, divine answer. by relying view, I, better served on article 9 of section independent our own Constitution to formulate rule an past by hypothesizing consistent with our decisions than Supreme how the U.S. Court would consider this case light past deciding of its decisions9 then whether adopt that rule. recurring

There have been reminders from mem bers free, Florance, of this court that we remain even after interpret provision regarding our own constitutional impose higher search and seizure and to standards searches and seizures our under own constitution than are required by part the federal constitution. This is of a state duty independent analysis. court’s v. constitutional State (Linde, supra, concurring); Brown, 291 Or at 659-61 J. State v. Tourtillott, 853-854, 289 Or 845, P2d 618 423 cert (1981); 972, 2051, denied 451 US 101 S Ct 68 LEd 2d 352 supra, (Linde, specially Greene, State v. Or at 285 345-60 J. (Lent, concurring); supra, Groda, v. State 285 Or at 335 J. specially concurring); supra, Flores, v. State 270 Or (Linde, dissenting). Cooper 282-89 J. See v. California, 386 788, US 87 Ct 17 2d is S LEd 730 That a state impose greater free as a matter of own its law to police activity restrictions on than those the United necessary upon States constitutional Court to be holds federal beyond question. Pruneyard

standards Robinson, Belton, Specifically recently all Chadwick most Ross, _ US _, (1982). United United States v. 102 S Ct 72 LEd 2d 572 Ross, analysis upon exception” justify States v. relies “automobile following the and seizure of containers within an automobile trunk arrest driver. Robins, 74, 81, 100 Ct Center S Shopping US Hass, 714, 719, 95 Oregon v. (1980); S 2d 741 LEd Evans, State v. (1975); 2d 43 LEd Ct Flores, Brennan, supra. (1971); P2d 1300 Rights, Protection Individual Constitutions and the State (1977). Indeed, “indepen 489 the states are Harv L Rev 90 cit rights of their dently safeguarding responsible 551, Brisendine, 13 528, Cal v. 119 People Cal 3d izens.” (1975). concurring to the 315, Contrary P2d 1099 531 Rptr (1982), 761, increasing P2d 942 293 Or 653 opinion, analysis of the relying are on an of state courts number of their constitutions provisions and seizure own beyond those mandated protection constitutional expand amendment, directly avoiding applicable the fourth often e.g., See State v. Supreme precedent. Court United States Daniel, Hunt, State v. 338, 952, (1982); A2d 589 91 NJ 450 Glass, v. (Alaska (Alaska State 1979); P2d 872 583 P2d 408 State, v. (1977) Zehrung 1978); 189 573 569 P2d modified v. Robin (Alaska 1978) United States P2d (rejecting 858 Brisendine, v. Court People supra; Superior son v. Burrows ); County, San 166, 238, Bernardino Rptr 118 Cal 13 Cal 3d Clyne, 412, People v. (1974); Colo P2d 529 P2d 590 189 541 State, Nealy v. (1975) Robinson); (rejecting 400 So2d 95 71 Kaluna, v. 55 (Fla. 1981); 361, H People App. 520 Dist. Ct. Wagner v. Common (1974) Robinson); (rejecting P2d 51 wealth, Beavers, v. People 1979); 393 (Ky 352 581 SW2d 878, 227 NW2d 511 cert denied 423 US 554, S Ct 96 Mich Johnson, v. O’Connor 152, (1975); 2d 287 46 LEd 111 v. 1979) Zurcher (Minn (rejecting 400 NW2d Stanford 547, (1978)); Daily, 1970, 525 98 S Ct 56 LEd 2d 436 US Brackman, 105, (1978); State v. 178 P2d 1216 Mont 582 Osborne, State v. (1979); v. 427, A2d 493 State 119 NH 402 Benoit, Johnson, (1975); State v. 349, 417 68 346 A2d 66 NJ (SD 673, v. (RI 1980); Opperman, 247 NW2d A2d 895 1976) 3092, 49 rev’d 428 US 364, LEd 2d 1000 96 S Ct Resources, State, Bank v. (1976); 567 Merchants Wildlife State, v. 1978); 307 Gill (Tenn 625 SW2d App 476 Ct SW2d 1981). only courts made (Tex have state App Cr Not instance; sometimes independent decisions in the first United States they to follow the have declined reversed court analysis on remand after Court’s analysis. This amendment state court’s fourth Belton, South Dakota happened remand v. Other Opperman, supra. opinions, state our post like own opinions, expansion Florance have noted that such an permissible, while declining given in a case to take such a Texeira, 138, step. (1967); State v. 50 H 433 P2d 593 Ortiz, 349, v. Commonwealth 376 Mass 380 NE2d 669 (1978); Mimms, 546, Commonwealth v. 471 Pa 370 A2d 106, 330, (1977) 1157 rev’d 434 2d 331 S Ct LEd 553, 559-62, grounds rev’d on other ill Pa 385 A2d (1978) (Roberts, State, 336-38 J. concurring); Thompson (Abraham 134, 149, 83 Wis2d 265 NW2d son, concurring).10 J.

This reliance upon court’s our own constitutional provision many years began early As we ago. began as 1901 body to build our own state of law governing searches seizures, McDaniel, State v. Or 65 P 520 Thirty-six years before the federal fourth amendment was made applicable Ohio, to the states in Mapp 367 US (1961), 81 S 2d adopted Ct LEd we our own exclusionary McDaniel, rule in State v. 231 P 965, P rehearing, 237 373 rev’d on 115 Or 237 P 373 (1925). Florance, Oregon early decisions before as as State Laundy, (1922), 204 P 206 P 290 established that a under law reasonable search of permissible arrest, the is to a valid a rule not adopted the United States Court until States, Agnello 20, 30, United 269 Ct 46 S 70 LEd (1925). 145 In the establishing Oregon search-incident-to- rule, opinions arrest this relied upon court from courts in other Similarly, states. See Or at the present 103 496-97. case we have reviewed from decisions other states and find pertinent them here. Alaska,

In Zehrung v. stopped defendant was by a trooper employer’s state while his truck driving which was emitting excessive smoke. While investigating, trooper discovered there were two bench warrants out for 10 general For a discussion of what been new has termed “the federalism” Linde, emphasis constitutions, arising from state court’s see on their own state Things Rediscovering Rights, First First: Bill the State’s U of Baltimore L Wilkes, (1980), therein, particularly n. Rev 379 and the articles cited at 396 Burger The New Federalism in Criminal Procedure: State Court Evasion Court, Wilkes, Ky. (1974); More on the New Federalism in L.J. 437-43 Procedure, Wilkes, (1975); Ky. Criminal New Federalism L.J. Revisited, Ky. Criminal Procedure L.J. appear a defendant, on misde- one because he had failed pay fine. he a $25 one had failed to meanor and because personal jail his arrested and taken to where Defendant was going belongings an was were inventoried. While officer paper through found a small white defendant’s wallet he packet containing not he noted did two credit cards which They given to the were have defendant’s name them. arresting on bail. The Defendant was then released officer. arresting had the credit cards been learned that officer robbery alleged rape during defen- for which taken challenged the search dant was then arrested. Defendant any preincarceration ground that on the seizure inventory improper he had made his effects was because reasoned that he was booked. The court bail before inventory justification preincarceration if did not exist for a is not to be incarcerated and held the search arrestee reject- impermissible be under the Alaska Constitution. justified ing argument a as the state’s McCoy v. restated from search incident to arrest court (Alaska 1971) following require- State, 491 P2d 127 of a search incident to arrest. ments warrantless legitimate inter- protection “Adequate for the arrestee’s however, following privacy, provided will be ests per- incidental searches on warrantless restrictions (1) for probable cause The arrest must be son: valid — (2) The is unconstitutional. arrest must exist or the search contemporaneous with the arrest roughly search must be * * search; (3) pretext a for *. The arrest must not be * * *. not valid a sham arrest search incident crime, evidence of Finally, be the arrest must omitted.) (Footnote person.” be on a concealed could at 196. P2d requirement argument his on the fourth

Defendant based court to for a valid incidental search. The state asked the light requirement United States abandon the fourth by ques- responded posing supra. Robinson, The court rule the Robinson tion as determination of whether body any permitting full custodial searches provision arrest, violates the Alaska constitutional § seizures, art 1 14. As court search and said, Alaska Const way, presented “Put another the issue is fourth whether the McCoy arrest, i.e., limitation on searches incident that crime, the arrest must for a be evidence of which could be person, required by concealed on a is the Alaska Constitu- * * *” tion. P2d at 197. require- The court concluded could abandon the fourth approach ment or follow the used some other state specifically relying latter, courts. did It on State v. supra, People supra. Kaluna, Brisendine, The court requires governmental held “the Alaska Constitition that personal privacy into intrusions limited in of Alaska citizens be scope degree necessary particu- that under the lar circumstances.” 569 P2d at 199. Kaluna,

In State v. the Hawaii packet Court invalidated the search of a small tissue defendant took her from brassiere and handed to a matron during strip being a station house search after arrested for attempted robbery. packet Seconal, contained a bar- subsequently charged biturate and defendant was with possession charged substance; unlawful she was never robbery. attempted though recognized with Even the court that under Robinson the full search incident to custodial and, therefore, arrest was reasonable federal defendant’s rights violated, constitutional had not been the search was held nevertheless unreasonable under Hawaii Constitu- tion. refusing to decide Kaluna on the basis of Robin

son the Hawaii cases, court cites two State v. (1968) O’Neal, Or 444 P2d 951 and State v. Krogness, 135, 144, P2d cert denied (1964), quoting 377 US 84 S 2d Ct LEd Krogness proposition from for the that before Robinson general reasonably rule, “[a]s be must related prompts to the offense which the arrest.” The Kaluna court concluded view, right

“In our free to be of ‘unreasonable’ searches I, and seizures under article section 5 Hawaii Constitution enforceable a rule of reason which requires governmental personal intrusions into privacy greater intensity of citizens of this State be no * * *” absolutely necessary than under the circumstances. (Footnote omitted.) 520 P2d at 58. its should further added that decision

The court legitimate hamper police their the in the exercise of not authority because a must of search and seizure without warrant “each case facts, proffered justification that each

turn on its own for a warrantless inherent the nature of the offense makes necessity search must meet the test of Basically, concept in the where of reasonableness. to assume reasonable may the that located on that evidence of offense be at belongings possession in his arrestee’s or the arrest, may police time the then the search those the * ** omitted.) (Footnote a areas without warrant. sum, a valid “In we hold a search incident to that unique give right rise a custodial arrest does not search; instead, surrounding the arrest the circumstances *” * * generate authority a the to search without warrant. P2d at 60. People supra, Brisendine, the California Supreme opaque plastic Court invalidated the search of an envelopes knapsack bottle and found inside an arrestee’s marijuana drugs, which contained tablets restricted holding justified by the that intrusion could not be purpose inception. limited which validated the search in its campers and other defendant officers arrested

The an Because it was violation. for a fire ordinance in forest prohibited camping officers and because the area where it was vehicle citation book in had left their necessary campers of the out the officers escort traversing a considerable This entailed forest area. isolated carrying nighttime primitive in the over terrain distance court the circumstances arrestees. Under effects a search to conduct the officers was reasonable for said it for justify weapons weapons did not search for but the envelopes. bottle and search of the saying, rejected specifically Robinson court * “* * ‘an implication that accept Robinson we cannot no retains subjected to custodial arrest lawfully individual privacy of in the interest Amendment Fourth significant 494.)” S p. Cal (414 at p. at 94 Ct person.’ his P2d at 1111. Rptr at at Cal 3d adopted court in of the Hawaii the view The court then holding “governmental into intrusions Kaluna, that personal privacy citizens of this State be no [must] greater in intensity absolutely than necessary under circumstances.” 13 Cal 3d at Rptr 119 Cal at P2d at Kaluna, from quoting P2d 58-59.11

In basing I, its decision on article section 13 of the Constitution, California pointed the court out United States recognized Court has state provide independent constitutions adequate ground for decisions thus making the state' courts the ultimate law,12 arbiters of state and that although their decisions in the search and seizure corresponded area have often to law, federal there had any question “never been similarity was a matter of choice and not compulsion.” 119 Cal Rptr 328. This court chose in Florance to follow the Robinson, federal law of adopted and thus the federal protection constitutional minimum standard for the pri of vacy in cases of searches incident to arrests. We do not now choose to continue to do so. We are to reluctant embark upon task of of cataloguing personal property items required by the manner adherence to federal cases. We find that the focus on the property character of the searched has led to results which frequently seem too turn upon to fortuitous circumstances surrounding one how chooses to transport personal and has belongings resulted in failure of a more straightforward assessment of pro those individual against government tections constitutions, intrusion which federal, both preserve. state seek to is It our belief that the citizens Oregon analysis of are to an entitled protections Oregon afforded indepen Constitution dent of the United States Constitution.13 One of own, People Superior The cited court also an earlier case of its Court of Angeles County, Rptr Los 7 Cal 3d 101 Cal 496 P2d 1205 in which typically it had held if an is arrestee cited for an offense which entails neither crime, instrumentalities nor fruits of no search is allowable unless there are particular present facts which would lead the officer to believe the arrestee is pat-down, however, weapons, permissible, A armed. search or limited for if the custody. arrestee is taken into Commission, 487, 491-502, Jankovich Indiana Toll Road S 379 US 85 Ct 2d 13 LEd revoluntionary This is not a but idea one that is founded the most principles history fundamental federalism and of state constitutions. Oregon includes a protections derived from the Constitution give recognition that a valid custodial arrest does not alone unique right rise to a search. Such a warrantless justified by surrounding must be the circumstances arrest. Oregon Constitu- deciding

In this case under decided before Robinson tion we look cases permissible parameters which established Florance O’Neal, supra, arrests. In State v. searches had driving car he was stopped defendant was because the for that arresting license After defendant plate. no rear operating giving violation and after him citations operating a license and for operator’s vehicle without defendant’s expired plate, with an front license vehicle marijuana cigarette searched and a half-smoked wallet was illegal possession with charged was found. He was then narcotics. minority opinion of Justice opinion quotes Rabinowitz, 56, 70 339 US S

Frankfurter in United States v. (1950): Ct 94 LEd 653

“ * * plain English, right to search incident merely very exceptions narrow to the arrest is one of those had inherited from ‘guaranties and immunities which we * * “* accepted provisions long in state constitutions is It a fiction too textually Rights their federal Bill were intended to mirror identical to the of Rights history counterpart. Bill was based is otherwise: the of The lesson of constitutions, upon corresponding provisions rather than the first state the of Revolutionary concept ‘By period, of a Bill of the the reverse. the end of the system. fully developed Eleven of the 13 Rights in the American had been well) political (and fill in the Constitutions to as had enacted states Vermont * * * authority. Eight the Revolu- gap of the of British caused overthrow prefaced by Rights, tionary while four contained Bills of Constitutions were body rights many important the of guarantees in individual of of the most provisions Revolutionary all were in constitutional Included these their texts. By Rights. protected time the rights in Bill that were to be the federal of of rights then, inventory (1783) Treaty of individual the American of Paris virtually completed in different state Constitutions included had been * * * (1 Rights organic separate texts themselves.’ of or the whether Schwartz, Bills 383; History (1971) p. Documentary Rights: see A The Bill of (Boston, id., 1204.) Rights p. particular, the Colonists generally of right against 1772) searches and unreasonable first time ‘the for the declared 206), (1 199, pp. ripen at id. the Fourth Amendment’ that was to into seizures eight every protection state constitutions one of the was embodied and that adopted prior (1 id., pp. separate rights at bill of a to 1789 which contained Brisendine, supra, omitted.) 287, 323, 342, 377). (Footnote 278, 282, Rptr 531 P2d at 1113. at Cal 3d at Cal ancestors, English

our and which had from time imme- subject well-recognized exceptions morial been certain to * * * arising from the of necessities the case.’ “ *‘** however, roots, necessity. Its basic lie in What is Why person necessity? permit- of is search the arrested first, protect arresting ted? For two reasons: in order to potential deprive prisoner officer escape, and to means of * * * and, secondly, to avoid destruction of evidence * * *’ person. the arrested 399 US 71-72.” 251 at Or 165. Chinn,

This court then cited State v. 373 P2d upheld protect where search was to Krogness, officer14 and State v. supra, in which a search was justified prevent to destruction Relying evidence. these cases the court concluded that the search of defen- reasonably dant’s wallet could not relate to the traffic offenses defendant was arrested or cited and held probable that “there must be cause believe that some crime, offense, committed, other than the traffic has been and the search must be relevant to that other crime.”

The Chinn court discussed the reasonableness time, the search arrest as space intensity proper and concluded that test of reasonable search “[t]he ** * upon is based the entire factual situation.” 231 Or at 273. The court then asked: “Was the search close both space Furthermore, time the arrest? was the inten- sity of the search commensurate both with the crime and Finally, what known of the criminal? there the causal question of between relationship the arrest and the search.” Id.

Krogness approved the the car trunk of a who had been arrested for a minor traffic violation on the basis of a finding by the trial court that the officer probable had cause to game believe that a violation had said, been committed. The rule, court a general “[a]s reasonably search must be related to the offense which the arrest” prompts 238 Or at and concluded that compartments trunk and other of the automobile could not 14 The Chinn decision is based article the section of Constitu they tion but discussed federal cases decided under the fourth amendment because were “instructive.” 231 Or at 266. traffic violation the on the basis of searched have been plain was in sight which telescopic awith gun the alone but officer, a give to seat sufficient was back view there had to believe warden, cause probable game former justified.15 thus the search was a violation game been O’Neal, Chinn, have cases, and- Krogness These to arrest for justification expanded destruction safety and officer’s beyond considerations when it is relevant permit a search They of evidence. as long so arrested and being is

crime which defendant for v. also State all the facts. See light it is reasonable in (1968); Elk, 620-21, 439 P2d Or (1969). Thus before Florance 456 P2d 67 Cloman, to arrest and seizures incident permitting searches rule well estab- to the crime was search was related where the present applicable That Oregon. lished in rule case. were, fact,

There separate two searches here. One, challenged, place not took when the female officer searched defendant’s person paper and found “bindles” containing a powder white pocket jacket; her second, the search of the purse, occurred after defendant was handcuffed and was in the car police being transported to the police station. The search not protection for the purpose nor for the of preventing the destruc- tion of evidence since defendant did not have access to the purse. question is whether it was relevant the crime for which the defendant was arrested and whether it was reasonable under facts this case.

Because the arrest was possession of a con trolled substance it was reasonable to believe that defen dant carry would purse and, contraband in her although, already officers possessed some they evidence were not prevented from searching further. Accordingly, we hold the nature of i.e., the crime, possession, and the circum here, stances involved defendant’s admission that she was selling “bunk” and her companion’s statement that she was carrying cocaine, justify the search as an incident Krogness Gladden, United. States ex rel (DC Supp 1965) 242 F Or granted Krogness’s petition corpus for habeas illegal. and held that the search was in

arrest. We find addition because the search that space in and close time to the arrest the meets standard Chinn, supra. of reasonableness in enunciated Affirmed.

CAMPBELL, J., in result. concurring majority. I the only concur in the result reached as majority opinion in this case will be remembered the Robinson, in we v. case shot down United States departed and on 94 S Ct 38 LEd 2d 427 lonely journey against in of moon and the the dark the quagmire into the the of “search and seizure” wind of law only a compass. with “reasonableness” as in

This court the rule in 1974 the adopted Robinson Florance, 1202. The of State v. 527 P2d case over since membership completely of this has turned court — the Florance case. present judges none of the sat on when we should take Maybe the time is near at hand at not will follow decisions of another look whether or we questions “on Supreme Court the United States the of and the affecting the Constitution the United States Constitution, provisions the of that rights citizens under provisions well under” the almost identical as as Florance, Or supra, 270 State v. Oregon Constitution. 183. be advised to

It seem that we would well would question squarely has been case in which that wait case. In the argued. This is not that presented, briefed Robinson, should follow United States meantime we decisions Supreme the United States Court supra, and Florance, it for the reasons set out which follow one of which is: * “* * ]\j0t further adopting rule would add of Robinson rule’ and ‘Oregon then be an in that there would confusion frequently officers rule.’ and state law a ‘federal Federal whether many do not know and in instances together work prosecution or a state will result a federal or their efforts cause rules would two different both. In these instances (270 184). Or confusion.” only adopt the Robinson is state not (1978) (a treatise LaFave, and Seizure 5.2 Search

rule. § Amendment) page 264-265: states at Fourth significant impact. have had a “Robinson Gustafson upholding They very frequently cited lower courts are noteworthy, full arrest. Most search incident custodial however, which had the fact that some of state courts authority previously taken a narrower view of the to search accepted the Robinson- arrest have position, ground their either on the earlier Gustafson interpretation requirements Fourth Amend- of the ment has now been established as erroneous or on comparable ground interpretation their state earlier provisions brought be into line constitutional should with interpretation given Court has Only rejected rarely Fourth has a court Amendment. state state Robinson and construed a constitu- Gustafson (Footnotes omitted.) provision narrowly.”1 tional more adopted This court has also the rule of United Chadwick, 2476, 1, States v. 433 US 97 S Ct 53 LEd 2d 538 (1977). Groda, State v. See 591 P2d 1354 supra, Robinson,

In this case under United States v. purse the state contends that the search of the was a search person of the incident to arrest and that no additional justification required beyond probable was the cause to hand, arrest. theOn other the defendant contends under Chadwick, United States v. the a was immediately person closed container not associated with her and that the officers had reduced it their to exclusive longer any danger Therefore, control. because there was no purse, that she would obtain access to the search was required. not an incident to arrest and a warrant The was parties’ opposing require contentions re-examination of Robinson and Chadwick cases. an Robinson officer of the District of Columbia driving operator’s arrested the defendant an without

permit. emerged When defendant from the vehicle the “crumpled up officer cigarette searched him and found quoted published It is true that statement but the 1982 pocket part any change. text does not indicate Florida, The case referred to is 414 US S Ct Gustafson Gustafson day 38 LEd 2d Robinson, decided the same as United States v. supra. pocket wearing. in the of the coat he was package” breast capsules and found 14 opened package The officer The powder proved to be heroin. United States white say- Court reinstated the defendant’s conviction ing:

«** * authority person The to search the incident to a arrest, upon while based the need to disarm lawful custodial evidence, depend on what a court and to discover does not may probability particular in a arrest later decide was the weapons or evidence would fact be found situation person suspect. A of a upon the custodial arrest probable suspect based on cause is a reasonable intrusion lawful, Amendment; being under the Fourth that intrusion requires to the arrest no additional a search arrest which justification. It is the fact of the lawful search, authority that in the establishes the and we hold lawful a full search of the case of a custodial arrest only requirement exception to the warrant is not Amendment, under but is also a ‘reasonable’ search Fourth that Amendment.” 38 LEd US at 94 S Ct at 440-441. 2d Boston, acting agents

In Chadwick the federal Chadwick, a railroad watched tip Diego, from San pound a 200 attendant, and a third man load station automobile. While the truck of Chadwick’s footlocker into the car engine open was still and before the trunk The footlocker agents arrested Chadwick. was started where one and one-half building federal was moved to the marijuana large amounts opened later it was hours suppress. filed a motion found. Chadwick were an incident search as justify tried to government affirmed the United States Court of arrest. and said: the motion allowing the order “* * * However, luggage or other searches of warrantless justified arrest cannot be the time of an property seized at remote if the ‘search is that arrest either as incident to States, arrest,’ United Preston v. place time or from exigency Ct or no 2d 84 S US at LEd luggage have reduced enforcement officers exists. Once law immediately with associated not personal property other or control, and their exclusive person the arrestee to gain might any danger the arrestee longer there is no destroy weapon evi or property to seize a access to longer an incident dence, property is no of that a search omitted.) added; (Emphasis the arrest.” footnote 97 S Ct at L53 Ed 2d at 550-551. Brown, In 643 P2d 212 by we found that Chadwick using phrase “personal property not immediately associated with the person of the arrestee” had distinguished from Robinson. other words, that Chadwick exempted had from the application its ruling personal property discovered as a result of the search of a person, “wallets, such cigarette boxes, as the like.” 291 Or at 653. ‘wallets,

The above quoted phrase cigarette boxes, and the like used in State v. Brown was taken from 2 LaFave, Search Seizure, supra at 347 where the §5.5 full text is: “* * * A search person’ is deemed to be ‘of a if it involves exploration

an further cigarette into an clothing, individual’s including a containers, wallets, search within small such as like, boxes and the which are found in or about '* * clothing. such *.” Brown was an easy case in that cigarette box which the defendant surrendered to the jailer came from one of his pockets and clearly therfore fell within the classification a search of the person awas to arrest under Robinson and not a search of a closed container prohibited under Chadwick.

This case is more purse difficult because the car- by ried quickly defendant does not fit our Brown- LaFave definition of “search of a person.” handbag A or a purse carried necessarily not a small con- tainer such as a wallet cigarette or box found However, clothing. under some handbag circumstances a or purse might qualify under the language looser of the defini- tion and abe “like” which is clothing.” found about “such

Thus, we are required to move from Robinson to Chadwick and determine if the “lug- defendant’s gage personal or other property immediately not associated with the person of the arrestee” and therefore a closed container. We do not have a description of the defendant’s purse. only We know it was carried the defendant in her hand at the time of arrest and that it contained a possession of charged is with

wallet. The defendant found within the wallet. drugs to consider the first cases one of the

Apparently, in Chadwick was decision Supreme Court’s United States 1977).2 In (7th F2d Cir Berry, States v. 56'0 United Berry and Stephen suspected FBI Berry agents case several them to and followed bank robbers being Robert Wilson of After an hour Park, in Illinois. apartment an house Schiller and building left Berry and Wilson and 15 minutes car while Berry entered one parked to two cars. walked an and removed the trunk of the other opened Wilson Berry’s car both walked toward attache case. As Wilson case was The attache men were arrested and handcuffed. Approx placed ground. on the taken from Wilson opened was the case imately minutes after the arrest eight defendants was found. The and contraband by agent Appeals page suppress. The Court filed a motion to 864 held: as purse might be characterized

“Finally, unlike a person the arrestee’ ‘immediately with the associated times, person at all it carried with the because luggage in that Wilson was was like attache case here more building, but rather carrying it when he left not immediately before his trunk removed it from an auto police in the attache case The warrantless search of arrest. justified as a search of Wilson’s custody cannot be thus person.”3 Berry August 1977. was decided June 1977 and Chadwick was decided Appeals by “purse” is dicta Circuit Court of to the the Seventh The reference LaFave, on the § Seizure 5.5 at 355 commments in Search and that context.

Berry case as follows: courts, accepted by Berry this will be other “Whether or not the result precisely posed by what is it Chadwick: the critical issue case identifies possessed the Robinson search-incident-to container outside that takes a answer, Berry, possible given extends in is that Robinson arrest rule? One only as a which are and containers such to containers on the person. ‘immediately not articu- But Chadwick does associated’ with noted, distinction; opinion does not the ‘Court’s as the dissenters late this person’s clothing, not the explain why but carried in the arrested a wallet expectations subject present to “reduced in the case is footlocker ” however, point, the Chadwick privacy the arrest.’ At one caused personal ‘placing a double-locked majority effects inside asserted footlocker, expectation would respondents that the contents manifested an this, might public be contended From examination.’ remain free from Berry, secured but rather between that drawn that the distinction is not produce approach result a different This would unsecured containers. omitted.) (Footnotes Berry many other situations.” App Sabater, In State v. P2d 11 3 Kan 2d (1979), possession rev den defendant was convicted of placed cocaine. When the defendant on a Under arrest charge pocketbook. different officer took her pocketbook officer searched and in a wallet it he found drinking which contained straw. The residue in the straw upheld cocaine. contained The court the search and said: “The custodial arrest of defendant was a her seizure of person. pocketbook The search of her and wallet was Robinson, 218, lawful. United States v. 414 U.S. 94 S.Ct. 467, (1973). 38 L.Ed.2d 427 We do not view defendant’s pocketbook repository personal to have been property of coming within the rule in enunciated Chadwick inor such Schleis, progeny of its as United States v. 582 F.2d 1166 (8th 1978). pocketbook Cir. We hold defendant’s was imme- diately defendant, person associated with the arrestee, pocketbook and the search of the involved no greater expectations in her privacy reduction than that * * caused the arrest itself. 601 P2d at 13-14. (9th Cir) Moreno,

In United 1049, States v. 569 F2d (1978) agents Diego cert den 435 US 972 undercover in San up” buy Raymond “set of ten ounces of heroin from delivery Jody purse At Moreno. site Moreno’s was taken from her and searched. It contained a revolver and money previous drug marked from a transaction. The Ninth Appeals purse Circuit Court of held that the search of the citing was valid as an incident to her arrest Chimel v. 752, California, 395 US 89 S Ct 23 LEd 2d Robinson and Chadwick were not cited. State,

In Sumlin v. 709,587 266 Ark SW2d escape robbery. murder, defendant was convicted of A robbery knife and the victim’s billfold were found in the purse purse defendant’s when she was arrested. The was jail. then held and inventoried at The Arkansas Supreme Court “[a] held that search of an individual’s personal effects is incidental to an arrest if it is conducted shortly jail. Edwards, thereafter at a U.S. 415 U.S. (1974).” 94 S.Ct. L.Ed.2d. 771 266 Ark at SW2d at 577. App State, Dawson v. 40 Md 395 A2d 160 Betty the defendant Dawson was convicted of man-

slaughter. policeman upon When a arrived the scene he and found a pocketbook

seized and searched Dawson’s suppress handgun. caliber The moved small defendant Maryland The Court States v. Chadwick. citing United upheld the search: Appeals case, appellant’s

“Returning we think to the instant Chadwick, in pocketbook, unlike the suitcases footlocker Dudley, overnight in Dean and the Ester and case ‘immediately Shingleton, with briefcase was associated Therefore, under the rationale person of the arrestee.’ Berry adopt, permissible we the search was under search, appellant’s person. Chadwick as a search of Such a believe, analytically items found we akin to a search of clothing pockets.”4 395 A2d at 167. an arrestee’s or (Tex State, App In Stewart v. Crim SW2d 1981) defendant, Sherry Lea Stewart was arrested purse Her shoplifting a steak and a bottle of bath oil. and, search, found. The pursuant seized to a cocaine was It length. Texas court discussed Robinson and Chadwick opinion at 438 said: good. concluded the search was case, “In instant we believe that the search of the items immedi- is better characterized as a search of appellant. As a ately with the associated purse usage, a is an item carried on an matter of common person in the sense that a wallet or items found individual’s in pockets luggage might be charac- are and unlike repository personal items when one wishes terized as ‘a to Sanders, them,’ transport Arkansas v. 99 S [442 purse (1979)] a is carried with a Ct 61 LEd 2d 235 Although appellant, stand- person at all times. the arrest of alone, destroy privacy interests she ing did not whatever did, purse, it least for a had in the contents of the at extent, time and to a reasonable subordinate reasonable governmental interest in legitimate interests to the those discovering weapons or preventing and the destruction secretion of evidence.” (Alaska Anchorage,

In Hinkel v. 618 P2d 1069 1980)5 an automobile accident Thompson Officer witnessed 4 Chadwick, United States v. by Maryland court are: The cases referred to Ester, (1977); Supp United States 442 F 53 LEd 2d 538 433 US 97 S Ct (Mo (1978); Dudley, App) State v. (SDNY 1977); State v. SW 2d 403 561 736 (7th Cir) Berry, Dean, cert den 572); States v. F2d 861 United 574 P2d US 840 Farrar, (SD 1979) Supp wherein the States v. F Miss But see United purse 12 inch hidden under that a 9 inch Federal District Court ruled Hinkel. The vehicle defendant, Ida Marie involving another vehicle after run- driven Hinkel smashed into Hinkel speed. rate of After ning light high a red out of Thompson get her driver’s license or refused to show purse proceeded hold of her and her her vehicle he took purse, her struggle her of the vehicle. In the pull to out seat, left in her on the front was which had been next the back by Thompson Hinkel escorted her vehicle. was from purse car. Another officer took patrol seat of his was Thompson. purse it to gave Hinkel’s vehicle discovered that it contained opened by Thompson then who carrying with gun. charged a loaded hand Hinkel was The Alaska weapon driving. concealed and reckless It discussed good. Court found that the search was — “luggage of Chadwick or other quoted language oft per- personal property immediately not associated with arrestee,” page son and in connection with it said at 1071: in language

“This must mean that containers found clothing pockets may In be searched. our view also purses suggests that containers such as which are often person generally worn on the serve the same function clothing pockets excepted as exigency requirement. the strict are also from course, possible, It would be billfolds, pockets, treat differently containers found clothes such as purses from items such as which are not carried However, pockets purpose. we can but serve the same justify think of no reasons to such a distinction. We immediately property conclude that Hinkel’s was and, therefore, properly associated with her (Footnote omitted.) searched incident her arrest.” Venizelos, (SD States v. United Supp 495 F 1980)6 defendant, Venizelos, NY Arietta was arrested pursuant driving to a warrant while a small rental car Plains, White New York. The warrant had been issued conspir- under an indictment the defendant with a charging acy drugs. to distribute When arrested the defendant denied identity Kinney. her and claimed that she was Leslie When passenger’s scope of the Chadwick rule and therefore a warrant seat was within the required. was Moreno, Sumlin, Hinkel, and Venizelos cases the defendant was In the probably now be arrested an automobile and the search each case would Belton, upheld ground under New York 101 S Ct on an additional 453 US 69 LEd 2d 768 purse

she started to reach into her handbag agent or her stopped purse. agent opened and took the The then purse and took a wallet out which he handed back to the defendant. produced From the wallet the defendant a driver’s license in the name Leslie Kinney. agents The took the defendant Kinney Kinney to the residence where Mrs. to support refused the defendant’s claim that she was Mrs. Kinney’s daughter. drug headquarters At the enforcement a complete needles, more search of the purse disclosed syringes, pills, marijuana. The Federal Judge District upheld page opinion search. At 1282 of his he said: opinion, Chadwick] States affirming that [United “In holding ‘luggage to or other limited its Supreme Court the personal per- immediately with the associated property not long line Thus, left intact the court of the arrestee.’ son personal arrest of authorizing incident to searches of cases in the handbag involved here—found effects—such as immediate of a during the course possession the arrestee lawful arrest.

“We are convinced that the facts of the instant case are sufficiently Sanders distinct from those of Chadwick and small, inapposite. handbag Here the was render those cases readily defendant, easily capable portable, accessible to the grasp. It being opened, and within the defendant’s of not heavy, carry It or difficult to or maneuver. carried normally closely person itself— items identification, cosmetics, associated with the wallet,

money, items a and other Indeed, normally carry would at all times. is reason- one able to suppose the time of that had it not been seized at arrest, probably brought the the defendant would have DEA identifica- handbag with her to the district office for ‘booking,’ at which time its contents tion and to assist inspected and inventoried under routine could have been (Footnotes omitted.) police procedures.” all of through run that seems to thread general a is similar handbag purse a or cases is that the above in a pockets or pocket function as the same and serves are used pockets and the purse Both the clothing. person’s wallet, identification personal carry the same items — purse mentioned that have courts cosmetics. Several so far as gone has No court person at all times. by a carried pocket.” “portable is a say that a that the defendant’s in this case is line The bottom “immediately with associated property personal was purse to search subject and therefore the arrestee” person beyond justification additonal to arrest. No as an incident There was sufficient required. was to arrest probable cause police told the the defendant. She cause to arrest probable companion her male told selling “bunk” that she was of cocaine.7 possession in the them that she was did not police that officers It of no concern is after she was handcuffed purse until search the defendant’s v. State patrol car. in the back of placed Florance, supra, 270 Or 191-192: hold, however, custody upon taking into

“We arrest, person person following legal such a search of by if officer at made arrested as would be reasonable any him in the place may made time that time and be jail.” transporting the arrested course of Brown, v. further supra, In step we went one jail at the as and said that could be searched defendant an incident to the arrest. I would good.8 the search was

I would hold and the trial court. Appeals affirm both the Court of suppress at the motion to testified as follows: One of officers “By quantities I her if meant that are sold on narcotics, street bunk asked she actually supposedly a fraud that to be narcotics but not downtown, yes, what she had streets and she said that’s common on the doing.” been 475.991. It an imitation controlled substance. ORS is a crime to deliver Chadwick, interesting language in States v. 532 F2d United There is some (1st 1976), Appeals the First Circuit the United States Court of case for Cir Chadwick, States v. in United which was later affirmed Court (1977): 1, 97 S Ct LEd 2d 538 n <** * portable zipper bags, objects small briefcases and hand such as difficulty in Chimel’s ‘immediate control’ fit without too much suitcases ‘per- size, portability accessibility, all liken them to Their standard. clothing cigarette person, or a an arrestee’s such as sonal effects’ found on pocket, may lawfully package a warrant which be searched without one’s Robinson, supra; United See United States v. incident to an arrest. as. States Edwards, supra. such items can create To exclude searches of imprac- arresting “gossamer find officers could thin” distinctions follow; and, justification ticable, impossible, for a where the if not judgments great which the depends reasonable search arresting to a extent on the arrest, see United States at the time of officers could have made (Foot- Robinson, appear unwarranted.” those distinctions would omitted.) 532 F2d at 780. note Tanzer, J., joins opinion. in this LENT, J., dissenting. C. “seized,” purse i.e., was it was taken from possession

defendant’s at the placed time she was in the police transportation. car Throughout the time the purse, the wallet compartment and the coin within were searched, the purse physically beyond the defendant’s ability to reach it. She was in handcuffs in the back of the police car. A plastic separated shield the back of the car from the front. A police officer in the front searched the and the wallet. That officer was never asked why she searched either container. all apology With due Dickens, Charles quite simply I infer that this was “The Curiosity Old Search.” argument

I shall assume for the sake of that there probable purse, though cause to search the even cause defen- depends part upon the unsworn information of dant’s and there is somewhat less than a companion paucity veracity of evidence of his in this record. The state quite any exigent does not claim there were circum- rightly justify stances search of these containers without a warrant. perceive authority

I do not necessary to be to cite I, proposition for the that under Article of the section a Oregon Constitution warrantless search is considered unreasonable, thereby offending law to be the constitutional searches, prohibition against unreasonable it can be unless by recognized exception. shown to be a search sanctioned a Both the and the here an majority concurring opinions find exception. exception perforce upon identify- That must rest ing question by the container some kind of mumbo jumbo closely pockets, as to how it resembled arrestee’s may be searched incident to a lawful custodial arrest. law-abiding the in the field nor the police Neither constitutionally should rights protected citizen whose are analyze police by have to the lawfulness of conduct deter- like on the mining luggage, whether the container is more box, hand, one a on the other. Both are cigarette or the citizen. part clothing that are not of containers police possession without may the of taken into Both removing be clothing. a from whom citizen If the the citizen’s voluntarily to its consent not is taken will container inventory may police container warrant, a without knapsack, a briefcase, suitcase, a trunk, a such, i.e., a a as knotted cigarette purse, paper case, or sack, a bandana, a a that container. describes whatever best citizenry police, of this courts and the The. holding by simple a served best state would be prohibits a search of warrantless Constitution beyond placed police closed container seized this, the as In a case such reach the arrestee. they with- the container not search know that making must

would magistrate showing there was out first probable evidence contained to believe the cause showing Assuming made, I would could be such a crime. would have for conviction same evidence observe that the constitution as was with the been in accordance obtained only approved judicially after manner obtained here in a scrutiny. three levels of propose, simple the arrestee’s rule I Under protected

rights against would be searches unreasonable Oregon Constitution, and there I, Article section inquire the arrestee is no need to whether would be process deprived liberty property due of law without or States Constitution. under the United agrees say Linde that Justice authorized to I am Brown, rule, State v. see would be the better this (1981) (concurring opinion), 642, 656, Or 634 P2d majority’s although statement he concurs in the Florance, 527 P2d before State v. law as stood (1974), federal cases. it in order to follow abandoned I dissent.

Case Details

Case Name: State v. Caraher

Court Name: Oregon Supreme Court

Date Published: Nov 2, 1982

Citation: 653 P.2d 942

Docket Number: CA A20330, SC 28360

Court Abbreviation: Or.