State v. Flores

16,1982, Oregon Supreme November resubmit- Submitted on remand from the September petition May denied ted Banc affirmed June reconsideration 30, 1984 (298 151) review denied October OREGON, OF STATE Respondent, FLORES, DANIEL Appellant.

(10-81-05891; A22413; 28913) CA SC

685 P2d 999 618-a Estes, Salem, Deputy Defender, argued Ernest E. Public appellant. Gary the cause for him D. With brief Babcock, Defender, Public Salem. Dickey, General, Salem,

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

GILLETTE, J.

Buttler, J., concurring. J.,

Young, concurring part, dissenting part.

618-b

619 GILLETTE, J.

In this criminal convictions for ex- involving case possession possession convict of a firearm and of a con- substance, trolled again presented we are once with an occa- sion to an aspect Oregon’s developing discuss state law of law, previously applied and seizure. We federal includ- ing law, Oregon interpreting cases federal to affirm these Flores, 437, convictions. State App v. 58 Or 648 P2d 1328 (1982). accepted The review and remanded the case to us for light Oregon reconsideration in constitutional principles 741, announced in State v. 293 Or 653 P2d (1982). Flores, 77, (1982). 294 Or P2d 960 On remаnd, only we look not to Caraher but also to a later decision, Lowry, 337, (1983), 667 P2d 996 to other relevant state constitutional principles prece- dent, at least to the extent that we can divine them. We affirm.

OREGON CONSTITUTIONAL SEARCH

AND SEIZURE LAW Oregon Supreme Court’s recent shift in direction on the use of the state constitution in criminal presents cases this court problems day-to-day with difficult in its decision- making, problems which we must face in this case. We are without recent precedents many state law areas and are uncertain of the extent to which recent federal decisions express also Oregon principles. constitutional are there- We fore develop left to those principles guidance only with from a few recent Supreme Court cases and from court’s tradi- tional approach development to the of search and seizure law. approach, see, fluctuations, That as we will includes such us, indecisiveness and ambiguity help it is of little prove, analysis, little, while the recent cases to stand for yet. mid-1960’s,

Before the the Oregon Supreme Court construed provisions, state constitutional because the federal Fourth apply Amendment did not to the states. v.Wolf Colorado, 25, 1359, (1949), 338 US 69 S Ct 93 L Ed 1782 Ohio, 643, 81 Mapp 1684, overruled in Ct L 2d US S 6 Ed and in Ker California, 374 US 83 S Ct (7 Pet) (1963); Baltimore, 10 L Ed 2d 726 see Barron v. 32 US (1833). L8 Ed 672 In determining what required, frequently Constitution the court cited cases from 620 states, system finding precedents from other federal See, helpful binding. e.g., but jurisdictions

from other 290, (1931); Lee, P v. Duffy, v. 135 Or 295 953 State 120 State 443, 495-497, 643, 253 (1927); Laundy, Or P 533 State v. 103 Or (1922). 958, 206 P in a few instances it Although 204 P 290 appeared controlling, to treat federal cases see State v. DeFord, 444, (1926), generally kept 120 Or 250 P 220 the court two and their sovereigns separate distinction between the clear, they adopting principles constitutions federal when seemed appropriate. example Oregon approach of the court’s before

One handling question is its of the exclusion of 1960’s from in a criminal The obtained evidence use trial. improperly exclusionary rule of v. appeared reject court first Weeks States, (1914), 383, 341, 232 34 S Ct L Ed 652 in United US 58 (1916). Ware, 905, 155 Then, P in 367, 154 State v. 79 Or P 364 rule, Laundy, by supra, appeared adopt State v. it albeit dictum, so for same reasons stating that it did which Court, it to not because it commеnded the federal undoubtedly lead. the court bound to follow the federal As Yet, knew, rejected that time many state courts at had Weeks. Laundy, opposed of exclusion in fact —as despite question for another to an abstract solution —remained unresolved majority in State v. forty years. original opinion 965, (1925), McDaniel, 187, expanded Or P 237 P 115 231 373 Laundy suppression on and ordered evidence dictum the search but, rehearing, good different found open as an The court suppression question. and treated 1959, see v. through decide the question refused to Flynn, Hoover, 288, (1959); 69 State v. 137 Or 219 Or 347 P2d 8, 694, (1931), P trial courts had although P 300 1024 299 early as 1924 and continued to do so evidence as suppressed DeFord, Lanegan, Or supra; v. 192 thereafter. State States, (1951); 699, P2d see also Elkins v. United 691, 236 438 (evidence (1960) 206, 1437, 4 L Ed 2d 1669 364 US 80 S Ct not be used suppressed state courts could Oregon which officials it violation if state obtained prosecution federal Patterson, A standards); see Case Fourth Amendment Seized, L Illegally 3 Or Rev in Evidence Admitting Liquor Illegally (1924); Note, Admissibility Obtained 340 Evidence — (1960). In L Rev 368 Oregon, Law 39 Or Evidence —The sum, the court avoided the never a search finding issue invalid, at times hаrd straining doing to avoid so. Ohio,

Only Mapp supra, applied after which exclusionary court, states, Oregon federal rule to the did the (1962), 373 P2d unequivocably unconstitutionally state that obtained evidence be should Elkins, suppressed, and not until State v. 442 P2d did it ever improper find and reverse a conviction for suppress. Throughout failure to the entire period before and Ker Mapp California, normally issue, treated this and all other search and seizure questions, alone, under Constitution looking to juris- other guidance dictions for but not accepting their decisions as controlling.1

During period, the court dealt with a number of major in They issues search and seizure law. included searches arrest, McDaniel, incident State v. supra; Quartier, State v. 657, 114 Or (1925); 236 P 746 Laundy, State v. supra; State v. McDaniel, 161, 39 Or (1901), 65 P permissible 520 and its scope, Myers, 517, Keeler v. 119 P (1926); Or 249 637 the requirements warrant, for a Flynn, ‍​‌​‌‌‌​​​​​‌​‌‌​‌​‌​​‌​‌‌​​​​​​​‌‌​​‌​​‌​‌‌​​​​‌‍Nally State v. supra; Richmond, 462, 209 v. Or (1922); 105 P McDuffie, 871 Smith v. 276, 72 Or 558, 143 (1914); 142 P P 929 and what constitutes Christensen, cause. State 529, v. 151 Or 51 P2d 835 (1935); 290, (1931). State v. Or Duffy, 135 295 P 953 To be sure, specific most, all, the holdings cases, if not of these while generally consistent with federal and state law of the period, are significantly generous more cоncerning police authority post-1960 than are law; decisions based on federal changes the in federal law alone in the interim it make questionable Oregon whether the Supreme Court would still consider them good Oregon law under the Constitution. status, their present however,

Whatever the pre-Mapp pre-Ker Oregon necessarily cases established I, 9, analysis of Article Oregon section of the Constitution independent that was of the federal That inde- constitution. pendent analysis began breaking Mapp down soon after 1 Davis, Supreme 227, 233-237, 666 (1983), Court 802 P2d Laundy, supra, differently effect of the the views dictum we somewhat than correct, do. Whichever view is it is clear the its court made own decisions independent jurisdictions. of the results reached other

622 Court, continuing develop Ker, Supreme rather than as the Constitution, simply decided cases Oregon meaning In v. State supra; State under the federal constitution. 992 120, cert den 377 US 135, 388 P2d Krogness, v. Elkins, primarily the court relied (1964), and State v. law, increasingly treated United States state but thereafter the con- establishing precedent stating maximum extent of minima but also as stitutional Thus, Oregon Constitution lost protection. constitutional very major time of independent significance its con- seizure law under federal revamping of search and stitution. in dissents that

There occasional reminders were Chinn, supra, v. independently. Oregon could act Constitution, clearly Oregon which was decided under scope opposed the broad Judge O’Connell urged to arrest and for a search incident allowed v. Trupiano, rule United States Oregon adopt court L under the 699, 68 S Ct 92 Ed US Constitution, despite in United States rejection (1953): Rabinowitz, S 94 L Ed 653 339 US 70 Ct interpret have our own constitution “[W]e by the cases decided interpreting it we are not bound propose Supreme Court if we to afford our United States protection search than that greater against unlawful citizens a J., (O’Connell, dissent- required in cases.” 231 Or at those ing). point in his dissent in State repeated that

Judge O’Connell 160, 172, (1968), a which the McCoy, 437 P2d 734 case 249 Or exclusively, federal primarily, if not decided in his dissent in State v. Judge argued also grounds. Sloan 120, 147, (1967), Oregon 418 P2d 822 Cartwright, 246 Or Supreme federal Court adopt rules than the different could however, the court clear, he wished is not whether requires. It police limitations on Constitution’s Oregon construe the to adopt an inde- federal or to strictly than the authority more (The Oregon of the federal constitution. construction pendent it was its belief that indicated several times Supreme Court construction of Supreme Court’s by the federal not bound Florance, 270 Or in Amendment, the last time State Fourth (1974). this dropped 182, apparently It 169, P2d 1202 527 specifically only Supreme misconception when

623 Haas, disapproved language the Florance in 420 US 714, 4, (1975).) n 1215, 719 95 S Ct 43 L Ed 2d 570

Despite Judge statements, O’Connell’s and Sloan’s possibly misconception authority and as a result of its of its construing constitution, by the federal the late 1960’s the basis of the Court’s search and seizure decisions was times, hazy. often At McCoy, as in State v. it relied supra, solely times, O’Neal, on federal law. At other as in State v. 251 163, (1969), Cloman, 1, 456 Or 444 P2d 951 and State v. 254 Or (1969), P2d it provision 67 cited no constitutional whatsoever. also, Keller, 622, It as in (1973), State v. 265 Or 510 P2d 568 v. Blackburn/Barber, 28, (1973), 511 P2d 381 cited both constitutions but made no distinguish effort to provide them or a separate analysis of either. State v. Cf. Atkinson, Or 517, 64 App (1983) 669 P2d 343 (analyzing whether precedents later federal have undercut Keller and determining that it remains valid under the state constitu- tion). effect, the court treated searches and seizures as a generalized subject common law controlled federal princi- ples in which the state constitution has no independent role. The older state simply dropped cases sight, from along with any attempt develop principles their light more recent constitutional formulations.

This away movement from the state constitution Florance, reached its climax in State v. supra, in which the that, court held in an attempt provide one rule for law enforcement follow, officers to it adopt would the rule on searches Robinson, incident to arrest of United States v. 467, US 94 Ct S 38 L Ed 2d 427 as the law of Oregon. Thereafter, adopted court other holdings, federal apparently aas matter of course. See cases cited in State v. Caraher, supra, 748; Nettles, 131, 135 293 Or at Or Flores, n (1979); 597 P2d 1243 570 P2d (1977). While it continued in these cases to cite the state constitution, the court gave independent it no content only referred it part of a rote incantation. At other times making decisions, cited federal law in see cited cases v. Caraher, in State supra, 293 Or at 748-49 n As Judges 7. opposed

O’Connell and Sloan had away the movement from 1960’s, the state position constitution court’s post -Florance provoked opposition Judges cases from Lent Linde, see cases cited in State v. 293 Or at Lowry, supra, the

750, but, and State v. Florance until Caraher Now, its the court has reversed appeared firm.2 position course, of the state previous the result of its treatment but ready way to determine the law leaves us with no constitution apply. we are now to matter, law under practical search and seizure

As a stopped I, Oregon of the Constitution Article section 1960’s, and seizure law in other developing in the but search Oregon drastically since then. The changed has jurisdictions changes in many post-Florance of those court has referred to in it would cases, adopted apparently it has not them what but a certain fashion; simply it declared principled consider now analysis. Oregon without further federal rule to be the law might Nettles, at 135 n 2. See, e.g., supra, 287 Or We under the adopted rules that assume that the nevertheless remain the law of in -Florance cases post constitution state state constitution to construe the because it claimed Oregon, Atkinson, App supra, v. adopting in them. State Cf. Keller, case, remains (State pre-Florance supra, v. 521-22 Court cases States despite law later United state constitu- correctness under the federal casting on its doubt However, and State tion). supra, in State v. the court position Florance’s simply did not abandon Lowry, supra, federal; it also should follow the state constitution question in specific holding on the issue Florance’s overruled O’Neal, Florance had over- which and revived entirely on doing, it relied ruled, In so Oregon. as the law appears cases. It thus constitutional pre-Florance state Oregon under the nothing in fact decided -Florance cases post last 15 Oregon in applicability Constitution and that the open remains an and seizure of federal search years’ growth cases always treated federal court question. The them, but, part in adopt if not to even it chose respectfully, of recent federal deсisions nature because of the controversial Quinn, example, ambiguous. post For were often -Florance cases analyzed citing 383, 390-392, after both P2d 630 court 290 Or constitutions, Its under the federal constitution. it relied on cases decided but automatically post determine -Florance federal law cases also action indicate case, apply reach, that, particular decided to the court or the state constitution’s constitution, simply did not notice that the court rule under the state or the federal explicitly court Quinn constitution. The did not cite the state that the earlier cases constitution, penalty do not overturning and we on the state of the death based why equally analyzing seizure issues. the search and clear know it was decisions, and in of its part say because recent we cannot seeking independent it will continue to do so rather than analysis opinions Supreme of United States Court minor- ities, courts, other state v. or commentators. State Ken Cf. nedy, (1983) 260, 666 P2d (establishing ‍​‌​‌‌‌​​​​​‌​‌‌​‌​‌​​‌​‌‌​​​​​​​‌‌​​‌​​‌​‌‌​​​​‌‍Oregon 1316 an jeopardy double rule different from both the United States Supreme minority). Florance, Supreme Court’s treatment of and its Caraher,

failure to post-Florance cite cases in or con- post pr vinces us that it will treat -Florance but e-Caraher cases federally-based deciding and as nothing Oregon under the Constitution, they even purport adopt when rule federal Oregon as the constitutional rule. We are thus returned to principles, first appeared what once settled turns out not example, to be. For impact of such cases as Katz v. United States, 347, (the 389 (1967) US 88 S Ct 19 L 2dEd 576 protects Fourth Amendment privacy interests, property not rights), 752, 89 v. California, Chimel 395 US S Ct 23 (1969) L Ed 2d (limiting 685 scope of search incident arrest) on Oregon search and seizure law remains to be quite It possible, instance, determined. for Oregon court will decide to stick closer to the constitutional language than has the Supreme Court and will not follow the federal lead in Katz and its progeny in totally abandoning a property I, Elkins, rationale for Article section 9. See State supra, v. (Art I, Or at 288-89 protects property rights as well as § privacy rights).

It possible, is also aas result of the reliance оn pre-Florance cases, that in respects Oregon some bemay law protective less rights an individual’s than is federal law. See Kennedy, so, supra, 295 Or at If 270-71. federal law control, will although Supreme always Court has not through analysis. carried on this example, For v. Caraher, supra, court relied on primarily approach supra, in determining proper that a search was aas search incident arrest under the Oregon Constitu- specific tion. Yet the approved search the Chinn court clearly impermissibly would be broad under Chimel v. Califor- nia, supra. Krogness, In the court also cited State v. though even the search in that case was held to violate the federal corpus constitution a federal habeas action soon Krogness after the state decision. United States ex rel 1965). (D particularly Supp Gladden, F It is Or cases on which why light relied, unclear, in the of the state Oregon upholding court, search under after the Caraher go law— under law, part and evaluate failed to federal methodology always if it finds no it should follow of the and a federal constitutionаl constitutional violation state Kennedy, supra. is also asserted. See State violation place short, now told us to Court has up Oregon and force it to make in hothouse the for Constitution growth years caused. Because of stunted which that court years, changes in those because in federal law guidance, history looking Oregon federal cases court’s many years approved searches and because the court former pre-1970 approve, we cannot assume it would Oregon now Oregon Constitu- word on the cases remain the final yet, cases, cannot treat recent tion. Worse we also constitution, as control- the state even those which mention ling given clear desire to nor, the court’s on the issue decided undesirable, decisions it considers cut itself free from federal rely guidance. of the As one member on federal law can we court prepared recently from said, to think “[b]e we must approach Liberating from the reactive ourselves scratch. liberating from means ourselves [U.S.] Judge things Speech many ways have been done.” quoted Justices, 69 ABA of Chief Linde to Conference recently (1983). of the court As another member Journal 1356 said, lonely journey thought, expressing “a now must make the same we against the wind of the moon in the dark quagmire ***.’” of ‘search and seizure of the law into the (Campbell, supra, J., concur- Caraher, 293 Or at 760 ring).

CARAHER,LOWERY, AND SEARCHES WARRANTLESS opinion previous case; this the facts of sets forth Our challenged necessary. only supplement them as we will items are a containing marijuana baggie plastic that officer cigarette hand, a flowered from defendant’s Costanza took change purse purse in a brown that he found a leather position paper bag in the car to the driver’s on the seat next gun in a lidless container found officer Keever a clothing back seat. on the under some baggie, At the time of the seizure of the Costanza had a stopped defendant for traffic violation. The warrantless search baggie for and seizure could not be incident stop any or to subsequent arrest related to the traffic violation; required separate Elkins, it probable cause. State a supra. Wе therefore turn to consideration of the require cause which the state constitution and statutes Cos- justify tanza to have had in order step each of this warrantless search. look for guidance

We first to the two cases which Oregon Supreme recently Court has subject addressed the first, warrantless searches. In the supra, the court reaffirmed the doctrine that a person arrested for a crime be searched incident to the arrest for evidence of 757-760; O’Neal, crime. Or at supra; see also State v. State v. Krogness, supra. Lowry, it reaffirmed requirement that a seizure of items found a during search incident justification arrest have a independent of the arrest when the items seized are related to the offense for which the Elkins, defendant is under arrest. See State v. supra. The court then went expand on to requirement the warrant way a that we find difficult analytically both to understand and to apply practically.

In Lowry, defendant, a during search after his arrest for driving under intoxicants, influence of was possess small, found to closed, a transparent pill amber bottle containing a powder white proved analysis to be Supreme Court, cocaine. The in an opinion, extensive assumed that there was cause to seize the pill bottle but held that the subsequent testing separate that was impermissible so, without warrant. In doing failed to note aspect well-established of Oregon search and seizure law —one of the few—and appears to have extended the requirement warrant to situations where function impede will be to police investigations to busy and create work for judges. Supreme

The began Lowry Court its discussion in with a useful admonition: Const, I,

“The constitutional text Art itself ties [of § 9] phrase ‘probable the to It cause’ warrants. seems never to superfluous repeat requirement become that the of a rule for or seizure is the and judicial warrant a search authority on an officer’s own assessment act only by or justified is one another without a warrant * * *” exception. 346. Or at note, of the same then went on to conclusion The court paragraph: “* ** exceptions the rule are reasons The from for

always necessity рractical to act one or another before form (Emphasis sup- a warrant can be obtained.” 295 Or at 347. plied.) puzzlement. It sentence contributes our

This last of the necessity” in sense only “practical the obvious is search; justifies arrest itself a warrantless phrase justifies search, protection is for the long so as the search such or is related to crime preservation or the of evidence officer reasonable in was arrested is which the defendant Caraher, supra, and State v. time, manner. State v. scope and two Chinn, ineluctably. rule The first establish this supra, necessity, but the third is not. What purposes are matters of the search authorized squarely to face is Lowry fails merely “necessary” to the reason beyond the Caraher extends Caraher, at 759: able. See O’Neal, cases, Krogness have “These incident to arrest expanded justification for a search safety and destruction beyond of the officer’s considerations permit it is relevant to They a search when of evidence. long it is being so as arrested and crime for which defendant * * *” light of all the facts. reasonable the defen- a search of approved the court under arrest while she was purse that occurred dant’s officer, with the police of a car and the in the back seat locked no “practical front seat. There was purse, sitting was Lowry was cannot believe necessity” for that search. We silentio; opinion cites sub intended to overrule Caraher even, noted, times and approval with several Caraher that, by conclude holding. We therefore reiterates Caraher’s justified can be searches that warrantless suggesting used the necessity,” Court Supreme only by “practical sense, try now discern. which we must in technical phrase used to describe phrase necessity” “practical justification for warrantless rather than the more common “exigent circumstances.” We assume that it did primarily any so to free itself from technical glosses may put have been on the latter term and to emphasize the need practical to look afresh at the situation facing officer, the officer in whether deciding light in the circumstances, all the sought should have a warrant rather than conduct an immediate search. Because two of the three justifications for a search (protection incident to arrest evidence) officer and preservation are also matters of practical necessity, phrase apply seems to there also. Inasmuch as the court apparently did not intend to alter its acceptance (relatedness of the third justification and reason- ableness) either, we assume that the court also subsumed that justification under “practical necessity” is, heading. That “practical necessity” in meaning its technical any includes search incident to arrest which meets the criteria of State v. supra, and State v. supra. this While conclu- may sion strain the Court’s language, is the one which makes holdings consistent.

This brings us to our difficulty Lowry. second with order for a search arrest, to be incident to an the officer must statutory have authority defendant, to arrest the which means that the officer must have an arrest probable warrant or cause to believe that the arrestee has committed an offense. ORS 133.235; ORS 133.310. Thе crime for which the officer has probable cause need not be the crime for which the arrestee is ultimately charged or even the one for which the officer makes the arrest. Cloman, See State v. 10-13; 254 Or at Krogness, supra, 238 Or at 145-149. If warrantless arrest is felony for a or a misdemeanor, Class A it is sufficient for officer probable to have cause to believe that the arrestee committed it. If it offense, is for a lesser the officer must have cause believe that the arrestee committed it in the presence. 133.310(1). officer’s ORS

As the Supreme Court explained Krogness, in State v. supra: officer,

“Where the trespassing, without sees contraband reasonably or other evidence causing him to believe that being transported contraband is or that some other crime is being presence, may committed his he have cause newly to make an arrest for the discovered offense as aswell initially for the traffic brought subject offense which case, may In such while there be the officer. attention arrests, no demarcation between the and second distinct first exist, search, any probable- prior there does extensive arrest an more serious for offense foundation for making justified than a violation. The then traffic officer gravity be with such a search as commensurate newly arrest discovered situation. Probable cause to offense, present, serious when will answer constitu- more * * * ensuing objections rigor the tional to the search. of a* * * * *

“* * * cause, law, If a of to there is sufficient as matter justify necessary physically to a whatever arrest is make search, is of an then a reasonable search a lawful incident such ** *” (Emphasis supplied.) Or at 145-47. arrest. principle a concept probable This cause is escalating of acquaintance virtually anyone speaking to with a familiar of part with constitutional law and has been criminal McDaniel, at State years. 115 Or law for almost 60 here, too, literally havoc Lowry Yet taken 240-242. —raises —if with the familiar. a the stop was a case that escalated from of a to an arrest faulty headlight car on account of defendant’s discovery, the for the influence of intоxicants to driving under small, closed, analysis transparent of a subsequent seizure and that powder. opinion, a white In pill containing amber bottle said, the touching subject on the of Supreme the Court discovery suspected of contraband: inadvertent stop of a vehicle or a “In the course of valid traffic arrest, permissible stop an officers frisk incident to or But may upon suspicious these sometimes come other items. alone; suspicion is be on cause seized Elkins, supra, required. State a constitutional vio- found pills pill an in a incident to arrest of bottle lation seizure drunkenness, suspicion not con- public because mere did for believe ‘that article probable the officer to stitute being a crime he discovered is contraband and therefore has present The brief committed.’ 245 Or at 284. state’s v. Elkins had been premise .proceeded on the case Florance, P2d overruled Appeals properly assumption the Court of sustained the rejected. The of that court nevertheless testing opening the retaining action in bottle ‍​‌​‌‌‌​​​​​‌​‌‌​‌​‌​​‌​‌‌​​​​​​​‌‌​​‌​​‌​‌‌​​​​‌‍officer’s contеnts, theory characteristics ‘hypothetical bottle could cause a reasonable officer’ or ‘an respect illegal officer trained with drugs’ reasonably believe that the bottle App contained contraband. 59 Or 344.

“We need Appeals not follow the Court of judicial into speculations contemporary on the extent to which culture has pill made powdery bottles and containers of white substances prima possession facie evidence of criminál of their contents subject and therefore question potential to seizure. That is of people carry supply baby concern to powder, who or table salt, medicines, legitimate or observation such a because if substance in an unconventional container as suffices suspect possession contraband, cause to it also suffices probable cause person to arrest the possession in whose container is observed. case, present however, seizure of the bottle incident to a valid arrest and the subsequent testing of its properly analyzed contents are not as one but as ‘probable two events. For cause’ is not alone dispositive steps. question of both simply The is not whether probable cause investigate, say, ‘search,’ is to exist, contents of the bottle did or did not but whether there any need to do so without a warrant.” 295 Or at 345-46. (Footnote omitted; emphasis supplied.) then that, went on to decide assuming the officer had probable cause to believe that the amber bottle contained contraband and that the bottle’s seizure was proper, therefore the subsequent testing of the bottle’s contents was a separate, impermissible search, because the officers did not obtain a warrant authorizing the analysis. 295 Or at 346-349. The predicate for this conclusion is unclear. It be that the officer who found the amber bottle had special no training or other articulated basis for believing he had and, discovered thus, contraband had no probable cause to seize the Elkins, bottle. supra. That is the basis for the opinion, not concurring but it does explain the thrust of the court majority’s analysis.3 The court’s language suggests, rather, that probable cause “is alone dispositive of both seizure of the bottle and testing the [the 295 Or at 346. contents].” concurring opinion noted, “* * * case[,] although the instant the officer could [I]n observe the contents of it, testify opening

the bottle without he failed to that he believed the contents of * * *” (Jones, drugs. J., concurring). the bottle were illicit 295 Or at 358 point majority opinion Lowry at that the

It is this Court, inexplicable. Supreme due respect becomes With existing if the latter statement was meant to be recitation of If the law, nothing patently wrong. could be more officer had that what he had found was contra- probable cause to believe band, probable he to arrest defendant for then had cause possession of that contraband and the seizure was incident to Caraher, supra. for State The court the arrest that offense. opin- probable throughout danced around the cause issue ion; It noted directly it is a shame that did not confront it.4 had dispute that there was a whether the officer “reasonable bottle contained contraband and cause” to believe that, did, he to retain the then stated if he would be entitled if magistrate bottle for to determine there was long enough The court “probable cause” to seize and test contents. “reasonable explain made no effort to the distinction between cause,” there one. “probable assuming is It cause” the case before it ultimately held that the distinction between that, is was related to and Caraher the item seized arrested, crime for was while which defendant to make this it was not. 295 Or 347. order least, relatedness, however, had, at as to the court distinction because, was cause unless there probable to assume there was, no justifica- and the court had the seizure was unlawful desper- point it seems so going tion for on to relatedness is If was ately to to make. But there the rub: there have wanted cause, also to arrest and the there to the subsequent search were as much incident seizure and arrest as were those Caraher.5 posture in which the case It is more shame when one considers even of a Constitution, I, Supreme Although Article he had cited the reached the Court. defendant, court, court, suppress in this filed in the trial section in his motion to review, Likewise, petition argued only in his constitutional theories. federal nor the Neither defendant cited dissenting the Fourteenth Amendment. I, respect Appropriate opinion in section 9. for (1975) this court mentions Article Hickmann, e.g., appellate process see, 540 P2d 1406 — (state urge appellant reversal not not entitled to theories for before Lowry’s court) problems previously presented trial have avoided the to the —could analysis creates. adventurous 131.005(11) “probable provides there cause” means “that ORS likely believing been objective not an offense has that more than

substantial basis appears person it.” This definition a to be arrested has committed committed and statutory probable necessary likely apply probable It is cause arrest. probable justifing stringent is the cause a or is than constitutional cause more justify Lowry probable possible a search cause to It assumed sufficient seizure. only possible

The distinctions we can find between Lowry that, and Caraher are the defendant chal- lenged only discovery contraband, the warrantless subsequent testing, Lowry and that in there not have probable justify majority been cause to seizure. rely possibility; refused to first, on the second we are left with the analytically one, reed indeed—an weak untenable others) (among fact, in view of the fact that this issue was not Lowry, raised in either.

Where, then, does leave us? are unsure. We However, the case’s insistent reliance on both Caraher and emphasis requirement procuring Elkins, and its on the possible, warrant as soon as may lead us to conclude that the court reinstate, have had two intentions: to as a fixture principle law, Elkins, constitutional of State v. supra, supra, place gloss part and to on that of State v. validity by

which tests the of searches incident to arrest opportunity the officer’s to obtain a warrant. principle

The basic of Elkins is that an arrest allows only a limited search and that one of the limitations is that' material seized must be related to the crime for which there is probable Lowry, cause to arrest. In Court and quoted both the and dissent in this court Elkins on point: this otherwise,

“If the rule were an officer who desired to crime, inculpate person an arrested another could seize everything person’s possession in such immediate and control upon prospect investigation that on further some of it prove might to have been stolen or to be contraband. It would open complete temporary the door to confiscation of all an person’s property posses- arrested which was in his immediate purpose sion and control at the time of his arrest for the minute examination of it in an effort to connect him with practice explora- another crime. Such a would be as much an tory upon seizure as one made an arrest for which no person’s property cause existed. Intolerable invasions of a post ex rights would be invited authorization of a facto supra, Elkins, groundless suspicion.” seizure made on Lowry, quoted in State v. 287-288; 245 Or at 295 Or at so, justify enough If from Caraher that it draws but not an arrest. the distinction However, opinion nothing in the to indicate that the court would make sense. there is standards, any relied on it. was aware of such difference in let alone 338, Lowry, 341, App in State v. 59 P2d 1062 348 and Or 650 J., (Buttler, App dissenting). and at 347 Supreme In stated supra, State v. the Court of a search incident evaluating criteria reasonableness arrest; it reaffirmed criteria to an those so, however, Or the court doing 293 at 758. mention Chinn that Caraher failed to criterion opportunity to a warrant is relevant to the officer’s obtain a proceeding determination of the reasonableness of without gave 231 Chinn the criterion an warrant. 272-73. decisive, weight; Lowry could be read to make it but uncertain analytically underpinnings of defensible and the the absence matter ambiguity language of leaves the tremendous doubt. read an abstract Lowry making

We shall not present to dispositive obtain a warrant under opportunity that, circumstances, First, we think it clear if for two reasons: intended, have said it. is what was could It that that, Lowry to Second, not. we think had been meant stand did a the seizure contraband inci- proposition for such —that separately requires lawful a warrant dent to arrеst nonetheless departure can be tested —its incredible before contraband greater practice from traditional would have been made with dissent, not provoked and a firestorm of a candor would have Third, impractical such an is both and approach concurrence. recognize protection person being to the searched. We of little greater has opportunity to seek a warrant now pre- to arrest than it did in a search incident significance a that, stopping a reaches viously logical when search fur- police proceeding must seek warrant before point in a However, stop midway search requiring officers ther.6 limbo, and seek a present one, everyone leave like the who sell would tend to benefit the stationers warrant search warrant forms. blank manner Lowry together in the

Reading Caraher anomalies, which, admittedly takes given Lowry’s described — by telephone, reducing warrant thus note that obtain search We officers 133.555(3). 133.545(4); disruption might otherwise create. ORS ORS constitution, recently held, Washington that the has undеr that state’s determining availability telephonic there are of a warrant is relevant whether Ringer, justifying exigent 100 Wash 2d a warrantless ‍​‌​‌‌‌​​​​​‌​‌‌​‌​‌​​‌​‌‌​​​​​​​‌‌​​‌​​‌​‌‌​​​​‌‍search. circumstances 701-03, (1983). P2d cases, pre-Florance some nerve —and in mind we keeping there are two major exceptions conclude to the warrant I, requirement of Article Section the Constitu- arrest, searches to an tion: incident in which the relevant Lowry, those of Chinn and Caraher as modified by are criteria supported probable “practical searches cause and necessity” in meaning. its obvious

Searches incident the primary arrest are justifica- tion for warrantless person. searches If the officer without cause to arrest person, the officer is him, without for a search person necessarily implies an arrest. The Supreme Court years ago: made clear 20 believe, however,

“We spirit that the of the constitutional proscription against requires unreasonable searches the same good-faith degree guilt suspect of justify belief of a a to person search of his of his required or effects as would be to support application his arrest or an for a warrant to search his practical matter, home. As a explain it is to difficult how police him, can arresting search an individual without since any substantial detention without his consent would fit the definition of an found in arrest such criminal cases as State v. Christensen, (1935)], P2d 835 and such civil [51 Penney Co., as cases Lukas v. J. C. Or 378 P2d 717 (1963). cause, If law, there is sufficient justify as a matter of to necessary physically search, whatever arrest is make a then a reasonable search is a lawful of incident such an If arrest. probable arrest, is there logical cause to there is no basis saying may for and detained that one suspicion nevertheless be arrested on enough him long for the officers to search satisfy themselves he is that indeed as innocent as the law presumes Krogness, supra, him to be.” 238 Or at 146-47. that, law,

It appears thus under a or of person property closely person associated with the at the time the search is if is generally supportable there probable cause to While a arrest. formal arrest occur after all, Krogness search, if points at out that the search itself arrest.7 See also State v. an supra. implies 133.005(1): statutory definition ORS There now a clear of arrest “ (1) person place a under or constructive or ‘Arrest’ means to actual restraint custody charging person purpose person into for the with to take * * *” offense. Conversely, practical a search based on and cause necessity applies Elk, to situations in State such 439 P2d 1011 in which the officers found gave deserted car circumstances which them property. to to that it believe contained stolen There was no one h.8 grounds arrest, but there were for the searc APPLIED THE OREGON CONSTITUTION TO THESE SEARCHES case. last—to the facts of this Costanza We turn —at sign stop As as he run about 4:15 a.m. soon saw defendant stop lights car, defendant his turned on quickly overhead straight- passenger’s side and then reached over to driving yards up. for another 100 Defendant continued ened constantly bobbing stopping. During time, he before moving up down, arms in and out of his head and sight. in a behavior for a driver This was such unusual officer’s safety stop felt concern for his own traffic Costanza lеaving approach his vehicle called for a cover unit before defendant. making quick movements continued

Defendant places while seat the vehicle in the front toward various approached defen- after he had asked him and even Costanza registration. Defendant driver’s license dant for his nervously into a brown around, and reached talked shifted pulling right paper bag plastic small, folded, clear hand, out a his with attempted baggie. hand, in his but to hide it Defendant protruded portion see it. When could and Costanza a small Krogness, supra, v. position in State that with the court’s This definition consistent search, necessary for can because the restraint there must be an arrest before there be McDaniel, statute, is, an arrest. See State 115 Or at 235-36 the a search under warrant, (because search the defendant without an arrest or officers searched right justification crime in arrest defendant for a the search must be found their to for presence). attempted in their committed or to be committed 8 Elk, supra, in concurring opinions Judges and Denecke The of O’Connell J., (Denecke, (O’Connell, J., specially concurring), Or at 625 Or 249 249 at 624 court, support together specially concurring), of would had the of a the which court, ground holding the than this and constitute the rather base affirmance on opinion, putative majority a later Other relies a search incident to arrest. which on practical necessity probable might be relevant include when situations cause w)ien suspected person possessing criminal or when a search the evidence is not the the giving up not unrelated crime in a situtation incident arrest turns evidence an 5, supra. See n grounds arrest for crime. for an the car, his he left transmission first tried to leave defendant in drive had him to to tell and the vehicle moved. Costanza attempted put park. stop do he in Defendant and to the vehicle lever to reverse. When the transmission but moved so just backing began up Keever, got had who out, the car request, jumped response in and Costanza’s in arrived stopped it. nervous, short, worried and

In defendant acted obviously trying fully something to hide himself. He in control of was paper bag taken out of the brown that he had plastic baggie. something see, was, as Costanza could experience previous training knew his and his Costanza from marijuana plastic baggies. people The often store in that totality gave probable cause to believe of these circumstances hiding was a controlled substance that what defendant was likely marijuana. That and that it was most was sufficient committing probable was cause to believe defendant possession of a offense of controlled substance Costanza’s presence any and, or whether formal arrest occurred then later, defendant in fact under arrest for that offense.9 was 133.005(1). taking The search in Costanza ORS involved baggie from was to that The trial defendant incident arrest. correctly suppress baggie. court refused to baggie contained a substance which Costanza recognized marijuana. sight He therefore continued to probable addition, hold he have cause to defendant.10 appeared “strangely noticed that defendant’s behavior 133.310(1) peace grantеd authority if the Former ORS officers the to arrest probable person felony A had to believe the had committed a or a Class officer offense, anywhere committing any a traffic or other other than .misdemeanor infraction, presence. in the That authorized an arrest on officer’s statute possession marijuana, for the violation of of less than one ounce of ORS cause 475.992(4) (f); offense, such a violation is an ORS 161.505. The extent of might might permissible search such an arrest or not be limited than incident to more possession incident to an of a more serious a search nature; because, arrest for a controlled substance this, the officers their incident to the arrest for case marijuana possession believe that defendant was also found cause to complete amphetamines, possession have we need not if the search could consider legislature justified The 1983 removed been arrest violation. (amending authority ORS § arrest ch for a violation. Laws 133.310(1)). analysis. change do to decide how that would affect our We not need course, baggie recognized contained if had then Of Costanza substance, disappeared probable cause to arrest defendant would have innocent no further. and the officers could have searched

638 altered” from the normal suspected and that defendant was the under influence of some intoxicant. He then searched the seat, including paper bag front the brown from which he had seen defendant take baggie; easy it was within reach. We reasonably time, scope hold that that search was related in intensity to one of the offenses for which defendant was See State v. under possession marijuana. arrest — O’Neal, Chinn, supra; supra. State v. bag, Costanza found a cigarette flowered and a purse purse. leather After them change feeling from the outside, opened he them and found containers with a white powder in them drug paraphernalia.11 activity user His in opening the two closed containers probably would not be permissible inventory property as an of defendant’s resulting Keller, supra. See However, from the arrest. when an contrаband, possession arrest is for a search of the person and the area within person the immediate control of the for evidence of that including opening of closed offense — supra; State permissible. containers —is Chinn, supra. That is all that occurred here. The trial court err in refusing suppress bag, did not the flowered purse contents, and its or the leather cigarette change purse and its contents.12

Having powder, they found the which had possession felony, cause to a drug believe was of which is a 475.992(4) (a), it reasonable for the officers to ORS was believe they might find more contraband in the rest of the cocaine, powder Costanza asked defendant if the was heroin or and defendant “speed,” slang amphetamines. answered that it was knew which Costanza was and, result, warnings Defendant’s statement came before he received Miranda as suppressed proper determining trial court it. It was not to use it in the nature of the However, provided probable substance Costanza found. the other circumstances substance, powder although guess as tо to believe that the was a controlled Costanza’s cigarette purse which sustance was incorrect. The fact that and coin controlled rule; purse require were closed containers does not a different it is one factor to applying evaluating the standards for a search incident to an arrest. We consider hold, standards, purses proper. discovery under that the search of the was those marijuana paper bag might made believe that the brown contain it reasonable to contraband, scope and time. further and the was reasonable testing subsequent powder, concerning as Defendant raises no issues Jacobsen, See United States v. distinguished from its seizure at the time of the arrest. noted, US_, 1652, 80 85, (1984). already sure 104 S Ct L Ed 2d As we are not any require concerning search incident what means or would such issue this to arrest context. arrest for defendant’s We hold that compartment. passenger As basis for this further search. felony sufficient arrest must scrutinized noted, incident to lawful be searches Here, we time, intensity. scope supra. com- searching passenger nothing unreasonable find had for which defendant partment felony for evidence of the essentially contempo- arrested. a search was just been Such arrest, justified no more intrusive than was raneous to the was offense, no more than of the and was extensive the nature See State the immediate control. area within defendant’s was Caraher, charge the firearm supra. gun led to appropriate. Its seizure was during found search. claims under

Turning to consideration of defendant’s constitution, to our former opinion. federal we adhere Affirmed.

BUTTLER, J., concurring. in in this

Although majority’s holding I concur (68 637-39) App analysis its of case with historical the problems resolve, we have been directed to State v. Caraher, Kennedy, (1983); 295 Or P2d agree 293 Or 653 P2d 942 I do not much with Caraher, and State majority’s discussion (1983). v. Lowry, 667 P2d 996 my relatively opinion, presents this case and I straight-forward application agree with application of the set forth in that case. majority’s principles however, Lowry, holding As to do nothing I understand its has case, flog opinion publicly with this and I see no reason to permit than to his other author of to vent however, reason, That disagreement justify with it. does not court, this I not publishing opinion opinion as the so do join in it. Lowry not agree

I do with the dissent’s view that that, although in this case. held requires a warrant arrest, a may be in a valid search incident item seized of the seized container further “search” of the contents Here, made without a gun not be warrant.1 seized in the back seat of the automobile does present problem. I

Accordingly, separately. concur YOUNG, J., concurring part and dissenting part.

I majority’s holding concur affirming defen- drug-related has, dant’s convictions. The majority however, misapplied analysis in approving the search of the back seat of defendant’s car. That search resulted in the discovery gun, and I therefore dissent from the affirmance of the possession conviction for ex-convict ‍​‌​‌‌‌​​​​​‌​‌‌​‌​‌​​‌​‌‌​​​​​​​‌‌​​‌​​‌​‌‌​​​​‌‍in of a firearm. The search of the front seat of defendant’s car was incidental to his arrest possession and, for of marijuana after discovery of the white powder, felony possession of a controlled substance. After that search defendant clearly going placed custody, to be and the car would be In State v. impounded. 259, (1962), 231 Or 373 P2d 392 the Supreme pointed out that one of the factors in evaluating the reasonableness of a search incident to arrest is whether the opportunity officers had an to obtain a warrant. I Lowry, understand 337, 295 Or 667 P2d 996 to mean that this Chinn criterion is great weight entitled to and that a search incident strictly to arrest should be more time, scope limited in its and intensity possible when it is get notes, a warrant. majority As the “when a search reaches a logical stopping point police must seek a warrant before proceeding App further.” 68 Or at 634. After the search of the rest, front seat the situation had come to the search had logical stopping point, any reached a and further warrantless requirement only majority to be 1 The here considers the function of that warrant 627, busy forjudges,” App impede police investigations to create work 68 Or “to and App 68 Or at 634. “to benefit stationers who sell blank search warrant forms” and reasons, Apparently part, majority states that does'not for those at least does, majority proposition. App I think the has 68 Or 628. It stand for that police may possibility obtain a not have been able to overlooked the distinct that the probable contraband. to believe that the container contained warrant for want of cause federal, Concedely, protection rights, of constitutional state or takes time and nev-; price liberty. nothing is is the be inconvenient. That it facts.” of all the light “reasonable in search was not (1982).1 741, 759, P2d 942 to an Although properly the search was not incident which, arrest, may practical necessity, have been based on it notes, probable mean seems in this context there exigent circumstances. I have no doubt that and, probably, seat searching cause for the back However, neither the trial court searching the entire car. have been asked to make that deci- nor this court should Article section purpose search. The sion’after’the that a not an judge, Constitution is to ensure cause for a officer, will determine whether there is search, and that determination will occur the search befоre any possible person’s violation of a constitu- thus before for an rights. practical necessity excep- tional There was no jail. Defendant was There was no going tion in this case. There no away. one else to drive the car evidence that have difficult or to obtain a warrant.2 impossible would been The officers could and should have done so. I therefore respectfully dissent. C.J.,

Joseph, joins opinion, Newman, in this as does J., who has me that he expressly authorized to state disassoci- majority’s analysis Lowry, ates himself of State v. from supra. search, continuing against criteria also militate 1The other Chinn/Caraher becoming generalized

which was of the vehicle' of the area rather than immediately associated with defendant. record, greater urgency appears if 2Even there had been than in this the officers 133.545(4), 133.555(3). telephonic could have obtained a warrant. ORS ORS There are judges County, authority 15 circuit and district Lane each of whom has to issue a Ringer, 686, 701-03, telephone. warrant 100 Wash 2d 674 P2d Cf. (1983) (availability telephonic exigent warrant is relevant existence of circumstances).

Case Details

Case Name: State v. Flores

Court Name: Court of Appeals of Oregon

Date Published: Jun 13, 1984

Citation: 685 P.2d 999

Docket Number: 10-81-05891; CA A22413; SC 28913

Court Abbreviation: Or. Ct. App.