*1 Argued January 25, May 28, reversed remanded v. LYNN OREGON, STATE OF Respondent, HOLMES, ALAN 1175) Appellant. (No.
TANZER, crim- counts of two with charged Defendant was I of 167.207. Count inal ORS drugs. activity possession and unlawful knowing alleged indictment un- knowing II alleged and Count amphetamine, marijuana. ounce of less than one lawful possession defendant counts, on both verdict of guilty Following years’ imprisonment was sentenced to on Count three sixty days’ imprisonment (suspended I and for one year) on Count II. Egeter Spring- facts are that Officer Department responding
field Police was ato call when companions standing he observed defendant and two Egeter near an automobile. saw defendant Officer holding a bottle wine in his hand and knew from prior years information that defendant was under 21 age. Defendant toward car, walked hold- ing if the wine bottle out as to show officer what got Egeter ap- he had. As Officer out of his car and proached expression defendant’s facial defendant, changed from a “half smile” to “a concerned look, worried look.” Defendant turned and walked toward companions, Becky one of his Miller. As he did so, pocket he moved his hand to the area of his left shirt held then out the hand Miss closed toward Miller. *3 placed Miss Miller her under hand defendant’s out- appeared Egeter stretched hand and to Officer to re- something put ceive from defendant. then her She pocket kept closed hand it into her coat and there. away Miss Miller started to walk from Of- Egeter, Egeter ficer but her and Officer motioned de- they approached, police fendant to come to the car. As Egeter appeared she to be or Officer “fearful con- degree.” upset cerned asked her or to some He pockets. remove her hands from her coat Egeter being Officer arrested defendant a possession minor in to remain alcohol, told him turned his to Miss was, where he then attention rights and He advised her Miller. her of constitutional her. had transferred to She asked her what defendant responded nothing had been transferred. Officer Egeter response, bulge pocket in and, a in her noticed keys them articles and showed she and other removed Egeter Egeter. that, advised her to Officer Officer bulge despite re- a still items, the removal of those pocket, see was her mained. He asked to what Egeter “go then she him to ahead.” Officer told plastic pocket a small reached her and removed into pills, containing cross-grooved small a vial small white plastic bag containing pills, a vial hold- and small more recognized ing Egeter powder. cross- some Officer pills grooved amphetamine pills which as identical to placed past. under he in the Miss Miller had seen drugs. activity criminal arrest for Egeter attention back Officer then turned his spread-eagle position a defendant and told him to take pat-down patrol search, on car. of a In course Egeter defend- film from Officer removed a canister right pocket. pants looked inside ant’s front He what he believed observed that it contained container, marijuana, defendant. Of- to be and then handcuffed Egeter and found defendant, ficer continued containing glass cigarette papers vial some pocket to- the shirt small amount of white residue in The vial reached earlier. ward which defendant had pocket. Miller’s was identical to those found Miss ac- for criminal Defendant was then arrested police tivity drugs, transported sta- to the too, an itemized room, tion. At the station’s book-in possession was made. cheek items in defendant’s *4 Egeter During testified was check, this which Officer marijuana department procedure, rolled standard cigarette found in defendant’s billfold.
468 marijuana cigarette found defendant’s pocket (which
wallet, the items found in Miss Miller’s proved amphetamine), to contain the film canister of marijuana, and the vial found in defendant’s shirt pocket (which amphetamine) also contained were all introduced into evidence. assigns
Defendant as error the trial court’s de- suppress nial of his motion to the items seized from him. only arguments
Defendant’s
of substance are
marijuana
that the
discovered in the
film
closed
con-
improperly
tainer and in his wallet were
seized. In so
arguing,
places primary
he
reliance on State v. Flor-
(1974),
ance, 15 Or
195, rev allowed
among
grounds,
where this court,
other
extended the
principle
“closed container”
Keller,
of State v.
265 Or
(1973),
622,
The state that Florance is dis- tinguishable from the facts inor, at bar the alternative, (2) wrongly that Florance was decided and should be holdings overruled in favor of the recent of the United Supreme States Court in Robinson, United States v. (1973), US 218, L 2d S Ct 38 Ed v. Florida, US S Ct 38 L Ed Gustafson agree 2d 456 Because we with the state that the instant situation is different from we need question continuing not validity reach either question holdings Florance or the of whether the Robinson and Gustafson, under which the instant clearly search would should valid, be the law in Oregon. hearing suppress
At the
on the motion to
Egeter
this case, Officer
characterized the
de-
*5
“inventory
police
person
as an
at the
station
fendant’s
that,
in his assertion
Defendant
is correct
search.”
upheld
cannot be
on
Florance,
under
the search
permissibility
theory.
the intrusion
However,
by police
placed upon
depend upon
it
the label
does not
personnel.
Terry
1868,
1, 88 S Ct
Ohio,
v.
392 US
Cf.
(1968);
12,
Cloman,
1,
v.
254 Or
20 L Ed 2d
State
question
of reason
is one
Oregon
an
officer
law at least allows
arrest for self-
to his
to search an arrestee incident
prevent
protection,
prevent escape
the de
long
“reason
search is
as the
evidence,
struction of
so
ably
O’Neal,
v.
251 Or
related to the offense.” State
Krogness,
(1968);
238 Or
In the at to the Florance bar, case contract activity defendant was arrested for criminal situation, drugs. readily particular Evidence of crime is this concealable within small as film canis such containers appellate ters and this and the decisions of wallets, reasonably expected state indicate that a wallet can e.g., place *6 to be a narcotics. See, for concealment of supra. supra; O’Neal, Florance, State v. Of Egeter any ficer narcotics in entitled to search for place might reasonably where such contraband be con cealed. The film canister and wallet were both such places. in Thus, the intrusions were reasonable drug tensity as incident to defendant’s arrest for a offense. argues
Defendant if the wallet could that even place have been searched arrest at the incident to time of was not made arrest, fact that the search until later at station the search. invalidated arguing, heavily upon In so relies the fol- defendant lowing language supra: subsequent at the
“Was the search of the wallet City Estacada Hall valid? This search occurred (the record does not dis- sometime after the arrest long), the scene of close how some distance from far). (the the arrest record not disclose how does clearly justi- This search the wallet cannot be being fied as incident defendant’s arrest. “ arrest, ‘The search must an incident of the * * space close to the in time and *.’ i.e., State v. arrest supra,
Chinn, at stated Or, 231 Or 267. differently, ‘[O]nce an accused is under arrest and place custody, made at another then a search * * # simply is not incident to the arrest.’ Preston 84 S Ct States, 364, 367, 376 US v. United (1964). L Ed 2d 777
“ very incident to an of a search ‘The notion temporal contiguity spatial arrest connotes proximity. eliminate would otherwise To hold pretense nexus between of a rational all tantamount would be the arrest and search and legally saying arrested an individual to thereby protection fourth under the all forfeits * * Searches Cook, *.’ Warrantless amendment L Rev 24 Ala Arrest, Incident to defendant’s search of either the case, “In this part place to be in time wallet was too remote very least or at arrest, of a search incident its burden state sustained be said that the it cannot contemporaneous reasonably proving this case.” under the circumstances literally ap language purported quoted ply case, an automobile Preston, the words of person. premises to searches Chinn, ease, post Preston a well-established however, There is, recognition incident an automobile that a search of may in a different time at a later arrest be continued *7 thorough place search. a under better conditions Maroney, 26 1975, 90 S Ct 42, 399 US Chambers v. McCoy, (1970); 160, L Or Ed 2d v. State App (1968); 503-504, 498, Diaz, 3 Or P2d 734 v. State (1970); Keith, 2 v. den 675, 473 P2d rev allowing (1970). rule den rev 133, 724, rea more is all the a car continuation of a search of persons applied because, of to searches sonable as degree higher among a accord reasons, other we objects. dignity person do to inanimate than we the approval pointed leading out with has A commentator delay expressed concern over that courts “have not merely per- in those eases which involve search of the son the one arrested: certainly proper, “Such a result is and this is regard may so without what think the one about delayed premises search of or automobiles. The passage really of time disconnect does not per search from the son who continues to as search is of the arrest, police custody. More apparent justification over, it is for search that the person long of the as as that continues individual custody. police
remains in con Indeed, reasonable duct would call for certain kinds of resort (such ‘strip searches search of station. And as search’ or the so-called
body cavities) only privacy long-recognized finally, in view the right belong police inventory suspect’s ings at the of search of the station, the limitation person would have little very incident time of arrest to arrest to the significance.” LaFave, “Search * * * Law has Seizure: The Course of True * * * not run Law Forum Smooth,” 1966 Ill. 304. person
Therefore,
search and seizure of
spot
which could have
the time of
been made on the
at
may legally
arrest
when the accused
be conducted later
place
arrives at the
States,
Abel v.
detention,
United
(1960),
362 US
4 L
or
217, 239, 80 S Ct
Ed 2d 668
police
even
station,
sometime after his arrival at the
Edwards,
United
94 S Ct
States
US
L39 Ed 2d 771
have
referred to no
We
been
Oregon
holding
contrary.
therefore
case
to the
We
conclude that a search
would be valid as incident
which
point
to arrest
if carried
of arrest
is not
out at the
solely
upon
invalidated
is
because the search
continued
arrival
extent that lan
at the
station. To the
guage
contrary
supra, expresses
language.
we abandon that
view,
*8
might
argued
theory
delayed
It
he
that
of
or continued search incident
arrest is a fiction and
reality
conceptualized
that
is
better
United
supra,
States v. Robinson,
Florida,
v.
Gustafson
supra,
person
which hold that the search of a
in cus-
tody
per
is
se reasonable and that
the evidence-
weapons-means
escape
apply
limitation does not
person.
Oregon Supreme
searches of the
Court
may may
accept
or
not
construction
the Fourth
by
Supreme
Amendment
It
United States
Court.
past acknowledged
supremacy
has in the
of that
court in matters of
constitutional law and has
federal
interpret
provisions
declined to
the search and seizure
Oregon
inconsistently.
e.g.,
Constitution
See,
supra;
Keller,
State v. Blackburn/Barber,
(1973);
28,
Or
4:74 *9 theory as limitation to is an actual
of so seldom which nullity. of allows a search A limitation which he a People drugs, e.g., body Jones, 20 see, for cavities Rptr (1971), cases App 201, Cal 3d 97 Cal to scholars of more benefit cited is a limitation therein, conceptual persons. shift of Thus the than to arrested reality. change in a is not Robinson-Gustafson clearly in- as case valid The search this is custody whatever is within cident arrest may applicable. intensity permissible standard as of probable may cause also as While it be sustained Murphy, 2 search, warrantless cf. Ct P2d rev den US 91 S den, cert (1970), not that L we need discuss Ed 2d 248
theory light disposition. The fruits of the of our properly admitted evidence. search were as assignment is that of error Defendant’s second judg- denying his motion for the trial court erred in acquittal which of I the indictment ment on Count of charged possession amphetamine. him with of jury reasonably inferred that
The could have amphetamine were the on Miss Miller tablets found Ege- subject by exchange the the witnessed Officer tending support Among such ter. the circumstances were movement an inference the furtiveness expression. changes itself and the defendant’s money passed Defendant contended that he had by was b¡ut to Miss this contention undercut Miller, fact had to his shirt the pocket, that defendant’s motion been hip pocket, his wallet was in his
whereas Egeter asked Miller the fact that when Miss Officer “nothing.” said The transferred, what had been she jury infer these circumstances was entitled to from that had in fact transferred contraband. defendant to draw an jury ap- entitled Finally, inference from fact the vial found propriate was identical to the vial am- containing on defendant found Miss tablets on Miller. While phetamine trial vial court ruled that the residue contained found on defendant was not alone sufficient to estab- lish the it did charge possession amphetamine, not exclude the vial from was free evidence. jury draw a common-sense conclusion from these circum- stances. a motion
Upon
judgment
acquittal,
evidence is to be viewed in the
most
light
favorable
the state.
v. Nix,
7 Or
Next, while the was their de jury engaged in liberations, they requested a and the court dictionary attorneys. ‹ provided it over the objection both Defendant assigns the furnishing as dictionary error. ‹ Now, ago, know, “THE COURT: few minutes as counsel jury request dictionary. dictionary,
the sent a out for a Not a law ordinary dictionary English language. an but I the mentioned you expressed opposition toit counsel and I and each to the some idea, dictionary jury room, sent nevertheless the in to the give you opportunity jury and I’ll an before returns now the exception. their verdict to take (defense counsel): Yes, “MR. TEISING in behalf the de- fendant, Honor, request exception I Your take to that. The was request specificity it, an oral Ias understand and there was no regarding dictionary purpose the for the or what ac- be complished by its use. myself requested “Both counsel for the State and that that done, and, specific request regarding not be no because there was any in dictionary, possible, reason for the use of the and because it’s my they view, could looked that have at the definition of evidence’, such term words tained in the as the ‘circumstantial that are con- dictionary, perhaps stray use that from the jury providing the with action in court’s dictionary of Books Anno., was error. Use Cf. Jury counsel 54 ALR2d 738 Where Boom, objection improper timely pointed out the made a dictionary put and the uses to which a could dictionary speculative reason's court furnished the inquiry jury’s we must need, and without as to injection prejudice un assume flowed from material and definitional authorized informational jury into the deliberations.
Reversed and remanded. concurring. specially
SCHWAB, J.,C. majority opinion, I but wish to concur my issue con- note search and seizure that as to the to in- be construed currence in the result should not reasoning fully that led to in the dicate that I concur concurring my opinion Williams, it. See (1974). my opinion, In simply point that bar turned on the the case at place defend- at the time of the the events which took police probable gave apprehension cause to ant’s drugs person. on his that defendant then had believe granting instruction, exception I to the would take court’s dictionary placing them for their use. with *11 (prosecutor): that The record should reflect KILMER “MR. objections. has the State no formal “THE Fine. COURT: by might say fact for record I was motivated the the “I the
jury the exhibits that were written had indictment had several they report had, example, documents, the officer’s with- why they any objection, out and it be number of reasons could dictionary English might lan- to have recourse to want meaning guage clarify perhaps that to the of word or a word by testimony. legiti- a witness in this It seemed like a was used request.” mate concurring. specially FORT, J., holding re- it was I concur with the court’s objection over the court, error for the trial versible dictionary to sent counsel, both have jury during jury’s deliberations. room my part upon Flor- dissent
Based (1973), Sup re- Ct ance, 15 (1974), part not con- because I do view allowed necessary the other issues discussed sider it reach join opinion, therein. Since court’s I decline supra, on review before is now Supreme inappropriate it to me to Court seems speculate Supreme upon what action of the Court may therein be.