494 P.2d 450 | Or. Ct. App. | 1972
Defendant was indicted for unlawful possession of the dangerous drug amphetamine. ORS 475.100. He moved to suppress as evidence certain matter seized at the Clackamas County jail by the officers on duty at the jail including a bottle labeled “Gantrisin” and its contents. After a hearing, the trial court granted defendant’s motion. The state appeals, pursuant to ORS 138.060 (4).
The relevant facts are undisputed and are as follows. About 12:4Q a.m. on March 2,1971, an Oregon City police officer arrested defendant for being drunk in public, in violation of ORS 166.160 (repealed Oregon Laws 1971, ch 743, § 432). Incident to that arrest, the officer searched defendant’s person and found a plastic bottle bearing a prescription label, the contents of which were wrapped in what the officer described as “Kleenex.” Without examining the contents, the officer returned the bottle to defendant and took him to the Clackamas County jail.
On May 18, 1971, the Clackamas County District Court entered an order suppressing the evidence taken by the jailers. Thereafter, the Grand Jury of Clackamas County returned into the circuit court an indictment charging the defendant with the offense of illegal possession of dangerous drugs. ORS 475.100. In the circuit court, in support of this motion to suppress, the defendant contended that (1) the circuit court was bound by the ruling of the district court, and (2) in any event, the plaintiff failed to carry its burden of proof in showing that the evidence was properly seized. After hearing the testimony of the arresting officer and the two jailers involved, the trial court ruled that, while it disagreed with the district court’s determination that the search and seizure was ’ im
In its sole assignment of error the plaintiff asserts that:
“The trial court erred in allowing defendant’s motion to suppress evidence in this case, because the circuit court was not bound by the prior ruling of the district court suppressing said evidence in proceedings prior to the return of the indictment herein, and because the evidence was lawfully seized incident to defendant’s arrest, as part of the normal jail booking procedure. * * *”
The majority of plaintiff’s brief is devoted to its assertion that the circuit court was not bound by the prior ruling of the district court on the motion to suppress. In this contention, the plaintiff is correct. In State v. Stahley, 7 Or App 464, 492 P2d 295 (1971), decided after this case was argued on appeal, we stated:
“Because we do not believe that the law was intended to prevent prosecutions by the state by making a non-appealable suppression order final, we hold, absent a supporting record, that the ruling of the district court suppressing the evidence at or prior to the preliminary hearing is not binding upon the trial court.” 7 Or App at 468.
Although the trial judge erroneously assumed that he was bound by the prior ruling of the district court, he did make a direct ruling on the propriety of the seizure and analysis of defendant’s pills. He stated:
“* * * I could be wrong on the validity of the search but it appears to me that the officer — when an Officer does what he did here, which was perfectly valid, and as a result finds out there is contraband, to me that is a valid search and seizure.*372 It’s legally obtained. * * *” (Emphasis supplied.)
To inventory an arrestee’s personal belongings as part of the standard booking procedure is lawful. State v. Sorgenfrei, 93 Adv Sh 1312, 1313, 7 Or App 442, 490 P2d 1040 (1971), Sup Ct review denied (1972); State v. Riner, 6 Or App 72, 485 P2d 1234, Sup Ct review denied (1971); ORS 142.210. When pills or other items which appear to be for medicinal purposes are found on an arrestee’s person during booking, it is particularly important that these be taken into custody. Such measures are necessary for, as one of the jailers testified, * * his [the arrestee’s] safety and for our security on contraband taken to the jail * * The jailers further testified that standard procedure requires them to pass out at regular intervals any necessary medicine to the inmates. OES 169.140 provides:
“The keeper of each jail shall furnish and keep clean the necessary bedding and clothing for all prisoners in his custody, and shall supply them with wholesome food, fuel and necessary medical aid. * * *” (Emphasis supplied.)
Trusted with this responsibility, it is proper that jailers take all reasonable precautions to assure that medicine to be dispensed is in fact what it purports to be and that it is necessary medication. This is particularly true when the “medicine” is found on an arrestee’s person during the inventorying of his belongings.
As indicated by recent cases, jail authorities are not entitled, without probable cause, to make a general exploratory search, seizure and analysis of all items found on an arrestee during booking. State v. Sorgen
Not only was this defendant in such a state of intoxication that any medicine might have been dangerous to him, but there is also evidence that one of the jailers, upon seeing the pills, doubted that they were Gantrisin. When asked why he contacted Dr. MeGraw, he testified:
“Because I had doubts that this is what it was. I didn’t believe this was Gantrisin that was wrapped up in the napkin.”
As pointed out above, jailers have a duty to take reasonable precautions to assure that prescription medicine to be dispensed by them to an inmate is both correctly identified and medically authorized. They are thus entitled to the presumption that official duty has been regularly performed. ORS 41.360 (15). Thus, we think that the trial court reasonably inferred that the seizure and examination of the pills was properly conducted pursuant to a duty enjoined by law upon the jailers. The court did expressly find that the seizure of the pills by the jailer “was perfectly valid.”
It follows from the foregoing that the judgment must be reversed and remanded with instructions to deny the motion to suppress.
Eeversed and remanded.
The doctor’s statements to the jailer were apparently excluded as hearsay, the results of the examination of the physician’s desk reference book as in violation of the best evidence rule, and the conversation with the defendant as in violation of the Miranda rule. Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966). No offers of proof were made. We do not here decide the correctness of those rulings, but call attention to the fact that the question before the court was simply the existence of probable cause or well warranted suspicion to justify the seizure and examination of the pills by the jail officials.