Lead Opinion
Dеfendant appeals a judgment of conviction for unlawful possession of methamphetamine (ORS 475.894), assigning error to the trial court’s denial of her suppression motion.
We describe the pertinent facts as found by the trial court, as the record supports the court’s findings. State v. Culley,
After defendant was charged with unlawful possession of methamphetamine, she moved to suppress the evidence found in the Altoids tin, arguing that Berry’s search of the tin violated Article I, section 9, of the Oregon Constitution.
On appeal, defendant assigns error to that ruling. Her argument is narrow. Defendant does not challenge Berry’s authority to open the backpack during her inventory of defendant’s van. Defendant also does not dispute that Berry’s observations of the visible contents of the backpack (including marijuana and hypodermic needles) gave her probable cause to believe that additional controlled substances were contained in the Altoids tin located inside the backpack. And defendant does not appear to challenge the principle that a search incident to arrest may occur when an officer has developed probable cause to make an arrest, even if the defendant has not yet actually been taken into custody. State v. Kemp,
Instead, defendant argues only that Berry could not open the Altoids tin as part of a search incident to arrest because Berry did not develop probable cause to arrest defendant until after defendant had exited the van and, therefore, no longer had control over the backpack and the Altoids tin inside it. In considering that argument, we review the trial court’s “denial of [the] motion to suppress for legal error, and we are bound by the trial court’s implicit and explicit findings of historical fact as long as the record includes constitutionally sufficient evidence to support those findings.” State v. Walker,
Defendant’s argument fails in light of settled principles that guide our analysis of warrantless searches that the state seeks to justify as searches incident to arrest. “Article I, section 9, guarantees that ‘[n]o law shall violatе the right of the people to be secure in their persons, houses, papers,
“A warrantless search incident to arrest can be made for any of three purposes: (1) to proteсt a police officer’s safety; (2) to prevent the destruction of evidence; or (3) to discover evidence of the crime of arrest.” Id. at 811. The first two of those purposes underlying the exception to the warrant requirement relate, in some ways, to exigency, that is, to an officer’s present need to keep people safe and prevent the destruction of evidence. It may follow that, in many circumstances, searches incidеnt to arrest for those two reasons will be justified only when the area searched is still within the defendant’s control, so that the defendant would be able to obtain a weapon stashed in the area or to destroy or conceal evidence located there. See State v. Groom,
However, the same is not true of the third basis for a search incident to arrest: “to discover evidence of the crime of arrest.” State v. Washington,
We discussed that principle in Washington, a case in which the defendant was a passenger in a car that was stopped by a police officer who saw the driver make an illegal turn. Id. at 534. The officer observed some indications of impairment and administered field sobriety tests to the driver, who failed them. Id. at 534-35. The officer arrested the driver and secured him in a patrol car, then searched the car (including the closed center console) for evidence that the driver had been driving under the influence of intoxicants. That search revealed evidence supporting the defendant’s arrest. Id. at 535. The defendant unsuccessfully moved to suppress that evidence on the ground that the search incident to arrest of the driver violated Article I, section 9. We held that the trial court correctly denied the suppression motion because the officer’s search of the car “plainly comported with Article I, section 9”: the driver “had been driving the car immediately before his arrest,” the officer “searched the car at the time of [the] arrest,” and evidence of the driver’s crime “reasonably could have been concealed within the car,” including the center console. Id. at 539.
Notably, the arrest of the driver in Washington apparently did not occur until after the driver was outside of the car and had performed, and failed, field sobriety tests. Id. at 534-35. What mattered was not whether the driver was still in the car or otherwise had сontrol over it at the moment that he was arrested. Rather, what mattered was that the driver had controlled the car “immediately before his arrest” and that the search followed closely on the heels of that arrest, making the search of the car incident to the driver’s arrest reasonable in time and scope. Id. at 539 (emphasis added).
That principle also is illustrated by State v. Augard,
We have similarly upheld searches incident to arrest in other cases in which the defendant had left the area that was subsequently searched before the officer arrested — or developed probable cause to arrest — the defendant. See State v. Burgholzer,
The common thread in all of those cases is that the defendant had been in a car, got out of the car (either to perform field sobriety tests or for some other reason), and an officer then developed probable cause to arrest the defendant for a crime that the defendant had committed while in the car. In each of thоse cases, we concluded that the officer’s search of the car incident to arrest was reasonable in time, scope, and intensity — even though the defendant had not been in the car at the time of their arrest.
The same result follows here. Berry’s inventory of the van occurred promptly after she determined that defendant lacked insurance and decided to tow defendant’s van, which was blocking a lane of travel. Berry developed probable cause to arrest defendant during the course of conducting that inventory, and she searched the Altoids tin (which was inside the backpack, inside the van) incident to defendant’s imminent arrest for that crime immediately upon developing probable cause for the arrest. Thus, Berry’s search of the Altoids tin occurred immediately after Berry developed probable cause for defendant’s arrest, and defendant had exited the van only shortly before that occurred. Thе search of the tin therefore was reasonable in time, scope, and intensity under the circumstances and, consequently, did not violate Article I, section 9. See Burgholzer,
Affirmed.
Notes
ORS 475.894(1) makes it unlawful “for any person knowingly or intentionally to possess methamphetamine” except in specified circumstances not present here.
Defendant’s suppression motion raised additional issues that she does not reiterate on appeal.
Defendant cites the Fourth Amendment to the United States Constitution but does not develop a separate argument under that constitutional provision. Accordingly, we do not separately analyze the validity of the search under the federal constitution.
Dissenting Opinion
dissenting.
I respectfully dissent from the majority’s holding that the search of the Altoids tin was justified as a search incident to defendant’s arrest. I believe that the search was unreasonable in light of the circumstances presented
Article I, section 9, of the Oregon Constitution guarantees “the right of the people to bе secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” “A search conducted without a warrant is presumed to be unreasonable.” State v. Hite,
I believe that, in light of the circumstances presented in this case, Berry’s search of the closed Altoids tin was unreasonable. After Berry stopped defendant for committing a traffic infraction and learned that defendant had been driving without insurance, Berry immediately arranged for defendant’s vehicle to be towed. Berry then conducted a routine inventory search in preparation for the tow. During that inventory search, Berry observed marijuana in plain view inside of a backpack and developed probable cause to arrest defendant for possession of marijuana within 1,000 feet of a school. At the moment that Berry developed probable cause to make an arrest, defendant had been removed from her car and denied access to it or its contents, including the Altoids tin. I believe that Berry’s search reached its logical stopping point after she observed the mаrijuana in plain view and had probable cause to place defendant under arrest for a crime. The state’s evidence failed to demonstrate any exigent circumstance warranting the continued and deeper intrusion into defendant’s personal property by searching the closed Altoids container for further evidence of the crime. Indeed, defendant’s vehicle was going to be towed, and Berry had ample opportunity to apply for a warrant to search the contents of the Altoids tin.
In reaching its conclusion, the majority draws a distinction between the first two justifications for search incident to arrest — officer safety and to prevent the destruction of evidence — and the third justification for search incident to arrest — to discover evidence of the crime of arrest. It is the majority’s conclusion that the first two justifications are rooted in exigency, while the third justification is not. As a result, the majority suggests that a reasonable search justified by officer safety and to prevent the destruction of evidence may be justified “only when the area searched is still within the defendant’s control, so that the defendant would be able to obtain a weapon stashed in the area or to destroy or conceal evidence located there.”
I do not agree that exigency should be taken out of the equation when the third justification for search incident to arrest is relied upon by the state. Nor do I believe that a search for evidence of the crime of arrest is justified when the area of the search is not within the defendant’s immediate control at thе time that probable cause is developed. Exigency is the backbone of the search-incident-to-arrest exception to the warrant requirement. See State v. Clarke,
I also disagree with the majority’s contention that a search “will comport with Article I, section 9, even though the defendant no longer has control over the area searched, as long as the evidence reasonably could be found in that area and the search is otherwise reasonable in time, scope, and intensity.”
Washington is factually very different from the instant case. The defendant in Washington was not the driver of the car, but was a passenger in the car. After the driver of the car was pulled over and arrested for DUII, the defendant was asked to leave the car so that it could be searchеd incident to the driver’s arrest. Id. at 534-35. During the ensuing search, marijuana was found beneath the driver’s seat and gun was found in the car’s center console. The defendant admitted that the gun was hers, and she was arrested for unlawful possession of a firearm and unlawful possession of a controlled substance. Id. at 535. At the time the driver was arrested and secured in a patrol car, the defendant was still seated in the car and had access to the center console and the driver’s side floorboard. The defendant’s presence during the driver’s arrest created an exigency that justified removing her from the car and searching it for evidence of the DUII. Furthermore, there was no evidence presented in Washington that the vehicle in question was going to be towed or impounded upon the driver’s arrest, which created another exigency justifying the warrantless search.
The circumstances here are quite different. At the time that Berry observed the marijuana in plain view and developed probable cause to place defendant under arrest, defendant had already been removed from the vehicle and denied access to the interior of the vehicle and its contents. The Altoids tin, which was found in a backpack between the front seats, was not within defendant’s immediate control at the outset of the inventory search. Rather, the tin was within the exclusive control of the police department. The state did not present evidence of exigent circumstances or provide any cause to believe that Berry could not reasonably pause to apply for a warrant to search the Altoids tin.
More troubling than the strict legal analysis is the implication of the majority opinion. If, as the majority announces, the state is entitled to search a vehicle, defendant’s backpack therein, and, further, a small opaque tin within that backpack, then where does the presumption of a requirement for a warrant begin? My point is simple. Once the exigency is removed and the police have time to reflect on the question of what is likely in the closed container, they have the time to request “a warrant authorized by a neutral and detached judicial officer” so as to insure a “‘reliable safeguard against improper
Under the circumstances of this case, where there was no exigency present and there was sufficient time for Berry to obtain a search warrant, I would find that the search of the Altoids tin exceeded the scope of a reasonable search incident to arrest. I would reverse defendant’s judgment of conviction. I therefore dissent.