*1 26,1983 July April Argued and remanded and submitted reversed OF OREGON STATE Review, on Respondent LOWRY, CRAIG MICHAEL on Review. Petitioner 28989) A22852; (TC 79-1588-C; SC CA P2d 996 *2 Divita, P.C., & Morrow, McCrea J. McCrea Robert petitioner for petition and filed the the cause Eugene, argued on review. Salem, General, Attorney Dickey, Assistant L.
Christine respondent on response for the and filed the the cause argued Prohnmayer, Dave the brief were her on review. With Gary, General. F. Solicitor and William Attorney General LINDE, J. concurring opinion.
Jones, J., specially filed a LINDE, J. faulty
After
defendant’s automobile for a
stopping
headlight,
deputy
driving
sheriff arrested defendant
under the influence of
hand-
intoxicants. When defendant was
cuffed,
small,
another officer
clothing
took from defendant’s
closed, transparent
amber
bottle which contained a white
powder. The
kept
possession
officer
the bottle in his
and later
cocaine,
had the contents
powder proved
tested. The
to be
defendant subsequently
was convicted of unlawful
substance,
475.992,
of a controlled
ORS
over his
objections
the warrantless seizure and search that gave
charge.
rise to the
affirmed,
Appeals
App 338,
Court of
59 Or
I. *3 contemporary Two together facts give large rise to a proportion of legal challenges to the manner in which an officer seizes evidence resulting prosecution. in a One fact is nearly personal universal use of automobiles. The other is the less universal widespread consumption but drugs other pursuit substances in of pleasure or other self-induced moods or sensations. Each has subjected been to more or less strict regulation the interests of health and safety. The state requires registered vehicles to be equip- to have certain order, ment in working requires and it drivers qualify for licenses, and to retain drivers’ drive a sober condi- tion, comply and to prohib- with the traffic laws. The state also its the regulated drugs, of various or “controlled substances,” for recreational or other consump- nonmedical tion, prohibition a by that lawmakers have chosen to enforce penalties procedures of criminal law. ORS 475.992. may That choice deter many potential drug engag- users from conduct; ing many criminal it also entitles the others who remain legal guarantees pro- undeterred to all the of those cedures.
340 and seizures governing rules searches
Especially stress frequent disproportionately come under are bound to enforcement day-to-day with the laws intersect drug when walking public a Ordinarily person laws. of the traffic clothing his or her no occasion to search streets officers gives contraband, unless or other drugs effects for forbidden or other to sus grounds reasonable cause or at least there is 131.615; a crime. ORS person has committed pect that 689, (1978); see also P2d 179 Fairley, 282 Or 580 1855, Lawson, 352, 103 Ct 75 L Ed 2d 461 US S Kolender v. entry (1983). for a valid warrantless rarer are occasions Even in his home or search when by patdown followed Davis, 227, 666 v. 295 Or See State private quarters. or other occasions, the 18th extraordinary as (1983). These are P2d 802 clauses, anticipating and seizure of the search century drafters forces large, permanent nor neither automobiles them enforcement, expected doubtless in routine law engaged to remain. however, laws, almost context of the traffic
In the
in the
to confront an officer
daily faces occasions
every adult
activity. Officers
entirely proper law enforcement
course of
equipment,
defective
they observe
stop vehicles because
large
or a
driving,
and unsafe
or erratic
plates,
outdated license
stop at a
as failure to
traffic violations such
variety of minor
A
of lanes.
improper change
or an
stop sign,
signal,
or to
registration,
vehicle
license and the
to see the driver’s
demand
482.040(2)(b),
stop
law,
prolongs
ORS
also authorized
may objects observed
So
investigation.
lead to further
may
instance, in State
vehicle,
happened,
in the
plain
view
Downes, 285
(1981);
v.
383,
State
Similarly, possession unlawful of controlled sub- hardly stances is a rare Oregon. form behavior in Even the fraction of police actually instances that come to attention and 7,802 produced lead to arrests arrests “drug classified as abuse” in 1982. While the published report statistics do not many prosecutions how of controlled sub- reasons, stances result from stops of vehicles for other appellate reports make clear that it is a large number. Since 1970, the establishment of the Appeals Court of about 320 of published opinions its have dealt with challenges substances, nearly involving seizure of controlled vehicles. these, Of stops about 50 have arisen from of vehicles in the course of traffic law enforcement.2 Division, Oregon Department Drivers Motor Vehicles of Trans
portation at 36-37. reports A check of 138 search and seizure decisions found in this court’s shows contraband, predominantly drugs. that well over half involved seizure of alcohol or liquor Before 14 of 25 cases involved or stills. Between the end of Prohibition offenses, beginning drug and the of the current era of there were ten search and years. drugs, seizure cases in 27 Since decisions have involved of 103 increasing percent from about 30 of the search and seizure cases in the 1962-1972 percent during years decade to 60 from 1973 to 1983. *5 they are figures, and of course are not exact
These in They do not include those all such cases. fraction of only no guilty, of or plea or a prosecution, was no which there important, no opinion. without Most affirmance appeal, or an in motorists number of instances which tell us the statistics less subjected are to more or regulations traffic stopped under or other no controlled substance searches in which intrusive of crime is found. evidence the extent
Nonetheless,
these numbers illustrate
Prohibition
today, as in the
of search and seizure
which the law
auto-
1920s,
phenomena
tested
the twin
era of the
disregard
widespread determination
socially
and the
mobile
stimulants,
drugs.
other
intoxicants,
against
laws
various
use on
and their
of motor vehicles
regulation
the intensive
As
arrests,
stops
of all
large proportion
to a
public streets lead
scope
issues of the
raise persistent
common events
these
answers, of
stop.3
traffic
The
accompanying
acts
further
motorist, not
ordinary
every
course,
rights
concern the
carrying a controlled
suspected
are
those who
peculiarly
legitimate
relation between
issue is the
One such
substance.
law,
enforce one
cause to
action on
warrantless
when
requirement
and the warrant
regulation,
as a traffic
such
Tanzer,
Roberts,
by Judge
Judge
joined
in State v.
made these observations
(1978),
grounds
App
Carter/Dawson,
other
287 Or
II.
have addressed this issue on
Oregon
Recent
decisions
Caraher,
State v.
statutory
grounds.
both
and constitutional
responsibility
Oregon
reaffirmed the
courts to
supra,
law, including
against
enforce
this state’s rules
convic
evidence,
to claims under
illegally
turning
tion on
seized
before
the federal constitution.
Specifically respect investigations with to incident to stops, traffic this court’s opinion Carter/Dawson, in State v. supra, quoted case, Appeals what Court of wrote in that analysis statutory “based its of both and constitutional law”: «* * * stops possible Traffic should be the minimum intrusion motorists, begin questioning,
on and not an excuse to searching investigating or that is unrelated to the traffic rea- stop. son for the stated,
“Simply
‘clear,’
when the ‘records check’ came back
Officer Miller could do no more than write a citation and send
4 See,
Burks,
e.g., Haynes
83,
(1980)
75,
(speedy
v.
290 Or
defendants nothing objective do with the reason investigation that had so, If the officer extended the (speeding). he did stop for the legally sufficient articulated stop without duration cause.” 796-97, Or at 486. quoted in 287 32-33, 578 P2d App at policies found legislative referred to the Appeals
The Court of scope 131.615(2) (3) to limit the and ORS 484.435 in ORS stops for traffic offenses.5 activity incident to investigatory apply because the themselves do not the statutes Even when concern does not lose arrest, legislative this stop becomes case, however, defendant has present In the significance. all himself as a who described deputy, raised no issue whether property and retain to seize officer,” was authorized “traffic arrested on a person from a obviously contraband is not validity of only the constitutional offense, challenging traffic search of the bottle.6 subsequent the seizure 131.615, quoted Appeals as follows: ORS The Court tt * * * [*] vicinity stop inquiry “(2) in the shall be conducted The detention longer time. than a reasonable
and for no only if “(3) inquiry limited to reasonable shall be considered ” suspicion.’ that aroused the officer’s circumstances immediate Appeals: quoted by the Court 484.435 as ORS “ ‘(1) incidental to an law otherwise authorized and seizures Searches B, committing charge C a Class is on a if the arrest shall not be authorized arrest person custody arrest in which is a full unless the arrest D traffic infraction place under arrested lodged jail, and the decision is to be arrested being justifying his upon specific custody articulable facts based arrest is full lodged jail *7 chapter provided in this being given as a traffic citation than rather released. “ (1) to forbid a ‘(2) be construed Nothing this section shall in subsection deadly weapons to under ORS 131.605 dangerous authorized or for' frisk ” 131.625.’ App at 31-32. 34 Or 6 caselaw, by citing adequately authority question be briefed cannot limitations; yet only opinions generally with constitutional appellate deal
because open-ended necessarily carry it authorization with employment an officer does See, e.g., they provided not unconstitutional. any are and all actions to take States, Catering (1978); 689, 580 v. United Fairley, P2d 179 Colonnade 282 Or State (1970). 774, 72, L Ed 2d 60 90 S Ct 25 397 US example, Manual states: Police the State
For
immediately
offenses,
any
search
shall
making
members
“Upon
an arrest
escape
possibility
weapons
assault or
to avoid
person arrested for concealed
any incriminating evidence.”
and for
also,
respect to the constitutional challenge,
With
our
have
recognized
comparable
decisions
limit to the extent of
persons
searches of
and effects without a warrant. State v. Car
aher,
reviewed the evolution of the
supra,
limits that Or Const
9,
I,
places
scope
art
on the
of warrantless searches and sei
§
t.7
to an
valid
zures incident
otherwise
arres
It restated the rule
beyond
that in order to extend
the immediate necessity
pro
to
tect the
officer
arresting
prevent escape
or
or the destruc
evidence,
tion of
such a search or seizure of “effects” incident
to an arrest must relate to the offense
prompts
which
arrest,
O’Neal,
citing
State v.
(1968);
251 Or
In the course of a valid traffic stop of a vehicle or a permissible arrest, frisk incident a stop or an officers some may times come other suspicious items. But these not be seized on suspicion alone; probable required. cause is Elkins, State v. supra, found a constitutional violation in the seizure pills in a bottle incident to an arrest for public drunkenness, suspicion because mere did prob not constitute able cause for the officer to believe “that the article he has Department Police, Manual, XI, § of State Art. We understand this section “incriminating to direct the officer to search for evidence” of the offense for which he Caraher, supra, arrest,” “making consistent with is all items not for might possibly incriminating be in relation to an offense not otherwise known to the manual, recognizes “stop officer. Also indicative is section which and frisk” suspicion rights” as a “severe restriction on individual and limits its use to reasonable authorized, prison” of felonies or misdemeanors for which a sentence “in accord- ingly excluding violations.
The arrest this case was not made state officers. I, Or Const art 9:§ right people persons, “No law shall violate the be secure their houses, effects, papers, search, seizure; against unreasonable or and no cause, oath, affirmation, upon probable supported by warrant shall issue but or particularly searched, describing place thing to be and the to be seized.” *8 346 being is and a crime com-
discovered contraband therefore is The case present 245 at 284. state’s brief mitted.” Or on that State v. Elkins had been over- proceeded premise Florance, 169, (1974), 270 527 P2d ruled State v. Or 1202 The assumption Appeals properly rejected.8 that the Court of of sustained the officer’s that court nevertheless its con- opening testing action in the bottle retaining tents, of theory on the that the characteristics the bottle could trained “hypothetical a officer” or “an officer cause reasonable respect illegal drugs” reasonably to believe that with to App bottle contained contraband. 59 Or 344. Appeals judicial
We not follow the Court of into need extent to has speculations contemporary on the which culture powdery made bottles and containers of white substances possession facie of criminal of their contents prima evidence question potential therefore to seizure. That of subject is carry baby powder, a supply to who or table people concern medicines, a salt, legitimate if of such because observation probable substance an unconventional container suffices as contraband, suspect it possession cause to also suffices cause to arrest whose probable present case, however, is In the the seizure container observed. subsequent to a valid arrest and the test- of the bottle incident not as two ing properly analyzed of its contents are as one but alone of both “probable dispositive events. For cause” is not question probable not cause to steps. simply The is whether “search,” say, to of the bot- investigate, that is to contents exist, to do so any did or did but whether there was need tle without warrant. “proba ties the phrase constitutional text itself superfluous It seems never to become
ble cause” warrants. for a search repeat requirement judicial that the of a warrant authority is and that to act on an officer’s or seizure the rule is justi cause without warrant own assessment Hansen, v. 295 Or only by exception. or another State fied one P2d 78, 664 (1983); Carsey, 32, 38, 664 State 295 Or P2d 1095 Greene, (1983); 340-41, P2d 1362 State v. 285 Or 591 1085 Miller, (1979); State v. P2d 1399 there is judicial determination whether The time make Brown, 642, 634 (1981), that case also P2d 212 but The state cites Or solely presented under federal fourth amendment caselaw. was decided seizure, permits, if time for a search or a cause privacy adjudication is invaded. A later the individual’s before necessary, does evidence, although suppress motion to upon are cleared invasion, help persons does not who not undo the perception “probable and colors prosecuted, and never *9 Greene, See State v. in fact revealed. by cause” what the search for opinion). The reasons (concurring at 351-355 supra, 285 Or or another of always are one form exceptions the from the rule necessity to act a warrant can be obtained. practical before dispute whether
In this case there substantial a pill bottle to contain reasonably himself believed officer fact has reasonable an officer in controlled substance. When need belief, practical also face the cause for such a he often will magis- a long enough for to retain the bottle or other container seize and to there is cause to trate to decide whether to an contents, unless the owner consents test the unknown exception property. immediate test in order to recover his depriving extends to the owner requirement from the warrant necessary as to it and to obtain possession long safeguard of as a decision. But unless the substance is volatile speedy judicial normally proceed need to without a warrant practical extends no further. in the course of arrest-
Here the
bottle was seized
nothing
defendant for a crime
which the bottle had
ing
with
this case and Car-
do. This is the decisive distinction between
aher,
seizure of evidence from
which sustained
warrantless
possession
for
of a
purse
Caraher’s
because “the arrest was
to believe that
controlled substance
it was reasonable
[and]
carry
purse.”
in her
defendant would
contraband
suspected
for or
present
759. The
defendant was not arrested
any
indisputable
controlled substance. Nor did the
having
obser-
nature
the substance become evident to the officers’
arrest, may
the routine of the
simply
vation
in the course of
tools, specific prop-
happen
weapons, burglar
when unlawful
stolen, marijuana, or other contra-
erty already known to be
a frisk.
stop
in a traffic
or
plain
band is discovered
view
a
deprivation of
only temporary
An arrest itself is
jus
he pleases,
and when
person’s
go
normal freedom to where
answer to a crimi
person
cause
hold the
by probable
tified
of arrest
process
reason. The
by
legal
nal
some other
charge
consequences
subsequent custody have incidental
and the
implicitly
they
necessary
are
authorized insofar as
are
to those
needlessly “rigorous.”9But
functions and not
the mere arrest
custody,
arrest,
from the reasons for the
do
divorced
not
person
belongings
inquisitorial
subject and his
to unlimited
apply
powers
if he
not
that would
were
arrested. Both
Appeals quoted
and the dissent in the Court of
from
limiting
scope
opinion
Elkins,
in State v.
this court’s
warrantless searches incident to arrests:
“
otherwise,
‘If the rule were
an officer who desired to
crime,
inculpate
an arrested
another
could seize
person’s
everything
such
immediate
and control
upon
prospect
investigation
on further
some of it
might prove 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
at the time of his arrest
sion
control
it in an
connect him
minute examination of
effort to
with
practice
explora-
another crime. Such a
would be as much an
tory
seizure as one made
an arrest for which no
person’s property
invasions of a
cause existed. Intolerable
rights
post
ex
would be invited
authorization of a
facto
*10
groundless suspicion.’
seizure made on
Though slightly different, here the issue is the con cern remains the same. If a search incident to an arrest is not per justify “exploratory “everything in such seizure” control,” such seizures must son’s immediate reasonably to the cause be limited to items that relate supra, prede Caraher, arrest, held in State v. and its for the arrest cessors. Other “effects” unrelated to may reason sight if nature as contraband is evident on be seized their requires or, tests of an unknown sub if this determination opening container, of a closed to secure them for the stance or pur this search is least amount of time needed to obtain a warrant for showing pose upon cause that further justified. case, in the search of Because that was not done this beyond testing of its contents went what is bottle suppress permissible warrant, and the motion to without have been allowed. should
9
I, §
Or Const art
13:
arrested,
unnecessary
jail,
or confined
shall be treated with
“No
rigor.”
A
response
concurring
word should be added in
to the
opinion.
chiefly
Its criticism is directed
this court’s
against
Caraher,
deci
year
supra.
present
decision last
The
Caraher;
merely
opinion disagrees
sion
follows
the concurring
prefers
with Caraher and
to the federal rule of
tying Oregon
Robinson,
467, 38
United States
414 US
94 S Ct
L Ed 2d
The court’s
opinion
speaks
Caraher
for itself and
need
repeated
any
not be
here.
is there
why
Nor
reason
rule,
here,
Caraher
which we follow
should cause the wide
spread
fact,
confusion feared
our
In
concurring colleagues.10
Caraher
originate
did not
a new rule but
reasserted
rule
stated in three earlier Oregon decisions cited in the opinion,
“expanded
decisions that
justification
for a search incident
beyond
to arrest
considerations
of the
safety
officer’s
destruction
permit
of evidence” to
a reasonable search “when
it is relevant
to the
being
crime for which defendant
Caraher,
arrested.” State v.
supra,
Reversed and remanded.
JONES, J., specially concurring. I concur in the result object this case but to the analysis by it which was achieved.
UNITED STATES SUPREME COURT DECISIONS I, decides this case under Article Section 9, of the Oregon Constitution. proper opinion accuracy We do not think it in this to comment on the *11 parade examples concurring opinion’s concurring of in the “Pandora’s box.” The opinion responsibility Appeals deciding is correct that the Court of shares initial for awaiting issues of law without decisions of this court. Const, I, 9, provides:
1Or Art § right people persons, “No law shall violate the of the to be secure their houses, effects, search, seizure; papers, against or and no unreasonable oath, affirmation, cause, supported by warrant shall issue but or searched, particularly describing place thing to be and the to be seized.” 350 Wilkes, Jr., E. Professor Donald ago a decade
Almost entitled Federalism in his article prophetic words wrote some Burger Evasion State Court Criminal Procedure: of (1974). that the United Court, commenting After L J 421 Ky 62 of a tribunal transformed from Court has Supreme States and self- modest aims to one of legal daring unprecedented courts predicted he accomplishments, limiting “[s]tate if, anticipa- importance, new verge gaining of may be on retrenchment, constitutions state Court’s Supreme tion He power.” of limits on state important source a more become continued: “* * * may provide the out- fact, In constitutions state * * * deferential disagree with the more who judges
let for legislation and toward Supreme Court take approach the Id. 421. at other state action.”
He continued: has Supreme] shift attitude Court’s States “The [United development in crimi- astonishing ripe made conditions nal courts Supreme Court state that procedure —evasion are no rights of criminal defendants
willing protect as inter- the Federal Constitution guaranteed under longer Id. 425. Supreme] Court.” preted by States the [United recently when pass came to prophecy2 This Long, Michigan 51 Court decided Supreme United States case). (1983) (a and seizure search USLW when state held that opinion, In a 6-3 were expressly they clearly indicate decisions court indepen- adequate fide, separate, on “bona decided based undertake to will not Supreme Court grounds,” dent state Supreme Court importantly, the decision. More review Supreme how to avoid courts on to state provided guidance prece- federal relying on the same time while at Court review and laws: state constitution as its own dents as well * “* * pre- merely rely on federal If court chooses a state jurisdictions, all other precedents as it wouldon cedents Interpretation Note, State Constitu 2See, e.g., Developments in the Law: The Rediscovering (1982); Kelman, the State Foreward: Rights, Harv L Rev 1324 tional (1981); Note, Federalism: Rights, Wayne The New L Rev 413 Bill Constitutional Constitution, L Interpretation 29 Stan Rev Principled the State Toward
351 only by plain judg- then it need make clear statement its opinion being ment or that the federal cases are used purpose guidance, compel and do not themselves result that way, justice the court has reached. In this both and judicial greatly improved. administration will be If the state clearly expressly court decision indicates and that it is alter- fide, natively separate, adequate, indepen- based on bona and we, course, grounds, dent will not undertake to review the decision.” significant
Even more Long Supreme is the Court’s encour- agement to state courts to decide cases under their state own constitution and laws:3
“* * * approach We provide believe that such an will state judges opportunity develop with a clear jurisprudence to state unimpeded by interference, yet federal preserve and will integrity of federal ‘It is law. fundamentad that state courts be by left free and in interpreting unfettered us their state con equally important stitutions. But it is ambiguous adjudications obscure by state courts do not stand as barriers a determination validity this court of the under the Co., federal constitution of state supra, action.’ National Tea U.S., at 557.” 309
Modernly, this court has demonstrated a strong pol- icy that always we should consider our state constitution before turning Further, the federal constitution.4 it has been suggested that “we owe this state the respect to consider the state question constitutional even when counsel does not raise it, which is most of the time.”5
I agreement am in total that we should “develop state jurisprudence” whenever there a principled reason to do so. Long
3The court in
also said
“* * *
* * *
fairly appears
primarily
a state court
[W]hen
decision
to rest
on
law,
law,
adequacy
federal
or to be interwoven with the federal
and when the
independence
any possible
ground
state law
is not clear from the face of the
opinion,
accept
explanation
we will
as the most reasonable
that the state court
way
required
decided the case the
it did because it believed that federal law
it to do
so.”
The court did not further define “interwoven.”
Flores,
4Starting
dissenting opinion
273,
in State v.
with a
280 Or
(1977),
Kennedy,
ending
recently
260,
in most
295 Or
In such it Supreme guidance occur when is neces- Court’s should Oregon’s under sary provide Oregonians greater protections to merely on a and not principled constitution basis achieving sole of caprice purpose whim and of this court for the provincial result. protection purpose, This serves dual court as society a whole. rights protection individual and also rul- depart the familiar and institutionalized When we from Supreme complex Court in the ings the United States cau- myriad seizure,6 extremely we be area of search and must police, hopelessly pros- tious our do not confuse decisions ecutors, attorneys, public and the with search judges defense Oregon injects which jurisprudence unique seizure complexities into law. We should be reluctant unnecessary special to create of criminal defendants categories (those those are arrested state authorities and arrested who authorities) by granting protec- state defendants by federal or intended contemplated as tions that cannot be documented by the of Oregon’s framers constitution. Robinson, (1973) 6E.g., 218, 467, L Ed United States v. 414 94 S Ct 38 2d 427 US 752, 2034, 23 California, (search v. arrest; L Ed Chimel 89 S Ct an 395 US incident Hampshire, Coolidge arrest); v. New (1969) (scope 403 2d 685 of search incident Ohio, searches); Terry 433, 2022, (1971) (open view v. 392 29 L 2d 564 US 91 S Ct Ed States, frisk); v. 1, 1868, (1968) (stop Carroll United L 88 20 Ed 2d 889
US S Ct 280, (1925) (automobile exception 132, 45 to search warrant L Ed 543 267 US S Ct 69 Ross, (1982) 798, 102 2157, requirement; L Ed United States v. S Ct 72 2d 572 456 US (closed searches). container
353
THE
OREGON RULE
SHIFTING
v.
If this case were decided under United States Robin
son,
(1973),
414
94 Ct
simplification.
the rule of Robinson would add
adopting
Not
further
‘Oregon
confusion
that there
then
would
be an
rule’
*14
frequently
a ‘federal rule.’ Federal and state law officers
together
many
work
and in
instances do not know whether
prosecution
their efforts will result in a federal or a state
or
In
both.
these instances two different rules would cause confu-
sion.
reasons,
previous
“For these
we overrule
our
decisions
O’Neal,
State
(1968)],
Or
previous they decisions to the same effect to the extent that contrary are adopt. to the rule which we now This is consistent with the views of most of the state courts which have as of this Robinson. date considered the rule of Most of such courts quote apparent approval. that rule or cite that decision with [Citations omitted.]” Caraher,
In
(1982),
293 Or
7These cases were decided on the same Brown, 291 Or reasoning,” “persuasive principled without to their swad- pinned than a note and with little more dling clothes. followthe federal law chose in Florance to “This court
Robinson,
mini-
adopted
constitutional
the federal
and thus
protection
privacy
cases of
mum standard for
to do so.”
do not now choose
to arrests. We
searches incident
Caraher,
With this terminated. deserting for
The justification Robinson/Gustafson stated as: and Florance was * * “* cata- the task of reluctant to embark We are required personal property in the manner
loguing items of
the focus on the char-
cases. We find that
adherence to federal
which seem
property
has led to results
searched
acter of
sur-
upon fortuitous circumstances
frequently to turn
too
rounding
personal belongings
transport
chooses to
how one
straightforward assess-
in failure of a more
and has resulted
against government
protections
individual
ment of those
intrusion which
federal,
constitutions,
seek to
both state
* * *”
preserve.
Caraher at 756.
to an
in a search incident
court held that
The Caraher
the crime for
must be related to
any evidence seized
arrest
the defendant was arrested:
which
possession a
sub-
of controlled
“Because the arrest was
carry
that defendant would
it was reasonable to believe
stance
contraband
already
and,
purse
although, the officers
in her
they
prevented from search-
possessed
were not
some evidence
crime,
Accordingly,
that the nature of the
ing
we hold
further.
here,
i.e.,
defen-
involved
possession, and the circumstances
compan-
selling ‘bunk’and her
that she was
dant’s admission
cocaine,
carrying
justify the
was
statement
that she
ion’s
find in addition that
to arrest. We
as an incident
search
space
it
to the arrest
was close
time and
because the search
* *
Id. at 759-60.
of reasonableness
meets the standard
in Caraher is there was
troubling
particularly
isWhat
Elkins,
279,
THE INSTANT CASE present question majority In the case the does not right police driving officer to arrest the defendant for right while under the influence of intoxicants or the to conduct a search of the of the defendant incident to the lawful majority arrest. The finds the seizure the bottle incident to a subsequent testing valid arrest and the of its contents are con- says majority question sidered as two events. The is “not simply investigate, say, whether cause to that is to ‘to exist, search’ the contents of the bottle did or did not but any whether there was need to do so without a warrant.” 295 majority Or at 346.The concludes that the search of the bottle reasonably purpose did not relate to the for the arrest and opened By therefore could not be a without warrant. so hold- ing, says reasonably that had the bottle related to e.g., liquor arrest, cause for the a half-filled container of person, opened found on the defendant’s it could have been and its contents tested for alcohol without a warrant. The powder frag- Caraher, same was true in where white tablet ments were seized from closed containers and tested without intervening warrant.
Paradoxically, majority seemingly in this case the approves a search a incident to lawful arrest for a non-related 8However, requirement suggested by a warrant was Justice Lent in dissent
Caraher. He said: citizenry police, by “The and the courts of this state would be served a best simple holding prohibits that the Constitution the warrantless search police placed beyond closed container seized the reach of the arrestee. this, they In a case such as would know that must not search the making showing magistrate container without first to a that there was purse Assuming showing cause to believe the contained evidence of crime. such a made, could be I would observe that the same evidence for conviction would have been obtained accordance with the constitution as was obtained here Caraher, judicially approved only scrutiny.” manner after three levels of at 771. weapons, in a of “unlawful bur- offense which results seizure stolen, tools, already to be mari- glar specific property known *16 in a plain or is view traf- juana, other contraband discovered stop unexplained frisk.” at “one fic or a 347. With this sentence,” at and unelaborated United States Robinson an and sei- majority hopelessly the scrambles area search already complexities confusion. fraught zure that is with and exceptions requirement to the warrant By commingling three (1) one a incident to a lawful ambiguous sentence: search arrest; (2) require- warrant plain exception the view to the (3) ment; the and to the warrant stop exception and frisk officers, requirement, prosecutors, law enforcement defense attorneys judges and are done a disservice. paper a
Query: if a law enforcement officer removes robbery the of a arrested bag person from tools, is recognizes burglar the upon looking paper bag the may holding burglar the tools be seized that striations, etc., they saying or are that examined for tool mark a burglar may tools be seized but not examined without the warrant, tools be they saying burglar or are that on occasions they marijuana at all? Are that all saying seized if in a to a arrest even it is may be seized search incident lawful arresting even if the contained in a closed container or familiarity marijuana recog- and does not officer has no with is discovered in sight? marijuana nize it as such How “plain view” a “frisk”? during per- of the provided
Robinson needed clarification to an “scope” “intensity” missible search incident of a lawful arrest. The court said “we hold that in the case only excep- is not an custodial arrest a full search of the Amendment but requirement tion to the warrant Fourth Robin- also a search under that amendment.” is ‘reasonable’ from son, “intensity” in Robinson resulted at 235. The issue package,” arresting removing “crumpled up cigarette officer opening pocket the defendant’s coat Robinson at from capsules of white finding gelatin cigarette package and significant Robinson is powder. highly What recognize package did he opened cigarette after officer The United he believed to be heroin. powder the white which finding unnecessary found it make Supreme Court States time of the officer’s observation point However, to seize the heroin. cause existed capsules probable finding can be inferred from the result in the case. The such a Supreme thought significant it include in its Court was “15-year opinion arresting that the officer was a veteran of the Metropolitan Department.” District of Columbia Police Although find, the court did not so it can be inferred that the experience ability reference to the officer’s recognize dealt with his powder capsules gelatin the white in the as heroin. reading supra, Elkins, A close of State v. demonstrates majority’s holding that the in Caraher cannot be reconciled solely with Elkins. Elkins was concerned with the officer’srec- ognition arrest, of what he “The saw. cause for the good making arrest, faith of the officer in the time of arrest, the search in relation to the the extent of the area intensity problems searched, and the of the search” were not Elkins, involved in at 282. arresting Elkins,
In officer testified that his sei- *17 pills prescription zure of white found in an unlabeled bottle suspicion probable were based on mere rather than cause. As followingquestion Elkins, the court framed in the issue “the posed by this case. When an officer has made a arrest lawful conducting something and is a lawful search and observes he suspicious, does not know to be contraband but which he is suspicions he take it and be sustained in a seizure if his subsequently prove to be well-founded?” Elkins added). (emphasis inquiry by holding, The court resolved the grounds “he must have reasonable to believe that the article he being has discovered is contraband and therefore a crime is committed.” Ibid. The critical difference between Elkins Robinson, is that the officer in Elkins was unable to establish probable observing cause to believe that what he was was con- drugs traband the officer in that he Robinson testified believed what he saw was heroin.
Consequently, my view, in are Elkins and Robinson conducting reconcilable. I would hold that an officer a search always that incident to a lawful arrest must be able to establish observing he had cause believe that he was what I was contraband or fruits or instrumentalities of crime. do not believe that the issue should be whether or not the search the related to the crime but or seizure incident to arrest is rather the officer can to the satisfaction of whether establish training experi- knowledge, that on his
the court based he observed ence, cause to believe that what there is I the time. believe contraband and he knew it at the Where was case and broke down analysis down in this majority’s breaks arresting question legality Caraher is on the container, such as the of a closed inspecting officer the inside paper packet and the “bindles” pill bottle this case Caraher. was able to observe the
In the instant case the officer the bottle because opening without contents of bottle and the transparent bottle was the evidence indicates by looking through powder observe white within officer could Caraher, no In there was evidence the side of the container. what was in the the officers could determine indicate they opened or piece paper” “white until “bindles” or in the court’s dis- nothing There is also unfolded these items. searching possessed officers indicating in Caraher cussion tech- recognizing drug packaging illicit any special expertise niques or characteristics. Elkins, between Robin-
The critical factual difference son, Caraher, although in the instant case and this case is that without the contents of the bottle the officer could observe the contents of it, testify that he believed opening he failed to record Elkins similar but the drugs. the bottle were illicit was confronted with in Elkins was does not indicate that officer But the officer in as in this case. transparent container testify recognized that he substance Elkins also failed to but, critically, in that case was similar drugs. illicit Robinson gelatin capsules discovering after the officer testified that heroin, powder to be containing powd white believed with was unconcerned apparently at 223. Caraher Robinson as to question undecided expertise, leaving the officer’s *18 could be paper packet than a “bindle” or what containers other that suggesting seems to be majority In this case the opened. and his rea- expertise had testified as to his even if the officer bottle, officer in the the belief he saw contraband sonable magistrate from a to a warrant required would still be obtain subsequent testing. and of the contraband for the seizure the to be read to establish majority’s holding If is the can be seized only time that contraband rule of law that the the contraband is arrest when a incident to a lawful search warrant, I to the arrest is when the obtain a related unworkable, a simplify such rule is does not search believe and jurisprudence Oregon, opens up seizure and an incredible box of For pandora’s example: confusion.
(1) If a container found on of an person the arrested is, opaque, inside, is the officer has no idea what is hardly requisite probable he could establish the cause to obtain a If the drugs, warrant. container contains contraband the inability within prohibit officer’s to look the container will the drugs they retention of the will to be returned the arrestee his thereby continuing release from the of jail, presence drugs in community. illicit the
(2) Certain clandestine drugs uniquely packaged are many special officers have knowledge, training experi- which qualifies ence them to establish cause based i.e., on simply characteristics, balloons, packaging tinfoil bind- les, containers, film etc. An officer expertise with this can to establish cause believe that within containers are contraband and if the drugs containers are removed from an arrestee at arrest, possible the time his purpose what be could served requiring go officer to to a to magistrate open obtain warrant to the container?
(3) If the packaging containers are of a type that are transparent, and the officer can he recognizes see what be to illegally possessed this drugs, obviously falls within the “open doctrine” never required view which has the officer to rush to magistrate subject obtain a warrant to the drugs to a labo- test. ratory
It is simply society a fact of life in our that substantial numbers of arrested are be in persons possession found to contraband at the time of their If these arrest.9 defendants to very they choose commit offenses at the same time to elect contraband, be in timing this is a matter of bad part defendants, they on the for which have them- challenge point to blame. I selves to one iota compelled point my majority opinion 9I 6 of feel out that view footnote (the Manual), writing In 1979 erroneous. date of the of the State Police Robinson/ Florance, adopted by supra, Oregon. rule was the law It stretches Gustafson imagination suggest self-impose State would more Police required by search and seizure on their restrictive rule officers than United States Supreme Court or this court. *19 history Oregon’s to that the framers of con- Oregon indicate I, stitution, particular Article Section ever intended the protections envisioned this decision. decision, if a and this defendant’s
Under Caraher arrest, a loaded drugs following drug searched for purse were cards weapon purse concealed10 in a or known stolen credit apparently be without a war- purse, found in the could seized seizure of Robinson/Gustafson, rant. the Under Florance hand, clearly If, the such would also be lawful. on other items driving for under the defendant Caraher had been arrested purse had searched of intoxicants and her been influence Robinson, “any and evidence of purpose” as was case discovered, weapon or known stolen credit cards were a loaded law, but not suppressed would be under such evidence a container Similarly, purse law. if the revealed under federal the officer did not crumpled cigarette package such contained, open it he could under package know what Oregon law. This result he not under Robinson but could incongruous. right court held that the officer had
The Robinson inspect contents package open cigarette the closed any cause. The officer testified: therein without “* * * just ‘I him I didn’t think about searched [Robinson]. just I him.’ OfficerJenks also looking what I was for. searched cigarette package upon removing the from testified that respondent’s custody, in the he was still unsure what was Robinson, cigarettes.” knew package, but that he it was n US at 7. the officer opening cigarette package after It was be, he and which thought powder observed the white “which be, Id. at 223. analysis proved to heroin.” later analyzed these fac- Supreme Court The United States held: tual considerations and
“* * * Having in the course of a lawful search come inspect cigarettes, he entitled to package of was the crumbled it; capsules, he inspection his revealed the heroin and when prohibits weapons carrying about one’s of various concealed 10ORS 166.240 person. instrumentalities, ‘fruits, or con- was entitled to seize them as omitted.) (Citations probative of criminal conduct.” traband’ Id. at 236. Caraher,
In
discussed New York
(1981), and
Belton,
454, 101
The Belton court held: “* ** policeman We hold that when a has made a lawful automobile, occupant may, custodial arrest of the of an he as a arrest, contemporaneous passenger incident of that search the compartment of that automobile. police may
“It follows from this conclusion that
the
also
any
pas-
examine the contents of
containers
the
found within
compartment;
senger
passenger compartment
if
is
for
arrestee,
within reach of the
so also will containers be within
Robinson, supra; Draper
United
v.
v.
States
United
his reach.
States,
The court defined “container” as: “ any object capable holding ‘Container’ here denotes * * *” Id. at 460 object. n 4.
another case, in this opposition majority’s holding In direct to the searched need not be Belton court held that container purpose related to the for the arrest: possession marijuana stop 11Belton involved a traffic for followed an arrest subsequent search. course, true, will sometimes that these containers
“It is weapon evidence of a nor they could hold neither be such that Id. suspect arrested.” was conduct for which the criminal 461. at a suspect probable cause is based on
“A
arrest of a
custodial
Amendment:
under the Fourth
reasonable intrusion
requires
lawful,
incident to the arrest
being
a search
intrusion
461, quoting
Robin-
Id.
from
justification.”
additional
no
son,
If under United States a in the case of be lawful and contraband would seizure of such would of its contents for examination “pill opening bottle” its driving for under allowed, a defendant arrested why should be able to evade by Oregon police be of intoxicants the influence if drugs of contraband responsibility criminal Further, escape. an avenue of such prohibits federal law who claim committing identical crimes Oregon defendants e.g., State rights, of federal constitutional solely a violation courts, thus applied by state Brown, have Robinson supra, will law. in the consistency predictability thwarting goal cannot know how person put court it: “When As the Belton situation, recurring fact apply principle a settled court will pro- of his constitutional scope cannot know *21 authority.” his scope know the tection, policeman can a nor Belton, at 459-60. I, pre- and Article Section Amendment
The Fourth “effects” which includes privacy invasion of an unlawful vent — — the con- testing field the greater is the intrusion what majority the concerns would solve of a bottle which tents salt, or a table only baby powder, may contain the bottle seize The officer could labeled.12 properly medicine legitimate immediately to the defendant it it, it, and return test (or prop- in such jail), arrest custody. If still under from release release.13 pending likely inventoried most be erty would proba- had if the officer holds that even The majority the contraband contained that the bottle cause to believe ble the keep it from and to retain bottle need officer would 475.185(7). 12See, ORS discovery were not briefed inventory of inevitable searches and the doctrine Jail 2605, 77 640, 103 See, Lafayette, L Ed 2d 65 S Ct argued. 462 US Illinois v.
or prevail upon magistrate defendant and then to decide whether there was cause to and test open the con- perhaps tents. This could take several hours and a day. What if the contents a lifesaving were medication such as for diabetes?
Assuming
police
magistrates
are not taking
advantage of modern techniques
obtaining
for
warrants14
expeditiously
they
obtain,
do in fact take hours to
at the
—
sake of repetition,
privacy
what is a worse invasion of
taking
bottle
based on
cause and field test-
there,
it then and
ing
holding
or
it for hours or days, as the
would
apparently permit, to obtain warrant and run
full laboratory tests to determine its true contents. What
authority
police
would allow a
officer to seize “other effects”
a person
from
unrelated to the reason for the arrest “if their
nature as
requires
substance,
contraband
tests of an unknown
or opening
container,
of a closed
to secure them for the least
obtain,
delay
necessary
14Warrants can and do take hours to
but this time
is not
legislative
Today
with the advent of current electronic and
innovation.
a warrant can
be obtained in a matter of minutes and
lawful.
be
133.545(4) provides
“telephonic
ORS
search warrants”:
(3)
section,
“Instead of the written affidavit
described
subsection
of this
judge may
take an oral statement under oath when circumstances exist
impracticable
making
attorney
police
it
for a district
officer to obtain a warrant
person.
The oral statement shall be
recorded
transcribed. The transcribed
purposes
statement shall be considered to be an affidavit for the
of this section. In
cases,
recording
such
of the sworn oral statement and the transcribed
judge receiving
part
statement shall be certified
it and shall be retained as a
proceedings
of the record of the
for the issuance of the warrant.”
133.555(3)
judge
orally
police
sign
ORS
authorizes a
instruct a
officer to
judge’s
duplicate original
name on a
warrant:
judge may orally
attorney
sign
“The
authorize a
officer or a district
judge’s
duplicate original
duplicate original
name on a
A
warrant.
warrant
purposes
133.615,
shall be a search warrant for the
of ORS 133.535 to
it
shall
judge
provided
cases,
judge
be returned to the
ORS 133.615. In such
shall
original
enter on the face
warrant the exact time of the issuance of the
sign
original
provided by
warrant and shall
and file the
warrant in the manner
law.”
commentary
Proposed Oregon
points
The 1973
to the
Criminal Procedure Code
out:
“* * *
telephoned
system
adopted especially
warrant
has been
[T]he
for use
judge
conveniently
those counties which
*22
not have a resident circuit court
aor
judge.
spaces
Oregon
particular
located district court
The vast
of eastern
have
prompted
unique
the Commission to include the
device.
goal
encourage
police
“The
oí the Commission is to
the
to seek search
ways possible.”
warrants and
to facilitate this
all
purpose
a warrant
for this
needed to obtain
of time
amount
search is justi-
cause that
further
showing
probable
of
upon a
majority propose
Does the
Hypothetically, drugs, possessed illegally a bottle contains cause to believe the defendant cause to arrest gives this the officer 133.310(1) (a). The drugs. of the ORS the felonious a to be arrested ironically allows defendant majority opinion requires a war- a warrant but probable cause without based on that caused the very of the evidence rant for the examination I, 9, Oregon’s protects of constitution Article Section arrest. prin- clearly this result undercuts and people property ciple. and requirement in the warrant a believer strong
I am underly- protection privacy of always remember we must I, and Article Sec- the Fourth Amendment principles ing The United States Constitution. tion very clearly in Arkansas summarized Supreme Court has Sanders, (1979), L 2d 235 Ct 61 Ed 442 US 99 S the Fourth Amendment: protection behind the principles privacy protects Amendment “The Fourth First, ways. guarantees important it security persons in two houses, persons, in their right people to be secure ‘[t]he effects, searches and sei- papers, against unreasonable addition, interpreted the Amendment this Court has zures.’ In normally private requirement searches of to include the issued performed pursuant to a search warrant property be case, ordinary In the Clause. compliance with the Warrant therefore, property both reasonable private must be a search of The mere properly issued search warrant. pursuant to a search, light of the sur- asssessed reasonableness of circumstances, judicial for the is not a substitute rounding * ** The Amendment. required under the Fourth warrant given in our deci- requirement place the warrant prominent that individual doctrine the ‘basic constitutional sions reflects powers through separation preserved best be freedoms will different branches among the of functions and division requiring concern- By that conclusions government.’ levels of by drawn scope of a search ‘be and the ing probable cause being judged magistrate instead of and detached neutral ferreting enterprise of competitive engaged in often officer *23 crime,’ out we minimize the risk of unreasonable assertions of authority. executive
“Nonetheless, exceptions there some the are to warrant requirements. These have been established where it was con- public required flexibility cluded that the interest some the application general of prereq- the rule that a valid warrant is a Thus, ‘jealously carefully uisite for a few search. a drawn’ exceptions provide for those cases the where societal costs of warrant, obtaining danger such as to law officers or the risk evidence, outweigh of loss or destruction of the reasons for prior magistrate. excep- recourse to neutral But each because requirement invariably impinges tion to the warrant to some Amendment, protective purpose extent on the Fourth the few which a situations search be conducted in the carefully absence of a warrant have been delineated and ‘the is on seeking exemption burden those the to show the need for Moreover, it.’ exception we have limited the of reach each to necessary which to accommodate identified needs society.” (footnotes omitted). of Id. at 757-60 and citations
My point is simple. The majority opinion does improve justice system bench, our criminal bar, for the police, defendant, or the this opinion citizens of state. This will lawyers cause to judges attempt sit down for to hours to unscramble it what for and stands to determine what are the fíne line differences between the state the federal inter- pretations of the same or wording parallel similar of constitu- provisions. tional The majority only decision adds confusion rather clarity than to the law and is based on sound no reason for departure from federal standards. This approach imposes substantial burdens on vindicating law enforcement without any significant of privacy. values
My Oregon caveat is this. judges, lawyers, police and others interested in law enforcement should recognize that under philosophy the majority’s and the most recent reflec- tions by Supreme Court, Michigan Long, United States supra, they not rely upon should the substantial changes by federal recently constitutional cases decided the United Supreme Any lawyer States Court. defense who fails to raise an Oregon solely Constitution relies on parallel violation and provisions constitution, except under federal to exert limitations, guilty legal federal should malpractice. per- be of I Oregon ceive that Appeals Court will be ultimate all decision-maker cases when federal constitutional remedy solely litigant’s will be questions are involved and the any error. Of Supreme Court to correct the United States course, interpretation Appeals will make its own the Court properly has the issue been Constitution when decided this court. previously raised and not para- of this case with a one dispose I would Finally, opinion related to cause. graph I do not with the result in this case because
I concur
cause. The
finding
supports
believe the record
what facts led him believe the
officer failed
articulate
drugs
plain
view that the bot-
vial contained contraband
Although
opened
he
the container.
drugs
tle contained
after
experience
officer with
the record indicates this was a veteran
*24
training
control,
testify
knowledge,
his
he failed to
as to
in vice
their
recognizing drugs
experience
regard
with
Police, prosecutors
in street situations.
packaging
clandestine
rely on the
this court must
recognize
must
judges
record
accordingly
proper
take care to insure
record and
Gladden,
485,