*1 January 5, Submitted from on remand resubmitted February 18, 1987 In Banc reversed March OREGON, STATE OF Appellant, v. McCRORY,
MONIKA Respondent.
(CC 85-405; A36092) CA Salem, Fussner, General, Attorney Jonathan H. Assistant appeared appellant. him Frohnmayer, for With were Dave Attorney Mountain, Jr., Gen- Solicitor General, and James E. eral, Salem. appeared Deputy Salem, Defender, Alessi, Public
Diane L. Gary respondent. Babcock, Public D. her was With Defender, Salem.
WARDEN, J. *2 concurring. specially
Buttler, J., WARDEN, J.
This case is on remand from the Oregon Supreme Court for reconsideration in the light of State v. In our first opinion, McCrory,
78 Or App we pretrial affirmed a order suppressing evidence.1 In the light of we reverse.
In January, 1985, defendant was arrested for assault by officer Wojack. She was taken County to the Coos Holding Facility where, pursuant jail policy, to a all items in the pockets clothing of her were removed when she was “booked by deputy in” Wiggins. sheriff A paperfold, commonly small “bindle,” described as a was found in jacket pocket. her The deputy gave the paperfold to Wojack, who testified on the basis of his training and his experience in the identifica- tion of substances, controlled he had reason to believe that it narcotics. He it and observed a white powder inside. powder was then tested without first obtaining a search warrant. It was methamphetamine.
Defendant moved to all suppress evidence relating the paperfold. argued (1) She acted illegally by seizing and opening paperfold, because the seizure was not *3 (2) arrest, incident to her paperfold’s contents, and because no warrant was obtained. granted. The motion was appeals. The state seizure,
As to the initial defendant does not contest the legality inventory procedure of the whereby the police came possession into of the paperfold. Although a “booking in” inventory does not justify general exploratory search and found, of all items if in the course a proper of inventory discovered, evidence of another crime is the evi dence may upon probable be seized cause to believe that it Elk, relates to 614, another crime. See State v. Or 249 439 P2d (1968); Riner, 1011 72, 485 1234, State v. 6 Or App P2d rev den (1971).
In supra, 207, State v. 302 Or at the court stated: probable hold when there is cause to believethat a
“[W]e 1 Westlund, 43, (1985), We cited State v. 75 Or P2d which has since part 225, part. been affirmed in and reversed lawfully transparent contains a controlled seized container container, quantity substance, removing opening the a modest analysis for the subjecting it to chemical of its contents and substance, is purpose confirming that it is a controlled sole of ** * ‘seizure’ under the Constitution. not a ‘search’ or I, police require that the obtain Article section does not plastic opening the vial and clear warrant before purse or test- lawfully from defendant’s herein package seized purpose confirming the the limited of ing their contents for they con- belief that officer’s reasonable trolled substances.”
Although Owens container, its hold- concerned a “announce ing extends to those containers which otherwise Herbert, In State v. their contents.” expressly declined to decide might pro- unique packaging paperfold alone vide, experience in the area of training officer with detection, probable cause to believe it contains drug trolled substance. required opaque are not here to decide whether an “[W]e
paperfold unique drugs. is such container of illicit addi- shape gave tion to the other facts the officer probable paperfold cause to believe that the contained a con- 242. trolled substance.” 302 Or at case, however, issue,
In this we decide that there must because support finding were no other facts to cause.2 Wojack paperfold testified that made of a page magazine up triangle- torn from a that was “folded in a type you shape. It folded so that can’t come unless In similarly pull apart.” paperfold: described a * * * page
“The was made from a torn out of a magazine. edges were folded so that the contents would not fall Or n 1. out.” 302 at 237 Wig- Wojack
The trial court in this case determined pos- the defendant was in gins had cause to believe session of a controlled substance: *4 2Wojack had then seen needle marks on testified that he was told about and However, opened. paperfold had defendant’s arm. that was not until after the been swings
Wiggins appeared experiencing and that defendant to be severe mood testified ingestion something, Wiggins but attributed them to to be under the influence of alcohol. Lowry, 337, 346,
“Unlike the container in State v. 295 Or (1983), paper ‘baby P2d 996 ‘bindle’ would not be used for medicines,’ powder, legitimate although or table salt or merely posses- in inventive mind could claim defendant was ‘spit-wad’.”3 sion of a Herbert, argues,
Defendant
as did the defendant
in
or
paperfold
just
could
as well have
used
store
been
items,
hooks,
transport
jewelry
small
such as unsnelled fish
or
cause,
agree
“possible.”
radish seeds. We
that that
Probable
Collicott,
State v.
however,
require
certainty.
does not
absolute
rev den
Reversed.
BUTTLER,
J., specially concurring.
This
to us to reconsider
it in the
case was remanded
of State v.
(1986),
302 Or
which
light
opinion
by
is the lead
for four cases decided
day
question
Court on the same
involve the common
lawfully
police,
seizing
after
closed
and test
its
open
needed a warrant
in order to
and remove
sub-
contents
to determine whether
it contained a controlled
Westlund, 302 Or
stance. The other three cases are State v.
Forseth,
State v.
(1986);
233, 729 P2d
and (1986),
237,
mouth and used
small
as a
boys,
girls,
small
and teachers.”
small
*5
requiring a deter-
analysis,
the first one
requires
two-step
a
so,
If
it
lawful.
the
of the container was
mination that
seizure
could, without a
police
the
must then be determined whether
and remove its contents
warrant,
the container
open
recog-
analysis,
In
that
the court
analysis.
applying
chemical
signifi-
nized that
there are two incidents of constitutional
and the
initial seizure of the container
cance involved —the
It
requires separate analysis.
opening of it —each of which
most, cases,
the
may
many,
be that
if not
the container
is
step
perfunctory,
second
will be
because
However, if
announces its contents.
transparent or otherwise
case,
and we
step
important
that is not the
the second
becomes
it,
and in
not
as the
does in this case
ignore
should
Larsen,
P2d 362
that
war-
concluding
after
officer’s
transparent
rantless seizure of a
vial from the defendant was
lawful,
it con-
probable
because he had
cause to believe that
substance,
posed
ques-
tained a controlled
the court
the next
transparent
tion: “whether the
of a
container for the
under
testing of its contents
‘search’ or ‘seizure’
Constitution,
Oregon
when there is
cause to believe
controlled substance.” State v.
that,
In response
question,
pointed
Owens went on to hold because were con- the closed container and to seize the authorized * * * tents, presence of what- “a chemical test to confirm present to believe is ever the have cause “search,” any pri- not infringe item” is not a because it does at by the Constitution. 302 Or vacy protected interest “seizure,” said, It because there is no 206. is not person’s possessory interference or significant with ownership property. interest involved Westlund and Forseth case, tainers, In each the court concluded as did Owens. after lawful, the the warrantless seizure of the containers was discussion, hold, they could be court went on to without tested, citing and their contents Owens. Herbert *6 cases, the other three in that the closed different from than a paperfold, tainer was an rather opaque reason, here is in majority justified container. For that the extent, not to the exclusion of the relying on it to some but Owens, Con- by on which Herbert relies. analysis prescribed because, deciding in whether the cededly, confusing, Herbert is (the first had cause to seize the officer necessary to decide step), the court stated that it was not unique a container opaque paperfold is such whether That was a correct illicit that it announces its contents. drugs which, statement, together with because there were other facts cause to seize. How- type provided probable the step next ever, the officer could take the holding in that a war- its contents without opening the container and Owens, briefly, as rant, merely summarizing cited court in it did Westlund Forseth. hand to the sleight here attributes majority
The that in Herbert by holding, apparently, Supreme Court in the lead painstaking analysis court disavowed its that. rely. to I would not do purports Herbert case on which and submitted argued and Forseth were Westlund until six and submitted January, argued was not 1986. Owens and is relied on Yet, published was first months later. Owens cases in cases, only one of the four three and is the by the other that It is obvious judges participated. all seven which prob- a attempting to resolve court, year, almost one was over and this court lawyers, judges trial nagging that had been lem (1983). P2d Lowry, v. since State problem, because nagging has reinstated ignores necessary. step that Owensconcluded the second only Perhaps problem, given Herbert, it is again. However, resolve, I think that can once rely though implicit that, even the court did not it is solely in Herbert deciding uniqueness paperfold in on deciding it, to seize it did so there was cause citing warrant, the container could be without paperfold, words, con like Owens. other contents; therefore, had no tainer, its defendant announces cognizable privacy it, interest in it was not removing “seizure,” Further, search. the contents was not “significant because there was no interference” with defen possessory interest in it. State v. dant’s at 206. my understanding
Given of the four cases decided 20, 1986, I in the result reached November concur separately only deplore resurrecting majority. I write its confusion that existed before those cases were decided.