*1 Apeals May Argued and decision decision of Court of reversed and submitted court is December of the trial affirmed OREGON, STATE OF Review, Respondent on v. NEWMAN,
PATRICIA ANN
Review.
Petitioner on
27594)
(TC
79-10-33601,
16600, SC
C
CA
CAMPBELL, J. opinion. Tongue, dissenting J., J., Tanzer, filed joined J., in the dissent. Peterson, *2 CAMPBELL, J.
The issue case narrow in this is: Can nonemergency in a warrant noncriminal and without property an search the intoxicated situation custody? person is into at the time the taken identification a.m., Portland On October at about 5:30 parked Police Officer Kenneth Pacheco saw automobile McLoughlin parking a no zone on Southeast Boulevard.1 on side flat and a behind the Both tires the left were steering leaning against on the wheel was window parked behind the driver’s side. Pacheco car approached investigate. disabled vehicle and defendant, was the behind the wheel was the occupant “knocked on sole of the automobile. couple got reaction,” no so window a of times and young lady couple opened “shook the door and finally up.” woke As to the next events the times until she officer testified: — I
“Basically very young I asked she looked I had how was. She if she asked old she said asked just kept telling wanted and she me she identification home, continuously go I asked for identification *3 — home,’ just kept saying, go ‘I she wouldn’t she want to her I a moderate amount of alcohol on and could smell and she intoxicated.” breath I assumed was purse Finally, the defendant reached into her and gave The license had been a driver’s license the officer. age Newman, 22, Milwaukie, M. with a issued Catherine Oregon address.
Next, for a Pacheco asked defendant Officer verify identity. telephone that he After so could number telephone delay, gave the number. He officer some she they and had the East Police Precinct call number answering reported “had never heard back that the anybody the name of New- or of Catherine Newman parents’ for her then asked the defendant man.” telephone replied, “Well, me wher- she take number my parents.” you want, but don’t call ever hearing transcript on recital is taken from the of Our of the facts suppress officer Kenneth Pacheco defendant’s motion to evidence. Portland testify hearing. judge only did not make The trial at was witness specific findings fact. of historical was the defendant think that did not The officer years age. did She of that she Newman Catherine in the officer’s respond name Catherine to the photograph the driver’s on opinion look like did not she being “ranged from behavior Her condition license. hysterical extremely antagonistic being crying moody.” he, arrived on the scene and with
Officer Davis approval Pacheco, the defendant and Officer handcuffed patrol placed placed cars. Pacheco her in the back of one of “on a civil hold”2 to take the defendant booking facility.”4 He or the did her either to the “detox3 not intend to charge a violation of law. her with placed patrol car, After the in the defendant was Pacheco and found a went back to vehicle woman’s purse ground. purse opened on the was closed and (of purpose without the defendant’s consent for the “sole out) finding opened she was.” When the officer first purse, plastic bag containing top he found a white cross pills. On a further search of the he discovered addi- pills tional and a wallet. Inside wallet was driver’s age Newman, license issued to Patricia Ann with the previous same Milwaukie address as that driver’s license. When confronted with the second driver’s listed on the license, the defendant admitted that she was Patricia Ann and that Newman Catherine M. Newman was sister. charged by The defendant was a two count infor- possession substance, mation with controlled ORS 475.992, license, and with misuse of a driver’s ORS 482.610. suppress all evidence seized on The defendant moved “unreasonably ground on the that it was October seized without a warrant and in violation Oregon We do not find the term “civil hold” used or defined Statutes concerning or case law. There is no issue in this case the definition of the term. 430.306(4) publicly privately defines a “detoxification center” as a operated nonprofit facility provides emergency *4 that care or treatment for alco party holics. Neither has contended that the defendant was an alcoholic or needed emergency care. 4 hearing, Later in the Officer Pacheco testified that when the defendant was charge, facility” “booking arrested on the controlled substance the took to County on the 7th floor the of Multnomah Courthouse.
220 constitutions, statutes, state and case law.” The
federal and trial court allowed the motion to
suppress and when the proceed trial, declined to the information was state dismissed. Appeals appealed pur- The state to the of Court 138.060(1) Appeals of 930, suant to ORS The Court (1981) App remanded, P2d reversed and holding 49 Or 619 analyze required that it was the search on the probable because the standard of basis of reasonableness only applied cases and not to noncriminal cause to criminal The court found the search of the defendant’s situations.5 identification was reasonable under the circum- for stances. disagree Appeals the Court that the
We with purse for search of the defendant’s identification rea- sonable under the circumstances this case therefore the The effect decision reinstate trial reverse. of this is to suppressing the evidence. court’s order place may public A who is intoxicated in facility by police. be or to ORS taken home a treatment 426.460(1).6 facility, appropriate If there is no treatment county person may city jail be taken intoxicated longer person may held until intoxicated. be no where 426.460(3). nothing is the record to indicate There ORS were available in Multnomah what treatment facilities County. 5 n.5, Appeals Opperman, Dakota v. 428 US The Court of cited South (1976) authority proposition L Ed 2d S Ct only probable applied cause to criminal cases and not to noncriminal
standard of reach, unnecessary find of the we we to consider the situations. Because result question. 426.460(1) provides as follows: “Any person who is or under the influence of controlled intoxicated place public may a treatment be taken or sent home or to substances However, by police. incapacitated, facility the health if the danger, police person appears reason- in immediate have be person, dangerous person is to self or to able cause to believe the appropriate treatment shall be taken opinion incapacitated facility. in the A shall when be deemed facilty person is unable or director of the treatment acceptance of assistance.” a rational decision as to make
221 The a officer could smell moderate amount alcohol on the defendant’s and that she was breath assumed Although range intoxicated. there a in the defen- was wide only behavior, she she dant’s became violent when was told placed that she would be in handcuffs. officer did not The charge intend to her with a violation a criminal law. Officer testified his Pacheco as to intention follows: custody basically going place “I was her in on a civil facility booking
hold and take either her to the detoxor the forcibly put and another officer had her in the handcuff and seat.” back testimony prior
There is in the record that to the placed patrol time was take defendant was in the car the officer attempting identify the defendant so that he could attempting home. As to what was he to learn after placed patrol car, she was in the Officer Pacheco testified opened purse “my purpose that when he sole was to find out who she was.”
Thus, the issue in case this Can narrows: nonemergency without warrant in a noncriminal and property situation search the of an intoxicated for identification at the time the is taken into transportation holding facility? to a or treatment for party
Neither
contends that Officer Pacheco conducting
investigation
opened
a criminal
at
the time
purse.
agree
Appeals
We
with the Court of
that
present
facts of
did
this case
not
the officer “with a medical
emergency justifying an immediate search.” State v. New-
supra,
App
suffering
man,
49 Or
at 320. The defendant was
ordinary
from
intoxication from the use of alcohol. The
property
search was a search of the
defendant’s
and not
person.
Brown,
642,
search of her
State v.
291 Or
634 P2d
(1981),
LaFave,
and
Search
Seizure question
This case boils down to a
of reason-
Tourtillott,
845,
ableness. State v.
289 Or
We
this
involves a
only
have held that
noncriminal situation. We
as well as
know,
appellate
Oregon
to deal with the
we
this is the first
case
As far as
legislature
property
persons
Oregon
enacted
intoxicated
since the
search of the
very
help.
See
jurisdictions
little
from
are of
ORS 426.460
1971. Cases
generally
cause to arrest the defendant. We shall for the sake correct, that argument, dissent but the fact upon probable remains that the officer did not act that cause. Officer Pacheco did not arrest the defendant at prior time to the search of the closed purse or wallet purse found within the and therefore the search of those containers cannot be justified as incident to arrest.8 urges
The dissent that because officer had the legal authority to take the defendant as an intoxicated into for transportation to her home or a facility, treatment it was attempt reasonable for him to learn her identity. For the sake of argument, we will also assume that is correct. The dissent then states that taking her into custody the officer had completely deprived liberty. her of her That seems obvious. The dissent further officer, states that by taking custody, her into had completely deprived privacy her of her argues from that it was therefore conduct, reasonable to without her consent, a search of her and wallet to learn her identity. cannot accept proposition We that by exercis- ing authority to take the defendant into custody as an intoxicated person the officer had completely deprived her of her privacy. The dissent’s ultimate conclusion is based premise. on that
The
argument
really
dissent’s
is
nothing more than
(1)
the following:
The officer
took the defendant
into
custody pursuant
to authority
to take an intoxicated
into
for transportation
to her home or a treatment
facility. (2) The officer thereby “completely” deprived her
questionable
in
Even
the context
aof
criminal case it would have been
police
purse
whether the
could have searched the defendant’s
without
warrant.
purse lay
ground
The
on
outside of the defendant’s vehicle. It was a search of
Brown,
property
642,
person.
State v.
and not a search of the defendant’s
291 Or
(1981),
LaFave,
(1978).
The that we and thinks to these facts opinion of this tion question we did not reach we said that hedged when procedure. booking purse part as a searching the ain noncrim- persons intoxicated dealing with concept of in the step test of each Oregon. is new setting inal fill no need to We see is reasonableness. procedure police ques- did not reach We also with dictum. pages these could have searched not the tions of whether to her home the defendant taking purpose for the facilty or holding to a treatment taking opposed searched could have not the officer whether or custody. It was into civil taking her incident of as an questions. to decide those necessary Reversed.
TANZER, J., dissenting. constitutionally it is holds that Today this court intoxicated takes an for a unreasonable custody after she into civil from her automobile 19-year-old *8 in identification, to look gives as to information false I she lives. is and where out who she wallet to find I think most action was reasonable. officer’s the think judges welfare people, about the not, who are concerned or society particularly friends, in a beset of their families drug problems abuse, also con- would of alcohol with sider it officer’s court to hold the For this reasonable. subject constitutionally and the results barred action to be police suppression deter future similar to in order to majority Understandably, has illegality the is unreasonable. actually supports principle precedent that law, or no cited its holding none. am aware of and I authority acting
The officer was under the 426.460(1):
“Any person is under intoxicated or the influence may public place in taken of controlled substances be or However, facility police. by or sent home to a treatment incapacitated, if is the health danger, appears police to be in have immediate or dangerous self to reasonable cause believe by person, be shall taken * *”* facility. appropriate treatment superseding reform, This statute was enacted as a so-called “public intoxication,” “status crimes” such as which were such California, invalidated cases as Robinson v. 370 US (1962), particularly 1417, L 82 S Ct 8 Ed 2d 758 Texas, Powell v. US S 2d 88 Ct L Ed theory legislation of the entire intox- was that as a ication without more should be dealt with civil afflicted and no some or the state problem. protector helper The state to be was
longer prosecutor of the criminal. There is contemporary dubiety helper about the state’s role protector, hopeful but that is nevertheless the intent of Looking light legislation. statute, at the facts lawfully this officer’s conduct was authorized. early morning hours,
In the officer came parked upon young in a automobile an intoxicated woman gave operator’s him an license which had reason who believe was not telephone
her own and a home
number
probable
which he learned
not her own. The officer had
cause
arrest her for
the crime of use of
false
both
operator’s
and,
license
possibly, driving under
influ-
ence of
legal authority
intoxicants. He also had
to take her
to her home or to a
facility
treatment
take
her into
custody for those
He
purposes.
did
arrest
for either
of these crimes. His decision to take civil action when he
lawfully
could
have taken the more
severe course of
*9
criminal
an
arrest
is
indication of the
of
reasonableness
the
custody
officer’s action. Upon taking her into
on either
basis,
civil,
criminal or
it was reasonable for the officer to
take
to learn the identity
action
of the person. Having
completely deprived
person
that
liberty
privacy by
of
custody,
her
into
it
taking
was also reasonable
for the
identity
officer to look for
of
in
place
evidence
a
where such
likely
found, i.e., a
purse.
evidence is
to be
wallet or
We so
Florance,
held in
of
169,
the arrest case
State v.
Or
270
527
(1974)
O’Neal,
P2d
(expressly overruling
1202
State v.
251
163,
(1968),
Or
The of opinion to these facts. It would hold that is unreason- it identity taking able for an officer to search for when a open custody, into but it leaves whether the same action would be reasonable when the is booked into 642, Brown, 634 P2d 291 Or facility. State v. some Cf. with no theoretical (1981). is an invented distinction This support for it. legal no majority offers foundation degree to the liberty privacy a loss of Custody involves It a custody. is not reasonably required purposes find out who privacy to intrusion on greater significantly itself, not custody fact is controlling is. at later five minutes custody is on the street or whether the established, no makes facility. custody Once is holding arresting is the custodial difference whether place and whether jailer officer or a Robinson, See, v. building. United States police car or (1973), 218, 94 Ct 38 L Ed 2d US S Gustafson Florida, L Ed 2d 456 v. 414 US 94 S Ct reasonably pocket look in a either can cannot I identity custody. of a to determine the raises a majority To does they hedge can. would hold betrays major- a difference which distinction without majority rationale. The conviction ity’s lack of law wins, but it does deal with decides who custody. *10 Peterson, join in this Tongue Judges,
I dissent. dissent.