*1 Argued September and submitted March affirmed reconsideration denied (312 527) petition November for review allowedDecember STATE OF OREGON, Respondent, NOBLE, DARIN JAMES Appellant. A63703)
(10-89-02085; CA
Jonathan were him on the brief With cause for respondent. argued Linder, General, Virginia L. Attorney Dave Frohnmayer, General, Sаlem. Solicitor *2 Edmonds, and Riggs Warren, Presiding Judge,
Before Judges.
EDMONDS, J. J., concurring.
Riggs, specially
EDMONDS, J. appeals possession for a
Defendant his conviction assigns ORS He the controlled substance. 475.992. error to suppress pursuant denial of his evidence to a motion seized search incident to his arrest. We affirm.
After of harassment, defendant wаs convicted ORS attempted degree escape, he 166.065, 162.145, third ORS placed pay probation fine. was on with the condition that he judge fine, When he trial him to failed to ordered why probation cause issued a show should not be revoked and by supported warrant his arrest. warrant was Thereafter, affidavit or based on a sworn statement. Officer stopped riding bicycle light Kerns without after sundown. A records check revealed arrest warrant. During search, he Kerns arrested and searched him. wallet, found a which he searched for or means bag plastic He discovered a clear that contained paper LSD-laced blotter that led to defendant’s conviction. suppress paper. moved to At Defendant blotter hearing, testified that he conducted the search “for Kerns looking protection.” [his own] He said *3 * * * keys “weapons or contraband, or as handcuff such straight-edged examination, razors.” On direct he testified: * * *
“Q you [defen- indicated that searched [Y]ou had have weapons. you dant’s] wallet for Have occasion to items, things against small kinds of either used different yourself knowledge being against of them other police officers? Yes, straight-
“A I have. I have been threatened with people, people And I edged razors before. know some carry straight-edged razors in their wallets for different be hazardous to us.” purposes they and can testimony. findings It with that The court made consistent justified incident search was then concluded that officer’s suppress. arrest to to and denied motion unlawful, first asserts that arrest was Defendant of a sworn statement the warrant was issued without because probable Brown, 171, relies on v. cause. He attorney moved had where the district why Brown’s diversion cause DUII for an order to show should not be terminated on the basis of his failure to attend a Thе motion was not counseling program. supported by issued, affidavit. A bench warrant Brown arrested. I, 9, We held that Article section of the Constitution Oregon a warrant to be oath or affirmation. requires supported by expressly resеrved for future decision the issue of I, an oath necessary
“whether
or affirmation is
under Article
giving
probable
section when the
rise to
cause occur
facts
presence
Higgins Redding,
court. See
of
(1978).”
1029, 1034,
580 P2d
rev den
We are unable to find
indication that the drafters
I,
Constitution,
of Article
section
or of the Indiana
which
followed,
the drafters
discussed
oath or affirmation
(1926);
Carey,
Oregon
See
The
Constitution
requirement.
Brown,
People
see also
Journal
the Convention
of
of
of
(Indiana Historical Col
Indiana to Amend the Constitution
Brown,
1936);
lections
Fowler
Reprint
Report of
Debates and
the Convention
the Revision
Proceedings of
of
(Indiana
the Constitution
the State
Indiana
Historical
of
of
1935).
Collections
of section
Reprint
language
pertinent
Amendment,
9 is identical
to the Fourth
which is “designed
warrants,”
to
the issue of
McGrain v.
prevent
groundless
Daugherty,
135, 156,
319, 322,
273 US
47 S Ct
records and determined that defendant had failed to the fine.
Defendant next asserts that the search of his wallet was not lawful as a incident to arrest. He reliеs on search Jones, v. State 103 Or The state App Smith, v. that, under State argues 113, 116, rev allowed P2d Or 87 search justified, might Kerns was concerned that the wallet Smith, In that keys. contain razor blades handcuff held an is officer weapon,
“entitled
sеarch an arrestee for
tool or
only
that could
in his
implement
escape.
aid
limitation
time,
right
on that
must be
in
is that
search
reasonable
Caraher,
in
all
intensity
and
view of
the facts. State v.
scope
(1982)].”
741, 759,
‘‘ holding grant right an to search an unqualified our does Rather, person permits incidental to arrest. it arrestee’s with an arrestee could officer to search items which (a) only concern escape when the officer articulates a about (b) is possibility of and the search reasonable 117 n 2. under all circumstances.” 103 Or at Jones, In State small supra, v. the officer discovered a metal a search of the defendant incidental during box box that it contained a razor arrest. He shook the and thought razor con- He it and discovered blades and opened blade. substances. We reversed the conviction sаid: trolled justified removing if the box for “Even the officer was escaping, from see his own protection to'prevent Smith, possession, in his he no [supra], once was to him posed had to believe threat longer reason that it сontained a razor blade respect. thought either If he escape, be as a or a means of he could weapon that could is have it from defendant. Because there simply withheld of a crime nothing to that the box contained evidence suggest arrested, opening box which defendant was AppOr contents was unlawful.” 103 inspection its searches for the protec- Both are about of those cases to arrest. officer inсident arresting tion of the facts than Jones. Smith permits Smith focuses on different and means person of a defendant’s of the Jones, that the contents In the officer thought We held it. opened a threat to him before posed bоx
51 circumstances, under the he was not entitled to conduct an search of exploratory the contents of the box. We reached a Schellhorn, similar conclusion in State v. 95 Or 769 297, App In cases, the three the limited officers to the least intrusive action that was reasonable for their protec- Smith, tion. Under Kerns could search defendant’s person, he a articulated concern about that possibility defendant may have been or аn instrument carrying weapon The seizure of escape. defendant’s wallet as a potential for razor hiding place blades or handcuff was keys reasonable. Jones, that, defendant under argues even if reasonаble, seizure was once Kerns had the wallet his possession, it no longer and, a threat to him posed therefore, he was not authorized to search it.2 The state that, argues Mundt/Fincher, State v. under 98 Or 407, 780 P2d App rev den 308 Or a wallet is not a closed container and that to defendant’s accept reasoning would require arresting
“an officer to remove every from an arrestee con- tainer might that hold a weapon escape device and lock it in patrol car trunk before transporting prisoner.”
The reasonableness of
search under
section 9
Caraher,
depends on the
circumstances of each case. State v.
supra;
Ridderbush,
see also State v.
71 Or App
692 P2d
(1984).3
Schellhorn,
both Jones In
the officer was
argument,
that,
argued
Roque-Escamilla,
At oral
under State v.
P2d
rev den
defendant’s the search would have been * * protect safety measure to the seized article a threat to him posed able ascertain that Therefore, a search of the article for the opened he it. before Here, not did necessary. officer’s Kerns protection know whether contained or some means weapons wallet Having before seized it escape opened lawfully it. from it was reasonable to it for person, defendant’s deciding or means of before whether return retain it. need
We not address remaining assignments.
Affirmed.
RIGGS, J., specially concurring. concur; however, I
I believe that there is another and, argument better answer to defendant’s perhaps, seized, longer once the wallet was it was no a threat and to therefore the officer was not authorized weapons. unrea- Oregon provisions against constitutional
sonable searches and seizures
protect privacy
possessory
interests
from unreasonable
intrusions. Or
government
Ainsworth,
Const,
I, 9;§