*1 2, 1984, remanded On from Court October reversed and remand July petition April for review denied for new reconsideration denied trial 20, 1985 (299 663) August OREGON, STATE OF Respondent, ROUNDS, DYLAN E.
Appellant. A28504) (22-253; CA Stephen Deputy Williams, Defender, J. Salem, Public appeared appellant. Gary Babcock, With him was D. Defender, Public Salem. *2 Frohnmayer, Attorney appeared General,
Dave Salem, respondent. Mountain, With him James Jr., E. Solicitor Reynolds, Attorney General, and Michael D. Assistant Gen- eral, Salem.
WARREN, J. dissenting.
Rossman, J.,
WARREN, J. further consideration in
This case was remanded for
light
1, Or
Defendant was Garibaldi “Garibaldi Days” July, grand- 1982. Defendant went to his festival finding home, home, and, no one left father’s tried the doors1 carport, backpack leaning woodpile against in the his activity neighbor two A observed that was sides. department, reported it in accordance with to the sheriffs presence report grandfather’s instruction defendant’s grandfather strangers not home. when the neighbor again arrived, the con- When the officer veyed He also his and described defendant. observations *3 had returned his informed the officer that defendant carport backpack placing it in the and had at least once after present 15 the officer arrived. The about minutes before been windows and the then checked all the doors and officer attempted any grounds entry of forced and did not find evidence By burglar time, two other officers tools. that or attorney point, deputy had arrived. At this and the district they “attempted from the back- to secure some identification backpack belonged was “closed” who it to.” The [to see] top holding “flap The officers the secure.” with a over they backpack sleeping bag. opened a Then the and removed cigarette backpack a box noticed and removed from the They opened top belongings. lay the and other of clothes acknowledgment cigarette despite that he box, officer’s the cigarette “very box. found identification inside a had seldom” they they stickers,” which saw “some white Inside this box backpack they suspected found Elsewhere in the to be LSD. 1 Although he told testified on direct was that officer examination the doors, neighbor that the he admitted on cross-examination had tried all the defendant “just front door.” tried the said that defendant
151 books, defendant’s name. The officers bearing two bank one warrant. A the and obtained search backpack then seized not reveal other subsequent backpack search of the did incriminating evidence. suppress the seized moved to evidence
Defendant backpack, arguing of his during inspection the initial the opening and the of entry the initial into the both 9, of I, section illegal were searches under Article cigarette box the Fourth and Fourteenth Constitition and The trial Amendments to the United States Constitution.2 motion, finding that “defendant did court denied nor did he backpack]; exhibit an [in society objectively recognize.” have one which should from privacy” test is derived “expectation States, opinion Harlan’s in Katz United concurring Justice (1967).3 507, Ed The test is 389 US 88 S Ct 19 L 2d 576 determine there has been a “search” applied to whether Amendment, subject meaning within the of the Fourth It when investi- developed constitutional restraint. was powers being strengthened through technological gatory advances, equating so that the traditional of “search” with physical trespass inadequate. real or personal Katz, In Court held that: Oregon Constitution, part: provides, pertinent Article of the persons, people right shall to be secure in their “No law violate search, seizure; effects, houses, against papers, or and no unreasonable * * upon probable issue
warrant shall but cause pertinent part: provides, in U.S. The Fourth Amendment to the Constitution houses, persons, papers, right people “The be secure their violated, effects, seizures, against and no unreasonable searches and shall not be ** issue, probable upon shall but cause Warrants Kennedy, 260, 666 the state we must consider Under constitutional claim first. States, 347, 361, v. United Katz In S Ct L Ed 2d 576 US Justice Harlan stated: *4 states, protects people, opinion Fourth “As the Court’s ‘the Amendment however, question, protection people.
places.’ it to those The is what affords here, ‘place.’ My question requires Generally, reference to a as the answer that emerged prior understanding is that there is a of the rule that has from decisions (subjective) requirement, person first that a have exhibited an actual twofold society and, second, expectation be one * * *” prepared recognize as ‘reasonable.’ 152 “* * * electronically Government’s activities in lis- [t]he
tening petitioner’s recording to and words violated the the privacy upon justifiably using which he relied while telephone booth and thus constituted a ‘search and seizure’ * * *” meaning within the of the Fourth Amendment. 389 US at 353.
Oregon
applied
courts have
the Katz test as a thresh-
hold question to determine whether government activities
constitute a
protection
search and seizure within the
of the
Fourth Amendment
to the United States
Constitution.
cases in which
applied
neatly
it
involve areas which do not fit
within the
protection
“persons, houses,
constitutional
See,
papers,
e.g.,
Holt,
343,
and effects.”
State v.
291 Or
(1981) (observation
P2d 854
public
restroom held not a
search);
852,
State
Carter/Burton,
App
v.
54 Or
Oregon yet applied courts have not “expec Katz privacy” tation of test under Article of the Constitution, necessary and we do not think it so in do present case, physical because this case involves a trespass to personal expressly effect entitled to constitutional protec opaque tion. The was a closed container whose contents outside, were not visible from the and it to carry was used personal effects, as are suitcases and purses. There was no objective reasonably basis for the officer to think it had been abandoned, private property because it was left closed on recently the officer knew that defendant had it as visited as minutes before the officer’s arrival. The facts of this case are a cry Grace, far from those of State v. 554 P2d (1976), in which we held that the officer’s seizure of a spent lay in casing, plain shell view in the defendant’s driveway days for two ejected after defendant had presence, officer’s constitutionally protected. was not
153 the entry into the officers’ Having concluded subject to its was a “search” backpack identify to owner the now consider whether protection, constititional we must in this determination guided “reasonable.”4 We are search was v. by supra, v. and State opinions in State supra. inventory a of police
The
in Atkinson was
search
Supreme Court
impounded automobile. The
contents of an
search to be
noncriminal, nonemergency
that,
for a
held
(1)
Constitution,
the personal
under the
reasonable
(2)
search
custody, and
property
lawfully
police
must
be in
“* * *
properly
pursuant
a
author-
must be conducted
to
designed
systematically
program,
ized
administrative
inventory
so that
involves no exercise of
administered
by
person directing
taking
the law enforcement
or
discretion
* * *”
inventory.
also (1976); 364, 370 5, 96 Opperman, State L 2d Dakota v. 428 n Ct Ed 1000 US S grounds Newman, 313, 317, 619 other reversed on cert den 457 US 637 P2d
Although Atkinson and Perry involved inventory situations, we think that their holdings apply nonin vestigative, search, nonemergency such as the search for identification of the owner of a backpack. We do not need to consider whether the first two criteria of Atkinson satisfied, because we conclude that the scope of the search was unreasonable as a matter of law. Recognizing the different purposes inventory of an personal cus tody as a result of a person detention of a and the search for identification of the personal owner of property, such as the case, assume, this we shall without deciding, that it was reasonable for the open the backpack; how ever, Perry Ridderbush require us to hold that it was unreasonable the cigarette box in a search for identifi *6 cation.
In our former opinion case, in this the majority wrote: «** * The court findings made no relating to ‘search’ box, cigarette of the closed any challenge nor is made on this appeal regarding propriety opening of that container to Thus, examine its contents. present this case does not * * *” ‘closedcontainer’ App issue. 69 Or at 232. court, The trial in finding that defendant did not have an expectation actual of privacy society which prepared is to recognize reasonable, as ruled that inspection the- of the backpack was not a “search” subject to constitutional restriction. In reaching decision, it foreclosed discussion of whether the search was reasonable.5 Because we hold that the search of subject to constitutional limitations, we need go farther than the trial court did to determine the reasonableness of the search. We now conclude majority opinion The former in this case misconstrued the relevance of the Katz writing: test in “* * * Traditionally, two-part ‘expectation privacy’ applied of test has been protections
to determine whether a search violates the the Fourth Amendment: of (1) subjective expectation backpack; whether defendant had a in his (2) society prepared whether recognize is one which as States, [supra, See Katz v. United reasonable. 389 US at This test has been 361]. applied analyze constitutionality of searches under Article as * * *” Holt, See State v. well. App at 234. (Emphasis supplied; omitted.) footnote opinion, applied the Katz test is As noted in this to determine whether an action is a subject limitations, “search” to constitutional to determine if a search is reasonable and lawful. impropriety adequately raised the issue of the that defendant opening cigarette for our consideration on this of appeal. box supra, Rounds, at 239 n 2
See State v. (Warren dissenting). J.,
Perry principle that, in and Ridderbush establish the nonemergency noninvestigative, situation, it is unreason- case, a closed container. In this able for an officer to defendant, suspected a crime the officers who was not when backpack, to at least as much constitu- entered his is entitled protection person charged crime, tional Ridderbush, as a with a State v.
supra, person hold, and a in a civil State v. supra. opening cigarette Because the officer’s box was suppress unreasonable, defendant’s motion to the evidence granted. found therein have been should Reversed and remanded for new trial. dissenting.
ROSSMAN, J., separately express my I write concern that the majority opinion may interpreted judicial as a retreat from constitutionally principle mandated of reasonableness traditionally applied has to these kinds cases. previous opinion,
In our
we held that it was reason
able for the
officers to look in defendant’s
identification. We also determined that defendant had not
properly
therefore,
and,
raised the closed container issue
propriety
opening
cigarette
declined to address the
box.
Court remanded so that we could determine
principles
whether the
enunciated for inventories
*7
Perry,
Atkinson,
and State v.
any impact
21,Or
However, I this case as it was it was to deal with originally presented and address the issues which Perry specifically us, i.e., remanded to are Atkinson and applicable back- to the officer’s“search” defendant’s pack regard, disagree with the for identification? In that I of Atkinson and principles the conclusion
majority’s case. necessarily applicable to this Perry are clearly were Court cases Both of those leap ignores The of faith majority’s to inventories. limited inventory searches between and crucial distinction obvious Perry, In Atkinson and question. in both and the case initiat- before apprised of who owned police were to contact the In the officers tried their searches. ing identity was away. His towing vehicle before owner of the check on the car’s by running a ascertained presumably had been booked the owner of the suitcase In license. Thus, inventory searches were con- custody. and was in makeup determining the exact purpose sole ducted for the property. of the seized with the one should be contrasted purpose
That defendant’s open officer in this case to prompted the the activities investigate to the scene to He was called pack. apparent had no his where he backpack who left stranger return. indication of when he would to do so and with no right into the only looking reason for testified that his The officer had desire to to examine He no pack was to find identification. There was it contained. merely to see what pack’s contents motivations were com- Accordingly, his contrary no evidence. in officers Atkinson than those of the pletely different applied. not those cases should Perry and the rationale of (1985), does Ridderbush, Rather, a reasonableness a different conclusion. compel 9, of Article standard, firmly rooted in both which is Amendment to the and the Fourth Constitution to be used Constitution, should continue United States type. cases of this standard, justified was the officer
Under for identification. looking into defendant’s carport was in an left his where defendant house eye keep an neighbor The owner had asked unattended. Those anyone there. if he saw to call the on it and to the by neighbor communicated instructions the small town day question, officer. On the responding Days” of its annual “Garibaldi in the middle Garibaldi celebration, population course of the During the festival. *8 swells, of Garibaldi and the are confronted with more trespasses any year. than at other time of
That
the house belonged
grandfather
to defendant’s
irrelevant,
because that
only
fact was known
to defendant.
an objective standpoint,
From
left or aban-
doned
by
apparent
stranger
open carport where,
in an
express instructions,
because of
no one but the homeowner
effect,
was allowed. In
the pack was
Rather than
trespassing.
away
walk
and sanction the
private property,
intrusion onto
the officer elected to
station,
take the
back to the
but
first he endeavored to
identity
determine the
of its owner so
eventually
it could
be returned. His actions were justified
circumstances,
under the
opinion
and the
should so sítate.
However, if the majority is correct that Atkinson Perry apply
noncriminal,
to all
nonemergency situations,
then
day
a new
is indeed dawning for
officials,
law enforcement
one
in which it would no longer
enough
be
for them to act
reasonably. Their
reasonable actions would have to taken
pursuant
See State v.
procedures.
established
supra,
I assume that by procedures, established Court meant a set of covering inventories, written rules lost or abandoned noncriminal, or other nonemergency situations when justified officers would be in examining private property without a search warrant. That place will very heavy burden on governments local throughout this state.
By requiring governments local adopt written rules authorizing what have constitutionally heretofore been actions, they reasonable dealing very will be with the different and difficult task legislating reasonableness. That burden would fall heavily most agencies, smaller local have manpower such limited and other resources to attempt such an undertaking on their point own. We should out to them would to their benefit cooperatively pursue adoption of By endeavor, uniform rules. such an our commu- nities will avoid the need of reinventing the wheel over and again. over It also predictability efficiency would lend the judicial system in that we required would not be to review dozens of sets they inevitably of different rules when are
challenged generation noncriminal, non- in the next emergency search cases. join Hoomissen, JJ., this
Richardson and Van dissent.