*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 818 P2d 938 Salem, Defender, argued Public Johansen, Deputy Eric R. L. was Sally him on the brief With for appellant. the cause Defender, Salem. Public Avera, Salem, General, Fussner, Attorney Assistant H.

Jonathan were him on the brief With cause for respondent. argued Linder, General, Virginia L. Attorney Dave Frohnmayer, General, Salem. 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 was 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 The 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 reserved 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 284 Or 80-a (Emphasis supplied.) This case that issue.1 squarely presents

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 71 L Ed 580 on would initiate a by imposing process those who that leads to the the solemn deprivation liberty obligation to tell the truth facts within their regarding knowledge belief. That was fulfilled here. The fact purpose failure to the fine existed the court’s own records. It would be anomalous to conclude that the framers contem- court, that a under the solemn plated acting obligation affirm office, by its oath of would be imposed by required oath or its own records. Accord- validity affirmation the probable we hold when the facts rise ingly, giving *4 of a warrant exist in the court cause for issuance bench The records, necessary. no further oath or affirmation is warrant was lawful. 1 parties stipulated warrant looked at its The that the trial court that issued the

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 relies 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 search 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, 653 P2d 942 at 117. [293 Or omitted.) footnote (Emphasis supplied; We that explained

‘‘ 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 said: 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 contained 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 incident 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 box

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 an 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 reasonable, 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 311 Or 427 Kerns was not entitled to wallet, particularized suspicion search the because he did not have a that the wallet weapons contained or instruments of That case Smith follows and stands for proposition police unless a officer has “some reasonable basis” to believe (or weapon escape), that a wallet contains a means a search ofit is unlawful. 106 Or Here, experiences withbeingthreatened at 275. Kerns’ with razor blades and his knowledge carry purposes that arrestees often razors for various is a “reasonable justify basis” to the search of defendant’s wallet. 3 Ridderbush, arresting custody In officer took the defendant into arrest, menacing. During a search incident to he found a small black box. The officer previous report carrying was aware of a was a razor blade. The the defendant officer asked defendant about the contents of the box and was told that it contained defendant, “pencils.” The did was heavier officer not believe the because the box thought only pencils. Inexplicably, than what he it would be if it officer contained pocket. returned the box to the defendant’s The razors the box were discovered during inventory. later We said: removing arresting opened [the officer] from “Had instead the box on pocket, proper under Caraher as a

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;§ 801 P2d 749 Art I believe that there are heightened privacy prop- wallets, are they carry interests erty and effects. Under important personal papers valuables and case, of this and in the of those light circumstances interests, it would be a heightened greater impairment him of its deprive to seize the wallet and rights than time, rather indefinite possession period and then or means briefly inspect him were found. return it to if none promptly, defendant’s wallet I would hold that the search of necessary that was was the least reasonable action intrusive for the officer’s protection.