State v. Florance

515 P.2d 195, 15 Or. App. 118, 1973 Ore. App. LEXIS 716

Opinions

SCHWAB, C.J.

Defendant was charged with one count of menacing, ORS 163.190, and four counts of criminal activity, in drugs, ORS 167.207, for possession of marihuana, Numorphan, MDA (alpha-methyl-3-4me thylenedioxyphen ethyl amin e), and cocaine. A jury found him not guilty of menacing and possession of marihuana, and guilty of the other three counts of criminal activity in drugs. The trial judge entered a single conviction and imposed a single sentence.

Footnotes

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① Defendant appeals, contending the drugs introduced at trial were illegally seized. This contention raises important questions concerning searches and seizures incident to an arrest, and “booking searches” (also called “booking inventories”) made when an arrested person is jailed.

The record at' the motion to suppress hearing is far from a model of clarity. It appears that Officer Forristahl was investigating a burglary in which, defendant was a suspect. The officer spoke with defendant on February 5, 1973, at which time he recovered some stolen property, apparently connected with, the burglary' under investigation. Something was said at that time about defendant’s also trying to obtain and return a stolen television set.

On. February 14, the officer went to the farm where defendant was working to inquire further about the stolen television set. The officer and defendant talked from opposite sides of a fence. Forristahl testified that defendant refused to continue to cooperate in the recovery of the television set, shouted obscenities and turned and started to walk away. The officer also testified that he shouted that defendant was under arrest for burglary, jumped the fence with his gun drawn, and that defendant then turned toward him and thrust a pitchfork at him. Two witnesses, testifying for the defendant, stated that defendant had not shouted, that Forristahl had said nothing about defendant’s being under arrest for burglary, and.that defendant had not thrust a pitchfork at the officer.

Forristahl took the defendant into custody, handcuffing him. Defendant was searched and everything was removed from Ms pockets, including his .wallet.

Forristahl and his partner took the defendant to the Estacada City Hall to complete certain .reports that were never fully described in the record. Defendant refused to answer the officers’ questions concerning name, address, date of birth, etc. On cross-examination Forristahl admitted that he had written a report concerning his February 5 contact with defendant. The record implies that tMs report contained all or most of the information the officers needed to complete their February 14 report.

ForristaM then opened defendant’s wallet, supposedly in search of information needed for his report. Upon opening the wallet the officer saw several little plastic bags containing powdered substances. The officer did not testify that he recognized these pow dered substances as illegal drugs. However, for reasons not of record, Forristahl seized these plastic bags and caused their contents to be chemically analyzed. They proved to contain illegal drugs which formed eviden-tiary basis of the three counts of criminal activity in drugs of-which defendant was eventually convicted.②

I

Defendant’s initial contention is that there was no probable cause to arrest him on February 14, and that the arrest’s being invalid, everything which followed was tainted by that invalidity. On this record we -hold defendant was validly arrested for menacing. Forristahl testified that defendant thrust a pitchfork at him③ Two other witnesses testified to the contrary. At a suppression hearing the trial judge is the trier of fact, and we are bound by his findings if supported by substantial evidence. State v. Blackburn/Barber, 266 Or 28, 511 P2d 381 (1973); Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968); State v. Fisher, 5 Or App 483, 484 P2d 864 (1971). In this case, the trial judge chose to believe Forristahl and to disbelieve the other witnesses. See, n 4, infra. Forristahl’s testimony reveals sufficient probable cause to arrest defendant for menacing.

Since at trial defendant was found not guilty of tlie menacing charge, we assume the jury chose to believe defendant’s witnesses and disbelieve Officer Forristahl, or at least had a reasonable doubt about which version was true. However, this contrary resolution of the conflict in the testimony at trial does not in any way negate the trial judge’s resolution for purposes of the motion to suppress.

It is likely that there was also probable cause to arrest defendant for burglary, although the record is much less clear on this aspect of the case. In any event, however, having found the arrest valid for one offense, we need not resolve whether it would also be valid for another offense.

Following defendant’s arrest, there was a series of events leading to the discovery and seizure of the drugs in question: (1) defendant’s wallet was'seized at the time of his arrest; (2) the wallet was subsequently searched; and (3) the powder which proved to be drugs was seized for analysis. Below we discuss each of these events in light of the rules governing searches and seizures incident to arrest, Part II, infra, and the rules governing booking searches and seizures, Part III, infra;

II

The trial court upheld the legality of the seizure of the drugs in question based on a finding that the drugs were seized as part of a search incident to defendant’s arrest.④ This line of analysis cannot be sustained.

Since this was. a warrantless search, and seizure, the state has the burden of establishing its validity. State v. Douglas, 260 Or 60, 68, 488 P2d 1366 (1971), cert denied 406 US 974 (1972). Or, stated differently, “searches and seizures conducted without search warrants ‘are per se unreasonable,’ subject to ‘a few specifically established and well-delineated exceptions’ * * State v. Douglas, supra, 260 Or at 67, quoting from Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed 2d 564 (1971). One of the recognized exceptions to the warrant requirement is that, when arrested, a person can be searched incident to that arrest for the purposes set forth below. Chimel v. California, 395 US 752, 89 S Ct 2034, 23 L Ed 2d 685 (1969); State v. Chinn, 231 Or 259, 373 P2d 392 (1962).

A

Since there was a lawful arrest, Part I, supra, Officer Forristahl and his partner were entitled, incident to the arrest, to search defendant’s person for: (1) weapons, both for their safety and to prevent escape; and (2) evidence relevant to ■ the crime for which defendant was arrested. See, Chimel v. California, supra; State v. Chinn, supra. But the officers did not search defendant’s wallet at the time of his arrest. They, merely seized the wallet along with everything else in defendant’s possession. Was this seizure of the wallet valid?

Some cases hold that if the police are entitled to search an item at the time of an arrest, they may instead seize the item at the time of the arrest and search it at a later time.⑤ On the other hand, there are cases that suggest that the police were not entitled, on the facts of this case, either to search or to seize defendant’s wallet at the time of his arrest.⑥ :In view of- our-disposition of the. other issues presented it is notnecessary to resolve-this question. We assume for purposes of discussion, but do not decide,’ that the seizure of. defendant’s wallet at the time of his arrest was valid.

B

Was the subsequent search of the wallet at the Estacada City Hall valid? This search occurred sometime after .the arrest (the record does not disclose how long), some distance from the scene of the arrest (the record does not disclose how far). This search of the wallet clearly cannot be justified as being incident to defendant’s arrest.

“The search must be an incident of the arrest, i.e., close to the arrest both in time and space * * State v. Chinn, supra, 231 Or at 267. Or, stated differently, “[Q]nce an accused is under arrest and in custody, then a search made at another place * * * is simply not incident to the arrest.” Preston v. United States, 376 US 364, 367, 84 S Ct 881, 11 L Ed 2d 777 (1964).

“The very notion of a search incident to an arrest connotes spatial contiguity and temporal proximity. To hold otherwise would eliminate all pretense of a rational nexus between the search and the arrest and would be tantamount to saying that an individual legally arrested thereby forfeits all protection under the fourth amendment * * Cook, Warrantless Searches Incident to Arrest, 24 Ala L Rev 607, 608 (1972).

In tMs casé,' either the search, of defendant’s wallet was- too remóte in-time and place to be part of a search. Incident to arrest, or at the very- least it cannot- be said that the state sustained its burden of proving a reasonably contemporaneous search under the circumstances of this case.

C

Even if both the seizure and' subsequent search of defendant’s wallet were valid as incident to arrest, the seizure of the drugs therefrom was not. State v. Elkins, 245 Or 279, 422 P2d 250 (1966).

In Elkins, the defendant was arrested for public intoxication. In the course of a search incident to that arrest, an officer discovered various pills in the defendant’s possession. Although the officer suspected the pills might be illegal drugs, he did not have probable cause to so believe. The officer nevertheless seized the pills and caused them to be chemically analyzed. They proved to be illegal drugs, and defendant was convicted for possessing them. The Supreme Court reversed based on a finding that the seizure of the pills was invalid.

Elkins holds that (1) if in the course of an appropriately limited search incident to an arrest an officer discovers evidence of another crime being committed in his presence, such as possession of contraband, he is entitled to seize it, (2) provided he has probable cause to believe it is, in fact, contraband.

The seizure of the powdered substances from defendant’s wallet was invalid under the second holding of Elkins. The officers who-made the seizure said absolutely nothing at the suppression hearing about why they seized the. drugs.. The officers may well have had probable- cause to believe the powdered substances were illegal drugs, but such evidence did not find its way into this record,- - -

Ill

As an alternative theory on appeal, the state contends that the search of defendant’s wallet and seizure of drugs therefrom were permissible as part of an inventory during-the booking process.- ■

A"

If defendant’s wallet had not been taken from him at the scene of his arrest, there is no doubt that it could have been taken from him as part of- the booking procedure. Indeed, when an arrested person is being jailed, officials at the jail can take anything and everything from the arrested person that for reason-áble administrative purposes they do not want introduced into the jail. ORS 142.210;⑦ State v. Whitewater, 251 Or 304, 445 P2d 594 (1968); State v. Kangiser, 8 Or App 368, 494 P2d 450 (1972); State v. Sorgenfrei, 7 Or App 442, 490 P2d 1040 (1971), Sup Ct review denied (1972); State v. Riner, 6 Or App 72, 485 P2d 1234, Sup Ct revieio denied (1971); cf., State v. Swarts- fager, 11 Or App 69, 501 P2d 1321 (1972); State v. Darrien, 10 Or App 84, 497 P2d 1204, Sup Ct review denied (1972)..

In State v. Whitewater, supra, defendant was arrested on a variety of serious traffic charges. While he was being hooked in at the county jail, officers noticed that defendant’s hoots appeared to he capable of making impressions similar to ones that had been observed at the scene of recent burglaries. Defendant was required to surrender his boots to the jailer as part of the booking procedures, and an officer then seized them and sent them to the crime laboratory. In defendant’s subsequent burglary trial the boots and the crime laboratory test results linking the boots to the impressions at the burglary scenes were introduced in evidence. The Supreme Court held the seizure of the boots was lawful:

“■* * * There was only a seizure [upon probable cause] and no search was ever made. OPS 142.210 requires a prisoner when booked to turn over to the jailer his possessions.” 251 Or- at 307.

B

But the conceded prerogative of jail officials to take defendant’s wallet from him does not necessarily create -the additional authority to search the wallet. ■Does this additional authority exist?

The state argues the search is valid based on language, in our prior decisions in State v. Kangiser, supra, State v. Sorgenfrei, supra, State v. Riner, supra, State v. Swartsfager, supra, and State v. Darrien, supra. While those cases may well have been properly decided on their facts, we now conclude that the broad language upon, which th.e. state relies ean.no longer be folio-wed in light of the Oregon Supreme Court’s recent decision in State v. Keller, — Or — , 510 P2d 568 (1973).

In Keller, the defendant was arrested'for driving with a suspended license and taken into custody. Before having the defendant’s car towed from the scene of the arrest, the police conducted an inventory search of the contents of the car. In the course of this inventory the police seized narcotics paraphernalia that was in plain view, in an open cosmetic case, and narcotics that were in a tackle box that had been closed before the police opened it. In striking “a delicate balance between conflicting public and private interests — the need to search to protect law officers and ear owners and the invasion of Fourth Amendment protected interests of private citizens,”⑧ the Oregon Supreme Court held: (1) the police could enter the car for purposes of making the inventory search; (2) evidence of crime that comes into plain view of the inventorying officers is subject to seizure, i.e„ the seizure of the narcotics paraphernalia from the cosmetic case was proper; and (3) during the course of an.inventory officers may not open closed containers; thus, the seizure of the narcotics from the closed tackle box was invalid.

Kelley involved an inventory search -of an automobile taken into police custody at the tíme of an arrest. This case involves an inventory, search of a person’s possession taken into police custody at the time of an arrest. We perceive no meaningful distinction between these two situations. In.both situations, the fact that an arrest has occurred creates, an obligation that the police hold certain property.for safekeeping — be it a tackle box from a car, as in Keller, or a person’s wallet, as in this ease. However, in both situations, the fact that an arrest has occurred does not destroy the arrestee’s reasonable expectation of privacy, i.e., that tackle boxes and wallets will not be subject to indiscriminate examination by the police.

“We are not prepared to say that an accused whose effects are held by the police for safekeeping has, by the single fact alone of the police custody of the property, surrendered Ms expectations of the privacy of those effects.” Brett v. United States, 412 F2d 401, 406 (5th Cir 1969).

We hold the Keller rules, apply to a booking search. (1) The jailer can require an arrested person to surrender Ms property. (2) Items that the jailer sees in plain view and which he has probable cause to believe are contraband or evidence of crime are subject to seizure. (8) As part of a booking search or inventory, a jailer cannot open closed containers taken from the arrestee.

It is often argued that if the police are not authorized to inventory the items in a wallet or other closed container they will be open to unfounded charges of theft. It is true that if such containers are safely secured without such an examination those charges may arise. However, we know of no reasonable method by wMch the police would always be protected against a charge of having stolen money while in the process of counting it.

We further hold that defendant’s wallet was a closed container within the meaning of Keller. The notion of a “closed” container relates to whether the contents are or are not exposed to public view, which in turn relates to whether there is expectation that the contents of the container will remain private. Brett v. United States, supra. The contents o£ a wallet are not ordinarily exposed to public, view; the .owner of a wallet does' have a reasonable' expectation that what is in his wallet will remain private. Cf., State v. Childers, 13 Or App 622, 511 P2d 447, Sup Ct review denied (1973).

The search of defendant’s wallet cannot be sustained as part of a booking search or inventory.

C

But even assuming that defendant’s wallet could have been opened and searched, were the drugs in it subject to seizure? We hold they were not.

As noted above, see, Part II (C), State v. Elkins, supra, requires that the police have probable cause to. believe an item is contraband before they can seize it. In Elkins the search and seizure took place on the street incident to an arrest. In this case, the search of the wallet and seizure of the drugs took place at the station house. In Elkins the court suggested this distinction might produce a different result:

“* * * It may well be that after a person has been deprived of the possession of his property upon being incarcerated, he may not thereafter complain if police' have his property -examined. His property rights have already been legally violated. However that is not a question we must decide-now as this situation had not yet occurred and might never have occurred’.” 245 Or at 291-92. ■

. We,: conclude that ■ the more recent decision in State v. Keller, supra, compels the conclusion that the distinction between the facts in Elkins. and In the case at bar-;does--no.t'pr.ó.duee a different: result, that is,- that the Elkins requirement that the police have probable canse to make a seizure applies equally in the station house and on the street. The Keller defendant was deprived of the possession of her property, i.e., car and tackle box, upon being incarcerated. To this extent, her property rights were legally violated. However, rather than concluding that she could not thereafter complain if the police had her property examined, the Supreme Court instead concluded that the Keller defendant could complain about the police having opened her tackle box during an inventory of the contents of her car. Given that the Keller defendant can and did successfully complain about the search of her tacide box, we can perceive no basis for holding that the defendant in this case cannot also complain about the opening of his wallet and the seizure of the substances in it for chemical analysis.

As stated in Part II (C), supra, the record in this ease does not furnish any basis for concluding that the police had probable cause to believe the substances in defendant’s wallet were illegal drugs.

IV

The state’s final contention to support the- search of defendant’s wallet is that in light of defendant’s refusal to answer its questions, about name, address, etc., it was necessary to search through the. wallet in order to find this information needed for various reports. The record contains no explanation of the nature of these reports or their importance. The record does contain testimony from which we infer the police had previously obtained all or most of the information needed for their reports during their earlier contact with defendant. '

State v. O’Neal, 251 Or 163, 444 P2d 951 (1968), holds:

■ • “The state concedes that not- every traffic violation with an ensuing arrest would authorize a search; however, it contends that in this case, "because of the nature of the charges, a question of identity arose and the officers had the right to attempt to find out by searching the driver’s wallet who the accused was. The driver’s identity has no relationship to the charges against him; the driver’s conduct in the particulars charged are law violations regardless of who he is.” 251 Or at 167.

A strong argument can be made that the police should be able to take such steps as are reasonably necessary to identify a person whom they are going to hold in a cell pending judicial proceedings, and that O’Neal should not be construed to apply in such a situation. However, we need not reach that question here in view of our holding that even if the wallet could have been opened and searched, the powder found in it was not subject to seizure for analysis.

Reversed and remanded.

While the question has not been argued, it would appear that the trial judge was correct in treating the simultaneous possession of three different drugs as one, not three, violations of the prohibition against. criminal ■ activity in drugs, ORS 167.207. See, State v. Miller, 14 Or App 396, 513 P2d 508 (1973).

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Apparently, the basis oí the possession of marihuana charge, on which the jury found defendant not guilty, was some residue in a’pipe also ’seized from defendant at the time of his arrest. There ;is no explanation in the record of why Officer Forristahl caused the residue in the pipe to be chemically analyzed. However, since defendant was found not guilty of this charge, the legality. !of this seizure,is not before us.

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ORS 163.190 provides:

“(1). A person commits the crime of menacing if by word or conduct he intentionally attempts to place another person in feár of imminent serious physical injury.

‘1(2)!'Menacing is a Class A.misdemeanor.”-

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The trial court ruled:

“* * * [T]he officer testified, I’m going to believe what he said was reasonable, and I’m going to believe that he went out there hot .with the idea of making an arrest, that the discussion turned into argument, that he did make an arrest,' that he went over the fence and that the defendant — I don’t have any doubt in my mind, did make a menacing gesture with the pitchfork. That he was also placed under arrest for that charge. As an incident to that arrest he was searched but that search showed possession of those other articles. That the search and the arrest was made legally and with probable cause. That the search was reasonable. - '

‘‘Now,-those are my- conclusions. I don’t have any 'doubt in my mind and I will' deny, your motion to suppress.”

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United States v. Mehciz, 437 F2d 145 (9th Cir), cert denied 402 US 974 (1971); United States v. Lipscomb, 435 F2d 795 (5th Cir 1970), cert denied 401 US 980 (1971); United States v. Robbins, 424 F2d 57 (6th Cir 1970), cert denied 402 US 985 (1971); Malone v. Crouse, 380 F2d 741 (10th Cir 1967), cert denied 390 US 968 (1968).

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The extent of authority to search and seize incident to arrest may depend upon whether the officers are looking for weapons or evidence. We have upheld the authority of the police to make a thorough search for weapons, State v. Swartsfager, 95 Adv Sh 1306, 11 Or App 69, 501 P2d 1321 (1972), except incidental to minor traffic arrests, State v. Gwinn, 12 Or App 444, 506 P2d 187, Sup Ct review denied (1973).

However, when the search is for evidence, “[a]s a general rule, the search [incident to arrest] must be reasonably related to the offense which prompts the arrest.” State v. Krogness, 238 Or 135, 144, 388 P2d 120 (1963), cert denied 377 US 992 (1964). A general exploratory search for evidence is vulnerable to attack on the grounds of undue intensity. State v. O’Neal, 251 Or 163, 444 P2d 951 (1968); State v. Chinn, 231 Or 259, 267-68, 373 P2d 392 (1962); United States v. Cally, 259 F Supp 539 (SD NY 1966) (search carried out by five officers held unreasonable where the defendant was a 68-year-old man arrested for tax evasion allegedly committed five or six years prior to arrest).

The reasonableness of the intensity of a search incident to arrest is primarily a function of the offense for which the arrest .is made. “A search.which might be reasonable as incidental to an arrest for one crime may be entirely unreasonable as an incident to an arrest for another crime. State v. Dodd, 28 Wis 2d 643, 648, 137 NW2d 465 (1965).

While these authorities involve overly-intense searches inci dent to an arrest, the same reasoning would seem to apply to an •overly-intense seizure.

In this case, there is nothing to indicate that the arresting officers had any reason to believe that evidence of the crime of menacing with a pitchfork or burglary of a television set might have existed in defendant’s Wallet.

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ORS 142.210 provides:

“Whenever any jailer, peace officer or health'officer takes or' receives any money or other valuables from' any prisoner or person in custody for safekeeping or for other purposes, the officer or jailer receiving such valuables or money forthwith shall tender one of duplicate receipts for the- property being surrendered' to the -prisoner or person in custody. If possible, the prisoner or person in custody shall countersign both the • original -and duplicate receipts. If the prisoner or person is unable to sign the receipts or receive the duplicate thereof, the sanie shall be signed by and delivered to the prisoner or person when reasonably possible. A file of'- the original receipts shall be kept for at least, six months after -the money or valuables have been returned to the prisoner, his agent or representative of other person entitled to thé'same.” ■

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State v. Keller, 265 Or 622, 629, 510 P2d 563 (1973).