State v. Forseth

Oregon Supreme Court

State v. Forseth

729 P.2d 545, 302 Or. 233, 1986 Ore. LEXIS 1786

CourtOregon Supreme Court

DecidedNovember 20, 1986

DocketTC 13993; CA A33445; SC S32229

StatusPublished

Cited by12 cases

This text of 729 P.2d 545 (State v. Forseth) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Forseth, 729 P.2d 545, 302 Or. 233, 1986 Ore. LEXIS 1786 (Or. 1986).

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Opinions

[235]*235CARSON, J.

On December 8, 1983, county sheriff personnel and local and state police officers executed a search warrant on defendant’s residence in Prineville. While executing the warrant, which was for “the controlled substance marijuana and evidence of its use and possession,” the officers discovered two small vials. One vial was made of amber, transparent glass; the other was clear glass. Both were visually examined without being opened. The officers observed that each contained a white powdery substance. Defendant was not present at his residence during the search.

Numerous items of drug paraphernalia were found in defendant’s residence near the vials. Some of the paraphernalia (e.g., roach clips) are items commonly associated with the use of marijuana. Other paraphernalia discovered there (a coke grinder and straw)¹ are commonly associated with the use of cocaine. The officer also found a photograph depicting defendant holding a small piece of glass with five rows of white powder on it. In the picture, defendant had a straw up to his nose, the other end of which touched the white powder.

The officers seized both vials, as well as pipes, bongs and trays containing marijuana residue, and a small quantity of marijuana stems and seeds. They submitted the contents of the two vials to the State Crime Laboratory where chemical analysis indicated that one vial contained cocaine and the other contained methamphetamine.

Defendant was indicted for Unlawful Possession of the Controlled Substances Cocaine and Methamphetamine. He moved to suppress all evidence on the grounds, inter alia, that items were seized which were outside the scope of the search warrant, were not identifiable as contraband, and were unlawfully retained and chemically analyzed without obtaining a search warrant.

The trial court found, inter alia, that the scope of the search was no greater than that authorized by the search warrant, and that the officers, based upon their training and experience and the other evidence available to them, had probable cause to believe that the vials contained controlled [236]*236substances. The trial court concluded, however, that the contents of the vials should not have been subjected to chemical analysis without a search warrant, citing State v. Lowry, 295 Or 337, 667 P2d 996 (1983), and allowed defendant’s motion to suppress.

The state appealed. The Court of Appeals affirmed per curiam, citing that court’s opinion in State v. Westlund, 75 Or App 43, 705 P2d 208, aff’d in part; rev’d in part, 302 Or 225, 729 P2d 541 (1986).

DISCUSSION

We first address the propriety of the warrantless seizure of the two vials. The trial court found that the search which led to the discovery of the vials was justified by the search warrant for “marijuana and evidence of its use and possession.” The trial court held that the seizure of the vials was outside the scope of the search warrant and therefore not pursuant thereto. We hold that the vials were lawfully seized as suspected contraband pursuant to ORS 133.585.²

For the reasons stated in State v. Owens, 302 Or 196, 729 P2d 524 (1986), we hold that a search warrant is not required under Article I, section 9, of the Oregon Constitution to analyze chemically the contents of lawfully seized transparent containers, when there is probable cause to believe that they contain controlled substances.

The decisions of the Court of Appeals and the trial court are reversed. The case is remanded for trial.

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[235]*235CARSON, J.

On December 8, 1983, county sheriff personnel and local and state police officers executed a search warrant on defendant’s residence in Prineville. While executing the warrant, which was for “the controlled substance marijuana and evidence of its use and possession,” the officers discovered two small vials. One vial was made of amber, transparent glass; the other was clear glass. Both were visually examined without being opened. The officers observed that each contained a white powdery substance. Defendant was not present at his residence during the search.

Numerous items of drug paraphernalia were found in defendant’s residence near the vials. Some of the paraphernalia (e.g., roach clips) are items commonly associated with the use of marijuana. Other paraphernalia discovered there (a coke grinder and straw)¹ are commonly associated with the use of cocaine. The officer also found a photograph depicting defendant holding a small piece of glass with five rows of white powder on it. In the picture, defendant had a straw up to his nose, the other end of which touched the white powder.

The officers seized both vials, as well as pipes, bongs and trays containing marijuana residue, and a small quantity of marijuana stems and seeds. They submitted the contents of the two vials to the State Crime Laboratory where chemical analysis indicated that one vial contained cocaine and the other contained methamphetamine.

Defendant was indicted for Unlawful Possession of the Controlled Substances Cocaine and Methamphetamine. He moved to suppress all evidence on the grounds, inter alia, that items were seized which were outside the scope of the search warrant, were not identifiable as contraband, and were unlawfully retained and chemically analyzed without obtaining a search warrant.

The trial court found, inter alia, that the scope of the search was no greater than that authorized by the search warrant, and that the officers, based upon their training and experience and the other evidence available to them, had probable cause to believe that the vials contained controlled [236]*236substances. The trial court concluded, however, that the contents of the vials should not have been subjected to chemical analysis without a search warrant, citing State v. Lowry, 295 Or 337, 667 P2d 996 (1983), and allowed defendant’s motion to suppress.

The state appealed. The Court of Appeals affirmed per curiam, citing that court’s opinion in State v. Westlund, 75 Or App 43, 705 P2d 208, aff’d in part; rev’d in part, 302 Or 225, 729 P2d 541 (1986).

DISCUSSION

We first address the propriety of the warrantless seizure of the two vials. The trial court found that the search which led to the discovery of the vials was justified by the search warrant for “marijuana and evidence of its use and possession.” The trial court held that the seizure of the vials was outside the scope of the search warrant and therefore not pursuant thereto. We hold that the vials were lawfully seized as suspected contraband pursuant to ORS 133.585.²

For the reasons stated in State v. Owens, 302 Or 196, 729 P2d 524 (1986), we hold that a search warrant is not required under Article I, section 9, of the Oregon Constitution to analyze chemically the contents of lawfully seized transparent containers, when there is probable cause to believe that they contain controlled substances.

The decisions of the Court of Appeals and the trial court are reversed. The case is remanded for trial.

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729 P.2d 545, 302 Or. 233, 1986 Ore. LEXIS 1786, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-forseth-or-1986.

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