State v. Hoskinson

879 P.2d 180, 320 Or. 83, 1994 Ore. LEXIS 91

• Court: Oregon Supreme Court
• Decided: September 9, 1994
• Docket: CC 9106-1185; CA A73746; SC S40729
• Status: Published

Opinions

FADELEY, J.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He seeks suppression of evidence of a controlled substance obtained by police who conducted a warrantless search of his wallet incident to a lawful arrest. At issue is the validity of that search under Article I, section 9, of the Oregon Constitution.¹ The trial court denied defendant’s motion to suppress the evidence found in his wallet. The Court of Appeals affirmed. State v. Hoskinson, 123 Or App 305, 859 P2d 576 (1993). We reverse.

A police officer saw defendant driving his car. The officer knew that defendant’s driver license was suspended and confirmed that fact by radio. After arresting defendant for driving while suspended, the officer handcuffed defendant and then conducted a “pat-down search” of defendant’s person. During the pat-down, the officer took a wallet from defendant’s back pocket. The officer opened and looked inside the wallet, discovering a small plastic bag containing powder residue that later tests confirmed was methamphetamine.

Defendant moved to suppress the evidence found in his wallet. During the suppression hearing, the officer testified on direct examination:

“[State:] All right. Did you have any indication from looking at [the wallet] before you opened it up that it may contain a weapon or a means of escape?

“[Officer:] I could not tell that by not opening it up.”

On cross-examination, the officer testified:

“[Defendant’s lawyer:] Could you explain to us why — what you were concerned about with your safety? You’ve got the wallet. How can you be in danger?

“[Officer:] I’ve — it’s normal practice for myself to obtain the wallet and see if there are any weapons or any indications of things that would be used to escape that would alert myself to search the subject more thoroughly and extensively for additional means of escape.”

The trial court found that the officer was “searching for weapons and means of escape” and concluded that the search was a valid search at the time and place of arrest. The Court of Appeals affirmed.

Defendant argues that the search of his wallet violated his right under Article I, section 9, of the Oregon Constitution, to be free from unreasonable searches. This court has held:

“Normally, in order for a search to be constitutionally permissible, the police must have a search warrant. * * *

“A warrantless search by the police is ‘reasonable’ under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement.” State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992) (citations omitted).

The state argues that the warrantless search of defendant’s wallet was reasonable because it falls within the officer-safety prong of the search incident to a lawful arrest exception to the warrant requirement. In State v. Caraher, 293 Or 741, 757, 653 P2d 942 (1982), this court recognized that, unlike under federal search and seizure law, a “valid custodial arrest does not alone give rise to a unique right to search. Such a warrantless search must be justified by the circumstances surrounding the arrest.”

Under Article I, section 9, there are three valid justifications for a search incident to lawful arrest: to protect the officer’s safety, to prevent the destruction of evidence, and to discover evidence relevant to the crime for which the defendant was arrested. State v. Caraher, supra, 293 Or at 759. In this case, the trial court concluded that the warrantless search of defendant’s wallet was a valid search conducted to protect officer safety and to prevent escape. In this case, the state does not argue that the search of the wallet was conducted either to prevent the destruction of evidence or to discover evidence relevant to the crime for which defendant was arrested. Thus, we must decide whether this was a valid search pursuant to the officer-safety prong of the search incident to a lawful arrest exception to the warrant requirement.²

This court has stated that “a pat-down or limited search for weapons to protect the officer or to prevent escape would be justified whenever a person is taken into custody.” State v. Owens, 302 Or 196, 200, 729 P2d 524 (1986). Beyond that limited search, however, a further search incident to arrest conducted to protect officer safety or to prevent escape must be reasonable, taking into account all the facts surrounding the arrest. See State v. Caraher, 293 Or at 758-59 (a search for evidence of the crime for which the defendant was arrested must be reasonable under the circumstances). Thus, an officer may conduct a further protective search if he or she develops a reasonable suspicion, based on specific and articulable facts, that the person in custody poses a serious threat of harm or escape and that a search would lessen or eliminate that threat. See State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987) (“Article I, section 9, of the Oregon Constitution, does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.”).

The standard articulated in Bates was applied recently in State v. Ehly, 317 Or 66, 81-84, 854 P2d 421 (1993). In that case, two police officers were called to a motel room to confront the defendant, whom the officers knew to be a methamphetamine user, and who appeared at the time to be under the influence of methamphetamine. State v. Ehly, supra, 317 Or at 69-70. While the officers were in the room, the defendant began to rummage through his gym bag, with both hands concealed. Id. at 71. The officers knew that the defendant was a friend of a man, whom the officers saw leaving the motel parking lot and who was believed to be in possession of a handgun. Id. at 69. This court held that the officers had a reasonable suspicion to believe that there was a gun in the bag and that, under the circumstances, it was reasonable for one of the officers to dump out the contents of the bag. Id. at 83.

This case is far from the type of reasonable suspicion of danger found in Ehly. Unlike in Ehly, where the officers had a particularized suspicion of danger, the officer in this case testified that he searched defendant’s wallet because it was his “normal practice” to do so. Indeed, in this case, the officer testified affirmatively that he had no specific reason to believe that defendant’s wallet contained either a weapon or a means of escape. He testified that his training and experience led him to believe that the wallet could have contained one of those items, but that he could not tell until he opened the wallet.

There is nothing to suggest that the officer had a reasonable suspicion that defendant posed an immediate threat of escape or harm. It is not tenable to suggest that the mere fact that defendant carried a wallet gave the officer reasonable, articulable suspicion that defendant posed a threat of serious physical harm or a threat of escape. Accordingly, the officer’s decision to search the wallet was not reasonable under the circumstances.

The warrantless search of defendant’s wallet was not justified under the officer-safety prong of the search incident to a lawful arrest exception to the warrant requirement. The state has not sought to justify the search under any other exception. We therefore hold that the search violated defendant’s right under Article I, section 9, of the Oregon Constitution to be free from unreasonable searches, and the trial court erred in denying defendant’s motion to suppress.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is vacated, and the case is remanded to that court for further proceedings.

1 Article I, section 9, of the Oregon Constitution, provides in part:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * *

2 The state does not contend that this search might fall within any of the other recognized exceptions to the warrant requirement. Accordingly, we do not discuss any of those other exceptions.