State v. Kirsch

686 P.2d 446, 69 Or. App. 418, 1984 Ore. App. LEXIS 3862
CourtCourt of Appeals of Oregon
DecidedAugust 8, 1984
Docket133823 CA A27640
StatusPublished
Cited by40 cases

This text of 686 P.2d 446 (State v. Kirsch) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Kirsch, 686 P.2d 446, 69 Or. App. 418, 1984 Ore. App. LEXIS 3862 (Or. Ct. App. 1984).

Opinions

[420]*420GILLETTE, P. J.

The state appeals the pretrial suppression of methamphetamine which was seized from defendant’s vehicle during a warrantless search that followed his arrest for driving while under the influence of intoxicants, ORS 487.540, and for the possession of an explosive (dynamite) without a valid certificate. ORS 480.210. The trial court ruled that there were no exigent circumstances to justify the search and seizure. The state contends that the controlled substance was admissible, because the search and seizure were based on probable cause and were also incident to a lawful arrest. We agree with the second point and reverse and remand for trial.

Sergeant Sitton of the State Police observed defendant driving erratically and signaled him to stop. As Sitton approached the vehicle, he saw defendant and his two passengers bend over as if they were handling something on the floor. Sitton noticed an odor of alcohol on defendant’s breath. Defendant admitted drinking some beer. Sitton asked defendant to get out of the car. As he did so, Sitton saw an open beer can on the floor and immediately seized it. While seizing the can, Sitton saw another beer can at the feet of a front seat passenger and directed that passenger to hand him the can. Sitton used his flashlight to light the floor of the car as the passenger reached for the can and saw what appeared to be four sticks of dynamite in an open milk carton on the floor. Sitton then ordered the passengers out of the car and seized the sticks, which proved to be one highway flare by itself and three sticks of dynamite taped together. He seized those items. Because it was cold, Sitton allowed defendant and his passengers back into defendant’s car. As one passenger got in, he made a “throwing motion,” and Sitton heard something hit the ground. He investigated and found a brown paper bag, which contained marijuana, about six to eight feet from the car. The bag was dry, although the night was damp.

After those discoveries, Sitton radioed for assistance. He sat in his patrol car and watched the occupants of defendant’s car for the 10 or 15 minutes it took for help to arrive. When it did, Sitton gave defendant field sobriety tests and arrested him for DUII; he also planned to arrest him for possession of a controlled substance and for possession of an explosive. He placed defendant in a patrol car, while another [421]*421officer watched the two passengers. Sitton and a third officer then searched the interior of the vehicle. This search turned up, among other items, two “bundles” of white powder located under the front seat and two plastic boxes containing a white powder residue in the glove compartment. The officers seized those items, which are the evidence in question, and arrested the passengers.

The trial judge reasoned that once defendant and his passengers were arrested and removed from the vehicle no further exigency existed and the subsequent warrantless search of the vehicle and seizure of the white powder was unlawful. He did not directly rule on the state’s claim that the search was proper as incident to defendant’s arrest.

We address first the validity of the search under the Oregon Constitution, Article I, section 9. State v. Lowry, 295 Or 337, 667 P2d 996 (1983); State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983). The state contends that the discovery of the marijuana and the dynamite gave the officers probable cause to believe that the vehicle contained additional contraband. It cites United States v. Ross, 456 US 798, 102 S Ct 2157, 72 L Ed 2d 572 (1982), for the proposition that, when officers have probable cause to believe that a vehicle contains contraband, they may search the vehicle immediately without a warrant. Ross is based on the “automobile exception” under the Fourth Amendment. There is no “automobile exception” under the Oregon Constitution. That term, to the extent that it has any meaning, is merely a shorthand recognition that an automobile’s mobility may produce exigent circumstances in particular situations. When there is no likelihood that the vehicle will be driven away or evidence removed from it before a warrant can be obtained, there is no exigency, and probable cause alone will not support a warrantless search. State v. Fondren, 285 Or 361, 591 P2d 1374, cert denied 444 US 834 (1979); State v. Greene, 285 Or 337, 591 P2d 1362 (1979).

In this case, the trial judge found that the occupants of the vehicle were in fact under arrest and placed in custody before the search and that there were no longer any exigent circumstances to justify the search. The judge explained:

“Now the reason why the courts have been lenient on giving permission to search a car without a warrant is because of the very nature of the beast. It has a habit of running away [422]*422when — before the police officers can get it. But in this instance, the police officers had the critter corraled, they were the ones who were basically in possession of that vehicle. They had the opportunity to have it towed. And when it was towed, then they could come to the Court, to the District Court and obtain a Search Warrant.”

We agree.

The state’s second contention is that the search was incident to a lawful arrest. Such a search requires neither probable cause nor exigent circumstances beyond the fact of a lawful arrest. It is, however, subject to its own limitations. The state cites New York v. Belton, 453 US 454, 101 S Ct 2860, 69 L Ed 2d 768 (1981), another Fourth Amendment case, for the proposition that an officer who has made a lawful custodial arrest of the occupant of a vehicle may, as a contemporaneous incident of that arrest, search the interior of the vehicle, including any containers in it. Belton is not the law of Oregon. State v. Fesler, 68 Or App 609, 612, 685 P2d 1014 (1984). Under Article I, section 9, a warrantless search is permissible as incident to an arrest when it is for the protection of the officer, the preservation of evidence, or “when it is relevant to the crime for which defendant is being arrested and so long as it is reasonable in light of all the facts.” State v. Caraher, 293 Or 741, 759, 653 P2d 942 (1982) (emphasis supplied); see also State v. O’Neal, 251 Or 163, 444 P2d 951 (1968); State v. Krogness, 238 Or 135, 388 P2d 120 (1963); State v. Chinn, 231 Or 259, 373 P2d 392 (1962).

A search incident to arrest must be reasonable in scope, time and intensity. State v. Caraher, 293 Or át 758; State v. Chinn, supra. It may not be an exploratory search but must be closely tied to the crime or crimes for which the police have a right to arrest the person searched. A different rule “would open the door to complete temporary confiscation of all an arrested person’s property which was in his immediate possession and control at the time of his arrest for the purpose of minute examination of it in an effort to connect him with another crime.” State v. Elkins, 245 Or 279, 287, 422 P2d 250 (1966). Because a search incident to an arrest is a warrantless search, the opportunity to obtain a warrant is an important limitation on the right to continue the search. “[W]hen a search reaches a logical stopping point the police must seek a [423]*423

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Bluebook (online)
686 P.2d 446, 69 Or. App. 418, 1984 Ore. App. LEXIS 3862, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kirsch-orctapp-1984.