State v. Newman

637 P.2d 143, 292 Or. 216, 1981 Ore. LEXIS 1183
CourtOregon Supreme Court
DecidedDecember 9, 1981
DocketTC C 79-10-33601, CA 16600, SC 27594
StatusPublished
Cited by49 cases

This text of 637 P.2d 143 (State v. Newman) 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.

Bluebook
State v. Newman, 637 P.2d 143, 292 Or. 216, 1981 Ore. LEXIS 1183 (Or. 1981).

Opinions

[218]*218CAMPBELL, J.

The narrow issue in this case is: Can the police without a warrant in a noncriminal and nonemergency situation search the property of an intoxicated person for identification at the time the person is taken into custody?

On October 13, 1979, at about 5:30 a.m., Portland Police Officer Kenneth Pacheco saw an automobile parked in a no parking zone on Southeast McLoughlin Boulevard.1 Both tires on the left side were flat and a person behind the steering wheel was leaning against the window on the driver’s side. Pacheco parked the police car behind the disabled vehicle and approached it to investigate. The person behind the wheel was the defendant, who was the sole occupant of the automobile. The officer “knocked on the window a couple of times and got no reaction,” so he opened the door and “shook the young lady a couple of times until she finally woke up.” As to the next events the officer testified:

“Basically I asked her — she looked very young and I asked how old she was. She said 22, and I asked if she had any identification and she just kept telling me she wanted to go home, and I continuously asked for identification and she wouldn’t — she just kept saying, ‘I want to go home,’ and I could smell a moderate amount of alcohol on her breath and I assumed she was intoxicated.”

Finally, the defendant reached into her purse and gave a driver’s license to the officer. The license had been issued to Catherine M. Newman, age 22, with a Milwaukie, Oregon address.

Next, Officer Pacheco asked the defendant for a telephone number so that he could verify her identity. After some delay, she gave the officer a telephone number. He had the East Police Precinct call the number and they reported back that the person answering “had never heard of Catherine Newman or anybody by the name of Newman.” The officer then asked the defendant for her parents’ telephone number and she replied, “Well, take me wherever you want, but don’t call my parents.”

[219]*219The officer did not think that the defendant was Catherine Newman or that she was 22 years of age. She did not respond to the name Catherine and in the officer’s opinion she did not look like the photograph on the driver’s license. Her condition and behavior “ranged from being hysterical to crying to being antagonistic and extremely moody.”

Officer Davis arrived on the scene and he, with the approval of Officer Pacheco, handcuffed the defendant and placed her in the back of one of the patrol cars. Pacheco placed the defendant in custody “on a civil hold”2 to take her either to the “detox3 or the booking facility.”4 He did not intend to charge her with a violation of any law.

After the defendant was placed in the patrol car, Pacheco went back to her vehicle and found a woman’s purse on the ground. The purse was closed and he opened it without the defendant’s consent for the “sole purpose (of finding out) who she was.” When the officer first opened the purse, he found a plastic bag containing white cross top pills. On a further search of the purse he discovered additional pills and a wallet. Inside the wallet was a driver’s license issued to Patricia Ann Newman, age 19, with the same Milwaukie address as that listed on the previous driver’s license. When confronted with the second driver’s license, the defendant admitted that she was Patricia Ann Newman and that Catherine M. Newman was her sister.

The defendant was charged by a two count information with possession of a controlled substance, ORS 475.992, and with misuse of a driver’s license, ORS 482.610. The defendant moved to suppress all evidence seized on October 13, 1979, on the ground that it was “unreasonably seized without a warrant and in violation of [220]*220federal and state constitutions, statutes, and case law.” The trial court allowed the motion to suppress and when the state declined to proceed to trial, the information was dismissed.

The state appealed to the Court of Appeals pursuant to ORS 138.060(1) and (3). The Court of Appeals reversed and remanded, 49 Or App 313, 619 P2d 930, (1981) holding that it was required to analyze the search on the basis of reasonableness because the standard of probable cause applied only to criminal cases and not to noncriminal situations.5 The court found the search of the defendant’s purse for identification was reasonable under the circumstances.

We disagree with the Court of Appeals that the search of the defendant’s purse for identification was reasonable under the circumstances of this case and therefore reverse. The effect of this decision is to reinstate the trial court’s order suppressing the evidence.

A person who is intoxicated in a public place may be taken home or to a treatment facility by the police. ORS 426.460(1).6 If there is no appropriate treatment facility, the intoxicated person may be taken to a city or county jail where the person may be held until no longer intoxicated. ORS 426.460(3). There is nothing in the record to indicate what treatment facilities were available in Multnomah County.

[221]*221The officer could smell a moderate amount of alcohol on the defendant’s breath and assumed that she was intoxicated. Although there was a wide range in the defendant’s behavior, she only became violent when she was told that she would be placed in handcuffs. The officer did not intend to charge her with a violation of a criminal law. Officer Pacheco testified as to his intention as follows:

“I basically was going to place her in custody on a civil hold and either take her to the detox or the booking facility and another officer had to forcibly handcuff her and put her in the back seat.”

There is testimony in the record that prior to the time the defendant was placed in the patrol car the officer was attempting to identify the defendant so that he could take her home. As to what he was attempting to learn after she was placed in the patrol car, Officer Pacheco testified that when he opened the purse “my sole purpose was to find out who she was.”

Thus, the issue in this case narrows: Can the police without a warrant in a noncriminal and nonemergency situation search the property of an intoxicated person for identification at the time the person is taken into custody for transportation to a treatment or holding facility?

Neither party contends that Officer Pacheco was conducting a criminal investigation at the time he opened the purse. We agree with the Court of Appeals that the facts of this case did not present the officer “with a medical emergency justifying an immediate search.” State v. Newman, supra, 49 Or App at 320. The defendant was suffering from ordinary intoxication from the use of alcohol.

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Cite This Page — Counsel Stack

Bluebook (online)
637 P.2d 143, 292 Or. 216, 1981 Ore. LEXIS 1183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-newman-or-1981.