State v. Owens

729 P.2d 524, 302 Or. 196, 1986 Ore. LEXIS 1790

• Court: Oregon Supreme Court
• Decided: November 20, 1986
• Docket: TC 85-05-0972; CA A36677; SC S32804, SC S32811
• Status: Published

Opinions

CARSON, J.

Two issues under the Oregon Constitution are presented in this case: (1) whether the warrantless search of defendant’s purse, which included opening a clutch-style purse and two compact mirror cases found within the clutch-style purse and removing a transparent vial and clear plastic packet containing white powder, was justified as a search incident to arrest; and (2) whether a search warrant was required to analyze chemically the contents of lawfully seized transparent containers, when the police had probable cause to believe that they contained controlled substances.

FACTS

On May 1, 1985, a PayLess Drug Store security officer observed defendant take several small items (perfumes and earrings) from store shelves, walk to the rear of the store, and place them in her purse. The security officer followed her when she left the store without paying for the items and stopped her outside. She first denied shoplifting but then admitted it and returned to the store with the security officer. The security officer asked her to empty her purse. She refused to do so, but she did remove the perfume and earrings that the security officer had observed her take.

A police officer arrived and asked defendant’s permission to search her purse to determine whether she had any other stolen items. She refused, stating that everything she had taken was already on the table. The officer stated that he needed to see the contents of her purse to verify her statement. At the officer’s insistence, defendant began to remove items from her purse.¹ She pulled out a small clutch purse, opened and closed it quickly, permitting the officer a “brief glimpse” at its contents. The officer told defendant that he needed to take a closer look at the contents of her clutch purse, because he believed he saw some items “that she possibly shouldn’t be having.” He testified that he had seen a compact mirror case and a small, transparent amber vial containing white powder. Based upon his experience, he testified that he believed he had seen “narcotics paraphernalia” in her clutch purse.

After the officer continued to insist upon seeing the contents of her clutch purse, defendant eventually handed it to him. He opened it and removed the small vial, as well as two compact mirror cases. He opened both cases. One had a residue on the glass. The other contained a small clear plastic packet of white powder. When the officer asked defendant about the white powder, she said it was not hers, that a friend had given it to her, and that she thought it was cocaine. The officer seized the clutch purse and its contents and sent them to the State Crime Laboratory for chemical analysis. No search warrant was obtained. Several weeks later, defendant was charged with the crime of Possession of a Controlled Substance.

Defendant filed a pre-trial motion to suppress the white powder found in her clutch purse. The trial court granted the motion because “the search of said purse was not reasonably related to defendant’s arrest for Theft in the Second Degree (Shoplifting).”

The state appealed pursuant to ORS 138.060. The Court of Appeals held that the search of defendant’s purse, including the small clutch purse found inside the purse, was reasonably related to defendant’s arrest for Theft and was reasonable in time, scope and intensity, citing State v. Caraher, 293 Or 741, 653 P2d 942 (1982). The subsequent warrantless testing of the contents of the vial and the clear plastic packet, however, was held unlawful, absent defendant’s consent or exigent circumstances, under State v. Lowry, 295 Or 337, 667 P2d 996 (1983), and 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). State v. Owens, 78 Or App 279, 715 P2d 1351 (1986).

Both defendant and the state petitioned for review. Defendant argues that the search of her purse was not reasonably related to her arrest for Theft and that it was not reasonable in time, scope and intensity. The state contends that the discovery, seizure and testing of the contraband found in defendant’s purse were lawful aspects of a search incident to arrest. The state further argues that no search warrant is required to test “recognized contraband.” We reverse.

DISCUSSION

A. Search Incident to Arrest.

Following defendant’s arrest for Theft, the police officer took a series of actions: he searched defendant’s purse; he seized her clutch purse and its contents; he opened two compact mirror cases found in the clutch purse; and he sent a transparent vial and a clear packet found inside the clutch purse, both of which contained white powder, to the State Crime Laboratory where they were opened and their contents analyzed to confirm the officer’s reasonable belief that they contained controlled substances. Defendant challenges each of these events as a separate, warrantless intrusion of constitutional magnitude.

Under the Oregon Constitution,² a warrantless search of the arrestee’s person incident to arrest was traditionally justified to protect the officer and to preserve crime evidence from destruction or concealment. In State v. Caraher, supra, this court reshaped the second justification for searches incident to arrest (to preserve evidence) in several important respects. Under Article I, section 9, a search incident to arrest for crime evidence is limited to a search for evidence of the crime for which the arrestee is arrested. In order to justify a search, incidental to an arrest, the arrest must be for a crime, evidence of which reasonably could be concealed on the arrestee’s person or in the belongings in his or her immediate possession at the time of the arrest. Thus, for example, if the person is arrested for a crime which ordinarily has neither instrumentalities nor fruits which could reasonably be concealed on _ the arrestee’s person or in the belongings in his or her immediate possession, no warrantless search for evidence of that crime would be authorized as incident to that arrest. Of course, 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. Caraher, supra, should thus be viewed as returning Oregon search and seizure law to the traditional rule, based upon State v. O’Neal, 251 Or 163, 444 P2d 951 (1968), and State v. Krogness, 238 Or 135, 388 P2d 120, cert den 377 US 992 (1964), which limited searches incident to arrest to searches for evidence of the crime for which the arrest was made. In so doing, this court rejected State v. Florance, 270 Or 169, 527 P2d 1202 (1974), which had adopted the federal rule for searches incident to arrest, as announced in United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973), and Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973). That federal rule permitted full searches of the person incident to any lawful custodial arrest, based upon the rationale that the right to search flowed automatically from a lawful custodial arrest because the arrest itself had so thoroughly involved the arrested person’s privacy that further intrusions had no independent constitutional significance. Our decision in Caraher made it clear that, under the Oregon Constitution, the fact of arrest does not grant an unqualified right to search an arrestee’s person for crime evidence.

Caraher should be viewed as modifying search incident to arrest law under the Oregon Constitution in a second important respect. As long as the search is for evidence of the crime for which the arrest was made, and such evidence reasonably could be concealed on the arrestee’s person or in the belongings in his or her immediate possession at the time of the arrest, no “container rule” blocks the intensity of the incidental search. In reasserting this court’s duty to interpret the protections afforded Oregonians by our state constitution independently from the federal constitution, we eschewed the federal practice of cataloguing items of personal property carried on the arrestee’s person. 293 Or at 756. The federal analysis required courts to determine which “portable repositories” were worthy of constitutional protection and which were not, and it only served to increase the confusion in this area. We said:

“We are reluctant to embark upon the task of cataloguing items of personal property in the manner required by adherence to federal cases. We find that the focus on the character of the property searched has led to results which seem too frequently to turn upon fortuitous circumstances surrounding how one chooses to transport personal belongings and has resulted in failure of a more straightforward assessment of those individual protections against government intrusion which constitutions, both state and federal, seek to preserve.” 293 Or at 756.

Thus, the Oregon Constitution authorizes the meticulous investigation of closed containers, such as wallets, purses, cigarette cases and other personal “effects,” found on or immediately associated with the arrestee, but only when it is reasonable to believe that evidence of a crime for which the person was arrested could be concealed there. The authority to search the person incident to a lawful custodial arrest rests upon what is known about the crime and the arrestee. The test is the reasonableness of the search in light of the circumstances of the particular case.

Another point relevant to an incidental search analysis under Article I, section 9, is that the search of “effects” found on or carried by the arrestee is authorized even after these “portable repositories” of personal effects have been removed from the arrestee’s immediate control and are under the exclusive control of the police at the time of the search. It is enough that the arrestee had the personal effects in his or her possession at the time of the arrest; the police are not required to show that the arrestee retained possession at the time of the search. See State v. Caraher, supra, 293 Or at 759.

Applying the above analysis to defendant’s contentions, we conclude, as did the Court of Appeals, that the search of defendant’s purse, including the small clutch purse found inside the purse, was reasonably related to defendant’s arrest for Theft. It was reasonable, for the police officer to believe that the purse or clutch purse contained other small items stolen from the store. The officer was not required to accept as true defendant’s statement that she had removed everything that she had stolen from her purse and had laid it on the table. The search of defendant’s purse and clutch purse was reasonable in time, space and intensity to her arrest for Theft.

The seizure of defendant’s clutch purse was also valid, because the officer lawfully observed what he had probable cause to believe was contraband therein. When an officer has probable cause to believe that an object he has lawfully discovered is contraband and, therefore, that a crime is being committed in his presence, he has the right to seize it. State v. Elkins, 245 Or 279, 284, 422 P2d 250 (1966).

The next question is whether the opening of the two compact mirror cases in defendant’s clutch purse was lawful without a warrant. As discussed above, the inquiry is whether the search of the two compact mirror cases was relevant to the crime for which defendant was arrested, and whether it was reasonable under the circumstances. Defendant argues that the search of the two compact mirror cases was not relevant to the crime for which she had been arrested, Theft. While this is true, it does not end the inquiry.

In order to search incident to arrest, the officer must have either an arrest warrant or probable cause to believe that the suspect has committed an offense. ORS 133.235, 133.310. Not infrequently, an officer will have probable cause to arrest a suspect for more than one offense. For example, in the course of an arrest for a traffic offense, evidence is sometimes seen in plain view which gives the officer probable cause to believe that another, more serious, crime has been committed or is being committed in his presence.

Such was the case in State v. Krogness, supra, which involved the stop of an automobile for a minor traffic violation. The arresting officer superficially inspected the automobile and observed something in plain view which, based upon his past experience, was held to give the officer probable cause to believe that a game violation had occurred. The subsequent search of the automobile, which revealed implements and fruits of a recent burglary, was upheld as a search for evidence of a game law violation. This court said:

“Where the officer, without trespassing, sees contraband or other evidence reasonably causing him to believe that contraband is being transported or that some other crime is being committed in his presence, he may have probable cause to make an arrest for the newly discovered offense as well as for the traffic offense which initially brought the subject to the attention of the officer. In such a case, while there may be no distinct demarcation between the first and second arrest, there does exist, prior to any extensive search, a probable-cause foundation for an arrest for an offense more serious than a traffic violation. The officer then is justified in making such a search as may be commensurate with the gravity of the newly discovered situation. Probable cause to arrest for the more serious offense, when present, will answer constitutional objections to the rigor of the ensuing search. * * *

«* * * Intervening probable cause to arrest for a serious offense, if it came about in a legitimate manner, can make legitimate a search that would have been unreasonable if undertaken as an ‘incident’ of the traffic arrest alone. * * *” 238 Or at 145.

See also State v. O’Neal, supra, 251 Or at 167, and State v. Cloman, 254 Or 1, 456 P2d 67 (1969).³

When there is probable cause to arrest a suspect for a crime, a reasonable search incident to arrest for evidence of that crime may be upheld, even if the officer does not articulate to the arrestee that this is the crime for which he is being arrested and searched. State v. Cloman, supra. Probable cause under the Oregon Constitution has both a subjective and an objective component. An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances. The test is not simply what a reasonable officer could have believed when he conducted a warrantless search or seizure, but it is what this officer actually believed, based upon the underlying facts of which he was cognizant, together with his own training and experience. Neither is the test whether the officer articulates to the suspect the basis for a second ground for arrest. What is required is that the officer formulates such a basis to himself at the time he acts.

Under the Oregon Constitution, a search incident to arrest is valid when it relates to a crime which there is probable cause to believe the arrestee has committed, and when it is reasonable in all the circumstances. State v. Caraher, supra. This probable cause requirement properly limits the objects to be sought in searches incident to arrest, and thus limits the intensity of the search. We reiterate, as we did in State v. Lowry, supra, 295 Or at 348, that a search incident to arrest does not justify an “exploratory seizure” of “everything in [the arrestee’s] immediate possession and control upon the prospect that upon further investigation some of it might prove to have been stolen or to be contraband,” quoting from State v. Elkins, supra, 245 Or at 287.

The search of the two compact mirror cases in defendant’s clutch purse was a valid search incident to arrest for evidence of the crime of Possession of a Controlled Substance. Having already discovered the vial containing white powder, which the officer had probable cause to believe was a controlled substance, it was reasonable for the officer to believe that he might find other such contraband in defendant’s clutch purse. State u. Caraher, supra. Having discovered some evidence did not prevent him from searching further. The opening of the two compact mirror cases in defendant’s clutch purse was reasonable in time, space and intensity. Because the officer had probable cause to believe that the white powder in the clear plastic packet was a controlled substance, its seizure was also valid.

Defendant’s final argument is, because she was not charged with the crime of Possession of a Controlled Substance until several weeks after her arrest for Theft and the contemporaneous seizure of the vial and packet, that the search cannot be justified as related to her “arrest” on the Possession charge. We disagree. The timing of the actual charge is not relevant to determining the validity of a search incident to arrest. The relationship of the search to the new crime for which the officer has probable cause to arrest, and the reasonableness of the search in time, space and intensity to the new crime are judged as of the time the officer has probable cause to arrest for the new crime. If there is probable cause for the second arrest, the fact that the arrestee, for any number of reasons, is later, or never, charged with the second crime is irrelevant to a determination of whether the search incident to the arrest was lawful at the time it occurred.

B. Confirmatory Chemical Testing.

The question which is squarely before this court for the first time in this case is whether the opening of a transparent container or the testing of its contents is a “search” or “seizure” under the Oregon Constitution, when there is probable cause to believe that it contains a controlled substance. If the intrusions are “searches” or “seizures,” they require probable cause and a search warrant or separate justification under one of the few, carefully circumscribed exceptions to the warrant requirement. Not all government intrusions, however, trigger Article I, section 9, protections.

Article I, section 9, protects privacy and possessory interests. A “search” occurs when a person’s privacy interests are invaded. When the police lawfully seize a container, they can thoroughly examine the container’s exterior without violating any privacy interest of the owner or the person from whom the container was seized. For example, the police can observe, feel, smell, shake and weigh it. Furthermore, not all containers found by the police during a search merit the same protection under Article I, section 9. Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in “plain view,” outside the confines of any container. Applying the doctrine of “plain view” to transparent containers, we hold that no cognizable privacy interest inheres in their contents, and thus that transparent containers can be opened and their contents seized. No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents. Under the Oregon Constitution, a lawful seizure of a transparent container is a lawful seizure of its contents.

When there is probable cause to believe that a lawfully seized substance is a controlled substance, a chemical test, for the sole purpose of determining whether or not it is a controlled substance, is neither a “search” nor a “seizure” under Article I, section 9. It is not a “search” if the purpose of the test of a lawfully seized item is to confirm the presence of whatever the police have probable cause to believe is present in that item. A test for such a limited purpose does not infringe any privacy interest protected by the Oregon Constitution.⁴ Likewise, a test for this limited purpose is not a “seizure.” A “seizure” occurs when there is a significant interference with a person’s possessory or ownership interests in property. The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person’s possessory interest in that “effect.” However, once the item has been lawfully seized, the person’s possessory interest in that property has been substantially reduced. The additional retention of the item, for the limited purpose of chemical analysis or testing, is not a substantial interference with that possessory interest. While it is true that the testing of the item may change a temporary interference with a small amount of the substance into a permanent deprivation, the amount destroyed by testing in most cases is so small that any effect on a person’s property interest is de minimis.

Therefore, we hold that, when there is probable cause to believe that a lawfully seized transparent container contains a controlled substance, opening the container, removing a modest quantity of its contents and subjecting it to chemical analysis for the sole purpose of confirming that it is a controlled substance, is not a “search” or “seizure” under the Oregon Constitution. Any language to the contrary in State v. Lowry, supra, is expressly disapproved. Article I, section 9, does not require that the police obtain a warrant before opening the transparent vial and clear plastic package lawfully seized from defendant’s purse herein or testing their contents for the limited purpose of confirming the police officer’s reasonable belief that they contained controlled substances.

Neither would a warrant be required by the Fourth Amendment to the United States Constitution. Arkansas v. Sanders, 442 US 753, 764 n 13, 99 S Ct 2586, 61 L Ed 2d 235 (1979); United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85 (1984).

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

1 Defendant’s conduct should not be deemed to have given the officer her consent to search her purse or clutch purse.

2 Article I, section 9, of the Oregon Constitution provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

3 See the discussion of “escalating probable cause” in State v. Flores, 68 Or App 617, 629-32, 685 P2d 999 (1984).

4 Defendant relies upon State v. Lowry, 295 Or 337, 667 P2d 996 (1983), arguing that it controls and requires that a warrant be obtained for the opening of the vial and packet and the testing of their contents. Lowry, however, is factually and legally distinguishable in at least one important respect and does not control the decision herein. In Lowry, the searching officer seized the transparent, amber pill bottle and had the contents tested even though he did not testify that he had any reason to believe that the bottle contained a controlled substance. Either the officer had made no conclusions regarding the contents of the bottle, or he failed to articulate them. It was apparent from the testimony that the “traffic officer” who arrested the defendant in Lowry lacked experience in the area of drug enforcement. He lacked probable cause either to seize the pill bottle or to test its contents.

The officer in the present case, in contrast to Lowry, had probable cause to believe that the small, transparent vial and clear packet he seized from defendant contained controlled substances. He had probable cause to seize the vial and packet, to open them, and to submit their contents for chemical analysis.