State v. Brown

• Decision Date: 22 September 1981
• Docket Number: No. CA,CA
• Citation: 634 P.2d 212,291 Or. 642
• Parties: STATE of Oregon, Respondent, v. Gene Aubrey BROWN, Petitioner. 16893; SC 27547.
• Court: Oregon Supreme Court

Page 212

634 P.2d 212

291 Or. 642

STATE of Oregon, Respondent, v. Gene Aubrey BROWN, Petitioner.

No. CA 16893; SC 27547.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 6, 1981.

Decided Sept. 22, 1981.

David E. Groom, Deputy Public Defender, argued the cause for petitioner. With him on the briefs were Gary D. Babcock, Public Defender, Salem, and James A. Doherty, Tillamook County Public Defender.

Thomas H. Denney, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

CAMPBELL, Justice.

The issue in this case is: Can the police, without a warrant and without independent probable cause and exigent circumstances, search a closed container seized from the person of a lawfully arrested individual during the booking process at a place of detention? This is one of the questions we left for future consideration in State v. Florance, 270 Or. 169, 192, 527 P.2d 1202 (1974). ¹

At approximately 2:30 a. m. on July 23, 1978, the defendant in his vehicle was stopped by a state police officer for making an improper left turn. The officer proceeded to give the defendant standard field sobriety tests. The defendant was then arrested for driving while under the influence of intoxicants and transported to the Tillamook County jail to be lodged and to take a breathalyzer test. At the jail the defendant requested permission to go to the men's room. The corrections officer told the defendant to empty his pockets and put his possessions on the counter. The defendant's property from his person included a flat metal cigarette box and a very small brown glass vial with a plastic top. The cigarette box is approximately 23/4 inches by 31/2 inches with a depth of 5/16th of an inch. It is painted white with black printing, which includes "The Balkan Sobranie Cigarettes," "Made from the Finest Yenidje Tobacco," and "Made in England." The box is designed to hold 10 cigarettes. The brown glass vial is 11/8 inches deep and 1/2 inch in diameter.

The metal cigarette box was held shut by a piece of black electrician's tape. While the defendant was in the men's room, an officer opened the cigarette box and found a hand-rolled cigarette, small packets of white powder, a razor blade, a drinking straw, and a pack of cigarette papers. The packets were marked "1/4," "1 g.," and "1/2." The small vial contained traces of a white powder.

The corrections officer testified that it was standard procedure to open and inventory the contents of all containers, including purses and wallets, found on the person of an individual being booked at the Tillamook County jail. "The purpose of the inventory is for the protection" of the person's property and "for the security of the jail and the protection of the inmates and staff * * *." The defendant is required to sign the inventory list and then his property "is placed in a steel box and locked up." The corrections officer said that it was not his practice to inspect personal papers.

The defendant testified that he kept the cigarette box taped shut because the "stuff inside was valuable." He said: "Sometimes I had a gold razor blade in there."

After the search the defendant was given a breathalyzer test. The results of the test showed .18 per cent of blood alcohol. The defendant said he had been drinking beer in a tavern for five or six hours at the rate of two beers per hour.

A district attorney's information was filed against the defendant charging him with the crime of possession of a controlled substance, cocaine. ORS 475.992(4). The trial court allowed the defendant's motion to suppress "all evidence of controlled substances taken from defendant" during the booking process at the Tillamook County jail. ²

The state appealed to the Court of Appeals. ORS 138.060(3). That court, in a per curiam opinion, reversed and remanded for trial citing State v. Patton, 47 Or.App. 169, 613 P.2d 1102, rev. denied (1980). Judge Buttler dissented. State v. Brown, 49 Or.App. 75, 618 P.2d 1318 (1980). We granted the defendant's petition for review, and we affirm the Court of Appeals.

The facts in Patton were very similar to the facts in this case. There, the defendant was arrested for driving under the influence of intoxicants and was taken to the Prineville jail. During the booking process, the defendant was asked to turn over his personal belongings to the officer to be inventoried. The defendant's jacket contained a metal canister about the size of a silver dollar. The booking officer opened the canister and discovered three LSD pills. The Court of Appeals, citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), and State v. Florance, supra, held that a person under full custody arrest loses his expectation of privacy as to those items on his person and therefore the search of the canister was justified as incident to the custodial arrest. Judge Buttler dissented from the denial of the petition for reconsideration in Patton and argued in his dissent that the "closed container" rule in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), should apply to the facts in this case.

It is the defendant's position that "once the closed cigarette box ³ was taken from (his) possession" and was in the exclusive possession of the police, then any exigent circumstances that may have existed disappeared and the box could not be opened without a warrant. United States v. Chadwick, supra; State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979); State v. Fondren, 285 Or. 361, 591 P.2d 1374 (1979); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979). The defendant also argues that the size or location of the closed container should not make any difference. In other words, it is inconsistent to say that a suitcase in the trunk of an automobile cannot be opened without a warrant, while a wallet can be opened and searched without a warrant if it is taken from the person of the defendant during the booking process. ⁴

In its brief in the Court of Appeals, the state argued that under the cases of United States v. Edwards, supra; Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973); United States v. Robinson, supra, and State v. Florance, supra, it was "clearly proper * * * for the police to seize and open small containers taken from an arrestee's person at the jail during the book-in process" unless the law had been changed by United States v. Chadwick, supra.

On oral argument before this court the state argued that when the defendant has already had his person seized as the result of a full custody arrest, he cannot have a separate expectation of privacy as to the items on his person. The state also contended that if the property could be seized, it could be searched in a "jail context" the "primary emphasis being on the security of the jail."

Thus it appears from the position of the parties that there is a "face-off" between the Robinson line of cases and the Chadwick line of cases as to which rule of law applies to this fact situation. This court in State v. Florance, supra 270 Or. at 182, 527 P.2d 1202, specifically recognized and adopted the rule as stated in Robinson. In State v. Groda, supra 285 Or. at 327, 591 P.2d 1354, we said: "We rely on United States v. Chadwick, * * * for our decision." See also State v. Fondren, supra, and State v. Downes, supra.

The issues in this case have been narrowed. The defendant concedes that the state had probable cause to arrest him for driving under the influence of intoxicants, and he does not object to the seizure of the cigarette box. He objects only to the search of the box. The state admits that it did not have probable cause independent of the original arrest to believe that the cigarette box contained contraband. It also concedes that there were no exigent circumstances during the booking process.

As to the search of a person upon arrival at the place of detention, 2 LaFave, Search and Seizure 303, § 5.3 (1978) (a treatise on the Fourth Amendment), states at page 303:

"It now appears to be clearly established that when an arrested person has been delivered to the place of his forthcoming detention, he may be subjected to a rather complete search of his person. This search may be conducted without a warrant, and requires no justification in the individual case other than that the person searched was lawfully arrested and is presently lawfully detained. There are two grounds upon which such a search is commonly upheld: (i) as a search incident to and reasonably contemporaneous with the preceding arrest; and (ii) as an inventory conducted to protect the arrestee's effects and to maintain the security of the detention facility." ⁵ (Footnotes omitted.)

The above quotation was written on the premise that

" * * * A search is deemed to be 'of a person' if it involves an exploration into an individual's clothing, including a further search within small containers, such as wallets, cigarette boxes and the like, which are found in or about such clothing. * * * " Id. at 347.

The same text refers to what it calls the "Robinson-Edwards rule" as authority for the proposition that "a search at the station which was undertaken as a pre-incarceration inventory may be justified upon the additional ground that it is a search incident to arrest." Id. at 309.

In Robinson an officer of the District of Columbia Metropolitan Police Department saw Robinson driving a 1965 Cadillac. Four days earlier the officer had checked the status of Robinson's operator's permit. The officer stopped the defendant and informed him that he was under arrest for "operating after revocation and obtaining a permit by misrepresentation." Robinson conceded, on appeal, that the officer had probable cause to arrest him and that a full-custody arrest was in fact made. When...