State v. Caraher

Citation293 Or. 741,653 P.2d 942
PartiesSTATE of Oregon, Respondent on Review, v. Lois Marie CARAHER, Petitioner on Review. CA A20330; SC 28360.
Decision Date02 November 1982
CourtSupreme Court of Oregon

Page 942

653 P.2d 942
293 Or. 741
STATE of Oregon, Respondent on Review,
Lois Marie CARAHER, Petitioner on Review.
CA A20330; SC 28360.
Supreme Court of Oregon,
In Banc.
Argued and Submitted March 3, 1982.
Reargued Sept. 8, 1982.
Decided Nov. 2, 1982.

[293 Or. 742] Linda K. Eyerman, Metropolitan Public Defender, Portland, argued the cause and filed the brief for petitioner on review.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

[293 Or. 743] ROBERTS, Justice.

The issue in this case is whether a search of defendant's purse, including the opening of the coin compartment of a wallet within that purse, conducted without a warrant, after defendant was arrested and placed in a police car and the purse had been taken from her, is a search incident to arrest and therefore an exception to the warrant requirement of the fourth amendment to the U.S. Constitution and article 1, section 9 of the Oregon Constitution. 1

Page 943

Defendant has no prior criminal record and, until the events discussed here, had never been arrested. She came to police attention following a report of a street altercation in Portland. Police arriving at the scene found defendant lying on the hood of a parked car in a semi-conscious state. An ambulance was called, and after defendant was revived, police questioned her. 2 Asked about her activity in the area, defendant told the officer she was selling "bunk." 3 At this point police determined that there was an arrest warrant out for defendant's companion; when police attempted to handcuff him, he "became upset," according to police, and said defendant had cocaine on her person. The police then placed defendant's companion in a police car for transport to jail and placed defendant in another police car for transport to a detoxification center. On the basis of defendant's statement that she was selling [293 Or. 744] bunk and her companion's statement that defendant possessed cocaine, police had a female officer search defendant's person before handcuffing her and taking her into what one officer termed "protective custody" and another termed a "civil hold." 4 In a pocket of the jacket defendant was wearing the officer found paper "bindles" containing a white powder. The officer, suspecting the substance to be cocaine, placed defendant under arrest for possession of a controlled substance. A search of defendant's person uncovered no further contraband or weapons. Her purse was taken from her. She was handcuffed and placed in the back seat of a police car which had a barrier between the front and back seats. On the way to the booking facility, the police officer who had made the arrest and who held defendant's purse in the front seat of the police car opened the purse, found a wallet within, opened the coin compartment of the wallet and found a white piece of paper, inside of which was a white cross-top pill and chunks of a similar pill. Subsequent lab analysis revealed the pills were amphetamines.

The state concedes the search of the wallet was not conducted for identification purposes. See State v. Florance, 270 Or. 169, 189, 527 P.2d 1202 (1974). The state made no attempt at trial to justify the search as a "booking" or "inventory" search, and put on no evidence of the normal practices which are part of the booking procedure at the jail to which defendant was taken. The trial court nevertheless upheld the search as an inventory search. 5 The Court of [293 Or. 745] Appeals

Page 944

upheld the search on the basis of State v. Brown, 291 Or. 642, 634 P.2d 212 (1981). 6 Before this court, the state argued only that the search was one incident to arrest. That is the single issue here.

Defendant has challenged the search of her purse, and the wallet within the purse, as violating both state and federal constitutional prohibitions against unreasonable searches or seizures. Defendant argues that the purse was an "effect" for constitutional purposes, i.e., a "possession within an arrestee's immediate control," and that United [293 Or. 746] States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977); State v. Groda, 285 Or. 321, 591 P.2d 1354 (1979); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); and State v. Keller, 265 Or. 622, 510 P.2d 568 (1973) are the applicable law invalidating the search.

In State v. Keller, supra, this court addressed for the first time the subject of an "inventory search" of an automobile. The defendant in Keller was stopped while driving her automobile on suspicion of driving while suspended and was subsequently arrested for that offense. Defendant and her passenger, who was intoxicated, were placed in the police vehicle. Police then proceeded to inventory the contents of the car before towing it pursuant to administrative requirements to note, among other things, valuables and weapons present in the car. 265 Or. at 624, 510 P.2d 568. During the inventory police found a fishing tackle box on the floor of the back seat. The box was tied closed with a wire. Removing the wire and opening the box, the police found narcotics. We held that because the contents of the tackle box were not in plain view they could not be seized as part of an inventory search incident to a lawful arrest. We said

"The officers testified they were not searching for evidence, but were only inventorying the automobile's contents. With no exigent circumstances present they could have easily inventoried 'one fishing tackle box,' along with other items in plain view. If they had probable cause to believe a crime was being committed * * * they could have sought a search warrant from a disinterested magistrate." 265 Or. at 625-26, 510 P.2d 568.

Keller was decided before the U.S. Supreme Court had ruled directly on an inventory search of an automobile without a search warrant where the evidence is not in plain view. 265 Or. at 625, 510 P.2d 568. Relying on cases from other states we held the search of the closed box was unreasonable

Page 945

under both the U.S. and Oregon Constitutions.

We subsequently cited Keller and the U.S. Supreme Court case of United States v. Chadwick, supra, in ordering suppression of drugs found in a bag inside a flight bag contained in a closed trunk in a vehicle which had been taken into police custody. State v. Downes, supra, 285 Or. at 371-72, 591 P.2d 1352. We held that the search could not be justified as an [293 Or. 747] inventory search, per Keller, nor under the "automobile exception" to the fourth amendment warrant requirement formulated in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) and Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925).

The state argues that a purse is an item "immediately associated with the person of an arrestee" and may be validly searched at the time of arrest or booking under the rule announced in State v. Florance, supra, which adopted the federal standard enunciated by the U.S. Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

The state urged at oral argument that the recent case of New York v. Belton, 50 N.Y.2d 447, 429 N.Y.S.2d 574, 407 N.E.2d 420 (1980) rev'd 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981) aff'd on other grounds 55 N.Y.2d 49, 447 N.Y.S.2d 873, 432 N.E.2d 745 (1982), is the new federal fourth amendment standard for searches incident to arrest, and justifies the opening of the purse in this case. Counsel for the state insisted the facts of this case "may or may not be Robinson, definitely are Belton, and are not Chadwick." In Belton, the U.S. Supreme Court held that once police have made a lawful custodial arrest of an occupant of an automobile they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile, and open any containers found within the compartment. While the court apparently took pains not to decide the case under the "automobile exception" analysis formulated in Chambers v. Maroney, supra, and Carroll v. United States, supra, see Belton, supra, 453 U.S. at 462 n. 6, 101 S.Ct. at 2865 n. 6, and Rehnquist, J. concurring, 453 U.S. at 463, 101 S.Ct. at 2865, the opinion limits the holding to the permissible scope of a search incident to arrest when the person being arrested is the occupant of an automobile:

" * * * [N]o straightforward rule has emerged from the litigated cases respecting the question involved here--the question of the proper scope of a search of the interior of an automobile incident to a lawful custodial arrest of its occupants." 453 U.S. at 459, 101 S.Ct. at 2863.

" * * * [C]ourts have found no workable definition of 'the area within the immediate control of the arrestee' when [293 Or. 748] that area arguably includes the interior of an automobile and the arrestee is its recent occupant." 453 U.S. at 460, 101 S.Ct. at 2864.

"Our holding today does no more than determine the meaning of Chimel's principles in this particular and problematic content. [sic ] It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests." 453 U.S. at 460 n. 3, 101 S.Ct. at 2864 n. 3.

Contrary to the state's position, in our reading all that Belton does is apply the "area of immediate control" test first enunciated in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) to an arrest of an occupant of an automobile. In the case before us, defendant was not present in an automobile but was a pedestrian. The placement of defendant and her effects within a police car presumably does not suddenly bring everything within an "auto exception." We do not believe that Belton allows police to open all containers within the immediate control of any arrestee, but only those within the passenger compartment of a...

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