State v. Elkins

Citation422 P.2d 250,245 Or. 279
PartiesThe STATE of Oregon, Respondent, v. James ELKINS, Appellant.
Decision Date28 December 1966
CourtOregon Supreme Court

Page 250

422 P.2d 250
245 Or. 279
The STATE of Oregon, Respondent,
James ELKINS, Appellant.
Supreme Court of Oregon, In Banc.
Argued and Submitted July 5, 1966.
Decided Dec. 28, 1966.

[245 Or. 280] George A. Haslett, Jr., Portland, argued the cause and filed the brief for appellant.

George M. Joseph, Asst. Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.


HOLMAN, Justice.

The defendant was indicted for the crime of illegal possession of narcotics. The indictment charged he committed the crime by having in his possession a narcotic drug

Page 251

known as 'methadone.' He has appealed from a judgment of conviction.

Defendant was sitting with an acquaintance in a [245 Or. 281] parked car when a police officer asked him to identify himself. The officer upon questioning defendant decided that defendant was intoxicated and placed him under arrest for being drunk in violation of an ordinance of the City of Portland. His speech was slurred, he was unsteady on his feet, and he admitted he had been drinking. After defendant's arrest the officer searched defendant's person for a weapon and in his shirt pocket found an unlabeled bottle containing three kinds of capsules and pills. The officer seized them and subsequent analysis disclosed some of them to be methadone. The testimony relative to the police officer's knowledge concerning the pills he was seizing which came in during the hearing on a motion to suppress was as follows:

'Q Now, let's get into your personal knowledge that that white pill is methadon. How do you know that?

'A Well, I had the other two pills, which were identical to this one, analyzed.

'Q Did you analyze them yourself?

'A No, I didn't.

'Q Are you a chemist?

'A No, I am not.

'Q Have you had any education in chemistry?

'A No.

'Q Could you tell by just looking at that pill that it is methadon or are you relying on what somone else has told you?

'A I am relying on what someone else has told me.'

At the time the pills were introduced in evidence during the trial the officer was asked why he seized the pills and he said:

'Well, my suspicions were more directed toward the white pills than the other ones.'

[245 Or. 282] Defendant assigns as error the court's failure to suppress as evidence the methadone pills, claiming they were illegally seized from him. He admits that he was lawfully under arrest and that the search was proper as an incident of this arrest, but contends that the seizure was unlawful. Because of these admissions it is unnecessary for this opinion to explore the usual grounds of controversy relative to the seizure of evidence as an incident of arrest. The probable cause for the arrest, the good faith of the officer in making the arrest, the time of the search in relation to the arrest, the extent of the area searched, and the intensity of the search are problems not involved here.

Evidence illegally seized by the police may not be used by the state in a criminal prosecution. State v. Johnson, 232 Or. 118, 119, 374 P.2d 481 (1962); State v. Chinn, 231 Or. 259, 265, 373 P.2d 392 (1962); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

The Oregon Constitution Art. I, § 9 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.' (Emphasis ours.)

The Fourth Amendment to the Federal Constitution is of similar effect, and cases construing it are therefore relevant to a construction of the Oregon provision. With limited exceptions this constitutional provision protects an individual's person and abode from search and his effects from seizure by the police, unless a warrant permitting the same is first obtained. [245 Or. 283] The most notable exception to the requirement of a warrant is a search or seizure made incident to a lawful arrest. 1

Page 252

The justification for the aforementioned exception is the necessity to secure the safety of the police and the custody of the prisoner, and to prevent the destruction of evidence by gathering the fruits of the crime and the implements thereof. State v. Chinn, supra, 231 Or. 267, 373 P.2d 392; Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964); United States v. Rabinowitz, 339 U.S. 56, 72, 70 S.Ct. 430, 94 L.Ed. 653 (1950) dissenting opinion of Frankfurter, J. It is not altogether clear from the cases whether other evidence of the crime for which the arrest was made should also be included under the second subdivision listed above, but a decision on this problem is unnecessary to the disposition of this case.

If, during a lawful search for these purposes, it comes to the officer's attention that a crime, other than that for which the arrest is made, is being committed in his presence of the arrested person's possession of contraband, it is his duty to seize it. Being in a place he had a right to be and doing a thing he had a right to do, the officer is not permitted to turn away when a crime is being committed in his presence. State v. Chinn, supra, 231 Or. 274, 373 P.2d 392; State v. Johnson, supra, 232 Or. 122, 374 P.2d 481. In [245 Or. 284] Abel v. United States, 362 U.S. 217, 238, 80 S.Ct. 683, 697, 4 L.Ed.2d 668 (1960), the court said as follows:

'* * * When an article subject to lawful seizure properly comes into an officer's possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.'

For application of the same rule where contraband is discovered by officers executing a warrant to search a premise for other articles see State v. Muetzel, 121 Or. 561, 564, 254 P. 1010 (1927).

The following question is posed by this case. When an officer has made a lawful arrest and is conducting a lawful search and observes something he does not know to be contraband but of which he is suspicious, may he take it and be sustained in his seizure if his suspicions subsequently prove to be well founded?

The right to search for and seize the fruits and implements of a crime as an incident of arrest is based, as is the arrest, upon a reasonable belief in the case of a felony, that such a crime has been committed and that the person arrested committed it. State v. Krogness, 238 Or. 135, 145, 388 P.2d 120 (1964); State v. Hoover, supra, 219 Or. 298, 347 P.2d 69; Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). It would therefore follow that before the officer had the right to seize the implements of a crime committed in his presence, other than that for which the arrest was made, he must have reasonable grounds to believe that the article he has discovered is contraband and therefore a crime is being committed. Case law dealing exclusively with seizure separate and apart from the closely-related subject of search is extremely difficult[245 Or. 285] to find. In Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543, 39 A.L.R. 790 (1925), the defendants were convicted of transporting liquor in an automobile in violation of Section 26, Title II of the National Prohibition Act. The court held that the primary purpose of the Section was the seizure and destruction of contraband goods during transportation and that the arrest of the transporters was incidental. Officers who seized property under Section 26 were held to be protected by the then

Page 253

Section 970 of the Revised Statutes which provided that any officer making a seizure, who had reasonable cause to do so, could not be responsible in any way to the claimant of the goods. The court then said:

'We here find the line of distinction between legal and illegal seizures of liquor in transport in vehicles. It is certainly a reasonable distinction. It gives the owner of an automobile or other vehicle seized under Section 26, in absence of probable cause, a right to have restored to him the automobile, it protects him under the Weeks (Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652) and Amos (Amos v. United States, 255 U.S. 343, 41 S.Ct. 266, 65 L.Ed. 654) cases from use of the liquor as evidence against him, and it subjects the officer making the seizures to damages. On the other hand, in a case showing probable cause, the government and its officials are given the opportunity which they should have, to make the investigation necessary to trace Reasonably suspected contraband goods and to seize them.

'Such a rule fulfills the guaranty of the Fourth Amendment. * * *' (Emphasis ours.)

We thus find the court indicating that the guaranty of the Fourth Amendment requires that it be reasonably suspected that the seized property is contraband in a situation in which the arrest was incidental. In [245 Or. 286] United States v. Jeffers, 342 U.S. 48, 51, 72 S.Ct. 93, 95, 96 L.Ed. 59 (1951) the court said:

'The Fourth Amendment * prohibits both unreasonable searches and unreasonable seizures, and its protection extends to both 'houses' and 'effects.' * * *'

In State v. Chinn, supra, 231 Or. 274, 373 P.2d 399, this court used the following language relative to the rules applicable to seizure:

'We hold that the limits of reasonableness placed upon the search, and which we have discussed above, are equally applicable to seizures.'

The framers of the Oregon Constitution were particular to make it so appear. They used the disjunctive between the words 'search' and 'seizure.' The Fourth Amendment to the United States Constitution provides '* * * against unreasonable searches And seizures * * *', but Art. I, § 9 of the Oregon Constitution...

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