State v. Florance

• Decision Date: 17 October 1974
• Citation: 99 Or.Adv.Sh. 1997,270 Or. 169,527 P.2d 1202
• Parties: The STATE of Oregon, Petitioner, v. Daniel Harold FLORANCE, Respondent. . *
• Court: Oregon Supreme Court

Page 1202

527 P.2d 1202

270 Or. 169

The STATE of Oregon, Petitioner, v. Daniel Harold FLORANCE, Respondent.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted May 8, 1974.

Decided Oct. 17, 1974.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for petitioner. With him on the brief was Lee Johnson, Atty. Gen., Salem.

J. Bradford Shiley, Jr., Portland, argued the cause and filed the brief for respondent.

TONGUE, Justice.

Defendant was convicted of the possession of drugs which had been taken from his billfold after his arrest on another charge. A motion to suppress that evidence, based upon a claim of unlawful search and seizure, had been previously denied by the trial court. The Court of Appeals reversed the conviction, holding that it was error to deny that motion. 15 Or.App. 118, 515 P.2d 195 (1973). We granted a petition for review by the state because the case presents serious questions relating to the nature and scope of the search of a person as an incident to an arrest, particularly as a result of the decision by the Supreme Court of the United States in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973).

The facts.

Defendant was arrested on a farm near Estacada for menacing an officer with a pitchfork and for burglary. The arrest was held to be valid by the Court of Appeals and its validity is not an issue for the purpose of this review. ¹ Immediately after the arrest, the officer 'patted down' defendant for weapons and took from his pockets his billfold, among other things. The officer put the billfold and some other items in defendant's stocking cap and placed it on the hood of the police car. Defendant's mother then arrived and tried to take the cap and its contents, but the officer told her that 'they had to stay there.'

Defendant, together with the cap and its contents, was then taken by the officer to the Estacada City Hall, where the officer undertook to prepare a written 'custody report' before taking defendant to the county jail at Oregon City. For the purpose of securing the information needed to prepare that report, including defendant's 'true identity,' the officer asked defendant for his middle name, date of birth, social security number and his correct address, among other things. Defendant had previously been read a 'Miranda card' and refused to answer any of these questions.

It appears from a report prepared by the officer following a previous interview with defendant in the course of investigating the burglary of which defendant was a suspect that the officer already knew defendant's name and birthdate and also knew that he was then 'staying' at a migrant workers camp at the farm where he was arrested. However, a different address for defendant appeared in that report, which was not offered in evidence.

The officer testified that when defendant refused to answer these questions he 'supposed' that defendant 'should have a driver license in his billfold,' which he had previously taken from defendant's pocket. He also testified that 'as soon as I opened it up I could see these plastic bags just inside the billfold' and 'stuck in' or 'tucked in a little pocket just inside the billfold.'

The officer testified that he then asked defendant 'if he was under medication of any kind'; that 'he did not answer so I pulled it on out'; that there were five 'little plastic bags,' four of which contained a 'white substance' and one a 'blue substance.' Tests were then made of these 'powders' from which it appeared that they were 'dangerous drugs.' Based upon that evidence, defendant was convicted of possession of cocaine and other narcotic and dangerous drugs.

Decisions by Oregon Court of Appeals and by United States Supreme Court.

Under these facts the Oregon Court of Appeals held that even if the seizure of defendant's billfold at the time of his arrest was valid, the subsequent search of the billfold and seizure of the plastic bags of drugs was invalid. In reaching that result a majority of that court held, among other things, that under the facts of this case and the previous decisions by this court the search of the billfold could not be justified as made for purposes of identification and was 'too remote in time and place to be part of a search incident to arrest'; that the search was not made 'as a part of an inventory during the booking process'; that even in such an inventory search it would not have been proper to search the contents of the billfold as a 'closed container' and that, in any event, the police had no right to seize the drugs because there was no showing that they 'had probable cause to believe the powdered substances were illegal drugs.' See 15 Or.App. 118, 127, 515 P.2d 195 (1973). ²

Shortly after that decision by the Oregon Court of Appeals, the United States Supreme Court, in United States v. Robinson, Supra, held that because a search incident to a lawful custodial arrest is a 'traditional exception to the earrant requirement of the Fourth Amendment' of the Constitution of the United States, particularly when the search is made of a person, rather than of the area under his control, it follows that upon the making of a lawful custodial arrest a search of a person as an incident to the arrest 'requires no additional justification' and may include a 'full search of the person' and the seizure of not only weapons, but drugs 'as 'fruits, instrumentalities, or contraband' probative of criminal conduct,' despite the fact that the arrest was made on some other charge--in that case for 'operating (an automobile) after revocation (of driver license) and obtaining a permit by misrepresentation.'

To the same effect, see also the companion decision in Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and the subsequent decision in United States v. Edwards, 415 U.S. 800, 807, 94 S.Ct. 1234, 1239, 39 L.Ed.2d 771, 778 (1974), in which the same rule was applied to a search of defendant's clothing made some time after an arrest and after the defendant was in jail, holding that such a search may be made, and without a warrant, 'even though a substantial period of time had elapsed between the arrest' and the subsequent search.

More recently, in State v. Williams, Or.App., 99 Adv.Sh. 305, 307--319, 522 P.2d 1213 (1974), Chief Judge Schwab of the Oregon Court of Appeals, in a specially concurring opinion, discussed the differences and inconsistencies between what he referred to as the (new) 'federal rule' and the 'Oregon rule,' as established by previous decisions of this court, and expressed the view that the Court of Appeals was bound by the decisions of this court, whether based upon an interpretation of Article I, § 9, of the Oregon Constitution or upon its own interpretation of the Fourth Amendment of the United States Constitution. ³

Under these circumstances it is appropriate for this court to restate the rules of law to be applied by the Oregon courts in cases involving the search of a Person as an incident to a valid custodial arrest. Before undertaking to do so we would emphasize that this is not a case involving the search of a house, automobile, or other Place within the control of a defendant at the time of his arrest and as an incident to the arrest. See State v. Goldstein et al., 111 Or. 221, 224--225, 224 P. 1087 (1924). See also State v. Krogness, 238 Or. 135, 146, 388 P.2d 120 (1964), cert. denied, 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964).

Prior decisions by this court.

Fundamentally, of course, the question to be decided in each case is whether the search and seizure was unreasonable. That determination involves a balancing of the right of privacy of an individual against the needs of the state. State v. Douglas, 260 Or. 60, 67, 488 P.2d 1366 (1971), cert. denied, 406 U.S. 974, 92 S.Ct. 2420, 32 L.Ed.2d 674 (1972). We have also held that whether a search was reasonable depends upon the facts and circumstances of each case. State v. McCoy, 249 Or. 160, 163, 437 P.2d 734 (1968).

A search and seizure without a warrant is 'per se' unreasonable, as a general rule, subject to some exceptions. One of the recognized exceptions to the warrant requirement is that when arrested, a person can be searched as an incident to that arrest. State v. Chinn, 231 Or. 259, 266, 373 P.2d 392 (1962).

Despite decisions by the Supreme Court of the United States strictly construing the Fourth Amendment of the Constitution of the United States with reference to searches of places in the control of defendants at the time of their arrest and despite decisions by this court to the same effect, this court has frequently sustained searches of arrested persons.

The seizure of letters and other documents found on the persons of defendants at the time of their arrest was sustained in early decisions by this court. State v. McDaniel, 39 Or. 161, 169--170, 65 P. 520 (1901); State v. Wilkins, 72 Or. 77, 80, 142 P. 589 (1914); and State v. Duffy et al., 135 Or. 290, 306--307, 295 P. 953 (1931). See also State v. Ware, 79 Or. 367, 373, 154 P. 905, 155 P. 364 (1916); and State v. Laundy, 103 Or. 443, 494, 496, 204 P. 958, 206 P. 290 (1922).

Similarly, the seizure of whiskey, drugs, guns or other contraband found on the persons of defendants at the time of their arrest has been sustained. State v. McDaniel, 115 Or. 187, 231 P. 965, 237 P. 373 (1925); State v. Hayes, 119 Or. 554, 556, 249 P. 637 (1926); State v. Dempster, 248 Or. 404, 407--408, 434 P.2d 746 (1967). See also State v. Johnson, 232 Or. 118, 122, 374 P.2d 481 (1962), and State v. Johnson, 249 Or. 55, 56, 437 P.2d 110 (1968). But see State v. Elkins, 245 Or. 279, 283, 422 P.2d 250 (1966).

The court has also sustained the involuntary taking for examination and tests of the clothing of a previously arrested person or a sample of blood from his body--a search and seizure far more drastic than the taking of the contents of his wallet or billfold. State v....