State v. Florance

• Decision Date: 29 October 1973
• Citation: 97 Adv.Sh. 2017,515 P.2d 195,15 Or.App. 118
• Parties: STATE of Oregon, Respondent, v. Daniel Harold FLORANCE, Appellant.
• Court: Oregon Court of Appeals

Page 195

515 P.2d 195

15 Or.App. 118

STATE of Oregon, Respondent, v. Daniel Harold FLORANCE, Appellant.

Court of Appeals of Oregon.

Argued and Submitted July 27, 1973.

Decided Oct. 29, 1973.

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

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

SCHWAB, Chief Judge.

Defendant was charged with one count of menacing, ORS 163.190, and four counts of criminal activity in drugs, ORS 167.207, for possession of marihuana, Numorphan, MDA (alpha-methyl-3-4-methylenedioxy-phenethylamine), and cocaine. A jury found him not guilty of menacing and possession of marihuana, and guilty of the other three counts of criminal activity in drugs. The trial judge entered a single conviction and imposed a single sentence. ¹ Defendant appeals, contending the drugs introduced at trial were illegally seized. This contention raises important questions concerning searches and seizures incident to an arrest, and 'booking searches' (also called 'booking inventories') made when an arrested person is jailed.

The record at the motion to suppress hearing is far from a model of clarity. It appears that Officer Forristahl was investigating a burglary in which defendant was a suspect. The officer spoke with defendant on February 5, 1973, at which time he recovered some stolen property, apparently connected with the burglary under investigation. Something was said at that time about defendant's also trying to obtain and return a stolen television set.

On February 14, the officer went to the farm where defendant was working to inquire further about the stolen television set. The officer and defendant talked from opposite sides of a fence. Forristahl testified that defendant refused to continue to co-operate in the recovery of the television set, shouted obscenities and turned and started to walk away. The officer also testified that he shouted that defendant was under arrest for burglary, jumped the fence with his gun drawn, and that defendant then turned toward him and thrust a pitchfork at him. Two witnesses, testifying for the defendant, stated that defendant had not shouted, that Forristahl had said nothing about defendant's being under arrest for burglary, and that defendant had not thrust a pitchfork at the officer.

Forristahl took the defendant into custody, handcuffing him. Defendant was searched and everything was removed from his pockets, including his wallet.

Forristahl and his partner took the defendant to the Estacada City Hall to complete certain reports that were never fully described in the record. Defendant refused to answer the officers' questions concerning name, address, date of birth, etc. On cross-examination Forristahl admitted that he had written a report concerning his February 5 contact with defendant. The record implies that this report contained all or most of the information the officers needed to complete their February 14 report.

Forristahl then opened defendant's wallet, supposedly in search of information needed for his report. Upon opening the wallet the officer saw several little plastic bags containing powdered substances. The officer did not testify that he recognized these powdered substances as illegal drugs. However, for reasons not of record, Forristahl seized these plastic bags and caused their contents to be chemically analyzed. They proved to contain illegal drugs which formed evidentiary basis of the three counts of criminal activity in drugs of which defendant was eventually convicted. ²

I

Defendant's initial contention is that there was no probable cause to arrest him on February 14, and that the arrest's being invalid, everything which followed was tainted by that invalidity. On this record we hold defendant was validly arrested for menacing. Forristahl testified that defendant thrust a pitchfork at him. ³ Two other witnesses testified to the contrary. At a suppression hearing the trial judge is the trier of fact, and we are bound by his findings if supported by substantial evidence. State v. Blackburn/Barber, 97 Or.Adv.Sh. 490, 511 P.2d 381 (1973); Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968); State v. Fisher, 5 Or.App. 483, 484 P.2d 864 (1971). In this case, the trial judge chose to believe Forristahl and to disbelieve the other witnesses. See, n. 4, infra. Forristahl's testimony reveals sufficient probable cause to arrest defendant for menacing.

Since at trial defendant was found not guilty of the menacing charge, we assume the jury chose to believe defendant's witnesses and disbelieve Officer Forristahl, or at least had a reasonable doubt about which version was true. However, this contrary resolution of the conflict in the testimony at trial does not in any way negate the trial judge's resolution for purposes of the motion to suppress.

It is likely that there was also probable cause to arrest defendant for burglary, although the record is much less clear on this aspect of the case. In any event, however, having found the arrest valid for one offense, we need not resolve whether it would also be valid for another offense.

Following defendant's arrest, there was a series of events leading to the discovery and seizure of the drugs in questions: (1) defendant's wallet was seized at the time of his arrest; (2) the wallet was subsequently searched; and (3) the powder which proved to be drugs was seized for analysis. Below we discuss each of these events in light of the rules governing searches and seizures incident to arrest, Part II, infra, and the rules governing booking searches and seizures, Part III, infra.

II

The trial court upheld the legality of the seizure of the drugs in question based on a finding that the drugs were seized as part of a search incident to defendant's arrest. ⁴

Since this was a warrantless search and seizure the state has the burden of establishing its validity. State v. Douglas, 260 Or. 60, 68, 488 P.2d 1366 (1971), cert. denied O'Dell v. Oregon, 406 U.S. 974, 92 S.Ct 2420, 32 L.Ed.2d 674 (1972). Or, stated differently, 'searches and seizures conducted without search warrants 'are Per se unreasonable,' subject to 'a few specifically established and well-delineated exceptions' * * *.' State v. Douglas, supra, 260 Or. at 67, 488 P.2d at 1370, quoting from Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). One of the recognized exceptions to the warrant requirement is that, when arrested, a person can be searched incident to that arrest for the purposes set forth below. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962).

A

Since there was a lawful arrest, Part I, supra, Officer Forristahl and his partner were entitled, incident to the arrest, to search defendant's person for: (1) weapons, both for their safety and to prevent escape; and (2) evidence relevant to the crime for which defendant was arrested. See, Chimel v. California, supra; State v. Chinn, supra. But the officers did not search defendant's wallet at the time of his arrest. They merely seized the wallet along with everything else in defendant's possession. Was this Seizure of the wallet valid?

Some cases hold that if the police are entitled to search an item at the time of an arrest, they may instead seize the item at the time of the arrest and search it at a later time. ⁵ On the other hand, there are cases that suggest that the police were not entitled, on the facts of this case, either to search or to seize defendant's wallet at the time of his arrest. ⁶ In view of our disposition of the other issues presented it is not necessary to resolve this question. We assume for purposes of discussion, but do not decide, that the seizure of defendant's wallet at the time of his arrest was valid.

B

Was the subsequent search of the wallet at the Estacada City Hall valid? This search occurred sometime after the arrest (the record does not disclose how long), some distance from the scene of the arrest (the record does not disclose how far). This search of the wallet clearly cannot be justified as being Incident to defendant's arrest.

'The search must be an incident of the arrest, i.e., close to the arrest both in time and space * * *.' State v. Chinn, supra, 231 Or. at 267, 373 P.2d at 396. Or, stated differently, '(O)nce an accused is under arrest and in custody, then a search made at another place * * * is simply not incident to the arrest.' Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964).

'The very notion of a search Incident to an arrest connotes spatial contiguity and temporal proximity. To hold otherwise would eliminate all pretense of a rational nexus between the search and the arrest and would be tantamount to saying that an individual legally arrested thereby forfeits all protection under the fourth amendment * * *.' Cook, Warrantless Searches Incident to Arrest, 24 Ala.L.Rev. 607, 608 (1972).

In this case, either the search of defendant's wallet was too remote in time and place to be part of a search incident to arrest, or at the very least it cannot be said that the state sustained its burden of proving a reasonably contemporaneous search under the circumstances of this case.

C

Even if both the seizure and subsequent search of defendant's wallet were valid as incident to arrest, the seizure of the drugs therefrom was not. State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966).

In Elkins, the defendant was arrested for public intoxication. In the course of a search incident to that arrest, an officer discovered various pills in the defendant's possession. Although the officer suspected the pills might be illegal drugs, he did not have probable cause to so believe. The officer neverthless seized the pills and...