State v. Hoskinson
| Decision Date | 23 November 1993 |
| Citation | 123 Or.App. 305,859 P.2d 576 |
| Parties | STATE of Oregon, Respondent, v. Chris Edgar HOSKINSON, Appellant. 9106-1185; CA A73746. |
| Court | Oregon Court of Appeals |
Dan Maloney, Salem, argued the cause, for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Theordore R. Kulongoski, Atty. Gen., Virginia L. Linder, Sol. Gen., and Robert R. Graves, Certified Law Student, Salem.
Before DEITS, P.J., and RIGGS and DURHAM, JJ.
Defendant appeals his conviction by the trial court for possession of a controlled substance. ORS 475.992. He assigns error to the admission of evidence seized from his wallet. We affirm.
Defendant was driving his car when he was stopped by an officer from the Lebanon Police Department who knew that defendant's drivers license was suspended. After the officer confirmed by radio that the license was suspended, defendant was handcuffed. The officer conducted a "pat down" search of defendant as part of his routine safety check. He felt a wallet in defendant's back pocket and removed it. While searching it for weapons or means of escape, he found a small plastic bag containing the residue of a powder, which he seized as evidence. Defendant appeals the denial of his motion to suppress the contents of the bag.
In State v. Smith, 103 Or.App. 113, 796 P.2d 665 (1990), rev. dismissed, 312 Or. 561, 822 P.2d 1193 (1992), we held that an officer is
103 Or.App. at 117, 796 P.2d 665. (Emphasis supplied.)
The Oregon Constitution prohibits unreasonable searches and seizures and protects privacy and possessory interests from unreasonable government intrusions. Or. Const., Art. I, § 9. In State v. Noble, 109 Or.App. 46, 818 P.2d 938 (1991), rev'd on other grounds, 314 Or. 624, 842 P.2d 780 (1992), the specially concurring opinion discussed the heightened privacy interests of a wallet because it is used to carry valuables and important personal papers and effects.
"In light of those heightened interests, it would be a greater impairment of defendant's rights to seize the wallet and deprive him of its possession for an indefinite period of time, rather that to inspect it briefly for weapons or means of escape and then return it to him promptly, if none were found." 109 Or.App. at 52, 818 P.2d 938.
This case is substantially identical to Noble. The defendant in Noble was stopped for riding his bicycle without a light after sundown. A records check revealed an outstanding arrest warrant. While being patted down, the officer found a wallet, which he checked for weapons or means of escape. Inside the wallet, he found a clear plastic bag that contained the LSD-laced blotter paper that led to defendant's conviction. We held that when an officer has lawfully seized a wallet from defendant's person and has "articulated a concern about the possibility that defendant may have been carrying a weapon or an instrument of escape," it is reasonable to search [the wallet] for weapons or means of escape. 109 Or.App. at 51, 818 P.2d 938.
Here, the officer had probable cause to arrest defendant because of defendant's suspended license. He searched defendant immediately incident to arrest. During his testimony, the officer articulated a concern that the wallet might have contained "weapons and--or any means of possible escape as far as handcuff keys" or "razor blades." The officer's search of defendant's wallet was the least intrusive reasonable action that was necessary for the officer's protection. On this record, the court correctly denied the motion to suppress evidence seized from defendant's wallet.
Affirmed.
The majority sustains a search of defendant's wallet as a search incident to arrest on the sole basis that the officer articulated a "concern about a possibility" that it might contain a weapon or an instrument of escape. Because the majority fails to correctly analyze the requirement that the search incident to arrest must be reasonable and does not adhere to controlling cases, I dissent.
In State v. Caraher, 293 Or. 741, 756, 653 P.2d 942 (1982), the court said:
"One of the protections derived from the Oregon Constitution includes a recognition that a valid custodial arrest does not alone give rise to a unique right to search."
In State v. Owens, 302 Or. 196, 200, 729 P.2d 524 (1986), the court described the kind of search of an arrestee's person that an officer may carry out incident to the arrest:
"Of course, a pat down or limited search for weapons to protect the officer or to prevent escape would be justified whenever a person is taken into custody."
A search incident to arrest must be close in time and space to the arrest, and its intensity must be "commensurate both with the crime and what was known of the criminal[.]" State v. Chinn, 231 Or. 259, 273, 373 P.2d 392 (1962).
We do not terminate our analysis of the lawfulness of a search incident to arrest for weapons or escape instrumentalities by reciting an officer's articulated concerns about the possibilities that an arrestee might be armed, or that a pocket, purse or wallet might contain a means of escape. We must also analyze whether the search of those spaces and containers is "reasonable under all the circumstances." State v. Smith, 103 Or.App. 113, 117 n. 2, 796 P.2d 665 (1990), rev. dismissed, 312 Or. 561, 822 P.2d 1193 (1992). In determining whether a search of, say, a wallet is reasonable, we must focus on the reasons that motivated the officer to search the wallet and decide whether those reasons furnish a basis for the particular search that we regard as reasonable. See State v. Owens, supra, 302 Or. at 200, 729 P.2d 524. The officer may not rely solely on theoretical or hypothetical possibilities of the presence of weapons or escape devices that are unaccompanied by a description of the facts that lead the officer to believe that those items were present in the spaces searched and induced the search. A search of a wallet or purse incident to arrest cannot be justified by conjecture, unconnected to the facts of each particular case, about what dangerous items might possibly be hidden in those containers.
For example, in State v. Rogue-Escamilla, 106 Or.App. 270, 806 P.2d 1173, rev. den., 311 Or. 427, 812 P.2d 827 (1991), the defendant was arrested for failing to present a license. The officer searched the defendant's wallet because he feared that it might contain razor blades. Even though the officer articulated a concern about the possibility that the wallet might contain a weapon, we held:
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State v. Hoskinson
...trial court denied defendant's motion to suppress the evidence found in his wallet. The Court of Appeals affirmed. State v. Hoskinson, 123 Or.App. 305, 859 P.2d 576 (1993). We A police officer saw defendant driving his car. The officer knew that defendant's driver license was suspended and ......
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State v. Hoskinson
...1267 863 P.2d 1267 318 Or. 97 State v. Hoskinson (Chris Edgar) NOS. A73746, S40729 Supreme Court of Oregon Nov 23, 1993 123 Or.App. 305, 859 P.2d 576 ...