State v. Kangiser

• Decision Date: 09 March 1972
• Citation: 8 Or.App. 368,494 P.2d 450
• Parties: STATE of Oregon, Appellant, v. Grant Jerome KANGISER, Respondent.
• Court: Oregon Court of Appeals

Page 450

494 P.2d 450

8 Or.App. 368

STATE of Oregon, Appellant, v. Grant Jerome KANGISER, Respondent.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Jan. 19, 1972.

Decided March 9, 1972.

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

Patrick D. Gilroy, Oregon City, argued the cause for respondent. With him on the brief was William E. Schumaker, Oregon City.

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

FORT, Judge.

Defendant was indicted for unlawful possession of the dangerous drug amphetamine. ORS 475.100. He moved to suppress as evidence certain matter seized at the Clackamas County jail by the officers on duty at the jail including a bottle labeled 'Gantrisin' and its contents. After a hearing, the trial court granted defendant's motion. The state appeals, pursuant to ORS 138.060(4).

The relevant facts are undisputed and are as follows. About 12:40 a.m. on March 2, 1971, an Oregon City police officer arrested defendant for being drunk in public, in violation of ORS 166.160 (repealed Oregon Laws 1971, ch. 743, § 432). Incident to that arrest, the officer searched defendant's person and found a plastic bottle bearing a prescription label, the contents of which were wrapped in what the officer described as 'Kleenex.' Without examining the contents, the officer returned the bottle to defendant and took him to the Clackamas County jail.

At the jail, defendant was again searched and his personal property taken from him in accordance with the normal booking procedure. Among defendant's property the jailers found a bottle with a label bearing a prescription number, a physician's name, the drug name 'Gantrisin' and an indication that the contents were to be taken four times daily. The bottle contained a number of small, round, doublescored white pills, wrapped in a white napkin. The jailers took custody of the bottle, it being the practice of the jail to do so, and thereafter to pass out any required medication to the inmates at regular hours. They contacted the physician whose name appeared on the label. The physician did not testify at the suppression hearing, and what, if anything, he told the jailers regarding the medicine bottle is not in evidence. The jailers then attempted to identify the pills, first by referring to a physician's desk reference book, and thereafter by performing a chemical test on them. This prosecution followed.

On May 18, 1971, the Clackamas County District Court entered an order suppressing the evidence taken by the jailers. Thereafter, the Grand Jury of Clackamas County returned into the circuit court an indictment charging the defendant with the offense of illegal possession of dangerous drugs. ORS 475.100. In the circuit court, in support of this motion to suppress, the defendant contended that (1) the circuit court was bound by the ruling of the district court, and (2) in any event, the plaintiff failed to carry its burden of proof in showing that the evidence was properly seized. After hearing the testimony of the arresting officer and the two jailers involved, the trial court ruled that, while it disagreed with the district court's determination that the search and seizure was improper, it had no power to rule otherwise since the question was res judicata by reason of the prior ruling of the district court.

In its sole assignment of error the plaintiff asserts that:

'The trial court erred in allowing defendant's motion to suppress evidence in this case, because the circuit court was not bound by the prior ruling of the district court suppressing said evidence in proceedings prior to the return of the indictment herein, and because the evidence was lawfully seized incident to defendant's arrest, as part of the normal jail booking procedure. * * *'

The majority of plaintiff's brief is devoted to its assertion that the circuit court was not bound by the prior ruling of the district court on the motion to suppress. In this contention, the plaintiff is correct. In State v. Stahley, Or.App., 93 Adv.Sh. 1616, 1620, 492 P.2d 295, 297 (1971), decided after this case was argued on appeal, we stated:

'Because we do not believe that the law was intended to prevent prosecutions by the state by making a non-appealable suppression order final, we hold, absent a supporting record, that the ruling of the district court suppressing the evidence at or prior to the preliminary hearing is not binding upon the trial court.'

Although the trial judge erroneously assumed that he was bound by the prior ruling of the district court, he did make a direct ruling on the propriety of the seizure and analysis of defendant's pills. He stated:

'* * * I could be wrong on the validity of the search but it appears to me that the officer--when an Officer does what he did here, which was perfectly valid, and as a result finds out there is contraband, to me that is a valid search and seizure. It's legally obtained. * * *' (Emphasis supplied.)

To inventory an arrestee's personal belongings as part of the standard booking procedure is lawful. State v. Sorgenfrei, Or.App., 93 Adv.Sh. 1312, 1313, 490 P.2d 1040 (1971), Sup.Ct. review denied (1972); State v. Riner, Or.App., 92 Adv.Sh. 1493, 485 P.2d 1234, Sup.Ct. review denied (1971); ORS 142.210. When pills or other items which appear to be for medicinal purposes are found on an arrestee's person during booking, it is particularly important that these be taken into custody. Such measures are necessary for, as one of the jailers testified, '* * * his (the arrestee's) safety and for our security on contraband taken to the jail * * *.' The jailers further testified that standard procedure...