State v. Lawrence

• Citation: 648 P.2d 1332,58 Or.App. 423
• Decision Date: 16 September 1982
• Docket Number: No. 10-81-06989,10-81-06989
• Parties: STATE of Oregon, Respondent, v. Gary Dean LAWRENCE, Appellant. ; CA A22397.
• Court: Court of Appeals of Oregon

Page 1332

648 P.2d 1332

58 Or.App. 423

STATE of Oregon, Respondent, v. Gary Dean LAWRENCE, Appellant.

No. 10-81-06989; CA A22397.

Court of Appeals of Oregon.

Argued and Submitted April 19, 1982.

Decided Aug. 4, 1982.

Reconsideration Denied Sept. 16, 1982.

Ross M. Shepard, Asst. Director, Public Defender Services of Lane County, Inc., Eugene, argued the cause and filed the brief for appellant.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before BUTTLER, P. J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Defendant appeals his conviction for unlawful possession of a controlled substance, ORS 475.992, assigning error to the trial court's denial of his pretrial motion to suppress LSD tablets seized from his property ¹ during the booking process at the county jail after he was taken into protective civil custody for public intoxication. ORS 426.460. ² The issue is whether the police may, without a warrant, in a noncriminal, nonemergency situation open a closed container seized from the intoxicated person at the time he is booked in at the holding facility, when the purpose of doing so is to detect evidence of crime rather than to aid the person. We hold they may not do so and, therefore, reverse.

On May 22, 1981, at approximately 8 p.m., defendant was sitting in a booth at a restaurant in Springfield. ³ He appeared to be intoxicated and kept repeating to himself, "I'm going to die." Customers complained about defendant's conduct, so the restaurant manager spoke to him, determined that he was intoxicated and assisted him outside. Another restaurant employe had already called the police, and as the manager and defendant went to the adjacent parking lot, Officers Carlile and Deverell arrived in separate patrol cars.

Both officers testified that defendant appeared quite intoxicated; however, he was able to stand alone and was "totally cooperative," exhibiting no aggressive or combative behavior. Carlile asked defendant where he lived; defendant responded, "Here." When asked how much alcohol he had consumed, defendant stated, "Enough to put me away." Carlile then informed defendant that he would be taken into custody because he was intoxicated, unable to care for himself and was in a busy section of town where he could be harmed. Carlile handcuffed defendant, searched him for weapons and placed him in the back seat of his patrol car.

Carlile then contacted Buckley House, an alcoholic treatment facility, and requested a room for defendant. The facility was full and would not admit him. Although defendant at some point had informed Carlile of his home address, which was approximately 16 blocks from the restaurant, Carlile testified that it was department policy not to take intoxicated persons home but, rather, to place them either at Buckley House or the county jail.

Carlile gathered up defendant's belongings (a bicycle, a jacket and several other items), and as he was placing them in the trunk of his patrol car, he searched the pockets of the jacket and found a clear plastic box containing a segment of a white plastic drinking straw, approximately 21/2 inches long with grey pieces of tape closing each end. Unable to "make out the significance of why the straw was in the box," Carlile returned the box to the jacket pocket and placed the jacket and defendant's other property, except the bicycle put in Deverell's car, into the trunk of his car. Defendant was then driven to jail.

At the jail, defendant was put through the booking process. Officer Sawicki, the booking officer, testified that their booking procedure was the same for one charged with crime as for one in civil custody: both are subjected to a thorough search of his person and property, and all property found is inventoried. During that process, Sawicki found the plastic box containing the piece of straw in the pocket of defendant's jacket. It is unclear, however, whether defendant was wearing the jacket at the time the box was discovered or whether the box was discovered as part of the inventory of defendant's personal property. See n.1, supra.

Sawicki opened the box, took out the straw, shook it and held it up to the light. Because it sounded like something was inside it, she handed the straw to Carlile and told him she believed something was inside. Carlile removed the grey tape closing each end of the straw, as well as small pieces of cotton stuffed in the ends, and observed numerous small, pink tablets. Believing the tablets to be contraband, he submitted them for analysis. The tablets were found to contain lysergic acid diethylamide, a controlled substance.

Defendant was indicted for possession of a controlled substance. He moved to suppress all evidence seized during the booking process on the grounds that (1) ORS 426.460, which authorizes the police to take intoxicated persons either home, or to a treatment or holding facility, was violated by the Springfield Police Department policy forbidding taking an intoxicated person home; (2) ORS 426.460 is unconstitutional in permitting seizure of a person for intoxication without probable cause to believe he has committed a crime and without opportunity for judicial review, and (3) assuming the constitutionality of that statute, the warrantless search of the container found in the pocket of defendant's jacket was not incident to his arrest and there were no exigent circumstances justifying the violation of defendant's reasonable expectation of privacy. ⁴ The motion was denied; after a trial to the court on stipulated facts, defendant was convicted.

Because of our view of the case, we consider only defendant's third contention. On this record, there is no doubt that the officers were authorized under ORS 426.460 to take defendant into custody for his own benefit. He was obviously intoxicated, reeked of alcohol, was confused, did not know where he was or recall his address immediately and had told the restaurant manager he was going to die. The officers could have reasonably believed that defendant, if left alone, would harm himself.

Nonetheless, defendant was taken into custody in a noncriminal, nonemergency situation, as was the defendant in State v. Newman, 292 Or. 216, 637 P.2d 143 (1981), cert. den. --- U.S. ----, 102 S.Ct. 2915, 73 L.Ed.2d ---- (1982). In Newman, the court held that a search of the defendant's purse for identification at the scene of the stop was unreasonable, because it was not necessary to know her identity in order to take her to the holding facility as authorized by ORS 426.460. That reasoning strongly suggests that there was no necessity here for the police to search defendant's person or property at the scene, other than for their own safety if that was a concern. However, it is not that search, but the later one at the jail for the purpose of inventorying his belongings, that is challenged here. The court in Newman specifically declined to reach the question whether the intoxicated person's property could have been searched for identification as part of the booking process at the holding or treatment facility.

State v. Brown, 291 Or. 642, 634 P.2d 212 (1981), on which the state relies, was the culmination of apparently divergent case law (e.g., United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977)), relating to the authority of the police to open a closed container seized as an incident to a lawful arrest, absent a warrant. The court held that the container could be opened during the booking process as a delayed search incident to arrest. Here, however, defendant was not arrested (in the criminal sense), and there was no probable cause to justify an arrest. Neither was there an emergency, as in State v. Marsh, 1 Or.App. 351, 462 P.2d 459 (1969), where defendant was taken into custody under ORS 426.215(1) ⁵ and transported to the police emergency hospital. We upheld the seizure of a packaged substance from the defendant as reasonably related to diagnosing or treating his apparent mental or physical condition. We said that the prompt identification of the substance seized might be the key to effective emergency treatment. ⁶ Here, there is no contention that defendant was other than intoxicated from alcoholic liquor and no contention that the pills were seized and analyzed for any purpose other than to charge defendant with a crime.

This case is closer to Brown on its facts than was Newman in the sense that here the search and seizure occurred during the booking process at the jail. However, the court in Newman emphasized the civil aspects of defendant's custody as opposed to the criminal arrest of Brown. As indicated above, the court declined to decide whether the result would have been different if the search of Newman's purse for identification had taken place at the jail during booking. Notwithstanding that declination, the court pointed out that it was unnecessary to know the identity of defendant in order to book her in, that intoxicated persons were booked in under various nicknames. That reasoning suggests that it would be unreasonable for the police to search the purse of one in civil custody for the purpose of identification at the time of booking, although inventorying the contents of the purse might be a different matter. ⁷

Given the fact that the purpose of ORS 426.460 is to protect intoxicated persons by keeping them in custody for a limited period (48 hours), rather than treating them as criminals, it would be anomalous to treat them the same as one in full custody arrest for a criminal offense. What is reasonable in the latter case may not be in the former. Although the issue is not presented here, it would seem reasonable for an officer taking an intoxicated person into custody to conduct a limited "pat-dow...