State v. Lippert

• Decision Date: 19 August 1993
• Citation: 317 Or. 397,856 P.2d 634
• Parties: STATE of Oregon, Petitioner on Review, v. Donald W. LIPPERT, Respondent on Review. CC 90-05-1642-C, CA A65707 and SC S39473.
• Court: Oregon Supreme Court

Page 634

856 P.2d 634

317 Or. 397

STATE of Oregon, Petitioner on Review, v. Donald W. LIPPERT, Respondent on Review.

CC 90-05-1642-C, CA A65707 and SC S39473.

Supreme Court of Oregon In Banc.

Argued and Submitted May 3, 1993.

Decided Aug. 19, 1993.

Jas. Adams, Asst. Atty. Gen., Salem, argued the cause and filed the petition for petitioner on review. With him on the petition were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Eric R. Johansen, Deputy Public Defender, Salem, argued the cause for respondent on review.

GILLETTE, Justice.

In this criminal case, the trial court granted defendant's pretrial motion to suppress the contents of a paperfold found in defendant's pocket after he was taken into civil custody for detoxification. The Court of Appeals affirmed the suppression order. State v. Lippert, 112 Or.App. 429, 829 P.2d 1020 (1992). We reverse and remand for further proceedings.

The relevant facts are undisputed. On February 24, 1990, the manager of the Elks Club in Burns called the police to complain about a person at the club. A police officer arrived and found defendant "highly intoxicated." Rather than arrest defendant for criminal trespass or for resisting arrest--which, the trial court noted, would have been a proper response to defendant's actions--the officer decided to "give [defendant] a break" and take him into civil custody for detoxification, as permitted by ORS 426.460, set out infra. When defendant became belligerent and attempted to break free, the officer handcuffed him.

Because Harney County did not have a treatment facility, the officer transported defendant to the county jail. ORS 426.460(3). ¹ At the jail, the officer and the jailer conducted a routine inventory of defendant's belongings. ² From defendant's right front pocket, the jailer removed a paperfold measuring approximately one and one-half inches by three-quarters of an inch, with its corners "turned in, and * * * folded underneath." The officer recognized the paperfold as "the type commonly used to package cocaine or crank." ³ The officer opened the paperfold and observed inside "[a] white powdery substance resembling cocaine." The substance was later determined by chemical testing to be cocaine.

Defendant was indicted for possession of a controlled substance. He moved to suppress the paperfold and its contents. He did not (and does not) challenge either the permissibility of the inventory procedures or the existence of probable cause to seize the paperfold and to analyze its contents. He simply argued that evidence obtained during a detoxification procedure could not be used in a criminal prosecution. The trial court granted the motion to suppress, concluding that, under Oregon case law, "[t]he State cannot use evidence seized in an unconsented search of a person's belongings who has been detained on a noncriminal nonemergency detoxification hold." ⁴

The state appealed the suppression order, and the Court of Appeals affirmed. The lead opinion found the present case indistinguishable from an earlier Court of Appeals case, State v. Lawrence, 58 Or.App. 423, 648 P.2d 1332, rev. den., 293 Or. 801, 653 P.2d 999 (1982):

"In both, the officers observed containers that they reasonably believed contained controlled substances and, in both, they confirmed the contents through chemical analysis, resulting in the defendant's prosecution for possession of those substances. In Lawrence, we held that the evidence was inadmissible in the ensuing criminal prosecution. The dissent does not cite one case that holds that evidence so obtained may be used to prosecute the detainee. There are none."

State v. Lippert, supra, 112 Or.App. at 434, 829 P.2d 1020 (Buttler, P.J.) (footnote omitted).

A concurring judge disagreed only with the suggestion in the lead opinion "that evidence obtained as a result of an inventory conducted during a civil detox hold can never be used by the state in a criminal prosecution." State v. Lippert, supra, 112 Or.App. at 435, 829 P.2d 1020 (De Muniz, J., specially concurring) (emphasis in original). In the opinion of the concurring judge, the evidence would have been admissible if the police had obtained a warrant to open the paperfold. Id. at 437, 829 P.2d 1020.

A dissenting judge would have held that, despite the civil detoxification context and the lack of a warrant, the evidence obtained in this case was admissible. State v. Lippert, supra, 112 Or.App. at 437-40, 829 P.2d 1020 (Rossman, J., dissenting). According to the dissenting judge, no warrant was necessary because, "due to its use as a method for carrying illegal drugs, 'a paperfold, like a transparent container, announces its contents.' " Id. at 438, 829 P.2d 1020 (quoting State v. McCrory, 84 Or.App. 390, 397, 734 P.2d 359 (1987) (Buttler, J., specially concurring)). The dissenting judge also concluded that the civil detoxification context did not bar use of the evidence, because the officer acted reasonably and "the 'test of each step in the police procedure is reasonableness.' " Id., 112 Or.App. at 439, 829 P.2d 1020 (quoting State v. Newman, 292 Or. 216, 224, 637 P.2d 143 (1981), cert. den., 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982)) (emphasis omitted).

We emphasize at the outset how limited the issue in this case is. Defendant does not deny that he was intoxicated or that the officer was justified in placing him in a "detox hold." Neither does he deny (1) that the Harney County Jail was an appropriate place to house him until he became sober; (2) that there were procedures in place at the jail that were established by a politically accountable lawmaker providing for the noncriminal, routinized search of a person's belongings to ensure that contraband or weapons would not be introduced into the secure portion of that facility; (3) that the search of defendant in this case complied with those procedures; (4) that the paperfold containing the cocaine was found during that search; (5) that the officer had the background and experience to permit him to identify contraband; (6) that, because of his earlier encounter with this same defendant, the paperfold taken from defendant in this case announced its contents to this arresting officer; or (7) that the officer both subjectively and objectively believed--and had probable cause to believe--that the paperfold contained contraband. Defendant's sole claim is that, the foregoing notwithstanding, evidence of criminal acts properly found during an inventory search in connection with a "detox hold" cannot be used in an ensuing criminal prosecution. Defendant is mistaken.

ORS 426.460 provides the statutory authority for the nonemergency "civil detox hold" in this case. That statute provides, in part:

"(1) Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent home or to a treatment facility by the police. * * *

" * * * * *

"(3) In the absence of any appropriate treatment facility, an intoxicated person or a person under the influence of controlled substances who would otherwise be taken by the police to a treatment facility may be taken to the city or county jail where the person may be held until no longer intoxicated, under the influence of controlled substances or incapacitated."

On three occasions, this court has considered the validity of a search conducted during a nonemergency civil detoxification hold authorized by ORS 426.460. The first occasion was in State v. Newman, supra. In Newman, a police officer took the defendant into civil custody for detoxification, then searched her purse for identification before transporting her to a treatment or holding facility. During the search, the officer discovered contraband. The defendant later challenged the validity of the search in a motion to suppress.

In judging the validity of the search, this court stated that "[t]his case boils down to a question of reasonableness." State v. Newman, supra, 292 Or. at 221, 637 P.2d 143; see also id. at 224, 637 P.2d 143 ("The test of each step in the police procedure is reasonableness."). As authority for that proposition, the court cited State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980), cert. den., 451 U.S. 972, 101 S.Ct. 2051, 68 L.Ed.2d 352 (1981), a case that involved the reasonableness of a police roadblock under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the Constitution of the United States. Thus, in Newman, this court judged the validity of the search under the standard of "reasonableness" required by the state and federal constitutions. ⁵ The court concluded that the search of the defendant's purse was unreasonable, because searching the purse was not necessary to carry out the officer's obligation to safeguard either the person to be detoxified or others. State v. Newman, supra, 292 Or. at 222, 637 P.2d 143.

Three years later, in State v. Perry, 298 Or. 21, 688 P.2d 827 (1984), the court once again confronted the validity of a search during a civil detoxification hold. In Perry, after taking the defendant to the police station for detoxification, the police conducted an inventory of the defendant's luggage, ostensibly to protect any valuables contained within. Agreeing with the reasoning and result of State v. Lawrence, supra, a similar inventory case from the Court of Appeals, this court held that it was unreasonable for the police to open a closed container seized during an inventory of an intoxicated person held for detoxification. 298 Or. at 26-27, 688 P.2d 827. Quoting from Lawrence, this court stated " 'Once a closed container is taken from the person during inventory of his property and is in the exclusive control of the police, it is unreasonable to open the container and seize its contents without a warrant unless the contents are in plain view and are identified as contraband without the necessity of laboratory analysis.' "

Id. at 27...