State v. Lowry

• Decision Date: 27 October 1982
• Docket Number: No. 79-1588-C,79-1588-C
• Citation: 59 Or.App. 338,650 P.2d 1062
• Parties: STATE of Oregon, Respondent, v. Michael Craig LOWRY, Appellant. ; CA A22852.
• Court: Oregon Court of Appeals

Page 1062

650 P.2d 1062

59 Or.App. 338

STATE of Oregon, Respondent, v. Michael Craig LOWRY, Appellant.

No. 79-1588-C; CA A22852.

Court of Appeals of Oregon.

Argued and Submitted April 23, 1982.

Decided Sept. 15, 1982.

Reconsideration Denied Oct. 27, 1982.

Robert J. McCrea, Eugene, argued the cause for appellant. With him on the brief was Morrow, McCrea & Divita, P.C., Eugene.

Christine L. Dickey, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem.

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

WARREN, Judge.

Defendant appeals his conviction for possession of a controlled substance. ORS 475.992. He assigns as error the denial of his motion to suppress evidence.

Defendant was stopped for driving under the influence of intoxicants. At the scene of the arrest, the arresting officer conducted field sobriety tests. After defendant's poor performance on these tests, he was arrested and handcuffed. A search of defendant's person revealed a small amber bottle, covered by a plastic film with a tamper-proof cap. The bottle was half full of a powdered substance. ¹ A chemical test performed on the powder, approximately 30 minutes after the arrest, showed that it was cocaine. The officer who conducted the search and the test testified at the suppression hearing that he had five and a half years' experience with the Josephine County Sheriff's Department as a traffic officer. Previous to that employment, he had worked three years for the Santa Ana, California, Police Department. His experience there was in patrol, animal regulation and vice. Although there was a basis to believe that the officer could recognize marijuana, he was not asked and did not say that he could recognize any other form of contraband or that he had any training or experience concerning other contraband substances.

Defendant contends that the seizure of the bottle and subsequent analysis of its contents were unlawful, because the officer did not have probable cause to believe that the powder in the bottle was contraband. ²

The leading case on this question is State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966). In that case, the defendant was arrested for public drunkenness, and a search incident to the arrest revealed a bottle containing three kinds of pills. The arresting officer was suspicious and seized the pills, some of which were found to be contraband. The Supreme Court held that

" * * * before the officer had the right to seize the implements of a crime committed in his presence, other than that for which the arrest was made, he must have reasonable grounds to believe that the article he has discovered is contraband and therefore a crime is being committed. * * *."

" * * *

"If the rule were otherwise, an officer who desired to inculpate an arrested person in another crime, could seize everything in such person's possession and control upon the prospect that on further investigation some of it might prove to have been stolen or to be contraband. It would open the door to complete temporary confiscation of all an arrested person's property which was in his immediate possession and control at the time of his arrest for the purpose of a minute examination of it in an effort to connect him with another crime. Such a practice would be as much an exploratory seizure as one made upon an arrest for which no probable cause existed. Intolerable invasions of a person's property rights would be invited by an ex post facto authorization of a seizure made on groundless suspicion.

"The application of the above rules of law to the facts in the present case leaves only one result. The officer had no information from which it was reasonable to assume that the pills might be contraband. The conclusion to be drawn from the evidence was that the officer was acting on suspicion. It is not enough that the officer suspects in good faith; his suspicion must be reasonable. * * * " 245 Or. at 284, 287-88, 422 P.2d 250.

The court found that, despite his suspicions, the officer did not have probable cause to believe that the pills were contraband and, therefore, the seizure was unlawful. This holding was called into question when the Supreme Court, in State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974), adopted the holding of United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), that the search of an arrested person may include seizure of contraband probative of criminal conduct other than the conduct which is the basis for the arrest.

The court in Robinson, however, did not address the question in Elkins of the necessity of probable cause to seize evidence of a crime other than the one for which the arrest is made. It discussed, instead, only the permissible scope of a search incident to the arrest.

"The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a 'reasonable' search under that amendment." 414 U.S. at 235, 94 S.Ct. at 476.

The court did not purport to say that items discovered in a permissible search could be seized, absent evidence that the officer had probable cause to believe that they constituted evidence of a separate crime. In light of this, Professor LaFave hypothesizes:

"Indeed, if anything, Robinson points in the opposite direction; it is the probable cause requirement for subsequent seizure which made the Robinson rule of search without probable cause (except for the arrest) tolerable." LaFave, Search and Seizure, § 5.2, 302 (1978).

In our opinion in State v. Florance, 15 Or.App. 118, 515 P.2d 195 (1973), rev'd 270 Or. 169, 527 P.2d 1202 (1974), we pointed out that after a valid full custodial arrest, the officer removed small bags containing a powdered substance. The officer did not testify that he had recognized the substance to be contraband, but

" * * * for reasons not of record, [the officer] 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." 15 Or.App. at 122, 515 P.2d 195.

Relying on Elkins, we held the seizure invalid for want of evidence of probable cause in the record. The Supreme Court, however, reversed, saying:

" * * * This officer was experienced in such matters and upon finding these plastic bags containing white and blue powdered substances he was entitled to use common sense. Indeed, it is the business of police officers to be suspicious and this officer had not only the right, but the duty to determine whether or not such powdered substances constituted illegal drugs. This was not a case involving a bottle of pills, as State v. Elkins, supra, and the rule as stated in that case ( [245 Or.] at 290-91 ) is not contrary to this conclusion, but supports it. * * * " 270 Or. at 190-91, 527 P.2d 1202.

In a footnote, the Supreme Court quoted from Elkins as follows:

" 'It should not be forgotten that it is the duty of police officers to ferret out crime. It is their business to be suspicious and they are trained in the ways of the unlawful. Therefore reasonable grounds for a police officer to believe that he may have come upon implements or fruits of a crime other than that for which the arrest was made may be furnished by something that might be of relative insignificance to a layman. * * * ' " 270 Or. at 191, 527 P.2d 1202.

Florance did not overrule Elkins, but relied on it, and it is clear from Elkins that probable cause is required before evidence of a crime other than that for which defendant was arrested may be seized. As pointed out in Elkins, such probable cause may be provided by facts that, though insignificant to a layman, may have special meaning to a trained law enforcement officer.

At the suppression hearing in this case, nothing was adduced as to why the officer caused the contents of the bottle to be analyzed. There was nothing articulated that he suspected the substance was contraband. However, as we stated in State v. Carter/Dawson, 34 Or.App. 21, 29, 578 P.2d 790 (1978), aff'd 287 Or. 479, 600 P.2d 873 (1979): ³

" * * * In Oregon, it is reasonably well settled that arrests and searches are judged by a reasonable-person objective standard; the fact that a police officer articulates his subjective reason for arresting or searching that happens to be invalid is irrelevant if a court later concludes that a reasonable person, viewing the facts objectively, would have had probable cause to arrest or search." (Citations omitted.)

We now hold that seizures are likewise to be judged by an objective standard and conclude that they are to be tested solely by whether the facts perceived by the officer constitute probable cause in an objective sense and that his subjective reasons do not affect the legality of the seizure if, in fact, probable cause existed. In the "stop" context of Carter/Dawson, we said:

" * * * An officer who made a stop must still state what he perceived and reasonably believed the facts to be. The officer may also state what conclusions his subjective reasoning process led him to, i.e., his own conclusion about his legal authority. But it remains the...