State v. Lowry

• Decision Date: 26 July 1983
• Docket Number: No. TC,TC
• Citation: 667 P.2d 996,295 Or. 337
• Parties: STATE of Oregon, Respondent on Review, v. Michael Craig LOWRY, Petitioner on Review. 79-1588-C; CA A22852; SC 28989.
• Court: Oregon Supreme Court

Page 996

667 P.2d 996

295 Or. 337

STATE of Oregon, Respondent on Review, v. Michael Craig LOWRY, Petitioner on Review.

No. TC 79-1588-C; CA A22852; SC 28989.

Supreme Court of Oregon In Banc.

Argued and Submitted April 8, 1983.

Decided July 26, 1983.

Robert J. McCrea of Morrow, McCrea & Divita, P.C., Eugene, argued the cause and filed the petition for petitioner on review

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

LINDE, Justice.

After stopping defendant's automobile for a faulty headlight, a deputy sheriff arrested defendant for driving under the influence of intoxicants. When defendant was handcuffed, another officer took from defendant's clothing a small, closed, transparent amber pill bottle which contained a white powder. The officer kept the bottle in his possession and later had the contents tested. The powder proved to be cocaine, and defendant subsequently was convicted of unlawful possession of a controlled substance, ORS 475.992, over his objections to the warrantless seizure and search that gave rise to the charge. The Court of Appeals affirmed, 59 Or.App. 338, 650 P.2d 1062 (1982). Judge Buttler dissented on the ground that the court had misapplied the law as stated in State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966). We allowed review to consider that question and because the Court of Appeals did not have available our later decision in State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982). We conclude that Elkins and Caraher require reversal of this conviction.

I.

Two contemporary facts together give rise to a large proportion of legal challenges to the manner in which an officer seizes evidence resulting in a prosecution. One fact is the nearly universal use of personal automobiles. The other is the less universal but widespread consumption of drugs and other substances in pursuit of pleasure or other self-induced moods or sensations. Each has been subjected to more or less strict regulation in the interests of health and safety. The state requires vehicles to be registered and to have certain equipment in working order, and it requires drivers to qualify for and to retain drivers' licenses, to drive only in a sober condition, and to comply with the traffic laws. The state also prohibits the possession of various regulated drugs, or "controlled substances," for recreational or other nonmedical consumption, a prohibition that lawmakers have chosen to enforce by the penalties and procedures of criminal law. ORS 475.992. That choice may deter many potential drug users from engaging in criminal conduct; it also entitles the many others who remain undeterred to all the legal guarantees of those procedures.

Especially the rules governing searches and seizures are bound to come under disproportionately frequent stress when the drug laws intersect with the day-to-day enforcement of the traffic laws. Ordinarily a person walking the public streets gives officers no occasion to search his or her clothing or other effects for forbidden drugs or other contraband, unless there is probable cause or at least reasonable grounds to suspect that the person has committed a crime. ORS 131.615; State v. Fairley, 282 Or. 689, 580 P.2d 179 (1978); see also Kolender v. Lawson, 461 U.S. 352, 103 S.Ct. 1855, 75 L.Ed.2d 903 (1983). Even rarer are occasions for a valid warrantless entry followed by a patdown or search when a person is in his home or other private quarters. See State v. Davis, 295 Or. 227, 666 P.2d 802 (1983). These are extraordinary occasions, as the 18th century drafters of the search In the context of the traffic laws, however, almost every adult daily faces occasions to confront an officer in the course of entirely proper law enforcement activity. Officers stop vehicles because they observe defective equipment, or outdated license plates, or erratic and unsafe driving, or a large variety of minor traffic violations such as failure to stop at a stop sign, or to signal, or an improper change of lanes. A demand to see the driver's license and the vehicle registration, also authorized by law, ORS 482.040(2)(b), prolongs the stop and may lead to further investigation. So may objects observed in plain view in the vehicle, as happened, for instance, in State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981); State v. Downes, 285 Or. 369, 591 P.2d 1352 (1979); State v. Jackson, 62 Or.App. 7, 660 P.2d 183, rev. allowed 295 Or. 31 (1983); State v. Tremaine, 56 Or.App. 271, 641 P.2d 637 (1982); and State v. Alpert, 52 Or.App. 815, 629 P.2d 878 (1981). See also Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983). The driver may appear intoxicated, and the officer may want to investigate that possibility. Often one step leads to another, and the driver or a passenger is frisked and suspect articles are seized. The present case--which began with a stop of an automobile for a defective headlight, followed by discovery of the driver's apparent intoxication, an arrest, seizure of a small pill bottle from his pocket, and the warrantless opening of the bottle and test of its contents--is typical. Sometimes the steps occur in a different sequence, invalidating the logic of the chain. See State v. Carter/Dawson, 287 Or. 479, 600 P.2d 873 (1979).

and seizure clauses, anticipating neither automobiles nor large, permanent police forces engaged in routine law enforcement, doubtless expected them to remain.

It hardly needs demonstration that automobiles uniquely are where most persons confront routine law enforcement activity that may lead to a search and eventual prosecution for an unrelated possessory offense. About two million persons hold Oregon drivers' licenses and about 2.5 million motor vehicles are registered in Oregon. Many others are licensed or registered elsewhere travel Oregon roads. In 1981, accidents or traffic violations involving more than 370,000 drivers came to the attention of the state Motor Vehicles Division and presumably of police officers. Of these, 313,585 violations led to convictions. ¹ The 1982 Report of Criminal Offenses and Arrests prepared by the Law Enforcement Data System reports nearly 27,000 arrests for driving under the influence of intoxicants in 1982 alone, nearly 30 percent of all arrests of adults. Arrests for other serious traffic offenses would add many more. All potentially expose drivers to the typical patdown and "securing" of personal effects when a person is taken into custody.

Similarly, unlawful possession of controlled substances is hardly a rare form of behavior in Oregon. Even the fraction of instances that come to police attention and actually lead to arrests produced 7,802 arrests classified as "drug abuse" in 1982. While the published statistics do not report how many prosecutions for possession of controlled substances result from stops of vehicles for other reasons, the appellate reports make clear that it is a large number. Since the establishment of the Court of Appeals in 1970, about 320 of its published opinions have dealt with challenges to the police seizure of controlled substances, nearly 200 involving vehicles. Of these, about 50 have arisen from stops of vehicles in the course of traffic law enforcement. ² Nonetheless, these numbers illustrate the extent to which the law of search and seizure today, as in the Prohibition era of the 1920s, is tested by the twin phenomena of the automobile and the socially widespread determination to disregard laws against various intoxicants, stimulants, or other drugs. As the intensive regulation of motor vehicles and their use on public streets lead to a large proportion of all stops and arrests, these common events raise persistent issues of the scope of further acts accompanying the traffic stop. ³ The answers, of course, concern the rights of every ordinary motorist, not peculiarly those who are suspected of carrying a controlled substance. One such issue is the relation between legitimate warrantless police action on probable cause to enforce one law, such as a traffic regulation, and the warrant requirement when the initial action leads to probable cause for a search or seizure for an unrelated offense.

These are not exact figures, and of course they are only a fraction of all such cases. They do not include those in which there was no prosecution, or a plea of guilty, or no appeal, or an affirmance without opinion. Most important, no statistics tell us the number of instances in which motorists stopped under traffic regulations are subjected to more or less intrusive searches in which no controlled substance or other evidence of crime is found.

II.

Recent Oregon decisions have addressed this issue on both statutory and constitutional grounds. State v. Caraher, supra, reaffirmed the responsibility of Oregon courts to enforce Oregon law, including this state's rules against conviction on illegally seized evidence, before turning to claims under the federal constitution. 293 Or. at 752, 653 P.2d 942. The evolution of those rules is reviewed in more detail in State v. Davis, supra, 295 Or. at 231-37, 666 P.2d 802. As this court has repeatedly stated, the proper sequence begins with an examination of ordinary rules of law and the scope and limits of legal authorization before reaching any constitutional issue, because when some challenged practice is not authorized by law, the court acts prematurely if it decides whether the practice could be authorized without violating the constitution. ⁴ Specifically with respect to investigations incident to traffic stops, this court's opinion in State v. Carter/Dawson, supra, quoted what the Court of Appeals wrote in that case, "based upon its analysis of both statutory and constitutional law":

" * * * Traffic stops should be the minimum possible intrusion on Oregon motorists, and not an excuse to...