State v. McCrory

• Court: Court of Appeals of Oregon
• Writing for the Court: WARDEN; BUTTLER
• Citation: 84 Or.App. 390,734 P.2d 359
• Parties: STATE of Oregon, Appellant, v. Monika McCRORY, Respondent. CC 85-405; CA A36092.
• Decision Date: 18 March 1987

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734 P.2d 359 84 Or.App. 390 STATE of Oregon, Appellant,
v.
Monika McCRORY, Respondent. CC 85-405; CA A36092. Court of Appeals of Oregon,
In Banc. Submitted on Remand Jan. 5, 1987.
Resubmitted In Banc Feb. 4, 1987.
Decided March 18, 1987.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, appeared for appellant. With him were Dave Frohnmayer, [84 Or.App. 391] Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Diane L. Alessi, Deputy Public Defender, Salem, appeared for respondent. With her was Gary D. Babcock, Public Defender, Salem.

[84 Or.App. 392] WARDEN, Presiding Judge.

This case is on remand from the Oregon Supreme Court for reconsideration in the light of State v. Owens, 302 Or. 196, 729 P.2d 524 (1986). In our first opinion, State v. McCrory, 78 Or.App. 671, 716 P.2d 776 (1986), we affirmed a pretrial order suppressing evidence. ¹ In the light of Owens, we reverse.

In January, 1985, defendant was arrested for assault by officer Wojack. She was taken to the Coos County Holding Facility where, pursuant to a jail policy, all items in the pockets of her clothing were removed when she was "booked in" by deputy sheriff Wiggins. A small paperfold, commonly described as a "bindle," was found in her jacket pocket. The deputy gave the paperfold to Wojack, who testified that, on the basis of his training and his experience in the identification of controlled substances, he had reason to believe that it contained

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narcotics. He opened it and observed a white powder inside. The powder was then tested without first obtaining a search warrant. It was methamphetamine.

Defendant moved to suppress all evidence relating to the paperfold. She argued that the police acted illegally by (1) seizing and opening the paperfold, because the seizure was not incident to her arrest, and (2) testing the paperfold's contents, because no warrant was obtained. The motion was granted. The state appeals.

As to the initial seizure, defendant does not contest the legality of the inventory procedure whereby the police came into possession of the paperfold. Although a "booking in" inventory does not justify a general exploratory search and analysis of all items found, if in the course of a proper inventory evidence of another crime is discovered, the evidence may be seized upon probable cause to believe that it relates to another crime. See State v. Elk, 249 Or. 614, 439 P.2d 1011 (1968); State v. Riner, 6 Or.App. 72, 485 P.2d 1234, rev. den. (1971).

In State v. Owens, supra, 302 Or. at 207, 729 P.2d 524, the court stated:

"[W]e hold that, when there is probable cause to believe that a [84 Or.App. 393] lawfully seized transparent container contains a controlled substance, opening the container, removing a modest quantity of its contents and subjecting it to chemical analysis for the sole purpose of confirming that it is a controlled substance, is not a 'search' or 'seizure' under the Oregon Constitution. * * * Article I, section 9, does not require that the police obtain a warrant before opening the transparent vial and clear plastic package lawfully seized from defendant's purse herein or testing their contents for the limited purpose of confirming the police officer's reasonable belief that they contained controlled substances."

Although Owens concerned a transparent container, its holding extends to those containers which otherwise "announce their contents." In State v. Herbert, 302 Or. 237, 729 P.2d 547 (1986), the Supreme Court expressly declined to decide whether the unique packaging of a paperfold alone might provide, to an officer with training and experience in the area of drug detection, probable cause to believe it contains a controlled substance.

"[W]e are not here required to decide whether an opaque paperfold is such a unique container of illicit drugs. In addition to the shape of the container, other facts gave the officer probable cause to believe that the paperfold contained a controlled substance." 302 Or. at 242, 729 P.2d 547.

In this case, however, we must decide that issue, because there were no other facts to support a finding of probable cause. ²

Wojack testified that the paperfold was made of a page torn from a magazine that was "folded up in a triangle-type of shape. It is folded so that it can't come open unless you pull it apart." In State v. Herbert, supra, the court similarly described a paperfold:

"The paperfold * * * was made from a page torn out of a magazine. The edges were folded in so that the contents would not fall out." 302 Or. at 237 n. 1, 729 P.2d 547.

The trial court in this case determined that Wojack and Wiggins had probable cause to believe the defendant was in possession of a controlled substance:

[84 Or.App. 394] "Unlike the container in State v. Lowry, 295 Or. 337, 346, 667 P.2d 996 (1983), a paper 'bindle' would not be used for 'baby powder, or table salt or legitimate medicines,' although an inventive mind could claim defendant was merely in possession of a 'spit-wad'." ³

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Defendant argues, as did the defendant in Herbert, that a paperfold could just as well have been used to store or transport small items, such as unsnelled fish hooks, jewelry or radish seeds. We agree that that is "possible." Probable cause, however, does not require absolute certainty. State v. Collicott, 56 Or.App. 605, 642 P.2d 1187, rev. den. 293 Or. 190, 648 P.2d 852 (1982). Wojack's training and experience was sufficient to allow him to form a reasonable belief that the paperfold contained a controlled...