State v. Newman

• Decision Date: 09 December 1981
• Citation: 292 Or. 216,637 P.2d 143
• Parties: STATE of Oregon, Respondent on Review, v. Patricia Ann NEWMAN, Petitioner on Review. TC C 79-10-33601; CA 16600; SC 27594.
• Court: Oregon Supreme Court

Page 143

637 P.2d 143

292 Or. 216

STATE of Oregon, Respondent on Review, v. Patricia Ann NEWMAN, Petitioner on Review.

TC C 79-10-33601; CA 16600; SC 27594.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 5, 1981.

Decided Dec. 9, 1981.

Nancy R. Walseth, Portland, argued the cause for petitioner. With her on the briefs were Richard A. Van Hoomissen and Cooney & Van Hoomissen, Portland.

Thomas H. Denney, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem. CAMPBELL, Justice.

The narrow issue in this case is: Can the police without a warrant in a noncriminal and nonemergency situation search the property of an intoxicated person for identification at the time the person is taken into custody?

On October 13, 1979, at about 5:30 a. m., Portland Police Officer Kenneth Pacheco saw an automobile parked in a no parking zone on Southeast McLoughlin Boulevard. ¹ Both tires on the left side were flat and a person behind the steering wheel was leaning against the window on the driver's side. Pacheco parked the police car behind the disabled vehicle and approached it to investigate. The person behind the wheel was the defendant, who was the sole occupant of the automobile. The officer "knocked on the window a couple of times and got no reaction," so he opened the door and "shook the young lady a couple of times until she finally woke up." As to the next events the officer testified:

"Basically I asked her-she looked very young and I asked how old she was. She said 22, and I asked if she had any identification and she just kept telling me she wanted to go home, and I continuously asked for identification and she wouldn't-she just kept saying, 'I want to go home,' and I could smell a moderate amount of alcohol on her breath and I assumed she was intoxicated."

Finally, the defendant reached into her purse and gave a driver's license to the officer. The license had been issued to Catherine M. Newman, age 22, with a Milwaukie, Oregon address.

Next, Officer Pacheco asked the defendant for a telephone number so that he could verify her identity. After some delay, she gave the officer a telephone number. He had the East Police Precinct call the number and they reported back that the person answering "had never heard of Catherine Newman or anybody by the name of Newman." The officer then asked the defendant for her parents' telephone number and she replied, "Well, take me wherever you want, but don't call my parents."

The officer did not think that the defendant was Catherine Newman or that she was 22 years of age. She did not respond to the name Catherine and in the officer's opinion she did not look like the photograph on the driver's license. Her condition and behavior "ranged from being hysterical to crying to being antagonistic and extremely moody."

Officer Davis arrived on the scene and he, with the approval of Officer Pacheco, handcuffed the defendant and placed her in the back of one of the patrol cars. Pacheco placed the defendant in custody "on a civil hold" ² to take her either to the "detox ³ or the booking facility." ⁴ He did not intend to charge her with a violation of any law.

After the defendant was placed in the patrol car, Pacheco went back to her vehicle and found a woman's purse on the ground. The purse was closed and he opened it without the defendant's consent for the "sole purpose (of finding out) who she was." When the officer first opened the purse, he found a plastic bag containing white cross top pills. On a further search of the purse he discovered additional pills and a wallet. Inside the wallet was a driver's license issued to Patricia Ann Newman, age 19, with the same Milwaukie address as that listed on the previous driver's license. When confronted with the second driver's license, the defendant admitted that she was Patricia Ann Newman and that Catherine M. Newman was her sister.

The defendant was charged by a two count information with possession of a controlled substance, ORS 475.992, and with misuse of a driver's license, ORS 482.610. The defendant moved to suppress all evidence seized on October 13, 1979, on the ground that it was "unreasonably seized without a warrant and in violation of federal and state constitutions, statutes, and case law." The trial court allowed the motion to suppress and when the state declined to proceed to trial, the information was dismissed.

The state appealed to the Court of Appeals pursuant to ORS 138.060(1) and (3). The Court of Appeals reversed and remanded, 49 Or.App. 313, 619 P.2d 930, (1981) holding that it was required to analyze the search on the basis of reasonableness because the standard of probable cause applied only to criminal cases and not to noncriminal situations. ⁵ The court found the search of the defendant's purse for identification was reasonable under the circumstances.

We disagree with the Court of Appeals that the search of the defendant's purse for identification was reasonable under the circumstances of this case and therefore reverse. The effect of this decision is to reinstate the trial court's order suppressing the evidence.

A person who is intoxicated in a public place may be taken home or to a treatment facility by the police. ORS 426.460(1). ⁶ If there is no appropriate treatment facility, the intoxicated person may be taken to a city or county jail where the person may be held until no longer intoxicated. ORS 426.460(3). There is nothing in the record to indicate what treatment facilities were available in Multnomah County.

The officer could smell a moderate amount of alcohol on the defendant's breath and assumed that she was intoxicated. Although there was a wide range in the defendant's behavior, she only became violent when she was told that she would be placed in handcuffs. The officer did not intend to charge her with a violation of a criminal law. Officer Pacheco testified as to his intention as follows:

"I basically was going to place her in custody on a civil hold and either take her to the detox or the booking facility and another officer had to forcibly handcuff her and put her in the back seat."

There is testimony in the record that prior to the time the defendant was placed in the patrol car the officer was attempting to identify the defendant so that he could take her home. As to what he was attempting to learn after she was placed in the patrol car, Officer Pacheco testified that when he opened the purse "my sole purpose was to find out who she was."

Thus, the issue in this case narrows: Can the police without a warrant in a noncriminal and nonemergency situation search the property of an intoxicated person for identification at the time the person is taken into custody for transportation to a treatment or holding facility ?

Neither party contends that Officer Pacheco was conducting a criminal investigation at the time he opened the purse. We agree with the Court of Appeals that the facts of this case did not present the officer "with a medical emergency justifying an immediate search." State v. Newman, supra, 49 Or.App. at 320, 619 P.2d 930. The defendant was suffering from ordinary intoxication from the use of alcohol. The search was a search of the defendant's property and not a search of her person. State v. Brown, 291 Or. 642, 634 P.2d 212 (1981), 2 LaFave, Search and Seizure 347 (1978).

This case boils down to a question of reasonableness. State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980). Was it reasonable for Officer Pacheco to invade the defendant's privacy by opening her purse to find out who she was prior to taking her to a treatment or holding facility? We find that the officer's act was not reasonable under the circumstances of this case.

The purpose of a purse or handbag is to carry personal things. An individual's expectation of privacy in a purse is probably greater than in any other property except the clothing worn by a person. We do not think it was necessary for the police officer to know the name of the person that he was going to transport to the treatment or holding facility. The officer could have transported the defendant under the name of "Jane Doe." Many of the regular clients of detoxification centers, treatment and holding facilities are known only to their peers and the police as "Shorty," "Slim," "Red," or "Little Mac."

We do not reach the question whether or not the purse of the defendant could have been searched for identification as a part of the booking procedure at the treatment or holding facility. We hold only that it was not reasonable to search the defendant's purse for identification for the purpose of transporting the defendant to the facility. ⁷

The dissent seems to attempt to broaden the scope of this case. It seems to assume that the police have statutory authority not only to take an intoxicated person home or to a treatment facility, but that the statute extends to taking a person into custody for that purpose by compulsion, i. e., without the person's assent and over her protests, even when the person is not "incapacitated" and there is no danger to her health or to any other person within the second sentence of ORS 426.460(1), supra. This assumption gives rise to a set of constitutional problems inherent in a "seizure" of a person for a non-penal purpose, including problems of the applicability and meaning of "probable cause," which we do not reach here.

We repeat that this case involves a nonemergency as well as noncriminal situation. We have held that only the search of the purse is at issue here, not the officer's investigation of her physical condition and whatever "stop" this may have involved.

The dissent states that the officer had probable cause to arrest the defendant. We shall assume, for the sake of argument, that the dissent is correct, but the fact remains that the officer did not act upon that probable cause....