State v. Owens

Decision Date20 November 1986
Citation729 P.2d 524,302 Or. 196
Parties, 55 USLW 2370 STATE of Oregon, Respondent on Review/Petitioner on Review, v. Joetta Renee OWENS, Petitioner on Review/Respondent on Review. TC 85-05-0972; CA A36677; SC S32804, SC S32811.
CourtOregon Supreme Court

Thomas J. Reuter, Lebanon, argued the cause for petitioner on review/respondent on review. With him on the [302 Or. 197-A] petition for review was Morley, Thomas, Kingsley & Reuter, Lebanon.

Stephen Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent on review/petitioner on review. On the petition for review was Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Christine Chute, Asst. Atty. Gen., Salem.

CARSON, Justice.

Two issues under the Oregon Constitution are presented in this case: (1) whether the warrantless search of defendant's purse, which included opening a clutch-style purse and two compact mirror cases found within the clutch-style purse and removing a transparent vial and clear plastic packet containing white powder, was justified as a search incident to arrest; and (2) whether a search warrant was required to analyze chemically the contents of lawfully seized transparent containers, when the police had probable cause to believe that they contained controlled substances.


On May 1, 1985, a PayLess Drug Store security officer observed defendant take several small items (perfumes and earrings) from store shelves, walk to the rear of the store, and place them in her purse. The security officer followed her when she left the store without paying for the items and stopped her outside. She first denied shoplifting but then admitted it and returned to the store with the security officer. The security officer asked her to empty her purse. She refused to do so, but she did remove the perfume and earrings that the security officer had observed her take.

A police officer arrived and asked defendant's permission to search her purse to determine whether she had any other stolen items. She refused, stating that everything she had taken was already on the table. The officer stated that he needed to see the contents of her purse to verify her statement. At the officer's insistence, defendant began to remove items from her purse. 1 She pulled out a small clutch purse, opened and closed it quickly, permitting the officer a "brief glimpse" at its contents. The officer told defendant that he needed to take a closer look at the contents of her clutch purse, because he believed he saw some items "that she possibly shouldn't be having." He testified that he had seen a compact mirror case and a small, transparent amber vial containing white powder. Based upon his experience, he testified that he believed he had seen "narcotics paraphernalia" in her clutch purse.

After the officer continued to insist upon seeing the contents of her clutch purse, defendant eventually handed it to him. He opened it and removed the small vial, as well as two compact mirror cases. He opened both cases. One had a residue on the glass. The other contained a small clear plastic packet of white powder. When the officer asked defendant about the white powder, she said it was not hers, that a friend had given it to her, and that she thought it was cocaine. The officer seized the clutch purse and its contents and sent them to the State Crime Laboratory for chemical analysis. No search warrant was obtained. Several weeks later, defendant was charged with the crime of Possession of a Controlled Substance.

Defendant filed a pre-trial motion to suppress the white powder found in her clutch purse. The trial court granted the motion because "the search of said purse was not reasonably related to defendant's arrest for Theft in the Second Degree (Shoplifting)."

The state appealed pursuant to ORS 138.060. The Court of Appeals held that the search of defendant's purse, including the small clutch purse found inside the purse, was reasonably related to defendant's arrest for Theft and was reasonable in time, scope and intensity, citing State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982). The subsequent warrantless testing of the contents of the vial and the clear plastic packet, however, was held unlawful, absent defendant's consent or exigent circumstances, under State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983), and that court's opinion in State v. Westlund, 75 Or.App. 43, 705 P.2d 208, aff'd in part, rev'd in part, 302 Or. 225, 729 P.2d 541 (1986). State v. Owens, 78 Or.App. 279, 715 P.2d 1351 (1986).

Both defendant and the state petitioned for review. Defendant argues that the search of her purse was not reasonably related to her arrest for Theft and that it was not reasonable in time, scope and intensity. The state contends that the discovery, seizure and testing of the contraband found in defendant's purse were lawful aspects of a search incident to arrest. The state further argues that no search warrant is required to test "recognized contraband." We reverse.

A. Search Incident to Arrest.

Following defendant's arrest for Theft, the police officer took a series of actions: he searched defendant's purse; he seized her clutch purse and its contents; he opened two compact mirror cases found in the clutch purse; and he sent a transparent vial and a clear packet found inside the clutch purse, both of which contained white powder, to the State Crime Laboratory where they were opened and their contents analyzed to confirm the officer's reasonable belief that they contained controlled substances. Defendant challenges each of these events as a separate, warrantless intrusion of constitutional magnitude.

Under the Oregon Constitution, 2 a warrantless search of the arrestee's person incident to arrest was traditionally justified to protect the officer and to preserve crime evidence from destruction or concealment. In State v. Caraher, supra, this court reshaped the second justification for searches incident to arrest (to preserve evidence) in several important respects. Under Article I, section 9, a search incident to arrest for crime evidence is limited to a search for evidence of the crime for which the arrestee is arrested. In order to justify a search, incidental to an arrest, the arrest must be for a crime, evidence of which reasonably could be concealed on the arrestee's person or in the belongings in his or her immediate possession at the time of the arrest. Thus, for example, if the person is arrested for a crime which ordinarily has neither instrumentalities nor fruits which could reasonably be concealed on the arrestee's person or in the belongings in his or her immediate possession, no warrantless search for evidence of that crime would be authorized as incident to that arrest. Of course, a pat-down or limited search for weapons to protect the officer or to prevent escape would be justified whenever a person is taken into custody.

State v. Caraher, supra, should thus be viewed as returning Oregon search and seizure law to the traditional rule, based upon State v. O'Neal, 251 Or. 163, 444 P.2d 951 (1968), and State v. Krogness, 238 Or. 135, 388 P.2d 120, cert. den. 377 U.S. 992, 84 S.Ct. 1919, 12 L.Ed.2d 1045 (1964), which limited searches incident to arrest to searches for evidence of the crime for which the arrest was made. In so doing, this court rejected State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974), which had adopted the federal rule for searches incident to arrest, as announced in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973). That federal rule permitted full searches of the person incident to any lawful custodial arrest, based upon the rationale that the right to search flowed automatically from a lawful custodial arrest because the arrest itself had so thoroughly involved the arrested person's privacy that further intrusions had no independent constitutional significance. Our decision in Caraher made it clear that, under the Oregon Constitution, the fact of arrest does not grant an unqualified right to search an arrestee's person for crime evidence.

Caraher should be viewed as modifying search incident to arrest law under the Oregon Constitution in a second important respect. As long as the search is for evidence of the crime for which the arrest was made, and such evidence reasonably could be concealed on the arrestee's person or in the belongings in his or her immediate possession at the time of the arrest, no "container rule" blocks the intensity of the incidental search. In reasserting this court's duty to interpret the protections afforded Oregonians by our state constitution independently from the federal constitution, we eschewed the federal practice of cataloguing items of personal property carried on the arrestee's person. 293 Or. at 756, 653 P.2d 942. The federal analysis required courts to determine which "portable repositories" were worthy of constitutional protection and which were not, and it only served to increase the confusion in this area. We said:

"We are reluctant to embark upon the task of cataloguing items of personal property in the manner required by adherence to federal cases. We find that the focus on the character of the property searched has led to results which seem too frequently to turn upon fortuitous circumstances surrounding how one chooses to transport personal belongings and has resulted in failure of a more straightforward assessment of those individual protections against government intrusion which constitutions, both state and federal, seek to preserve." 293 Or. at 756, 653 P.2d 942.

Thus, the Oregon Constitution authorizes the meticulous investigation of closed containers, such as wallets, purses, cigarette cases and other personal "effects," found on or immediately associated with the arrestee, but only when...

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