State v. Perry, J82-2628

• Decision Date: 06 March 1984
• Docket Number: No. J82-2628,J82-2628
• Citation: 66 Or.App. 318,674 P.2d 1176
• Parties: STATE of Oregon, Respondent, v. Leroy James PERRY, Appellant. ; CA A26974.
• Court: Oregon Court of Appeals

Page 1176

674 P.2d 1176

66 Or.App. 318

STATE of Oregon, Respondent, v. Leroy James PERRY, Appellant.

No. J82-2628; CA A26974.

Court of Appeals of Oregon.

Argued and Submitted Aug. 4, 1983.

Decided Jan. 4, 1984.

Reconsideration Denied Feb. 10, 1984.

Review Allowed March 6, 1984.

Philip M. Suarez, Asst. Public Defender, Roseburg, argued the cause and filed the brief for appellant.

Kay Kiner James, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Acting Sol. Gen., Salem.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant appeals his conviction for possession of marijuana. The marijuana was discovered during a police inventory of defendant's luggage while he was on a "detox hold." The issue is whether and to what extent the police may search luggage belonging to a person temporarily detained for detoxification under ORS 426.460 in the process of making an inventory of it. Under the facts of this case, we hold that the inventory was not impermissibly intrusive and therefore affirm defendant's conviction.

When a Roseburg police officer found him in an obviously intoxicated condition on the evening in question, defendant was carrying two unlocked, closed suitcases. ¹ The officer transported defendant and the suitcases to the police station and placed him in the "detox tank." He then put the suitcases in a locked room in the station, opened them to inventory the contents and discovered marijuana. Defendant insists that there was no justification for opening the suitcases, rather than simply listing them in an inventory as "suitcases."

The Roseburg Police Department has a small safe in which it keeps prisoners' valuables; the suitcases were too large to fit in it. The police practice is to keep such large items in a small booking room in the jail area of the station. There is no suggestion in this case that the practice is a subterfuge.

The room in which the suitcases were placed is accessible only through one of two locked doors; only the police have keys to the doors. However, officers at times bring prisoners being booked into the room and may occasionally leave a prisoner alone there. The record does not show what facilities there are in the room for securing a prisoner left in it or how long the prisoner might be by himself. The state asserts that concerns that the suitcases might contain valuables, contraband or weapons which another prisoner could take while left alone made the search reasonable. ²

Oregon courts have had two occasions to address the question of what kind of and how extensive a search may be made of the person and effects of a person taken into protective custody for detoxification. In State v. Newman, 292 Or. 216, 637 P.2d 143 (1981), cert. den. 457 U.S. 1111, 102 S.Ct. 2915, 73 L.Ed.2d 1321 (1982), defendant, a 19-year-old woman, was taken into protective custody while in an obviously intoxicated condition in a car improperly parked on a city street. One of the officers, in an attempt to determine who she was, searched her purse at the scene for identification. During that search, he found and seized the drugs which later led to the criminal charges against her. There was no suggestion that the search of the purse was necessary to protect the officers or to assist in treating defendant's condition. See State v. March, 1 Or.App. 351, 462 P.2d 459 (1969). Thus, the issue presented was a narrow one. The Supreme Court described it this way:

" * * * 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? " 292 Or. at 221, 637 P.2d 143. (Emphasis in original.)

The answer, the court decided, turned on whether the search was "reasonable." 292 Or. at 221, 637 P.2d 143. The court held that it was not. It explained its reason simply: "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 holding facility." 292 Or. at 222, 637 P.2d 143.

The court's holding in Newman was carefully limited to the facts of the particular case before it, but certain guidelines nonetheless emerged: (1) because the detoxification "hold" was a civil rather than a criminal process, criminal law concepts such as a search incident to an arrest are inapplicable; (2) any search of the person or effects of a person being held must relate to a legitimate, non-criminal investigative purpose and can only be as intrusive as is necessary to effectuate that purpose.

The foregoing principles were applied in this court's opinion in State v. Lawrence, 58 Or.App. 423, 648 P.2d 1332, rev. den. 293 Or. 801, 653 P.2d 999 (1982), where the defendant was also a person taken into custody for detoxification. At the jail, as a part of the booking process, he was searched and his property inventoried. Found on his person was a closed clear plastic box containing a piece of white plastic drinking straw, closed at both ends; the straw was apparently opague. Officers opened the box, took out the straw, looked inside it and found the drug which led to criminal charges against the defendant.

This court found the search of the straw to be too intrusive. We said:

"Given the fact that the purpose of ORS 426.460 is to protect intoxicated persons by keeping them in custody for a limited period (48 hours), rather than treating them as criminals, it would be anomalous to treat them the same as one in full custody arrest for a criminal offense. What is reasonable in the latter case may not be in the former. Although the issue is not presented here, it would seem reasonable for an officer taking an intoxicated person into custody to conduct a limited 'pat-down' search for weapons to ensure the safety of the officer, if the officer has a legitimate concern. * * * It is also reasonable for the booking officer to inventory (see ORS 133.455) the property of the intoxicated person when he will be held in jail, even though not booked for a crime, in order to protect his property and to maintain the security of the detention facility.

"However, the inventory process in noncriminal, nonemergency cases should be less intrusive than that considered reasonable in criminal cases. Once a closed container is taken from the person during inventory of his property and is in the exclusive control of the police, it is unreasonable to open the container and seize its contents without a warrant unless the contents are in plain view and are identified as contraband without the necessity of laboratory analysis." 58 Or.App. at 430, 653 P.2d 999. (Footnote omitted.)

In Lawrence, and in Newman, the key inquiry was: Is this particular search reasonable, both in terms of scope and intensity, by virtue of the circumstances of the detoxification hold? Under the facts of each of those cases, the answer was "No." We turn now to the present case. The issue in the present case, in Newman and Lawrence terms, is: Was it reasonable for the police in this case to search the two unlocked pieces of luggage taken from defendant and stored in a room where criminal arrestees would be alone from time to time?

The answer is "Yes." As was true in Newman and Lawrence, no circumstances of defendant's own condition required this search. All that was reasonable was bringing the luggage with defendant to the jail and then entering an inventory of "two pieces of luggage, unlocked." But the place where the trial judge was entitled to find, from the testimony, ³ that circumstances then required storage of the luggage, made its search reasonable.

Unlocked luggage in a room where arrestees might be left alone presents an obvious danger; if the luggage contains any weapon or device an arrestee might use to attack an officer or effect an escape, the police need to remove it. There is a legitimate concern that the luggage might contain such items; a search is the only way to determine the answer. We therefore hold that--under the circumstances presented here--a...