State v. Westlund

• Court: Court of Appeals of Oregon
• Writing for the Court: GILLETTE; NEWMAN; Pollock; More than forty years ago
• Citation: 75 Or.App. 43,705 P.2d 208
• Decision Date: 11 October 1985
• Parties: STATE of Oregon, Respondent, v. Bernard John WESTLUND, Appellant. C83-01-30264; CA A28733.

Page 208

705 P.2d 208 75 Or.App. 43 STATE of Oregon, Respondent,
v.
Bernard John WESTLUND, Appellant. C83-01-30264; CA A28733. Court of Appeals of Oregon. Argued and Submitted Dec. 14, 1983.
Resubmitted In Banc June 6, 1985.
Decided Aug. 21, 1985.
Reconsideration Denied Oct. 11, 1985.

[75 Or.App. 44]

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Marc D. Blackman, Portland, argued the cause for appellant. With him on brief was Ransom, Blackman & Simson, Portland.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

[75 Or.App. 45] GILLETTE, Judge.

Defendant appeals his convictions for driving under the influence of intoxicants (DUII) and possession of cocaine, arguing, first, that the failure of the police to take him into civil custody for alcohol treatment

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before he drove made his DUII arrest unlawful and, second, that the warrantless testing of a powder in a vial taken from him at the time of his arrest was illegal. We agree only with the latter contention. We therefore affirm the DUII conviction and reverse and remand on the narcotics charge.

In the late afternoon of June 5, 1982, defendant was seen lying, apparently unconscious, under a motor vehicle near the corner of S.E. 7th and S.E. Mill in Portland. A person notified the Multnomah County Emergency Medical Center of defendant's condition, and the center dispatched an ambulance to investigate. An ambulance attendant found defendant conscious and determined that he was drunk. Fearing that defendant might try to drive, the attendant flagged down Portland Police Officer Taylor, who happened to be passing. Taylor had another errand, so she told Officer Minnis of the situation by radio. Minnis came to the location and parked two blocks away. He then watched defendant for five to seven minutes. During that time, defendant tried to change a flat tire and to take the old tire across the street and throw it into a dumpster. In the process, he staggered, could not control the tire and gave various other obvious indications of intoxication. Minnis concluded that defendant was intoxicated and Taylor, who happened by again, reached the same conclusion. Minnis was also aware that, if defendant drove, he would be a danger to himself or others. Neither officer intervened during that time.

After defendant replaced the tire, he got in his car, started it and began to drive away. Minnis immediately pulled him over. After he did poorly on field sobriety tests, Minnis arrested him for DUII. In the course of a search after the arrest, Minnis found a small brown vial in one of defendant's pockets. He seized it. The state crime laboratory determined that the vial contained cocaine. No one obtained a search warrant before opening the vial or before testing its contents.

[75 Or.App. 46] Defendant argues that ORS 426.460(1) ¹ required Minnis to take him into civil custody and transport him to a treatment facility before allowing him to drive his car. Minnis' failure to do so, he argues, escalated a civil problem into a criminal offense, contrary to the purpose of the statute and, he concludes, constituted police misconduct which precludes prosecuting him for DUII. The state concedes that Minnis "violated ORS 426.460(1) by not promptly taking defendant into 'protective civil custody' under the mandatory terms of the statute." We join with defendant and the state in disapproving that conduct. However, Minnis did not cause defendant to become intoxicated, did not suggest that he drive and did not furnish him an automobile. He simply passively observed. That was not entrapment or other illegality requiring dismissal. When defendant began driving, Minnis had a reasonable basis for stopping him and, after the stop, he had probable cause for the arrest. We see nothing in the statute which alters these facts. ² We turn to the validity of the search of the vial.

Because defendant was properly arrested for DUII, the search of his person

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incident to that arrest and the discovery of the brown vial were valid. Minnis' testimony established that, on the basis of his training and experience, he reasonably believed that the vial contained a controlled substance. He therefore had probable cause to seize the vial. Defendant argues, however, that, under State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983), the subsequent testing of the contents of the vial required a warrant. The state argues that defendant [75 Or.App. 47] did not raise this point in the trial court but moved to suppress evidence of the cocaine only on the grounds that Minnis had no probable cause to seize the vial and that Minnis had no right to open a closed container. We hold that defendant adequately raised the issue and that Lowry is controlling.

Defendant filed his motion to suppress before the Supreme Court's decision in Lowry. The motion attacked "the officer's warrantless opening of the vial, as opposed to its mere seizure," as a violation of the closed container doctrine. It is not clear that there is a "closed container doctrine" under the Oregon Constitution. See State v. Caraher, 293 Or. 741, 771, 653 P.2d 942 (1982) (Lent, J., dissenting, urging the adoption of a closed container rule). However, the heart of Lowry is its distinction between seizures and searches and its insistence that a valid warrantless seizure does not, in itself, justify a subsequent warrantless search. Defendant in his motion to suppress made that distinction and thereby adequately brought the issue to the trial court's attention. We turn now to the impact of Lowry on this case.

We note first that the facts are essentially identical to those of Lowry. In each case, the defendant was arrested for DUII and a valid search incident to that arrest turned up a vial containing a suspicious substance that was not related to the original arrest. The arresting officers seized the vials but did not immediately open them. They were later opened without a warrant and the contents proved, after testing, to be cocaine. In this case, but not in Lowry, the arresting officer testified that, on the basis of his training and experience, he believed before the search of the vial that it contained a controlled substance. In the light of the Supreme Court majority's rationale in Lowry, this difference in the facts is without decisional significance. ³

We have previously noted that Lowry is a troublesome case and that its analysis appears to be flawed in certain respects. For those reasons we refused to extend its apparent holding to somewhat different facts. State v. Flores, [75 Or.App. 48] 68 Or.App. 617, 627-34, 685 P.2d 999 (1984). The analytical flaws in Lowry do not, however, leave it without meaning or precedential significance. The Supreme Court used it to emphasize again the primacy of the warrant requirement in Article I, section 9, of the Oregon Constitution and the narrowness of the exceptions to that requirement. The specific holding of the case was simply an example of how limited the exceptions are.

"[T]he seizure of the bottle incident to a valid arrest and the subsequent testing of its contents are properly analyzed not as one but as two events. For 'probable cause' is not alone dispositive of those steps. The question is not simply whether probable cause to investigate, that is to say, to 'search,' the contents of the bottle did or did not exist, but whether there was any need to do so without a warrant.

"The constitutional text itself ties the phrase 'probable cause' to warrants. It seems never to become superfluous to repeat that the requirement of a judicial warrant for a search or seizure is the rule and that authority to act on an officer's own assessment of probable cause without a warrant is justified only by one

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or another exception. [Citations omitted.] The time to make the judicial determination whether there is probable cause for a search or a seizure, if time permits, is before the individual's privacy is invaded. A later adjudication upon a motion to suppress evidence, although necessary, does not undo the invasion, does not help persons who are cleared and never prosecuted, and colors the perception of 'probable cause' by what the search in fact revealed." 295 Or. at 346, 667 P.2d 996.

Simply put, Lowry requires that each step of a warrantless search or seizure be justified by an exception to the warrant requirement; it is irrelevant whether a previous or subsequent step is within an exception. The precise holding is that, once a suspect object is in an officer's control, any necessity for proceeding without a warrant has ended and the officer can do no more than "safeguard it and * * * obtain a speedy judicial decision" on whether there is probable cause for a further search. "[U]nless the substance is volatile the practical need to proceed without a warrant normally extends no further." 295 Or. at 347. The warrantless seizure does not justify a later warrantless search.

Although the Supreme Court's analysis in Lowry is [75 Or.App. 49] faulty, ⁴ its insistence on the warrant requirement and its specific holding are consistent with Oregon search and seizure law, although they may not be fully consistent with previous practice. Because the facts of this case are precisely the facts of Lowry, we are called upon to enunciate, if we can, a correct Oregon constitutional basis for the Lowry result. ⁵ Article I, section 9, prohibits the enactment of laws which violate the right of the people to be "secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." An unjustified invasion of a person's property is a trespass and, if the invasion is of a constitutionally protected place or thing and is by a public officer, it is a violation of the rights which the constitution protects. See State v. Lee, 120 Or. 643, 253 P. 533 (1927); Smith v. McDuffee, 72 Or. 276, 142 P....