State v. Williams

• Citation: 99 Adv.Sh. 305,522 P.2d 1213,17 Or.App. 513
• Parties: STATE of Oregon, Respondent, v. Anita WILLIAMS, Appellant.
• Decision Date: 28 May 1974
• Court: Court of Appeals of Oregon

Page 1213

522 P.2d 1213

17 Or.App. 513

STATE of Oregon, Respondent, v. Anita WILLIAMS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted April 18, 1974.

Decided May 28, 1974.

Kevin P. O'Connell, Portland, argued the cause for appellant. With him on the brief were O'Connell, Goyak & Haugh, P.C., Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

FOLEY, Judge.

Defendant was arrested on a prostitution charge. While she was being taken to jail, officers searched her purse and seized a handgun and a small amount of heroin. The gun was in plain sight as soon as the purse was opened. The heroin was inside a folded dollar bill that was inside a zippered interior compartment in the purse. She was charged with prostitution, carrying a concealed weapon and criminal activity in drugs. She was convicted on the weapon and drug charges; the prostitution charge was dismissed. She appeals, contending the handgun and heroin were illegally seized.

Defendant argues that State v. Florance, 15 Or.App. 118, 515 P.2d 195 (1973), Sup. Ct. review allowed (1974), is controlling. However, we disagree with defendant that this case is controlled by Florance. Here, the arresting officer testified he opened defendant's purse to search for weapons. This is permitted incident to an arrest. State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962); State v. Florance, supra. The officer immediately saw a gun. The seizure of the gun was lawful, and defendant does not here claim the contrary.

Defendant instead complains about the officer's act of continuing to search through the purse, i.e., opening the zippered interior compartment that resulted in the seizure of the heroin. The officer testified he continued to search the purse after seizing the gun because they were looking for other weapons, such as razor blades or a small knife; the officer said it was common, in his experience, for prostitutes to carry such small weapons. This justified opening the zippered interior compartment.

Upon opening the interior compartment, the officer observed a dollar bill folded or rolled in what seemed like a very unusual manner. The officer's suspicions were aroused because it was also common, in his experience, for prostitutes to carry illegal drugs, and because he had previously seen illegal drugs in powder form carried inside folded paper money. These suspicions prompted the officer to squeeze the dollar bill in defendant's purse. He could tell by feel that the bill was folded around some kind of powder. Given these circumstances, at that point the officer had probable cause to believe the powder was an illegal drug. State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966). The seizure of the substance, which proved to be heroin, was lawful.

Affirmed.

SCHWAB, Chief Judge (specially concurring).

I concur with the majority opinion. However, in view of the fact that the state argues in this, as it has in other cases, that United States v. Edwards, --- U.S. ---, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), and United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), are contrary to State v. Florance, Or.App., 97 Adv.Sh. 2017, 515 P.2d 195 (1973), Sup.Ct. review allowed (1974), and are controlling, I think it advisable to discuss that issue.

The essence of our decision in Florance was that searches incident to arrest are subject to some limitations, and that inventory searches when an arrested person is placed in jail are likewise subject to limitations. The essence of the state's argument is that searches incident to custody, that is, both searches incident to arrest and inventory searches of an arrestee should not be subject to any limitations.

In order to precisely identify what is here involved, I first note what is not involved.

We are not dealing with a probable-cause search, that is, a search based on a well-warranted suspicion, State v. Keith, 2 Or.App. 133, 465 P.2d 724, Sup.Ct. review denied (1970). There are situations in which an officer will acquire information that furnishes probable cause to arrest and search. Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); State v. Murphy, 2 Or.App. 251, 465 P.2d 900, Sup.Ct. review denied, cert. denied 400 U.S. 944, 91 S.Ct. 246, 27 L.Ed.2d 248 (1970). As we said in State v. Temple, 7 Or.App. 91, 95, 488 P.2d 1380, Sup.Ct. review denied (1971), cert. denied 406 U.S. 973, 92 S.Ct. 2423, 32 L.Ed.2d 674 (1972), '* * * the same factors usually create sufficient probable cause to justify an arrest, a search, a seizure, or any combination thereof * * *.' This is not such a situation. Here, the officer's probable cause to arrest defendant for prostitution cannot also be regarded as probable cause to search her purse simply because the record establishes no basis for any belief that evidence of the crime of prostitution would be in the purse.

Probable-cause searches at the time of an arrest are sometimes loosely called searches incident to arrest. That is an unfortunate and potentially confusing label. As I use the term, 'search incident to arrest,' herein, I mean a search that is permissible at the time of an arrest even though there is no independent probable cause to search.

We are not here dealing with any claim that defendant's arrest was invalid. In order for there to be a valid search incident to arrest--as I have defined that term--there must be a valid arrest. If the arrest is invalid, a search incident thereto is also invalid. State v. Rater, 253 Or. 109, 453 P.2d 680 (1969); State v. Roderick, 243 Or. 105, 412 P.2d 17 (1966). By contrast, when there is probable cause to arrest and/or search, there need not be an arrest before there can be a search, State v. Murphy, supra; but as already noted, the search in this case cannot be sustained on a probable-cause basis.

Finally, we are not here dealing with any claim that the search exceeded the spatial limits of a search incident to arrest. Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), holds that such a search must be spatially limited to the person of the arrestee and the area within his or her reach.

Against this background, the question presented is: When there has been a valid custodial arrest, but the police have no probable cause to search the arrestee, what is the permissible intensity of an appropriately spatially limited search incident to the arrest?

A. The Federal Rule

The federal courts would hold that there is no limit on the permissible intensity of searches and seizures incident to arrest. United States v. Edwards, supra; Gustafson v. Florida, supra; United States v. Robinson, supra. Robinson holds that once a lawful custodial arrest has taken place a search incident to the arrest requires no further justification and can be of unlimited intensity. Gustafson holds that even though a police officer has no evidentiary or protective purpose for the search, a search incident to a valid custodial arrest is nevertheless permissible. Edwards holds that like searches incident to arrest, seizures incident to arrest are also unlimited; even '* * * without probable cause, the authorities were entitled at that point * * * (after an arrest) not only to search Edwards' clothing but also to take it from him and keep it in official custody * * *.' --- U.S. at ---, 94 S.Ct. at 1237, 39 L.Ed.2d at 776.

Under the federal rule, regardless of the nature of the offense that prompts a custodial arrest, ¹ the arrestee is deemed to have forfeited all privacy rights. Everything in his possession can be thoroughly searched and taken from him, Robinson, Gustafson, and even his clothing can be taken from him, Edwards. Presumably, under the federal rule, the police can seize everything from an arrestee--even items of no possible evidentiary value that could only be used to maximize the comfort of the arrestee, such as items customarily found in a woman's purse. With no motivation other than curiosity, or the awareness that if a person shucks enough oysters he will eventually find a pearl, the police could read through intensely personal items the arrestee had been carrying, such as a diary. ² The unlimited intensity of a search incident to arrest would presumably authorize routine body cavity searches. And carried to its logical extreme, the federal rule would authorize the police to extract a blood sample from every arrestee, so long as medically acceptable procedures were used; ³ the blood samples could then be the basis of a charge such as criminal use of drugs. ⁴

B. The Oregon Rule

The decisions of the Oregon Supreme Court are not in accord with Robinson, Gustafson and Edwards. By contrast to the federal rule of unlimited intensity of a search incident to arrest, the Oregon decisions have consistently and repeatedly held that there are limits on the permissible intensity of a search incident to arrest.

The leading case is State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962). In that case, after stating, 'In general, a mere exploratory search accompanied by an arrest upon some convenient charge is held bad * * *,' 231 Or. at 266, 373 P.2d at 395, the Supreme Court stated five limitations on searches and seizures incident to arrest, four of which are:

'(1) Purpose of the (search incident to) arrest exception. Search and seizure contemporaneously with an arrest is the only exception to the constitutional requirement of a warrant prior to a search of one's home. The exception is necessary to secure the safety of the police and the custody of the prisoner * * *. It is also necessary to enable enforcement officers to gather the fruits of the crime, the implements thereof, and possibly to prevent the destruction of evidence thereof * * *. Properly employed, the exception is limited by the...