State v. Wilcox ( 2023 )

756 December 21, 2023 No. 39
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JASON THOMAS WILCOX,
Respondent on Review.
(CC 19CR75468) (CA A175891) (SC S070063)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 12, 2023.
Rebecca M. Auten, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
John Evans, Deputy Public Defender, Office of Public
Defense Services, Salem, filed the brief for respondent
on review. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section.
JAMES, J.
The decision of the Court of Appeals is vacated, and the
case is remanded to the Court of Appeals for further pro-
ceedings consistent with this opinion.
______________
* On appeal from Washington County Circuit Court, Andrew R. Erwin,
Judge, 323 Or App 271, 522 P3d 926 (2022).
Cite as 371 Or 756 (2023) 757
758 State v. Wilcox
JAMES, J.,
This criminal case arises from the noncriminal sei-
zure of defendant, pursuant to ORS 430.399(1), the public
intoxication law, which provides that “[a]ny person who is
intoxicated or under the influence of controlled substances
in a public place may be sent home or taken to a sobering
facility or to a treatment facility by a police officer.” When
officers seized defendant for purposes of taking him to a
detox facility, they also seized, then inventoried, his back-
pack, which revealed a butterfly knife. Having previously
been convicted of a felony, defendant was ultimately con-
victed of violating ORS 166.270(2), felon in possession of a
restricted weapon.
The Court of Appeals held that the seizure of defen-
dant’s backpack was unlawful under Article I, section 9, of
the Oregon Constitution. State v. Wilcox, 323 Or App 271,
276, 522 P3d 926 (2022). In doing so, the court relied on its
decision in State v. Edwards, 304 Or App 293, 466 P3d 1034
(2020), which involved the seizure and search of a backpack
following a criminal arrest. The state petitioned for review,
arguing that the Court of Appeals erred, both in this case,
and in Edwards. We allowed review and now vacate the
decision of the Court of Appeals and remand for further
proceedings consistent with the reasoning of this opinion.
The Court of Appeals approached its analysis from a mis-
taken starting point—this case involves an administrative
seizure, not a criminal seizure. As such, it is unnecessary to
consider whether Edwards was correctly decided.
BACKGROUND
The undisputed facts were set forth by the Court of
Appeals:
“Defendant went to a police station to report being assaulted
at a nearby transit station. Officer Baisley and his part-
ner, Deputy Quick, responded. When they arrived to take
defendant’s statement, defendant had been loaded into an
ambulance and was ready for transport to a hospital. The
officers followed him to the hospital and waited until he
was available to discuss the alleged assault. While waiting
to enter the exam room, they could hear defendant yell-
ing at the nurses. As Baisley later recalled, defendant was
Cite as 371 Or 756 (2023) 759
‘[d]isgruntled, argumentative.’ When Baisley and Quick
were able to enter the exam room, the officers got the sense
that defendant was intoxicated. Defendant made it clear
that he did not want to talk to them about the alleged
assault, so they turned to leave. As they were crossing the
parking lot to their vehicle, hospital security stopped the
officers to ask for help. Security told the officers that defen-
dant was refusing medical treatment and they were going
to discharge him. The officers returned to the exam room,
placed defendant in handcuffs, and advised him that he
was being taken into custody for transport to a detox facil-
ity. Baisley and Quick walked defendant out to the patrol
car. Defendant had a backpack with him. Quick conducted
a search of defendant’s person and then placed him in the
patrol car. Meanwhile, Baisley conducted an inventory of
defendant’s backpack.
“During the inventory search, Baisley found a butterfly
knife. Because butterfly knives are restricted weapons, the
officer did a criminal history check on defendant and found
that he had previously been convicted of a felony. Quick
then arrested defendant for the crime of felon in possession
of a restricted weapon, and the officers transported him to
the jail rather than the detox facility. Baisley conducted an
additional inventory search of the backpack at the jail and
found a second butterfly knife.”
Wilcox, 323 Or App at 272-73 (brackets in Wilcox). Defendant
was later charged with being a felon in possession of a
restricted weapon, ORS 166.270(2), and he moved to sup-
press the evidence discovered in his backpack. The trial
court denied that motion and, thereafter, entered a judg-
ment of conviction.
On appeal of that conviction to the Court of Appeals,
defendant advanced multiple arguments, only two of which
are pertinent to our discussion. First, defendant argued that
the warrantless seizure of his backpack violated his rights
against unreasonable search and seizure under Article I,
section 9. Second, defendant argued that the search of his
backpack also violated his rights under Article I, section 9.
The Court of Appeals viewed the first issue—the seizure of
the backpack—as dispositive and did not reach the question
of the legality of the search. Id. at 273-74.
760 State v. Wilcox
In holding the seizure unlawful, the Court of
Appeals cited to our decision in State v. Juarez-Godinez, 326
Or 1, 6, 942 P2d 772 (1997), for the proposition that “a ‘sei-
zure’ of property occurs when police physically remove prop-
erty from a person’s possession.” Wilcox, 323 Or App at 275
(emphasis in Juarez-Godinez ).
Next, the Court of Appeals summarized its decision
in Edwards:
“In Edwards, the defendant had an outstanding arrest
warrant for failure to appear. A police officer spotted her
riding a bicycle, wearing a backpack. The officer stopped
her and arrested her on the warrant. The backpack was
removed from defendant, and she was placed in handcuffs.
Once removed, the backpack’s contents were examined
pursuant to a local inventory policy * * *. The defendant
moved to suppress the evidence obtained from the search
of her backpack on the ground that it had been unlawfully
seized without a warrant. The state argued that the sei-
zure was lawful because arresting officers have authority
to seize the property of an arrestee. The trial court agreed.
“We reversed. We concluded that, because the seizure
of the backpack occurred without a warrant, the state had
the burden of showing that the seizure was justified by a
well-established exception to the warrant requirement.
* * * [A] person’s lawful arrest does not allow for the seizure
of all the arrestee’s personal property. It may authorize a
seizure of ‘narrow categories’ of personal effects, such as
effects related to the probable cause for arrest or readily
apparent contraband. But the defendant’s backpack did not
fall within such narrow categories.”
Wilcox, 323 Or App at 274-75 (citations omitted).
The Court of Appeals concluded that the seizure of
the backpack was unlawful, viewing Edwards as controlling:
“In this case too, the state’s only argument is that its sei-
zure of defendant’s backpack was justified by its lawful sei-
zure of his person for the purpose of transporting him to
detox. As we observed in Edwards, with the exception of
certain narrow categories of property, the lawful seizure of
a person does not justify the warrantless seizure of the per-
son’s property. And, as in Edwards, the state in this case
has not established that defendant’s backpack falls within
Cite as 371 Or 756 (2023) 761
any of the narrow categories of effects that lawfully may be
seized upon the seizure of the person.”
Id. at 276 (citation omitted).
Before us, the state advances several arguments
as to why, in its view, the Court of Appeals erred. First,
the state argues that the backpack was not seized. As the
state argues, “[d]ue to his custodial status, defendant was
not able to exercise all the property rights that he other-
wise would have had with respect to his backpack. But that
was a result of the officers’ interference with his liberty, not
any interference with his possessory interests in the back-
pack.” (Emphases in original.) In essence, the state appears
to argue that although defendant’s person was seized, his
property was not also seized.
Additionally, the state argues that, because the
officers did not interfere with defendant’s right to direct
the control of his backpack, it was not a seizure, and alter-
natively, if it was a seizure, it was a lawful seizure, either
because it was analogous to consent or because it was lawful
to seize the backpack incident to lawfully taking defendant
into custody pursuant to ORS 430.399. The state argues:
“Under the circumstances here, the police did not inter-
fere with defendant’s right to dispose of his backpack in
a way other than taking it with him into police custody.
Initially, defendant never attempted to exercise any right to
transfer possession or otherwise dispose of the backpack, so
the officers never interfered with that right. The trial court
found that defendant ‘ha[d] the backpack with him’ when
he was in custody, up until he was placed in the car; it was
therefore indisputably within his immediate possession and
control at that time. And he never asked to or attempted to
dispose of the property in some way other than bringing it
with him. To the contrary, he kept it with him when leaving
the hospital and walking to the police car.”
(Brackets and emphasis in original.)
Finally, the state argues that the Court of Appeals’
decision in Edwards is wrong. According to the state, the
“Edwards court first determined—in the abstract—that a
seizure occurs when police physically remove property from
an individual. In so doing, the court erred by omitting the
762 State v. Wilcox
first step of the seizure analysis—identifying the possessory
interest at issue.” Here, the state argues, the seizure of the
backpack was derivative of the lawful seizure of defendant’s
person, what the state terms “a necessary byproduct of the
police taking defendant into custody.”
Defendant, in turn, argues that the Court of
Appeals’ seizure analysis was correct. Additionally, defen-
dant renews his challenge to the search of the backpack—
the issue the Court of Appeals did not reach. Defendant asks
us to review a wide array of Court of Appeals decisions in
the area of inventory searches and hold that those decisions
are “in unmitigated conflict with this court’s long-standing
rule that officers may not open closed, opaque containers
during an inventory.” Defendant argues that “[t]his court
should finally disavow the Court of Appeals’ rule and reaf-
firm its own precedent.” The state, in response, argues that
defendant’s call for a sweeping reexamination of Court of
Appeals decisions is inappropriate in this case, given that
the Court of Appeals did not rule on the search issue.
ANALYSIS
Article I, section 9, of the Oregon Constitution
provides:
“No law shall violate the right of the people to be secure in
their persons, houses, papers, and effects, against unrea-
sonable search, or seizure; and no warrant shall issue but
upon probable cause, supported by oath, or affirmation,
and particularly describing the place to be searched, and
the person or thing to be seized.”
We begin with the state’s argument that the back-
pack was not seized. Property is “seized,” for purposes of
Article I, section 9, when there is “a significant interference
with a person’s possessory or ownership interests in prop-
erty.” State v. Owens, 302 Or 196, 207, 729 P2d 524 (1986). As
we have noted in the past, that definition is sparse, and “our
cases do not offer much in the way of explanation.” Juarez-
Godinez, 326 Or at 6. However, we have clarified that the
“seizure of an article by the police and the retention of it
(even temporarily) is a significant intrusion into a person’s
possessory interest” in that property. Owens, 302 Or at 207.
Cite as 371 Or 756 (2023) 763
The state’s first argument in this case is that, “[d]ue
to his custodial status, defendant was not able to exercise all
the property rights that he otherwise would have had with
respect to his backpack. But that was a result of the officers’
interference with his liberty, not any interference with his
possessory interests in the backpack.” (Emphases in origi-
nal.) That argument incorrectly makes the issue of whether
there was an interference with a possessory interest contin-
gent on the reason for that interference.
Whether the seizure of property is derivative of
the seizure of the person will certainly factor heavily into
whether the seizure of the property was lawful—under the
incident to arrest exception, for example—but it does not
affect whether the property was seized in the first instance.
Said another way, the reason for a seizure will affect the
reasonableness, or lawfulness, of the seizure, but it does not
affect whether a seizure occurred. Whether something is
seized is determined by considering the state’s interference
with a person’s possessory or ownership interests, not the
rationale for the interference, and regardless of whether the
state simultaneously interfered with other interests, such
as liberty interests.
The state then argues that
“[D]efendant never attempted to exercise any right to
transfer possession or otherwise dispose of the backpack,
so the officers never interfered with that right. * * * [H]e
never asked to or attempted to dispose of the property in
some way other than bringing it with him. * * * Thus, the
officers did not interfere with defendant’s right to dispose
of the property in some other manner.
“Moreover, the officers did not otherwise engage in any
‘show of authority’ that would lead a reasonable person to
believe that defendant could not ask to dispose of the back-
pack in a different way.”
(Citation omitted).
We disagree with that framing of the issue in two
respects. First, to the extent that the state’s argument can
be read to assert that whether an item is seized or not is
determined by a defendant’s invocation of a right, that is
764 State v. Wilcox
incorrect. A person need not affirmatively assert his or her
possessory or privacy rights in property. The focus of our
search and seizure analysis is first and foremost on the
actions of the state. When the state interferes with pos-
sessory or ownership interests, even temporarily, the state
has effectuated a seizure, regardless of whether defendant
objected to, or protested, that interference.
Second, we disagree that the state did not interfere
with a possessory interest in this case. A “possessory inter-
est” is defined as “[t]he present right to control property,
including the right to exclude others, by a person who is not
necessarily the owner.” Black’s Law Dictionary 1353 (10th
ed 2014). As such, a possessory interest is not merely the
right to possess an object, it also includes the right to say
who else will not possess the object. Thus, we have said that
“a ‘seizure’ of property occurs when police physically remove
property from a person’s possession.” Juarez-Godinez, 326
Or at 6 (emphasis in original). The act of removal not only
deprives a person of possession, it interferes with their right
to control who does not possess the item.
When a person is seized and taken into custody,
their articles of clothing, and the items in their pockets
may, or may not, be seized at the moment of their bodily
seizure—a point we need not decide here. But when, after
seizing a person, an officer removes items of clothing from
the person, or items from the person’s pockets, to separate
those items from the individual, even temporarily, or holds
those items as evidence or otherwise, those items have
been seized. Removing those items and reducing them to
exclusive control of law enforcement has interfered with the
person’s possessory rights—their right to possess the item
themselves, and their right to exclude others from possess-
ing the items.
We routinely discuss the “seizure” of property inci-
dent to arrest. For example, in State v. Lowry the “defendant
was handcuffed, [and] another officer took from defendant’s
clothing a small, closed, transparent amber pill bottle which
contained a white powder.” 295 Or 337, 339, 667 P2d 996(1983) overruled on other grounds by Owens, 302 Or 196, 729
P2d 524 (1986). We noted that “the pill bottle was seized in
Cite as 371 Or 756 (2023) 765
the course of arresting defendant for a crime with which the
bottle had nothing to do.” Id. at 347 (emphasis added).
The pertinent point in time for our inquiry in this
case is the moment just before the officer opened the back-
pack to search it. At that moment, was the backpack seized?
The answer is yes. Regardless of when the backpack might
have theoretically been seized, and regardless of whether it
had originally been in defendant’s control when his person
was seized, at the moment before the officer opened it, the
backpack had indisputably been removed from defendant’s
possession and was in the exclusive possession and control
of law enforcement. Just as the pill bottle in Lowry was
seized, despite Lowry’s person being previously seized, here
whether defendant’s right to personally hold the backpack
had been diminished due to custody, separating the back-
pack from defendant and reducing it to the exclusive control
of law enforcement interfered with defendant’s possessory
right to determine who was excluded from possessing the
backpack. That was a seizure.
With that explanation, we turn to the central ques-
tion in this case: whether the backpack was lawfully seized.
The path to answering that question begins with first prop-
erly characterizing what kind of seizure occurred.
Article I, section 9, protects against “unreasonable”
search and seizure. Reasonableness is ensured by requir-
ing “a method of extra-executive authorization in advance of
searches or seizures.” Nelson v. Lane County, 304 Or 97, 104,
743 P2d 692 (1987). As we said in State v. Weist, 302 Or 370,
376, 730 P2d 26 (1986), one function of Article I, section 9,
“is to subordinate the power of executive officers over the
people and their houses, papers, and effects to legal controls
beyond the executive branch itself.”
Article I, section 9, ensures reasonableness by
controlling the power of executive officers in two different
respects. For seizures and searches conducted for crim-
inal investigatory purposes, control is typically found in
the warrant requirement or a judicially recognized excep-
tion to the warrant requirement. See Nelson, 304 Or at 104(“Compliance with the warrant clause, or its few exceptions
766 State v. Wilcox
as this court has interpreted them, itself provides the nec-
essary authorization for searches or seizures intended to
discover evidence of crime.”). Warrantless seizures and
searches “ ‘are per se unreasonable unless they fall within
one of the few specifically established and limited excep-
tions to the warrant requirement.’ ” State v. McCarthy, 369
Or 129, 141, 501 P3d 478 (2021) (quoting State v. Bliss, 363
Or 426, 430, 423 P3d 53 (2018)).
But, a seizure or search of persons or property can
occur outside the criminal investigatory process, in what we
have termed an “administrative” seizure or search. See State
v. Atkinson, 298 Or 1, 8-11, 688 P2d 832 (1984) (establishing
analytical framework for assessing the constitutionality of
an administrative search or seizure). In that context, we
require that extra-executive control be provided by appro-
priate legislatively imposed limitations sufficient to guar-
antee constitutional reasonableness. As we noted in Weist,
“[o]ne measure of control is found in a carefully limited judi-
cial warrant; another is found in legislative enactments
defining and limiting official authority. Without these con-
trols, executive officers could define and exert their own
authority to search and to seize however widely they thought
necessary.” 302 Or at 376-77.
In Atkinson, we held that the validity of an admin-
istrative seizure or search is dependent on two steps. First,
we look for a “source of the authority,” that is, a law or ordi-
nance providing sufficient indications of the purposes and
limits of executive authority. 298 Or at 9. Atkinson involved
an administrative search of an impounded automobile
under former ORS 483.351 to 483.396 (1983) repealed by Or
Laws 1985, ch 338, § 978. Id. at 9. That statutory scheme
permitted the police to take custody of abandoned vehicles
and authorized a lien “on the vehicle and its contents to pay
storage and towing charges.” Id. (emphasis in original). In
analyzing the constitutionality of that statute, we began by
considering the grant of statutory authority—implicitly rec-
ognizing three potential levels of authority: none, limited,
or broad. Id. at 9-11. We explained that the authority to
seize property under that statutory scheme was broad and
Cite as 371 Or 756 (2023) 767
impliedly authorized a further inventory of the contents of
the vehicle. Id. at 9. In contrast, we noted that,
“where government officials are allowed only limited
authority to take temporary control of personal property—
such as to move an automobile after a traffic accident—the
officers’ authority does not extend to conducting a general
inventory of the automobile’s contents.”
Id. at 10 (emphasis added).
Second, under Atkinson, if a source of authority
exists, we next ask whether the seizure or search was “con-
ducted pursuant to a properly authorized administrative
program, designed and systematically administered so that
the [seizure or search] involves no exercise of discretion by
the law enforcement person.” Id. Thus, just as, in the crimi-
nal investigatory context, warrantless seizures and searches
are per se unreasonable unless they fall within one of the few
specifically established and limited exceptions to the war-
rant requirement, in the administrative context, seizures
and searches that occur without complying with the Aktinson
framework are, per se, unreasonable. We have applied those
principles in a variety of contexts: seizures and inventories
of property for noncriminal purposes, e.g., Atkinson, 298 Or
at 9-11; administrative seizures for sobriety checkpoints,
e.g., Nelson, 304 Or at 104-06; and seizures for detoxification
holds, e.g., State v. Perry, 298 Or 21, 688 P2d 827 (1984).
Here, the parties agree that defendant was brought
into police custody, not pursuant to a criminal investiga-
tion, but pursuant to ORS 430.399. That statute is noncrim-
inal. Until 1971, public intoxication was a criminal offense.
See former ORS 166.160 (1969) repealed by Or Laws 1971,
ch 743, § 432. Former ORS 166.160 provided:
“Any person who enters or is found in a state of intoxication
upon any railway engine, railway car, railway train, air-
craft, boat, landing wharf or depot of any common carrier,
or on any highway or street, or in any public place or build-
ing, or any person who creates, while in a state of intoxica-
tion, any disturbance of the public in any private business
or place, shall be punished upon conviction by a fine of not
less than $5 nor more than $100, or by imprisonment in the
county jail for a period not exceeding 50 days or both.”
768 State v. Wilcox
Thus, prior to 1971, bringing someone into police cus-
tody for public intoxication was appurtenant to a criminal
investigation.
However, in 1971, Oregon ended “the longstanding
practice of dealing with public drunkenness as a criminal
offense.” State v. Okeke, 304 Or 367, 370, 745 P2d 418 (1987).
That change reflected a move from a criminal deterrence
model to a public health model. Id. As we have stated, ORS
430.399 “was enacted for the purpose of decriminalizing such
crimes as ‘public intoxication,’ and to provide treatment for
substance abusers. Although the legislative history is rela-
tively sparse, we conclude that the interest protected by [ORS
430.399] is the prevention of injury to the intoxicated person
or to others.” State v. Westlund, 302 Or 225, 230, 729 P2d 541(1986) (footnote omitted).1 It follows then that, when a person
or property is seized, or searched, pursuant to ORS 430.399,
that seizure is administrative; accordingly, the appropriate
framework to consider the legality of that seizure or search is
not found in the criminal law, but in Atkinson.
Although the parties in this case have approached
the question of the search of the backpack as administra-
tive, neither of the parties has properly engaged with the
Atkinson analysis as it applies to the seizure of the back-
pack. Before us, the state argues that it would be unrea-
sonable to expect officers to leave property in a parking lot
when taking someone into custody. As the state argues,
“[r]equiring an intoxicated person to leave a bag with
unknown contents in a public parking lot would not only
leave the property unsecure but could also create a nuisance
or pose a safety hazard to anyone who might come upon the
bag.” We do not disagree that an officer might reasonably
want to bring property with a person to a detox facility, but
a perception of reasonableness by the executive actor is not a
substitute for the extra-executive control provided by “legis-
lative enactments defining and limiting official authority[,]”
as required by Article I, section 9. Weist, 302 Or at 376-77.
In the context of administrative seizure and search,
the issue is not the reasonableness of an individual officer’s
1
In Westlund, this court construed former ORS 426.460 (1985) renumbered
as ORS 430.399 (1995). 302 Or 225.
Cite as 371 Or 756 (2023) 769
desire, or even need, to seize property, it is the source of
authority for that seizure. We have explicitly rejected a gen-
eralized police community caretaking authority:
“There is no generic ‘community caretaking function.’
Whether law enforcement officers have specific functions is
a matter of statutory law. Whatever the existence, extent,
or nature of community caretaking functions, however,
mere exercise of any activity pursuant to one of them does
not insure compliance with Article I, section 9. Any intru-
sion of state power upon a constitutionally protected inter-
est, be it for civil or criminal investigative purposes, must
comply with constitutional standards.”
State v. Bridewell, 306 Or 231, 239, 759 P2d 1054 (1988).
Generalized concerns for liability, even reasonable ones, are
not the equivalent of a grant of authority to seize or search
property. Generally, for both administrative seizure and
search, Atkinson requires more—it requires the state to
adduce (1) a source of authority for the seizure or search and
(2) that the seizure or search was “conducted pursuant to a
properly authorized administrative program, designed and
systematically administered so that the [seizure or search]
involves no exercise of discretion by the law enforcement
person.” 298 Or at 10.
Like the parties, the Court of Appeals’ approach did
not grapple with the administrative nature of the seizure
here. The Court of Appeals began its analysis in this case
with its decision in Edwards, which concerned a seizure in
the criminal investigatory context, not the administrative
context. Given the framing and arguments of the parties,
that approach by the Court of Appeals is entirely under-
standable, but it is nevertheless mistaken. For that reason,
we conclude that the best remedy in this case is to vacate
the decision of the Court of Appeals, and remand to that
court for further proceedings so that court can benefit from
briefing by the parties that correctly conceptualizes the
issues consistent with this opinion. See e.g., State v. Guthrie,
304 Or 52, 54, 741 P2d 509 (1987) (vacating the Court of
Appeals’ decision and remanding to that court for further
proceedings where the Court of Appeals applied an incor-
rect legal theory). At that time, the parties, and the court,
can consider whether ORS 430.399, or some other source of
770 State v. Wilcox
authority, authorized the seizure of defendant’s backpack,
and, if so, whether that seizure was effectuated in accor-
dance with the requirements of Atkinson.
The decision of the Court of Appeals is vacated, and
the case is remanded to the Court of Appeals for further
proceedings consistent with this opinion.