State v. Lippert , 112 Or. App. 429 ( 1992 )

BUTTLER, P. J.

The state appeals from an order granting defendant’s motion to suppress the contents of a paperfold removed from defendant’s pocket after he had been taken into protective custody for detoxification. ORS 426.460.¹ The paperfold was found to contain cocaine. The question is whether that evidence can be used in a criminal prosecution.

Officer Pfaff was dispatched to a fraternal club, where he encountered defendant sitting on the sidewalk, highly intoxicated; he had twice been removed from the club by the manager. Instead of arresting defendant for criminal trespass and resisting arrest, the officer decided to “give him a break” by taking him to jail on a “civil detox hold.” When defendant became belligerent and attempted to get loose, he was handcuffed. En route to the jail, Pfaff observed him trying to reach into his right front pants pocket. At the jail, defendant was removed from the patrol car and placed in a holding cell. As a part of the jail’s standard procedure, defendant’s pockets were emptied and the contents were recorded. The pocket that defendant had been trying to reach into contained a small paperfold. Pfaff recognized it as a kind of container typically used to carry cocaine. It had “little corners turned in and folded underneath,” which distinguished it from other pieces of paper that a person might happen to have folded in a pocket. When Pfaff opened it, he saw a white powdery substance that later tested positive for cocaine.

Defendant was indicted for possession of a controlled substance. He moved to suppress the property seized during the intake process, and the motion was granted. The trial court held that, although Pfaff had grounds to arrest defendant at the scene, his decision to take defendant into custody under the civil detoxification statute precluded the use of the property as evidence in this criminal proceeding. The state appeals, contending that the trial judge’s conclusion was based on an overly broad reading of case law. We agree with the trial court and affirm.

Several appellate opinions have examined the admissibility of evidence seized in searches in noncriminal, non-emergency situations when an individual has been involuntarily taken to a detoxification facility pursuant to ORS 426.460. In all of them, the evidence was held to be inadmissible. In State v. Newman, 292 Or 216, 637 P2d 143 (1981), cert den 457 US 1111 (1982), the defendant had been taken into custody on a “civil hold,” because she was found intoxicated in a disabled car at 5:30 a.m. She was a young woman. She refused to provide identification to the officer. The officer found a woman’s purse in her car, opened it without her consent and found her driver’s license and drugs. His sole purpose in opening her purse was to find out who she was, with the idea that he might want to notify her parents. The court held that the warrantless search of the purse violated Article I, section 9, and that the evidence obtained could not be used against her. The court said that the privacy interest in a purse “is probably greater than in any other property except the clothing worn by a person.” 292 Or at 222.

Newman was followed by State v. Perry, 298 Or 21, 688 P2d 827 (1984), in which the defendant, who had been observed to be disabled by intoxication in front of a bus station, was taken to the police station, because no treatment facility was available. After placing him in the “detox area,” an officer brought his suitcases into the booking room and conducted an “inventory search,” during which he found a bag of marijuana. The court held that the evidence was not admissible in the criminal prosecution.

In State v. Okeke, 304 Or 367, 745 P2d 418 (1987), the intoxicated defendant had been taken to a private detoxification facility (Hooper Center), which operated under contract with Multnomah County. The night supervisor opened defendant’s purse and found a small pistol. On appeal from a conviction for possession of a concealed weapon, the court held that the evidence could not be used in a criminal prosecution. The court said:

“Today’s decision also does not deal with evidence found in a search upon individualized probable cause. It deals with the prosecutorial use of evidence seized in a routinized, unconsented search of the belongings of a person who has been detained by public officers not on suspicion of criminal conduct but ostensibly for the person’s own good. The legislature’s purpose in ORS chapters 426 and 430 was to decriminalize intoxication and instead offer its victims protective facilities until its disabling effect has worn off. We understand Hooper Center’s concern that its personnel may have to take some steps that can constitute a ‘search’ of an intoxicated person’s effects for the person’s safety and that of the facility and other inmates. It would, however, contradict the legislative purpose and Article I, section 9 of the Oregon Constitution if an intoxicated person could be prosecuted on evidence seized when the person is taken by police officers to involuntary confinement in an official ‘treatment facility’ rather than to a police station, as in Perry.” 304 Or at 373. (Emphasis supplied.)

In State v. Lawrence, 58 Or App 423, 648 P2d 1332, rev den 293 Or 801 (1982), the intoxicated defendant had been taken into civil custody, taken to the county jail and put through the same booking process as one who had been charged with a crime. Under the jail’s procedures, both types of detainees were subjected to a thorough search. During that process, the officer found a clear plastic box containing a segment of a white plastic drinking straw with gray pieces of tape closing each end. He opened the box, took out the straw, shook it and held it up to the light. The gray tape was then removed, and small pink tablets were observed. The officer believed them to be contraband and submitted them for analysis, which confirmed his belief: they contained LSD, a controlled substance. We held that the evidence could not be used in the subsequent criminal prosecution. In State v. Perry, supra, the Supreme Court approved our reasoning and result and quoted this language from our opinion in Lawrence:

“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. * * * It is * * * 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, non-emergency 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. (Footnote omitted.)

We see no difference between Lawrence and this case: In both, the officers observed containers that they reasonably believed contained controlled substances and, in both, they confirmed the contents through chemical analysis, resulting in the defendant’s prosecution for possession of those substances. In Lawrence, we held that the evidence was inadmissible in the ensuing criminal prosecution. The dissent does not cite one case that holds that evidence so obtained may be used to prosecute the detainee. There are none.²

The trial court was correct in suppressing the evidence. The dissent would hold that the evidence is admissible but ignores the warning in State v. Okeke, supra, that to permit prosecution of a person under these circumstances would run afoul of both the legislative purpose in enacting the statutes that permit the seizure and detention of intoxicated persons and Article I, section 9.

Affirmed.

1 ORS 426.460 provides, in part:

“(1) Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent homo or to a treatment facility by the police. However, if the person is incapacitated, the health of the person appears to be in immediate danger, or the police have reasonable cause to believe the person is dangerous to self or to any other person, the person shall be taken by the police to an appropriate treatment facility. A person shall be deemed incapacitated when in the opinion of the police officer or director of the treatment facility the person is unable to make a rational decision as to acceptance of assistance.

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“(3) In the absence of any appropriate treatment facility, an intoxicated person or a person under the influence of controlled substances who would otherwise be taken by the police to a treatment facility may be taken to the city or county jail where the person may be held until no longer intoxicated, under the influence of controlled substances or incapacitated.”

2 The dissent’s reliance on State v. Westlund, 302 Or 225, 729 P2d 541 (1986), is almost whimsical. There, the defendant claimed that the police were required to take him into civil custody, because he was obviously intoxicated, rather than wait until he entered his car and drove off. The court held, as did we, that the police were not required to do that. The statement quoted in the dissent, 112 Or App at 439, was made in that context.