State v. Askay , 96 Or. App. 563 ( 1989 )

BUTTLER, P. J.,

dissenting.

Because there is no basis on this record, and no trial court findings, to support the majority’s conclusion, I dissent. The issue is whether the search of Williams and the seizure of the paper bag from her coat pocket violated defendant’s Article I, section 9, rights. The trial court’s analysis rested on the proposition that, when defendant “handed” or “transferred” the bag to Williams, he ceased to have a “reasonable expectation of privacy” in it. That analysis, however, has been rejected as inappropriate under Article I, section 9: “[T]he privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right.” State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988). (Emphasis in original.) The trial court found only that defendant handed the bag to Williams; it did not find that he had intended to terminate his ownership in it, see Rich v. Runyon, 52 Or App 107, 112-13, 627 P2d 1265 (1981); accordingly, it did not conclude that defendant had abandoned the bag, as the majority suggests. If he had, his rights were not violated.

Because defendant had not abandoned the bag, Williams was a bailee, and defendant retained both a property and privacy right in it. State v. Tanner, 304 Or 312, 745 P2d 757 (1987). Accordingly, the warrantless search of Williams and the seizure of the bag from her were unlawful, unless the search was justified as incident to defendant’s arrest.

The trial court found that the officers had probable cause to arrest defendant for a crime involving violence directed at Williams, which was the officers’ stated justification for the arrest. The evidence and findings support that conclusion. Incident to that arrest, the officers were entitled to search defendant for their own protection and for evidence relevant to that crime, which, presumably, would include any kind of weapon that might have been used in assaulting Williams. Neither officer testified that he believed that Williams was armed or that the paper bag contained a weapon. There is no factual premise to justify the search as incident to defendant’s arrest for assault.

The state argues, and the majority agrees, that the search of Williams may be justified on the basis that, when the officers lawfully searched defendant incident to his arrest, they found some unused plastic syringes in a plastic bag, whereupon they then had probable cause to believe that drugs were involved, justifying defendant’s arrest for possession of a controlled substance. However, the possession of the syringes was not a crime and, in order to arrest defendant for possession of a controlled substance, the officers needed probable cause to believe that the paper bag that defendant had handed to Williams contained a controlled substance. If that had been the case, the officers would have been justified in searching further for evidence of that crime, even though they had not yet arrested him for that reason, State v. Owens, 302 Or 196, 729 P2d 524 (1986), and it would be at least arguable that seizure of the paper bag from Williams would have been permissible on the theory that defendant had constructive possession of it. See State v. Caraher, 293 Or 741, 653 P2d 942 (1982).

The difficulty with that analysis here is that there is no evidence, and no trial court findings, that either officer believed that defendant possessed, or that the bag contained, controlled substances at the time when they arrested and searched him, or that either officer formulated such a basis to himself at the time of the search and seizure. Even if there were an objective basis for the officers to believe that the crime of unlawful possession of a controlled substance had been committed by defendant, the officers must have had the subjective belief that defendant had committed that crime. It is not enough, as the majority would hold, that the officers could have believed that defendant possessed a controlled substance. In State v. Owens, supra, the court summarized the requirements to establish probable cause:

“Probable cause under the Oregon Constitution has both a subjective and an objective component. An officer must subjectively believe that a crime has been committed and thus that a person or thing is subject to seizure, and this belief must be objectively reasonable in the circumstances. The test is not simply what a reasonable officer could have believed when he conducted a warrantless search or seizure, but it is what this officer actually believed, based upon the underlying facts of which he was cognizant, together with his own training and experience. Neither is the test whether the officer articulates to the suspect the basis for a second ground for arrest. What is required is that the officer formulates such a basis to himself at the time he acts.” State v. Owens, supra, 302 Or at 204. (Emphasis in original.)

Given my conclusion that the evidence does not support any lawful basis for searching Williams and seizing the paper bag from her, I dissent.