State v. Brown , 291 Or. 642 ( 1981 )

CAMPBELL, J.

The issue in this case is: Can the police, without a warrant and without independent probable cause and exigent circumstances, search a closed container seized from the person of a lawfully arrested individual during the booking process at a place of detention? This is one of the questions we left for future consideration in State v. Florance, 270 Or 169, 192, 527 P2d 1202 (1974).¹

At approximately 2:30 a.m. on July 23, 1978, the defendant in his vehicle was stopped by a state police officer for making an improper left turn. The officer proceeded to give the defendant standard field sobriety tests. The defendant was then arrested for driving while under the influence of intoxicants and transported to the Tillamook County jail to be lodged and to take a breathalyzer test. At the jail the defendant requested permission to go to the men’s room. The corrections officer told the defendant to empty his pockets and put his possessions on the counter. The defendant’s property from his person included a flat metal cigarette box and a very small brown glass vial with a plastic top. The cigarette box is approximately 2 3/4 inches by 3 1/2 inches with a depth of 5/16th of an inch. It is painted white with black printing, which includes “The Balkan Sobranie Cigarettes,” “Made from the Finest Yenidje Tobacco,” and “Made in England.” The box is designed to hold 10 cigarettes. The brown glass vial is 11/8 inches deep and 1/2 inch in diameter.

The metal cigarette box was held shut by a piece of black electrician’s tape. While the defendant was in the men’s room, an officer opened the cigarette box and found a hand-rolled cigarette, small packets of white powder, a razor blade, a drinking straw, and a pack of cigarette papers. The packets were marked “1/4,” “1 g.,” and “1/2.” The small vial contained traces of a white powder.

The corrections officer testified that it was standard procedure to open and inventory the contents of all containers, including purses and wallets, found on the person of an individual being booked at the Tillamook County jail. “The purpose of the inventory is for the protection” of the person’s property and “for the security of the jail and the protection of the inmates and staff * * The defendant is required to sign the inventory list and then his property “is placed in a steel box and locked up.” The corrections officer said that it was not his practice to inspect personal papers.

The defendant testified that he kept the cigarette box taped shut because the “stuff inside was valuable.” He said: “Sometimes I had a gold razor blade in there.”

After the search the defendant was given a breathalyzer test. The results of the test showed .18 per cent of blood alcohol. The defendant said he had been drinking beer in a tavern for five or six hours at the rate of two beers per hour.

A district attorney’s information was filed against the defendant charging him with the crime of possession of a controlled substance, cocaine. ORS 475.992(4). The trial court allowed the defendant’s motion to suppress “all evidence of controlled substances taken from defendant” during the booking process at the Tillamook County jail.²

The state appealed to the Court of Appeals. ORS 138.060(3). That court, in a per curiam opinion, reversed and remanded for trial citing State v. Patton, 47 Or App 169, 613 P2d 1102, rev. denied (1980). Judge Buttler dissented. State v. Brown, 49 Or App 75, 618 P2d 1318 (1980). We granted the defendant’s petition for review, and we affirm the Court of Appeals.

The facts in Patton were very similar to the facts in this case. There, the defendant was arrested for driving under the influence of intoxicants and was taken to the Prineville jail. During the booking process, the defendant was asked to turn over his personal belongings to the officer to be inventoried. The defendant’s jacket contained a metal canister about the size of a silver dollar. The booking officer opened the canister and discovered three LSD pills. The Court of Appeals, citing United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973), United States v. Edwards, 415 US 800, 94 SCt 1234, 39 L Ed 2d 771 (1974), and State v. Florance, supra, held that a person under full custody arrest loses his expectation of privacy as to those items on his person and therefore the search of the canister was justified as incident to the custodial arrest. Judge Buttler dissented from the denial of the petition for reconsideration in Patton and argued in his dissent that the “closed container” rule in United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 2d 538 (1977), should apply to the facts in this case.

It is the defendant’s position that “once the closed cigarette box³ was taken from [his] possession” and was in the exclusive possession of the police, then any exigent circumstances that may have existed disappeared and the box could not be opened without a warrant. United States v. Chadwick, supra; State v. Groda, 285 Or 321, 591 P2d 1354 (1979); State v. Fondren, 285 Or 361, 591 P2d 1374 (1979); State v. Downes, 285 Or 369, 591 P2d 1352 (1979). The defendant also argues that the size or location of the closed container should not make any difference. In other words, it is inconsistent to say that a suitcase in the trunk of an automobile cannot be opened without a warrant, while a wallet can be opened and searched without a warrant if it is taken from the person of the defendant during the booking process.⁴

In its brief in the Court of Appeals, the state argued that under the cases of United States v. Edwards, supra; Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973); United States v. Robinson, supra, and State v. Florance, supra, it was “clearly proper * * * for the police to seize and open small containers taken from an arrestee’s person at the jail during the book-in process” unless the law had been changed by United States v. Chadwick, supra.

On oral argument before this court the state argued that when the defendant has already had his person seized as the result of a full custody arrest, he cannot have a separate expectation of privacy as to the items on his person. The state also contended that if the property could be seized, it could be searched in a “jail context” — the “primary emphasis being on the security of the jail.”

Thus it appears from the position of the parties that there is a “face-off’ between the Robinson line of cases and the Chadwick line of cases as to which rule of law applies to this fact situation. This court in State v. Florance, supra at 182, specifically recognized and adopted the rule as stated in Robinson. In State v. Groda, supra at 327, we said: “We rely on United States v. Chadwick, * * * for our decision.” See also State v. Fondren, supra, and State v. Downes, supra.

The issues in this case have been narrowed. The defendant concedes that the state had probable cause to arrest him for driving under the influence of intoxicants, and he does not object to the seizure of the cigarette box. He objects only to the search of the box. The state admits that it did not have probable cause independent of the original arrest to believe that the cigarette box contained contrabrand. It also concedes that there were no exigent circumstances during the booking process.

As to the search of a person upon arrival at the place of detention, 2 LaFave, Search and Seizure 303, § 5.3 (1978) (a treatise on the Fourth Amendment), states at page 303:

“It now appears to be clearly established that when an arrested person has been delivered to the place of his forthcoming detention, he may be subjected to a rather complete search of his person. This search may be conducted without a warrant, and requires no justification in the individual case other than that the person searched was lawfully arrested and is presently lawfully detained. There are two grounds upon which such a search is commonly upheld: (i) as a search incident to and reasonably contemporaneous with the preceding arrest; and (ii) as an inventory conducted to protect the arrestee’s effects and to maintain the security of the detention facility.”⁵ (Footnotes omitted.)

The above quotation was written on the premise that

“* * * A search is deemed to be ‘of a person’ if it involves an exploration into an individual’s clothing, including a further search within small containers, such as wallets, cigarette boxes and the like, which are found in or about such clothing. * * * ” Id. at 347.

The same text refers to what it calls the “Robinson-Edwards rule” as authority for the proposition that “a search at the station which was undertaken as a pre-incarceration inventory may be justified upon the additional ground that it is a search incident to arrest.” Id. at 309.

In Robinson an officer of the District of Columbia Metropolitan Police Department saw Robinson driving a 1965 Cadillac. Four days earlier the officer had checked the status of Robinson’s operator’s permit. The officer stopped the defendant and informed him that he was under arrest for “operating after revocation and obtaining a permit by misrepresentation.” Robinson conceded, on appeal, that the officer had probable cause to arrest him and that a full-custody arrest was in fact made. When Robinson emerged from the vehicle the officer searched him and found a “crumpled up cigarette package” in a breast pocket of the coat he was wearing. The officer opened the cigarette package and found 14 capsules of white powder “which he thought to be, and which later analysis proved to be, heroin.” Robinson was convicted in the District Court of possession and concealment of heroin. The Court of Appeals reversed, but the United States Supreme Court in turn reversed and reinstated the conviction, saying:

“ * * * The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person- is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 US at 235, 94 S Ct 467, 477, 38 L Ed 2d 427, 440.

In Gustafson v. Florida, supra (decided the same date as United States v. Robinson, supra), a municipal police officer for Eau Gallie, Florida, saw a 1953 Cadillac weave across the center line “three or four” times. After stopping the vehicle, the officer placed the driver, Gustafson, under arrest for failure to have an operator’s license in his possession. It was conceded by the parties that the officer had probable cause to arrest Gustafson and take him into custody for the purpose of transporting him to the stationhouse.⁶ The officer, while searching Gustafson at the scene of the arrest, found a Benson and Hedges cigarette box in the pocket of the coat he was wearing. The officer opened the box and found that it contained what appeared to be marihuana cigarettes. Gustafson was convicted of unlawful possession of marihuana. The Florida Court of Appeals reversed, but the Supreme Court of Florida in turn reversed and reinstated the conviction. The United States Supreme Court granted Gustafson, the petitioner, certiorari and affirmed the Supreme Court of Florida. The Court’s opinion stated, in part:

“* * * Since it is the fact of custodial arrest which gives rise to the authority to search, it is of no moment that [the officer] did not indicate any subjective fear of the petitioner or that he did not himself suspect that the petitioner was armed. Having in the course of his lawful search come upon the box of cigarettes, [the officer] was entitled to inspect it; and when his inspection revealed the homemade cigarettes which he believed to contain an unlawful substance, he was entitled to seize them as ‘fruits, instrumentalities, or contraband’ probative of criminal conduct. * * * ” 414 US at 265, 94 S Ct 488, 492, 38 L Ed 2d 456, 461.

Three months after the decision in Robinson, the United States Supreme Court decided United States v. Edwards, supra. In that case Edwards was arrested at 11 p.m. and was charged with attempting to break into the Lebanon, Ohio, post office. He was lodged in the local jail. About the same time an investigation at the scene showed that “the attempted entry had been made through a wooden window which apparently had been pried up with a pry bar, leaving paint chips on the window sill and wire mesh screen.” Ten hours later, and while he was still in jail, Edwards’ clothes were taken from him without a warrant and held as evidence. The clothing revealed paint chips matching those taken from the window of the post office. The Court of Appeals reversed the conviction and certiorari was granted. The Supreme Court reversed and concluded “that the Fourth Amendment should not be extended to invalidate the search and seizure in the circumstances of this case.” The Court explained its decision in part as follows:

“The prevailing rule under the Fourth Amendment that searches and seizures may not be made without a warrant is subject to various exceptions. One of them permits warrant-less searches incident to custodial arrest, United States v Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973); Chimel v California, 395 US 752, 755, 89 S Ct 2034, 23 L Ed 2d 685 (1969); Weeks v United States, 232 US 383, 392, 34 S Ct 341, 58 L Ed 652 (1914), and has traditionally been justified by the reasonableness of searching for weapons, instruments of escape, and evidence of crime when a person is taken into official custody and lawfully detained. United States v Robinson, supra.

“It is also plain that searches and seizures that could be made on the spot at the time of arrest may legally be conducted later when the accused arrives at the place of detention. If need be, Abel v. United States, 362 US 217, 80 S Ct 683, 4 L Ed 2d 668 (1960), settled this question. * * * ”⁷ 415 US at 802, 94 S Ct 1234, 1237, 39 L Ed 2d 771, 775.

It is obvious that the Edwards case can be distinguished on the facts from this case. However, the Edwards case authorized a search far beyond the limits necessary for this case. In Edwards the seizure of the clothes did not occur until 10 hours after the arrest. Here, the seizure and search of the cigarette box occurred as a part of the continuing process of stopping the vehicle, giving of field sobriety tests, arresting the defendant, transporting him to the jail, preparing for the breathalyzer test, and the booking. There is no evidence in the record as to the lapse of time from the arrest to the search of the cigarette box, but it could have easily been less than one hour. From the continuing nature of processing of the defendant, we find the search of the box was part of the arrest itself or “reasonably contemporaneous” with it.

We think that a fair reading of Robinson, Gustafson and Edwards requires us to reach the conclusion that the search of the defendant’s cigarette box in this case was lawful as an incident to his arrest, unless those cases have been limited by the more recent case of United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 538 (1977).

In Chadwick the railroad officials in San Diego saw a man and a woman load a 200-pound footlocker onto a train bound for Boston. The officials were suspicious because they noticed the “trunk was unusually heavy for its size, and that it was leaking talcum powder, a substance often used to mask the odor of marihuana or hashish.” This information, plus a description of the man and the woman, was relayed to the federal agents in Boston. When the train arrived in Boston it was met by the agents and a dog trained to detect marihuana. After the man and the woman claimed the footlocker they were joined by Chadwick. In the meantime, the dog had signaled the presence of marihuana. An attendant at the railroad station moved the footlocker outside to Chadwick’s automobile. The man, the attendant, and Chadwick lifted the 200-pound footlocker into the trunk of the automobile. While the trunk was still open and before the engine of the car was started, the federal agents arrested Chadwick, the man and the woman.

The footlocker was moved to the Federal Building where, one and one-half hours after the arrests, it was opened without a warrant and without consent. Large amounts of marihuana were found, and Chadwick and his companions were indicted for its possession. On the motion to suppress, the Government sought to justify the search under the “automobile exception” and as an incident to arrest. The District Court allowed the motion to suppress. Both the Court of Appeals and the Supreme Court affirmed. The opinion of the Supreme Court in part is as follows:

“ * * * However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States, 376 US, at 367, 11 L Ed 2d 777, 84 S Ct 881, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” (Emphasis added; footnote omitted.) 433 US at 15, 97 S Ct 2476, 2485, 53 L Ed 2d 538, 550.

We think that the Chadwick case by its own language has distinguished it from the Robinson, Gustafson, and Edwards cases. By using the phrase “personal property not immediately associated with the' person of the arrestee,” the Chadwick case has exempted from the application of its ruling personal property discovered as a result of a search of the person, such as “wallets, cigarette boxes, and the like.”

Our interpretation is reinforced by the following footnote to the Chadwick opinion:

“10. Unlike searches of the person, United States v Robinson, 414 US 218, 38 L Ed 2d 427, 94 S Ct 467 * * * (1973); United States v Edwards, 415 US 800, 39 L Ed 2d 771, 94 S Ct 1234 (1974), searches of possessions within an arrestee’s immediate control cannot be justified by any reduced expectations of privacy caused by the arrest. Respondents’ privacy interest in the contents of the footlocker was not eliminated simply because they were under arrest.” 433 US at 16, 97 S Ct 2476, 2486, 53 L Ed 2d at 538, 551.

Thus it is apparent that the Chadwick case did not attempt to limit the Robinson and Edwards cases. At least for the purposes of this case, there is no conflict between the Robinson line of cases and the Chadwick line of cases.⁸ The distinction between the two lines of cases simply boils down to the fact that the Robinson cases are dealing with the search of the person, and the Chadwick cases are concerned with the search of property. A search of person is construed to include clothing and the opening of small closed containers like cigarette boxes and wallets. 2 La Fave, Search and Seizure 309.

The distinction between the search of property and the search of the person is demonstrated by the two lines of cases. The following cases involved a search of property: United States v. Chadwick, supra (200-pound foot locker); Arkansas v. Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979) (suitcase in trunk of a taxicab); State v. Groda, supra (briefcase in trunk of a car); State v. Fondren, supra (trunk of a car); State v. Downes, supra (cosmetic kit or flight kit in the trunk of a bus); State v. Keller, 265 Or 622, 510 P2d 568 (1973) (fishing tackle box in a vehicle). On the other hand, in both the Robinson and Gustafson cases the search of the person resulted in the discovery of cigarette boxes in the clothing of the arrested person.

In State v. Florance, supra, we granted a petition for review because the case presented “serious questions relating to the nature and scope of the search of a person as an incident to an arrest, particularly as a result of the decision by the Supreme Court of the United States in United States v. Robinson, * *

In Florance the defendant was arrested near Estacada for burglary and for menacing an officer with a pitchfork. As a result of a “pat-down” the officer took a billfold from the defendant’s pocket. The officer then took the defendant and the billfold to the Estacada City Hall to prepare a custody report prior to transporting the defendant to the Clackamas County jail in Oregon City. When the defendant refused to answer questions concerning his identity, the officer opened the billfold and found five little plastic bags which contained what was later proved to be illegal drugs. The defendant was convicted of possession of cocaine and other dangerous drugs.

The Court of Appeals reversed, holding that it was error for the trial court to deny the defendant’s motion to suppress. This court reversed the Court of Appeals and reinstated the conviction. Between the decision by the Court of Appeals and the decision by this court, the United States Supreme Court decided the Robinson case.

This court in Florance recognized and adopted the rule in Robinson and mentioned the Gustafson and Edwards cases with apparent approval. 270 Or at 182, 176. The Chadwick case was not decided until three years later. In the Florance opinion we said:

“ * * * We hold, however, that upon the taking into custody of a person following a legal arrest, such a search of the person arrested as would be reasonable if made by the officer at that time and place may be made by him at any time in the course of transporting the arrested person to jail. * * * ” 270 Or at 191-192.

Here, we hold that the police without a warrant may search a closed container seized from the person of an individual during the booking process at the place of detention as an incident to a lawful arrest. The search may be made independent of probable cause other than the lawful arrest and without exigent circumstances. The search of the person includes the opening of small containers found on the person or in clothing worn by the arrested individual.

We think that our decision in this case is a logical step following the Florance case. It would not make sense to say that a defendant can be searched, as an incident of arrest, on the jail house steps, but cannot be searched during the booking procedure.

In Florance we quoted with approval from State v. Cloman, 254 Or 1, 15, 456 P2d 67 (1969):

“ ‘The searched person’s privacy has already been partially invaded by the arrest; therefore, the search does not have the personal impact that it otherwise might have.’ ”⁹ 270 Or at 183.

We affirm the Court of Appeals.

1 In State v. Florance, 270 Or 169, 192, 527 P2d 1202 (1974), this court said:

“ * * * [W]e do not undertake to decide the nature, scope and intensity of the search that may reasonably be made of an arrested person at the time of the booking of such a person for jail, including the extent to which an inventory may be made of the contents of his billfold or wallet or of other articles in his possession

2 The trial court did not enter findings of fact. The trial judge, in announcing his decision from the bench at the conclusion of the testimony at the hearing on the motion to suppress, confined his remarks to questions of law and did not discuss the facts. There appear to be no substantial questions of fact. The recital of the facts in this opinion are taken from the transcript of the testimony of the January 16, 1980 hearing on the defendant’s motion to suppress.

3 The defendant in his petition for review mentions only the “cigarette box” and does not mention the small “brown vial.” Therefore, we will consider only the “cigarette box.”

4 The defendant on oral argument in this court said that State v. Elkins, 245 Or 279, 422 P2d 250 (1966), was his “fall back position.” By this the defendant must have meant that the officer did not have probable cause to believe that the white powder in the cigarette box was contraband. This argument was not presented in the trial court or in the Court of Appeals and therefore we do not consider it.

5 The author has used the limitation, “rather complete search,” to denote that there are restrictions as to the inspection of or intrusion into the body of the arrested person — questions we are not concerned with in this case.

6 In his concurring opinion Mr. Justice Stewart said:

“It seems to me that a persuasive claim might have been made in this case that the custodial arrest of the petitioner for a minor traffic offense violated his rights under the Fourth and Fourteenth Amendments. But no such claim has been made. Instead, the petitioner has fully conceded the constitutional validity of his custodial arrest. * * * ” 414 US at 266, 94 S Ct 488, 492, 38 L Ed 2d 456, 462.

7 In Abel v. United States, 362 US 217, 80 S Ct 683, 4 L Ed 2d 668 (1960), Rudolph Ivanovich Abel, also known as Martin Collins and Emil R. Goldfus, was suspected by the Federal Bureau of Investigation of the crime of espionage, but because the evidence was insufficient to justify an arrest on that charge, the Bureau informed the Immigration and Naturalization Service that the suspect was an alien residing illegally in the United States. Abel was arrested with an administrative warrant and served with an order to show cause why he should not be deported. The arrest was made at Abel’s room in the Hotel Latham in New York City by officers of the Immigration Service. Four agents of the Service searched Abel’s person and belongings for a period of 15 to 20 minutes. Then he was told to assemble the things that he wished to take with him to the headquarters of the Immigration Service in New York City. At the headquarters a more thorough search was made and three of the challenged items were discovered and seized. On a later date Abel was arrested and charged with conspiracy to commit espionage. A motion to suppress the items seized was denied and Abel was convicted. The United States Supreme Court granted Abel’s petition for certiorari and affirmed the conviction. As to three of the challenged items, the court said:

“Items (3), (4), and (5), a birth certificate for ‘Emil Goldfus’ who died in 1903, a certificate of vaccination for ‘Martin Collins,’ and a bank book for ‘Emil Goldfus,’ were seized, not in petitioner’s hotel room, but in a more careful search at I.N.S. headquarters of the belongings petitioner chose to take with him when arrested. This search was a proper one. The property taken by petitioner to I.N.S. headquarters was all property which, under [Harris v. United States, 331 US 145, 67 S Ct 1098, 91 L Ed 1399], was subject to search at the place of arrest. We do not think it significantly different, when the accused decides to take the property with him, for the search of it to occur instead at the first place of detention when the accused arrives there, especially as the search of property carried by an accused to the place of detention has additional justifications, similar to those which justify a search of the person of one who is arrested. * * * ” 362 US at 238, 80 S Ct 683, 697, 4 L Ed 2d 668. 686.

8 It could be argued that there is a conflict in the Abel case and the Chadwick case. Three of the challenged items in Abel were found as a result of the search of Abel’s luggage or baggage at the place of detention. Therefore, it could be said that the law enforcement officers had reduced the luggage or baggage to their exclusive control and that the following search was not incident to the arrest. However, we read Abel as saying that the search of the luggage started in Abel’s hotel room and was merely continued to the place of detention.

9 The concurring opinion of Mr. Justice Powell in United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973), expresses the same idea in greater detail:

“The Fourth Amendment safeguards the right of ‘the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. . . . ‘ These are areas of an individual’s life about which he entertains legitimate expectations of privacy. I believe that an individual lawfully subjected to a custodial arrest retains no significant Fourth Amendment interest in the privacy of his person. Under this view the custodial arrest is the significant intrusion of state power into the privacy of one’s person. If the arrest is lawful, the privacy interest guarded by the Fourth Amendment is subordinated to a legitimate and overriding governmental concern. No reason then exists to frustrate law enforcement by requiring some independent justification for a search incident to a lawful custodial arrest. This seems to me the reason that a valid arrest justifies a full search of the person, even if that search is not narrowly limited by the twin rationales of seizing evidence and disarming the arrestee. The search incident to arrest is reasonable under the Fourth Amendment because the privacy interest protected by that constitutional guarantee is legitimately abated by the fact of arrest.” (Footnotes omitted.) 414 US at 236, 94 S Ct 467, 38 L Ed 2d 427, 441.