State v. Herbert

LENT, J.,

dissenting.

As in State v. Owens, 302 Or 196, 729 P2d 524 (1986), the police opened a container and chemically analyzed its contents. Unlike in Owens, the container was opaque. Perhaps for this reason, the majority describes the opening of the container as a “search.” Cf. State v. Owens, supra, 302 Or at 199. The majority concludes that the police had the right to open the container because a police officer, based on his experience, had probable cause to believe that a controlled substance would be found within the container. The majority also concludes that the warrantless testing of the substance was constitutional, citing Owens.

Probable cause alone, however, does not justify a warrantless search. See, e.g., State v. Matsen/ Wilson, 287 Or 581, 601 P2d 784 (1979). The majority does not justify the warrantless opening of the container under any exception to the warrant requirement. In addition, for the reasons stated in my dissent in State v. Owens, supra, 302 Or at 215, the majority has not justified the warrantless testing of the contents of the container.

Linde, J., joins in this dissenting opinion.