State v. Chipley

SCHWAB, C. J.

The state appeals from an order suppressing evidence seized after a warrantless search of the defendant’s person. ORS 138.060(3).

In September 1976 defendant was attempting to board a commercial airline flight at the Eugene airport when he triggered the alarm on a magnetometer — a device used to detect the presence of metallic objects. A private security guard employed by the airport to operate the magnetometer requested that defendant place all metallic objects in his pockets into a tray and walk through the magnetometer again. Defendant placed a number of objects into the tray and passed through the magnetometer without activating the alarm.

Gregory Zahar, a Eugene police officer stationed at the airport to provide backup assistance to the private security company, was standing near the magnetometer and observed that defendant placed into the tray an object which "appeared to be an ivory or a tusk type roach holder.” Zahar had been a police officer for six years, had received training in the identification of narcotics and narcotics paraphernalia, and at one point had been assigned to the county narcotics team for about six months.

The object in question is a piece of what appears to be ivory, roughly conical in shape with a small hole in one end which expands to a diameter of approximately one-half inch at the other. Zahar moved to within two or three feet of the tray and noticed stains on the sides of the larger hole of the "roach holder” which he testified could have been caused by using it to smoke marihuana or tobacco. At this point Zahar was unable to detect any odor from the "roach holder.” Zahar did not testify as to his opinion as to the primary use of "roach holders.”

When defendant began placing the items in the tray back into his pockets, Zahar requested permission to examine the "roach holder.” Zahar testified that defendant consented to the examination, both verbally and through gestures; defendant testified that he did not consent. The private security guard, who was standing approximately four feet from the two, testified that he did not hear defendant consent to the examination. Zahar picked up the "roach holder” and detected the odor of marihuana. Zahar then searched defendant and found hashish and marihuana. Defendant was later indicted for illegal possession of dangerous drugs. ORS 167.207(1).

At the suppression hearing, one witness testified that objects such as that defendant placed in the tray were readily obtainable from stores and that such objects were used as decorative knickknacks, as incense holders and as good luck charms. At the conclusion of the hearing, the court found that the state had not met its burden of proving that defendant had consented to the examination of the "roach holder” and that:

"The State has failed to prove that reasonable suspicion of criminal activity did exist on the part of the officer in his initial observation to justify his taking of the ivory 'roach holder’ from the property of the defendant and conducting a nonconsensual search of the same by closely inspecting and smelling of the same.”

The court held that the evidence seized from defendant should be suppressed as the fruits of the illegal search of the "roach holder.”

On appeal the state has abandoned its claim that defendant orally or through gestures consented to Zahar’s examination of the "roach holder,” and asserts instead that defendant impliedly consented to the examination by choosing to submit to whatever security procedures were required before he could board the aircraft. Courts, squaring the necessity for airport security searches with the warrant and probable cause requirements of the Fourth Amendment, have adopted a number of approaches: some have used the implied consent theory now urged by the state,¹ but other courts have rejected such an approach in favor of analysis grounded either in the principles of Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968),² or the administrative-search rationale of See v. City of Seattle, 387 US 541, 87 S Ct 1737, 18 L Ed 2d 943 (1967), and Camara v. Municipal Court, 387 US 523, 87 S Ct 1727, 18 L Ed 2d 930 (1967).³ The only consensus which has emerged from such cases is that the scope of airport security searches must be limited to seeking discovery of weapons or explosives which might be used in hijacking attempts. As was stated in United States v. Albarado, 495 F2d 799, 806 (2d Cir 1974):

"* * * [T]he public does have the expectation, or at least under our Constitution the right to expect, that no matter the threat, the search to counter it will be as limited as possible, consistent with meeting the threat.”

By placing the contents of his pockets into the tray, defendant cannot be said to have consented to their examination for purposes other than the prevention of hijacking attempts.

The state next asserts that as the "roach holder” was in his plain view, Zahar "did not need to request the permission of defendant to further inspect the item.” Simply because the "roach holder” was in plain view, however, cannot in and of itself justify its seizure — a plain view seizure must also be based on probable cause. State v. Elkins, 245 Or 279, 422 P2d 250 (1966). The state contends that Zahar’s familiarity with narcotics and narcotics paraphernalia coupled with his recognition of what "appeared” to him to be a "roach holder” gave rise to sufficient probable cause to justify the closer examination of the "roach holder.” As we noted above, we do not construe Zahar’s testimony as being to the effect that the primary use of a "roach holder” was for other than legitimate purposes. In any event, even assuming that the most frequent use of a "roach holder” is for smoking marihuana, such is not the only use, and it is not contraband, per se. See State v. Parks, State v. Tarpley, Jr., 5 Or App 601, 485 P2d 1246 (1971).

Affirmed.

1 United States v. Davis, 482 F2d 893 (9th. Cir 1973); United States v. Bell, 464 F2d 667, 674 (2d Cir) (Friendly, C. J., concurring), cert denied 409 US 991 (1972).

2 United States v. Fern, 484 F2d 666 (7th Cir 1973); United States v. Legato, 480 F2d 408 (1st Cir), cert denied 414 US 979 (1973); United States v. Moreno, 475 F2d 44 (5th Cir), cert denied 414 US 840 (1973).

3 See United States v. Albarado, 495 F2d 799 (2d Cir 1974); United States v. Skipwith, 482 F2d 1272 (5th Cir 1973).