State v. Kock

NEWMAN, J.,

dissenting.

Although I agree with the majority that the arrest of defendant was valid and that his statement to the police at the time of his arrest was admissible, the preceding search of defendant’s car was not valid and the package should have been suppressed. The police had probable cause to search defendant’s car and the package, but there was no practical necessity to do so without a warrant.1 The search also was not incident to the later arrest.

The majority holds that the search and seizure were incident to defendant’s arrest. It is true that if the police had probable cause to arrest defendant at the time of a search— and without the benefit of what the search disclosed — then the search may, if reasonable, be valid as incident to the arrest, even though the search preceded that arrest. See State *528 v. Chinn, 231 Or 259, 373 P2d 392 (1962). Although the search here was not necessary to protect the safety of the officers or to prevent the destruction of evidence, it could still have been incident to the arrest if it was related to the crime for which defendant was arrested and if it was reasonable under all the circumstances. State v. Chinn, supra.

The exception to the warrant requirement for a search incident to an arrest contemplates that the act of arrest justifies the warrantless search. If the search precedes the arrest, the later arrest may not be used as a pretext to justify after the fact an otherwise illegal warrantless search. See State v. Chinn, supra, 231 Or at 266-67.

The majority holds that the arrest of defendant inside the store some distance from the car, initiated after completion of the search of the car, renders the otherwise illegal search reasonable. Even though factors in assessing reasonableness are the relationship of the search to the arrest in time, place, and intensity, State v. Caraher, 293 Or 741, 653 P2d 942 (1982), the state must also establish the primacy of the arrest to justify the warrantless preceding search as “incident” to it. The critical factors in determining if a preceding warrantless search is reasonable are whether the police had gone to the area to search or to arrest, and whether the arrest and search have become intertwined in the flow of events and the arrest follows closely upon the search. See State v. Chinn, supra; State v. Hoover, 219 Or 288, 302-06, 347 P2d 69 (1959); State v. Duffy, 135 Or 290, 295 P 953 (1931); State v. McDaniel, 115 Or 187, 231 P 965, 237 P 373 (1925).2

*529 Here, the police did not go to the car to arrest defendant, who they knew was inside the store. They went to search the car. Moreover, the search and the act of arrest were not intertwined in the flow of events but were separate events each within the control of the police. The police initiated the arrest only after they had completed the search of the car and seized the package — when they called for assistance to make the arrest. They arrested defendant inside the store, some distance from the car. The search, therefore, was not reasonable as incident to the later arrest. The package should have been suppressed.

Richardson, J., joins in this dissent.

The trial court concluded that there was a practical necessity, but we are not bound by the court’s constitutional conclusions. On appeal, the state does not assert that there was a practical necessity. That a car was involved did not by itself create an exigency. State v. Kirsch, 69 Or App 418, 421, 686 P2d 446, rev den 298 Or 151 (1984). Indeed, Hartley testified that, at the time the police seized the package from the car, he was not “worried about [defendant’s] car going anywhere” and that the officers controlled the car. Defendant was inside the store and was expected to work there until 6:30 a.m., approximately 40 minutes after the time the police seized the package.

In State v. Elk, 249 Or 614, 439 P2d 1101 (1968), the search was justified by probable cause and practical necessity rather than as incident to an arrest.

“[A] search based on probable cause and practical necessity applies to situations such as that in State v. Elk * * *, in which the officers found a deserted car in circumstances which gave them probable cause to believe that it contained stolen property. There was no one to arrest, but there were grounds for the search.8

.“ The concurring opinions of Judges O’Connell and Denecke in State v. Elk, supra, 249 Or at 624 (O’Connell, J., specially concurring), 249 Or at 625 (Denecke, J., specially concurring), which together had the support of a majority of the court, would base affirmance on this ground and constitute the holding of the court, rather than the putative majority opinion, which relies on a search incident to a later arrest.” State v. Flores, 68 Or App 617, 636, 685 P2d 999, rev den 298 Or 151 (1984). (Citations omitted.)