State v. Westlund

*45 GILLETTE, J.

Defendant appeals his convictions for driving under the influence of intoxicants (DUII) and possession of cocaine, arguing, first, that the failure of the police to take him into civil custody for alcohol treatment before he drove made his DUII arrest unlawful and, second, that the warrantless testing of a powder in a vial taken from him at the time of his arrest was illegal. We agree only with the latter contention. We therefore affirm the DUII conviction and reverse and remand on the narcotics charge.

In the late afternoon of June 5, 1982, defendant was seen lying, apparently unconscious, under a motor vehicle near the corner of S.E. 7th and S.E. Mill in Portland. A person notified the Multnomah County Emergency Medical Center of defendant’s condition, and the center dispatched an ambulance to investigate. An ambulance attendant found defendant conscious and determined that he was drunk. Fearing that defendant might try to drive, the attendant flagged down Portland Police Officer Taylor, who happened to be passing. Taylor had another errand, so she told Officer Minnis of the situation by radio. Minnis came to the location and parked two blocks away. He then watched defendant for five to seven minutes. During that time, defendant tried to change a flat tire and to take the old tire across the street and throw it into a dumpster. In the process, he staggered, could not control the tire and gave various other obvious indications of intoxication. Minnis concluded that defendant was intoxicated and Taylor, who happened by again, reached the same conclusion. Minnis was also aware that, if defendant drove, he would be a danger to himself or others. Neither officer intervened during that time.

After defendant replaced the tire, he got in his car, started it and began to drive away. Minnis immediately pulled him over. After he did poorly on field sobriety tests, Minnis arrested him for DUII. In the course of a search after the arrest, Minnis found a small brown vial in one of defendant’s pockets. He seized it. The state crime laboratory determined that the vial contained cocaine. No one obtained a search warrant before opening the vial or before testing its contents.

*46 Defendant argues that ORS 426.460(f)1 required Minnis to take him into civil custody and transport him to a treatment facility before allowing him to drive his car. Minnis’ failure to do so, he argues, escalated a civil problem into a criminal offense, contrary to the purpose of the statute and, he concludes, constituted police misconduct which precludes prosecuting him for DUII. The state concedes that Minnis “violated ORS 426.460(1) by not promptly taking defendant into ‘protective civil custody’ under the mandatory terms of the statute.” We join with defendant and the state in disapproving that conduct. However, Minnis did not cause defendant to become intoxicated, did not suggest that he drive and did not furnish him an automobile. He simply passively observed. That was not entrapment or other illegality requiring dismissal. When defendant began driving, Minnis had a reasonable basis for stopping him and, after the stop, he had probable cause for the arrest. We see nothing in the statute which alters these facts.2 We turn to the validity of the search of the vial.

Because defendant was properly arrested for DUII, the search of his person incident to that arrest and the discovery of the brown vial were valid. Minnis’ testimony established that, on the basis of his training and experience, he reasonably believed that the vial contained a controlled substance. He therefore had probable cause to seize the vial. Defendant argues, however, that, under State v. Lowry, 295 Or 337, 667 P2d 996 (1983), the subsequent testing of the contents of the vial required a warrant. The state argues that defendant *47 did not raise this point in the trial court but moved to suppress evidence of the cocaine only on the grounds that Minnis had no probable cause to seize the vial and that Minnis had no right to open a closed container. We hold that defendant adequately raised the issue and that Lowry is controlling.

Defendant filed his motion to suppress before the Supreme Court’s decision in Lowry. The motion attacked “the officer’s warrantless opening of the vial, as opposed to its mere seizure,” as a violation of the closed container doctrine. It is not clear that there is a “closed container doctrine” under the Oregon Constitution. See State v. Caraher, 293 Or 741, 771, 653 P2d 942 (1982) (Lent, J., dissenting, urging the adoption of a closed container rule). However, the heart of Lowry is its distinction between seizures and searches and its insistence that a valid warrantless seizure does not, in itself, justify a subsequent warrantless search. Defendant in his motion to suppress made that distinction and thereby adequately brought the issue to the trial court’s attention. We turn now to the impact of Lowry on this case.

We note first that the facts are essentially identical to those of Lowry. In each case, the defendant was arrested for DUII and a valid search incident to that arrest turned up a vial containing a suspicious substance that was not related to the original arrest. The arresting officers seized the vials but did not immediately open them. They were later opened without a warrant and the contents proved, after testing, to be cocaine. In this case, but not in Lowry, the arresting officer testified that, on the basis of his training and experience, he believed before the search of the vial that it contained a controlled substance. In the light of the Supreme Court majority’s rationale in Lowry, this difference in the facts is without decisional significance.3

We have previously noted that Lowry is a troublesome case and that its analysis appears to be flawed in certain respects. For those reasons we refused to extend its apparent holding to somewhat different facts. State v. Flores, *48 68 Or App 617, 627-34, 685 P2d 999 (1984). The analytical flaws in Lowry do not, however, leave it without meaning or precedential significance. The Supreme Court used it to emphasize again the primacy of the warrant requirement in Article I, section 9, of the Oregon Constitution and the narrowness of the exceptions to that requirement. The specific holding of the case was simply an example of how limited the exceptions are.

“[T]he seizure of the bottle incident to a valid arrest and the subsequent testing of its contents are properly analyzed not as one but as two events. For ‘probable cause’ is not alone dispositive of those steps. The question is not simply whether probable cause to investigate, that is to say, to ‘search,’ the contents of the bottle did or did not exist, but whether there was any need to do so without a warrant.

“The constitutional text itself ties the phrase ‘probable cause’ to warrants. It seems never to become superfluous to repeat that the requirement of a judicial warrant for a search or seizure is the rule and that authority to act on an officer’s own assessment of probable cause without a warrant is justified only by one or another exception. [Citations omitted.] The time to make the judicial determination whether there is probable cause for a search or a seizure, if time permits, is before the individual’s privacy is invaded. A later adjudication upon a motion to suppress evidence, although necessary, does not undo the invasion, does not help persons who are cleared and never prosecuted, and colors the perception of ‘probable cause’ by what the search in fact revealed.” 295 Or at 346.

Simply put, Lowry requires that each step of a warrantless search or seizure be justified by an exception to the warrant requirement; it is irrelevant whether a previous or subsequent step is within an exception. The precise holding is that, once a suspect object is in an officer’s control, any necessity for proceeding without a warrant has ended and the officer can do no more than “safeguard it and * * * obtain a speedy judicial decision” on whether there is probable cause for a further search. “[UJnless the substance is volatile the practical need to proceed without a warrant normally extends no further.” 295 Or at 347. The warrantless seizure does not justify a later warrantless search.

Although the Supreme Court’s analysis in Lowry is *49 faulty,4 its insistence on the warrant requirement and its specific holding are consistent with Oregon search and seizure law, although they may not be fully consistent with previous practice. Because the facts of this case are precisely the facts of Lowry, we are called upon to enunciate, if we can, a correct Oregon constitutional basis for the Lowry result.5 Article I, section 9, prohibits the enactment of laws which violate the right of the people to be “secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * An unjustified invasion of a person’s property is a trespass and, if the invasion is of a constitutionally protected place or thing and is by a public officer, it is a violation of the rights which the constitution protects. See State v. Lee, 120 Or 643, 253 P 533 (1927); Smith v. McDuffie, 72 Or 276, 142 P 558, 143 P 929 (1914); State v. Ohling, 70 Or App 249, 688 P2d 1384, rev den 298 Or 334 (1984). The vials in this case and in Lowry are constitutionally protected “effects.” The warrantless seizures of the vials were trespassory unless some exception to the warrant requirement justified them. In Lowry *50 and the present case, the search-incident-to-arrest exception supported the searches which led to the discovery of the vials. In neither case was seizure of the vial justified as incident to the arrest for the crime for which the defendant was originally arrested. However, if the officers had probable cause to believe that the vials or their contents were subject to seizure under ORS 133.535,6 the officers could seize them, either because there were exigent circumstances or as incident to a presumed arrest on a possession charge.

Seizure of the vials was a limited intrusion into the defendants’ interests in the effects; it left a significant part of those interests intact. However strong the officers’ suspicions, they did not know what was in the vials; without that knowledge the vials and their contents would be useless as evidence. To determine whether the contents were contraband and, thus, to confirm their suspicions, the officers, or others to whom the officers gave the vials, had to open the vials and test their contents, with the destruction of part of the contents which testing requires. To do so changed the nature of the trespass from a temporary deprivation of the effect to an intrusion into it and the permanent loss of part of it. This additional intrusion was different in character and greater in intensity than was the original seizure. The justification for the original warrantless search and seizure could not justify the additional intrusion; that required either a warrant or an independent exception to the warrant requirement.

There is no exception to the warrant requirement which will support the additional intrusion that the testing involved. Because the vials were under the officers’ control, there were no exigent circumstances. See State v. Kirsch, 69 Or App 418, 421-22, 686 P2d 446, rev den 298 Or 151 (1984). The testing was not reasonable in time in relation to a *51 presumed arrest for possession, and a logical stopping point7 had already been reached. The search was therefore not properly incident to the defendants’ presumed arrests for possession of a controlled substance. See State v. Caraher, supra; State v. Chinn, 231 Or 259, 373 P2d 392 (1962); State v. Flores, supra, 68 Or App at 634.8 The testing of the powder required a warrant.

What is important in determining whether additional investigation of a seized item requires a warrant is whether the investigation involves either an intrusion into a previously untouched constitutionally protected area or damage to the property. See State v. Riley, 240 Or 521, 523, 402 P2d 741 (1965). Opening the vial and testing its contents meet both tests.9 Because the vial was originally seized without a warrant and because there is no applicable exception to the warrant *52 requirement, that additional trespass required a warrant. Article I, section 9, requires judicial involvement in the police decision to search at the earliest practicable moment. We believe that this is the point which the Supreme Court sought to make in Lowry. Although its reasoning may not have been perfect, the result is consistent with previous Oregon law. The police actions after the seizure were in violation of Article I, section 9. The court erred in refusing to suppress the evidence.10

DUII conviction affirmed; otherwise reversed and remanded.

ORS 426.460(1) provides:

“Any person who is intoxicated or under the influence of controlled substances in a public place may be taken or sent home or to a treatment facility by the police. However, if the person is incapacitated, the health of the person appears to be in immediate danger, or the police have reasonable cause to believe the person is dangerous to self or to any other person, the person shall be taken by the police to an appropriate treatment facility. A person shall be deemed incapacitated when in the opinion of the police officer or director of the treatment facility the person is unable to make a rational decision as to acceptance of assistance.”

Defendant is one of the intended beneficiaries of ORS 426.460(1). By failing to follow the statutory mandate, Minnis may have exposed the city to liability to defendant or to anyone whom he might have injured. See Nearing v. Weaver, 295 Or 702, 670 P2d 137 (1983). The purpose of the statute, however, is to provide a person needed treatment, not an escape from the consequences of any crimes he might commit.

The concurring opinion in Lowry rests on the failure of the officer to establish that he had probable cause to believe that the vial contained contraband. 295 Or at 358 (Jones, J., concurring). Although that rationale is clearly a correct one, the Supreme Court majority declined to follow it as the basis for its decision. In determining the significance of Lowry, we must deal with what the majority stated in its opinion.

There are two major flaws in the Supreme Court’s analysis in State v. Lowry, supra. They are (1) the failure to recognize the importance of probable cause as the necessary justification for the seizure of the vial and (2) the failure to apply the well-established progressive probable cause analysis to the defendant’s arrest. See State v. Flores, supra, 68 Or App at 632. As a result of those lapses, the Supreme Court’s analysis is of questionable validity. However, as we describe below, the Lowry holding is sustainable on a different analysis, and the Supreme Court’s lapses in logic do not alter the binding effect of its holding.

Neither analytic flaw is fatal to the correctness of the Supreme Court’s result. First, even if there were probable cause for the seizure, there still would not necessarily be a justification for the subsequent warrantless search of the object seized. Secondly, the failure to recognize the progressive probable cause analysis is important only in distinguishing Lowry from State v. Caraher, supra, in which the Supreme Court upheld the warrantless seizure of evidence from the defendant’s purse because the seizure was incident to her arrest for possession of a controlled substance. The court in Lowry distinguished the cases by noting that the closed container search in Caraher was related to the crime for which the defendant was first arrested, while that in Lowry was not. Yet, if the officer in Lowry had probable cause to believe that the vial contained cocaine, that search was also incident to a presumed arrest for possession if it was reasonable in scope, time and intensity. Thus, the Supreme Court’s distinction will not work. The real distinction between those cases is that the only part of the search which the defendant challenged in Caraher took place immediately after her arrest and was proper as incident to it; she did not raise the seizure/search issue. The Supreme Court reached the latter issue in Lowry.

Of course, even if the Supreme court’s decision in State v. Lowry, supra, were both an innovation in Oregon law and completely indefensible analytically, we would be bound to follow it on facts identical to those in Lowry because the decision is a binding precedent of a superior court. Jensen v. Osburn, 74 Or App 7, 701 P2d 790 (1985).

ORS 133.535 provides in part:

“The following are subject to search and seizure under ORS 133.525 to 133.703:

“(1) Evidence of or information concerning the commission of a criminal offense;

“(2) Contraband, the fruits of crime, or things otherwise criminally possessed;

“(3) Property that has been used, or is possessed for the purpose of being used, to commit or conceal the commission of an offense * *

In State v. Flores, supra, we noted that the Supreme Court’s insistence in State v. Lowry, supra, on the warrant requirement as a limitation on the power to search incident to an arrest meant that “when a search reaches a logical stopping point the police must seek a warrant before proceeding further.” 68 Or App at 634. Since Flores, we have applied that requirement to determine at what point officers must stop searching automobiles which they have not seized. State v. Martin, 71 Or App 1, 6, 691 P2d 154 (1984); State v. Kirsch, supra, 69 Or App at 423. The same analysis applies when the question is whether officers may search or increase the intensity of the search of an item which they have seized incident to an arrest. If the search has reached a logical stopping point, the officers need a warrant or a new exception to the warrant requirement.

We need not determine whether an immediate field test would have been proper as incident to the arrest.

The United States Supreme Court recently held that a warrantless field test of suspected cocaine was not a search under the Fourth Amendment. United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85 (1984). It relied on the analysis of Katz v. United States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967), to determine that, under the facts of the particular case, the officers had not invaded the defendant’s reasonable expectation of privacy in the package from which the suspected cocaine was taken. The facts of Jacobsen are complicated by a previous private search and are not directly comparable to those in this case. The most significant distinction between Jacobsen and this case, if one is needed, is that Oregon has not yet found it necessary to adopt the Katz expectation of privacy analysis. We have no doubt that, when faced with the phenomenon of modern-day devices that enhance the senses (such as the evesdropping device in Katz), Article I, section 9, will prove equal to the task of defining and protecting individual freedom. However, the extent to which Katz states a principle of Oregon law is presently unsettled and, whatever the extent, it will add to, not replace, the trespass analysis. See State v. Louis, 296 Or 57, 60, 672 P2d 708 (1983) (application of Article I, section 9, to a person’s house does not depend on showing an expectation of privacy; the purpose of Katz is to extend protection beyond what the Fourth Amendment literally protects, not to qualify unquestioned constitutional protections); State v. Elkins, 245 Or 279, 288-89, 422 P2d 450 (1966) (Article I, section 9, protects property rights as well as privacy interests); State v. Ohling, supra, 70 Or App at 252 n 4.

We have now followed and explained — as best we can—State v. Lowry.

The author of this opinion, joined by the Chief Judge and Judges Richardson and Young, wish to note that, were we writing on a clean slate, we would prefer that the Oregon Constitution were construed as the dissent wishes to construe it. If we have erred in our effort to give form and substance to State v. Lowry, the Supreme court needs to see that there is a crying need for it to say so.