The opinion
BUTTLER, P. J.,
dissenting.
This case is a sequel to State v. Brown, 291 Or 642 , 634 P2d 212 (1981). As in Brown , the defendant here was taken into custody, having been arrested for driving under the influence of intoxicants; a search of his person incident to the arrest revealed a closed container, which was seized by the police officer and then opened to reveal a powdered substance. The court in Brown held that the search of defendant’s person, the seizure of the closed container and the search of the closed container was permissible.
Here, as in Brown , the officer submitted the powdered substance to a laboratory for analysis, resulting in a determination that the powder was cocaine, a controlled substance. In Brown , the court expressly declined to decide whether the officer, without probable cause, was authorized to have the powder tested in the police laboratory; it declined to rule on that question because the defendant had not raised it below, but the court cited State v. Elkins, *346 245 Or 279 , 422 P2d 250 (1966), as supporting the proposition that the officer could not do so without probable cause to believe the substance was contraband.
The majority, although quoting extensively from State v. Elkins, supra ( 59 Or App 340 -41), apparently conclude that Elkins is no longer the law. The majority argue, quite rationally, that the court’s decision in State v. Florance, 270 Or 169 , 527 P2d 1202 (1974), effectively did away with the rule adopted in Elkins . However rational the majority here may be, the majority in Florance did not even suggest that Elkins was overruled; instead, it “relied” on it, contending that Elkins supported their conclusion. 270 Or at 190-91 . That reliance was dubious at best, because the Florance majority distinguished Elkins on the basis that the substance seized from Elkins was in pill form, whereas the substance seized from Florance was in powder form — a distinction, I submit, without a difference. The court took judicial notice of the “fact” that controlled substances are frequently in powdered form rather than in the form of pills or tablets. From the number of cases which this court reviews, I think we may take judicial notice of the fact that many controlled substances are in pill or capsule form, as well as powder, depending on the means of ingestion. That distinction apparently did not impress the court in Brown : it left open whether Elkins controlled the issue presented here.
A more significant distinction exists between this case and Florance , where the court expressly stated that the officer “was experienced in such matters” (that is, narcotics); here, the majority make no pretense that the officer was so experienced. Rather, the majority rely on what a hypothetically reasonable police officer could have concluded from what he saw to support the finding of probable cause. However, apparently recognizing that that test may be too amorphous, the majority goes on to say:
“The facts perceived by the officer here, and to which he testified, were such as would cause an officer trained with respect to illegal drugs reasonably to believe that the bottle contained contraband. * * *” (Emphasis supplied.) 59 Or App at 344.
*347 Does a hypothetically reasonable police officer equate with an officer trained with respect to illegal drugs? If so, the officer here does not fit the slot.
In my opinion, Elkins was correct in holding that before an officer may seize the implements of a crime committed in his presence other than that for which the arrest was made, 1 he must have reasonable grounds to believe that the article he has discovered is contraband. Apparently, the Supreme Court believes that Elkins is still viable; if it did not, there would have been no reason in Brown to avoid the issue decided here. It is worth quoting the following language from Elkins :
“If the rule were otherwise, an officer who desired to inculpate an arrested person in another crime, could seize everything in such person’s immediate possession and control upon the prospect that on further investigation some of it might prove to have been stolen or to be contraband. It would open the door to complete temporary confiscation of all an arrested person’s property which was in his immediate possession and control at the time of his arrest for the purpose of a minute examination of it in an effort to connect him with another crime. Such a practice would be as much an exploratory seizure as one made upon an arrest for which no probable cause existed. Intolerable invasions of a person’s property rights would be invited by an ex post facto authorization of a seizure made on groundless suspicion.” 245 Or at 287-88 .
It may be that the trend is more in line with Florance and Brown and away from Elkins . But 1984 is rapidly approaching, and if that trend continues “[t]he right of people to be secure in their persons, houses, papers and effects * * *” (US Const, Amend IV) appears to be a gloom on the not too distant horizon. The curiosity of the hypothetically reasonable officer effectively disposes of the requirement that there be probable cause.
I would reverse, relying on State v. Elkins, supra, and therefore dissent.
Here, defendant was stopped initially for a defective headlight. The officer detected a strong odor of alcohol on his breath and arrested him for DUII, leading to the search of his person, seizure of the amber colored pill bottle without probable cause and ultimate conviction for possession of a controlled substance.