slip opinion at 15, n 10
How later courts described this case
- slip opinion at 15, n 10
Written by the judges who cited it.
The opinion
NEWMAN, J.,
concurring.
I concur in the result. The police had probable cause to seize the vial and, on the basis of its discovery, they had probable cause to arrest defendant for possession of a controlled substance. As the majority recognizes, 75 Or App at 47, however, the subsequent opening and testing of the vial are searches that require independent justification for proceeding without a warrant. See State v. Lowry, 295 Or 337 , 667 P2d 996 (1983); State v. Herbert, 75 Or App 106 , 705 P2d 220 (1985)
The issue is whether there is an exception to the warrant requirement to justify the warrantless opening of the vial and the testing of its contents. There is not. As the majority states:
“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 presumed arrest for possession, and a logical stopping point had already been reached. The search was therefore not properly incident to the defendants’ presumed arrests for possession of a controlled substance. * * * The testing of the powder required a warrant.” 75 Or App at 50 . (Footnotes omitted.)
*53 With respect to Article I, section 9, the majority need not have said more.