State v. Westlund

ROSSMAN, J.,

dissenting in part; concurring in part.

I write separately out of a deep sense of frustration. Despite our best efforts, this court seems to be losing its ongoing struggle to find the true meaning of State v. Lowry. Although I would never presume to have insights into Lowry which my colleagues lack, I cannot believe that the majority’s interpretation is the correct one. Therefore, I must respectfully dissent.

This is not the first time that reasonable minds on this court have differed as to the true import of Lowry. See, e.g., State v. Herbert, 75 Or App 106 , 705P2d 220 (1985); State v. Flores, 68 Or App 617 , 685 P2d 999 , rev den 298 Or 151 (1984); see also State v. Robinson, 64 Or App 770 , 773 n 1, 669 *60 P2d 1175 (1983). Some of our members have adopted varying positions. Compare State v. Flores, supra, with the majority opinion here. However, others have steadfastly resisted a reading of Lowry that would require warrants to open and test the contents of a lawfully seized transparent vial.

It is not my purpose to be an obstructionist. I fully recognize this court’s responsibility to follow the mandate of the Supreme Court. The problem is that it is simply not possible to tell what that mandate is. The present majority goes to great lengths to find an answer. In the process I fear that we are getting lost in an academic exercise and loosing sight of the real world ramifications.

The majority concludes that, under Lowry, each step of a warrantless search or seizure must be independently justified by an exception to the warrant requirement. The majority applies its interpretation to this case and holds that, even though the vial was lawfully seized incident to arrest and even though the officer was sure it contained cocaine, the subsequent opening of the vial and the testing of its contents constituted additional searches, each of which required warrants or independent exceptions.

I do not understand how Lowry, or any well-reasoned opinion, could stand for that proposition. It defies logic and common sense. In the first place, the testing of lawfully seized evidence is not a search. A “search” has traditionally involved an element of seeking or looking, which, when successful, results in the discovery of contraband or other evidence. See Black’s Law Dictionary (5th ed 1979); Webster’s New Collegiate Dictionary (1974). The challenged actions in this case involved no seeking or discovery. The officers were certain or reasonably believed that the vial contained cocaine and were endeavoring only to confirm their beliefs. They were not on a mission to discover evidence, but only to identify it conclusively. Under such circumstances, there is no conceivable need for a warrant.

Secondly, regardless of under which constitution we analyze a “search,” the bottom line is whether the officer’s behavior was “reasonable.” 1 In cases such as this, when a *61 transparent vial or container is lawfully in police custody and it is clear to the officers that it contains a certain narcotic drug, it makes no sense whatsoever to require officers — in the name of reasonableness — to obtain warrants before testing the contents. It is not as though there is some off-hand chance that the warrant would be denied or that some privacy or property interest of the defendant would be protected. In such situtions, if an application were made, a warrant would be issued perfunctorily, thus reducing the magistrate’s role to a rubber stamp.

Why, then, require law enforcement officers to go through some ceremonial rain dance — merely postponing the inevitable? As part of their public service, law enforcement officials and trial judges are committed to many tasks on behalf of a wide range of diverse interests. Their time and resources are already stretched to the limit. Forcing them to engage in the process propounded by the majority is a colossal waste, which benefits no one except, as Gillette, J., has said, “the stationers who sell blank search warrant forms.” State v. Flores, supra, 68 Or App at 634 . In effect, the majority opinion does nothing more than elevate forms over (controlled) substances.

Perhaps the time will come when the Supreme Court tells us that the majority’s reading of Lowry is correct. In that event, I would, of course, accept it, albeit with misgivings. I just cannot help thinking how much more reasonable it would have been had Lowry been written in a straightforward manner, simply and clearly spelling out its holding. The criminal justice system can fimction effectively only if its laws can be plainly understood so that they can be applied in a consistent and predictable manner. I am reminded of a passage from Jungwirth v. Jungwirth, 115 Or 668, 672 , 240 P 222 (1925):

*62 “Praised be he who can state a [case] in a clear, simple and succinct manner, and then stop.”

I concur in the affirmance of the DUII conviction, but I respectfully dissent from the rest of the majority opinion.

Warden and Van Hoomissen, JJ., join in this opinion.

Reasonableness is the standard under both the United States and Oregon Constitutions. The Fourth Amendment to the United States Constitution provides, in pertinent part:

*61 “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” (Emphasis supplied.)

Similarly, Article I, section 9, of the Oregon Constitution provides, in pertinent part:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; * * (Emphasis supplied.)