# State v. Bennett

> Oregon Supreme Court · July 1, 1986 · 301 Or. 299

URL: https://www.frixlaw.com/law-library/cases/9548378

## Case

- **Full name:** STATE OF OREGON, Petitioner on Review, v. JOEL DEAN BENNETT, Respondent on Review
- **Court:** Oregon Supreme Court
- **Decided:** July 1, 1986
- **Citations:** 301 Or. 299; 721 P.2d 1375; 1986 Ore. LEXIS 1450
- **Precedential status:** Published
- **Opinion:** Dissent by Lent
- **Judges:** Peterson, Jones, Lent, Linde
- **Cited by:** 26 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9548378

## Opinion text

LENT, J.,
dissenting.
The majority regards this case as a mere “trailer” to State v. Brown, 301 Or 268 , 721 P2d 1357 (1986). To do so violates the basic rules concerning matters that can be considered on appeal and review and is, therefore, unfair to this particular defendant. In addition, I cannot agree with the majority concerning the search of the trunk for the reasons expressed in the dissent in State v. Brown, supra, and the search of the containers found in the trunk for the reasons later addressed herein.
I address first the appellate posture of this case. Relying on both Article I, section 9, of the Oregon Constitution and the Fourth and Fourteenth Amendments to the Constitution of the United States, defendant moved in the *311 trial court to suppress the evidence gained through war-rantless searches of the closed containers that were in the automobile, contending:
“(1) There was no warrant issued for this search or seizure, (2) There was no consent for this search or seizure, (3) This search or seizure was not lawfully incident to any lawful preceding arrest, (4) This search or seizure was not otherwise lawful, and (5) The arrest of the defendant was unlawful.”
The first two bases were not contested by the state, and the trial court found there was no warrant and no consent to search. The trial judge went on to find that there was no evidence even offered of either an “emergency or condition that would endanger the evidence while a search warrant was obtained” and further found as a historical fact that there was time to get a warrant. 1 That finding is binding on the appellate courts under Ball v. Gladden, 250 Or 485 , 443 P2d 621 (1968), and the many cases decided since applying the rule of Ball .
The trial court held that all of the evidence obtained by the search of the automobile should be suppressed.
Pursuant to ORS 138.060(3), the state appealed and in its brief to the Court of Appeals stated the question presented on appeal:
“Was the search of defendant’s car and the opening of closed containers therein lawful as a search incident to arrest under Article I, section 9, of the Oregon Constitution?” 2
In the brief the state also conceded that there was then no “automobile exception” under the Oregon Constitution unless an individual case “fits under a particular showing of exigent circumstances.” The state then asserted that the lawfulness of this search “must be examined solely pursuant to the rule of search incident to arrest.” The defendant was not required to, and did not, argue about an “automobile exception” under the Oregon Constitution.
When the Court of Appeals affirmed the trial court as to the search of the trunk, the state petitioned this court for *312 review, contending that the search of the trunk and the containers therein “was a lawful search incident to arrest” under the Oregon Constitution. The state asserted:
“Under Article I, section 9, of the Oregon Constitution, the case is a textbook application of the search-incident-to-arrest rule as set forth in State v Caraher.”
The state concluded its petition for review as follows:
“This case also presents a rare situation in which a search can be justified under both the state and the federal constitution, but under different exceptions to the warrant requirement. In the area of car trunk searches, Oregon’s Krogness rule apparently is more permissive than the federal rule in terms of search incident to arrest. But the search is nonetheless lawful under the federal automobile exception of United States v. Ross, supra. The employment of different exceptions under different constitutions to achieve the same result is a practice deserving of attention by Oregon’s highest court.”
After allowing review, this court addressed questions to counsel. On their face they addressed searches incident to arrest, and counsel for both parties so understood them, to judge from their respective answers. Several months after oral argument in this court, we again addressed questions to counsel about the application and effect of ORS 167.247, but there is no hint in those questions that we might decide this case on the basis of an “automobile exception” under the Oregon Constitution.
To now decide this case on a basis never presented by the state on appeal or review and never presented by this court to defendant for argument is patently unfair.
I suppose that the majority might answer that the rule of law that applies to automobile searches has been hovering out there somewhere as a truth independent of man’s thought and has been discovered, rather than invented, by this court in Brown . That is, it is something that existed and could not be affected by argument. The Supreme Court of the United States apparently is not so sure. In Robbins v. California, 453 US 420 , 101 S Ct 2841 , 69 L Ed 2d 744 (1981), that court, on the arguments presented by counsel in that case, held that the opening of closed containers without a search warrant during lawful search of an automobile violated the Fourth and Fourteenth Amendment rights of the defendant. On different *313 argument by different counsel, that court, less than a year later, overruled that holding of Robbins in United States v. Ross, 456 US 798 , 102 S Ct 2157 , 72 L Ed 2d 572 (1982). How would this court’s majority have decided on the issué of the closed container in the automobile had this case been presented in the interim? Should not this court at least listen to this defendant’s. argument before applying the rule “newly discovered” in Brown?
The majority, with respect to the search of the closed containers (other than the trunk), distinguishes United States v. Chadwick, 433 US 1 , 97 S Ct 2476 , 53 L Ed 2d 538 (1977), and Arkansas v. Sanders, 442 US 753 , 99 S Ct 2586 , 61 L Ed 2d 235 (1979), on the ground that there probable cause was confined to the container rather than the entire vehicle in which the containers were seized. This differs from the case at bar and Ross , says the majority, because in these cases there was no probable cause to search any particular container. I am simply unable to discern any principled reason that leads to a rule that if an officer has probable cause to believe that a footlocker or suitcase in a car contains contraband, he cannot search those containers without a warrant, but if he only has probable cause to believe that contraband is somewhere in a car, he can search a footlocker or suitcase without probable cause to believe that the particular container contains contraband.
Underlying the federal'decisions on vehicle searches is an asserted “reduced expectation of privacy” one has in his automobile. Although this may be argued as to those parts of the auto that are open to view by the most casual passerby, it is just not true as to the locked trunk of the auto. All of us move in our autos effects that are most private, and when we do so we are more apt to put them in the trunk than in some other part of the vehicle. A subset of “all of us,” i.e., judges and lawyers, often carry highly confidential papers in our autos, and if we are careful (as we ought to be) we probably lock them in the trunk.
“Despite the wealth of language that privacy in automobiles is less important than in other areas, most members of our society must frequently use automobiles to convey undeniably private papers and effects. For example, the workload of this court often requires judges to take their work home. The automobile provides the usual mode for transporting drafts of *314 opinions, notations indicating the probable outcome of submitted cases, and confidential messages from other judges. To say that there is no expectation of privacy in such papers, release of which would constitute a dereliction of duty, would be to ignore reality. And judges are of course not alone in this regard.”
United States v. Edwards, 554 F2d 1331, 1338 (5th Cir 1977).
I am not sure just how much the majority in Brown and in this case mean to cover. Would the very containers searched without warrant in this case have been constitutionally impervious to warrantless search if they were not in an automobile, even if the officers had probable cause to believe that they contained contraband and had therefore seized them? Do the majority opinions in these cases allow the police to open and search other closed containers in an auto after the police have found the object of the search? Do the majority opinions extend to search for evidence of crime that is not itself contraband? 3
The majority relies on the persuasiveness of the reasoning of the Supreme Court of the United States in construing the Oregon Constitution. In cases such as New York v. Belton, 453 US 454 , 101 S Ct 2860 , 69 L Ed 2d 768 (1981), and United States v. Ross, supra, that court and, in these cases, the majority of this court strive for a bright line to guide the police officer in the field. Bright lines may not always be helpful. One critic has written:
“CONCLUSION: THE INCREDIBLE HULK ATTENDS THE POLICE ACADEMY
“It is possible to view bright line fourth amendment rules simply as political gimmicks. Both activist hawks and activist doves, when they have the upper hand, may be tempted to play for higher stakes than the appropriate resolution of a *315 case. If the Supreme Court’s assertion of the need for bright line rules is taken at face value, however, the Court seems to regard law enforcement officers as incapable of case-by-case judgment. Perhaps, after this lengthy attempt at responsible scholarship, you are ready for an attempt at irresponsible whimsy. I therefore present to you the highest ranking graduate of the police academy class of 1990. He is green and muscular; his name is Officer Gazenga; and these are his words:
“Gazenga is a good officer. He has memorized all 437 Supreme Court bright line rules for search and seizure. For example, Gazenga has made a lawful arrest in a car. Gazenga rip that car apart! But Gazenga never touch trunk of car unless there is probable cause, for Gazenga has read footnote 4 of Belton opinion.
“Now Gazenga has made a lawful arrest in a house. Different bright line rule apply to a house. Gazenga may search glove compartment of car when suspect far away, but may not search desk drawer in living room unless suspect right there. Why? Supreme Court say so. Gazenga just a cop.
“Gazenga now has made lawful arrest in cabin cruiser. Oh no! Supreme Court forgot to give Gazenga bright line rule for cabin cruiser! What is poor Gazenga to do?
“Of course, this picture of Officer Gazenga’s lessons at the police academy is overdrawn, and so is the following depiction of another lesson that might be taught at the police academy of 1990 — a lesson that would teach most of what an officer would need to know about the fourth amendment in about sixty seconds:
“Ladies and gentlemen, the fourth amendment forbids unreasonable searches and seizures. It requires you to have a strong and persuasive reason before you make a search, seizure or arrest. I emphasize that your reason for invading someone’s privacy must be a reason that another person is likely to find persuasive, for very frequently you will not be the final judge of your actions. A court that passes on these actions ought to recognize the difficulty of the situation that confronted you, but it cannot credit whims, hunches or insubstantial reasons. What is more, you are expected to take your reasons to a judge before making a search or seizure whenever you can. You must do this by filing a sworn written statement that describes the relevant facts in detail and by asking the judge to issue a search or arrest *316 warrant. Of course there may be situations in which you believe that you have a persuasive reason for a search or seizure and a judge disagrees. Basically, however, if you act in a decent manner, respect the other person’s privacy and seek a warrant whenever you can, your actions will not violate the fourth amendment.”
Alschuler, Bright Line Fever and the Fourth Amendment, 45 U of Pitt L Rev 227, 285-86 (1984).
In another article, which I find to be persuasive, Professor Grano takes the position that the impracticality of obtaining a search warrant should be the only justification for “excusing” warrantless searches. Grano, Rethinking the Fourth Amendment Warrant Requirement, 19 Am Crim L Rev 603 (1982). At page 650 he concludes:
“In summary, the approach articulated in this article for bringing coherence to the warrant branch of fourth amendment law results in two propositions: (1) plain view seizures based upon probable cause are always permissible, with or without a warrant; (2) warrantless searches are never permissible if the evidence can be preserved by a seizure, unless for some other reason a delay to obtain a warrant would threaten life, safety, or legitimate law enforcement interest. Unlike the rules that now govern warrant law, these propositions do not depend upon a convoluted analysis seeking to distinguish the indistinguishable. Moreover, they can easily be taught to judges, lawyers, law students and, perhaps most importantly, to police officers. Finally, as I have tried to demonstrate, these propositions support rather than disparage the values reflected in the fourth amendment warrant clause.” (Footnote omitted.)
I find the reasoning of Professor Grano more persuasive than that of the Supreme Court of the United States as it zigzags from one decision to another. I would interpret the Oregon Constitution to reflect that view. I would not have to change the meaning of the Oregon Constitution the next time the higher court changes its mind about a rule that it espouses concerning the Fourth Amendment. 4
*317 In this case it was not impractical to obtain a warrant before searching the containers after they were seized. The trial judge so found as a historical fact that is binding on the appellate courts. I would hold that after the automobile and its contents were seized the police had to obtain warrants to open and search the closed containers in the automobile. I would therefore affirm the ruling of the trial court.
I am well aware that my brethren are tired of hearing me express my fears concerning the direction judicial decisions are taking us. The right of all persons subject to our federal and state constitutions to be free of unlawful intrusion by way of police search and seizure has been a primary concern of those adopting the various constitutions, as the inclusion therein of provisions similar to the Fourth Amendment and Article I, section 9, of the Oregon Constitution will attest. Because of the widespread trafficking of illegal drugs and the praiseworthy efforts of our people to prevent or punish that trafficking, however, the courts are making decisions that threaten the rights guaranteed to all of us. The price is too high. I do not want to live in a state where the police, for the purpose of the war on drugs or any other criminal activity, may commit acts forbidden by our constitution.
The police could undoubtedly catch criminals more easily were it not for the restrictions imposed by our fundamental law. I daresay that the task of the police in the U.S.S.R. and many other countries around the world is easier than that of our police. The constitutional restrictions on our police are the price we pay for assuming (I was going to say knowing) that we shall be secure in our persons, houses, papers and effects against unlawful conduct by the police. As Justice Jackson said in dissent in Brinegar v. United States, 338 US 160 , 69 S Ct 1302, 1313 , 93 L Ed 1879 (1949):
“[Fourth amendment rights] are not mere second-class rights but belong in the catalog of indispensable freedoms. Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart. Uncontrolled search and seizure is one of the most effective weapons in the arsenal of every arbitrary government. * * *
“But the right to be secure against searches and seizures is one of the most difficult to protect. Since the officers are *318 themselves the chief invaders, there is no enforcement outside of court.” 5
Article I, section 9, of the Oregon Constitution does not say that our people shall “be secure in their persons, houses, papers, and effects EXCEPT THEIR AUTOMOBILES AND CONTAINERS THEREIN.” If it did, today’s decisions would be correct. As it is, these decisions are not correct.
Linde, J., joins in this dissenting opinion.
The state conceded in the trial court and in the Court of Appeals that there was no “exigency.”
One of the officers who participated in the search testified that the officers “were searching incident to arrest.”
In Carroll v. United States, 267 US 132 , 45 S Ct 280 , 69 L Ed 543 (1925), the case described as “seminal” by the majority in State v. Brown, 301 Or 268 , 721 P2d 1357 (1986), the court said that the leading case on the subject of search and seizure was Boyd v. United States, 116 US 616 , 6 S Ct 524 , 29 L Ed 746 (1886). In Boyd the court distinguished what the government constitutionally might do in searching for and seizing contraband and what it constitutionally might do with respect to obtaining evidence to convict which was not itself contraband. Carroll approves of the Boyd decision and quotes extensively therefrom. Carroll also made it very clear that there were limits to the search of a mobile vehicle, saying that where securing a warrant is “reasonably practical, it must be used.” 267 US at 156 .
The majority’s path would have resulted in the Oregon Constitution being given a meaning by the decision of the Supreme Court of the United States in Robbins v. California, 453 US 420 , 101 S Ct 2841 , 69 L Ed 2d 744 (1981), and being amended in less than a year, without vote of the people of Oregon, by the decision in United States v. Ross, 456 US 798 , 102 S Ct 2157 , 72 L Ed 2d 572 (1982).
The dissent of Justice Frankfurter (joined by Justice Jackson) in United States v. Rabinowitz, 339 US 56, 68 , 70 S Ct 430 , 94 L Ed 653 (1950), is more eloquent but too long to justify quotation in this losing opinion. It was quoted in defendant’s written response to this court’s questions, but the eloquence and logic appear wasted on those impatient of the constitutional obstacles to police “efficiency.”

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9548378. Public record. Not legal advice.