State v. Caraher

CAMPBELL, J.,

concurring in result.

I concur only in the result reached by the majority. The majority opinion in this case will be remembered as the case in which we shot down United States v. Robinson, 414 US 218 , 94 S Ct 467 , 38 LEd 2d 427 (1973) and departed on a lonely journey in the dark of the moon and against the wind into the quagmire of the law of “search and seizure” with only “reasonableness” as a compass.

This court adopted the Robinson rule in 1974 in the case of State v. Florance, 270 Or 169 , 527 P2d 1202 . The membership of this court has completely turned over since 1973 — none of the present judges sat on the Florance case. Maybe the time is near at hand when we should take another look at whether or not we will follow decisions of the Supreme Court of the United States “on questions affecting the Constitution of the United States and the rights of citizens under the provisions of that Constitution, as well as under” the almost identical provisions of the Oregon Constitution. State v. Florance, supra, 270 Or at 183 .

It would seem that we would be well advised to wait for a case in which that question has been squarely presented, briefed and argued. This is not that case. In the meantime we should follow United States v. Robinson, supra, and the United States Supreme Court decisions which follow it for the reasons set out in State v. Florance, supra, one of which is:

“* * * ]\j0t adopting the rule of Robinson would add further confusion in that there would then be an ‘Oregon rule’ and a ‘federal rule.’ Federal and state law officers frequently work together and in many instances do not know whether their efforts will result in a federal or a state prosecution or both. In these instances two different rules would cause confusion.” ( 270 Or 184 ).

Oregon is not the only state to adopt the Robinson rule. 2 LaFave, Search and Seizure § 5.2 (1978) (a treatise on the Fourth Amendment) states at page 264-265:

*761 “Robinson and Gustafson have had a significant impact. They are very frequently cited by lower courts in upholding full search incident to custodial arrest. Most noteworthy, however, is the fact that some of the state courts which had previously taken a narrower view of the authority to search the person incident to arrest have accepted the Robinson-Gustafson position, either on the ground that their earlier interpretation of the requirements of the Fourth Amendment has now been established as erroneous or on the ground that their earlier interpretation of comparable state constitutional provisions should be brought into line with the interpretation the Supreme Court has given to the Fourth Amendment. Only rarely has a state court rejected Robinson and Gustafson and construed a state constitutional provision more narrowly.” 1 (Footnotes omitted.)

This court has also adopted the rule of United States v. Chadwick, 433 US 1 , 97 S Ct 2476 , 53 LEd 2d 538 (1977). See State v. Groda, 285 Or 321 , 591 P2d 1354 (1979).

In this case under United States v. Robinson, supra, the state contends that the search of the purse was a search of the person incident to arrest and that no additional justification was required beyond the probable cause to arrest. On the other hand, the defendant contends under United States v. Chadwick, supra, that the purse was a closed container not immediately associated with her person and that the officers had reduced it to their exclusive control. Therefore, because there was no longer any danger that she would obtain access to the purse, the search was not an incident to arrest and a warrant was required. The parties’ opposing contentions require re-examination of the Robinson and Chadwick cases.

In Robinson an officer of the District of Columbia arrested the defendant for driving without an operator’s permit. When the defendant emerged from the vehicle the officer searched him and found a “crumpled up cigarette *762 package” in the breast pocket of the coat he was wearing. The officer opened the package and found 14 capsules of white powder which proved to be heroin. The United States Supreme Court reinstated the defendant’s conviction saying:

«* * * The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.” 414 US at 235 , 94 S Ct at 477 , 38 LEd 2d at 440-441.

In Chadwick the federal agents in Boston, acting on a tip from San Diego, watched Chadwick, a railroad station attendant, and a third man load a 200 pound footlocker into the truck of Chadwick’s automobile. While the trunk was still open and before the engine of the car was started the agents arrested Chadwick. The footlocker was moved to the federal building where one and one-half hours later it was opened and large amounts of marijuana were found. Chadwick filed a motion to suppress. The government tried to justify the search as an incident to arrest. The Supreme Court of the United States affirmed the order allowing the motion and said:

“* * * However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States, 376 US at 365, 11 LEd 2d 777, 84 S Ct 881 , or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident *763 of the arrest.” (Emphasis added; footnote omitted.) 433 US at 15 , 97 S Ct at 2485 , 53 L Ed 2d at 550-551 .

In State v. Brown, 291 Or 642 , 643 P2d 212 (1981) we found that Chadwick by using the phrase “personal property not immediately associated with the person of the arrestee” had distinguished it from Robinson . In other words, that Chadwick had exempted from the application of its ruling personal property discovered as a result of the search of a person, such as “wallets, cigarette boxes, and the like.” 291 Or at 653 .

The above quoted phrase ‘wallets, cigarette boxes, and the like used in State v. Brown was taken from 2 LaFave, Search and Seizure, supra §5.5 at 347 where the full text is:

“* * * A search is deemed to be ‘of a person’ if it involves an exploration into an individual’s clothing, including a further search within small containers, such as wallets, cigarette boxes and the like, which are found in or about such clothing. '* * *.”

Brown was an easy case in that the cigarette box which the defendant surrendered to the jailer came from one of his pockets and therfore clearly fell within the classification of a search of the person and was a search incident to arrest under Robinson and not a search of a closed container prohibited under Chadwick .

This case is more difficult because the purse carried by the defendant does not quickly fit our Brown-LaFave definition of “search of a person.” A handbag or a purse carried by a person is not necessarily a small container such as a wallet or cigarette box found in the clothing. However, under some circumstances a handbag or purse might qualify under the looser language of the definition and be a “like” which is found about “such clothing.”

Thus, we are required to move from Robinson to Chadwick and determine if the defendant’s purse was “luggage or other personal property not immediately associated with the person of the arrestee” and therefore a closed container. We do not have a description of the defendant’s purse. We know only that it was carried by the defendant in her hand at the time of arrest and that it contained a *764 wallet. The defendant is charged with the possession of drugs found within the wallet.

Apparently, one of the first cases to consider the United States Supreme Court’s decision in Chadwick was United States v. Berry, 56'0 F2d 861 (7th Cir 1977). 2 In the Berry case several FBI agents suspected Stephen Berry and Robert Wilson of being bank robbers and followed them to an apartment house in Schiller Park, Illinois. After an hour and 15 minutes Berry and Wilson left the building and walked to two parked cars. Berry entered one car while Wilson opened the trunk of the other and removed an attache case. As Wilson walked toward Berry’s car both men were arrested and handcuffed. The attache case was taken from Wilson and placed on the ground. Approximately eight minutes after the arrest the case was opened by an agent and contraband was found. The defendants filed a motion to suppress. The Court of Appeals at page 864 held:

“Finally, unlike a purse that might be characterized as ‘immediately associated with the person of the arrestee’ because it is carried with the person at all times, the attache case here was more like luggage in that Wilson was not carrying it when he left the building, but rather removed it from an auto trunk immediately before his arrest. The warrantless search of the attache case in police custody thus cannot be justified as a search of Wilson’s person.” 3

*765 In State v. Sabater, 3 Kan App 2d 692, 601 P2d 11 rev den (1979), the defendant was convicted of possession of cocaine. When the defendant was placed Under arrest on a different charge the police officer took her pocketbook. The officer searched the pocketbook and in it he found a wallet which contained a drinking straw. The residue in the straw contained cocaine. The court upheld the search and said:

“The custodial arrest of defendant was a seizure of her person. The search of her pocketbook and wallet was lawful. United States v. Robinson, 414 U.S. 218 , 94 S.Ct. 467 , 38 L.Ed.2d 427 (1973). We do not view defendant’s pocketbook to have been a repository of personal property coming within the rule enunciated in Chadwick or in such of its progeny as United States v. Schleis, 582 F.2d 1166 (8th Cir. 1978). We hold defendant’s pocketbook was immediately associated with the person of defendant, the arrestee, and the search of the pocketbook involved no greater reduction in her expectations of privacy than that caused by the arrest itself. * * 601 P2d at 13-14 .

In United States v. Moreno, 569 F2d 1049, (9th Cir) cert den 435 US 972 (1978) undercover agents in San Diego “set up” a buy of ten ounces of heroin from Raymond Moreno. At the delivery site Jody Moreno’s purse was taken from her and searched. It contained a revolver and marked money from a previous drug transaction. The Ninth Circuit Court of Appeals held that the search of the purse was valid as an incident to her arrest citing Chimel v. California, 395 US 752 , 89 S Ct 2034 , 23 LEd 2d 685 (1969). Robinson and Chadwick were not cited.

In Sumlin v. State, 266 Ark 709 , 587 SW2d 571 , the defendant was convicted of murder, escape and robbery. A knife and the robbery victim’s billfold were found in the defendant’s purse when she was arrested. The purse was then held and inventoried at the jail. The Arkansas Supreme Court held that “[a] search of an individual’s personal effects is incidental to an arrest if it is conducted shortly thereafter at a jail. U.S. v. Edwards, 415 U.S. 800 , 94 S.Ct. 1234 , 39 L.Ed.2d. 771 (1974).” 266 Ark at 719 , 587 SW2d at 577 .

In Dawson v. State, 40 Md App 640, 395 A2d 160 (1978) the defendant Betty Dawson was convicted of manslaughter. When a policeman arrived upon the scene he *766 seized and searched Dawson’s pocketbook and found a small caliber handgun. The defendant moved to suppress citing United States v. Chadwick. The Maryland Court of Appeals upheld the search:

“Returning to the instant case, we think appellant’s pocketbook, unlike the footlocker in Chadwick , suitcases in Ester and Dudley, the overnight case in Dean and the briefcase in Shingleton, was ‘immediately associated with the person of the arrestee.’ Therefore, under the rationale of Berry which we adopt, the search was permissible under Chadwick as a search of appellant’s person. Such a search, we believe, is analytically akin to a search of items found in an arrestee’s clothing or pockets.” 4 395 A2d at 167 .

In Stewart v. State, 611 SW2d 434 (Tex Crim App 1981) the defendant, Sherry Lea Stewart was arrested for shoplifting a steak and a bottle of bath oil. Her purse was seized and, pursuant to a search, cocaine was found. The Texas court discussed Robinson and Chadwick at length. It concluded the search was good. The opinion at 438 said:

“In the instant case, we believe that the search of the purse is better characterized as a search of items immediately associated with the person of the appellant. As a matter of common usage, a purse is an item carried on an individual’s person in the sense that a wallet or items found in pockets are and unlike luggage that might be characterized as ‘a repository for personal items when one wishes to transport them,’ Arkansas v. Sanders, [ 442 US 753 , 99 S Ct 2586 , 61 LEd 2d 235 (1979)] a purse is carried with a person at all times. Although the arrest of appellant, standing alone, did not destroy whatever privacy interests she had in the contents of the purse, it did, at least for a reasonable time and to a reasonable extent, subordinate those interests to the legitimate governmental interest in discovering weapons and preventing the destruction or secretion of evidence.”

In Hinkel v. Anchorage, 618 P2d 1069 (Alaska 1980) 5 Officer Thompson witnessed an automobile accident *767 involving the defendant, Ida Marie Hinkel. The vehicle driven by Hinkel smashed into another vehicle after running a red light at a high rate of speed. After Hinkel refused to show Thompson her driver’s license or get out of her vehicle he took hold of her and her purse and proceeded to pull her out of the vehicle. In the struggle her purse, which had been next to her on the front seat, was left in her vehicle. Hinkel was escorted by Thompson to the back seat of his patrol car. Another officer took the purse from Hinkel’s vehicle and gave it to Thompson. The purse was then opened by Thompson who discovered that it contained a loaded hand gun. Hinkel was charged with carrying a concealed weapon and reckless driving. The Alaska Supreme Court found that the search was good. It discussed the oft quoted language of Chadwick — “luggage or other personal property not immediately associated with the person of the arrestee,” and in connection with it said at page 1071:

“This language must mean that containers found in clothing pockets may be searched. In our view it also suggests that containers such as purses which are often worn on the person and generally serve the same function as clothing pockets are also excepted from the strict exigency requirement. It would be possible, of course, to treat containers found in clothes pockets, such as billfolds, differently from items such as purses which are not carried in pockets but serve the same purpose. However, we can think of no reasons to justify such a distinction. We conclude that Hinkel’s purse was property immediately associated with her person and, therefore, was properly searched incident to her arrest.” (Footnote omitted.)

In United States v. Venizelos, 495 F Supp 1277 (SD NY 1980) 6 the defendant, Arietta Venizelos, was arrested pursuant to a warrant while driving a small rental car in White Plains, New York. The warrant had been issued under an indictment charging the defendant with a conspiracy to distribute drugs. When arrested the defendant denied her identity and claimed that she was Leslie Kinney. When *768 she started to reach into her purse or handbag an agent stopped her and took the purse. The agent then opened the purse and took out a wallet which he handed back to the defendant. From the wallet the defendant produced a driver’s license in the name Leslie Kinney. The agents took the defendant to the Kinney residence where Mrs. Kinney refused to support the defendant’s claim that she was Mrs. Kinney’s daughter. At the drug enforcement headquarters a more complete search of the purse disclosed needles, syringes, pills, and marijuana. The Federal District Judge upheld the search. At page 1282 of his opinion he said:

“In affirming that opinion, [United States v. Chadwick] the Supreme Court limited its holding to ‘luggage or other personal property not immediately associated with the person of the arrestee.’ Thus, the court left intact the long line of cases authorizing searches incident to arrest of personal effects — such as the handbag involved here — found in the immediate possession of the arrestee during the course of a lawful arrest.

“We are convinced that the facts of the instant case are sufficiently distinct from those of Chadwick and Sanders to render those cases inapposite. Here the handbag was small, readily accessible to the defendant, portable, easily capable of being opened, and within the defendant’s grasp. It was not heavy, or difficult to carry or maneuver. It carried items normally closely associated with the person itself— identification, cosmetics, money, a wallet, and other items one would normally carry at all times. Indeed, it is reasonable to suppose that had it not been seized at the time of the arrest, the defendant probably would have brought the handbag with her to the DEA district office for identification and to assist in ‘booking,’ at which time its contents could have been inspected and inventoried under routine police procedures.” (Footnotes omitted.)

The general thread that seems to run through all of the above cases is that a handbag or a purse is similar to and serves the same function as a pocket or pockets in a person’s clothing. Both the purse and the pockets are used to carry the same personal items — wallet, identification and cosmetics. Several courts have mentioned that a purse is carried by a person at all times. No court has gone so far as to say that a purse is a “portable pocket.”

*769 The bottom line in this case is that the defendant’s purse was personal property “immediately associated with the person of the arrestee” and therefore subject to search as an incident to arrest. No additonal justification beyond probable cause to arrest was required. There was sufficient probable cause to arrest the defendant. She told the police that she was selling “bunk” and her male companion told them that she was in the possession of cocaine. 7

It is of no concern that the police officers did not search the defendant’s purse until after she was handcuffed and placed in the back of the patrol car. In State v. Florance, supra, 270 Or 191 -192:

“We hold, however, that upon the taking into custody of a person following a legal arrest, such a search of the person arrested as would be reasonable if made by the officer at that time and place may be made by him at any time in the course of transporting the arrested person to jail.”

In State v. Brown, supra, we went one step further and said that the defendant could be searched at the jail as an incident to the arrest.

I would hold that the search was good. 8 I would affirm both the Court of Appeals and the trial court.

*770 Tanzer, J., joins in this opinion.

It is true that the quoted statement was published in 1978, but the 1982 pocket part to the text does not indicate any change.

The Gustafson case referred to is Gustafson v. Florida, 414 US 260 , 94 S Ct 488 , 38 LEd 2d 456 (1973) decided the same day as United States v. Robinson, supra.

Chadwick was decided June 21, 1977 and Berry was decided August 24, 1977.

The reference to the “purse” by the Seventh Circuit Court of Appeals is dicta in that context. 2 LaFave, Search and Seizure § 5.5 at 355 commments on the Berry case as follows:

“Whether or not the Berry result will be accepted by other courts, this case identifies the critical issue posed by Chadwick : precisely what is it that takes a possessed container outside the Robinson search-incident-to arrest rule? One possible answer, given in Berry, is that Robinson extends only to containers on the person and containers such as a purse which are ‘immediately associated’ with the person. But Chadwick does not articulate this distinction; as the dissenters noted, the ‘Court’s opinion does not explain why a wallet carried in the arrested person’s clothing, but not the footlocker in the present case is subject to “reduced expectations of privacy caused by the arrest.’ ” At one point, however, the Chadwick majority asserted that by ‘placing personal effects inside a double-locked footlocker, respondents manifested an expectation that the contents would remain free from public examination.’ From this, it might be contended that the distinction is not that drawn in Berry, but rather between secured and unsecured containers. This approach would produce a different result in Berry and in many other situations.” (Footnotes omitted.)

The cases referred to by the Maryland court are: United States v. Chadwick, 433 US 1 , 97 S Ct 2476 , 53 LEd 2d 538 (1977); United States v. Ester, 442 F Supp 736 (SDNY 1977); State v. Dudley, 561 SW 2d 403 (Mo App) (1978); State v. Dean, 574 P2d 572 ); United States v. Berry, 560 F2d 861 (7th Cir) cert den 439 US 840 (1977).

But see United States v. Farrar, 470 F Supp 128 (SD Miss 1979) wherein the Federal District Court ruled that a 9 inch by 12 inch purse hidden under the *767 passenger’s seat was within the scope of the Chadwick rule and therefore a warrant was required.

In the Moreno, Sumlin, Hinkel, and Venizelos cases the defendant was arrested in an automobile and the search in each case probably would now be upheld on an additional ground under New York v. Belton, 453 US 454 , 101 S Ct 2860 , 69 LEd 2d 768 (1981).

One of the officers at the motion to suppress testified as follows:

“By bunk I asked her if she meant quantities that are sold on the street supposedly to be narcotics but not actually narcotics, a fraud that is common on the streets downtown, and she said yes, that’s what she had been doing.”

It is a crime to deliver an imitation controlled substance. ORS 475.991.

There is some interesting language in United States v. Chadwick, 532 F2d 773 (1st Cir 1976), the United States Court of Appeals case for the First Circuit which was later affirmed by the Supreme Court in United States v. Chadwick, 433 US 1 , 97 S Ct 2476 , 53 LEd 2d 538 (1977):

■<* * * portable objects in hand such as zipper bags, briefcases and small suitcases fit without too much difficulty in Chimel’s ‘immediate control’ standard. Their size, accessibility, and portability all liken them to ‘personal effects’ found on an arrestee’s person, such as clothing or a cigarette package in one’s pocket, which may lawfully be searched without a warrant as. incident to an arrest. See United States v. Robinson, supra; United States v. Edwards, supra. To exclude searches of such items can create “gossamer thin” distinctions which arresting officers could find impracticable, if not impossible, to follow; and, where the justification for a search depends to a great extent on the reasonable judgments which the arresting officers could have made at the time of arrest, see United States v. Robinson, supra, those distinctions would appear unwarranted.” (Footnote omitted.) 532 F2d at 780.