# State v. Caraher > Oregon Supreme Court · November 2, 1982 · 293 Or. 741 URL: https://www.frixlaw.com/law-library/cases/9552786 ## Case - **Full name:** STATE OF OREGON, Respondent on Review, v. LOIS MARIE CARAHER, Petitioner on Review - **Court:** Oregon Supreme Court - **Decided:** November 2, 1982 - **Citations:** 293 Or. 741; 653 P.2d 942; 1982 Ore. LEXIS 1190 - **Precedential status:** Published - **Opinion:** Dissent by Lent - **Judges:** Roberts, Campbell, Tanzer, Lent - **Cited by:** 183 later opinions in the Frix Law Library ## Citator (automated) - **Yellow flag:** Questioned by State v. Langevin, 84 Or. App. 376 (1987). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9552786 ## How later opinions describe it (automated extraction) - holding that a search incident to arrest under Article I, section 9, is not limited to “considerations of the officer’s safety and [the] destruction of evidence” but also “permit [s] a search when it is relevant to the crime for which [the] defendant is being arrested and so l… - holding that states are free to impose greater restrictions on government activity based on their own constitutional provisions than those that the United States Supreme Court imposes with regard to federal constitutional provisions - explaining that a search incident to arrest for evidence of the crime of arrest is permitted “so long as it is reasonable in light of all the facts” - rejecting the federal practice of determining whether certain items of personal property warranted constitutional protection for purposes of the search incident to arrest exception under Article I, section 9 ## Opinion text LENT, C. J., dissenting. The purse was “seized,” i.e., it was taken from defendant’s possession at the time she was placed in the police car for transportation. Throughout the time the purse, the wallet and the coin compartment within were searched, the purse was physically beyond the defendant’s ability to reach it. She was in handcuffs in the back of the police car. A plastic shield separated the back of the car from the front. A police officer in the front searched the purse and the wallet. That police officer was never asked why she searched either container. With all due apology to Charles Dickens, I infer quite simply that this was “The Old Curiosity Search.” I shall assume for the sake of argument that there was probable cause to search the purse, even though cause depends in part upon the unsworn information of defendant’s companion and there is somewhat less than a paucity of evidence of his veracity in this record. The state quite rightly does not claim there were any exigent circumstances to justify search of these containers without a warrant. I do not perceive it to be necessary to cite authority for the proposition that under Article I, section 9, of the Oregon Constitution a warrantless search is considered in law to be unreasonable, thereby offending the constitutional prohibition against unreasonable searches, unless it can be shown to be a search sanctioned by a recognized exception. Both the majority and the concurring opinions here find an exception. That exception perforce must rest upon identifying the container in question by some kind of mumbo jumbo as to how closely it resembled an arrestee’s pockets, which may be searched incident to a lawful custodial arrest. Neither the police in the field nor the law-abiding citizen whose rights are constitutionally protected should have to analyze the lawfulness of police conduct by determining whether the container is more like luggage, on the one hand, or a cigarette box, on the other. Both are containers that are not part of the clothing of the citizen. *771 Both may be taken into the possession of the police without removing the citizen’s clothing. If the citizen from whom a container is taken will not voluntarily consent to its search without a warrant, the police may inventory the container as such, i.e., a trunk, a suitcase, a briefcase, a knapsack, a knotted bandana, a paper sack, a purse, a cigarette case, or whatever best describes that container. The. police, the citizenry and the courts of this state would be served best by a simple holding that the Oregon Constitution prohibits the warrantless search of a closed container seized by the police and placed beyond the reach of the arrestee. In a case such as this, the police would know that they must not search the container without first making a showing to a magistrate that there was probable cause to believe the purse contained evidence of crime. Assuming such a showing could be made, I would observe that the same evidence for conviction would have been obtained in accordance with the constitution as was obtained here in a manner judicially approved only after three levels of scrutiny. Under the simple rule I propose, the arrestee’s rights against unreasonable searches would be protected by Article I, section 9, of the Oregon Constitution, and there would be no need to inquire whether the arrestee is deprived of liberty or property without due process of law under the United States Constitution. I am authorized to say that Justice Linde agrees that this would be the better rule, see State v. Brown, 291 Or 642, 656 , 634 P2d 212 (1981) (concurring opinion), although he concurs in the majority’s statement of Oregon law as it stood before State v. Florance, 270 Or 169 , 527 P2d 1202 (1974), abandoned it in order to follow federal cases. I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9552786. Public record. Not legal advice.