# State v. Herbert

> Oregon Supreme Court · November 20, 1986 · 302 Or. 237

URL: https://www.frixlaw.com/law-library/cases/9570463

## Case

- **Full name:** STATE OF OREGON, Respondent on Review, v. JERALD C. HERBERT, Petitioner on Review
- **Court:** Oregon Supreme Court
- **Decided:** November 20, 1986
- **Citations:** 302 Or. 237; 729 P.2d 547; 1986 Ore. LEXIS 1785
- **Precedential status:** Published
- **Opinion:** Dissent by Lent
- **Judges:** Lent, Linde, Peterson, Campbell, Carson, Jones
- **Cited by:** 53 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/9570463

## How later opinions describe it (automated extraction)

- concluding that police had probable cause to believe that an opaque paperfold contained contraband based on the paper-fold’s appearance and shape along with “additional facts,” such as the defendant’s attempt “to distract the officer while [he] furtively removed the paperfold …
- reasoning that a container associated with the storage and transportation of drugs that a defendant attempts to hide in a furtive manner are factors to be considered when determining whether there is probable cause to believe that they contain drugs
- noting that the unique shape of a folded piece of paper coupled with the fact that the defendant attempted to dispose of the paper while the officer was not looking gave the officer probable cause to believe that the folded paper contained drugs, but not addressing whether the…

## Opinion text

LENT, J.,
dissenting.
As in State v. Owens, 302 Or 196 , 729 P2d 524 (1986), the police opened a container and chemically analyzed its contents. Unlike in Owens , the container was opaque. Perhaps for this reason, the majority describes the opening of the container as a “search.” Cf. State v. Owens, supra, 302 Or at 199 . The majority concludes that the police had the right to open the container because a police officer, based on his experience, had probable cause to believe that a controlled substance would be found within the container. The majority also concludes that the warrantless testing of the substance was constitutional, citing Owens .
Probable cause alone, however, does not justify a warrantless search. See, e.g., State v. Matsen/ Wilson, 287 Or 581 , 601 P2d 784 (1979). The majority does not justify the warrantless opening of the container under any exception to the warrant requirement. In addition, for the reasons stated in my dissent in State v. Owens, supra, 302 Or at 215 , the majority has not justified the warrantless testing of the contents of the container.
Linde, J., joins in this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9570463. Public record. Not legal advice.