State v. Owens

GILLETTE, J.,

concurring.

I concur in the majority opinion. I write separately because it seems to me to be wrong to attempt, as the dissent does, to make some sort of juridical virtue out of intellectual intransigence.

The dissent states:

“* * * [T]oday the court holds that a warrant is not required [to make constitutionally permissible the chemical testing of the contents of containers of suspected controlled substances validly seized from arrested persons].

“Such a reversal deserves explanation, but it is not to be found in the majority’s opinion.* * *

“I am confident that the majority does not and cannot mean what it has written * * *. Apart from its contraction of constitutional rights, * * * the majority’s failure to explain its departure from precedent is in itself a threat to constitutional rights. Without a consistent and reasoned analysis, rights protected by Article I, section 9, will disappear whenever four members of the court are persuaded that it is expedient that they do so.” 302 Or at 215-16 (emphasis supplied) (footnote omitted).

I took no part in Lowry. Two other members of the present majority concurred separately in Lowry. The author of the present majority decides today’s case for five of us. He is in no position to defend himself or the other member who joined in Lowry and now joins in this decision. They have not asked for any separate vindication but I feel obliged to try to provide one, in any event.

I should like to think that the Oregon Constitutional Revolution has been accomplished. The primacy of our state’s constitution, so long neglected, is now accepted by all. It remains to go forward on a new road, a road which will — like most roads under construction — involve an occasional detour.

I have always believed — and, today, a majority of this court holds — that a small part of the Lowry analysis was such a detour. All of us endorse the Lowry outcome. However, some of its analysis has come under sufficient attack (albeit *209 from such occasionally overly enthusiastic observers as myself) 1 that I should like to think that any reasoning person would take a second look with an open mind.

By the dissent’s argument, however, an open mind is not permitted. No matter how new the road, how unmarked and untried the course, the first step down it is “precedent” of such preeminence that any retreat is heresy. That position is not only wrong, it is wholly incongruous coming, as it does, from the pen of one who has written,

“* * * As I have written on an earlier occasion, when the court errs in construing a statute, as distinguished from a constitutional provision or the common law, correction should be made by the legislative department of government. See my separate opinion in State v. Newton, 291 Or 788, 815 , 636 P2d 393, 410 (1981).” Broyles v. Estate of Brown, 295 Or 795, 804 , 671 P2d 94 (1983) (Lent, J., dissenting) (emphasis supplied).

I agree with that dissent; I find it hard to reconcile with either the language or the tone of the present dissent.

As to the merits, something also needs to be said, but that something needs to address both the present dissent and that of Justice Linde in State v. Brown, 301 Or 268, 279-298 , 721 P2d 1357 (1986). The two dissents strike the same theme, claiming that permitting the chemical analysis of the contents of containers — opaque, translucent or transparent — taken from arrested persons violates Article I, Section 9 of the Oregon Constitution. The majority is content — as it has every right to be — with rejecting the foregoing proposition. I prefer to say more.

The chemical analysis in this case was of material seized incident to an arrest. The search of an arrested person for the fruits and instrumentalities of the crime for which he was arrested, as well as for devices he might use to assault the officer or in effecting an escape, is an entirely rational and reasonable act that, at least until recently, no one has seriously challenged on constitutional grounds. The burglar’s loot, the highwayman’s mask, the assassin’s knife — all could *210 be searched for and seized from the person of an arrested felon without a warrant. State v. Caraher, 293 Or 741 , 653 P2d 942 (1982); State v. Brown, supra, 301 Or at 283 (Linde, J., dissenting); see also State v. Atkinson, 298 Or 1 , 688 P2d 832 (1984).

I do not understand the dissents to disagree with the foregoing proposition as an abstract matter. Rather, their objection lies with the application of the principle or, more specifically, to the number of times it is applied.

A short (but, I hope, fair) version of the dissents’ views may be abstracted from Justice Linde’s dissent in State v. Brown, supra, 301 Or at 285 -293:

“The conditions of law enforcement have changed since the adoption of the fourth amendment and its state counterparts in the 18th and 19th centuries. The notion of crime as an exceptional and abnormal event calling for a judge to authorize someone to seize a known offender or to search for him or for stolen goods in a specified place may never have been accurate. In this century, those simple assumptions have undergone radical changes. The growth of cities and the use of automobiles and airplanes gave offenders new mobility and anonymity. Law enforcement was delegated to and administered by large police organizations, and governments chose to rely on criminal law in attempts to control first alcohol and then other drugs by prohibitions on production, trade, possession, and use that depend on finding, seizing, and identifying evidence without the aid of a victim. The entire process still is legally required to be supervised by judges, but the task is no more popular with courts than it is with law enforcement officers.

* * * *

«* * * [One] device for evading the warrant requirement is to create or expand exceptions for searches or seizures that of necessity must be made without awaiting a warrant (specifically searches of an arrested person or for items that an officer cannot keep under control) beyond their original and necessary scope. * * *

“* * * [Another] is to manipulate what constitutes a ‘search’ requiring a warrant. In ordinary speech, ‘search’ connotes a purpose or intention of the searcher; one searches whenever one acts with the aim of finding something. But it has long been held that purposeful looking or listening alone does not make unlawful a warrantless search of what can be *211 seen in plain view or overheard without the aid of technical enhancement. See, e.g., State v. Louis, 296 Or 57 , 672 P2d 708 (1983). * * *

(6* * * * *

“ ‘Search-incident-to-arrest’ has become one of those legal talismans that, although it is in English rather than Latin, has left its rationale behind. What justifies a warrantless search of a person under arrest is not that there is probable cause to believe that the person has committed a crime. It is not that an officer who has valid reason to make an arrest also has valid reason to search for evidence of the crime for which he makes the arrest. If reasons sufficient for an arrest by themselves sufficed to dispense with a search warrant, the actual arrest would be immaterial and unnecessary for the search. That obviously is not the law.

“To the contrary, an arrest is the crux of a ‘search-incident-to-arrest.’ By definition a search ‘incident to’ an arrest is a warrantless search that is justified by the fact that a suspect is arrested. The justification arises from the practical consequences of taking a person into custody, and it cannot extend beyond those practical consequences if the fact of the arrest is its premise. * * *

ft* * * * *

“* * * [I\f the fact of an arrest is to make the difference between a permissible and an impermissible warrantless search, the difference must arise from the necessary consequences of taking a person into custody. The fact of an arrest alone cannot logically bootstrap officers into any wider warrantless search than they could conduct without making the arrest.

it* * * * *

“The principle that prior judicial authorization for a search must be the rule and warrantless searches a narrowly confined exception should be more than a comforting fable in appellate opinions, but in practice it is no more than that. According to a recent study by the National Center for State Courts, this appears from a number of examinations of search warrant practices over the past quarter century. Van Duizend, Sutton & Carter, The Search Warrant Process x (1984). The authors of the study reported:

“ ‘The vast majority of searches are conducted without a warrant, usually with the consent of the suspect (or someone in legal control of the area to be searched) or incident to the arrest of the suspect. Delay *212 and inconvenience were widely cited as the principal basis for officers’ reluctance to seek a search warrant.

a * * % *

“ ‘We also were told of a host of other strategies that police use to conduct a search without having to go to the trouble of obtaining a warrant, such as by timing an arrest so as to maximize the possibility of being in a position to conduct a search legally and seize any contraband that might be discovered as a result (e.g., by arresting suspected drug dealers in their cars rather than at home.’ Id. at 19 (footnote omitted).

“For Portland, Oregon, the study reported 41,303 ‘index crimes’ in 1980 and only 319 search warrants. Id. at 18.” (Footnotes omitted; emphasis supplied.)

Even more shortened, one portion of the dissents’ thesis is this: Search warrants are the rule, warrantless searches the exception. While it is true that traditional constitutional doctrine has always recognized the permissibility of searching a person who has been arrested and is to be taken to jail, such searches now so often lead to the discovery of suspected drugs that some constitutional restraint on the process must be created.

The fallacy with this approach begins at the beginning and is best described as the mathematical model to constitutional law. If warrants are preferred, the dissents seem to suggest, the system is out of balance so long as more searches occur without warrants than occur pursuant to them. I doubt that there is any historical justification for this view. 2 It is difficult to imagine any time in this country’s history when warrantless arrests and the searches incident to them would not have far outnumbered all law enforcement activities pursuant to warrant. I see no historical basis for declaring that the mathematical imbalance creates a constitutional imbalance.

But the dissents’ mathematics are, I think, really a *213 side issue. The core of their argument raises a far more interesting problem — a problem that, I concede, the majority opinion in this case does not fully address. Assuming, the dissents say, that a warrantless search incident to an arrest is permissible to protect the officer, prevent escape and avoid the destruction of evidence, how is the later opening and/or testing of something taken from the arrestee — an action we today hold to be constitutional — related to any of these legitimate purposes? And, if it is not so related, have we not expanded the “narrow” exceptions to the warrant requirement?

*212 «* * * notion of crime as an exceptional and abnormal event calling for a judge to authorize someone to seize a known offender or to search for him or for stolen goods in a specified place may never have been accurate * * State v. Brown, 301 Or 268, 285-86 , 721 P2d 1357 (1986) (Linde, J., dissenting).

*213 I do not think we have expanded the exception. The search of an arrested person may be as intensive as the nature of his offense justifies. State v. Caraher, supra. Thus, the intensity of a search of a man arrested for stealing an elephant may be quite limited, while the intensity of the search of one arrested for unlawful possession of controlled substances may be very great. It may, in the latter case, extend to opening containers, or containers-within-containers, until even relatively small amounts of powder or vegetable material have been totally uncovered and separated. State v. Caraher, supra. 3

All of this search incident to arrest activity can — and sometimes does — occur on the scene of the arrest. On other occasions — the large majority, I suspect — officers postpone opening the final container until they can transport it to a more controlled environment — usually, a laboratory. If it could be done at the scene without a warrant, I see no justification for requiring a warrant because the officer waited. That is what Caraher held and what today’s opinion reiterates.

The only activity not likely to happen at the scene is the chemical or other scientific analysis of seized evidence, although even this may occur at the scene in the form of a “field test.” The dissents in these cases, following State v. Lowry, wish to treat these scientific analyses as separate *214 searches that require a warrant because they are not a necessary consequence of taking a person into custody. I have a difficult time seeing how — assuming such testing is a search — it is any less connected with the arrest than was the opening of successively smaller containers. I would, therefore, reject the dissents’ ultimate conclusions, even if I accepted their rationale. I do not, however, agree with the dissents’ rationale. The majority holds that scientific analysis is not a search. I agree, in light of the circumstances the dissents’ approach necessarily encompasses: Confirmatory chemical analysis of seized mature marijuana plants; chemical analysis of blood spots found on an assault suspect’s shirt; microscopic analysis of paint chips on a burglar’s prybar; scraping of gunpowder residue from inside a murder defendant’s gun; test firing a bullet through that same gun. Those are not searches.

A constitution is not a document of convenience. Its terms are to be enforced without regard to the mood of the times, else it is no constitution at all. At the same time, a constitution is not a document of unreason. It was created in a context and should be read and interpreted with the odd touch of deference for experience, history and reason. If we could call from their sleep this day the authors of the Fourth Amendment and the architects of Article I, section 9, of the Oregon Constitution, if we could explain to them the technological advances that make such testing possible and if we could then put to them the question of whether the spirit of the constitutional rules they authored called for the result for which the dissents contend, I am satisfied to my soul that the uniform response would be one of incredulity. That which has been validly taken from an arrestee at the time of his arrest can — if the arrest was proper — be touched, smelled, tasted, tested or test fired without a warrant. Those who feel compelled to carry the evidence of their crimes with them deserve no new constitutional help. 4

See State v. Flores, 68 Or App 617 , 685 P2d 999 (1984) (Gillette, J.); State v. Westlund, 75 Or App 43 , 53 - 59, 705 P2d 208 , (1985) (Van Hoomissen, J., dissenting), aff’d in part, rev’d in part, 302 Or 225 , 729 P2d 541 (1986).

Justice Linde himself seems to have his doubts, for he notes,

It follows that the majority’s repeated emphasis on the nature of the container in this case is relevant to probable cause but not to the permissible scope of any search incident to the arrest resulting from the probable cause. If a container may hold evidence of a crime for which a person is validly arrested, the kind of container — be it transparent, translucent, opaque, hard, soft, porous or hermetically sealed — is not relevant. It may be opened. State v. Caraher, 293 Or 741 , 653 P2d 942 (1982).

All of the foregoing seems to me to flow naturally from traditional search-incident-to-arrest analysis, and the majority is entitled to he content with it. There is, however, one problem with all this that our majority view does not answer. It is this: What is so magical about an arrest? Suppose an officer, who is in a place where he has a right to be, sees a distinctive “bindle” that he knows, from his training, contains a controlled substance. He seizes it. There is no one present to arrest, so the seizure is a warrantless, “plain view” seizure. Can the officer now go and open this container or test its contents without a warrant? If the answer is no, what is there about these circumstances — aside from labels — that makes them different from those where an *215 arrest was made? And if the answer is yes — opening and testing without a warrant are permissible — isn’t that truly an expansion of the permissibility of warrantless searches?

The foregoing conundrum necessarily arises from what we do today. It may be that there is a valid distinction between the two sets of circumstances such as the fact that, with searches incident to arrest, the officer’s actions are always subject to observation by someone else. The answer must await a case that requires it.