State v. Brown

LINDE, J.,

concurring.

This case, as usual, has been briefed exclusively as an application of the federal fourth amendment as interpreted by the Supreme Court of the United States. The Court’s opinion decides nothing other than its best estimate of what a majority of that court most likely would hold on the facts before us. Nowhere in the briefs or in the opinions of the Court of Appeals in this case is there any reference either to the source and scope in Oregon law of a police officer’s legal authority to open closed containers taken from a person in custody on a traffic charge, or to the limits imposed on a grant of such legal authority by Article I, section 9 of the Oregon Constitution. 1

The Court’s opinion therefore makes no pretense that the result represents the most principled or the most desirable rule, or even that it represents a “rule” at all. The opinion points out that some United States Supreme Court decisions have sustained warrantless searches of containers that are taken from persons being booked at the police station or jail as some kind of belated “search incident to arrest,” while other Supreme Court decisions prohibit warrantless searches of larger closed containers seized from someplace other than the arrested person’s clothing. Supra, 291 Or at 646, citing United States v. Robinson, 414 US 218 , 94 S Ct 467 , 38 LEd2d 427 (1973), Gustafson v. Florida, 414 US 260 , 94 S Ct 488 , 38 LEd2d 456 (1973), *657 United States v. Edwards, 415 US 800 , 94 S Ct 1234 , 39 LEd2d 771 (1974), United States v. Chadwick, 433 US 1 , 97 S Ct 2476 , 53 LEd2d 538 (1977), Arkansas v. Sanders, 442 US 753 , 99 S Ct 2586 , 61 LEd2d 235 (1979)). It assumes that under those federal precedents this case would be placed under what it calls the “Robinson line” rather than the “Chadwick line” of cases.

I have no reason to disagree with that assumption about the current state of the federal case law, and this is the only question that has been placed in issue. Each month’s state of the federal case law, however, can hardly be said to provide the necessary legal basis and boundaries for the authority and procedures governing Oregon law enforcement officers. Those officers as well as the persons whom they confront deserve better legal guidance than advice to carry the latest Supreme Court reports in their pockets.

The latest Supreme Court reports contain two decisions under the fourth amendment that illustrate the point, Robbins v. California, 453 US 420 , 101 S Ct 2841 , 69 LEd2d 744 (1981), and New York v. Belton, 453 US 454 , 101 S Ct 2860 , 69 LEd2d 768 (1981). Robbins v. California reversed a conviction because of the warrantless search of wrapped packages seized by police from the luggage compartment of a car in the course of what began as a traffic arrest but produced probable cause to hold the arrested person for drug offenses. No single opinion commanded a majority in the Supreme Court. The decision and an opinion for four justices was announced by Mr. Justice Stewart on July 1,1981, at the end of his long and distinguished career. This plurality opinion followed Chadwick and Sanders, supra, to hold that closed packages are not subject to warrantless search merely because they are found in a lawful search of an automobile. One justice disagreed with the plurality opinion but concurred because “the manner in which the package at issue was carefully wrapped and sealed evidenced petitioner’s expectation of privacy in its contents.” Robbins v. California, supra, 69 LEd2d at 752. The Chief Justice merely announced his concurrence in the judgment. 69 LEd2d at 752. Three separate dissents argued that the sealed package could be opened because it was seized in an automobile (Blackmun, J., 69 LEd2d at 756, *658 and Stevens, J., 69 LEd2d at 762), or because of more radical objections to the rules against such searches (Rehnquist, J., 69 LEd2d at 757.) But the majority’s position corresponds to what this court concluded in State v. Groda, 285 Or 321 , 591 P2d 1354 (1979).

In the companion decision, New York v. Belton, supra, also written by Justice Stewart, the Court sustained the seizure of cocaine from the zippered pocket of a jacket found on the back seat of an automobile as a “contemporaneous incident” of a valid “custodial arrest,” because objects in the vehicle’s passenger compartment are within reach of the arrestees. 69 LEd2d at 775. Two justices dissented on the ground that the warrantless seizure could not constitutionally extend beyond objects actually within reach at the time of arrest and search, which Belton’s jacket was not.

These latest Supreme Court discussions of warrant-less searches of closed containers subsequent to an arrest can be factually distinguished from the case before us insofar as they involved containers found in automobiles. My purpose here is not to debate the relevance of that distinction, compare State v. Downes, 285 Or 369 , 591 P2d 1352 (1979), nor the justices’ competing views of national law. On that question a state court’s only duty is not to allow what the Supreme Court’s decisions appear to forbid. It is by no means obvious from Robbins whether or why this year’s federal doctrines would allow the same closed package to be opened if Robbins or the police had carried it to the station, where the present defendant’s sealed package was opened; but given the division of opinions in Robbins there is little to be gained by arguing with the present majority opinion’s assumptions about the federal rule for this case. Justice Stewart’s majority opinion in Belton , however, contains larger premises that come closer to my point. He quoted Professor LaFave’s important axiom that the law governing searches and seizures can only function “if the police are acting under a set of rules which, in most instances, makes it possible to reach a correct determination beforehand” as to what they may do, because these rules are “primarily intended to regulate the police in their day-to-day activities and thus ought to be expressed in terms that are readily applicable by the police *659 in the context of the law enforcement activities in which they are necessarily engaged.” New York v. Belton, supra 69 LEd2d at 773-4, quoting LaFave, Case-by-Case Adjudication versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup Ct Rev 127, 142. Without meaningful legal rules, the Belton opinion continued, the citizen cannot know his rights nor the officer the scope of his authority. 69 LEd2d at 774.

Despite judicial opinions like that in Belton or comments like Professor LaFave’s, however, the United States Supreme Court cannot make such a set of rules for Oregon, or for any jurisdiction, even if the justices were in agreement. The Supreme Court can do no more than apply the outer limits imposed by the 4th and 14th amendments on such official actions as have been taken under congressional or state authority in concrete circumstances. Moreover, as I stated at greater length in concurring in State v. Greene, 285 Or 337, 345 , 591 P2d 1362 (1979) and Downes and Groda, supra, fourth amendment case law falls short as a source of rules for reasons apart from federalism and the unsystematic flow of case-by-case adjudication; as the chief source of law it also evades the normal accountability of lawmakers for rules governing the most direct exercise of governmental power against individuals. 2 Nor can such rules, however they are made, be *660 stated simply as verbal variations of the constitutional texts that searches and seizures shall not be “unreasonable.”

The Court does not say, as in State v. Greene, supra, that today’s decision attempts to bring clarity into the law relating to the search of closed containers. As already stated, this court contributes nothing of its own when it is asked to apply federal law. In a principled analysis, it may well be difficult to disagree with Judge Buttler’s straightforward view in the Court of Appeals that once a closed container is no longer within an arrested person’s reach, there normally are no “exigent circumstances” to justify searching the container without first explaining to a magistrate why there is probable cause to do so. State v. Brown, 49 Or App 75, 77 , 618 P2d 1318 (1980). This seems so whether the closed container is a woman’s handbag, a man’s briefcase, a gift-wrapped package from a store, a musical instrument case, or a tin can sealed with tape. All are a person’s “effects,” in the constitutional term. When there is no reason to fear some concrete danger from such a container, it may be good police procedure but it is hardly an “exigent” necessity to inventory the contents without the assent of the person for whose protection this ostensibly is done. 3 If that were sufficient justification, it would similarly justify searching footlockers, suitcases, large packages, and other containers taken into police custody other than from the arrested person’s clothing.

*661 When police halt a vehicle because it is “weaving” and take the driver into custody because he appears to be intoxicated, the arrest, or “seizure,” may be justified by probable cause that the driver has committed a traffic offense. But arrest is only a procedural step permitted, though not required, in order to charge a person with an offense. ORS 133.005(1), 133.045-133.080, 484.100, 484.230, c/. ORS 484.435. An arrest on probable cause of one charge does not make the arrested person a general suspect of other crimes. Probable cause to believe that a person is driving illegally is not probable cause to believe that his cigarette case contains unlawful drugs.

Possibly there is a principled answer that can justify the warrantless search of an apparently harmless container after it has been removed beyond an arrested person’s reach. In this case, however, no independent search for a principle is undertaken, for none has been offered or requested. Perhaps this reflects a belief that this court has bound Oregon courts to follow the federal case law and doctrinal fashions on searches and seizures whatever they may be at the time, as counsel for the state have been known to assert. This is not correct. In recognizing the parallel character of Article I, section 9, and the 4th amendment, the court has been careful to say that for practical reasons it generally respects the voluminous and familiar 4th amendment jurisprudence (which unfortunately also monopolizes the secondary commentary) unless “persuasive reasons” are shown for a different analysis. See State v. Sims, 287 Or 349, 353, n. 1 , 599 P2d 461 (1979) and State v. Greene, supra, 285 Or at 339, quoting State v. Flores, 280 Or 273, 279 , 570 P2d 965 (1977); State v. Florance, 270 Or 169, 182 , 527 P2d 1202 (1974). As long as the case is argued and decided entirely on federal law, however, I concur in the Court’s conclusion.

Lent, J. joins in this concurring opinion.

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

“There can be no doubt that the authority of law enforcement officers to search or to seize persons, vehicles, houses, and other private effects, and the limits of that authority, ought to be defined by law, and that both the authority and its limits ought to be as understandable both to the public and to its officials as it is possible to make them. There is no more fundamental area of confrontation between governmental power and the individual. When we rely on explicit and detailed legal procedures by which government may grant or deny an individual a license for some activity, or collect a tax, or regulate the conduct of a business or the use of property, it is not unreasonable to suppose that there are similarly explicit and detailed legal procedures for searching or seizing a person or his property. It is not unreasonable to believe that, but it is unfounded.

“[T]he constitutions neither grant such authority to anyone, nor prescribe who may exercise it, nor define the circumstances and manner in which, within those outer constitutional limits, the authority should or should not be employed. These are questions which, as far as the powers of state and local officers are concerned, are left to state law. Like all public law and its administration, they are the responsibility of politically accountable legislators, and other state and local officials. When a court is called upon to decide only whether a particular search or seizure crossed the constitutional boundary, its decision marks only that boundary; it does not prescribe the law with *660 respect to the officer’s authority to conduct the search or seizure apart from that outer limit. Within this limit, the question of his authority is not a constitutional question but one of ordinary law.” 285 Or at 346-47.

With respect to searches under a warrant, ORS 133.595 provides:

“Promptly upon completion of the search, the officer shall make a list of things seized, and shall deliver a receipt embodying the list to the person from whose possession they are taken, or the person in apparent control of the premises or vehicle from which they are taken. If the vehicle or premises are unoccupied or there is no one present in apparent control, the executing officer shall leave the receipt suitably affixed to the vehicle or premises.”

If the arrested person refuses consent to open a container for inventory purposes, officers can make a note of that fact and safeguard the closed container, unless they choose to seek a magistrate’s warrant to search it. As the Court points out, according to the officer’s testimony in this case, the procedure was that the arrested person signed the inventory list and his property then “is placed in a steel box and locked up.” This effectively negates any “exigent” reason for a further warrantless search of the closed box.