# State v. Elkins

> Oregon Supreme Court · December 28, 1966 · 245 Or. 279

URL: https://www.frixlaw.com/law-library/cases/9628732

## Case

- **Full name:** State of Oregon v. James Elkins
- **Court:** Oregon Supreme Court
- **Decided:** December 28, 1966
- **Citations:** 245 Or. 279; 422 P.2d 250; 1966 Ore. LEXIS 382
- **Precedential status:** Published
- **Opinion:** Dissent by Goodwin
- **Judges:** McAllister, Chief Justice, and Perry, Sloan, O'connell, Goodwin, Denecke and Holman, Justices
- **Cited by:** 105 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/9628732

## Opinion text

GOODWIN, J.,
dissenting.
While I am prepared to concur in much of the reasoning and with the principles drawn from many of the authorities cited in the majority opinion, I disagree with one key assumption, and with the result which follows from it. The opinion assumes that if the police were allowed to examine the fruits of the search (pill bottle) in this ease merely because they suspected that the defendant was carrying narcotic drugs such a decision would open the door to exploratory searches and seizures. I disagree.
Without a warrant, there can be no lawful search and no lawful seizure. To this rule there is one exception: a reasonable search can be made as an incident of a lawful arrest. If the arrest is lawful, a search is also lawful, so long as it is incidental to the arrest. Seizure, as far as property is concerned, is merely the exercise of temporary control over the property found in a search. Such temporary control is a necessary part of the police function. Knives and guns are property, but they are seizable. If the pills in this case are not seizable, the reason must be found in something other than the defendant’s property right. The question, then, is one of obvious contraband on the one hand, compared to suspected contraband on the other.
*301 Here, both the arrest and the search were undeniably lawful. Only the scope of the seizure is questioned.
In my judgment, when the police lawfully discover property that raises a question as to its character, they are entitled to take possession long enough to examine the property. It should make no difference whether the examination is for fingerprints, bloodstains, or other clues. Chemical analysis of property lawfully coming to the attention of the police should be encouraged whenever the police have any reason to suspect that the property is contraband. The constitutionally protected interests in privacy and in property were invaded by the arrest and search. After those activities have been declared lawful, no legitimate constitutional purpose remains to be served by denying the police the right to scrutinize whatever property has been discovered.
I think the majority is adding an unwise and unnecessary refinement of the limitations already imposed upon crime-discovery methods. Scrupulous legality in the arrest and strict standards of reasonableness in the scope of the search are all the protection required by the Fourth Amendment. When these protections are properly understood and enforced, citizens have nothing to fear from a rule that would permit the police to cheek out the suspicious indications of new crime lawfully brought to their attention.
I dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628732. Public record. Not legal advice.