dissenting.
Because I would find the search of defendant’s luggage to be more intrusive than is reasonable, I dissent.
The majority correctly quotes from State v. Lawrence, 58 Or App 423, 648 P2d 1332 (1982), rev den 293 Or 801, but then disregards the very language it quotes:
“[T]he inventory process in noncriminal, nonemergency cases should be less intrusive than that considered reasonable in criminal cases. Once a closed container is taken from the person during inventory of his property and is in the exclusive control of the police, it is unreasonable to open the container and seize its contents without a warrant unless the contents *324are in plain view and are identified as contraband without the necessity of laboratory analysis.” 58 Or App at 431.
Here, we have two closed containers taken from defendant in an inventory of his property; the containers are in the exclusive control of the police; the police do not have a warrant; and the contents are not in plain view. Therefore, it is unreasonable to open the containers and seize their contents.
The majority makes an exception to the Lawrence rule out of the fact that the luggage was “stored in a room where criminal arrestees would be alone from time to time.” From that fact alone, it finds the search in this case to have been reasonable. The place of storage was chosen by the police, but the majority concludes that it was “the place where the trial judge was entitled to find, from the testimony, that circumstances then required storage of the luggage.” 66 Or App 318. (Emphasis supplied.)
The trial judge, however, did not so find and, I submit, could not so find on this record. Even assuming the unlikely fact that the Roseburg Police Department lacks any place whatsoever in which to store items of evidence too large to be placed in envelopes and kept in the police safe, the record suggests that circumstances did not require storage of defendant’s luggage in the booking room area and that there are alternative places of storage where criminal arrestees would not have been left alone with the luggage. The testimony of Officer Beach, the only witness in this case, suggests that defendant’s shoes and belt were stored in a place other than the safe. They were taken from defendant, and the evidence is that only “valuable property, money, rings, are all placed in a large envelope and then taken up front to the watch commander’s desk where they are locked in a safe.” There is nothing in this record to suggest that the luggage could not have been kept with the shoes and belt.
The evidence is that defendant’s luggage was brought to the Roseburg police station in the trunk of a police car, seemingly a place in which they were safe and unavailable to arrestees. Nowhere does this record disclose a reason that the luggage could not have been left in the trunk of the auto.
Beach’s testimony and a sketch made by him indicate that there were other areas in the holding facility, besides the *325booking room area, where defendant’s luggage might have been kept. His testimony was that there was a locker room “which is locked all the time” adjacent to the booking area. From his sketch and his testimony it is clear that there was an “area for washing clothes, and the washer storage for clothing.” Because arrestees were locked in the booking area when left alone, property stored in the locker room or washing area would not be available to them. In his testimony, Beach also mentions a “hall that goes out into our other part of the police station.” It does not strain credulity to infer that the “other part of the police station” included areas large enough to store two items of hand-carried luggage.
To hold as the majority does makes the whole question of whether police may open closed containers and seize their contents in a noncriminal, nonemergency case, depend on where the police store those containers. If they store them in a place where arrestees may be left alone with them, the police may open and search the containers and seize their contents without a warrant and without either probable cause or exigent circumstances to justify the search. If they choose to store them in a place where arrestees will not be left alone with them, the police cannot open them without a search warrant issued upon probable cause to believe that they contain contraband or other evidence of crime. See State v. Lowry, 295 Or 337, 348, 667 P2d 996 (1983).1 Whether a search is reasonable under the Oregon Constitution, Article I, section 9, should not be made to depend on such a contingency. I would hold a search of closed containers under these circumstances to be more intrusive than is reasonable. Therefore, I respectfully dissent.
At the trial there was testimony from Beach that, after removing “the plastic bag containing the material that I believed was marihuana,” he “had it analyzed by Charlie Orr from the Douglas County Sheriffs Department.” There is no evidence that the analysis was done pursuant to a search warrant. State v. Lowry, supra, 295 Or at 347, suggests that the fact that the substance was marijuana might be indisputably evident once it was in plain view.