dissenting.
Defendant was charged with two counts of possession of a controlled substance. He pleaded not guilty and filed a motion to suppress evidence found during the warrantless search of his backpack. The trial court denied the motion, and defendant was found guilty of one count of possession of LSD after a trial to the court on stipulated facts. The trial court found that defendant did not have an objective expectation of privacy in the backpack which society was prepared to recognize and that it was reasonable, under the “suspicious” circumstances, for the officer to find out who had left the backpack. The court made no findings relating to the search of the closed cigarette container and found only that the officer could search the backpack for identification.
If there is an actual, i.e., subjective, expectation of privacy which society is prepared to recognize as “reasonable,” the search of defendant’s backpack and its contents stored in his grandparents’ carport falls under the protection of Article I, section 9, of the Oregon Constitution. See State v. Holt, 291 Or 343, 630 P2d 854 (1981).
A backpack is used to carry personal effects. The expectation of privacy for its contents is at least as great as that recognized in a purse, State v. Newman, 292 Or 216, 222, 637 P2d 143 (1980), cert den 457 US 1111 (1982); a cosmetic kit, State v. Downes, 285 Or 369, 591 P2d 1352 (1979); a briefcase, State v. Groda, 285 Or 321, 327, 591 P2d 1354 (1979); a closed fishing tackle box, State v. Keller, 265 Or 622, 510 P2d 568 (1973); a closed shoe box, State v. Turchik, 53 Or App 499, 504, 632 P2d 497 (1981); a cassette tape case, State v. Williams, 48 Or App 293, 616 P2d 1178 (1980); or a camera case, State v. DeLong, 43 Or App 183, 602 P2d 665 (1979), rev den 288 Or 571 (1980). I would conclude that defendant had a subjective expectation of privacy in his closed backpack and its contents.
The next inquiry is whether defendant’s subjective expectation of privacy is one which society is prepared to recognize as reasonable. See Katz v. United States, 389 US 347, 361, 88 S Ct 507, 19 L Ed 2d 576 (1967) (Harlan, J., concurring). The officer testified that the neighbor had said *236that the “owner of the house had instructed him, in the past, that there was to be nobody around the house when he was gone.” Although the majority makes much of the fact that the house was “unoccupied,” the record does not show whether the owner had been gone for an hour or several months. Neither does the record suggest that defendant’s grandparents either did not or would not consent to this minimal intrusion, even though they had failed to inform the neighbor. Defendant made no forcible attempt to enter the house. He did no damage to the house. He engaged in no conduct which would cause a reasonable observer to conclude that he intended to engage in criminal activity.1 He simply left his backpack on *237private property owned by his grandparents, showing, if anything, a confidence that his possessions would be safe where he left them.
The state makes no claim of probable cause, exigent circumstances, danger to a police officer, plain view or hot pursuit, or that the grandparents’ carport was a known crime scene. The officer testified that his sole reason for opening the pack and searching through its contents was to look for identification. The narrow issue presented is whether it is reasonable for a police officer, without a warrant in a noncriminal, nonemergency situation, to search a backpack and its contents found on private property for identification without the consent of the owner of the backpack or the owner of the property. The majority contends, and I agree, that such a search for purposes other than to obtain evidence of a crime must be gauged by a standard of reasonableness as in State v. Newman, supra, 292 Or at 221.
In Newman, the Supreme Court squarely reversed our holding that a search of an intoxicated, uncooperative defendant’s purse for identification at the scene of a noncriminal, nonemergency stop was not unreasonable. State v. Newman, 49 Or App 313, 619 P2d 930 (1982). Because it was not necessary to know her identity for the purpose of transporting her to a holding facility, the Supreme Court held that the search was not reasonable. The court reasoned that taking the defendant into custody did not deprive her of her privacy interest in her purse or allow a search of her purse or wallet without her consent, even though she had repeatedly refused to cooperate with the officers. The Supreme Court stressed in Newman that the case involved a nonemergency as well as a noncriminal situation. 292 Or at 222.
I see no way to make a meaningful distinction between this case and Newman. In Newman, the defendant was in custody, was handcuffed and had been placed in the back of a police car. Her purse lay some distance away outside her own vehicle. The Supreme Court characterized the search as one of property, not of the person, and concluded that it was *238unreasonable, as a matter of law, to open her purse to find out who she was before taking her to a treatment or holding place.
In this case, there is more reason than there was in Newman to suppress the evidence. It was totally unnecessary to ascertain the identity of the owner of the backpack before taking it to the police station. Whether the backpack could have been searched for identification at the time defendant sought to claim it is a question with which we need not be concerned. The only issue here is whether it could reasonably be searched for identification before removing it from the carport of defendant’s grandparents. See State v. Newman, supra, 292 Or at 222. Although I believe that the dissent in Newman has the better of the case, we are bound by the majority opinion. If the result in Newman is correct, then the search of the backpack was unreasonable as a matter of law.
The majority holds that the officer being summoned to the scene had a responsibility to determine the identity of the owner of the pack and claims that our decision in State v. Bright, 8 Or App 202, 493 P2d 757 (1972), somehow supports this position. In Bright, an officer came upon an unattended out-of-state vehicle with a flat tire parked alongside the road in an unpopulated area. There were two gas cans, two fire extinguishers and some tires visible in the back part of the vehicle. One of the rear windows was open. The officer saw tracks where the vehicle had come down a steep, muddy Forest Service road that joined the highway at that point. About two months before, the officer had recovered a stolen vehicle alongside the same highway in the same general area. We held that the officer was justified in thinking his services might be needed and in looking for further identification. Our decision relied on Coolidge v. New Hampshire, 403 US 443, 91 S Ct 2022, 29 L Ed 2d 564 (1971), and Chambers v. Maroney, 399 US 42, 90 S Ct 1975, 26 L Ed 2d 419 (1970), where mobility of an automobile created exigent circumstances that justified the warrantless search of an automobile stopped on the highway when there was probable cause to believe a crime had been committed. Bright is not relevant to the present case. A backpack left on the private property of a relative is hardly like an automobile abandoned on a remote stretch of public highway. There was no previous criminal activity known in the area.
*239I do not accept the proposition that, by responding to the neighbor’s query, in a situation that the officer knew to be noncriminal and nonemergency, he was under a duty to discover the ownership of this backpack. The officer testified that the backpack and its contents presented no danger or hazard. He testified that he only was looking for identification and was not investigating for evidence of criminal activity. The record shows no attempt made by the officer to contact an owner of the house. Even assuming that the officer reasonably believed that the pack was abandoned, it was not necessary for him to know the name of the person it belonged to in order to transport it to the station. Compare State v. Newman, supra, 292 Or at 222.
Even if the majority is correct and it was reasonable for the officer to search the backpack for identification, as pointed out earlier, I believe we must address the question of whether it was reasonable to search the cigarette box for identification.2 The officer testified that he searched it only for identification and that he “seldom” found identification in a cigarette box. Accepting the officer’s testimony as true, the question of law that remains is whether a search in that place was reasonable. By the officer’s own testimony, he did not believe that he would find identification in that place. If the search of the backpack was reasonable at the time and place where it was conducted, I would conclude as a matter of law *240that the search actually made was unreasonable in its scope. Under these circumstances, the search of defendant’s pack was not reasonable and the evidence found there should have been suppressed.
Buttler, Warden and Newman, J.J. join in this dissent.The investigating officer testified:
“A [Officer]: I first checked all the doors and windows and, at that time, Trooper Stevenson, from the Oregon State Police, and Deputy District Attorney, David Paul, arrived. I explained the situation to them. We then checked the residence again, and Chief Buckmaster arrived.
“We observed a back pack in the carport, which was opened on the east and west side. We attempted to secure some identification from the back pack and who it belonged to.
<<**** **
“Q [State’s Attorney]: What were you looking for when you went into the back pack?
“A [Officer]: Identification.
“Q What was your concern when you went there and took the report from Halverson and saw the back pack?
“A Well, I first thought that there could be a burglary in progress, or the subject might have expected to spend the night there due to Garibaldi Days there at that time.
* * * *
“Q [Defendant’s Attorney]: You stated what led you to search the back pack was: seeking identification?
“A [Officer]: True.
“Q Not burglar tools?
“A No, sir.
<<**** *
“Q [Defendant’s Attorney]: In looking around the house — Did you look around the house first before looking in the pack?
“A [Officer]: Yes.
“Q Did you find any evidence of attempted forced entry —
“A No, sir.
*237“Q — or any other type of burglary-type tools on the grounds or anything?
“A No.”
Defendant moved to suppress the “blue backpack and all attachments and contents * * The affidavit in support of the motion related that:
“* * * While searching the backpack, Officer Hill found a Cigaretellos box. This was a closed container, not transparent, and was itself located inside another closed, smaller pack within the closed overall backpack. Inside this closed Cigaretellos box Officer Hill found what he believed to be controlled substances. Officer Hill seized those items and continued to search in the backpack, eventually finding some identification bearing the name of Dylan Rounds. At that point Officer Hill seized the entire backpack and transported it to the local police station. Mr. Rounds later identified the pack as his in response to a question from Officer Hill.
“The items seized were all on private property, had not been abandoned by Mr. Rounds, and were not at the time of search apparently related to any particular criminal activity articulated by the officer. Although the overall backpack may have been in plain view from streetside, anything within the closed backpack was not. * * *”
Although the focus of defendant’s brief to this court was on the backpack, and there is only scant reference to the red and white cigarette box, I conclude that an issue as to the reasonableness of the officer’s search of the box itself is properly before us.