dissenting.
Because I do not agree with the majority that Officer Berg was authorized, without a warrant, to open and thereby search the opaque container that he seized from defendant, I dissent.
To put the question in proper perspective, it is necessary to return to State v. Lowry, 295 Or 337, 667 P2d 996 (1983). The defendant had been stopped lawfully and was arrested for driving under the influence of intoxicants. After he was handcuffed, an officer took from his clothing a small, closed, transparent pill bottle that contained a white powder. The bottle was seized by the officer and, later, without a warrant, it was opened and its contents tested. The court, in dictum, stated that, even if the officer had probable cause to believe that the bottle contained a controlled substance, he was only authorized to retain the bottle long enough for a magistrate to decide whether there was probable cause to test the unknown contents.
Three years later, the court decided State v. Owens, 302 Or 196, 729 P2d 524 (1986), State v. Forseth, 302 Or 233, 729 P2d 545 (1986), and State v. Westlund, 302 Or 225, 729 P2d 541 (1986), of which State v. Owens, supra, was the lead opinion. In Owens, the court stated that the question of whether opening a transparent container or the testing of its contents is a “search” or “seizure” under the Oregon Constitution when there is probable cause to believe that it contains *652a controlled substance was squarely before the court for the first time. It went on to say:
“Article I, section 9, protects privacy and possessory interests. A ‘search’ occurs when a person’s privacy interests are invaded. When the police lawfully seize a container, they can thoroughly examine the container’s exterior without violating any privacy interest of the owner or the person from whom the container was seized. For example, the police can observe, feel, smell, shake and weigh it. Furthermore, not all containers found by the police during a search merit the same protection under Article I, section 9. Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in ‘plain view,’ outside the confines of any container. Applying the doctrine of ‘plain view’ to transparent containers, we hold that no cognizable privacy interest inheres in their contents, and thus that transparent containers can be opened and their contents seized. No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents. Under the Oregon Constitution, a lawful seizure of a transparent container is a lawful seizure of its contents.” 302 Or at 206. (Emphasis supplied.)
The court then concluded:
“Therefore, we hold that, when there is probable cause to believe that a lawfully seized transparent container contains a controlled substance, opening the container, removing a modest quantity of its contents and subjecting it to chemical analysis for the sole purpose of confirming that it is a controlled substance, is not a ‘search’ or ‘seizure’ under the Oregon Constitution. Any language to the contrary in State v. Lowry, supra, is expressly disapproved. Article I, section 9, does not require that the police obtain a warrant before opening the transparent vial and clear plastic package lawfully seized from defendant’s purse herein or testing their contents for the limited purpose of confirming the police officer’s reasonable belief that they contained controlled substances.” 302 Or at 207. (Emphasis supplied.)
In this case, the officer stated that he could not see through the container, and the majority correctly states that *653it is not a container that announces its contents. 109 Or App at 650. The distinction that the court made in Owens must mean that, even if the officer had the authority to seize the container, he could not, without a warrant, open it. That holding was followed in both State v. Forseth, supra, and State v. Westlund, supra.1
Concededly, there are ambiguities in Owens and the language that the majority quotes, 109 Or App at 649, was relied on by this court in State v. Eddy, 107 Or App 489, 812 P2d 42 (1991), to justify the opening of an envelope seized from the defendant. If State v. Owens, supra, means what I believe that it means, that decision was also wrong. Perhaps it is time for the Supreme Court to revisit the problem.
I dissent.
The foregoing discussion assumes that the officer had probable cause to believe that defendant was under the influence of a controlled substance other than alcohol. He conceded that, after he placed defendant under arrest for DUII, he patted him down for weapons and that, even after he found the plastic container, he did not charge defendant with possession of a controlled substance. That charge was not made until after the contents of the container had been tested.