State v. Krause

EGAN, J.,

dissenting.

I respectfully dissent from the majority’s holding that the search of the Altoids tin was justified as a search incident to defendant’s arrest. I believe that the search was unreasonable in light of the circumstances presented in this case, and that the contents of the tin should have been suppressed.

Article I, section 9, of the Oregon Constitution guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure.” “A search conducted without a warrant is presumed to be unreasonable.” State v. Hite, 198 Or App 1, 6, 107 P3d 677 (2005). It is thus incumbent on the state to prove that a warrantless search is justified under a recognized exception to that rule. Id. One such exception is the search incident to *150arrest. However, it is well established that a search incident to arrest is not without limitations. The search must be reasonable in time, scope, and intensity. State v. Caraher, 293 Or 741, 758-60, 653 P2d 942 (1982). The appropriate test to apply is “the reasonableness of the search in light of the circumstances of the particular case.” State v. Owens, 302 Or 196, 202, 729 P2d 524 (1986). “Because a search incident to an arrest is a warrantless search, the opportunity to obtain a warrant is an important limitation on the right to continue the search. ‘[W]hen a search reaches a logical stopping point the police must seek a warrant before proceeding further.’” State v. Kirsch, 69 Or App 418, 422-23, 686 P2d 446, rev den, 298 Or 151 (1984) (quoting State v. Flores, 68 Or App 617, 634, 685 P2d 999, rev den, 298 Or 151 (1984) (emphasis in Kirsch)).

I believe that, in light of the circumstances presented in this case, Berry’s search of the closed Altoids tin was unreasonable. After Berry stopped defendant for committing a traffic infraction and learned that defendant had been driving without insurance, Berry immediately arranged for defendant’s vehicle to be towed. Berry then conducted a routine inventory search in preparation for the tow. During that inventory search, Berry observed marijuana in plain view inside of a backpack and developed probable cause to arrest defendant for possession of marijuana within 1,000 feet of a school. At the moment that Berry developed probable cause to make an arrest, defendant had been removed from her car and denied access to it or its contents, including the Altoids tin. I believe that Berry’s search reached its logical stopping point after she observed the marijuana in plain view and had probable cause to place defendant under arrest for a crime. The state’s evidence failed to demonstrate any exigent circumstance warranting the continued and deeper intrusion into defendant’s personal property by searching the closed Altoids container for further evidence of the crime. Indeed, defendant’s vehicle was going to be towed, and Berry had ample opportunity to apply for a warrant to search the contents of the Altoids tin.

In reaching its conclusion, the majority draws a distinction between the first two justifications for search incident to arrest — officer safety and to prevent the destruction *151of evidence — and the third justification for search incident to arrest — to discover evidence of the crime of arrest. It is the majority’s conclusion that the first two justifications are rooted in exigency, while the third justification is not. As a result, the majority suggests that a reasonable search justified by officer safety and to prevent the destruction of evidence may be justified “only when the area searched is still within the defendant’s control, so that the defendant would be able to obtain a weapon stashed in the area or to destroy or conceal evidence located there.” 281 Or App at 146. The majority argues that, to the contrary, a search for evidence of the crime of arrest “may be justified even if the defendant has been removed from the area in which an officer believes that evidence may be located.” Id.

I do not agree that exigency should be taken out of the equation when the third justification for search incident to arrest is relied upon by the state. Nor do I believe that a search for evidence of the crime of arrest is justified when the area of the search is not within the defendant’s immediate control at the time that probable cause is developed. Exigency is the backbone of the search-incident-to-arrest exception to the warrant requirement. See State v. Clarke, 110 Or App 114, 116-17, 822 P2d 138 (1991) (stating that the search-incident-to-arrest rule exists because “‘an arrest * * * creates a type of exigency justifying a warrantless search of the arrested person’” (quoting State v. Milligan, 304 Or 659, 669, 748 P2d 130 (1988)). It should remain the primary consideration in determining the reasonableness of a search incident to arrest, regardless of whether that search is effectuated for officer safety, to prevent the destruction of evidence, or for discovery of evidence related to the crime of arrest. The majority’s holding suggests that exigency is no longer a factor in determining whether a warrantless search for evidence of the crime of arrest is reasonable. That holding only serves to further undercut the protections afforded to citizens under the Oregon Constitution.

I also disagree with the majority’s contention that a search “will comport with Article I, section 9, even though the defendant no longer has control over the area searched, as long as the evidence reasonably could be found in that *152area and the search is otherwise reasonable in time, scope, and intensity.” 281 Or App at 146 (emphasis added). The majority relies primarily on State v. Washington, 265 Or App 532, 335 P3d 877 (2014), in which we affirmed the search of a vehicle incident to the driver’s arrest for driving under the influence of intoxicants (DUII). In that case, we held that “an officer may search closed containers in a car incident to the driver’s arrest for DUII, if those containers were in the driver’s immediate control before the arrest and if those containers reasonably could conceal evidence of DUII.” Id. at 541. To the extent that the majority is relying on Washington as delineating a definite exception to the warrant requirement, I do not believe we should be taking such a categorical approach to the search-incident-to-arrest doctrine. Rather, we must consider the individual circumstances of each case prior to determining whether the police may search the interior of a vehicle, and any closed containers within it, upon the arrest of a driver.

Washington is factually very different from the instant case. The defendant in Washington was not the driver of the car, but was a passenger in the car. After the driver of the car was pulled over and arrested for DUII, the defendant was asked to leave the car so that it could be searched incident to the driver’s arrest. Id. at 534-35. During the ensuing search, marijuana was found beneath the driver’s seat and gun was found in the car’s center console. The defendant admitted that the gun was hers, and she was arrested for unlawful possession of a firearm and unlawful possession of a controlled substance. Id. at 535. At the time the driver was arrested and secured in a patrol car, the defendant was still seated in the car and had access to the center console and the driver’s side floorboard. The defendant’s presence during the driver’s arrest created an exigency that justified removing her from the car and searching it for evidence of the DUII. Furthermore, there was no evidence presented in Washington that the vehicle in question was going to be towed or impounded upon the driver’s arrest, which created another exigency justifying the warrantless search.

The circumstances here are quite different. At the time that Berry observed the marijuana in plain view and developed probable cause to place defendant under arrest, *153defendant had already been removed from the vehicle and denied access to the interior of the vehicle and its contents. The Altoids tin, which was found in a backpack between the front seats, was not within defendant’s immediate control at the outset of the inventory search. Rather, the tin was within the exclusive control of the police department. The state did not present evidence of exigent circumstances or provide any cause to believe that Berry could not reasonably pause to apply for a warrant to search the Altoids tin.

More troubling than the strict legal analysis is the implication of the majority opinion. If, as the majority announces, the state is entitled to search a vehicle, defendant’s backpack therein, and, further, a small opaque tin within that backpack, then where does the presumption of a requirement for a warrant begin? My point is simple. Once the exigency is removed and the police have time to reflect on the question of what is likely in the closed container, they have the time to request “a warrant authorized by a neutral and detached judicial officer” so as to insure a “‘reliable safeguard against improper searches’” that accompany the “‘hurried judgment of a law enforcement officer engaged in the often competitive enterprise of ferreting out crime.’” Lo-Ji Sales, Inc. v. New York, 442 US 319, 326, 99 S Ct 2319, 60 L Ed 2d 920 (1979) (quoting United States v. Chadwick, 433 US 1, 9, 97 S Ct 2476, 53 L Ed 2d 538 (1977) (internal citation and quotation marks omitted)). The implication of the majority’s view that exigency is not necessary to justify a search incident to arrest to obtain evidence of the crime of arrest is that, once such a search commences, the presumption that a warrant is required is lifted and the search effectively has no limits. Consequently, an officer’s failure to recognize a point at which the exigency no longer excuses a warrantless search reduces Article I, section 9, to a nullity.

Under the circumstances of this case, where there was no exigency present and there was sufficient time for Berry to obtain a search warrant, I would find that the search of the Altoids tin exceeded the scope of a reasonable search incident to arrest. I would reverse defendant’s judgment of conviction. I therefore dissent.