concurring.
I.
In my view, this case makes no new law. The narrow issue presented, under Article I, section 9, of the Oregon Constitution, is whether the state sustained its burden to justify a warrantless search of defendant’s wallet incident to his lawful arrest on the basis of “officer-safety” or “prevention of escape.”
Determination of the legality of searches depends largely on the facts of each case. State v. Ehly, 317 Or 66, 74, 854 P2d 421 (1993). On the facts of this case (and in the light of what I believe to be the hopelessly confused condition of *89Oregon appellate law regarding “officer-safety” searches),11 agree with the majority that the search of defendant’s wallet violated Article I, section 9.
Defendant does not challenge the lawfulness of the stop, the arrest, the “pat-down,” or the seizure of his wallet. He challenges only the search of his wallet after it had been seized by the officer. The state relies solely on the “officer-safety” or “prevention of escape” prongs of the search incident to arrest exception to the warrant requirement.2
The officer testified that he had no specific reason to believe that defendant’s wallet contained either a weapon or a means of escape. The officer did not testify that he believed that his safety was at risk; he did not articulate any specific facts supporting a reasonable belief that his safety was at risk. In effect, he testified that he always searches items taken from the persons he arrests. Insofar as the record shows, defendant was cooperative during the arrest. There also was a second officer present at the time of the arrest. Defendant’s hands were handcuffed behind his back. The record suggests that the officer did not intend to return the wallet to defendant after searching it; rather, he put the wallet in his briefcase and kept it there until defendant was received at the police station. The trial court did not find that the officer *90reasonably believed the wallet might contain a razor blade or means of escape — rather, the trial court merely accepted the officer’s testimony about his belief, apparently, because it was uncontradicted. There appears to be nothing at all in the record to support a conclusion that the officer actually thought his safety was threatened. While accepting at face value the officer’s “beliefs,” there is still the question whether it is “reasonable” to believe that a defendant handcuffed behind his back could seize a wallet from an officer, remove a razor blade or means of escape from the wallet, and then use the razor blade to threaten the officer’s safety, or to use the means of escape to get away. That feat, obviously, would become even less likely when the officer put the wallet in his briefcase. The facts do not support an “officer-safety” or “prevention of escape” exception in this case.
Defendant urges this court to adopt a per se rulethat an officer may never search a closed container incident to arrest under the “officer-safety” or “means of escape” exception once the container is outside the arrested person’s possession. A similar argument was made and was rejected by this court in State v. Ehly, supra, 317 Or at 82-83. As this court explained in Ehly, that for purposes of “officer safety” searches, courts look to the totality of the circumstances to determine whether the precautions taken by the officer were reasonable at the time the decision was made. Id. at 79. In this case, the totality of the circumstances, as shown by the record, did not justify a reasonable belief that defendant presented an immediate threat of serious physical injury to the officer or that defendant presented a threat of escape.
A police officer in the field frequently must make life- or-death decisions in a matter of seconds and there may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures. For those reasons, it is not this court’s function to uncharitably second-guess an officer’s judgment. An officer must be allowed considerable latitude to take safety precautions in such situations. Our inquiry therefore is limited to whether the precautions taken were reasonable under the circumstances as they appeared at the time the decision was made. See State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987) (officer may take reasonable steps to protect himself or others *91if, during course of a lawful encounter with citizen, officer develops a reasonable suspicion, based on specific and articula-ble facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present).
I agree with the majority’s application of the test from Ehly and Bates to the facts of this case.3
II.
I write separately to state that, were I writing on a clean slate, I would adopt the federal rule on searches incident to arrest announced in United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973) and Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973). See State v. Lowry, 295 Or 337, 349-55, 667 P2d 996 (1983) (Jones, J., specially concurring) (criticizing departure from Robinson/Gustafson rule and arguing that State v. Caraher, 293 Or 741, 653 P2d 942 (1982) is irreconcilable with State v. Elkins, 245 Or 279, 422 P2d 250 (1966) regarding the opening of closed containers); see also State v. Brown, 291 Or 642, 661, 634 P2d 212 (1981) (Linde, J., concurring) (“for practical reasons [this court] generally respects the voluminous and familiar Fourth Amendment jurisprudence ** * * unless ‘persuasive reasons’ are shown for a different analysis”). I conclude that no “persuasive reasons” are shown for a different analysis in the majority opinion in Caraher.
In Robinson, supra, and Gustafson, supra, the Supreme Court of the United States rejected the argument that the scope of a search incident to arrest must depend on the degree to which, on a case-by-case basis, the arresting officer possesses reason to search for particular items. Thus, the federal rule permits a full search of the person and possessions (at least, those carried on the person) of the arrestee, both for weapons and escape devices and for fruits of the crime, without additional justification for search beyond the fact of the arrest itself.4
*92In State v. Florance, 270 Or 169, 182-86, 527 P2d 1202 (1974), this court adopted the federal Robinson/ Gustafson rule under the Oregon Constitution, primarily for its simplicity and because of the value of having a state rule that was consistent with the federal rule. Id. at 182-86. However, in State v. Caraher, supra, in the context of a search for evidence of the crime for which the defendant had been arrested, this court overruled Florance and adopted a new rule that an arrest, by itself, does not sufficiently justify a search incident to arrest for evidence. 293 Or at 756-57.
I read Caraher to leave in doubt whether that case actually changed the law governing “officer-safety” searches incident to arrest. See id. at 759 (suggestingthat Caraher left the law governing “officer-safety” searches unchanged from State v. Florance)-, see also State v. Lowry, supra, 295 Or at 349 (“Caraher did not originate a new rule but reasserted a rule stated in three earlier Oregon decisions cited in the opinion, decisions that ‘expanded the justification for a search incident to arrest beyond considerations of the officer’s safety and destruction of evidence’ to permit a reasonable search ‘when it is relevant to the crime for which defendant is being arrested.’ ”).5
In Caraher, this court specifically stated that the search of the defendant’s purse “was not for the protection of the police[.]” Id. at 759. I therefore am persuaded that the rule of law from Caraher is simply inapplicable to the “officer-safety” exception, because that exception was not in issue in Caraher. See State v. Owens, 302 Or 196, 200, 729 P2d 524 (1986) (“Of course, a pat-down or limited search for weapons to protect the officer or to prevent escape would be justified whenever a person is taken into custody.”). (Emphasis added.) Thus, the rule of law from Caraher regarding searches incident to arrest is a narrow rule.
The general rule from Robinson and Gustafson regarding searches incident to arrest is much preferable to the confusion caused by Caraher. For example, the rationale *93for “inventory searches” set out in State v. Atkinson, 298 Or 1, 7-8, 688 P2d 832 (1984), seems to apply to all arrest or impoundment inventory situations: (1) to protect the property; (2) to prevent false claims against the police for lost or stolen property; and (3) to reduce danger to police. In State v. Perry, 298 Or 21,688 P2d 827 (1987), which was a companion case to State v. Atkinson, supra, this court found that a search of luggage of aperson detained on a “civil hold” for detoxification was not justified. 298 Or at 23. However, that case makes it clear that a more intrusive search of the property of an arrestee booked for a crime would be permissible. Id. at 27. See also ORS 133.455 (booking officer to give receipts for money or other valuables). Under the Atkinson “inventory search” rationale, an officer should be able to open a wallet or purse incident to arrest because of the first two justifications listed above which justify opening a wallet or purse when the arrestee is being booked.
Under the current approach in this case, the arresting officer may seize a wallet (for “officer safety” or “means of escape” purposes) but may not open it unless the officer can articulate specific facts supporting a reasonable belief that his or her safety is at risk, or that the wallet contains means of escape, or evidence of the crime for which the person is arrested. The officer therefore retains the wallet, gives it to the booking officer at the jail, who may open it, and who issues a receipt for whatever is inside. Now, this procedure not only seems rather silly, but actually could serve to defeat the purpose of the second rationale from Atkinson listed above — the defendant can now claim that the arresting officer, who took his wallet and had it in his possession between the arrest and the booking, took money and valuables from the wallet.
Oregon should follow Robinson!Gustafson.6
In State v. Caraher, 293 Or 741, 653 P2d 942 (1982) this court indicated that it was abandoning the federal line of cases concerning searches incident to arrest. But see State v. Owens, 302 Or 196, 200, 729 P2d 524 (1986) (pat-down or limited search for weapons for officer safety justified “whenever a person is taken into custody”); see also 1 Crim Law CLE § 6.40 at 6-34 (1994) (“The supreme court has not yet addressed the issue of what justification is sufficient to engage in more than a pat-down search [incident to arrest] for officer safety.”).
The 1994 Criminal Law CLE manual recognizes the potential divergence of appellate case law here:
“QUERY: Is the supreme court’s decision in State v. Ehly, 317 Or 66, 854 P2d 421 (1993) (officer may order defendant to empty bag on reasonable suspicion it contains a weapon), inconsistent with the court of appeals decision in State v. Jones, [103 Or App 123, 796 P2d 670 (1990), rev den 311 Or 166 (1991)] (officer may not open container suspected to contain weapon as part of search incident to arrest)?” 1 Crim Law CLE § 6.40 at 6-35 (1994).
In the trial court, the state specifically disclaimed an alternative “inevitable discovery” argument. See State v. Paulson, 313 Or 346, 353 n 3, 833 P2d 1278 (1992) (the doctrine of “inevitable discovery” is recognized in Oregon statutory and case law). The state does not argue that the evidence was obtained lawfully as a result of an inventory policy. See State v. Atkinson, 298 Or 1, 7, 688 P2d 832 (1984) (holding that a policy may be adopted and uniformly administered to inventory the contents of vehicles in order to protect private property and for ancillary purposes).
Although State v. Ehly, supra, and State v. Bates, 304 Or 519, 747 P2d 191 (1987) are “(Terry-stop” cases rather than search incident to arrest cases, the rationale behind the “officer safety” exception is identical in both contexts.
See State v. Anfield, 313 Or 554, 562, 836 P2d 1337 (1992) (addressing defendant’s Fourth Amendment argument, noting that a complete search of an arrested person following a valid arrest is not a violation of the Fourth Amendment).
See State v. Owens, supra, 302 Or at 201 (full discussion of how Caraher abandoned Florance, Gustafson, and Robinson, and returned Oregon search and seizure law to the “traditional rule” based on State v. O’Neal, 251 Or 163, 444 P2d 951 (1968) and State v. Krogness, 238 Or 135, 388 P2d 120 (1963), cert den 377 US 992 (1964)).
See 2 LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 5.2(c) at 448-49 (2d ed 1987) (a very cogent analysis criticizing case-by-case determination of scope of searches incident to arrest as necessarily involving a “highly sophisticated set of rules, qualified by all sorts of ifs, ands and buts and requiring the drawing of subtle nuances and hairline distinctions” and as being impossible for police officers to apply in the field).