concurring in State v. Fincher and dissenting in State v. Mundt.
I concur in State v. Fincher (CA A46731). I dissent in State v. Mundt (CA A46629).
First, I have serious doubt that the authorized administrative program satisfies the requirements set forth in State v. Atkinson, 298 Or 1, 688 P2d 832 (1984). In that case, the court pointed out that a court is a judicial body, not a legislative body:
“It is not our function to decide as a matter of policy how, and for what purpose, automobiles or other private property that come into official custody should be examined. That is a matter for politically accountable officials to decide by laws, ordinances, or delegations of rulemaking authority.” 298 Or at 6.
The court’s role is to assure that adopted policies and procedures do not violate constitutional guarantees. I understand Atkinson to say that, in the first instance, politically accountable officials must adopt the rules by laws or ordinances or must expressly delegate rulemaking authority to the official making the rules. Here, we do not know what authority, if any, the Albany Police Department had to establish booking inventory procedures.
Assuming that the department had authority to adopt procedures, the written rules either exceed the scope of an inventory authorized by Atkinson or do not clearly authorize the opening of any containers. As the majority points out, the written procedures provide that “all persons taken into custody shall be searched as soon as possible. The search should extend to articles in the prisoner’s possession which *417must be accounted for at the time of release.” (Emphasis supplied.) Atkinson does not authorize any search; it authorizes an inventory of articles in the arrestee’s possession. Atkinson points out that “[t]he degree to which an inventorying officer may scrutinize the items uncovered is limited,” 298 Or at 10, citing State v. Perry, 298 Or 21, 688 P2d 827 (1984), and State v. Keller, 265 Or 622, 510 P2d 568 (1973). It goes on to point out also that, in Keller, the court “distinguished the search of a fishing tackle box within a vehicle from a general inventory of the vehicle, holding the former invalid and stating that ‘there is a delicate balance between conflicting public and private interests—the need to search to protect law officers and car owners and the invasion of Fourth Amendment protected interests of private citizens.’ ” 298 Or at 5.
To the extent that the authorized procedures relied on here authorize a search, as distinguished from an inventory, of defendant’s possessions, they exceed the authority that Atkinson would permit. On the other hand, if the procedures mean that the police are to inventory all articles in the person’s possession, they would conform to Atkinson, but would not authorize the opening of closed containers. Those specific instructions, quoted by the majority, 98 Or App at 413, clearly do not authorize the opening of any containers. They simply direct the officer to itemize all personal property in the possession of the person detained.
Second, even if the rules on which the state relies were validly adopted and even if they authorized the opening of closed containers to inventory their contents, rather than engage in a search, we held in State v. Ridderbush, 71 Or App 418, 692 P2d 667 (1984), that the opening of any closed, opaque container during a jail booking procedure is not permissible under Article I, section 9. That is the authority on which the trial court properly relied in this case and which the majority accepts with respect to State v. Mundt. The majority, however, contends that a wallet is not a closed container. Perhaps a minor point here is that, when defendant handed his wallet to the booking officer, it had a wristwatch wrapped around it; that is, it was securely closed. The state urges v. to overrule or modify Ridderbush in both Mundt and Fincher. The majority has left it intact in Fincher but seemingly modifies it in Mundt. In my opinion, there is no occasion to overrule or modify the bright-line rule laid down in Ridderbush; *418the wallet should have been inventoried as “one wallet.” The booking officer could inquire of the arrestee what valuables he has in the wallet and, if he says, “None,” then note that on the inventory; if he says that he has a specified amount of cash, he should ask the arrestee to display it and then inventory that amount. If the inmate refuses to sign the inventory list, see ORS 133.455, that fact should be noted on the inventory.
The majority would distinguish a wallet from an opaque plastic box. Of course, the two items are different. A major distinction, in my view, is that the contents of a wallet are much more likely to be personal in nature than those in an opaque plastic box. Defendant clearly has a privacy right, not an expectation of privacy, in the wallet, State v. Campbell, 306 Or 157, 759 P2d 1040 (1988), and there is no emergency or noninvestigative reason to explore the contents of the wallet.
Accordingly, I dissent in State v. Mundt.