State v. Dickerson

De MUNIZ, J.,

dissenting.

I disagree with the majority’s analysis and conclusion that unfolding the pocketknife was a search that *197required probable cause and a warrant. Accordingly, I respectfully dissent.

The majority assumes that two warrantless searches occurred. The first search occurred when the police arrested defendant and conducted a pat-down or limited search for weapons. 135 Or App at 195. I agree with the majority that that search and the seizure of the pocketknife were justified by the need to protect the officers’ safety. I part company with the majority when it asserts that another search occurred when the officer unfolded the pocketknife and saw tire residue on it. 135 Or App at 195.

Unlike the majority, I do not agree that a simple pocketknife should be characterized as a “container.” A container is generally a receptacle with a cover in which things are placed for storage or transportation. Oregon appellate cases are consistent with that definition of a container. See State v. Groda, 285 Or 321, 591 P2d 1354 (1979) (briefcase); State v. Keller, 265 Or 622, 510 P2d 568 (1973) (fishing tackle box); State v. Meyer, 120 Or App 319, 852 P2d 879 (1993) (black plastic box); State v. Morton, 110 Or App 219, 822 P2d 148 (1991) (cigarette case); State v. Gotham, 109 Or App 646, 820 P2d 884 (1991), rev den 312 or 677 (1992) (opaque, round, plastic container); State v. Jones, 103 Or App 316, 797 P2d 385 (1990) (metal Sucretsbox); State v. Schellhorn, 95 Or App 297, 769 P2d 221 (1989) (purse); State v. Rounds, 73 Or App 148, 698 P2d 71, rev den 299 Or 663 (1985) (backpack). A pocketknife is not a container, rather it is “a knife with a blade folding into the handle to fit it for being carried in the pocket[.]” Webster’s Third New Int’l Dictionary 1747 (unabridged ed 1993).

To determine whether particular police conduct is a search, “we must look to the nature of the act asserted to be a search.” State v. Campbell, 306 Or 157, 170, 759 P2d 1040 (1988). Once the pocketknife was lawfully seized from defendant, manipulation and visual observation of the blade of the *198knife is simply not the kind of police conduct that significantly impairs an individual’s interest in freedom from scrutiny. See State v. Wacker, 317 Or 419, 425, 856 P2d 1029 (1993). I would hold that a simple pocketknife is not a container and that unfolding the blade of the knife and looking at it is not a search under Article I, section 9, of the Oregon Constitution.

However, even assuming, as the majority does, that a pocketknife is a container, I disagree that it is a container that merits protection under Article I, section 9. In State v. Owens, 302 Or 196, 729 P2d 524 (1986), the court distinguished between privacy interests in different types of containers. Containers that announce their contents because, for example, they are transparent do not support a cognizable privacy interest under Article I, section 9.302 Or at 206. The contents of such containers are essentially in ‘ ‘plain view, ’ ’ and thus no warrant is necessary to open them and seize the contents. Id. In contrast, as the majority notes, a person does have a privacy interest in opaque containers that do not “announce their contents.” Gotham, 109 Or App at 649.

Defendant makes no argument why he had a privacy interest in the pocketknife. He only asserts in a footnote that ‘ ‘it is clear that the opening of [his] pocketknife was a search” that was unreasonable under the circumstances. The majority concludes that the “closed pocketknife announced only that it contained a blade[,]” and “[b]ecause opening the knife revealed evidence that was not otherwise exposed to public view, it was a search that required probable cause.” 135 Or App at 196.

Unlike the majority, I find no cognizable privacy interest in the blade of a simple pocketknife. The distinctive configuration of a closed pocketknife indicates that it contains a blade. That is, the handle announces that it contains a blade. The edges of a pocketknife are integral parts of the blade. Insofar as the handle announced that it contained a blade, it also announced that the blade had edges, a sharp one and a dull one. Consequently, defendant had no privacy interest in either the blade or its edges. See Owens, 302 Or at 206. When the officers unfolded the blade of defendant’s pocketknife, they did not invade any constitutionally protected privacy interest, and thus, there was no search. Cf. *199State v. Rhodes, 315 Or 191, 196, 843 P2d 927 (1992) (search occurs when a governmental officer intrudes into the protected privacy interest of an individual).

I would affirm the court’s denial of defendant’s motion to suppress.

Richardson, C. J., and Deits and Edmonds, JJ., join in this dissent.