concurring in part; dissenting in part.
Whether we approve of them or not, we are bound by decisions of the United States Supreme Court on federal *734constitutional questions. Yet the majority essentially ignore Walter v. United States, 447 US 649, 100 S Ct 2395, 65 L Ed 2d 410 (1980), under which the chemical analysis undertaken by the Los Angeles police officer would be impermissible without a warrant. Instead, the majority rely on a state court decision and a lower federal court decision.
In Walter, an interstate shipment of sealed packages was misdelivered to a party other than the consignee. Employes of that party opened the packages and found individual film boxes with labels bearing explicit descriptions and suggestive drawings of homosexual activities. After attempting unsuccessfully to view the film by holding it up to the light, the employes contacted FBI agents, who took the packages to their office. Without obtaining a warrant, the agents viewed the films on a projector and determined that they were obscene.
A majority of the court held that the officers did not have authority to project the films without a warrant. Three members of the majority, Stevens, Stewart and Marshall, JJ, distinguished an officer’s authority to possess a package from his authority to examine its contents. They concluded that the officer could examine the contents of the packages “to the extent that they had already been examined by third parties.” Because the private parties had not projected the film, the FBI agents could search no further without obtaining a search warrant. Moreover, in answer to the government’s contention that petitioners’ expectation of privacy in the films had already been lost by the private search, Stevens, J., stated:
“* * * The private search merely frustrated that expectation in part. It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Since the additional search conducted by the FBI — the screening of the films — was not supported by any justification, it violated that Amendment.” Walter v. United States, supra, 447 US at 659. (Footnotes omitted.)
White, J., joined by Brennan, J., concurred in the judgment, but stated that “[t]he notion that private *735searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles.” Walter v. United States, supra, 447 US at 660. Thus,
«* * * jf the private parties * * * had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them [because] * * * the Government’s subsequent screening of the films constituted an independent, governmental search that would have infringed petitioners’ Fourth Amendment interests without regard to any previous screening by private parties.” 447 US at 662.
Here, as in Walter, the initial invasion of defendant’s privacy occurred when private parties opened the package. In Walter, the private parties removed the film and attempted to determine whether it portrayed the homosexual acts depicted by words and drawings on each container; here, the private parties opened the plastic bag and smelled the contents to attempt to confirm their suspicions. In Walter, the police went further by projecting the films to verify that they portrayed obscene conduct; here, the police went further by conducting a chemical analysis of the contents of the baggie to verify its contents. Walter held that the additional search by the police without a warrant violated defendant’s Fourth Amendment rights.
Unless there is a valid distinction between Walter and this case, the chemical analysis performed by the Los Angeles police is not admissible here. The majority have not attempted to make a distinction. Instead, they rely on United States v. Barry, 673 F2d 912 (6th Cir 1982), and People v. Adler, 50 NY2d 730, 431 NYS2d 412, 409 NE2d 888, cert den 449 US 1014 (1980), each of which purported to distinguish Walter on the grounds that the films in Walter were protected by the First Amendment and that a chemical test is not as significant an investigation as is the viewing of film.
I do not accept that analysis; neither did the court in United States v. Jacobsen, 683 F2d 296 (8th Cir *7361982). There, the court concluded that Walter required suppression of the result of chemical analysis made by federal agents under facts substantially identical to those presented here. White powder had been found by Federal Express employes when a box delivered to the carrier for shipment broke open. The employes removed the plastic bags from the box, but did not remove any of the powder or analyze it before putting the bags back in the box. They suspected the powder was a controlled substance and notified the Drug Enforcement Agency. The DEA agents removed the bags, took samples and subjected them to tests in order to determine their composition. The court said:
“The DEA agents’ extension of the private search precisely parallels that in Walter. In both cases, viewing the objects with unaided vision produced only an inference of criminal activity. In both cases, government agents went beyond the scope of the private search by using mechanical or chemical means to discover the hidden nature of the objects. The governmental activity represents a significant extension of the private searches because it revealed the content of the films in Walter and, here, the composition of the powder. In the absence of exigent circumstances, which the government does not allege, we hold the agents were required to obtain a warrant authorizing the taking of samples and analysis thereof.” 683 F2d at 299-300. (Footnote omitted.)
One may disagree with Walter or speculate whether the United States Supreme Court will follow it in the future, but to attempt to distinguish it on the ground that it was a First Amendment case is nonsense. The requirement for a warrant is no greater when the object of the search may be protected by the First Amendment than when it is not, although it may be more difficult to articulate probable cause to support a warrant to search for obscene materials. We are bound by the court’s application of the Fourth Amendment in Walter, under which the warrantless testing of the contents of the plastic baggie by the Los Angeles officer constituted an unreasonable search, and evidence of the test results was properly suppressed.
However, it does not follow that all of the evidence need be suppressed. The trial court found, and defendant concedes, that the Los Angeles officer, after observing the plastic baggie, had probable cause to believe that it *737contained cocaine and could have obtained a warrant to search {i.e., analyze) its contents. Given that premise, the analysis of the baggie’s contents did no more than strengthen the probable cause he already had. When Detective Kaiser called the Eugene authorities to explain that a package containing what he believed to be cocaine would be arriving in Eugene later that night, he supplied them with probable cause to arrest defendant and to seize the package from him when he claimed it at the terminal. The Eugene police, having probable cause, were not required to obtain a warrant for defendant’s arrest. United States v. Watson, 423 US 411, 96 S Ct 820, 46 L Ed 2d 598 (1976). When they arrested defendant after he claimed the package, they were also entitled to seize the package then in his possession as incident to a lawful arrest. United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973); Chimel v. California, 395 US 752, 89 S Ct 2034, 23 L Ed 2d 685 (1969); State v. Florance, 270 Or 169, 527 P2d 1202 (1974). I agree that the statements made by defendant following his arrest and Miranda warnings were admissible.
The more troublesome question, however, is whether the search of the package following its seizure from defendant in Eugene was lawful. Even though the trial court found (and the state concedes) that defendant’s consent to the opening of the package was involuntary, if the police could have lawfully opened and searched the package seized incident to defendant’s arrest, defendant’s consent would be irrelevant. The majority hold that the police had control over the package during the entire time from its acquisition in Los Angeles up to defendant’s arrest. Whether that proposition is valid may be questionable, but, in any event, the Eugene police had authority to seize the package incident to the valid custodial arrest of defendant. Under Walter v. United States, supra, the police had authority to go as far as the private parties had gone in Los Angeles, so I do not think that we are faced with the problem of whether this case is controlled by the line of cases represented by State v. Brown, 291 Or 642, 634 P2d 212 (1981); United States v. Robinson, supra; Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973); and United States v. Edwards, 415 US 800, 94 S Ct 1234, 39 L Ed 2d 771 (1974), sustaining warrantless searches of *738containers taken from persons incident to custodial arrest, or whether it is controlled by such authority as United States v. Chadwick, 433 US 1, 97 S Ct 2476, 53 L Ed 2d 538 (1977), and Arkansas v. Sanders, 442 US 753, 99 S Ct 2586, 61 L Ed 2d 235 (1979).1
To summarize, I agree that the trial court erred in suppressing all of the evidence. In my opinion, the only evidence that must be suppressed is the chemical analysis made in Los Angeles of the contents of the plastic baggie.
Warren and Newman, JJ, join in this concurring and dissenting opinion.The distinction seems to be that it is permissible to open small closed containers taken from an arrestee’s clothing, but not larger closed containers seized at the time of the arrest, from a place other than the arrestee’s clothing. In the latter setting,
“* * * [o]nce law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” United States v. Chadwick, supra, 433 US at 15.