State v. Hoskinson

RIGGS, J. Defendant appeals his conviction by the trial court for possession of a controlled substance. ORS 475.992. He assigns error to the admission of evidence seized from his wallet. We affirm. Defendant was driving his car when he was stopped by an officer from the Lebanon Police Department who knew that defendant’s drivers license was suspended. After the officer confirmed by radio that the license was suspended, defendant was handcuffed. The officer conducted a “pat down” search of defendant as part of his routine safety check. He felt a wallet in defendant’s back pocket and removed it. While searching it for weapons or means of escape, he found a small plastic bag containing the residue of a powder, which he seized as evidence. Defendant appeals the denial of his motion to suppress the contents of the bag. In State v. Smith, 103 Or App 113, 796 P2d 665 (1990), rev dismissed 312 Or 561 (1992), we held that an officer is “entitled to search an arrestee for any weapon, tool or implement that could aid in his escape. The only limitation on that right is that the search must be reasonable in time, scope and intensity in view of all the facts.” 103 Or App at 117. (Emphasis supplied.) The Oregon Constitution prohibits unreasonable searches and seizures and protects privacy and possessory interests from unreasonable government intrusions. Or Const, Art I, § 9. In State v. Noble, 109 Or App 46, 818 P2d 938 (1991), rev’d on other grounds 314 Or 624 (1992), the specially concurring opinion discussed the heightened privacy interests of a wallet because it is used to carry valuables and important personal papers and effects. “In light of those heightened interests, it would be a greater impairment of defendant’s rights to seize the wallet and deprive him of its possession for an indefinite period of time, rather that to inspect it briefly for weapons or means of escape and then return it to him promptly, if none were found.” 109 Or App at 52. This case is substantially identical to Noble. The defendant in Noble was stopped for riding his bicycle without [308] a light after sundown. A records check revealed an outstanding arrest warrant. While being patted down, the officer found a wallet, which he checked for weapons or means of escape. Inside the wallet, he found a clear plastic bag that contained the LSD-laced blotter paper that led to defendant’s conviction. We held that when an officer has lawfully seized a wallet from defendant’s person and has “articulated a concern about the possibility that defendant may have been carrying a weapon or an instrument of escape,” it is reasonable to search [the wallet] for weapons or means of escape. 109 Or App at 51. Here, the officer had probable cause to arrest defendant because of defendant’s suspended license. He searched defendant immediately incident to arrest. During his testimony, the officer articulated a concern that the wallet might have contained “weapons and — or any means of possible escape as far as handcuff keys” or “razor blades.” The officer’s search of defendant’s wallet was the least intrusive reasonable action that was necessary for the officer’s protection. On this record, the court correctly denied the motion to suppress evidence seized from defendant’s wallet. Affirmed.