State v. Florance

¶1dissenting.

¶2Our action today in adopting the principle laid down in United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed2d 427 (1973), repudiates our previous cases holding that a warrantless search is invalid unless it can be shown that the search was necessary for the protection of the arresting officer or to avoid the loss of evidence.

¶3Although the majority recognizes that we are free to continue to provide a greater measure of protection to our citizens under Article I, § 9 of our own constitution than is now provided under the Fourth Amendment as a result of Robinson, the majority now elects to dilute the safeguards which we previously found in our constitution.

¶4The reasons advanced by the majority for making this important shift in our interpretation of Art. I, § 9 are not convincing. The principal reason seems *194to be that the new rule will simplify the law of search and seizure in Oregon. This will be brought about, according to the majority opinion, because there will no longer be an “Oregon rule” and a “federal rule,” which it is said is confusing when federal and state officers work together.

¶5Whether any substantial amount of confusion arises out of this circumstance, I am not prepared to say because I have no information on the subject and I suspect that the majority is in no better position than I to make an appraisal of the situation.① But assuming that there is some confusion, it strikes me as a slender reed upon which to rest a repudiation of a significant part of an important constitutional doctrine, guaranteeing the basic right of privacy. Although simplicity of rules is desirable, it is not the principal objective we should have before us in formulating constitutional doctrine. In numerous instances we have found it necessary to fashion complex rules simply because we are dealing with complex interests.

¶6Certainly, simple rules can be devised to make the First Amendment or the Fourteenth Amendment easily applied. And so with the applicability of the Fourth Amendment and Art. I, § 9. But in applying these constitutional provisions we are dealing with some of the most fragile of our civil liberties, the pro*195tection of which requires keen judicial sensitivity not only to the interests of the accused but also the dangers of unfettered inquiry by agents of government into the citizen’s private affairs. We should work in this field in the manner of a surgeon with the delicate instruments of surgery and not as the Robinsonrule permits, in the manner of a butcher wielding a meat axe.

¶7The price we pay for the majority’s quest for “simplicity” is massive erosion of the warrant requirement of our constitutions. It is not to be forgotten that the Fourth Amendment through the requirement of a warrant was designed to interpose a judicial officer between the citizen and the agent of government so that on an ad hoc basis the grounds for the search could be judicially scrutinized for probable cause, and for the specificity of the place to be searched and the person or thing to be seized.② With the latitude now permitted by the Robinsonrule, there will be no opportunity for judicial supervision of any search incident to a so-called “custodial arrest.” And, although the majority opinion in the present case deems it important to emphasize that we are dealing with the search of a person and not the search of a place, it will take something close to legal legerdemain to explain why the custody of a person permits an unlimited search of that person but that the custody of a box③ or an automobile④ does not permit the unlimited search *196of those objects. It will be almost as difficult to explain, on the reasoning used in Robinson, why there should be any limits in the search of a house once the police áre lawfully on the premises.

¶8If, then, these are the necessary logical extensions of Robinson, what has happened to the warrant requirement and the protection that it provides the citizen ?

¶9Even if it were conceded that the Robinsonrule may simplify the law of search and seizure in some respects, it also complicates it in other, and more important respects. The majority opinion itself, in embracing the “simple” rule of Robinson, lists a number of possible limiting exceptions and suggests the likelihood of others, all of which would require the same kind of line-drawing and the same kind of complexity involved in the -pre-Robinson rule which we are now discarding.⑤

¶10The majority opinion offers us the solace that the Robinsonrule of limitless search can be held within acceptable bounds by invalidating searches following a so-called “pretext arrest.” We are not told what constitutes a “pretext arrest.” Where the defendant is arrested for the violation of a traffic law (as in Robinsonand Gustafson), is the arrest a pretext if the officer also has the suspicion, but not probable cause, to believe that the defendant also has drugs in his possession? If the answer is no, we have, then, the almost unlimited license to make warrantless searches.⑥ If *197the answer is yes, the license will he almost as broad because it will be next to impossible to determine that in making the arrest the police were motivated by the desire to search for evidence of a crime not related to the arrest.⑦ Moreover, the difficulty of deciding whether or not the arrest was a pretext creates the same kind of complexities the majority seeks to avoid by the adoption of Robinson.

¶11The majority also suggests another limitation on the right to search under the Robinsonrule, where the search partakes of “the extreme or patently abusive characteristics which were held to violate the Due Process Clause of the Fourteenth Amendment in Rochin v. California, 342 US 165, 72 S Ct 205, 96 L Ed 183, 25 ALR2d 1396 (1952)” (United States v. Robinson, supra 38 L Ed2d at 441). We will be called upon to decide on a case by case basis what kind of searches fall within this exception. It is not uncommon in the drug world for persons apprehended by the police to secrete drugs in anal or vaginal orifices. Could the police validly extend their search into these orifices as an incident to an arrest for a traffic violation? The search would not seem to be “extreme or patently abusive” if it was made in a neighborhood where the possession of drugs was common and the likelihood of secreting drugs within the body was not uncommon. On the other hand, if the search were made in circumstances where there would be little likelihood of such a method of concealment, the search would, I should think, be “extreme” and “patently abusive.” By this approach we find ourselves in the position, then, of testing the validity of the search upon the basis of probable cause to search and we are, in effect, back *198where we started, using the same rule as we now say we have discarded.

¶12The majority opinion adds further confusion by making a distinction between a search to establish identity and a search for other purposes. The court then couples this with a distinction between an arrest for a major offense and an arrest for a minor offense “such as a minor traffic violation” and concludes that a search through the defendant’s wallet to determine or verify the identity of one arrested for a major offense is valid, but that we need not decide whether the same would be true where the arrest is made for a minor offense and the officer “asks for and is given the driver’s license of such a person.” It is not clear what the court is saying. Does it mean that the process of going through an arrested person’s belongings to ascertain his identity is not a “search” and is always valid, but that the search for evidence of a crime is subject to limitations of some kind? Or does it mean that checking a man’s identity is a “search,” but there is a possible difference between a search incident to a major offense and a search incident to a minor offense? If the former meaning is intended, I would disagree on the ground that a citizen is entitled to have his privacy protected from police intrusion whether the purpose is to obtain information as to the citizen’s identity or to obtain information about the commission of a crime. Precisely the same dangers seen as the basis for the adoption of the Fourth Amendment apply in both cases.

¶13If the court is purporting to make a distinction between major and minor offenses for the purpose of setting different limits of search, the reasoning would be unsound because, whether a person is under custodial arrest for a major or minor offense, his privacy *199has been invaded equally and, accepting the rationale of Robinson, privacy having been forfeited there is no reason for giving it life at any stage in the process of police investigation.

¶14In addition to this logical difficulty which the majority has created, there is a more serious transgression in accepting the reasoning which constitutes the major premise of Robinson. As noted above, Robinsonreasons that once the police have lawfully intruded upon the defendant’s privacy, it is gone for all other purposes thereafter in the course of the search. We are not told why this is so. Certainly, it is not because the accused can be deemed to have consented to a more pervasive invasion of his privacy. And I can think of no moral precept which would prompt one to say that a man who is bad because he drives without a driver’s license should be penalized by being made to strip down for a search. I think it is apparent that the real reason for the forfeiture rationale of Robinsonis that the U. S. Supreme Court feels that the police need more effective tools to aid them in law enforcement.

¶15I am in favor of giving the police all the proper means of carrying out their important and dangerous job, but I would draw the line at the point where it gives rise to the danger which the Fourth Amendment was designed to protect us against which, I repeat, is the danger of the abuse of power by the executive branch of government acting through its enforcement agencies. In view of recent events demonstrating how these agencies can imperil our interests, it is surprising to me that we would, by the adoption of the Robinsonrule, weaken the very safeguards designed for our protection.