State v. Wilcox

756                    December 21, 2023                     No. 39

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Petitioner on Review,
                            v.
               JASON THOMAS WILCOX,
                 Respondent on Review.
        (CC 19CR75468) (CA A175891) (SC S070063)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted September 12, 2023.
   Rebecca M. Auten, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   John Evans, Deputy Public Defender, Office of Public
Defense Services, Salem, filed the brief for respondent
on review. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section.
   JAMES, J.
   The decision of the Court of Appeals is vacated, and the
case is remanded to the Court of Appeals for further pro-
ceedings consistent with this opinion.




______________
   * On appeal from Washington County Circuit Court, Andrew R. Erwin,
Judge, 

, 

 (2022).
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 (2023)   757
758                                               State v. Wilcox

         JAMES, J.,
          This criminal case arises from the noncriminal sei-
zure of defendant, pursuant to ORS 430.399(1), the public
intoxication law, which provides that “[a]ny person who is
intoxicated or under the influence of controlled substances
in a public place may be sent home or taken to a sobering
facility or to a treatment facility by a police officer.” When
officers seized defendant for purposes of taking him to a
detox facility, they also seized, then inventoried, his back-
pack, which revealed a butterfly knife. Having previously
been convicted of a felony, defendant was ultimately con-
victed of violating ORS 166.270(2), felon in possession of a
restricted weapon.
         The Court of Appeals held that the seizure of defen-
dant’s backpack was unlawful under Article I, section 9, of
the Oregon Constitution. State v. Wilcox, 

, 

 (2022). In doing so, the court relied on its
decision in State v. Edwards, 

, 

(2020), which involved the seizure and search of a backpack
following a criminal arrest. The state petitioned for review,
arguing that the Court of Appeals erred, both in this case,
and in Edwards. We allowed review and now vacate the
decision of the Court of Appeals and remand for further
proceedings consistent with the reasoning of this opinion.
The Court of Appeals approached its analysis from a mis-
taken starting point—this case involves an administrative
seizure, not a criminal seizure. As such, it is unnecessary to
consider whether Edwards was correctly decided.
                        BACKGROUND
       The undisputed facts were set forth by the Court of
Appeals:
   “Defendant went to a police station to report being assaulted
   at a nearby transit station. Officer Baisley and his part-
   ner, Deputy Quick, responded. When they arrived to take
   defendant’s statement, defendant had been loaded into an
   ambulance and was ready for transport to a hospital. The
   officers followed him to the hospital and waited until he
   was available to discuss the alleged assault. While waiting
   to enter the exam room, they could hear defendant yell-
   ing at the nurses. As Baisley later recalled, defendant was
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   ‘[d]isgruntled, argumentative.’ When Baisley and Quick
   were able to enter the exam room, the officers got the sense
   that defendant was intoxicated. Defendant made it clear
   that he did not want to talk to them about the alleged
   assault, so they turned to leave. As they were crossing the
   parking lot to their vehicle, hospital security stopped the
   officers to ask for help. Security told the officers that defen-
   dant was refusing medical treatment and they were going
   to discharge him. The officers returned to the exam room,
   placed defendant in handcuffs, and advised him that he
   was being taken into custody for transport to a detox facil-
   ity. Baisley and Quick walked defendant out to the patrol
   car. Defendant had a backpack with him. Quick conducted
   a search of defendant’s person and then placed him in the
   patrol car. Meanwhile, Baisley conducted an inventory of
   defendant’s backpack.
       “During the inventory search, Baisley found a butterfly
   knife. Because butterfly knives are restricted weapons, the
   officer did a criminal history check on defendant and found
   that he had previously been convicted of a felony. Quick
   then arrested defendant for the crime of felon in possession
   of a restricted weapon, and the officers transported him to
   the jail rather than the detox facility. Baisley conducted an
   additional inventory search of the backpack at the jail and
   found a second butterfly knife.”
Wilcox, 

 (brackets in Wilcox). Defendant
was later charged with being a felon in possession of a
restricted weapon, ORS 166.270(2), and he moved to sup-
press the evidence discovered in his backpack. The trial
court denied that motion and, thereafter, entered a judg-
ment of conviction.
         On appeal of that conviction to the Court of Appeals,
defendant advanced multiple arguments, only two of which
are pertinent to our discussion. First, defendant argued that
the warrantless seizure of his backpack violated his rights
against unreasonable search and seizure under Article I,
section 9. Second, defendant argued that the search of his
backpack also violated his rights under Article I, section 9.
The Court of Appeals viewed the first issue—the seizure of
the backpack—as dispositive and did not reach the question
of the legality of the search. 

.
760                                                State v. Wilcox

         In holding the seizure unlawful, the Court of
Appeals cited to our decision in State v. Juarez-Godinez, 

, 

 (1997), for the proposition that “a ‘sei-
zure’ of property occurs when police physically remove prop-
erty from a person’s possession.” Wilcox, 

(emphasis in Juarez-Godinez ).
       Next, the Court of Appeals summarized its decision
in Edwards:
   “In Edwards, the defendant had an outstanding arrest
   warrant for failure to appear. A police officer spotted her
   riding a bicycle, wearing a backpack. The officer stopped
   her and arrested her on the warrant. The backpack was
   removed from defendant, and she was placed in handcuffs.
   Once removed, the backpack’s contents were examined
   pursuant to a local inventory policy * * *. The defendant
   moved to suppress the evidence obtained from the search
   of her backpack on the ground that it had been unlawfully
   seized without a warrant. The state argued that the sei-
   zure was lawful because arresting officers have authority
   to seize the property of an arrestee. The trial court agreed.
        “We reversed. We concluded that, because the seizure
   of the backpack occurred without a warrant, the state had
   the burden of showing that the seizure was justified by a
   well-established exception to the warrant requirement.
   * * * [A] person’s lawful arrest does not allow for the seizure
   of all the arrestee’s personal property. It may authorize a
   seizure of ‘narrow categories’ of personal effects, such as
   effects related to the probable cause for arrest or readily
   apparent contraband. But the defendant’s backpack did not
   fall within such narrow categories.”
Wilcox, 

 (citations omitted).
        The Court of Appeals concluded that the seizure of
the backpack was unlawful, viewing Edwards as controlling:
   “In this case too, the state’s only argument is that its sei-
   zure of defendant’s backpack was justified by its lawful sei-
   zure of his person for the purpose of transporting him to
   detox. As we observed in Edwards, with the exception of
   certain narrow categories of property, the lawful seizure of
   a person does not justify the warrantless seizure of the per-
   son’s property. And, as in Edwards, the state in this case
   has not established that defendant’s backpack falls within
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   any of the narrow categories of effects that lawfully may be
   seized upon the seizure of the person.”
Id. at 276 (citation omitted).
         Before us, the state advances several arguments
as to why, in its view, the Court of Appeals erred. First,
the state argues that the backpack was not seized. As the
state argues, “[d]ue to his custodial status, defendant was
not able to exercise all the property rights that he other-
wise would have had with respect to his backpack. But that
was a result of the officers’ interference with his liberty, not
any interference with his possessory interests in the back-
pack.” (Emphases in original.) In essence, the state appears
to argue that although defendant’s person was seized, his
property was not also seized.
         Additionally, the state argues that, because the
officers did not interfere with defendant’s right to direct
the control of his backpack, it was not a seizure, and alter-
natively, if it was a seizure, it was a lawful seizure, either
because it was analogous to consent or because it was lawful
to seize the backpack incident to lawfully taking defendant
into custody pursuant to ORS 430.399. The state argues:
       “Under the circumstances here, the police did not inter-
   fere with defendant’s right to dispose of his backpack in
   a way other than taking it with him into police custody.
   Initially, defendant never attempted to exercise any right to
   transfer possession or otherwise dispose of the backpack, so
   the officers never interfered with that right. The trial court
   found that defendant ‘ha[d] the backpack with him’ when
   he was in custody, up until he was placed in the car; it was
   therefore indisputably within his immediate possession and
   control at that time. And he never asked to or attempted to
   dispose of the property in some way other than bringing it
   with him. To the contrary, he kept it with him when leaving
   the hospital and walking to the police car.”
(Brackets and emphasis in original.)
        Finally, the state argues that the Court of Appeals’
decision in Edwards is wrong. According to the state, the
“Edwards court first determined—in the abstract—that a
seizure occurs when police physically remove property from
an individual. In so doing, the court erred by omitting the
762                                               State v. Wilcox

first step of the seizure analysis—identifying the possessory
interest at issue.” Here, the state argues, the seizure of the
backpack was derivative of the lawful seizure of defendant’s
person, what the state terms “a necessary byproduct of the
police taking defendant into custody.”
         Defendant, in turn, argues that the Court of
Appeals’ seizure analysis was correct. Additionally, defen-
dant renews his challenge to the search of the backpack—
the issue the Court of Appeals did not reach. Defendant asks
us to review a wide array of Court of Appeals decisions in
the area of inventory searches and hold that those decisions
are “in unmitigated conflict with this court’s long-standing
rule that officers may not open closed, opaque containers
during an inventory.” Defendant argues that “[t]his court
should finally disavow the Court of Appeals’ rule and reaf-
firm its own precedent.” The state, in response, argues that
defendant’s call for a sweeping reexamination of Court of
Appeals decisions is inappropriate in this case, given that
the Court of Appeals did not rule on the search issue.
                          ANALYSIS
        Article I, section 9, of the Oregon Constitution
provides:
   “No law shall violate the right of the people to be secure in
   their persons, houses, papers, and effects, against unrea-
   sonable search, or seizure; and no warrant shall issue but
   upon probable cause, supported by oath, or affirmation,
   and particularly describing the place to be searched, and
   the person or thing to be seized.”
         We begin with the state’s argument that the back-
pack was not seized. Property is “seized,” for purposes of
Article I, section 9, when there is “a significant interference
with a person’s possessory or ownership interests in prop-
erty.” State v. Owens, 

, 

 (1986). As
we have noted in the past, that definition is sparse, and “our
cases do not offer much in the way of explanation.” Juarez-
Godinez, 

. However, we have clarified that the
“seizure of an article by the police and the retention of it
(even temporarily) is a significant intrusion into a person’s
possessory interest” in that property. Owens, 

.
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         The state’s first argument in this case is that, “[d]ue
to his custodial status, defendant was not able to exercise all
the property rights that he otherwise would have had with
respect to his backpack. But that was a result of the officers’
interference with his liberty, not any interference with his
possessory interests in the backpack.” (Emphases in origi-
nal.) That argument incorrectly makes the issue of whether
there was an interference with a possessory interest contin-
gent on the reason for that interference.
         Whether the seizure of property is derivative of
the seizure of the person will certainly factor heavily into
whether the seizure of the property was lawful—under the
incident to arrest exception, for example—but it does not
affect whether the property was seized in the first instance.
Said another way, the reason for a seizure will affect the
reasonableness, or lawfulness, of the seizure, but it does not
affect whether a seizure occurred. Whether something is
seized is determined by considering the state’s interference
with a person’s possessory or ownership interests, not the
rationale for the interference, and regardless of whether the
state simultaneously interfered with other interests, such
as liberty interests.
        The state then argues that
   “[D]efendant never attempted to exercise any right to
   transfer possession or otherwise dispose of the backpack,
   so the officers never interfered with that right. * * * [H]e
   never asked to or attempted to dispose of the property in
   some way other than bringing it with him. * * * Thus, the
   officers did not interfere with defendant’s right to dispose
   of the property in some other manner.
      “Moreover, the officers did not otherwise engage in any
   ‘show of authority’ that would lead a reasonable person to
   believe that defendant could not ask to dispose of the back-
   pack in a different way.”
(Citation omitted).
        We disagree with that framing of the issue in two
respects. First, to the extent that the state’s argument can
be read to assert that whether an item is seized or not is
determined by a defendant’s invocation of a right, that is
764                                            State v. Wilcox

incorrect. A person need not affirmatively assert his or her
possessory or privacy rights in property. The focus of our
search and seizure analysis is first and foremost on the
actions of the state. When the state interferes with pos-
sessory or ownership interests, even temporarily, the state
has effectuated a seizure, regardless of whether defendant
objected to, or protested, that interference.
         Second, we disagree that the state did not interfere
with a possessory interest in this case. A “possessory inter-
est” is defined as “[t]he present right to control property,
including the right to exclude others, by a person who is not
necessarily the owner.” Black’s Law Dictionary 1353 (10th
ed 2014). As such, a possessory interest is not merely the
right to possess an object, it also includes the right to say
who else will not possess the object. Thus, we have said that
“a ‘seizure’ of property occurs when police physically remove
property from a person’s possession.” Juarez-Godinez, 

 (emphasis in original). The act of removal not only
deprives a person of possession, it interferes with their right
to control who does not possess the item.
         When a person is seized and taken into custody,
their articles of clothing, and the items in their pockets
may, or may not, be seized at the moment of their bodily
seizure—a point we need not decide here. But when, after
seizing a person, an officer removes items of clothing from
the person, or items from the person’s pockets, to separate
those items from the individual, even temporarily, or holds
those items as evidence or otherwise, those items have
been seized. Removing those items and reducing them to
exclusive control of law enforcement has interfered with the
person’s possessory rights—their right to possess the item
themselves, and their right to exclude others from possess-
ing the items.
         We routinely discuss the “seizure” of property inci-
dent to arrest. For example, in State v. Lowry the “defendant
was handcuffed, [and] another officer took from defendant’s
clothing a small, closed, transparent amber pill bottle which
contained a white powder.” 

, 

(1983) overruled on other grounds by Owens, 

.
We noted that “the pill bottle was seized in the course of
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arresting defendant for a crime with which the bottle had
nothing to do.” Id. at 347 (emphasis added).
         The pertinent point in time for our inquiry in this
case is the moment just before the officer opened the back-
pack to search it. At that moment, was the backpack seized?
The answer is yes. Regardless of when the backpack might
have theoretically been seized, and regardless of whether it
had originally been in defendant’s control when his person
was seized, at the moment before the officer opened it, the
backpack had indisputably been removed from defendant’s
possession and was in the exclusive possession and control
of law enforcement. Just as the pill bottle in Lowry was
seized, despite Lowry’s person being previously seized, here
whether defendant’s right to personally hold the backpack
had been diminished due to custody, separating the back-
pack from defendant and reducing it to the exclusive control
of law enforcement interfered with defendant’s possessory
right to determine who was excluded from possessing the
backpack. That was a seizure.
         With that explanation, we turn to the central ques-
tion in this case: whether the backpack was lawfully seized.
The path to answering that question begins with first prop-
erly characterizing what kind of seizure occurred.
          Article I, section 9, protects against “unreasonable”
search and seizure. Reasonableness is ensured by requir-
ing “a method of extra-executive authorization in advance
of searches or seizures.” Nelson v. Lane County, 

, 

 (1987). As we said in State v. Weist, 

, 

 (1986), one function of Article I, section
9, “is to subordinate the power of executive officers over the
people and their houses, papers, and effects to legal controls
beyond the executive branch itself.”
         Article I, section 9, ensures reasonableness by
controlling the power of executive officers in two different
respects. For seizures and searches conducted for crim-
inal investigatory purposes, control is typically found in
the warrant requirement or a judicially recognized excep-
tion to the warrant requirement. See Nelson, 

(“Compliance with the warrant clause, or its few exceptions
766                                            State v. Wilcox

as this court has interpreted them, itself provides the nec-
essary authorization for searches or seizures intended to
discover evidence of crime.”). Warrantless seizures and
searches “ ‘are per se unreasonable unless they fall within
one of the few specifically established and limited excep-
tions to the warrant requirement.’ ” State v. McCarthy, 

, 

 (2021) (quoting State v. Bliss, 

, 

 (2018)).
         But, a seizure or search of persons or property can
occur outside the criminal investigatory process, in what we
have termed an “administrative” seizure or search. See State
v. Atkinson, 

, 

 (1984) (establishing
analytical framework for assessing the constitutionality of
an administrative search or seizure). In that context, we
require that extra-executive control be provided by appro-
priate legislatively imposed limitations sufficient to guaran-
tee constitutional reasonableness. As we noted in Weist, “[o]
ne measure of control is found in a carefully limited judicial
warrant; another is found in legislative enactments defining
and limiting official authority. Without these controls, exec-
utive officers could define and exert their own authority to
search and to seize however widely they thought necessary.”
302 Or at 376-77.
         In Atkinson, we held that the validity of an admin-
istrative seizure or search is dependent on two steps. First,
we look for a “source of the authority,” that is, a law or ordi-
nance providing sufficient indications of the purposes and
limits of executive authority. 

. Atkinson involved
an administrative search of an impounded automobile under
former ORS 483.351 to ORS 483.396 (1983) repealed by Or
Laws 1985, ch 338, § 978. Id. at 9. That statutory scheme
permitted the police to take custody of abandoned vehicles
and authorized a lien “on the vehicle and its contents to pay
storage and towing charges.” Id. (emphasis in original). In
analyzing the constitutionality of that statute, we began by
considering the grant of statutory authority—implicitly rec-
ognizing three potential levels of authority: none, limited,
or broad. Id. at 9-11. We explained that the authority to
seize property under that statutory scheme was broad and
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impliedly authorized a further inventory of the contents of
the vehicle. Id. at 9. In contrast, we noted that,
   “where government officials are allowed only limited
   authority to take temporary control of personal property—
   such as to move an automobile after a traffic accident—the
   officers’ authority does not extend to conducting a general
   inventory of the automobile’s contents.”
Id. at 10 (emphasis added).
          Second, under Atkinson, if a source of authority
exists, we next ask whether the seizure or search was “con-
ducted pursuant to a properly authorized administrative
program, designed and systematically administered so that
the [seizure or search] involves no exercise of discretion by
the law enforcement person.” Id. Thus, just as, in the crimi-
nal investigatory context, warrantless seizures and searches
are per se unreasonable unless they fall within one of the few
specifically established and limited exceptions to the war-
rant requirement, in the administrative context, seizures
and searches that occur without complying with the Aktinson
framework are, per se, unreasonable. We have applied those
principles in a variety of contexts: seizures and inventories
of property for noncriminal purposes, e.g., Atkinson, 

; administrative seizures for sobriety checkpoints,
e.g., Nelson, 

; and seizures for detoxification
holds, e.g., State v. Perry, 

, 

 (1984).
         Here, the parties agree that defendant was brought
into police custody, not pursuant to a criminal investiga-
tion, but pursuant to ORS 430.399. That statute is noncrim-
inal. Until 1971, public intoxication was a criminal offense.
See former ORS 166.160 (1969) repealed by Or Laws 1971,
ch 743, § 432. Former ORS 166.160 provided:
   “Any person who enters or is found in a state of intoxication
   upon any railway engine, railway car, railway train, air-
   craft, boat, landing wharf or depot of any common carrier,
   or on any highway or street, or in any public place or build-
   ing, or any person who creates, while in a state of intoxica-
   tion, any disturbance of the public in any private business
   or place, shall be punished upon conviction by a fine of not
   less than $5 nor more than $100, or by imprisonment in the
   county jail for a period not exceeding 50 days or both.”
768                                                     State v. Wilcox

Thus, prior to 1971, bringing someone into police cus-
tody for public intoxication was appurtenant to a criminal
investigation.
         However, in 1971, Oregon ended “the longstanding
practice of dealing with public drunkenness as a criminal
offense.” State v. Okeke, 

, 

 (1987).
That change reflected a move from a criminal deterrence
model to a public health model. 

 As we have stated, ORS
430.399 “was enacted for the purpose of decriminalizing such
crimes as ‘public intoxication,’ and to provide treatment for
substance abusers. Although the legislative history is rela-
tively sparse, we conclude that the interest protected by [ORS
430.399] is the prevention of injury to the intoxicated person
or to others.” State v. Westlund, 

, 

(1986) (footnote omitted).1 It follows then that, when a person
or property is seized, or searched, pursuant to ORS 430.399,
that seizure is administrative; accordingly, the appropriate
framework to consider the legality of that seizure or search is
not found in the criminal law, but in Atkinson.
         Although the parties in this case have approached
the question of the search of the backpack as administra-
tive, neither of the parties has properly engaged with the
Atkinson analysis as it applies to the seizure of the back-
pack. Before us, the state argues that it would be unrea-
sonable to expect officers to leave property in a parking lot
when taking someone into custody. As the state argues, “[r]
equiring an intoxicated person to leave a bag with unknown
contents in a public parking lot would not only leave the
property unsecure but could also create a nuisance or pose
a safety hazard to anyone who might come upon the bag.”
We do not disagree that an officer might reasonably want
to bring property with a person to a detox facility, but a
perception of reasonableness by the executive actor is not a
substitute for the extra-executive control provided by “legis-
lative enactments defining and limiting official authority[,]”
as required by Article I, section 9. Weist, 

.
        In the context of administrative seizure and search,
the issue is not the reasonableness of an individual officer’s
    1
      In Westlund, this court construed former ORS 426.460 (1985) renumbered
as ORS 430.399 (1995). 302 Or at 225.
Cite as 

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desire, or even need, to seize property, it is the source of
authority for that seizure. We have explicitly rejected a gen-
eralized police community caretaking authority:
       “There is no generic ‘community caretaking function.’
   Whether law enforcement officers have specific functions is
   a matter of statutory law. Whatever the existence, extent,
   or nature of community caretaking functions, however,
   mere exercise of any activity pursuant to one of them does
   not insure compliance with Article I, section 9. Any intru-
   sion of state power upon a constitutionally protected inter-
   est, be it for civil or criminal investigative purposes, must
   comply with constitutional standards.”
State v. Bridewell, 

, 

 (1988).
Generalized concerns for liability, even reasonable ones, are
not the equivalent of a grant of authority to seize or search
property. Generally, for both administrative seizure and
search, Atkinson requires more—it requires the state to
adduce (1) a source of authority for the seizure or search and
(2) that the seizure or search was conducted pursuant to a
properly authorized administrative program, designed and
systematically administered so that the [seizure or search]
involves no exercise of discretion by the law enforcement
person.” 298 Or at 10.
         Like the parties, the Court of Appeals’ approach did
not grapple with the administrative nature of the seizure
here. The Court of Appeals began its analysis in this case
with its decision in Edwards, which concerned a seizure in
the criminal investigatory context, not the administrative
context. Given the framing and arguments of the parties,
that approach by the Court of Appeals is entirely under-
standable, but it is nevertheless mistaken. For that reason,
we conclude that the best remedy in this case is to vacate
the decision of the Court of Appeals, and remand to that
court for further proceedings so that court can benefit from
briefing by the parties that correctly conceptualizes the
issues consistent with this opinion. See e.g., State v. Guthrie,

, 

 (1987) (vacating the Court of
Appeals’ decision and remanding to that court for further
proceedings where the Court of Appeals applied an incor-
rect legal theory). At that time, the parties, and the court,
can consider whether ORS 430.399, or some other source of
770                                         State v. Wilcox

authority, authorized the seizure of defendant’s backpack,
and, if so, whether that seizure was effectuated in accor-
dance with the requirements of Atkinson.
        The decision of the Court of Appeals is vacated, and
the case is remanded to the Court of Appeals for further
proceedings consistent with this opinion.