State v. Washington

In Owens, 302 Or at 200, the Court established that the permissible scope and intensity of a search incident to arrest does not turn on whether or not a particular criminal offense is a traffic offense; rather, it turns on whether the space searched was in the immediate control of the arrestee before the arrest, and on whether that space (and the containers therein) reasonably could conceal evidence of the crime of arrest. State v. Brody, 69 Or App 469, 686 P2d 451 (1984) was overruled to the extent that it held that the scope and intensity of a permissible search incident to arrest turns on whether or not the offense of arrest is a traffic offense.

Defendant appealed her conviction for unlawful possession of a firearm and unlawful possession of a controlled substance. Defendant was the passenger in a car driven by M, who was pulled over for a traffic violation. Officer observed M "had bloodshot, watery eyes, fumbling hand movements, [and] was showing some indication of impairment." M failed field sobriety tests. Officer subsequently asked Defendant to leave the vehicle so he could search for evidence that M had committed DUII. Officer noticed Defendant carried a purse with a bulge in it. When asked if she was carrying any weapons, Defendant responded that her gun was in the center console. In Owens, 302 Or at 200, the Court established that the permissible scope and intensity of a search incident to arrest does not turn on whether or not a particular criminal offense is a traffic offense. Rather, it turns on whether the space searched was in the immediate control of the arrestee before the arrest, and on whether that space (and the containers therein) reasonably could conceal evidence of the crime of arrest. Subsequent cases also determined that an officer may search closed containers in a car incident to the driver's arrest for DUII, if those containers were in the driver's immediate control before the arrest and if those containers reasonably could conceal evidence of DUII. This Court thus overruled State v. Brody, 69 Or App 469, 686 P2d 451 (1984) to the extent that it held that the scope and intensity of a permissible search incident to arrest turns on whether or not the offense of arrest is a traffic offense. Affirmed.