Opinion
82-200 C; CA A26444
Reconsideration filed August 4, 1983 Reconsideration allowed; former opinion filed June 17 1983 ( 65 Or. App. 341, 671 P.2d 701) withdrawn Order suppressing evidence affirmed; remanded for trial November 9, 1983
Appeal from Circuit Court, Klamath County.
Donald A. W. Piper, Judge.
Gary D. Babcock, Public Defender, and David E. Groom, Deputy Public Defender, Salem, for petition.
Before Gillette, Presiding Judge, and Warden and Young, Judges.
GILLETTE, P. J.
Petition for reconsideration allowed; former opinion withdrawn; order suppressing evidence affirmed; remanded for trial.
This criminal case is before us on defendant's petition for review by the Supreme Court of our former opinion, State v. Molatore, 63 Or. App. 766, 665 P.2d 1263 (1983). We treat the petition as one for reconsideration. ORAP Rule 10.10. We grant the petition, withdraw our former opinion, affirm the trial court's order suppressing evidence and remand for trial.
The facts are fully set forth in our former opinion. Essentially, they are that defendant was taken into custody for detoxification and, while being checked into jail, was found to have in her possession a cellophane packet containing a white powdery substance. The police seized the packet and analyzed the substance, which proved to be amphetamine.
The trial court suppressed the evidence concerning the nature of the packet's contents on the ground that identifying the powder "was not reasonably related to administrating [sic] the benevolent purpose of the [detoxification statute]." We reversed, holding that the seizure of the packet was proper and that, once it was seized, "* * * there was no further privacy interest of the defendant to be invaded by subjecting the powder to analysis." 63 Or App at 768.
We adhere to our previous analysis in this case as being the most sensible view. It is not, however, the law. Under State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983), decided 20 days after our decision in this case, the police were required to obtain a warrant authorizing them to open the packet and analyze its contents. Accordingly, our former opinion is withdrawn.
The order of the trial court is affirmed; the case is remanded for trial.