Opinion
No. C 79-02-30480, CA 15657
Argued and submitted March 17, 1980
Reversed and remanded June 16, 1980
Appeal from Circuit Court, Multnomah County.
George A. Van Hoomissen, Judge.
John C. Bradley, Assistant Attorney General, Salem, argued the cause for appellant. With him on the brief were James A. Redden, Attorney General, and Walter L. Barrie, Solicitor General, Salem.
Steven Paygr, Portland, argued the cause for respondent. With him on the brief was Baker, LaRue Paygr, Portland.
Before Schwab, Chief Judge, and Joseph, Warden and Warren, Judges.
JOSEPH, J.
Reversed and remanded for trial.
The state appeals from an order suppressing evidence of metamphetamines found in a labelled prescription vial in a backpack located in an upstairs bedroom. The premises were searched with a warrant listing metamphetamine as an item to be discovered. The search of the pack was within the scope of the warrant and was valid. State v. Kurtz, 46 Or. App. 617, 612 P.2d 749 (1980).
Defendant argues that a second search warrant should have been obtained when the officer encountered the second closed container, the prescription pill vial. On this theory, the ideal hiding place for narcotics would be in a set of nesting boxes. Since the pack was within the scope of the warrant, the only issue is whether search of the vial found inside was "reasonably necessary" to discover the items specified in the warrant. ORS 133.585. Here, the officer testified that in his experience such vials are often repositories for controlled substances. In State v. Holmes, 17 Or. App. 464, 470, 522 P.2d 900 (1974), we held that in a search incident to arrest for drug activity, a film canister or wallet was a reasonable place to find narcotics, since "[evidence] of this particular crime is readily concealable within such small containers." This is not a case involving search of a closed container found in a motor vehicle in a warrantless search. Cf., e.g., Arkansas v. Sanders, 442 U.S. 753, 99 S Ct 2586, 61 L Ed 2d 235, 242 (1979) (search of suitcase in taxi); State v. Downes, 285 Or. 369, 373, 591 P.2d 1352 (1979) (search of footlocker in bus). The opening of the vial was within the scope of the warrant and was valid.
Reversed and remanded for trial.