S056073, Opinion — State v. Heckathorne

474
Argued and submitted March 5, decision of Court of Appeals reversed; judgments
of circuit court affirmed December 31, 2009
STATE OF OREGON,
Petitioner on Review,
v.
GEORGE ALLEN HECKATHORNE,
Respondent on Review.
(CC 050014CR; CAA128670 (Control))
STATE OF OREGON,
Petitioner on Review,
v.
CYRUS DALE HECKATHORNE,
Respondent on Review.
(CC 050015CR; CA A128671; SC S056073)
(Cases Consolidated)
223 P3d 1034

Cite as 347 Or 474 (2009) 	475
CJS, Searches and Seizures § 48.
En Banc
On review from the Court of Appeals.*
Douglas 	F. 	Zier, Assistant Attorney General, 	Salem,
argued the cause for petitioner on review. With him on the
* Appeal from Gilliam County Circuit Court, John V. Kelly, Judge. 218 Or App
283, 179 P3d 693 (2008).

State v. Heckathorne
briefs were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.
Erin K. Galli, Chilton, Ebbett & Galli, LLC, Portland,
argued the cause and filed the brief for respondents on
review.
Mary Reese, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for amicus curiae
Oregon Public Defense Services in support of respondents on
review. With her on the brief was Peter Gartlan, Chief
Defender.
DE MUNIZ, C. J.
The decision of the Court of Appeals is reversed. The judg-
ments of the circuit court are affirmed.

Cite as 347 Or
DE MUNIZ, C. J.
The state seeks review of a Court of Appeals decision
that reversed a trial court order denying defendants' motion
to suppress evidence. As in State v. Luman, 347 Or 487,
223 P3d 1041 (2009), the issue in this case involves the inter-
section between the warrant requirement in Article I, section
9, of the Oregon Constitution, set out post, 34 7 Or at 482, and
the scope of police authority respecting items that are law-
fully in police possession. Here, the question more specifically
is whether the police must obtain a search warrant to deter-
mine the contents of an opaque metal cylinder lawfully in
their possession when both the exterior of the cylinder and
the odor of the substance emitted from the cylinder indicates
that it contains ammonia.
Defendants were charged with and convicted of pos-
session of a precursor substance-anhydrous ammonia, a
chemical used in methamphetamine production-with intent
to manufacture a controlled substance, ORS 475.967. The
ammonia was contained in a metal cylinder that the police
found in defendants' vehicle. The trial court denied defen-
dants' motion to suppress, finding that the cylinder was dis-
covered as part of a valid inventory and that the distinct blue
discoloration on the cylinder indicated that the cylinder con-
tained the unlawful substance. Following their convictions,
based on pleas of no contest, defendants appealed. See ORS
135.335(3) (allowing appeals in such circumstances). The
Court of Appeals reversed, holding that the police were
required to obtain a warrant to determine the contents of the
cylinder, because the cylinder did not "announce its con-
tents," and defendants therefore retained a privacy interest
in the contents of the cylinder. State v. Heckathorne, 218 Or
App 283, 291, 179 P3d 693 (2008). For the reasons that fol-
low, we reverse the decision of the Court of Appeals and
affirm the judgments of the trial court.
We take the following facts from the trial court rec-
ord and the Court of Appeals opinion. In February 2005,
Gilliam County Undersheriff Bettencourt was dispatched to
investigate a suspicious vehicle reported in a remote area of
Gilliam 	County. 	There, he 	discovered 	a 	vehicle parked
approximately 200 feet from a group of anhydrous ammonia

478 	State v. Heckathorne
tanks on private farm property. 1 As Bettencourt approached,
the car began to move away. Defendant George Heckathorne
(George) was driving the car. Defendant Cyrus Heckathorne
(Cyrus) and another man, Holbird, were passengers in the
car.
Based on his knowledge that the car did not belong
to the owners of the farm and his belief that the occupants
were criminally trespassing, Bettencourt instructed George
to stop and step out of the car. Bettencourt conducted a back-
ground check that revealed an outstanding felony warrant
for George's arrest. As a result, Bettencourt handcuffed
George, placed him in the back of the patrol car, 	and
called 	for 	further 	police 	assistance. 	Two 	other 	officers
arrived shortly thereafter. After securing Cyrus and Holbird,
Bettencourt informed the suspects that they were under
arrest for 	criminal trespass 	and advised them of their
Miranda rights. He also asked George for consent to search
the car, which George refused.
After deciding that they needed to have the car
towed, the officers inventoried it pursuant to a Gilliam
County Sheriff's Office policy. During the inventory, the offi-
cers discovered a syringe, tools, pipe fittings exhibiting a blue
discoloration, a metal gas cylinder exhibiting the same blue
discoloration around its valve, and a five-gallon propane tank
with missing valves. Bettencourt testified that, based on his
"[t]raining and experience," he knew that "[b]rass and galva-
nized fittings will turn a turquoise or a fluorescent blue * * *
color when [in] contact[ with] anhydrous ammonia." The offi-
cers also discovered a pipe wrench, wire cutters, screwdriv-
ers, and rock salt, all of which, like anhydrous ammonia, are
used in the production of methamphetamine. Bettencourt
noticed the smell of ammonia and testified that the car
"smelled like a meth lab to me." Bettencourt, however, did
not attempt to determine whether the odor of ammonia came
from the metal gas cylinder or elsewhere.
1 Anhydrous ammonia is formed by the chemical combination of nitrogen and
hydrogen in the molar proportion of one part nitrogen to three parts hydrogen, see
ORS 561. 750(1) (defining anhydrous ammonia), and is commonly used as an agri-
cultural fertilizer.

Cite as 347 Or 474
After completing the inventory, Bettencourt trans-
ferred the inventoried items to the local state police office.
Deputy Studebaker then "took possession of the [cylinder]
and vented it properly."2 According to Bettencourt, Studebaker
reported that he got "a strong odor of ammonia" after he
"shot" it. 3 Studebaker then used a device, which Bettencourt
described as a "dragger," to test the contents of the cylinder.4
The test was positive for anhydrous ammonia, registering
70 	parts 	per 	million, 	the 	highest 	possible 	measurable
amount.
Defendants subsequently were charged with posses-
sion of a precursor substance with intent to manufacture a
controlled substance. Each defendant filed a motion to sup-
press evidence of the cylinder and its contents, arguing that
the cylinder was unlawfully seized and searched under
Article I, section 9, of the Oregon Constitution, 5 and the
Fourth Amendment to the United States 	Constitution, 6
because (1) the officers had failed to secure a warrant to
search the car; and (2) the subsequent "search" of the cylinder
with the Drager device was not justified under any exception
to the warrant requirement.
The trial court denied defendants' motion, ruling
that the cylinder and tank had been discovered as part of a
valid inventory and that the officers had not needed a search
warrant to test the cylinder's contents, because its distinct
blue discoloration indicated that it was an instrumentality of
2 Anhydrous ammonia is stored as a liquid under pressure. However, it
becomes a toxic gas when released into the environment. Pure anhydrous ammonia
vapors can become an explosion hazard when in a confined space.
3 We understand from the sequence described by Bettencourt that when
Bettencourt used the terms "vented it" and "shot it" he was describing one act-
releasing some of the contents from the cylinder and that was when Studebaker
smelled the strong odor of ammonia.
' Bettencourt did not explain how the device worked. From the record we sur-
mise that Bettencourt was referring to a Drager gas detection device, which is an
electronic device that detects and tests combustible gases and vapors.
5 Article I, section 9, of the Oregon Constitution provides, in part:
"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure***."
" The Fourth Amendment to the United States Constitution provides, in part:
"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated***."

480 	State v. Heckathorne
a crime. Each defendant subsequently entered conditional
pleas of no contest to one count of possessing a precursor sub-
stance with intent to manufacture a controlled substance,
ORS 475.967, and one count of criminal trespass in the sec-
ond degree, ORS 164.245. 7 Both defendants reserved the
right to appeal the court's ruling on their motion to suppress.
The remaining charges were dismissed.
Defendants appealed the trial court's denial of their
motion to suppress, arguing that the officers needed a war-
rant to test the cylinder's contents, because the search was
not justified by any exception to the warrant requirement. 8 In
response, the state argued that the subsequent testing of the
container's contents did not constitute a search for constitu-
tional purposes, because Bettencourt first had observed the
cylinder in "plain view" from 	"a lawful vantage point."
According to the state, the cylinder's blue discoloration-
combined with the cylinder's proximity to other items used to
manufacture controlled substances-announced the cylin-
der's contents as an unlawful substance justifying the test of
the contents without a warrant.
The Court of Appeals disagreed and reversed the
trial court's judgment. In doing so, the Court of Appeals con-
cluded that the test for whether a container "announces its
contents" depends solely on the container itself and not on
the training of the observer or the context in which the con-
tainer is found. The Court of Appeals concluded that, because
the cylinder did not indicate "to the world" that the cylinder
contained anhydrous ammonia, the container did not, as a
matter oflaw, "announce its contents":
"Although some chemists, some trained police officers,
and some farmers might perceive the blue coloration on a
metal cylinder as the functional equivalent of a label
declaring 'Contents: Anhydrous Ammonia,' those persons
comprise only an extremely small segment of the citizenry.
7 Defendants made no argument on appeal regarding their convictions for
criminal trespass. Thus, we affirm the trial court judgments as to those counts.
8 We note that the only issue on review is whether the police unreasonably
searched the metal cylinder. Although defendants contested the seizure of the cyl-
inder in the trial court, defendants did not advance that argument in the Court of
Appeals and do not in this court. We therefore assume that the police lawfully
seized the metal cylinder.

Cite as 347 Or 474 (2009) 	481
Had the cylinder been so labeled, Bettencourt could have
relied on his training and experience in determining
whether the contents announced were contraband. How-
ever, because those contents were not announced 'to the
world,' and thus were not in plain view, opening the cylin-
der was an invasion of a protected privacy interest, and
Bettencourt was required to secure a warrant before per-
forming any confirmatory testing."
Heckathorne, 218 Or App at 291.
On review, the state again argues that the cylinder
"announced its contents" to the officer-and thereby extin-
guished defendants' privacy right in the cylinder's contents
under Article I, section 9-because the blue discoloration on
the cylinder announced "unequivocally'' to the officer that the
cylinder contained anhydrous ammonia. According to the
state, a court should consider an officer's training and expe-
rience in determining whether a defendant retains privacy
rights in a container, because the focus of Article I, section 9,
"necessarily must be on the individual observer, not on what
the lay public as a whole might recognize." The state con-
tends that, even if a container announces its contents to only
one person with training and experience, the possessor has
relinquished his or her privacy rights vis-a-vis that observer.
That 	trained 	observation, 	the 	state contends, 	does 	not
amount to a search for constitutional purposes. 9
The state bases its argument on two cases that this
court decided on the same day, State v. Owens, 302 Or 196,
729 P2d 524 (1986), and State v. Herbert, 302 Or 237, 729 P2d
54 7 (1986). The state argues that, although this court con-
cluded in Owens that no privacy interest inhered in the con-
tents of the defendant's transparent container, the court also
left open the possibility that an opaque container could
announce its contents in a similar fashion. The state further
argues that Herbert extended the rule in Owens to allow the
court to consider police training and experience, as well as
9 Because the cylinder announced its contents and thereby extinguished defen-
dants' privacy right in those contents, the state argues, testing the cylinder's con-
tents did not constitute a search under Article I, section 9, of the Oregon Constitu-
tion.

482 	State v. Heckathorne
context, 	in 	considering 	whether 	an 	opaque 	container
announces its contents. We turn to those arguments.
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."
Article I, section 9, protects both possessory and privacy
interests in effects. Owens, 302 Or at 206. Under Article I,
section 9, "warrantless * * * searches * * * are per se unrea-
sonable unless falling within one of the few 'specifically
established and well-delineated exceptions' to the warrant
requirement." State v. Davis, 295 Or 227, 237, 666 P2d 802
(1983) (quoting Katz v. United States, 389 US 347, 357, 88
S Ct 507, 19 L Ed 2d 576 (1967)). To conduct a lawful search,
Article I, section 9, requires that the police have probable
cause and either a judicially authorized warrant or a justifi-
cation under an exception to the warrant requirement. Pri-
vacy interests that are protected by Article I, section 9, "com-
monly are circumscribed by the space in which they exist
and, more particularly, by the barriers to public entry (phys-
ical and sensory) that define that private space." State v.
Smith, 327 Or 366, 373, 963 P2d 642 (1998).
In Owens, the police, while conducting a search inci-
dent to arrest, validly seized a clear vial found in the defen-
dant's purse. Id. at 199. The police could see that the vial con-
tained white powder, which they believed to be a controlled
substance. The police had the powder tested, without a war-
rant, to confirm that it was indeed a controlled substance.
This court reasoned:
"When the police lawfully seize a container, they can thor-
oughly examine the container's exterior without violating
any privacy interest of the owner or the person from whom
the container was seized. For example, the police can
observe, feel, smell, shake and weigh it. Furthermore, not
all containers found by the police during a search merit the
same protection under Article I, section 9. Some containers,

Cite as 347 Or 474 	483
those that by their very nature announce their contents
(such as by touch or smell) do not support a cognizable pri-
vacy interest under Article I, section 9. Transparent con-
tainers 	(such as clear plastic baggies or pill 	bottles)
announce 	their contents. 	The 	contents 	of transparent
containers are visible virtually to the same extent as if the
contents had been discovered in 'plain view,' outside the con-
fines of any container. Applying the doctrine of 'plain view'
to transparent containers, we hold that no cognizable pri-
vacy interest inheres in their contents, and thus that trans-
parent containers can be opened and their contents seized.
No warrant is required for the opening and seizure of the
contents of transparent containers or containers that
otherwise announce their contents. Under the Oregon
Constitution, a lawful seizure of a transparent container is
a lawful seizure of its contents."
Owens, 302 Or at 206 (emphases added). The court went on to
state that, where the police have probable cause to believe
that a transparent container contains a controlled substance,
the extraction of the substance to perform a confirmatory test
does not infringe any privacy interest protected by the
Oregon 	Constitution. 	Id. 	at 	206-07. 	The 	court 	further
acknowledged the possibility that, as with a transparent con-
tainer, the contents of some opaque containers could also be
known to the same extent as if they had been observed in
plain view. In summary, Owens holds that, because the con-
tents of a transparent container are in plain view, no privacy
interest exists in the contents of the container and the police
may look at, remove, and even test the contents of the con-
tainer. In other words, the police may do so because the con-
tents are just as apparent as ifthere were no container.
In Herbert, 302 Or 237, this court upheld a warrant-
less search of an opaque paperfold found on a defendant who
had been arrested for failure to appear. The defendant asked
ifhe could get some identification out of his truck, but instead
took the paperfold out of his overalls and attempted to hide it
in the truck, while attempting to distract the officer. The offi-
cer, however, observed all of the defendant's actions and,
reaching through the open truck door, picked up the paper-
fold and asked the defendant, "What is this?" Although the
officer showed the paperfold to defendant, defendant refused
to respond. The officer subsequently took the paperfold and-

State v.
without a warrant--0pened it at the police station, discover-
ing white powder, which later tested positive for cocaine.
This court held that the nature of the paperfold, the
circumstances of its discovery, and the officer's training and
experience gave the officer probable cause to believe that the
paperfold contained a controlled substance.
"Some containers of illicit drugs may be so uniquely associ-
ated with the storage and transportation of controlled sub-
stances that their unique packaging alone might provide, to
an officer with training and experience in the area of drug
detection, probable cause to believe they contain a con-
trolled substance. Examples of such unique containers
might be balloons or tinfoil bundles. * * * In addition to the
shape of the container, other facts gave the officer probable
cause to believe that the paperfold contained a controlled
substance. * * * When these additional facts are considered
together with the paperfold, there were sufficient facts to
give the officer probable cause to believe that the paperfold
contained contraband."
302 Or at 242. Because the officer had probable cause to
believe that the paperfold contained contraband, the officer
could lawfully seize it. Id. The Herbert court then went on to
summarily hold that, because the officer had probable cause
to believe the paperfold contained contraband, "he had the
right to search the paperfold for controlled substance[s] and,
therefore, had the right to open [the] container." Id. at 243
(emphasis added). The court did not state nor describe the
exception to the warrant requirement that would justify such
a search; however, it is evident that the search was justified
as a search incident to arrest or, given the defendant's furtive
movements, 	as an exigency to avoid the destruction of
evidence. 10
The foregoing description of Owens and Herbert
establishes two important principles: (1) the contents of a
container may be revealed, 11 not only visually, but also by the
10 The state has not argued in this case that the officers' actions in testing the
contents of the cylinder were permissible as a search incident to arrest.
11 We use the terms "may be revealed," as opposed to "may announce its con-
tents," because we believe that the latter phrase, while felicitous in some respects,
slightly skews the appropriate inquiry by adding an anthropomorphic element. It
is not the container-an inanimate object-that "announces" its contents. Rather,

Cite as 347 Or 474 	485
container's feel or smell, and, possibly, by its taste or sound;
and (2) individual expertise and training may provide the
knowledge that turns various sensory clues into probable
cause. The Court of Appeals' contrary view on the latter point
was error.
The same must be said with respect to that court's
ruling on the merits. The Court of Appeals concentrated its
attention on the meaning of the blue discoloration on the fit-
tings of the cylinder: Did that discoloration, or did it not,
fairly give rise to the inference that the cylinder contained
anhydrous ammonia? In our view, that issue can be argued
either way, and it has been. We express no opinion on it, how-
ever, because the record in this case contained other, decisive
evidence.
As noted above, the police opened and vented some
of the contents of the cylinder. Defendants do not in this court
challenge either the police possession of the cylinder or
Studebaker's venting of the cylinder-they challenge only
the later testing of the cylinder to confirm the contents.
However, according to Bettencourt, Studebaker reported a
strong odor of ammonia when he vented the container. In
other words, when the cylinder was vented, the contents of
the cylinder, that is, the ammonia, became discernable to
Studebaker. And, because the ammonia was exposed and dis-
cernable (through the sense of smell), defendants no longer
had a privacy interest in the contents of the cylinder. Thus, as
in Owens, the use of the Drager device to perform a confirm-
atory test on the contents of the cylinder did not infringe any
privacy interest protected by the Oregon Constitution. There-
fore, the trial court did not err in denying defendants' motion
to suppress evidence of the contents of the cylinder. The
Court of Appeals erred in ruling to the contrary.
For the same reasons, once the ammonia was plainly
discernable, Studebaker's testing of the contents of the cyl-
inder did not violate defendants' Fourth Amendment rights.
See United States v. Jacobsen, 466 US 109, 123-25, 104 S Ct
it is the person who observes the container who perceives the likely contents of the
container by virtue of sensory clues. We encourage future litigants to concentrate
on sensory clues, without suggesting that the container somehow intended to pres-
ent them.

486 	State v. Heckathorne
1652, 80 L Ed 2d 85 (1984) (field test of substance for the
presence of cocaine was not unlawful search or seizure
because test could reveal only whether substance was cocaine
and thus 	could 	not compromise any legitimate privacy
interest).
The decision of the Court of Appeals is reversed. The
judgments of the circuit court are affirmed.