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 proceedings consistent with this opinion.

______________

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

Judge, 323 Or App 271, 522 P3d 926 (2022).
Cite as 371 Or 756 (2023) 757
758 State v. Wilcox

JAMES, J.,

This criminal case arises from the noncriminal seizure 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 backpack, which revealed a butterfly knife. Having previously 

been convicted of a felony, defendant was ultimately convicted of violating ORS 166.270(2), felon in possession of a 

restricted weapon.

The Court of Appeals held that the seizure of defendant’s backpack was unlawful under Article I, section 9, of 

the Oregon Constitution. State v. Wilcox, 323 Or App 271, 

276, 522 P3d 926 (2022). In doing so, the court relied on its 

decision in State v. Edwards, 304 Or App 293, 466 P3d 1034 

(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 mistaken 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 partner, 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 yelling at the nurses. As Baisley later recalled, defendant was 
Cite as 371 Or 756 (2023) 759

‘[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 defendant 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 facility. 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, 323 Or App at 272-73 (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 suppress the evidence discovered in his backpack. The trial 

court denied that motion and, thereafter, entered a judgment 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. Id. at 273-74.
760 State v. Wilcox

In holding the seizure unlawful, the Court of 

Appeals cited to our decision in State v. Juarez-Godinez, 326 

Or 1, 6, 942 P2d 772 (1997), for the proposition that “a ‘seizure’ of property occurs when police physically remove property from a person’s possession.” Wilcox, 323 Or App at 275 

(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 seizure 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, 323 Or App at 274-75 (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 seizure of defendant’s backpack was justified by its lawful seizure 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 person’s property. And, as in Edwards, the state in this case 

has not established that defendant’s backpack falls within 
Cite as 371 Or 756 (2023) 761

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 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 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 alternatively, 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 interfere 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, defendant 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 reaffirm 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 unreasonable 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 backpack 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 property.” State v. Owens, 302 Or 196, 207, 729 P2d 524 (1986). As 

we have noted in the past, that definition is sparse, and “our 

cases do not offer much in the way of explanation.” JuarezGodinez, 326 Or at 6. 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, 302 Or at 207.
Cite as 371 Or 756 (2023) 763

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 original.) That argument incorrectly makes the issue of whether 

there was an interference with a possessory interest contingent 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 backpack 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 possessory 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 interest” 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, 326 

Or at 6 (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 possessing the items.

We routinely discuss the “seizure” of property incident 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.” 295 Or 337, 339, 667 P2d 996 

(1983) overruled on other grounds by Owens, 302 Or at 196. 

We noted that “the pill bottle was seized in the course of 
Cite as 371 Or 756 (2023) 765

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 backpack 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 backpack 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 question in this case: whether the backpack was lawfully seized. 

The path to answering that question begins with first properly characterizing what kind of seizure occurred.

Article I, section 9, protects against “unreasonable” 

search and seizure. Reasonableness is ensured by requiring “a method of extra-executive authorization in advance 

of searches or seizures.” Nelson v. Lane County, 304 Or 97, 

104, 743 P2d 692 (1987). As we said in State v. Weist, 302 Or 

370, 376, 730 P2d 26 (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 criminal investigatory purposes, control is typically found in 

the warrant requirement or a judicially recognized exception to the warrant requirement. See Nelson, 304 Or at 104 

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

as this court has interpreted them, itself provides the necessary 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 exceptions to the warrant requirement.’” State v. McCarthy, 369 

Or 129, 141, 501 P3d 478 (2021) (quoting State v. Bliss, 363 

Or 426, 430, 423 P3d 53 (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, 298 Or 1, 8-11, 688 P2d 832 (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 appropriate legislatively imposed limitations sufficient to guarantee 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, executive 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 administrative seizure or search is dependent on two steps. First, 

we look for a “source of the authority,” that is, a law or ordinance providing sufficient indications of the purposes and 

limits of executive authority. 298 Or at 9. 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 recognizing 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 
Cite as 371 Or 756 (2023) 767

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 “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.” Id. Thus, just as, in the criminal 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 warrant 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, 298 Or 

at 9-11; administrative seizures for sobriety checkpoints, 

e.g., Nelson, 304 Or at 104-06; and seizures for detoxification 

holds, e.g., State v. Perry, 298 Or 21, 688 P2d 827 (1984).

Here, the parties agree that defendant was brought 

into police custody, not pursuant to a criminal investigation, but pursuant to ORS 430.399. That statute is noncriminal. 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, aircraft, boat, landing wharf or depot of any common carrier, 

or on any highway or street, or in any public place or building, or any person who creates, while in a state of intoxication, 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 custody 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, 304 Or 367, 370, 745 P2d 418 (1987). 

That change reflected a move from a criminal deterrence 

model to a public health model. Id. 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 relatively 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, 302 Or 225, 230, 729 P2d 541 

(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 administrative, neither of the parties has properly engaged with the 

Atkinson analysis as it applies to the seizure of the backpack. Before us, the state argues that it would be unreasonable 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 “legislative enactments defining and limiting official authority[,]” 

as required by Article I, section 9. Weist, 302 Or at 376-77.

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 371 Or 756 (2023) 769

desire, or even need, to seize property, it is the source of 

authority for that seizure. We have explicitly rejected a generalized 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 intrusion of state power upon a constitutionally protected interest, be it for civil or criminal investigative purposes, must 

comply with constitutional standards.”

State v. Bridewell, 306 Or 231, 239, 759 P2d 1054 (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 understandable, 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, 

304 Or 52, 54, 741 P2d 509 (1987) (vacating the Court of 

Appeals’ decision and remanding to that court for further 

proceedings where the Court of Appeals applied an incorrect 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 accordance 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.