STATE v. DAWSON, 302 Or. 322 (1987)

728 P.2d 866

STATE OF OREGON, Petitioner on Review, v. TERRY JOE DAWSON, Respondent on Review.

TC No. C84-07-33033; CA A36323; SC S32584Oregon Supreme Court.On petition for review[*] filed February 14, 1986
review allowed, case remanded to Court of Appeals for further consideration December 3, 1986 See 84 Or. App. 138, 733 P.2d 461 (1987)

[*] On Appeal from Circuit Court, Multnomah County, The Honorable Irving M. Steinbock, Judge. 77 Or. App. 306, 713 P.2d 45 (1986).

Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Linda DeVries Grimms, Assistant Attorney General, Salem, for petitioner on review.

Laura Graser, Portland, filed a response in behalf of respondent on review.

Before Peterson, Chief Justice, and Lent, Linde, Campbell, Carson and Jones, Justices.

MEMORANDUM OPINION

Petition for review allowed. The case is remanded to the Court of Appeals for further consideration in light of the opinion and decision of this court in State v. Owens, 302 Or. 196, 729 P.2d 524 (1986).

Linde, J., concurred and filed an opinion.

Page 323

LINDE, J., concurring.

That the remand is required in light of State v. Owens, 302 Or. 196, 729 P.2d 524 (1986), does not mean that reconsideration is limited to the issue in that decision; it is the case that is remanded. The case also presents an issue concerning the arresting officer’s seizure of a jacket that defendant had handed to another person. The arrest was under a warrant issued several weeks earlier, presumably on probable cause to believe that defendant had committed an offense before its issuance; the fact that the earlier charge involved possession of a controlled substance is of doubtful relevance, under State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982), to the seizure of the jacket in order to search it at the time of the later arrest.

Because the Court of Appeals concluded that a new trial was required on other grounds, it may not have given this issue the attention it otherwise would have deserved. The court’s brie per curiam opinion stated only that “[t]he seizure of cocaine from defendant’s jacket was proper,” possibly because of the defendant’s statements following the seizure. The opinion said nothing concerning the seizure of the jacket. The remand allows the Court of Appeals to give further attention to this issue.

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