State v. Slowikowski

761 P.2d 1315, 307 Or. 19, 1988 Ore. LEXIS 547
CourtOregon Supreme Court
DecidedSeptember 30, 1988
DocketTC 85-3779-C-2; CA A39836; SC S34625
StatusPublished
Cited by37 cases

This text of 761 P.2d 1315 (State v. Slowikowski) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Slowikowski, 761 P.2d 1315, 307 Or. 19, 1988 Ore. LEXIS 547 (Or. 1988).

Opinions

[21]*21GILLETTE, J

Defendant was charged with possession of a controlled substance after sheriffs deputies discovered approximately 20 pounds of marijuana in a storage locker that he had rented and padlocked. The marijuana initially was discovered by “Breaker,” a police dog trained to detect and signal the presence of marijuana. Defendant filed a motion to suppress the marijuana on the ground that Breaker’s olfactory inspection of his locker without a warrant was an illegal search under the Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution.1 The trial court denied the motion and, after a stipulated facts trial, defendant was convicted. The Court of Appeals affirmed. State v. Slowikowski, 87 Or App 677, 743 P2d 1126 (1987) (in banc). We also affirm.

Defendant’s locker was located in a “mini-storage” facility containing approximately 221 lockers. Deputy Fillmore of the Jackson County Sheriffs Office Canine Unit testified that he requested and received permission from the owners of the facility to use the facility for “training and searching” purposes. To prepare for the training exercise, Fillmore placed a bag of marijuana in an unused locker in the facility. When Breaker was released to find the marijuana planted by Fillmore, he unexpectedly “alerted,” or signalled the presence of marijuana, at defendant’s locker. Fillmore contacted Deputy Kennedy, a narcotics investigator, who went to the facility. The officers walked Breaker through the facility, and the dog again alerted at defendant’s locker. Kennedy then got down on his hands and knees and sniffed at the door of defendant’s locker. He detected a distinct odor of marijuana. The following day, he obtained a warrant to search the locker. The ensuing search disclosed the marijuana in this case.

The arguments of the parties closely parallel the various lines of analysis followed by members of the Court of Appeals. We therefore set out those lines of analysis at some length. The Court of Appeals majority held that the dog sniff [22]*22that discovered defendant’s marijuana was not a search under either the state or the federal constitution. The majority noted that the sniff did not intrude into the locker itself but merely detected odors emanating into the common area. The odors emanating from the locker, in the majority’s view, “announced” the locker’s contents so that Breaker’s perception of those odors did not constitute a search. Cf. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986) (“No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents”). The majority further concluded that a dog’s superior sense of smell is not a “technological enhancement” of the human senses. 87 Or App at 683-85.

Buttler, J., specially concurring, argued that, on the facts of this case, it was unnecessary to decide whether the use of a trained dog to detect narcotics is a search “under any and all circumstances,” noting that:

“In this case, the officers were not out on a fishing expedition to seek out marijuana; the trial court found that they were engaged in a training exercise with ‘Breaker’ at the mini-storage facility where they had the owner’s permission. While engaged in the training exercise, ‘Breaker’ unexpectedly alerted to defendant’s storage unit, thereby indicating that it contained contraband. Under those limited and unusual circumstances, I would accept the ‘plain smell’ doctrine, because: (1) the officers were where they had a right to be and were not engaged in a general search or fishing expedition, and the discovery of the scent was inadvertent; and (2) it was accomplished without the use of any technological enhancement. Because dogs with more sensitive olfactory nerves have been used in police work for centuries, I do not consider their use in this instance as a technological enhancement.”

87 Or App at 686-87 (Buttler, J., specially concurring).

Young, J., joined by Joseph, C. J., and Newman, J., dissented. The dissenters would have held that the dog sniff was a search of the contents of defendant’s locker and that, in the absence of reasonable suspicion to believe that contraband would be found there, the search was illegal. The dissent argued that, although the dog sniff did not physically invade the locker, it nevertheless violated defendant’s privacy interest:

“If something that is ‘plain’ to a dog or to a machine, but [23]*23not to a human, is not private, there can be few protected privacy interests. Although a transparent container may announce its contents to a human observer so that there is no privacy interest in them, see State v. Owens, supra, 302 Or at 206, a container whose contents are unknown until some nonhuman instrument is brought to bear has announced nothing. Its contents are not in plain view, plain smell or plain feel. If the plain view/smell doctrines mean anything when applied to a closed container, it must be that a person using only unenhanced human senses must be able to discover the contents of the container without actually intruding into it. Breaker’s nose was an enhancement of normal human senses, and it invaded defendant’s protected privacy interest in the storage locker.”

87 Or App at 688-89 (Young, J., dissenting) (footnote omitted). The dissenting opinion also notes that:

“Of course, if the officers had smelled the marijuana themselves, their perceptions, not Breaker’s would have justified the warrant. However, that is not what happened. Although Deputy Kennedy did eventually smell the marijuana, Breaker directed him to it. Breaker did not simply allow Kennedy to observe better something that he had already discerned, as a flashlight or binoculars might. * * * Rather, Breaker pointed him in a direction that he would not otherwise have gone. Accordingly, the information which supported the issuance of the search warrant was based on a previous search which violated defendant’s privacy rights under Article I, section 9. The taint of that previous search invalidates the later warrants.”

Id. at 693.

At the outset, we must determine whether the officers were legitimately on the premises when the marijuana was detected. In his petition for review, defendant argues that the Court of Appeals majority and specially concurring opinions erred in characterizing the deputies’ actions as a training exercise. We understand defendant’s argument to be that the officers’ real intention was to search for contraband, not to train Breaker, and that such a search would exceed the scope of the consent given by the owners of the facility. See State v. Tanner, 304 Or 312, 745 P2d 757 (1987) (holding that, when a person entrusts effects to another, and the police discover those effects in the other’s home by means of a search that [24]*24violates Article I, section 9, the search also violates the entrustor’s rights under Article I, section 9).

The trial court below made no express finding whether the officers were authorized to conduct a search in addition to a training exercise, or whether they actually were conducting a search when the marijuana was detected. However, the trial court found that the officers had a right to be where they were when they discovered the marijuana in defendant’s locker, because they had the owner’s permission to be at the storage facility.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Carter
697 N.W.2d 199 (Supreme Court of Minnesota, 2005)
State v. Derrah
84 P.3d 1084 (Court of Appeals of Oregon, 2004)
State v. Cocke
984 P.2d 321 (Court of Appeals of Oregon, 1999)
State v. Juarez-Godinez
942 P.2d 772 (Oregon Supreme Court, 1997)
State v. Smith
939 P.2d 157 (Court of Appeals of Oregon, 1997)
State v. Gil
561 N.W.2d 760 (Court of Appeals of Wisconsin, 1997)
State v. Rein
923 P.2d 639 (Oregon Supreme Court, 1996)
State v. Juarez-Godinez
900 P.2d 1044 (Court of Appeals of Oregon, 1995)
State v. Rhodes
843 P.2d 927 (Oregon Supreme Court, 1992)
Quigley v. Commonwealth
414 S.E.2d 851 (Court of Appeals of Virginia, 1992)
State v. Wacker
826 P.2d 1019 (Court of Appeals of Oregon, 1992)
State v. Brown
820 P.2d 878 (Court of Appeals of Oregon, 1991)
State v. Rhodes
807 P.2d 322 (Court of Appeals of Oregon, 1991)
State v. Ainsworth
801 P.2d 749 (Oregon Supreme Court, 1990)
People v. Wieser
796 P.2d 982 (Supreme Court of Colorado, 1990)
State v. Faulkner
794 P.2d 821 (Court of Appeals of Oregon, 1990)
State v. Goin
791 P.2d 149 (Court of Appeals of Oregon, 1990)
State v. Williamson
772 P.2d 404 (Oregon Supreme Court, 1989)
State v. Ainsworth
770 P.2d 58 (Court of Appeals of Oregon, 1989)
State v. Slowikowski
761 P.2d 1315 (Oregon Supreme Court, 1988)

Cite This Page — Counsel Stack

Bluebook (online)
761 P.2d 1315, 307 Or. 19, 1988 Ore. LEXIS 547, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-slowikowski-or-1988.