State v. Slowikowski

743 P.2d 1126, 87 Or. App. 677, 1987 Ore. App. LEXIS 4726

Opinions

VAN HOOMISSEN, J.

Defendant appeals his convictions on two counts of possession of a controlled substance. ORS 475.992(4). He contends that the trial court erred in denying his motion to suppress evidence because search and arrest warrants were issued based on a prior unlawful search by police using a trained dog. The dispositive issue is whether a dog-sniff is a search. On these specific facts, we conclude that a dog-sniff is not a search. Therefore, we affirm.

Deputy Fillmore and dog handler Forrester conducted a police training exercise at a mini-storage facility with “Breaker,” a dog trained to detect the presence of marijuana.¹ The facility contained 221 rental units, many of which, including defendant’s, were secured by personal locks. Fillmore had permission from the facility’s owner to use it for training purposes. Fillmore placed marijuana wrapped in plastic in an empty unit and began the training exercise. Breaker unexpectedly “alerted” to defendant’s unit. Fillmore notified Deputy Kennedy, a narcotics specialist, who accompanied Fillmore, Forrester and Breaker back to the area. Again, Breaker alerted to defendant’s unit. Kennedy then got down on his hands and knees and put his nose to the outside of the unit’s door. He smelled a strong odor of marijuana coming from inside.² The police then obtained a warrant to search the unit and seized almost 20 pounds of marijuana. Later, defendant was arrested and found in possession of hashish. The trial court denied his motion to suppress.

Defendant contends that the trial court erred in denying his motion. He argues that allowing Breaker to sniff his storage unit was a search, not justified by a reasonable suspicion that the unit contained contraband, that violated the state and federal prohibitions against unreasonable warrantless searches. He argues further that the fruit of the poisonous tree doctrine requires suppression of any evidence seized later. See ORS 133.683. He relies on Article I, section 9, of the Oregon Constitution, and on the Fourth Amendment. His argument is grounded on the reasonable expectation of privacy analysis enunciated in Katz v. United States, 389 US 347, 361, 88 S Ct 507, 19 L Ed 2d 576 (1967) (Harlan, J., concurring).³

The state argues that a dog-sniff is not a search and that no privacy interest was invaded, because defendant could not have any reasonable expectation of privacy in the strong odor of marijuana escaping from his unit which “announced” its contents. See State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). Alternatively, it argues that, if a dog-sniff is a search, then this search is “reasonable” under the plain smell variant of the plain view doctrine.⁴ This is a case of first impression in Oregon. But see State v. Kosta, 75 Or App 713, 719, 708 P2d 365 (1985), rev allowed 300 Or 545 (1986).⁵ We first consider the question under Article I, section 9. State v. Kennedy, 295 Or 260, 262, 666 P2d 1316 (1983).

Most of the courts that have considered the issue have held that a dog-sniff is not a search per se.⁶ In United States v. Place, supra n 6, 462 US at 706, the United States Supreme Court stated:

“The Fourth Amendment ‘protects people from unreasonable government intrusions into their legitimate expectations of privacy.’ United States v Chadwick, 433 US [1,] 7. We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id., at 13. A ‘canine sniff by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

“In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here — exposure of respondent’s luggage, which was located in a public place, to a trained canine — did not constitute a ‘search’ within the meaning of the Fourth Amendment.”

That conclusion represents the culmination of an overwhelming trend among the courts. See Comment, “The Constitutionality of the Canine Sniff Search; From Katz to Dogs,” 68 Marq L Rev 57, 81 (1984).

Like the United States Supreme Court in Place, many of the lower federal and state courts based their decisions on the peculiarly nonintrusive and discriminating nature of an investigatory dog-sniff. Some analogized the use of trained narcotics dogs to the use of certain sense-enhancing instruments such as binoculars and flashlights that have not been considered searches. See, e.g., Texas v. Brown, 460 US 730, 103 S Ct 1535, 75 L Ed 2d 502 (1983) (use of flashlight or field glasses not a search); State v. Berg, 60 Or App 142, 652 P2d 1272 (1982) (flashlight examination not a search); State v. Harp, 48 Or App 185, 616 P2d 564, rev den 290 Or 171 (1980), overruled on other grounds by State v. Anspach, 68 Or App 164, 682 P2d 786, rev’d 298 Or 375, 692 P2d 602 (1984) (use of binoculars not illegal search).

Other courts have sustained the admissibility of dog-sniff evidence relying on a plain smell variant of the plain view doctrine. Those courts theorize that there can be no reasonable expectation of privacy in the open air and, consequently, no constitutionally protectable interest in odors escaping from a closed container, because the dog sniffs only the air outside the protected property and the defendant has no expectation of privacy in that air. See, e.g., United States v. Goldstein, supra n 6; United State v. Sullivan, supra n 6; United States v. Venema, supra n 6; United States v. Brons-tein, supra n 6; Doe v. Renfrow, 475 F Supp 1012 (ND Ind 1979), aff’d in part, remanded on other grounds 631 F2d 91 (7th Cir 1980), cert den 451 US 1022 (1981); State v. Morrow, supra n 6; People v. Mayberry, supra n 6; State v. Groves, 65 Hawaii 104, 649 P2d 366 (1982); People v. Wolohan, supra n 6.

A minority of courts have characterized a dog-sniff as a search. See, e.g., United States v. Beale, 674 F2d 1327 (9th Cir 1982), vacated and remanded, 463 US 1202, 103 S Ct 3529, 77 L Ed 2d 1382 (1983), on rehearing, 736 F2d 1289 (9th Cir), cert denied, 469 US 1072 (1984);⁷ People v. Evans, 65 Cal App 3d 924, 134 Cal Rptr 436 (1977); People v. Unruh, 713 P2d 370 (Colo), cert den_US_(106 S Ct 2894) (1986).

In People v. Mayberry, supra, a case that presents a much stronger factual context for the defendant than this case, the California Supreme Court explained:

“In our view, the escaping smell of contraband from luggage may be likened to the emanation of a fluid leaking from a container. The odor is detectable by the nose, as the leak is visible to the eye. We discern no constitutionally significant difference in the manner of escape, and conclude that any privacy right is lost when either escapes into the surrounding area.” 31 Cal 3d at 342.

A dog-sniff causes no physical intrusion. It reveals something only by means of an external manifestation. The dog merely perceives an odor in the public domain and relays its perception through an “alert” to its trainer. The dissent recognizes that law enforcement used trained bloodhounds in 1859. Unlike mechanical aids such as x-rays, magnetometers and infrared photography, the dog only reveals contraband by means of the dog’s entirely external examination. No “technological enhancement” is involved. The California Supreme Court noted this important distinction in Mayberry. Rejecting a contrary holding in the original opinion in United States v. Beale, supra, on which defendant relies, the California Supreme Court stated:

“[W]ith due respect, we disagree with [Beale’s] conclusion. Beale stressed the sanctity of private luggage, and opined that ‘One who reposes his personal effects, including contraband, in a locked suitcase is surely entitled to assume that a trained canine will not broadcast its incriminating contents to the authorities.’ * * * To the contrary, one who secretes illegal narcotics in his suitcase has no protectable privacy interest in those narcotics, nor any legitimate objection to an unintrusive method of detection which reacts only to such contraband. As Beale itself acknowledges, detection of narcotics by trained sniffer dogs is a ‘minimal invasion of privacy,’ involving ‘no risk that an innocent person’s privacy will be intruded upon.’ ” 31 Cal 3d at 340. (Emphasis in original.)

People v. Evans, supra, cited by defendant, is factually distinguishable. In Evans, the police were conducting a criminal investigation of the defendant, and the dog-sniff was made only after police had unlawfully stopped the defendant’s car. Further, the record was silent as to whether the police and their dog had made their observations from a place where they had a right to be and where they were not committing a trespass on private property. Finally, there was no evidence as to the dog’s training and experience. None of the deficiencies found in Evans are found in this case.

People v. Unruh, supra, cited by defendant, also is factually distinguishable. A locked safe was stolen by burglars from the basement of the defendant’s home. After they had recovered the safe, the police refused to return it to the defendant, because they needed it as evidence in the burglary case. The police suspected that the safe contained contraband, and they permitted a narcotics dog to sniff it. The Colorado Supreme Court held that the dog sniff was a search but that the police had a “reasonable suspicion” that the safe contained contraband and, therefore, a warrantless dog sniff was permissible. In this case, the police did not take possession of defendant’s unit or of its contents before Breaker alerted. Thus, no possessory or property right of defendant’s was infringed. Furthermore, the escaping strong odor of marijuana “announced” the unit’s contents and, therefore, no cognizable privacy right existed. State v. Owens, supra, 302 Or at 206.

No property or privacy right of defendant was detained, seized or invaded before a warrant was obtained. There was no trespass. Defendant himself was not inconvenienced or embarrassed in the slightest. Defendant had no protectable property or privacy interest in the strong odor of marijuana emanating from his locker. Like a chef who laces his meal with bacon, garlic and onions, defendant assumed the risk that the strong odor of marijuana would escape from his unit. On these specific facts, we hold that, because defendant had no reasonable expectation of privacy in the odor of marijuana escaping from his unit, the dog-sniff here was not a search.

The facts of this case fit squarely within the plain smell variant of the plain view doctrine.⁸ The deputies had permission to use the storage facility for training purposes. Therefore, they had a right to be where they were when Breaker alerted to defendant’s unit and when Kennedy smelled a strong odor of marijuana escaping from defendant’s unit. Breaker unexpectedly “alerted” to defendant’s unit. Therefore, the evidence inadvertently came into view. Kennedy, a narcotics investigator, put his nose to door of the unit and smelled a strong odor of marijuana coming from inside the unit. Therefore, the nature of the evidence was immediately known to the police. No technologically enhanced efforts were employed by the deputies. Those specific facts meet the requirements of the plain smell variant of the plain view doctrine. There was no search. See State v. Bridewell, supra n 4.

In State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983), the Supreme Court held that photographing the defendant in his living room, notwithstanding the use of a low-powered telephoto lens, was not a search under Article I, section 9, because the police took the photographs from a place where they had a right to be, and the photographs “merely recorded what could be seen and had been seen without the camera.” In this case, Breaker was used in a manner similar to the camera in Louis. It alerted to the strong odor of marijuana that it smelled in the air outside defendant’s unit. The odor of marijuana also was detected by Kennedy thereafter.

Louis also distinguished its facts from the use of “technologically enhanced efforts” which might allow the police to see what they ordinarily could not see, e.g., a high-powered telephoto lens. It is difficult to characterize a dog as a technological enhancement. A marijuana sniffing dog does not “enhance” anything; it perceives something, i.e., an odor. As the Supreme Court explained in State v. Louis, supra:

“[N]ot everything that police officers see or hear one do in private quarters requires a search warrant. The question is when observation (or listening) becomes a ‘search’ within the legal meaning of that term. Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. One would not, for instance, expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises. An indecent exposure in a window opening to public view is not very different. This, we think, is all that can properly be meant by the phrase that a person’s conduct within private premises may be such as to sacrifice the ‘expectation of privacy.’ ” 296 Or at 61.

The comparison to the odor of marijuana escaping from a storage unit is obvious.

For the same reasons, the trial court’s ruling also is unassailable under the Fourth Amendment. See United States v. Place, supra.9

Affirmed.

Footnotes

1

Deputy Kennedy’s affidavit states, in relevant part:

“That on October 24, 1985, affiant spoke to Deputy Dan Fillmore of the Jackson County Sheriffs Department. That Deputy Fillmore told affiant that he was assisting Jean Forster and a canine she owns by the name of “Breaker.” That said canine has been trained to detect the presence of marijuana, a controlled substance. That said training consist of 40 hours of marijuana detection through a Washington State Police Canine Drug Seminar and 30 hours of marijuana detection instructed by the United States Customs Division sponsored by the Washington State Police Canine Association.

“That during said training, canine Breaker was 100 percent accurate in locating the concealed controlled substance and has been documented by the Washington State Police Canine Association.

“That on 10-24-85, affiant also spoke to Jean Forster and was also told that she has conducted approximately an additional 90 hours of training from instructions she received during both seminar trainings in the State of Washington. That Jean Forster told affiant, said canine was accurate in locating the concealed marijuana, a controlled substance.”

2

In Johnson v. United States, 333 US 10, 13, 68 S Ct 367, 92 L Ed 436 (1948), the Supreme Court stated:

“If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.”

See State v. Wallace, 29 Or App 429, 432, 563 P2d 1237 (1977); State v. Cross, 23 Or App 536, 538, 543 P2d 48 (1975).

3

See State v. Carter/Burton, 54 Or App 852, 636 P2d 460 (1981); State v. Walle, 52 Or App 963, 630 P2d 377 (1981). Although the issue may be in doubt, it does not appear that the Supreme Court or this court has yet adopted the Katz analysis under Article I, section 9. However, no Oregon appellate case has rejected that analysis. See State v. Rounds, 73 Or App 148, 152, 698 P2d 71, rev den 299 Or 663 (1985); State v. Ohling, 70 Or App 249, 252 n 4, 688 P2d 1384, rev den 298 Or 334 (1984); but see State v. Dixson/Digby, 87 Or App 1, 740 P2d 1224 (1987).

4

The plain view doctrine is concerned with seizures. It assumes that the officer is already lawfully in a constitutionally protected place. Under the doctrine, immediately apparent seizable items which inadvertently come into the view of an officer lawfully searching in connection with another crime or for another purpose, or who otherwise has a right to be where the officer is, may be retained and used in prosecution of the crime to which they relate if the officer is already in the constitutionally protected area. See Coolidge v. New Hampshire, 403 US 443, 466, 91 S Ct 2022, 29 L Ed 2d 564 (1971); State v. Bridewell, 87 Or App 316, 325, 742 P2d 648 (1987); State v. Illingworth, 60 Or App 150, 652 P2d 834 (1982), rev den 294 Or 569 (1983). The requirement that the discovery be “inadvertent” has been questioned by many commentators and abandoned by several jurisdictions. See Arizona v. Hicks, 480 US_,_, 107 S Ct 1149, 94 L Ed 2d 347, 357 (1987) (White, J., concurring).

5

In State v. Kosta, supra, 75 Or App at 718-19, we held that the police, who had a reasonable suspicion that a package contained contraband, could temporarily detain it to make a reasonable inquiry. We also held that the police could expose the package to the olfactory senses of a dog trained in detecting contraband and that such exposure did not violate Article I, section 9, of the Oregon Constitution. The case at bar is distinguishable from Kosta in that, here, the state does not claim that the police had a reasonable suspicion that contraband would be found in the training area.

6

See United States v. Place, 462 US 696, 707, 103 S Ct 2637, 77 L Ed 2d 110 (1983); United States v. Lewis, 708 F2d 1078 (6th Cir 1983); United States v. Waltzer, 682 F2d 370 (2d Cir 1982), cert den, 463 US 1210 (1983); United States v. Viera, 644 F2d 509 (5th Cir) cert den 454 US 867 (1981); United States v. Goldstein, 635 F2d 356 (5th Cir), cert den 452 US 962 (1981); United States v. Klein, 626 F2d 22 (7th Cir 1980); United States v. Sullivan, 625 F2d 9 (4th Cir 1980), cert den 450 US 923 (1981); United States v. Venema, 563 F2d 1003 (10th Cir 1977); United States v. Solis, 536 F2d 880 (9th Cir 1976); United States v. Race, 529 F2d 12 (1st Cir 1976); United States v. Bronstein, 521 F2d 459 (2d Cir 1975), cert den 424 US 918 (1976); United States v. Fulero, 498 F2d 748 (DC Cir 1974); State v. Morrow, 128 Ariz 309, 625 P2d 898 (1981); State v. Martinez, 113 Ariz 345, 554 P2d 1272 (1976), adopting 26 Ariz App 210, 547 P2d 62 (1976); People v. Mayberry, 31 Cal 3d 335, 182 Cal Rptr 617, 644 P2d 810 (1982); State v. Mosier, 392 So 2d 602 (Fla App 1981); State v. Snitkin, 67 Hawaii 168, 681 P2d 980 (1984); People v. Campbell, 67 Ill 2d 308, 367 NE2d 949 (1977), cert den 435 US 942 (1978); People v. Price, 54 NY2d 557, 446 NYS2d 906, 431 NE2d 267 (1981); State v. Wolohan, 23 Wash App 813, 598 P2d 421 (1979), rev den 93 Wash 2d 1008 (1980).

7

Defendant argues that a proper analysis recognizes that a dog-sniff is a search if it is conducted without an “articulable suspicion,” citing United States v. Beale, supra. However, the “articulable suspicion” referred to in Beale is required only to make an initial seizure of property, in order to allow a subsequent dog-sniff. The dog-sniff here occurred without a seizure.

8

See Coolidge v. New Hampshire, supra n 4; State v. Roles, 75 Or App 63, 705 P2d 227 (1985); State v. Illingworth, supra n 4; State v. Walle, supra n 3; see also note 4, supra.

9

See also Dow Chemical Co. v. United States, 476 US 227, 106 S Ct 1819, 90 L Ed 2d 226 (1986) (that human vision is enhanced somewhat does not raise constitutional question); Texas v. Brown, supra (use of flashlight or a field glass not a search); United States v. Knotts, 460 US 276, 103 S Ct 1081, 75 L Ed 2d 55 (1983) (use of beeper to augment sensory facilities of police not prohibited by Fourth Amendment).