State v. Smith

939 P.2d 157, 148 Or. App. 235, 1997 Ore. App. LEXIS 654

• Court: Court of Appeals of Oregon
• Decided: May 28, 1997
• Docket: 93CR815; CA A86622
• Status: Published

Opinions

LANDAU, J.

In State v. Juarez-Godinez, 135 Or App 591, 604-05, 900 P2d 1044 (1995), affd 326 Or 1 (1997), we held that the use of a trained narcotics detection dog is a search within the meaning of Article I, section 9, of the Oregon Constitution. Left open in that decision was the question whether such “dog-sniff’ searches are subject to the warrant and probable cause requirements of Article I, section 9, or are subject to some lesser standard based on the minimal nature of the intrusion involved in such searches. That question is before us in this case.

Defendant argues that the trial court erred in denying his motion to suppress evidence of narcotics discovered by means of a dog sniff. He argues that, because the dog sniff occurred without a warrant and without satisfying any recognized exception to the warrant requirement, the search was unconstitutional, and the subsequent seizure of evidence should have been suppressed. The state acknowledges that no warrant preceded the dog-sniff search, and it does not contend that it had probable cause to believe that evidence of narcotics would be found prior to the dog sniff. It nevertheless argues that the evidence need not be suppressed, because there was reasonable suspicion that evidence of a crime would be found. The state argues that we should, in effect, create an exception to the warrant and probable cause requirements of the constitution based on the minimally intrusive nature of dog-sniff searches.

We conclude that the Oregon Constitution does not impose the warrant and probable cause requirements on the basis of relative levels of intrusiveness but, rather, on the existence of a “search” for evidence. Because a dog-sniff search is a search for evidence within the meaning of Article I, section 9, the warrant and probable cause requirements apply, and, because the dog-sniff search in this case occurred without satisfying those constitutional requirements, we agree with defendant that the evidence seized from the locker should have been suppressed.

In the summer of 1993, a confidential informant told Detective Plaster, of the Brookings Police Department, that defendant was growing marijuana in the Brookings area and that he stored the marijuana in a storage unit in Brookings. In October 1993, the informant told Plaster that defendant had just harvested his marijuana for the year, that defendant would be in Brookings during specific weekends in October and that he was still renting the storage unit in Brookings. Later that month, the police searched defendant’s house in Klamath Falls pursuant to a warrant. They seized marijuana and cash, and defendant was arrested and jailed.

Following defendant’s arrest, Plaster called the manager of the storage facility identified by the informant and asked if defendant rented a storage unit there. The manager said that he was renting a unit to defendant at that time. Plaster and Detective Gardiner then went to the storage facility accompanied by Nitro, a dog that was trained to detect drugs. Plaster went to the manager’s office to verify that defendant was renting storage unit number 125. The manager said that he was, but told Plaster that he could not search the unit until he had obtained a search warrant. Plaster did not ask the manager for consent to allow Nitro to sniff for drugs at the storage facility.

Meanwhile, Gardiner took Nitro into that part of the facility where the storage units were located.and commanded the dog to search for drugs in the row that contained defendant’s unit. Nitro “alerted,” that is, indicated the presence of drugs, at unit 125. Plaster then asked the manager to place a lock on that unit while they secured a search warrant. The officers returned with a warrant to search the unit and, during the search, found marijuana and implements used to cultivate marijuana. Plaster testified that he knew that defendant had been taken into custody in Klamath Falls, but that defendant had access to a telephone even though in custody and that, in his experience, individuals in custody sometimes use telephones to contact accomplices and to continue to direct their drug operations.

The trial court concluded that the dog sniff was not a search. The court also concluded, relying on State v. Hansen, 295 Or 78, 664 P2d 1095 (1983), State v. Quinn, 290 Or 383, 623 P2d 630 (1981), and United States v. Allard, 634 F2d 1182 (9th Cir 1980), that, even if the padlocking of the storage unit by the officers did constitute a seizure, the evidence should not be suppressed.

On appeal, defendant assigns error to the court’s denial of his motions to suppress. He argues that the trial court erred in denying his first motion because deploying the drug-sniffing dog was a search that required either a warrant or an exception to the warrant requirement. He argues that the court erred in denying his second motion because placing a padlock on defendant’s storage unit was a seizure that also required either a warrant or an exception to the warrant requirement. Because we agree with defendant on his first argument, we do not address his second.

Defendant argues that a dog-sniff search, like any other search for evidence, must comply with the requirements of Article I, section 9; namely, that the search must be preceded by a warrant issued upon probable cause or be subject to a recognized exception to the warrant requirement. The state argues that, although a dog-sniff search may be a search within the meaning of Article I, section 9,

“[g]iven that a dog sniff is a relatively minimal intrusion upon privacy and is a valuable surveillance technique for the police, this court should hold that a warrantless dog sniff search is lawful if based on a reasonable suspicion that the item or area to be searched contains evidence of a crime.”

In support of that argument, the state relies on a previous decision of this court, State v. Kosta, 75 Or App 713, 708 P2d 365 (1985), affd on other grounds 304 Or 549, 748 P2d 72 (1987), in which the state contends “this court appeared to embrace” its proposed view of the meaning of Article I, section 9. It also relies on decisions from other jurisdictions and on the views of Professor Wayne LaFave. Judge Deits joins the state in each of 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 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.”

The Oregon Supreme Court has explained the requirements of that section in the following straightforward terms:

“ ‘Normally, in order for a search to be constitutionally permissible, the police must have a search warrant. * * *

“ ‘A warrantless search by the police is “reasonable” under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement.’ ”

State v. Nagel, 320 Or 24, 31, 880 P2d 451 (1994) (quoting State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992) (citations omitted)). The analysis involves no examination of relative levels of intrusiveness, no balancing of governmental law enforcement and individual privacy interests. If a given action constitutes a search for evidence within the meaning of Article I, section 9, ordinarily, it must be preceded by a warrant supported by probable cause, and short of that, it must be supported by an applicable exception to the warrant requirement. Our research has uncovered no Oregon appellate decision recognizing a “dog-sniff search exception,” which permits a search to proceed upon mere reasonable suspicion that evidence of a crime may be found, and none of the state’s arguments persuade us that we should create such an exception.¹

First, as to the Kosta decision, the state is mistaken when it suggests that we created such an exception in that case. In Kosta, which was decided more than a decade before Juarez-Godinez, we expressly refrained from holding that a dog sniff is a search. We held instead that, whatever a dog sniff is, it may be supported by reasonable suspicion. That could mean either of two things: (1) that a dog sniff is not a search and therefore may proceed on mere reasonable suspicion, or (2) that a dog sniff is a search but nevertheless may proceed upon mere reasonable suspicion. It bears emphasis that we did not explain which of those two rationales supported our decision in Kosta. The opinion flatly stated that “we need not decide this question.” Kosta, 75 Or App at 719 n 10. It suggested that, on the one hand, a dog sniff might not be a search, because no physical penetration of the searched package was involved. Id. It then suggested that, on the other hand, it might be a search, because technological enhancements generally are regarded as searches. Id. Given that we expressly refrained from deciding the question, we do not now read Kosta as if we actually had decided it.

Second, concerning the trend of other state decisions, there can be no question that a majority of other state courts holding that such an invasion is a search have held that dog-sniff searches require mere reasonable suspicion, because of the limited nature of the intrusion involved. The question is whether those decisions, and the reasoning by which they are reached, comport with the analysis we are required to follow under the Oregon Constitution. We conclude that they either offer no analysis at all or cannot be squared with Oregon law.

State v. Smith, 38 Conn App 29, 658 A2d 156 (1995), illustrates the former category of cases. In that case, the Connecticut Court of Appeals expressly refrained from deciding whether a dog sniff is a search “since it is unnecessary to have a standard in this case any higher than a reasonable and articulable suspicion.” 38 Conn App at 40, 658 A2d at 156. That is the sum and substance of the court’s analysis, and we find nothing useful in its raw ipse dixitism.

Commonwealth v. Johnston, 515 Pa 454, 530 A2d 74 (1987), illustrates the latter category of cases. In that case, the Pennsylvania Supreme Court decided that a dog sniff of a storage locker was a search, but that the search did not require probable cause under that state’s constitution. Under Pennsylvania law, the court explained, its analysis of the issue

“necessarily involves a balancing analysis * * * to determine whether this particular kind of search in these circumstances necessarily implicates the full-blown warrant requirements of most other police searches.”

515 Pa at 464, 530 A2d at 79. The court held that, on balance, the compelling state interest in eradicating illegal drug trafficking outweighed the minimal intrusion involved in the dog-sniff search of the locker, and, therefore, probable cause was not required. 515 Pa at 465-66, 530 A2d at 79-80. In People v. Dunn, 77 NY2d 19, 563 NYS2d 388, 564 NE2d 1054 (1990), cert den 501 US 1219 (1991), the New York Court of Appeals similarly concluded that, although a dog sniff of a residence from an apartment hallway is a search, it did not require probable cause,

“[g]iven the uniquely discriminate and nonintrusive nature of such an investigative device, as well as its significant utility to law enforcement authorities.”

77 NY2d at 26, 563 NYS2d at 392, 564 NE2d at 1058.

The problem with those cases is that they rely on an analysis that is foreign to that which must be applied under the Oregon Constitution. They expressly rely on a balancing of the government’s interests in combating crime against the extent to which an individual’s reasonable expectation of privacy is invaded. Article I, section 9, however, does not impose the warrant and probable cause requirement on the basis of a “reasonable expectation of privacy.” Thus, the cases from other jurisdictions are not helpful to us, because they are reasoned on the basis of balancing factors that simply are not recognized under Oregon law.

The Supreme Court’s opinion in State v. Campbell, 306 Or 157, 759 P2d 1040 (1988), is especially instructive. In that case, the court addressed whether the use of a radio transmitter to track the movements of a car is a search that requires a warrant or exigent circumstances and probable cause. The court framed the issue in the following terms:

“A search or seizure to obtain evidence of a crime is unconstitutional if no warrant authorized the search or seizure and there is no exigency that would obviate the need for a warrant. In this case, there was neither a warrant nor any exigency that would have obviated the need for a warrant. If the attachment or monitoring of the transmitter was a search or seizure, the motion to suppress was properly allowed.”

Id. at 163 (citations omitted). The state urged the court to analyze the issue by inquiring whether its use of the transmitter interfered with a “reasonable expectation of privacy” of the defendant. The court expressly rejected that analysis:

“This court has expressed doubts about the wisdom of defining Article I, section 9, searches in terms of‘reasonable expectations of privacy.’ Because the phrase continues to appear so often in arguments, we here expressly reject it for defining searches under Article I, section 9. The phrase becomes a formula for expressing a conclusion rather than a starting point for analysis * * *. Moreover, the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right.”

Id. at 164 (emphasis in original; citations omitted). The court went on to hold that the use of a radio transmitter did invade the defendant’s right to privacy. It then concluded, without any further analysis of the extent of the invasion of the defendant’s privacy rights, that evidence obtained from the use of the transmitter must be suppressed unless supported by a warrant based on probable cause or an exception to the warrant requirement. Id. at 172-73.

Judge Deits says that we exaggerate the importance of this distinction, because, in the cases from other jurisdictions, “once it was determined that what took place was a search, ‘reasonable expectation of privacy’ was no longer a predominant consideration.” 148 Or App at 251. According to Judge Deits, the predominant consideration was in those cases, and should be for us, the minimal nature of the intrusion involved in dog-sniff searches. We are unpersuaded. To begin with, the decisions from other jurisdictions are, in fact, predicated on the sort of balancing test that we have described. Indeed, it is the individual’s reasonable expectation of privacy that is the interest against which the minimally intrusive nature of the search is balanced. As the court explained in Johnston:

“Thus, while we are unwilling to balance the privacy expectations of the individual against the law enforcement interests of government for the purpose of determining whether there was a search, we find the balancing inquiry appropriate to determine whether this particular kind of search in these circumstances necessarily implicates the fullblown warrant requirements of most other police searches.”

515 Pa at 464, 530 A2d at 79. Thus, the analysis employed by those decisions involves comparing the nature of the search with apples, while any balancing that we might employ would involve comparing the nature of the search with oranges. The cases are therefore of no assistance to us.

Aside from that, we do not find the reasoning of the cases persuasive. In none that we have reviewed is there an explanation why the minimally intrusive nature of dog-sniff searches makes requiring less than probable cause reasonable. Judge Deits similarly reasons simply that:

“The dog-sniff search at issue here involved a trained narcotics dog walking down an aisle of an area that was open, generally, to the public. The dog ‘alerted’ to the presence of narcotics when it reached the door of defendant’s storage unit. The dog did not go in the unit or in any other way disturb the unit or its contents. It did not expose defendant’s legal activities. The dog-sniff search involved here was a minimal intrusion to defendant’s privacy rights. I would hold that because of the limited nature of the intrusion under these specific circumstances, the dog-sniff search, if supported by reasonable suspicion, is reasonable under Article I, section 9.”

148 Or App at 253. That analysis consists of merely stating a conclusion about the very matter at issue.

In that regard, we also find troubling the implications of the foregoing reasoning: As long as an officer does not go to the trouble of obtaining a warrant, reasonable suspicion suffices, but if the officer obtains a warrant, probable cause must be established. The upshot is that law enforcement officers would have every incentive simply not to obtain a warrant. The United States Supreme Court noted a similar problem when it addressed a proposed reasonable suspicion standard for plain-view searches in Arizona v. Hicks, 480 US 321, 327, 94 L Ed 2d 347, 107 S Ct 1149 (1987), making the following observation:

“No reason is apparent why an object should routinely be seizable on lesser grounds [on the basis of plain view] than would have been needed to obtain a warrant for the same object if it had been known to be on the premises.”

Similarly in this case, no reason is apparent to us why evidence of drugs should be seizable on lesser grounds without a warrant than would be needed to obtain a warrant to search for the same evidence.

Finally, with respect to Professor LaFave’s analysis, we acknowledge that he proposes that, theoretically, it may be possible to distinguish dog sniffs from other kinds of searches:

“Assuming now that some uses of these dogs constitutes a search, it does not inevitably follow that they should be encumbered by the' restrictions ordinarily applicable to other types of searches which are clearly more intrusive in character. While it has sometimes been asserted that if the use of trained dogs is a search then such surveillance is unconstitutional if‘conducted in absence of a warrant supported by probable cause,’ the Fourth Amendment does not demand such a result. In Terry v. Ohio, [392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968),] the Court upheld a limited warrantless search made upon less than full probable cause ‘by balancing the need to search [or seize] against the invasion which the search [or seizure] entails,’ and thus a similar approach might be taken as to the kind of search here under discussion. Although there are sound reasons for not employing too generously ‘a graduated model of the fourth amendment,’ the notion that searches by use of dogs trained to detect narcotics or explosives is a lesser intrusion subject to lesser Fourth Amendment restrictions is sound. This is because this particular investigative technique is a distinct police practice which quite obviously is much less intrusive than other searches.”

Wayne R. LaFave, 1 Search and Seizure § 2.2(f), 461 (3d ed 1996) (emphasis in original; footnotes omitted). Upon more careful reading, however, we conclude that his suggestion offers little support for the state’s proposed adoption of such a distinction under Oregon law.

To begin with, LaFave himself concedes that his proposed “ ‘graduated model of the fourth amendment’ ” is problematic, and should not be employed “too generously.” Id. He notes that the proposal has been criticized as having the potential to convert search and seizure law “into one immense Rorschach blot.” Id. (quoting Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 Minn L Rev 349, 393 (1974)). He also notes that it is unlikely that the United States Supreme Court would adopt it, because the Court already has concluded that searches cannot be analyzed in terms of degrees of intrusiveness. Id. Finally, LaFave’s proposal is predicated on the same balancing of the state’s interest against an individual’s reasonable expectation of privacy, which, as we have noted, is inappropriate under Oregon law. Thus, LaFave is a weak reed on which to lean so significant a change to the constitutional law of this state.

We conclude that a search for evidence by means of a trained narcotics dog must be supported by a warrant issued upon probable cause or by circumstances amounting to an exception to the warrant requirement. In this case, there is no question that a warrant was not obtained prior to the dog sniff. Similarly, there is no suggestion that the police had probable cause to believe that evidence of a crime would be found in defendant’s locker before the dog “alerted” to the existence of drugs at that location. It necessarily follows that the dog-sniff search was unconstitutional and that the trial court erred in denying defendant’s motion to suppress.

Reversed and remanded.

1 Oregon courts have held that officers may “take reasonable steps” in the face of “immediate threat of serious physical injury to the officer or to others then present.” State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). Similarly, we have held that a “true emergency,” i.e., the need “to render lifesaving assistance in an emergency situation,” may justify entry into a defendant’s premises. State v. Follett, 115 Or App 672, 679, 840 P2d 1298 (1992), rev den 317 Or 163 (1993). In both cases, however, the courts explained that the officers’ actions must not be taken for the purpose of gathering evidence. In all cases involving searches for evidence of a crime, the courts have required either a warrant or compliance with an exception to the warrant requirement that requires probable cause. See, e.g., State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986) (search incident to arrest exception requires probable cause); State v. Herrin, 323 Or 188, 193 n 1, 915 P2d 953 (1996) (automobile exception requires probable cause); State v. Nagel, 320 Or at 31-33 (exigent circumstances exception requires probable cause).