State v. Wolohan

598 P.2d 421, 23 Wash. App. 813

Opinions

Munson, J.

On March 2, 1977, police Detective Daniel Ray and his drug-sniffing dog, Chinook, were patrolling the Greyhound Bus package express area in Phoenix, Arizona. This patrol was part of Detective Ray's regular assignment to detect controlled substances in and around mass transportation areas of Phoenix. At 6:24 p.m., Chinook "alerted" to a wrapped, book-sized parcel. Six minutes later Detective Ray opened the box and discovered approximately 1 1/2 pounds of bulk marijuana. The package was addressed to one Matt Wolohan, Yakima, Washington. Detective Ray telephoned the Yakima police and informed them of his and Chinook's discovery. On the basis of the phone call, and a teletype which followed detailing Chinook's reliable record of 40 prior cases with 42 arrests, a search warrant was issued in Yakima. The following evening Mathew Wolohan was intercepted by the police as he carried the package from the Yakima bus terminal. He was tried and convicted for possession of marijuana.

The trial court in ruling on a motion to suppress concluded that the warrant was validly based on Chinook's unerring nose and his reaction to the package addressed to Wolohan, independent of Detective Ray's opening of the package in Phoenix. Wolohan contends that the warrantless "search," i.e., the sniffing of his package, did not come within one of the recognized exceptions to the warrant requirement, and unless the search in Phoenix was lawful, the results of that search could not be used to justify the search warrant issued in Yakima.¹ The primary issue before this court is whether under these circumstances the detection by the dog was reliable information by itself upon which there was sufficient probable cause for a search warrant to issue. We hold that it was.

In jurisdictions where the question of the use of "canine cannabis connoisseurs1'² has been raised in regard to establishing probable cause for an arrest or search, the courts have held that prior information of specific criminal activity in conjunction with a dog whose reliability has been shown has provided probable cause. Subsequent searches have been upheld generally based on one of two theories: (1) the plain-view, or more properly the plain-smell, doctrine, or (2) that the sniff was a reasonable search under the circumstances.³ In almost all cases some prior information has been required. Here, the detective apparently had no specific information. See Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, Annot., 31 A.L.R. Fed. 931 (1977).

In some cases a reliable informant has notified police of a parcel containing drugs which has then been corroborated by a sniffing dog. United States v. Bronstein, 521 F.2d 459, 31 A.L.R. Fed. 920 (2d Cir. 1975), cert. denied, 424 U.S. 918 (1976); United States v. Fulero, 498 F.2d 748 (D.C. Cir. 1974); People v. Campbell, 67 Ill. 2d 308, 367 N.E.2d 949 (1977), cert, denied, 435 U.S. 942; State v. Martinez, 26 Ariz. App. 210, 547 P.2d 62 (1976), aff'd, 113 Ariz. 345, 554 P.2d 1272 (1976). In other cases police had a suspect under surveillance who exhibited suspicious behavior. A dog was then brought in and provided probable cause for a subsequent search. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977); United States v. Meyer, 536 F.2d 963 (1st Cir. 1976); State v. Quatsling, 24 Ariz. App. 105, 536 P.2d 226 (1975). An unreliable informer and an anonymous tip corroborated by the alert of a dog has provided probable cause. United States v. Solis, 536 F.2d 880 (9th Cir. 1976); State v. Elkins, 47 Ohio App. 2d 307, 354 N.E.2d 716 (1976). In one case, a customs agent had no prior information but a reliable dog provided probable cause for a subsequent search. United States v. Race, 529 F.2d 12 (1st Cir. 1976).⁴ However, in California the courts have suppressed evidence based solely on the alert of a dog with no prior tip. People v. Evans, 65 Cal. App. 3d 924, 134 Cal. Rptr. 436 (1977); People v. Williams, 51 Cal. App. 3d 346, 124 Cal. Rptr. 253 (1975). We decline to follow California for the reasons stated below.

The primary question which must be addressed is whether Wolohan had a legitimate expectation of privacy in the invaded place. Katz v. United States, 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). As noted in Rakas v. Illinois, 439 U.S. 128, 58 L. Ed. 2d 387, 401 n.12, 99 S. Ct. 421 n.12 at 430 (1978): "a 'legitimate' expectation of privacy by definition means more than a subjective expectation of not being discovered." A sender or a receiver of parcels by common carrier has only a limited expectation of privacy as distinguished from a sender or receiver of first-class mail. See United States v. Van Leeuwen, 397 U.S. 249, 25 L. Ed. 2d 282, 90 S. Ct. 1029 (1970). Common carriers have the right to protect themselves and not be the unwitting carriers of contraband and may search parcels if they have reason to believe they contain contraband. State v. 1969 Volkswagen Bus, VIN 239199800, 120 Ariz. 365, 586 P.2d 210 (1978); State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972). In United States v. Chadwick, 433 U.S. 1, 13, 53 L. Ed. 2d 538, 97 S. Ct. 2476, 2484 (1977), the court significantly stated: "Luggage contents are not open to public view, except as a condition to .. . common carrier travel; . . ." (Italics ours.) The sniff of a bag or parcel by a dog in a baggage or parcel area is a minimal and limited intrusion; the contents of a parcel remain entirely undetected except for marijuana, cocaine, hashish, or heroin. " [I]t is hard to imagine that an innocent person could have any objection to his package, placed in transit on a common carrier, being sniffed by a trained dog." State v. Elkins, supra at 312. The sole purpose of the limited intrusion is to detect contraband and not to violate the sanctity of any personal possessions. See United States v. Head, 416 F. Supp. 840 (S.D.N.Y. 1976), cert. denied sub nom. Wheaton v. United States, 430 U.S. 931 (1977). (Use of fluoroscope to detect contraband in international mail).

A baggage area by its nature is at least a semi-public place where people will be circulating through the area, either employees or people picking up or sending packages. The outside of the package is open to view and the package is subject to dropping or tearing. We hold that although Wolohan may have had a limited expectation of privacy as to the contents and his personal effects in a package in transit, he did not have a reasonable expectation of privacy in the area in which the package itself was located, the parcel area, nor in the air space immediately surrounding the package from which the odor emanated. See United States v. Solis, supra; State v. Quatsling, supra.

Wolohan contends Detective Ray and Chinook were in a place they had no right to be and were conducting no more than a general exploratory search. Thus the "search" by the dog was unlawful. In general, exploratory searches have been held unreasonable and in fact such searches were the very genesis of the constitutional requirement for warrants. Go-Bart Importing Co. v. United States, 282 U.S. 344, 75 L. Ed. 374, 382, 51 S. Ct. 153 (1931). Here, the affidavit for the search warrant stated that Detective Ray was

an experienced narcotics officer whose assignment involves the detection of possible controlled substances in and about the mass transportation areas of Phoenix, Arizona. That he is regularly assigned to these areas with the narcotics dog known as "Chinook" each day for eight hours. That he is familiar with the appearance of marijuana in its various modes of packaging and transportation.

The-affidavit implies that Detective Ray regularly visited such places as Greyhound and there was nothing to suggest that he was in the package area by anything other than the permission of Greyhound, nor does Wolohan make such a contention. Cf. People v. Williams, supra. We decline to follow People v. Williams, supra, in which the court found an unlawful trespass by the police. There is nothing in this record to indicate that Detective Ray was a trespasser. Unlike the deputies in Williams, Detective Ray had had prior experience in mass transportation facilities and the affidavit suggests he suspected the possibility of controlled substances in that area. The logical extension of Wolohan's argument would be that any time a dog alerted to an object in a place where the officer had a right to be, the alert would have to be ignored and a warrant could not be issued unless the officer had prior information regarding the object.

Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view or open view or the equivalent. Odors so detected may furnish evidence of probable cause of "most persuasive character, ..."

United States v. Solis, supra at 881.

In United States v. Johnston, 497 F.2d 397, 398 (9th Cir. 1974), the court held that a police officer's sniffing of a suitcase provided probable cause for a subsequent search. It has been held that the distinctive odors of opium and whiskey mash would have provided probable cause for which the officers should have sought a search warrant. Chapman v. United States, 365 U.S. 610, 5 L. Ed. 2d 828, 81 S. Ct. 776 (1961); Johnson v. United States, 333 U.S. 10, 92 L. Ed. 436, 68 S. Ct. 367 (1948); Taylor v. United States, 286 U.S. 1, 76 L. Ed. 951, 52 S. Ct. 466 (1932). In Johnson v. United States, supra at 13, the 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.

Here, as contrasted to these last three cases, the police did the very thing they were directed to do by the cases, i.e., draft an affidavit setting forth the basis for their probable cause and go before an independent magistrate seeking a search warrant.

Because Wolohan had no reasonable expectation of privacy and because the police officer was in a semi-public place, we believe the sniffing of the dog was not an illegal search, but more properly his alert comes within the "plain-smell" doctrine adopted by the majority of jurisdictions which have considered the question. However, even if the sniffing of the dog were construed to be a search, it was a reasonable search in which Wolohan had no legitimate expectation of privacy. A dog is not an electronic device, nor used to intercept private communications between people. See Katz v. United States, supra. A dog's "search" is limited solely to illegal substances. As noted in People v. Campbell, supra at 317:

[T]he use of trained dogs to detect the odor of marijuana poses no threat of harassment, intimidation or even inconvenience to the innocent citizen. Nothing of an innocent but private nature and nothing of an incriminating nature other than the narcotics being sought can be discovered through the dog's reaction to the odor of the narcotics.

We find under the circumstances the dog by itself provided probable cause for the warrant to issue.⁵

The remaining assignments of error may be disposed of summarily. Wolohan contends there is insufficient evidence to support his conviction for possession of marijuana. The evidence discloses that Wolohan had visited friends in Arizona shortly before the package arrived in Yakima. The package was addressed to him and contained his phone number. He, in response to notification of its arrival, had picked it up and signed for the package. We find there was sufficient evidence to submit the question of guilt to the jury.

In Wolohan's possession at the time he was arrested was a pipe which contained a residue of marijuana. A small quantity of marijuana was also found on his person. Wolohan contends that during cross-examination the trial court erred in allowing the State to inquire if he had previously used marijuana and whether he was prepared to smoke any that day. He answered both questions, over objection, in the affirmative. Wolohan argues that such evidence of other crimes was inadmissible, relying on State v. Draper, 10 Wn. App. 802, 521 P.2d 53 (1974). That case, however, is distinguishable because Draper had a quantity of drugs lawfully in his possession. Here, these inquiries went to the issue of whether Wolohan knew that what he had in his possession was in fact marijuana and for that reason was admissible. This evidence had probative value, going to his awareness of the contents of the package. See State v. Boyer, 91 Wn.2d 342, 588 P.2d 1151 (1979); State v. Dault, 19 Wn. App. 709, 578 P.2d 43 (1978).

Wolohan's contention that the admissibility of the street value of the marijuana was error is not well taken. State v. Liles, 11 Wn. App. 166, 521 P.2d 973 (1974), and State v. Pristell, 3 Wn. App. 962, 478 P.2d 743 (1970). Finally, Wolohan contends the court erred in failing to give one of his proposed instructions. We find this issue is satisfactorily covered in the other instructions given by the court. State v. Hopkins, 71 Wn.2d 10, 426 P.2d 496 (1967).

Judgment affirmed.

Green, C.J., concurs.

Footnotes

1

The trial judge observed that the search by the detective may have been illegal, but found that the warrant was issued solely on the basis of the dog's detection, as attested by the issuing magistrate, rather than the detective's subsequent search. In the detective's telegram he had justified the opening of the package on the basis of emergency circumstances since the package was due to depart by bus within 1 1/2 hours after Chinook "alerted."

2

This term is not original to this court.

3

The two theories have generated a great deal of academic debate. See Schuster, Constitutional Limitations on the Use of Canines to Detect Evidence of Crime, 44 Fordham L. Rev. 973 (1976); Peebles, The Uninvited Canine Nose and the Right to Privacy: Some Thoughts on Katz and Dogs, 11 Georgia L. Rev. 75 (1976); United States v. Solis: Have the Government's Supersniffers Come Down With a Case of Constitutional Nasal Congestion?, 13 San Diego L. Rev. 410 (1976).

4

We also note a recent case denied review by the United States Supreme Court in which a dog, outside a private compartment aboard a train, was used to sniff contraband inside the compartment. Wolkind v. Virginia, 440 U.S. 958, 59 L. Ed. 2d 770, 99 S. Ct. 1498 (1979). An examination by this court of the briefs submitted to the Supreme Court, docket No. 78-860, indicated no opinion had been written in the case. The defendant was convicted of possession of marijuana; the Supreme Court of Virginia declined to review the trial court proceedings. The question presented to the Supreme Court was as follows: "Does Fourth Amendment forbid police, acting with neither warrant nor probable cause to believe that contraband would be found, to use specially trained animal to ferret out contraband, in order to establish whether locked private luggage stored in private sleeping compartment contains contraband?" Wolkind v. Virginia, 47 U.S.L.W. 3485 (U.S. Jan. 16, 1979).

5

While the issue is not before us, we entertain grave doubts whether the above rationale would permit a similar search in a public waiting room or of carry-on luggage, parcels or other personal effects on or near the person. Obviously, such a search would invade a person's legitimate expectation of privacy.