State v. Barnthouse

• Decision Date: 20 May 2015
• Docket Number: 120431515,A153361.
• Citation: 350 P.3d 536,271 Or.App. 312
• Parties: STATE of Oregon, Plaintiff–Appellant, v. Max BARNTHOUSE, aka Max Davis Barnthouse, Defendant–Respondent.
• Court: Oregon Court of Appeals

271 Or.App. 312

350 P.3d 536

STATE of Oregon, Plaintiff–Appellant

v.Max BARNTHOUSE, aka Max Davis Barnthouse, Defendant–Respondent.

120431515

A153361.

Court of Appeals of Oregon.

Argued and Submitted Feb. 11, 2014.

Decided May 20, 2015.

David B. Thompson, Senior Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Stephen A. Houze, Portland, argued the cause and filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

Opinion

NAKAMOTO, J.

Police removed a package intended for delivery to defendant from the stream of mail at a United States Postal Service sorting facility. A drug-detection dog alerted to the presence of narcotic odor in the package. Later, without a warrant, the police took the package to defendant's residence and obtained defendant's consent to search the package and his bedroom. Based on the evidence discovered, defendant was charged with one count each of unlawful possession of marijuana, ORS 475.864, and delivery of marijuana for consideration, ORS 475.860. The trial court concluded that the police unlawfully seized the package in violation of both the Oregon and United States constitutions when they removed it from the stream of mail and that they subsequently exploited that seizure to gain defendant's consent to the searches. The court therefore suppressed all evidence obtained pursuant to the seizure and subsequent search. The state appeals that pretrial order. According to the state, defendant had no constitutionally cognizable possessory interest in the package, and, therefore, the police did not unlawfully seize it. The state argues, in the alternative, that, even if the police did illegally seize the package, they did not exploit that illegality in obtaining defendant's consent to the searches. For the reasons explained below, we affirm the trial court's order.

I. FACTS

We base our statement of the facts on the trial court's findings. “If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion.” State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

As part of an inter-agency drug interdiction team, United States Postal Inspector Helton and Portland Police Bureau (PPB) Officers Castaneda and Groshong regularly examine in-transit U.S. mail at a postal air cargo center near the Portland International Airport for packages that might contain illegal drugs or drug money. Postal inspectors are federal law enforcement agents. At the hearing on defendant's motion, Helton testified that his primary duties pertain to the interdiction of drugs and drug money. Although he has the authority under federal law to handle (e.g., deliver) mail, that is not his assigned job. According to Helton, when PPB officers are present at the sorting facility, they are operating under his authority in their handling of the mail and assisting him with his duties. Indeed, pursuant to postal regulations, nonpostal employees in a postal facility must be escorted by an employee.

The air cargo center is a secure facility. The public is not allowed there, and there is no customer service located at the air cargo facility. So, an intended recipient could not show up and pick up a package there. However, Helton testified that there is “a time along this path of delivery, that the public could intercede”; “a customer could go to their local post office and say I'm expecting an express mail package, if you could hold it out and let me pick it up early in the morning, I know that postal employees will provide that service for customers, * * * [b]ut before then there's not a chance for the public to interact with, you know, with postal employees.”

When examining and investigating packages at the sorting facility, the interdiction team typically follows the same basic routine. Early in the morning, large bags of mail are offloaded from incoming flights. Bags containing express mail are clearly distinguished from other bags. Postal employees open the bags and empty their contents into large sorting bins. Express mail packages are sorted in a separate area from priority mail. Postal employees sort through the express mail bins to track and route packages to their final destinations. They place the packages into express mailbags that are designated to be delivered to a specific post office, from which a postal carrier takes and delivers the package to the intended recipient by the time specified on the face of each package, typically, either by noon or 3:00 p.m. that day, depending on the delivery location. As the postal employees are sorting through the bins, members of the interdiction team stand next to the bins and inspect their contents for packages that they believe may contain contraband.

They look for packages bearing exterior indicators that they deem characteristic of illegal-drug or drug-money parcels. Such indicators include the “overtaping” of a package's seams; handwritten, as opposed to printed, shipping information; delivery from an individual to an individual, rather than to or from a business entity; variation between the zip code from which a package was sent and the zip code listed for the return address; payment for delivery by cash or debit card, instead of billing to a business account; origination from a non-medical-marijuana state; waiver of any signature requirement at delivery; and use of possibly fictitious or incomplete identifying information for the sender or recipient. Helton testified that it is common for the public to send express mail packages using handwritten labels and for people, including himself, to use cash to pay their fee.

If, based on the presence of one or more of those indicators, the interdiction team decides to investigate a package, they then remove the parcel “from the normal stream of mail” to a “secondary” area 30 feet away from the sorting bins to subject it to a narcotics canine deployment line. They place the package on the floor in a line with six other “control” packages, and Groshong deploys his narcotics dog, Nikko, to examine the packages. Groshong testified that Nikko has an accuracy rate of approximately 90 percent, indicating that, about 10 percent of the time, Nikko alerts to packages that do not actually contain narcotics. Conversely, Nikko has also failed to alert to packages at the sorting facility that were later determined to contain contraband.

The package is then set aside for further investigation, whether or not Nikko alerts to it. At that point, there is “no chance it's going to get back into the stream of mail.” Rather, it is “under [Helton's] control in a law enforcement sense.” It is placed on a cart, separate from the standard sorting bins, with other express mail packages that the team is “holding out for that day” for investigation. The team conducts between 30 to 40 lineups each day. About seven to 14 parcels are set aside daily for further investigation. According to Groshong, the team currently investigates a greater relative number of packages that have elicited no alert from Nikko than in the past. Helton testified that postal employees know that those are “my packages, and I need to hold onto those” from then on; postal employees are prohibited from tampering with or attempting to deliver those packages.

As the team continues to examine and identify packages for further investigation, they may also begin to investigate packages already set aside that morning by, for example, searching law enforcement databases for information related to the addresses or names listed on the packages. Finally, as Helton testified, for each package, “that same day, usually by delivery time, we try to make contact with the intended recipient.” As Castaneda elaborated, the team takes each package to its delivery address, they “knock on the door with the package, usually accompanied by a postal inspector, and try to get consent to open the package, or wherever basically that investigation takes us.”

Helton testified that it is United States Postal Service (USPS) policy that a federal search warrant must be obtained to open packages coming through the U.S. mail, but noted that “[o]ne of the exceptions to the search warrant requirement, under both the federal and state constitution[s,] * * * is consent of someone who has an expectation of privacy in that particular package.” Helton, Castaneda, and Groshong each testified differently regarding the authority of PPB officers to seek a search warrant. Helton stated that PPB officers can apply for a state warrant and serve as the affiant for federal search warrants as well. Groshong stated that PPB officers are prohibited by USPS policy from applying “for search warrants in these types of cases.” And, according to Castaneda, the responsibility for applying for a search warrant for their investigations usually rests with the individual officer who leads the “knock-and-talk” ultimately conducted at the address of the intended recipient.

The officers also testified concerning how long it would take to obtain a warrant. Groshong estimated that it typically takes several hours to obtain a federal search warrant: the time spent preparing the affidavit; finding an Assistant United States Attorney to review the warrant (1–2 hours); and getting an appointment with a federal judge (1–2 hours). Helton has previously applied for federal search warrants to open U.S. mail, and for Oregon search warrants as well. He is familiar with the process for telephonically obtaining federal search warrants but has never done so. He does not know how long it would take to get a state search warrant by phone, although he knows that there is always a duty judge available to officers by phone specifically for that purpose in ...