State v. Dupay

• Decision Date: 10 June 1983
• Docket Number: No. C81,C81
• Citation: 62 Or.App. 798,662 P.2d 736
• Parties: STATE of Oregon, Respondent, v. Nicholas Lee DUPAY, Appellant. 10 35160; CA A24610.
• Court: Oregon Court of Appeals

Page 736

662 P.2d 736

62 Or.App. 798

STATE of Oregon, Respondent, v. Nicholas Lee DUPAY, Appellant.

No. C81 10 35160; CA A24610.

Court of Appeals of Oregon.

Argued and Submitted Jan. 12, 1983.

Decided April 27, 1983.

Reconsideration Denied June 10, 1983.

D. Lawrence Olstad, Portland, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

NEWMAN, Judge.

Defendant appeals his conviction for unlawful possession of a controlled substance. ORS 475.992. He assigns as error denial of his motion to suppress evidence seized from him at the Portland airport. He contends that: (1) the police lacked reasonable suspicion to stop and detain him at the airport; (2) the stop exceeded permissible limits; (3) the warrantless seizure of defendant's shoulder bag during the stop was unlawful; (4) a subsequent drug-detection dog's "sniff" of the bag constituted an illegal search; and (5) the resulting search warrant was void for lack of probable cause. Because we find that the warrantless seizure of defendant's shoulder bag at the Portland airport in connection with the stop was unlawful, the motion to suppress should have been allowed, and we reverse.

The Portland Airport Interagency Narcotics Team ¹ had information from informants that defendant's mother, Mrs. Nancy Dupay, and others were involved in cocaine and marijuana trafficking. According to the information, Mrs. Dupay and her associates would travel from Portland by air, pick up narcotics and return by air to Portland, and, in September, 1981, Mrs. Dupay was making arrangements for an imminent shipment of cocaine. Defendant and his mother came under the surveillance of Port of Portland police officer Nastasia and Multnomah County Deputy Sheriff Wells while on Concourse K at the Portland airport at about 5 p.m. on October 1, 1981. Officer Nastasia knew the woman to be Mrs. Dupay. The officers knew that Mrs. Dupay had been previously arrested for narcotics offenses. Accompanying her was a man later identified as defendant. He carried a shoulder bag and a photo album. Wells noticed that, as defendant and his mother stood in the concourse, both of them periodically glanced around and looked at the people around them.

Defendant, accompanied by his mother, purchased a ticket for cash. With the assistance of a Western Airlines ticket agent, Wells learned that defendant's ticket showed an itinerary from Portland to San Francisco on Western Airlines, coach fare; from San Francisco to Las Vegas on Northwest Airlines, first class fare; from Las Vegas to Los Angeles on Western Airlines and from Los Angeles to Portland on Western Airlines. The entire trip would take less than 24 hours and would end in Portland at 3:30 p.m. the next afternoon. The ticket agent also told Nastasia that he had advised defendant and Mrs. Dupay that they did not have to pay a first class fare from San Francisco to Las Vegas just to save 30 minutes' arrival time in Las Vegas and that defendant appeared to be nervous.

Nastasia followed Mrs. Dupay as she left the airport. Mrs. Dupay walked rapidly to the parking lot. While in the tunnel leading to the parking lot she turned and made eye contact with everyone in the tunnel, including Nastasia.

On the morning of October 2, 1981, Wells called the drug unit at the Los Angeles airport and asked them to look for defendant on the incoming Western Airlines flight from Las Vegas and the connecting flight to Portland. Federal Agent Hautley in Los Angeles observed defendant making the flight transfer. He also told Wells that there was a large influx of narcotics being distributed out of Las Vegas into the Los Angeles area and that both cities were distribution points. Federal Agent Gutensohn in Portland ran a check and found defendant had a previous controlled-substance arrest.

When defendant left the airplane at Portland on October 2, 1981, at about 3 p.m., Mrs. Dupay and another woman were waiting for him. Nastasia observed that, as the women waited for defendant to arrive, they each frequently looked around the surrounding area. On leaving the airplane, defendant carried the same shoulder bag and picture album the officers saw him carrying the previous day.

Oregon State Police Trooper Stein and Gutensohn approached defendant as he reached the bottom of the escalator. No arrest warrant or search warrant had been issued. Agent Gustensohn asked defendant if he had any objection to speaking with the officers at the police office about 20 feet away. There were a large number of people walking around them as they stood at the escalator. Defendant responded, "That's fine," and went with the officers into the police office.

Gutensohn asked defendant for consent to search his shoulder bag and photo album. Defendant refused and asked if he was under arrest. Gutensohn told him that he was free to go but that the officers were going to hold the bag until a drug detection dog arrived. Defendant left. His contact with the officers had lasted about five minutes. The police held the shoulder bag until a drug detection dog arrived at the airport and "sniffed" the unopened bag approximately an hour and 20 minutes later. On sniffing the bag at the airport, the dog "alerted." Wells obtained a telephonic search warrant from a magistrate. ² On opening the shoulder bag pursuant to the search warrant, the police found cocaine.

The court denied defendant's motion to suppress. Defendant waived his right to a trial by jury and was found guilty. The trial court found: the "stop" took place at the airport escalator; there was reasonable suspicion to believe that defendant had committed a crime and, therefore, the stop was proper; it was reasonable to move defendant to the Port of Portland Police office; the police had the right to detain the bag temporarily for investigative purposes; the activity of the dog was not a search; on the alert by the dog there was probable cause to search the bag; the affidavit for the search warrant stated probable cause; and the search warrant was properly issued.

Assuming, without deciding, that the stop was justified by reasonable suspicion that defendant had committed a crime and that the inquiry was conducted "in the vicinity of the stop," nonetheless we hold that the warrantless seizure of defendant's shoulder bag in connection with the stop was unlawful. The trial court described the seizure of defendant's shoulder bag for approximately 1 hour and 20 minutes until the "dog sniff" as a temporary detention for investigative purposes. The state concedes, however, that it was a seizure in the constitutional sense, see United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), and does not claim that it was based on probable cause. The state maintains, however, that the seizure was lawful, because it was based on a reasonable suspicion that defendant had committed a crime. It argues that we should balance the minimal intrusion on defendant's Fourth Amendment rights against "the practical necessities of law enforcement agents engaged in the difficult and important job of controlling drug traffic through airports."

Warrantless searches and seizures are "per se unreasonable," subject to a few specifically established and well-delineated exceptions. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962). Except when consent is given, both the state and federal constitutions require a threshold showing of probable cause for any search or seizure, with or without a warrant. Exigent circumstances alone cannot justify a seizure. ³ Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979); Chambers v. Maroney, 399 U.S. 42, 51, 90 S.Ct. 1975, 1981, 26 L.Ed.2d 419 (1970); State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966); State v. Hoggans, 35 Or.App. 669, 582 P.2d 466 (1978). The state argues that because "an investigative detention of a person can be based on reasonable suspicion * * * (ORS 131.615(1)) * * * there is no reason why detention of physical items * * * cannot be based on the same standard. Accordingly, the same reasonable suspicion which justified defendant's stop also sufficed for the detention of the bag." ⁴

ORS 131.605 to ORS 131.625 was enacted following the United States Supreme Court decision in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). These sections provide:

"As used in ORS 131.605 to 131.625, unless the context requires otherwise:

"(1) 'Crime' has the meaning provided for that term in ORS 161.515.

"(2) A 'frisk' is an external patting of a person's outer clothing.

"(3) 'Dangerous weapon,' 'deadly weapon' and 'person' have the meaning provided for those terms in ORS 161.015.

"(4) 'Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place he acts as authorized in ORS 131.605 to 131.625.

"(5) A 'stop' is a temporary restraint of a person's liberty by a peace officer lawfully present in any place." ORS 131.605.

"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.

"(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer's suspicion." ORS 131.615.

"(1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.

"(2) If, in the course of...