State v. Juarez-Godinez

Decision Date21 August 1997
Docket NumberC-21343,R,JUAREZ-GODINE
Citation326 Or. 1,942 P.2d 772
PartiesSTATE of Oregon, Petitioner on Review, v. Rogelioespondent on Review. CC 92; CA A78977; SC S42584.
CourtOregon Supreme Court

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Helen Lenore Cooper, of Ferder, Brandt, Casebeer, Cooper, Hoyt and French, L.L.P., Salem, argued the cause and filed the brief for respondent on review.


GILLETTE, Justice.

This is a criminal case in which defendant is charged with three counts of delivery of controlled substances (heroin, cocaine, and marijuana). The physical evidence in the case was seized pursuant to a search warrant. That warrant was obtained as a result of events that occurred after police stopped a car that defendant was driving. Those events included defendant's arrest on an unrelated charge, a 31-minute delay thereafter, and then an external "sniff" of the car by a trained dog, which led to discovery of drugs in the car.

Before defendant's trial, the trial court issued an order suppressing all evidence obtained from the car, concluding that the detention and the ensuing dog sniff were an unconstitutional seizure followed by an unconstitutional search. 1 On the state's appeal, the Court of Appeals held that there had not been an unlawful detention, but affirmed on the ground that the dog sniff violated defendant's rights under Article I, section 9, of the Oregon Constitution. State v. Juarez-Godinez, 135 Or.App. 591, 900 P.2d 1044 (1995). We allowed the state's petition for review and now affirm, albeit on different grounds.

The following historical facts, taken from the trial court's findings, are supported by the evidence. At approximately 1:25 a.m. on October 13, 1992, Oregon State Police Trooper Burdick stopped defendant's car for exceeding the maximum speed limit. When Burdick approached defendant's car, he noted that defendant and his two passengers were Hispanic and well dressed and that the car contained a number of aromatic air fresheners and no visible luggage. He learned that the occupants were on their way to Tacoma. Defendant identified himself to Burdick (untruthfully) as "Oscar Sanchez." Defendant could not produce a driver license, but did give Burdick a temporary registration for the car.

Burdick ran a computer check on "Oscar Sanchez" and on the person named on the car's registration (who was not present). Burdick learned that there was an outstanding warrant for an Oscar Alverez-Martinez, aka Oscar Sanchez, and that the car's registered owner was on probation for delivery of a controlled substance. Burdick radioed for a backup officer and requested that Senior Trooper Milton and his drug-sniffing dog, "Bud," be summoned to the scene. Shortly thereafter, the requested backup arrived.

At that point (approximately 15 minutes after the initial stop) Burdick arrested defendant for failure to display a valid driver license and placed him in the rear of the police car. Burdick then asked defendant if he could search the car for drugs, weapons, or large amounts of money. Defendant refused to consent. After defendant and his passengers declined to consent to a search of the car, Burdick told them that "Officer Milton was going to come and sniff search the car, and if the dog alerted on the car that I would apply for a search warrant."

At 2:11 a.m., 46 minutes after the initial stop, Trooper Milton arrived with his dog. In the interim, the two passengers, who had been told neither that they were free to leave nor that they had to stay, remained in the vicinity. One of the passengers had a valid driver license, but neither passenger asked to be allowed to drive the car from the scene or to leave in any other way.

Upon Trooper Milton's arrival, Burdick again asked defendant if he could search the car. Defendant again refused to consent. Milton then allowed "Bud" to sniff the exterior of the car. The dog "alerted" at the lower left corner of the passenger door--behavior that, according to Milton, indicated that the dog had detected the odor of a controlled substance. Burdick had the car impounded and applied for a search warrant by an affidavit that reported the foregoing facts. The search warrant was issued and, in the ensuing search, the police discovered substantial quantities of drugs, which led to the present charges.

Defendant moved to suppress the drug evidence, arguing that it was the product of (1) an unlawful detention of the car that he had been driving and (2) a warrantless search of the car, viz., the dog sniff, that was not supported by probable cause or reasonable suspicion. The trial court granted the motion on both grounds.

On the state's appeal, the Court of Appeals affirmed, concluding that the dog sniff constituted an illegal search and that evidence obtained as a result of the dog sniff therefore was properly suppressed. In so holding, the Court of Appeals first considered and then rejected the trial court's alternative basis for suppression--illegal detention of the car. Juarez-Godinez, 135 Or.App. at 595-97, 900 P.2d 1044. Like the Court of Appeals, we deal first with that threshold issue because, if the trial court's ruling is correct in that respect, we need not consider the dog sniff question.

In keeping with our traditional practice, we decide the question before us under the relevant provision of the Oregon Constitution, viz., Article I, section 9. See, e.g., State v. Campbell, 306 Or. 157, 162, 759 P.2d 1040 (1988) (stating principle). At the same time, we note that the recent adoption by the people of Measure 40, a constitutional amendment, may cause a significant change in that practice. Several constitutional issues concerning the validity of Measure 40 have been argued to this court recently. However, we have chosen to dispose of this case before resolving those arguments, because the outcome of this case would be no different, whether or not Measure 40 were applied to it.

Not all governmental intrusions trigger the protections guaranteed by Article I, section 9, of the Oregon Constitution. State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986). Thus, in determining whether a particular governmental action violates Article I, section 9, of the Oregon Constitution, 2 we first must decide whether the action is either a "search" or a "seizure" within the meaning of that section. At this juncture, we are concerned with what defendant asserts was a "seizure" of an effect, i.e., a car that was lawfully in his possession.

Property is "seized," for purposes of Article I, section 9, when there is a significant interference, even a temporary one, with a person's possessory or ownership interests in the property. Owens, 302 Or. at 207, 729 P.2d 524; State v. Tanner, 304 Or. 312, 745 P.2d 757 (1987). Beyond that rather spare definition, our cases do not offer much in the way of explanation: Although they clearly indicate that a "seizure" of property occurs when police physically remove property from a person's possession, State v. Elkins, 245 Or. 279, 422 P.2d 250 (1966), they have not dealt directly with nonphysical acts of interference with property.

We think, however, that our cases pertaining to seizures of persons are instructive. 3 Those cases indicate, for example, that, for purposes of Article I, section 9 "interference" with a person need not be accomplished by means of physical force, but may result from a mere show of authority. State v. Warner, 284 Or. 147, 165-66, 585 P.2d 681 (1978) (police seized defendant when they "asked" him to return to tavern and place identification on table). Our cases show, moreover, that a police officer has seized a person, for purposes of Article I, section 9, if that person believes that he or she has been seized and that belief is objectively reasonable. See, e.g., State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991) (stating proposition); 4 State v. Gerrish, 311 Or. 506, 511, 815 P.2d 1244 (1991) (same). Finally, our seizure-of-person cases hold that any examination into whether an encounter between a police officer and a citizen constitutes a seizure is necessarily a "fact-specific inquiry into the totality of the circumstances of the particular case." Holmes, 311 Or. at 408, 813 P.2d 28.

Those same precepts are helpful in determining when an object has been seized. Just as a person may be seized by a show of authority, so can a piece of property. Just as police conduct with respect to a person is tested according to what a defendant did believe and what an objectively reasonable person would believe under the circumstances, so is police conduct with respect to property. Finally, just as any determination as to whether a person has been seized necessarily involves a fact-specific inquiry, so does the determination as the whether an object has been seized.

With those principles in mind, we turn to the trial court's conclusion that defendant's car was unreasonably "detained," i.e., "seized" in the constitutional sense. In reviewing that conclusion, we are bound by the trial court's factual findings, as long as those findings are supported by evidence in the record. See Warner, 284 Or. at 156-57, 585 P.2d 681 (stating proposition); Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968) (same). Moreover, if the trial court failed to articulate expressly a factual finding on some pertinent issue, we will assume that the facts were decided in a manner consistent with the court's ultimate conclusions, as long as there is evidence in the record, and inferences that reasonably may be drawn from that evidence, that would support such a resolution. See State v. Ehly, 317 Or. 66, 75, 854 P.2d...

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