State v. Kosta

• Court: Court of Appeals of Oregon
• Writing for the Court: BUTTLER
• Citation: 75 Or.App. 713,708 P.2d 365
• Decision Date: 10 January 1986
• Parties: STATE of Oregon, Respondent, v. James Wayne KOSTA, Appellant. C82-12-38992; CA A28823.

Page 365

708 P.2d 365 75 Or.App. 713 STATE of Oregon, Respondent,
v.
James Wayne KOSTA, Appellant. C82-12-38992; CA A28823. Court of Appeals of Oregon,
In Banc. Argued and Submitted March 16, 1984.
Resubmitted In Banc Jan. 16, 1985.
Decided Oct. 16, 1985.
Reconsideration Denied Jan. 10, 1986.

[75 Or.App. 714]

Page 366

David Lawrence Olstad, Portland, argued the cause for appellant. With him on the brief was Leland R. Berger, Portland.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

[75 Or.App. 715] BUTTLER, Judge.

Defendant appeals his conviction for possession of cocaine, ¹ contending that the trial court erred in denying his motion to suppress evidence, in holding that testimony of police officers was sufficient to uphold the conviction and in refusing to analyze the issues presented by applying state law first. We affirm.

The Portland police received several anonymous telephone calls advising that packages of cocaine were being shipped regularly from San Diego to the Portland area via Federal Express. Some, but not all, of the successive calls added new information. Finally, on December 6, 1982, the anonymous caller stated that a package containing cocaine would be delivered by Federal Express to Portland from San Diego on December 17, 1982, and could be addressed to Tracy Van Horn at 3323 N.E. Elrod Road. Acting on that information, the police went to Federal Express and intercepted a package addressed to John Morino in care of Van Horn at the latter's address. Approximately two hours later they placed it at random among other packages before a dog trained in narcotics detection; the dog alerted to the package. After a search warrant was obtained, the package was opened and was found to contain white powder, which field tests determined to be cocaine.

The package was re-sealed, and the officers, dressed as Federal Express employes, delivered it to Van Horn, who was arrested when he identified himself and stated that he knew what was in the package. He said that the package was not intended for him and agreed to contact the person who was to pick it up and to attempt to deliver it. After a telephone call, defendant arrived alone in his car, took the package from Van Horn, indicated that he knew what it contained, locked it in his trunk and attempted to leave. The officers arrested him, took his keys and opened the locked trunk. Twenty minutes later the package was actually seized from the trunk, from which the officers also seized an alkaloid kit, which can be used to test cocaine.

Following the court's denial of defendant's motion to [75 Or.App. 716] suppress, he waived a jury and stipulated to the facts presented during the hearing on the motion to suppress, as supplemented by exhibits and stipulations. The court found defendant guilty of possession of a controlled substance.

Page 367

Defendant's first assignment ² is that the court erred in failing to grant his motion to suppress evidence. He asserts that he had a legitimate expectation of privacy in the package that was infringed by the searches and seizures that occurred both before and after his arrest, in violation of both the state and federal constitutions. The state conceded at the hearing on the motion that defendant had a legitimate expectation of privacy in the evidence that was obtained from the trunk of his car, but contends that he had no such expectation before the package was delivered to him. The issue, as framed by the parties, is whether defendant had a legitimate expectation of privacy in the package while it was in the possession of Federal Express or Van Horn so that he may challenge all of the evidence obtained before he took possession of it. That issue is posed under both Article I, section 9, of the Oregon Constitution and the federal Fourth Amendment.

Although there is some justification for the parties' assumption that the analysis under both the state and federal constitutional provisions is that enunciated in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), see, e.g., State v. Chinn, 231 Or. 259, 373 P.2d 392 (1962); State v. Caraher, 293 Or. 741, 653 P.2d 942 (1982); State v. Lowry, 295 Or. 337, 667 P.2d 996 (1983); State v. Perry, 298 Or. 21, 688 P.2d 827 (1984), the Katz analysis has undergone something akin to metamorphosis, culminating in Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). ³ Accordingly, even if we were to follow the federal analysis in analyzing rights under the Oregon Constitution, ⁴ we would not start with the issue as it is framed by the parties.

[75 Or.App. 717] Assuming that defendant had a protectable interest ⁵ in the package, whether that interest is characterized as one of property or one of privacy, the question is whether the interception of the package at Federal Express was a constitutionally prohibited intrustion into that interest. Defendant contends that the police did not have probable cause to seize the package in the first instance, that the dog sniff constituted a search and that the warrant was invalid, because it was obtained as a result of those unlawful acts.

Defendant recognizes that United States v. Place, 462 U.S. 696, 103 S.Ct. 2637, 77 L.Ed.2d 110 (1983), "holds" that a dog sniff under the circumstances here is not a search within the meaning of the Fourth Amendment ⁶ and that a temporary detention of the package on reasonable suspicion that it contains contraband does not violate that amendment. Accordingly, he concedes defeat under the federal constitution, but contends that we should construe the Oregon Constitution to provide more protection to the individual.

The rationale of United States v. Place, supra, is that, because the Fourth Amendment

Page 368

does not prohibit the police from "stopping" a person who they reasonably suspect is about to commit a crime and detaining him for a reasonable time to make reasonable inquiry (see Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)), the temporary detention of a package reasonably suspected to contain contraband for a reasonable time to make further investigation, properly...