State v. Kosta, No. C82-12-38992

• Court: Oregon Supreme Court
• Writing for the Court: Before PETERSON; CARSON; LENT, J., concurred and filed an opinion in which LINDE; JONES, J., concurred and filed an opinion in which PETERSON; LENT; LINDE; JONES; PETERSON
• Citation: 304 Or. 549,748 P.2d 72
• Docket Number: No. C82-12-38992
• Decision Date: 30 December 1987
• Parties: STATE of Oregon, Respondent on Review, v. James Wayne KOSTA, Petitioner on Review. TC; CA A28823; SC S32356.

Page 72

748 P.2d 72 304 Or. 549 STATE of Oregon, Respondent on Review,
v.
James Wayne KOSTA, Petitioner on Review. TC No. C82-12-38992; CA A28823; SC S32356. Supreme Court of Oregon. Argued and Submitted May 7, 1986.
Decided Dec. 30, 1987.

Page 73

[304 Or. 550] D. Lawrence Olstad, Portland, filed the petition and memorandum in response to questions of the court and argued the cause, for petitioner on review.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause, for respondent on review. With him on the memorandum in response to questions of the court were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and JONES, JJ.

[304 Or. 551] CARSON, Justice.

This case presents three issues under ARTICLE I, SECTION 9, OF THE OREGON CONSTITUTION: (1)¹ Did defendant have a protectable interest violated by an allegedly unlawful search of a package in transit where he was not a sender, an addressee, or an intended recipient of the package; (2) May police officers detain a package in transit without a warrant for purposes of exposure to a trained narcotics detection dog on the basis of reasonable suspicion that the package contains a controlled substance; and (3) May police search an automobile trunk for a package, previously tested positive for cocaine, which police observe being placed in the trunk? We hold that, under the facts of this case, the detention and inspection of the package, even if in violation of Article I, section 9, did not violate the Article I, section 9, rights of defendant; as a result, we need not reach the second issue. We answer the third issue in the affirmative.

FACTS

The facts found by the trial court may be summarized as follows: In December 1982,

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the Portland Police Bureau received several anonymous telephone calls stating that packages of cocaine were shipped regularly from San Diego to Portland via Federal Express. The anonymous caller suggested that three persons were involved. The names given did not include defendant, but did include an individual named Hershel McGraw. On December 16, 1982, an anonymous telephone caller stated that a nine-by-nine inch package wrapped in brown paper and containing cocaine would be delivered by Federal Express to Portland from San Diego on December 17, 1982. The caller further added: "New names: Could be sent to Tracy Van Horn," at a specified address. Acting on this information, the police intercepted a package on a Federal Express delivery truck that was addressed to John Morino in care of Van Horn at the address specified by the anonymous telephone caller. The police then arranged for the services of the [304 Or. 552] Hillsboro Police Department's trained police dog to verify their suspicions regarding the presence of a controlled substance in the package. Approximately two hours later, the police dog arrived and detected the suspected package placed at random among other packages. The police then obtained a telephonic warrant, opened the package and field-tested the contents, which tested positive for cocaine.

The package was then resealed, and police officers, posing as Federal Express employees, delivered the package to Van Horn. Van Horn was arrested when he identified himself and admitted that he knew what was in the package. He said that the package was not intended for him and that he would cooperate in the police investigation. He then telephoned McGraw and stated that he could not deliver the package because his automobile was disabled. McGraw advised Van Horn that arrangements had been made to have a person come and pick up the package. Soon afterwards, defendant arrived alone in his automobile, pulled up in Van Horn's driveway and left his motor and lights on. Defendant went up to Van Horn's doorway, took the package from Van Horn, stated that he knew what was in the package, locked the package in his automobile trunk and began to drive away. Police vehicles then converged in front and in back of defendant's automobile; the officers arrested defendant, took his keys and opened the locked trunk without defendant's consent. Twenty minutes later, officers removed the package from the trunk, along with an alkaloid kit (a device that may be used to test cocaine).

The trial court judge found that defendant was neither the addressee nor the intended ultimate recipient of the package, but that defendant merely picked up the package for someone else. The trial court judge stated that "the evidence which is uncontroverted in the record is that he [defendant] stated he received a phone call from someone by the name of Mike Brown who offered him $50 if he [defendant], would pick up the package for him." The trial court denied the motion to suppress, and, subsequently, in a trial before the court, found defendant guilty of possession of a controlled substance.

[304 Or. 553] DISCUSSION

A. Initial Detention of the Delivery Truck and Exposure of Package to Police Narcotics Detection Dog.

As this court repeatedly has stated, if an intrusion is a "search" or a "seizure," it requires "probable cause and a search warrant or separate justification under one of the few, carefully circumscribed exceptions to the warrant requirement" of Article I, section 9, of the Oregon Constitution. See, e.g., State v. Owens, 302 Or. 196, 205-06, 729 P.2d 524 (1986).

We again note that, unlike the Fourth Amendment exclusionary rule which has been based on deterring police misconduct, exclusions under Article I, section 9, have been based on the personal right to be free from an unlawful search or seizure. State v. Tanner, 304...