State v. Sholedice

• Decision Date: 13 December 2018
• Docket Number: CC 141765 (SC S064787 (Control) ), (CC 141766) (SC S064806)
• Citation: 431 P.3d 386,364 Or. 146
• Parties: STATE of Oregon, Petitioner on Review, v. Nathan Russell SHOLEDICE, Respondent on Review. State of Oregon, Petitioner on Review, v. Michelle Rae Smith, Respondent on Review.
• Court: Oregon Supreme Court

364 Or. 146

431 P.3d 386

STATE of Oregon, Petitioner on Review,

v.Nathan Russell SHOLEDICE, Respondent on Review.

State of Oregon, Petitioner on Review,

v.Michelle Rae Smith, Respondent on Review.

CC 141765 (SC S064787 (Control) ), (CC 141766) (SC S064806)

Supreme Court of Oregon.

Argued and submitted October 17, 2017, at Baker City High School, Baker City, Oregon.

December 13, 2018

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

George W. Kelly, Eugene, argued the cause and filed the brief for respondent on review Sholedice.

Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for respondent on review Smith. Also on the brief was Ernest G. Lannet, Chief Defender.

Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, and Nelson, Justices.^**

KISTLER, J.

This case presents two questions. The first is whether a United States Postal Service (USPS) inspector seized a package in violation of the Oregon Constitution when she took the package out of a mail hamper and put it on the floor so that a drug-detection dog could sniff it. The second is whether another postal inspector seized the package when, after the dog had alerted to the package, he took it to the addressee's house and asked for consent to search it. Focusing on the first issue, the trial court ruled that no seizure had occurred because defendants had no constitutionally protected possessory interest in the package while it was in the mail. The Court of Appeals reversed, reasoning that defendants had a constitutionally protected property interest in the package, which the first postal inspector significantly interfered with when she took the package out of the mail hamper. State v. Sholedice , 283 Or. App. 346, 386 P.3d 701 (2017) (per curiam); State v. Smith , 282 Or. App. 208, 384 P.3d 175 (per curiam), on recons , 283 Or. App. 422, 387 P.3d 499 (2017) (per curiam). We allowed the state's petitions for review and now reverse the Court of Appeals decisions and affirm the trial court's judgments.

These consolidated cases involve two defendants, Sholedice and Smith. On May 27, 2014, Sholedice mailed a package from Las Cruces, New Mexico, to Smith in Lincoln City, Oregon. He paid the USPS approximately $63 to mail the package by express mail with a guaranteed delivery date of May 29, 2014. The label on the package was handwritten, addressed to "M. Smith" in Lincoln City, and contained a signature waiver, which meant that the package could be left at the address without the addressee signing for it.

Craig is a federal postal inspector who works at a mail processing facility near the Portland airport. Hampers full of mail come into the processing facility each day, filled with packages destined for various locations throughout Oregon. Pursuant to federal policies, Craig sorts through the hampers looking for prohibited mail—i.e. , mail that contains poison, controlled substances, suspicious powders, bombs, and "injurious objects," such as knives, guns, poisonous insects, and snakes. As she explained and the trial court found, she looks for packages containing prohibited mail "to keep our—our carriers safe."¹

The USPS has established protocols for determining which packages may contain prohibited materials, and Craig sorted packages based on those protocols. On the morning of May 28, Craig came across Sholedice's package. She noticed that four indicators set out in the USPS protocols were present. First, Sholedice's use of express mail was unusual. Express mail is ordinarily used by businesses; it is not typically used for mailing packages from one person to another. Second, Sholedice paid more than was necessary to send the package. He paid approximately $63 to mail the package from New Mexico to Oregon by express mail when first-class or priority mail could have gotten the package to Oregon in the same amount of time at a fraction of the cost.² Third, the label included a signature waiver. Craig testified that most senders use express mail to ensure that the letter or package has been received by having the addressee sign for it. She explained that a sender may waive the signature requirement either because "they don't want [the mail carrier] to have a face to face with [the addressee]" or because they do not want the addressee to know that the package has arrived.³ Finally, Craig testified that senders who use express mail ordinarily use the addressee's full name rather than an initial and last name, such as "M. Smith."

Not only did Sholedice's package stand out for those reasons, but Craig also knew that Oregon is a source state for exporting marijuana and a destination state for receipt of drug proceeds. For those reasons, she took the package out of the hamper and put it on the floor of the sorting facility along with six other similarly-sized packages, which Craig also took out of the mail, so that Nikko, a trained drug-detection dog, could sniff them. Nikko and his handler did not take part in sorting the packages or in selecting which packages would be put in the "package lineup," nor were they aware of which package had aroused Craig's suspicions. Their role was limited to determining if any packages contained drugs. As the handler testified, the USPS does not have "K-9s, and so they ask mostly local agencies to provide that tool for them to screen mail."⁴

Nikko sniffed the seven packages and alerted on the package that Sholedice had sent Smith. At the suppression hearing, Nikko's handler explained that Nikko has been certified every six months to detect four drugs: methamphetamine, marijuana, cocaine, and heroin. He testified that, during 4,000 training and certification searches, Nikko has alerted incorrectly only eight times. After Nikko alerted on defendants' package, a person checked the address in Lincoln City and found that it was listed on a registry for medical marijuana grows.

Later, at the suppression hearing, Craig was asked a hypothetical question. She was asked on cross-examination what she would have done if Nikko had not alerted on the package. She testified that the package would not have continued "in the normal course of the mail." Rather, she "would have done a further investigation on it." When asked on redirect what she meant by "further investigation," Craig explained that "we would try to—try to get ahold of M. Smith or Nathan * * * Sholedice" and "talk to them a little bit about the parcel to get some more information."

Craig was not able to take the package to Lincoln City. She accordingly asked another federal postal inspector, Helton, to deliver the package. Helton testified that, although he does not ordinarily deliver mail, he is authorized, as a postal inspector, to do so. On the way to Lincoln City, Helton contacted a Lincoln City detective to serve as a backup. When Helton delivered the package, both he and the detective were wearing plain clothes. Neither displayed a weapon. No patrol car was parked in view of the house. When they arrived at the address in Lincoln City, Helton walked up to the front door. As he did so, he noticed "the distinct and pungent smell" of marijuana.

When he knocked, Michelle Smith came to the door and stepped outside the house. Helton spoke with her briefly. He told her that he was a federal postal inspector and that his job was to investigate illegal activity with the United States Postal Service. He asked her if she were expecting an express mail package, and she said that she was. He then asked "if Nathan [Sholedice] was at home," and she said that he was.⁵ He told her that he was going to be "upfront" with her, that he believed that the parcel contained either controlled substances or money, and he "asked for her permission to open the parcel and to examine the contents of the parcel." She replied, "Yeah." Helton asked if there was money in the parcel, and Smith "nodded her head affirmatively, yes."

Helton then asked to speak with Sholedice. Smith asked Sholedice to come out of the house, and Helton spoke with him separately. Helton told Sholedice that he was a federal postal inspector and that he believed that the package contained contraband or money. He then asked Sholedice for his consent to open the package. Sholedice replied, "Yeah, you can open it if you need to." When Sholedice said that, Helton told Sholedice that he "was asking for his permission to open the parcel and search the contents and that I would not open the parcel if he told me that I could not open it." Sholedice responded, "You're going to open it up eventually anyway. Go ahead." Given that response, Helton opened the package, where he found $15,240 vacuum wrapped in plastic, which in turn was wrapped with duct tape. The money was further wrapped inside clothing.

Helton explained that, throughout their conversation, Smith and Sholedice were pleasant. He described them as "calm, *** not particularly upset or angry," and he thanked them for being reasonable under the circumstances. Based on what he found in the parcel and defendants' answers concerning their medical marijuana grow, Helton asked Smith and Sholedice for consent to search their house. Both Smith and Sholedice said "no," and Helton responded that he "totally understood, [and] that [he] respected their decision to deny consent." At that point, the Lincoln City detective left to apply for a state warrant to search the home.

Later, at the suppression hearing, defendants also asked Helton a hypothetical question: If Sholedice had asked Helton to return the package to him when they first spoke—namely, after Helton knew that Nikko had alerted to the package and that the address in Lincoln City was registered as a medical marijuana grow but before Smith had consented to a search—would Helton have done so? Helton answered "no."...