State v. Slowikowski

• Decision Date: 30 September 1988
• Docket Number: C-2
• Citation: 307 Or. 19,761 P.2d 1315
• Parties: STATE of Oregon, Respondent on Review, v. Mark J. SLOWIKOWSKI, Petitioner on Review. TC 85-3779-; CA A39836; SC S34625.
• Court: Oregon Supreme Court

Page 1315

761 P.2d 1315

307 Or. 19

STATE of Oregon, Respondent on Review, v. Mark J. SLOWIKOWSKI, Petitioner on Review.

TC 85-3779-C-2; CA A39836; SC S34625.

Supreme Court of Oregon In Banc.

Argued and Submitted April 5, 1988.

Decided Sept. 30, 1988.

Carl Caplan, Medford, argued the cause and filed the petition on behalf of petitioner on review.

Brenda J. Peterson, Asst. Atty. Gen., Salem, argued the cause on behalf of respondent on review. With her on the response were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

GILLETTE, Justice.

Defendant was charged with possession of a controlled substance after sheriff's deputies discovered approximately 20 pounds of marijuana in a storage locker that he had rented and padlocked. The marijuana initially was discovered by "Breaker," a police dog trained to detect and signal the presence of marijuana. Defendant filed a motion to suppress the marijuana on the ground that Breaker's olfactory inspection of his locker without a warrant was an illegal search under the Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution. ¹ The trial court denied the motion and, after a stipulated facts trial, defendant was convicted. The Court of Appeals affirmed. State v. Slowikowski, 87 Or.App. 677, 743 P.2d 1126 (1987) (en banc ). We also affirm.

Defendant's locker was located in a "mini-storage" facility containing approximately 221 lockers. Deputy Fillmore of the Jackson County Sheriff's Office Canine Unit testified that he requested and received permission from the owners of the facility to use the facility for "training and searching" purposes. To prepare for the training exercise, Fillmore placed a bag of marijuana in an unused locker in the facility. When Breaker was released to find the marijuana planted by Fillmore, he unexpectedly "alerted," or signalled the presence of marijuana, at defendant's locker. Fillmore contacted Deputy Kennedy, a narcotics investigator, who went to the facility. The officers walked Breaker through the facility, and the dog again alerted at defendant's locker. Kennedy then got down on his hands and knees and sniffed at the door of defendant's locker. He detected a distinct odor of marijuana. The following day, he obtained a warrant to search the locker. The ensuing search disclosed the marijuana in this case.

The arguments of the parties closely parallel the various lines of analysis followed by members of the Court of Appeals. We therefore set out those lines of analysis at some length. The Court of Appeals majority held that the dog sniff that discovered defendant's marijuana was not a search under either the state or the federal constitution. The majority noted that the sniff did not intrude into the locker itself but merely detected odors emanating into the common area. The odors emanating from the locker, in the majority's view, "announced" the locker's contents so that Breaker's perception of those odors did not constitute a search. Cf. State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986) ("No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents"). The majority further concluded that a dog's superior sense of smell is not a "technological enhancement" of the human senses. 87 Or.App. at 683-85, 743 P.2d 1126.

Buttler, J., specially concurring, argued that, on the facts of this case, it was unnecessary to decide whether the use of a trained dog to detect narcotics is a search "under any and all circumstances * * * ", noting that:

"In this case, the officers were not out on a fishing expedition to seek out marijuana; the trial court found that they were engaged in a training exercise with 'Breaker' at the mini-storage facility where they had the owner's permission. While engaged in the training exercise, 'Breaker' unexpectedly alerted to defendant's storage unit, thereby indicating that it contained contraband. Under those limited and unusual circumstances, I would accept the 'plain smell' doctrine, because: (1) the officers were where they had a right to be and were not engaged in a general search or fishing expedition, and the discovery of the scent was inadvertent; and (2) it was accomplished without the use of any technological enhancement. Because dogs with more sensitive olfactory nerves have been used in police work for centuries, I do not consider their use in this instance as a technological enhancement."

87 Or.App. at 686-87, 743 P.2d 1126 (Buttler, J., specially concurring).

Young, J, joined by Joseph, CJ, and Newman, J, dissented. The dissenters would have held that the dog sniff was a search of the contents of defendant's locker and that, in the absence of reasonable suspicion to believe that contraband would be found there, the search was illegal. The dissent argued that, although the dog sniff did not physically invade the locker, it nevertheless violated defendant's privacy interest:

"If something that is 'plain' to a dog or to a machine, but not to a human, is not private, there can be few protected privacy interests. Although a transparent container may announce its contents to a human observer so that there is no privacy interest in them, see State v. Owens, supra, 302 Or at 206, , a container whose contents are unknown until some nonhuman instrument is brought to bear has announced nothing. Its contents are not in plain view, plain smell or plain feel. If the plain view/smell doctrines mean anything when applied to a closed container, it must be that a person using only unenhanced human senses must be able to discover the contents of the container without actually intruding into it. Breaker's nose was an enhancement of normal human senses, and it invaded defendant's protected privacy interest in the storage locker." 87 Or.App. at 688-89, 743 P.2d 1126 (Young, J., dissenting) (footnote omitted).

The dissenting opinion also notes that:

"Of course, if the officers had smelled the marijuana themselves, their perceptions, not Breaker's would have justified the warrant. However, that is not what happened. Although Deputy Kennedy did eventually smell the marijuana, Breaker directed him to it. Breaker did not simply allow Kennedy to observe better something that he had already discerned, as a flashlight or binoculars might. * * * Rather, Breaker pointed him in a direction that he would not otherwise have gone. Accordingly, the information which supported the issuance of the search warrant was based on a previous search which violated defendant's privacy rights under Article I, section 9. The taint of that previous search invalidates the later warrants." Id. at 693, 743 P.2d 1126.

At the outset, we must determine whether the officers were legitimately on the premises when the marijuana was detected. In his petition for review, defendant argues that the Court of Appeals majority and specially concurring opinions erred in characterizing the deputies' actions as a training exercise. We understand defendant's argument to be that the officers' real intention was to search for contraband, not to train Breaker, and that such a search would exceed the scope of the consent given by the owners of the facility. See State v. Tanner, 304 Or. 312, 745 P.2d 757 (1987) (holding that, when a person entrusts effects to another, and the police discover those effects in the other's home by means of a search that violates Article I, section 9, the search also violates the entrustor's rights under Article I, section 9).

The trial court below made no express finding whether the officers were authorized to conduct a search in addition to a training exercise, or whether they actually were conducting a search when the marijuana was detected. However, the trial court found that the officers had a right to be where they were when they discovered the marijuana in defendant's locker, because they had the owner's permission to be at the storage facility. Implicitly, therefore, the trial court must have found that the officers were acting within the scope of that consent. Although not a model of clarity or explicitness, the court's findings were adequate.

We next consider whether the officers' discovery of the odor of marijuana from defendant's locker was the result of a search. In State v. Owens, supra, 302 Or. at 206, 729 P.2d 524, this court held:

"Article I, section 9, protects privacy and possessory interests. A 'search' occurs when a person's privacy interests are invaded. When the police lawfully seize a container, they can thoroughly examine the container's exterior without violating any privacy interest of the owner or the person from whom the container was seized. For example, the police can observe, feel, smell, shake and weigh it. Furthermore, not all containers found by the police merit the same protection under Article I, section 9. Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in 'plain view,' outside the confines of any container. Applying the doctrine of 'plain view' to transparent containers, we hold that no cognizable privacy interest inheres in their contents, and thus that transparent containers can be opened and their contents seized. No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents. Under the Oregon Constitution, a lawful seizure of a transparent container is a lawful seizure of its contents."

Defendant's locker "announced its contents" in much the same manner as did the transparent container in Owens. The odor emanating...