State v. Slowikowski

• Decision Date: 04 December 1987
• Docket Number: C-2
• Citation: 87 Or.App. 677,743 P.2d 1126
• Parties: STATE of Oregon, Respondent, v. Mark Joseph SLOWIKOWSKI, Appellant. 85-3779-; CA A39836.
• Court: Oregon Court of Appeals

Page 1126

743 P.2d 1126

87 Or.App. 677

STATE of Oregon, Respondent, v. Mark Joseph SLOWIKOWSKI, Appellant.

85-3779-C-2; CA A39836.

Court of Appeals of Oregon.

Argued and Submitted Sept. 22, 1986.

Resubmitted In Banc March 12, 1987.

Decided Oct. 14, 1987.

Reconsideration Denied Dec. 4, 1987.

Carl Caplan, Medford, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

VAN HOOMISSEN, Judge.

Defendant appeals his convictions on two counts of possession of a controlled substance. ORS 475.992(4). He contends that the trial court erred in denying his motion to suppress evidence because search and arrest warrants were issued based on a prior unlawful search by police using a trained dog. The dispositive issue is whether a dog-sniff is a search. On these specific facts, we conclude that a dog-sniff is not a search. Therefore, we affirm.

Deputy Fillmore and dog handler Forrester conducted a police training exercise at a mini-storage facility with "Breaker," a dog trained to detect the presence of marijuana. ¹ The facility contained 221 rental units, many of which, including defendant's, were secured by personal locks. Fillmore had permission from the facility's owner to use it for training purposes. Fillmore placed marijuana wrapped in plastic in an empty unit and began the training exercise. Breaker unexpectedly "alerted" to defendant's unit. Fillmore notified Deputy Kennedy, a narcotics specialist, who accompanied Fillmore, Forrester and Breaker back to the area. Again, Breaker alerted to defendant's unit. Kennedy then got down on his hands and knees and put his nose to the outside of the unit's door. He smelled a strong odor of marijuana coming from inside. ² The police then obtained a warrant to search the unit and seized almost 20 pounds of marijuana. Later, defendant was arrested and found in possession of hashish. The trial court denied his motion to suppress.

Defendant contends that the trial court erred in denying his motion. He argues that allowing Breaker to sniff his storage unit was a search, not justified by a reasonable suspicion that the unit contained contraband, that violated the state and federal prohibitions against unreasonable warrantless searches. He argues further that the fruit of the poisonous tree doctrine requires suppression of any evidence seized later. See ORS 133.683. He relies on Article I, section 9, of the Oregon Constitution, and on the Fourth Amendment. His argument is grounded on the reasonable expectation of privacy analysis enunciated in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring). ³

The state argues that a dog-sniff is not a search and that no privacy interest was invaded, because defendant could not have any reasonable expectation of privacy in the strong odor of marijuana escaping from his unit which "announced" its contents. See State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986). Alternatively, it argues that, if a dog-sniff is a search, then this search is "reasonable" under the plain smell variant of the plain view doctrine. ⁴ This is a case of first impression in Oregon. But see State v. Kosta, 75 Or.App. 713, 719, 708 P.2d 365 (1985), rev. allowed 300 Or. 545, 715 P.2d 92 (1986). ⁵ We first consider the question under Article I, section 9. State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983).

Most of the courts that have considered the issue have held that a dog-sniff is not a search per se. ⁶ In United States v. Place, supra n. 6, 462 U.S. at 706, 103 S.Ct. at 2644, the United States Supreme Court stated:

"The Fourth Amendment 'protects people from unreasonable government intrusions into their legitimate expectations of privacy.' United States v. Chadwick, 433 US [1,] 7 [97 S.Ct. 2476, 2481, 53 L.Ed.2d 538 (1977) ]. We have affirmed that a person possesses a privacy interest in the contents of personal luggage that is protected by the Fourth Amendment. Id., at 13 . A 'canine sniff' by a well-trained narcotics detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer's rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the sniff discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subjected to the embarrassment and inconvenience entailed in less discriminate and more intrusive investigative methods.

"In these respects, the canine sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the manner in which the information is obtained and in the content of the information revealed by the procedure. Therefore, we conclude that the particular course of investigation that the agents intended to pursue here--exposure of respondent's luggage, which was located in a public place, to a trained canine--did not constitute a 'search' within the meaning of the Fourth Amendment."

That conclusion represents the culmination of an overwhelming trend among the courts. See Comment, "The Constitutionality of the Canine Sniff Search; From Katz to Dogs," 68 Marq L Rev 57, 81 (1984).

Like the United States Supreme Court in Place, many of the lower federal and state courts based their decisions on the peculiarly nonintrusive and discriminating nature of an investigatory dog-sniff. Some analogized the use of trained narcotics dogs to the use of certain sense-enhancing instruments such as binoculars and flashlights that have not been considered searches. See, e.g., Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983) (use of flashlight or field glasses not a search); State v. Berg, 60 Or.App. 142, 652 P.2d 1272 (1982) (flashlight examination not a search); State v. Harp, 48 Or.App. 185, 616 P.2d 564, rev. den. 290 Or. 171 (1980), overruled on other grounds by State v Anspach, 68 Or.App. 164, 682 P.2d 786, rev'd 298 Or. 375, 692 P.2d 602 (1984) (use of binoculars not illegal search).

Other courts have sustained the admissibility of dog-sniff evidence relying on a plain smell variant of the plain view doctrine. Those courts theorize that there can be no reasonable expectation of privacy in the open air and, consequently, no constitutionally protectable interest in odors escaping from a closed container, because the dog sniffs only the air outside the protected property and the defendant has no expectation of privacy in that air. See, e.g., United States v. Goldstein, supra n. 6; United States v. Sullivan, supra n. 6; United States v. Venema, supra n. 6; United States v. Bronstein, supra n. 6; Doe v. Renfrow, 475 F.Supp. 1012 (N.D.Ind.1979); aff'd in part, remanded on other grounds 631 F.2d 91 (7th Cir.1980), cert den. 451 U.S. 1022, 101 S.Ct. 3015, 69 L.Ed.2d 395 (1981); State v. Morrow, supra n. 6; People v. Mayberry, supra n. 6; State v. Groves, 65 Hawaii 104, 649 P.2d 366 (1982); People v. Wolohan, supra n. 6.

A minority of courts have characterized a dog-sniff as a search. See, e.g., United States v. Beale, 674 F.2d 1327 (9th Cir.1982), vacated and remanded, 463 U.S. 1202, 103 S.Ct. 3529, 77 L.Ed.2d 1382 (1983), on rehearing, 736 F.2d 1289 (9th Cir.), cert. denied, 469 U.S. 1072, 105 S.Ct. 565, 83 L.Ed.2d 506 (1984); ⁷ People v. Evans, 65 Cal.App.3d 924, 134 Cal.Rptr. 436 (1977); People v. Unruh, 713 P.2d 370 (Colo.), cert. den. 476 U.S. 1171, 106 S.Ct. 2894, 90 L.Ed.2d 981 (1986).

In People v. Mayberry, supra, a case that presents a much stronger factual context for the defendant than this case, the California Supreme Court explained:

"In our view, the escaping smell of contraband from luggage may be likened to the emanation of a fluid leaking from a container. The odor is detectable by the nose, as the leak is visible to the eye. We discern no constitutionally significant difference in the manner of escape, and conclude that any privacy right is lost when either escapes into the surrounding area." 31 Cal.3d at 342, 182 Cal.Rptr. 617, 644 P.2d 810.

A dog-sniff causes no physical intrusion. It reveals something only by means of an external manifestation. The dog merely perceives an odor in the public domain and relays its perception through an "alert" to its trainer. The dissent recognizes that law enforcement used trained bloodhounds in 1859. Unlike mechanical aids such as x-rays, magnetometers and infrared photography, the dog only reveals contraband by means of the dog's entirely external examination. No "technological enhancement" is involved. The California Supreme Court noted this important distinction in Mayberry. Rejecting a contrary holding in the original opinion in United States v. Beale, supra, on which defendant relies, the California Supreme Court stated:

"[W]ith due respect, we disagree with [Beale's ] conclusion. Beale stressed the sanctity of private luggage, and opined that 'One who reposes his personal effects, including contraband, in a locked suitcase is surely entitled to assume that a trained canine will not broadcast its incriminating contents to the authorities.' * * * To the contrary, one who secretes illegal narcotics in his suitcase has no protectable privacy interest in those narcotics, nor any legitimate objection to an unintrusive method of detection which reacts only to such contraband. As Beale itself acknowledges, detection of narcotics by trained sniffer dogs is a 'minimal invasion of privacy,' involving 'no risk that an innocent person's...