State v. Smith

CourtCourt of Appeals of Oregon
Writing for the CourtLANDAU; WARREN; DEITS; EDMONDS; De MUNIZ
Citation939 P.2d 157,148 Or.App. 235
Decision Date28 May 1997
PartiesSTATE of Oregon, Respondent, v. Desmond Uther SMITH, Appellant. 93CR815; CA A86622. Court of Appeals of Oregon, In Banc

Page 157

939 P.2d 157
148 Or.App. 235
STATE of Oregon, Respondent,
v.
Desmond Uther SMITH, Appellant.
93CR815; CA A86622.
Court of Appeals of Oregon,
In Banc.
Argued and Submitted Jan. 31, 1996.
Resubmitted In Banc Jan. 14, 1997.
Decided May 28, 1997.

Page 158

Mary M. Reese, Salem, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

[148 Or.App. 237] LANDAU, Judge.

In State v. Juarez-Godinez, 135 Or.App. 591, 604-05, 900 P.2d 1044, rev. allowed 322 Or. 360, 907 P.2d 247 (1995), we held that the use of a trained narcotics detection dog is a search within the meaning of Article I, section 9, of the Oregon Constitution. Left open in that decision was the question whether such "dog-sniff" searches are subject to the warrant and probable cause requirements of Article I, section 9, or are subject to some lesser standard based on the minimal nature of the intrusion involved in such searches. That question is before us in this case.

Defendant argues that the trial court erred in denying his motion to suppress evidence of narcotics discovered by means of a dog sniff. He argues that, because the dog sniff occurred without a warrant and without satisfying any recognized exception to the warrant requirement, the search was unconstitutional, and the subsequent seizure of evidence should have been suppressed. The state acknowledges that no warrant preceded the dog-sniff search, and it does not contend that it had probable cause to believe that evidence of narcotics would be found prior to the dog sniff. It nevertheless argues that the evidence need not be suppressed, because there was reasonable suspicion that evidence of a crime would be found. The state argues that we should, in effect, create an exception to the warrant and probable cause requirements of the constitution based on the minimally intrusive nature of dog-sniff searches.

We conclude that the Oregon Constitution does not impose the warrant and probable cause requirements on the basis of relative levels of intrusiveness but, rather, on the existence of a "search" for evidence. Because a dog-sniff search is a search for evidence within the meaning of Article I, section 9, the warrant and probable cause requirements apply, and, because the dog-sniff search in this case occurred without satisfying those constitutional requirements, we agree with defendant that the evidence seized from the locker should have been suppressed.

In the summer of 1993, a confidential informant told Detective Plaster, of the Brookings Police Department, that [148 Or.App. 238] defendant was growing marijuana in the Brookings area and that he stored the marijuana in a storage unit in Brookings. In October 1993, the informant told Plaster that defendant had just harvested his marijuana for the year, that defendant would be in Brookings during specific weekends in October and that he was still renting the storage unit in Brookings. Later that month, the police searched defendant's house in Klamath Falls pursuant to a warrant. They seized marijuana

Page 159

and cash, and defendant was arrested and jailed.

Following defendant's arrest, Plaster called the manager of the storage facility identified by the informant and asked if defendant rented a storage unit there. The manager said that he was renting a unit to defendant at that time. Plaster and Detective Gardiner then went to the storage facility accompanied by Nitro, a dog that was trained to detect drugs. Plaster went to the manager's office to verify that defendant was renting storage unit number 125. The manager said that he was, but told Plaster that he could not search the unit until he had obtained a search warrant. Plaster did not ask the manager for consent to allow Nitro to sniff for drugs at the storage facility.

Meanwhile, Gardiner took Nitro into that part of the facility where the storage units were located and commanded the dog to search for drugs in the row that contained defendant's unit. Nitro "alerted," that is, indicated the presence of drugs, at unit 125. Plaster then asked the manager to place a lock on that unit while they secured a search warrant. The officers returned with a warrant to search the unit and, during the search, found marijuana and implements used to cultivate marijuana. Plaster testified that he knew that defendant had been taken into custody in Klamath Falls, but that defendant had access to a telephone even though in custody and that, in his experience, individuals in custody sometimes use telephones to contact accomplices and to continue to direct their drug operations.

The trial court concluded that the dog sniff was not a search. The court also concluded, relying on State v. Hansen, 295 Or. 78, 664 P.2d 1095 (1983), State v. Quinn, 290 Or. 383, 623 P.2d 630 (1981), and United States v. Allard, 634 F.2d [148 Or.App. 239] 1182 (9th Cir.1980), that, even if the padlocking of the storage unit by the officers did constitute a seizure, the evidence should not be suppressed.

On appeal, defendant assigns error to the court's denial of his motions to suppress. He argues that the trial court erred in denying his first motion because deploying the drug-sniffing dog was a search that required either a warrant or an exception to the warrant requirement. He argues that the court erred in denying his second motion because placing a padlock on defendant's storage unit was a seizure that also required either a warrant or an exception to the warrant requirement. Because we agree with defendant on his first argument, we do not address his second.

Defendant argues that a dog-sniff search, like any other search for evidence, must comply with the requirements of Article I, section 9; namely, that the search must be preceded by a warrant issued upon probable cause or be subject to a recognized exception to the warrant requirement. The state argues that, although a dog-sniff search may be a search within the meaning of Article I, section 9,

"[g]iven that a dog sniff is a relatively minimal intrusion upon privacy and is a valuable surveillance technique for the police, this court should hold that a warrantless dog sniff search is lawful if based on a reasonable suspicion that the item or area to be searched contains evidence of a crime."

In support of that argument, the state relies on a previous decision of this court, State v. Kosta, 75 Or.App. 713, 708 P.2d 365 (1985), aff'd on other grounds 304 Or. 549, 748 P.2d 72 (1987), in which the state contends "this court appeared to embrace" its proposed view of the meaning of Article I, section 9. It also relies on decisions from other jurisdictions and on the views of Professor Wayne LaFave. Judge Deits joins the state in each of those arguments.

Article I, section 9, of the Oregon Constitution provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers and effects, against unreasonable search, or seizure; and no warrant shall issue but [148 Or.App. 240] upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

The Oregon Supreme Court has explained the requirements of that section in the following straightforward terms:

Page 160

" 'Normally, in order for a search to be constitutionally permissible, the police must have a search warrant. * * *

" 'A warrantless search by the police is "reasonable" under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement.' "

State v. Nagel, 320 Or. 24, 31, 880 P.2d 451 (1994) (quoting State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992) (citations omitted)). The analysis involves no examination of relative levels of intrusiveness, no balancing of governmental law enforcement and individual privacy interests. If a given action constitutes a search for evidence within the meaning of Article I, section 9, ordinarily, it must be preceded by a warrant supported by probable cause, and short of that, it must be supported by an applicable exception to the warrant requirement. Our research has uncovered no Oregon appellate decision recognizing a "dog-sniff search exception," which permits a search to proceed upon mere reasonable suspicion that evidence of a crime may be found, and none of the state's arguments persuade us that we should create such an exception. 1

First, as to the Kosta decision, the state is mistaken when it suggests that we created such an exception in that [148 Or.App. 241] case. In Kosta, which was decided more than a decade before Juarez-Godinez, we expressly refrained from holding that a dog sniff is a search. We held instead that, whatever a dog sniff is, it may be supported by reasonable suspicion. That could mean either of two things: (1) that a dog sniff is not a search and therefore may proceed on mere reasonable suspicion, or (2) that a dog sniff is a search but nevertheless may proceed upon mere reasonable suspicion. It bears emphasis that we did not explain which of those two rationales supported our decision in Kosta. The opinion flatly stated that "we need not decide this question." Kosta, 75 Or.App. at 719 n. 10, 708 P.2d 365. It suggested that, on the one hand, a dog sniff might not be a search, because no physical penetration of the searched package was involved. Id. It then suggested that, on the other hand, it might be a search, because technological enhancements generally are regarded as searches. Id. Given that we expressly refrained from deciding the question, we do not now read Kosta as if we actually had decided it.

Second, concerning the trend of other state decisions, there can be no question that a majority of other...

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3 practice notes
  • State v. Juarez-Godinez, JUAREZ-GODINE
    • United States
    • Supreme Court of Oregon
    • August 21, 1997
    ...608, 900 P.2d 1044. I also agree with the dissent authored by Judge Edmonds and joined by Judges Riggs and De Muniz in State v. Smith, 148 Or.App. 235, 260, 939 P.2d 157 (1997). The dog-sniff in this case was not a search for purposes of Article I, section [326 Or. 26] IV. PROBABLE CAUSE ES......
  • State v. Smith
    • United States
    • Supreme Court of Oregon
    • July 24, 1998
    ...affirmative, holding that any evidence obtained as a consequence of a warrantless dog sniff must be Page 644 suppressed. State v. Smith, 148 Or.App. 235, 246, 939 P.2d 157 (1997). The state petitioned for review, arguing that, even without prior judicial authorization, use of a dog to sniff......
  • State v. Smith
    • United States
    • Supreme Court of Oregon
    • September 23, 1997
    ...947 944 P.2d 947 326 Or. 57 State v. Desmond Uther Smith NOS. A86622, S44403 Supreme Court of Oregon Sept 23, 1997 148 Or.App. 235, 939 P.2d 157 ALLOWED. ...
3 cases
  • State v. Juarez-Godinez, JUAREZ-GODINE
    • United States
    • Supreme Court of Oregon
    • August 21, 1997
    ...608, 900 P.2d 1044. I also agree with the dissent authored by Judge Edmonds and joined by Judges Riggs and De Muniz in State v. Smith, 148 Or.App. 235, 260, 939 P.2d 157 (1997). The dog-sniff in this case was not a search for purposes of Article I, section [326 Or. 26] IV. PROBABLE CAUSE ES......
  • State v. Smith
    • United States
    • Supreme Court of Oregon
    • July 24, 1998
    ...affirmative, holding that any evidence obtained as a consequence of a warrantless dog sniff must be Page 644 suppressed. State v. Smith, 148 Or.App. 235, 246, 939 P.2d 157 (1997). The state petitioned for review, arguing that, even without prior judicial authorization, use of a dog to sniff......
  • State v. Smith
    • United States
    • Supreme Court of Oregon
    • September 23, 1997
    ...947 944 P.2d 947 326 Or. 57 State v. Desmond Uther Smith NOS. A86622, S44403 Supreme Court of Oregon Sept 23, 1997 148 Or.App. 235, 939 P.2d 157 ALLOWED. ...

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