State v. Smith

• Decision Date: 24 July 1998
• Citation: 327 Or. 366,963 P.2d 642
• Parties: STATE of Oregon, Petitioner on Review, v. Desmond Uther SMITH, Respondent on Review. CC 93CR815; CA A86622; SC S44403.
• Court: Oregon Supreme Court

Page 642

963 P.2d 642

327 Or. 366

STATE of Oregon, Petitioner on Review, v. Desmond Uther SMITH, Respondent on Review.

CC 93CR815; CA A86622; SC S44403.

Supreme Court of Oregon.

Argued and Submitted March 6, 1998.

Decided July 24, 1998.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for Petitioner on Review. David B. Thompson, Assistant Attorney General, Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General, filed the brief.

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

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN and DURHAM, JJ. ^*

GILLETTE, Justice.

This criminal case presents an interesting (and recurring) question: Does Article I, section 9, of the Oregon Constitution, ¹ require police officers to obtain a warrant before using a trained drug-detecting dog to sniff the exterior of a locked storage unit for odors that are imperceptible to the human nose? A majority of the en banc Court of Appeals answered that question in the affirmative, holding that any evidence obtained as a consequence of a warrantless dog sniff must be 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 in the described manner is lawful, either because it is not a search within the meaning of the Oregon Constitution or because it is not subject to the usual "warrant based on probable cause" standard. We allowed the state's petition to consider those and other related issues. We now conclude that use of a dog to sniff property in this manner is not a search for constitutional purposes and, consequently, does not implicate Article I, section 9. We also conclude that defendant's alternative theory justifying suppression--that evidence obtained from the storage unit must be suppressed, because the police unlawfully seized that evidence when they "secured" the unit in anticipation of obtaining a search warrant--is incorrect. We therefore reverse the decision of the Court of Appeals.

In 1993, the Brookings Police Department received information from a confidential informant that defendant, a Klamath Falls resident, had a marijuana growing operation in the Brookings area and that he periodically used a unit in a specified storage facility to store harvested marijuana. Shortly thereafter, the Klamath Falls police arrested and jailed defendant, based on information supplied to them by the same informant and on evidence obtained from a search of defendant's residence. Not long after defendant's arrest, the Klamath Falls police contacted the Brookings police and told them that, according to the informant, defendant still had the same storage unit in Brookings. Officer Plaster of the Brookings police contacted the manager of the storage facility and confirmed that defendant still was renting a storage unit. The manager stated that he would not permit the police to search defendant's unit without a warrant.

Plaster and another police officer, Gardiner, went to the storage facility to "secure" defendant's unit. They took along Nitro, a trained drug-sniffing dog. While Plaster spoke to the facility manager, Gardiner took Nitro to the public area near defendant's unit ² and told him to sniff for drugs. Nitro "alerted" at defendant's unit, suggesting the presence of illegal drugs. The officers asked the manager to place a lock on defendant's unit while they applied for a search warrant. The manager complied. Several hours later, Plaster returned with a warrant, which he had obtained on the basis of his own affidavit describing his contacts with the informant and the Klamath Falls police, and the results of the dog sniff. During the ensuing search, Plaster found and seized marijuana and implements used in marijuana cultivation.

Defendant was charged with manufacture, possession, and delivery of a controlled substance, ORS 475.992. Before trial, he moved to suppress the evidence obtained from the storage unit, arguing that it was obtained unlawfully in two respects: (1) the search warrant was not supported by a sufficient showing of probable cause, because the supporting affidavit relied, in large part, on an unlawful search, viz., a warrantless dog sniff of the unit's exterior; and (2) padlocking of the unit was a warrantless seizure that was not justified by exigent circumstances. The trial court denied the motion, concluding that the police did not need a warrant to conduct the dog sniff because it was not a search and that, even if padlocking the unit were an unlawful seizure, that illegality was unrelated to the later search and seizure conducted pursuant to the warrant. Defendant was tried and convicted. He appealed, assigning error to the denial of his motion to suppress.

As noted, a majority of the Court of Appeals, sitting en banc, concluded that the challenged ruling was reversible error, because the warrantless dog sniff violated Article I, section 9. In reaching that conclusion, the majority considered only the narrow question of whether a "dog sniff" search is subject to the constitutional warrant and probable cause requirements, ultimately answering that question in the affirmative. For the more fundamental proposition that use of a trained drug detection dog is a search within the meaning of Article I, section 9, the majority relied on that court's earlier decision in State v. Juarez-Godinez, 135 Or.App. 591, 900 P.2d 1044 (1995), aff'd, 326 Or. 1, 942 P.2d 772 (1997), a decision that had held that dog sniffs were constitutionally significant searches. ³ Having decided in defendant's favor on the search issue, the Court of Appeals never reached the alternative seizure argument.

In its petition for review to this court, the state challenges both the Court of Appeals' Juarez-Godinez holding and its conclusion that dog sniffs require a full probable cause showing. In our view, the first issue is the key. We begin, therefore, with the Court of Appeals' holding in Juarez-Godinez that use of a trained dog to sniff the exterior of a private enclosed space is a search within the meaning of Article I, section 9, of the Oregon Constitution.

The Court of Appeals analysis in Juarez-Godinez turned on the fact that, like the odor of marijuana detected by Nitro in this case, the odor of drugs at issue there was not perceptible to human beings. Relying on State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988), the Court of Appeals opined that the real touchstone of acceptable governmental scrutiny under Article I, section 9, is whether the conduct involved could have been done by any private individual. Thus, the court concluded, even when the police make their observations from a vantage point where they have every right to be, a search will occur if the police observe things that an ordinary individual could not have observed from that vantage point. From that standpoint, the court concluded, it is clear that dog sniffs are searches: Dogs discern odors that would not, and could not, be detected by any ordinary private citizen, and are used by the police for that precise reason. Juarez-Godinez, 135 Or.App. at 602-04, 900 P.2d 1044.

The state contends that that analysis expands the notion of a protected privacy interest under Article I, section 9, to an unwarranted and unworkable degree. In the state's view, the odor of molecules that have escaped from a contained, private space into a place to which police officers legally have access is fair game for any kind of observation--aided or unaided--because those molecules and their odor-producing properties are in the public domain. The state argues, in other words, that Article I, section 9, is concerned with where the police are directing their attention and not with how they perform their observations.

Before we address the parties' arguments, we need to address certain misconceptions about Oregon search and seizure law that appear in the Court of Appeals' Juarez-Godinez opinion. First, we do not agree with the Court of Appeals' construction of Campbell or its conclusion that the applicability of Article I, section 9, turns on whether the evidence can be perceived directly by unenhanced human senses. Although Campbell did conclude that use of a particular enhancement--a tracking device--was a constitutionally significant "search," it never suggested that use of any device or enhancement--no matter where that device or enhancement was used--would qualify as such. In fact, in a more recent case, this court explicitly rejected the suggestion that Campbell contains such a per se rule. See State v. Wacker, 317 Or. 419, 426 n. 12, 856 P.2d 1029 (1993) (use of light-enhancing device ("starscope") to aid in seeing activity in a car parked in a parking lot). ⁴

We also disagree with the Court of Appeals' suggestion that the fact that a dog sniff involves no invasion of protected space is inconsequential to the constitutional analysis. Our cases suggest that some form of invasion of a private space is a common, although not essential, element of the search construct under the Oregon Constitution. Compare, e.g., State v. Dixson/Digby, 307 Or. 195, 211-12, 766 P.2d 1015 (1988) (police entry into undeveloped land with "No Trespassing" signs would be search); Campbell, 306 Or. at 172, 759 P.2d 1040 (trespassory act of attaching tracking device to car was a search); State v. Bridewell, 306 Or. 231, 759 P.2d 1054 (1988) (entry into house and workshop without statutory authority was search); State v. Kosta, 304 Or. 549, 554, 748 P.2d 72 (1987) (opening of car trunk was a search); State v. Kock, 302 Or. 29, 725 P.2d 1285 (1986) (opening car door and reaching in to seize package was a search); with State v. Ainsworth, 310 Or. 613, 801 P.2d 749 (1990) (observation from lawfully positioned helicopter not...