State v. Wolohan

• Decision Date: 24 July 1979
• Docket Number: No. 2466-III-1,2466-III-1
• Citation: 598 P.2d 421,23 Wn.App. 813
• Parties: STATE of Washington, Respondent, v. Mathew WOLOHAN, Appellant.
• Court: Washington Court of Appeals

Page 813

23 Wn.App. 813

598 P.2d 421

STATE of Washington, Respondent, v. Mathew WOLOHAN, Appellant.

No. 2466-III-1.

Court of Appeals of Washington, Division III, Panel One.

July 24, 1979.

As Amended Aug. 1, 1979.

Reconsideration Denied Aug. 20, 1979.

Robert Royal, Porter, Schwab, Royal & Edmondson, Yakima, for appellant.

Jeffrey C. Sullivan, Pros. Atty., David W. Waterbury, Deputy Pros. Atty., Yakima, for respondent.

MUNSON, Judge.

On March 2, 1977, Police Detective Daniel Ray and his drug-sniffing dog, Chinook, were patrolling the Greyhound Bus package express area in Phoenix, Arizona. This patrol was part of Detective Ray's regular assignment to detect controlled substances in and around mass transportation areas of Phoenix. At 6:24 p. m., Chinook "alerted" to a wrapped, book-sized parcel. Six minutes later Detective Ray opened the box and discovered approximately 1 1/2 pounds of bulk marijuana. The package was addressed to one Matt Wolohan, Yakima, Washington. Detective Ray telephoned the Yakima police and informed them of his and Chinook's discovery. On the basis of the phone call, and a teletype which followed detailing Chinook's reliable record of 40 prior cases with 42 arrests, a search warrant was issued in Yakima. The following evening Mathew Wolohan was intercepted by the police as he carried the package from the Yakima bus terminal. He was tried and convicted for possession of marijuana.

The trial court in ruling on a motion to suppress concluded that the warrant was validly based on Chinook's unerring nose and his reaction to the package addressed to Wolohan, independent of Detective Ray's opening of the package in Phoenix. Wolohan contends that the warrantless "search," I. e., the sniffing of his package, did not come within one of the recognized exceptions to the warrant requirement, and unless the search in Phoenix was lawful, the results of that search could not be used to justify the search warrant issued in Yakima. ¹ ] The primary issue before this court is whether under these circumstances the detection by the dog was reliable information by itself upon which there was sufficient probable cause for a search warrant to issue. We hold that it was.

In jurisdictions where the question of the use of "canine cannabis connoisseurs" ² has been raised in regard to establishing probable cause for an arrest or search, the courts have held that prior information of specific criminal activity in conjunction with a dog whose reliability has been shown has provided probable cause. Subsequent searches have been upheld generally based on one of two theories: (1) the plain-view, or more properly the plain-smell, doctrine, or (2) that the sniff was a reasonable search under the circumstances. ³ In almost all cases some prior information has been required. Here, the detective apparently had no specific information. See Annot. Use of Trained Dog to Detect Narcotics or Drugs as Unreasonable Search in Violation of Fourth Amendment, 31 A.L.R. Fed. 931 (1977).

In some cases a reliable informant has notified police of a parcel containing drugs which has then been corroborated by a sniffing dog. United States v. Bronstein, 521 F.2d 459, 31 A.L.R. Fed. 920 (2d Cir. 1975), Cert. denied 424 U.S. 918, 96 S.Ct. 1121, 47 L.Ed.2d 324; United States v. Fulero, 162 U.S.App.D.C. 206, 498 F.2d 748 (1974); People v. Campbell, 67 Ill.2d 308, 10 Ill.Dec. 340, 367 N.E.2d 949 (1977), Cert. denied 435 U.S. 942, 98 S.Ct. 1521, 55 L.Ed.2d 538; State v. Martinez, 26 Ariz.App. 210, 547 P.2d 62 (1976), Aff'd 113 Ariz. 345, 554 P.2d 1272 (1976). In other cases police had a suspect under surveillance who exhibited suspicious behavior. A dog was then brought in and provided probable cause for a subsequent search. United States v. Venema, 563 F.2d 1003 (10th Cir. 1977); United States v. Meyer, 536 F.2d 963 (1st Cir. 1976); State v. Quatsling, 24 Ariz.App. 105, 536 P.2d 226 (1975). An unreliable informer and an anonymous tip corroborated by the alert of a dog has provided probable cause. United States v. Solis, 536 F.2d 880 (9th Cir. 1976); State v. Elkins, 47 Ohio App.2d 307, 354 N.E.2d 716 (1976). In one case, a customs agent had no prior information but a reliable dog provided probable cause for a subsequent search. United States v. Race, 529 F.2d 12 (1st Cir. 1976). ⁴ However, in California the courts have suppressed evidence based solely on the alert of a dog with no prior tip. People v. Evans, 65 Cal.App.3d 924, 134 Cal.Rptr. 436 (1977); People v. Williams, 51 Cal.App.3d 346, 124 Cal.Rptr. 253 (1975). We decline to follow California for the reasons stated below.

The primary question which must be addressed is whether Wolohan had a legitimate expectation of privacy in the invaded place. Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). As noted in Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, n. 12 at 430, 58 L.Ed.2d 387 (1978): "a 'legitimate' expectation of privacy by definition means more than a subjective expectation of not being discovered." A sender or a receiver of parcels by common carrier has only a limited expectation of privacy as distinguished from a sender or receiver of first-class mail. See United States v. Van Leeuwen, 397 U.S. 249, 90 S.Ct. 1029, 25 L.Ed.2d 282 (1970). Common carriers have the right to protect themselves and not be the unwitting carriers of contraband and may search parcels if they have reason to believe they contain contraband. State v. 1969 Volkswagon Bus, VIN 239199800, 120 Ariz. 365, 586 P.2d 210 (1978); State v. Fassler, 108 Ariz. 586, 503 P.2d 807 (1972). In United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977), the court significantly stated: "Luggage contents are not open to public view, Except as a condition to . . . common carrier travel ; . . ." (Italics ours.) The sniff of a bag or parcel by a dog in a baggage or parcel area is a minimal and limited intrusion the contents of a parcel remain entirely undetected except for marijuana, cocaine, hashish, or heroin. "(I)t is hard to imagine that an innocent person could have any objection to his package, placed in transit on a common carrier, being sniffed by a trained dog." State v. Elkins, supra, 47 Ohio App.2d 307, 354 N.E.2d 719. The sole purpose of the limited intrusion is to detect contraband and not to violate the sanctity of any personal possessions. See United States v. Head, 416 F.Supp. 840 (S.D.N.Y.1976), Cert. denied 430 U.S. 931, 97 S.Ct. 1551, 51 L.Ed.2d 775 (Use of fluoroscope to detect contraband in international mail).

A baggage area by its nature is at least a semi-public place where people will be circulating through the area, either employees or people picking up or sending packages. The outside of the package is open to view and the package is subject to dropping or tearing. We hold that although Wolohan may have had a limited expectation of privacy as to the contents and his personal effects in a package in transit, he did not have reasonable expectation of privacy in the area in which the package itself was located, the parcel area, nor in the air space immediately surrounding the package from which the odor emanated. See United States v. Solis, supra; State v. Quatsling, supra.

Wolohan contends Detective Ray and Chinook were in a place they had no right to be and were conducting no more than a general exploratory search. Thus the "search" by the dog was unlawful. In general, exploratory searches have been held unreasonable and in fact such searches were the very genesis of the constitutional requirement for warrants. Go-Bart Importing Co. v. United States, 282 U.S. 344, 358, 51 S.Ct. 153, 75 L.Ed. 374, 382 (1931). Here, the affidavit for the search warrant stated that Detective Ray was

an experienced narcotics officer whose assignment involves the detection of possible controlled substances in and about the mass transportation areas of Phoenix, Arizona. That he is regularly assigned to these areas with the narcotics dog known as "Chinook" each day for eight hours. That he is familiar with the appearance of marijuana in its various modes of packaging and transportation.

The affidavit implies that Detective Ray regularly visited such places as Greyhound and there was nothing to suggest that he was in the package area by anything other than the permission of Greyhound, nor does Wolohan make such a contention. Cf. People v. Williams, supra. We decline to follow People v. Williams, supra, in which the court found an unlawful trespass by the police. There is nothing in this record to indicate that Detective Ray was a trespasser. Unlike the deputies in Williams, Detective Ray had had prior experience in mass transportation facilities and the affidavit suggests he suspected the possibility of controlled substances in that area. The logical extension of Wolohan's argument would be that any time a dog alerted to an object in a place where the officer had a right to be, the alert would have to be ignored and a warrant could not be issued unless the officer had prior information regarding the object.

Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view or open view or the equivalent. Odors so detected may furnish evidence of probable cause of "most persuasive character, . . ."

United States v. Solis, supra at 881.

In United States v. Johnston, 497 F.2d 397, 398 (9th Cir. 1974), the court held that a police officer's sniffing of a suitcase provided probable cause for a subsequent search. It has been held that the distinctive odors of opium and whiskey mash would have provided probable cause for which the officers should have sought a search warrant. Chapman v. United States, 365 U.S. 610, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961); Johnson v. United States, 333 U.S. 10, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Taylor v. United States, 286 U.S. 1,...