*1 No. 64 October 6, 2016
IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v.
MAX BARNTHOUSE, aka Max Davis Barnthouse, Respondent on Review.
(CC 120431515; CA A153361; SC S063426) On review from the Court of Appeals.* Argued and submitted March 10, 2016.
David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.
Stephen A. Houze, Portland, argued the cause and filed the brief for respondent on review.
Before Balmer, Chief Justice, and Kistler, Walters, Landau, Baldwin, and Brewer, Justices, and DeHoog, Justice pro tempore.**
BREWER, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
______________
** Appeal from Multnomah County Circuit Court, Christopher J. Marshall,
Judge.
BREWER, J.
The issue on review in this case is whether police offi- cers’ handling of an express mail package violated the rights of defendant—the package’s addressee—to be free from an unreasonable seizure of the package under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United Sates Constitution. As explained below, we con- clude that the officers’ actions violated Article I, section 9, and that defendant is entitled to suppression of the evidence discovered as a result of the seizure.
I. FACTS AND PROCEDURAL HISTORY The pertinent facts are undisputed. Inter-agency drug interdiction teams comprising United States Postal Service (USPS) inspectors and local police officers rou- tinely examine in-transit mail at USPS mail sorting cen- ters, looking for packages that might contain contraband. One such team, made up of Postal Inspector Helton and Portland Police Bureau officers Castaneda and Groshong, was deployed to examine packages at a USPS air cargo *3 center near the Portland International Airport early in the morning of February 22, 2012.
The sorting process for mail arriving at that facility began, as in the normal course, sometime before 6:00 a.m. Officer Castaneda oversaw the routine sorting of mail into bins. Castaneda noticed an Express Mail package addressed to “Maxi-pad Barnt” at defendant’s Portland residence, which had a guaranteed delivery time of noon that day; he picked it up to examine it. Several aspects of the package drew his attention. In addition to the addressee’s appar- ently fictitious name, the package showed that it had been mailed from the 19711 zip code (Newark, Delaware), but had a return address of 19810 (Wilmington, Delaware). Further, the package was sent from a state where the use and sale of marijuana are illegal, the sender had paid cash for the postage, a box for waiving signature upon delivery had been checked, no phone number had been listed for either the sender or the recipient, and the addresses were handwrit- ten rather than typed. Together, those factors indicated to Castaneda that the package might contain contraband.
Castaneda showed the package to Inspector Helton, who agreed that the package looked suspicious. Helton then placed the package a few feet away, on a dog deployment line, in preparation for a dog sniff. The package was placed in the line with six other parcels of approximately the same size and shape, separated from one another by a couple of feet. Officer Groshong, the narcotics K-9 handler for the interdic- tion team, then came from around a corner with a dog, who alerted to the presence of contraband in the package.
After the dog alerted to the package, Castaneda, as he later testified, “took custody of the parcel,” taking it from Groshong’s hands and giving it to Helton for further inves- tigation. Helton placed the package on a cart designated for mail that the dog had identified and conducted com- puter searches on the sender and addressee. Those searches did not disclose that either the sender’s or the recipient’s address was associated with criminal activity. Nonetheless, the interdiction team decided to contact the addressee and try to obtain consent to search the package. They did not attempt to obtain a search warrant. Castaneda testified that, even if the dog had not alerted to the package, the team would have segregated the package in an identical manner for further investigation and, ultimately, would have taken the package to the addressee to attempt to obtain consent to open it and examine its contents. That is, Castaneda clari- fied, if the dog had not alerted to the package, nothing about the investigation would have changed.
At about 9:30 that morning, Helton, Castaneda, and another Portland police officer, Francas, took the package to defendant’s residence. When they arrived, they knocked on the front door. Two people answered. Castaneda identified himself as a Portland police officer and asked if either person was expecting a package. When they responded that they were not, Castaneda showed them the package addressed to “Maxi-pad Barnt.” They laughed and said that the package *4 must be for defendant, their housemate, who was not there. Castaneda obtained defendant’s full name and phone num- ber from them and called him. When defendant answered, he responded: “[T]here’s other ways of opening the package.” [1] When defense counsel asked Castaneda why he did not apply for a warrant, Castaneda told defendant that he was a police officer and asked to whom he was speaking. Defendant identified him- self. Castaneda explained to defendant that he was not under arrest but that Castaneda was investigating a suspi- cious package addressed to a person with a similar name at defendant’s residence. Defendant told Castaneda that he was not expecting a package and that he did not recognize the sender’s name. Castaneda then asked defendant for consent to open the package and examine its contents. Castaneda explained that defendant could refuse consent, but that, if he refused, the officers would apply for a search warrant. Defendant hesitated but ultimately gave Castaneda consent.
While Castaneda remained on the phone with defen- dant, Francas opened the package and found a yellow shirt wrapped around several stacks of United States currency. When Castaneda told defendant that there was currency in the package, defendant responded that it was not his, that he was not expecting any money, and that there was no reason for anyone to send him money through the mail. Castaneda then informed defendant that he was continuing his investigation. Castaneda asked defendant for consent to search his bedroom for evidence of narcotics distribution or money laundering. When defendant hesitated, Castaneda again explained that defendant had the right to refuse but, if he did, the officers would apply for a warrant to search the residence. Castaneda reassured defendant that he was not under arrest. Defendant seemed to Castaneda to become very nervous, but he consented to a search of his room. Castaneda gave defendant his contact information and then terminated the phone call.
The search of defendant’s room revealed, among other things, a large quantity of marijuana, as well as pack- aging materials, a vacuum sealer, unused postal boxes, packaging tape, and wrappers designed to hold bundles of money. Following those discoveries, defendant was charged with unlawful possession of marijuana and delivery of mar- ijuana for consideration.
dence summarized above, that the package “did not leave the officers’ physical possession during the time that they were at the house, and that it eventually came back to the property room, without transferring physical possession.” At the suppression hearing, the parties stipulated, in addition to the evi-
Before trial, defendant moved to suppress the evi- dence discovered in the searches of the package and his bedroom. Defendant argued that, under both Article I, sec- tion 9, and the Fourth Amendment, the officers had unlaw- fully seized the package without probable cause or having obtained a warrant, and that the officers had exploited that illegality in obtaining his consent to the searches. In partic- ular, defendant asserted that he had a constitutionally pro- tected possessory interest in the package while it was in the stream of mail. Defendant further argued that the officers significantly interfered with that interest, and therefore ini- tially seized the package, when they removed it from the sorting bin and set it aside for a dog sniff. Moreover, defen- dant argued:
“And the further they go, the more it is clear as can be that indeed we do have a seizure from a constitutional perspec- tive. So if it is not immediately at the moment it’s taken out of the first bin, it is certainly at some moment in time along this chain of events that they continue to exercise exclusive control and dominion of it, and indeed, will not permit it to go back into the stream of mail for its intended delivery to the recipient.”
The trial court granted the motion to suppress. The court ruled that
“the seizure happened at the time that the officer took the package and set it aside, and already had determined, according to his testimony, that regardless of the dog sniff test results, regardless whether the dog alerted or didn’t alert, that this package was set aside for a delivery by the police officer and the postal employee, and that the plan was already set in place that that’s what was going to hap- pen with this package.
“* * * [By the time of the dog sniff,] a seizure had hap- pened. Because it didn’t matter what the results of the dog sniff test, according to the officer himself. And so we have to look at that that’s a seizure right there at that time, that the plan is already that the delivery is not going to happen in the regular course.
“And so it’s more than a mere setting it aside or putting it on a different conveyor belt, or putting it in a different bin. This is really a special delivery that’s going to happen.
And then we saw what that delivery plan was. So there is the seizure happening.”
The court also determined that there was neither reason- able suspicion nor probable cause to seize the package when it was removed from the bin and segregated for later police operations and, therefore, the seizure was unreasonable:
“So the court is going to find under the totality of the cir- cumstances here, that at that moment in time [before the dog sniff], that the officers did not have probable cause, or didn’t have reasonable suspicion under either of those stan- *6 dards, and we have to look at all of those circumstances that we had there.
“I think the record is pretty clear about what factors they would be relying on and the officers went through themselves and talked about the particulars of the pack- age. The waiver of the signature upon delivery being high- lighted[;] * * * the sending post office was in a different zip- code [than the sender’s residence zipcode;] that there was a handwritten label; [the postage] was paid in cash; and the name of the addressee not appearing to be a real name, and those were the items that they could see on it.
“So that was fine to look at all of that, and fine, you know, to do some further inquiry as to the package. But at the moment it is set aside for this special delivery, under the facts of this case, that’s when we’ve got a seizure, and it just not supported by reasonable suspicion at this point.” The trial court further concluded that a seizure occurred, at the latest, while Castaneda was on the telephone with defendant after the officers had taken the package to defen- dant’s residence:
“[T]here was a seizure for sure at the time that the officer is on the telephone with the defendant and the officer is trying to get consent for a search, and the officer tells the defendant that if he denied consent then the officer would apply for a search warrant.”
The state then urged the court to rule that Castaneda did not exploit any illegality in the seizure of the package when he obtained defendant’s consent to the searches of the package and his bedroom and, therefore, that the searches were lawful. The trial court nevertheless determined that the officer did exploit the illegality in seek- ing defendant’s consent to the searches and thus implicitly ruled that defendant’s consent did not satisfy an exception to the warrant requirement. Based on those determinations, the court granted defendant’s motion to suppress the chal- lenged evidence.
The state appealed the suppression order. Before the Court of Appeals, the state argued that, until the guar- anteed time for delivery of the package had passed, defen- dant had no protected possessory interest in it either under the Fourth Amendment or Article I, section 9, because he had no right or ability to control the package during its tran- sit. It followed, the state reasoned, that defendant had no protected possessory interest in the package at any point during the police operation. According to the state, the package therefore was not seized for constitutional purposes before defendant consented to the search. Alternatively, the state argued that defendant’s possessory interest in the package, if any, was limited to the minimal right to receive the package at its guaranteed delivery time, and no seizure occurred because the police did not significantly interfere with that interest, inasmuch as their actions did not delay the timely delivery of the package. Finally, the state argued that, even if the package had been seized illegally, the police did not exploit that illegality in obtaining defendant’s con- *7 sent to search the package and his room. However, in the Court of Appeals, the state did not renew its argument before the trial court that any seizure of the package was justified by reasonable suspicion that the package contained contraband.
The Court of Appeals affirmed the trial court’s sup- pression ruling. State v. Barnthouse , 271 Or App 312, 350 P3d 536 (2015). The court first held that, as its addressee, defendant had a constitutionally protected possessory inter- est in the package while it was in transit in the stream of mail. That was so, according to the court, for two reasons: First, as Helton had testified, “a customer could go to their local post office and say I’m expecting an express mail pack- age, if you could hold it out and let me pick it up early in the morning, I know that postal employees will provide that ser- vice to customers.” Id . at 330. Second, the court noted that the USPS Domestic Mail Manual provides that, between the time an item of mail is deposited into the mail stream by the sender and the time it is placed on a truck for delivery, “addressees may control delivery of their mail” by directing the item to be “held at a designated Post Office location for pickup by a specified addressee or designee.” Id . (quoting USPS Domestic Mail Manual , §§ 508.1.1.1 and 508.7.2.1). It followed, the court stated, that the addressee of an express mail package “has something akin to a legal right to control— i.e ., to exercise restraining or directing influence over—a package (addressed to the addressee) while that package is in transit. * * * [T]hat evidence is sufficient to establish * * * the addressee’s constitutionally protected pos- sessory interest in that package.” Id . The Court of Appeals further concluded that
“defendant had a possessory interest in the package at the time that Castaneda and Helton removed it from the stream of mail and that he retained that right throughout the period during which the police investigated the package, including at the time that the police brought the package to his residence and obtained his consent to the searches of the package and his bedroom. As to the nature and scope of that possessory interest, we conclude that, for an in-transit USPS express mail package, the police may not detain such a package without probable cause and a warrant or without the existence of one of the carefully delineated exceptions to the warrant requirement.”
Id . at 334.
Having concluded that defendant had a possessory interest in the package, and that the police lacked authority to detain the package without probable cause and a war- rant, the Court of Appeals turned to the question whether the “government’s conduct, beginning with the removal of defendant’s package from the mail stream,” significantly interfered with that possessory interest. Id . at 337. The court held that once the officers took possession of the pack- age and decided to seek defendant’s consent to search it, and thereafter, while maintaining physical control of the pack- age during the “knock and talk” operation, “the interdiction team quite literally dispossessed defendant of the package.” *8 Id . at 338. That is, the officers “deprived defendant of his package as well as his right to control its course through the mail.” Id. at 339. The Court of Appeals concluded that it was reasonable to infer that the officers would maintain posses- sion of the package while a warrant was sought if defendant refused consent to search. Id . at 338-39. As a consequence, the court held, “the government significantly interfered with defendant’s constitutionally protected possessory inter- est in the package, beginning with the initial removal of it from the stream of mail and continuing through their entire interaction with defendant.” Id . at 339.
Finally, the court held that defendant’s voluntary consent to the search of the package and his bedroom did not justify the seizure, because the officers impermissibly had exploited the seizure to obtain that consent. Id . at 341- 46. Accordingly, the Court of Appeals affirmed the trial court’s suppression order. This court granted review of that decision. As explained below, we affirm the trial court’s sup- pression ruling and the decision of the Court of Appeals, albeit based on somewhat different reasoning.
On review, the state presents three challenges to the Court of Appeals’ decision. First, the state argues that defendant lacked a constitutionally protected possessory interest in the package when the police removed it from the sorting bin at the USPS facility. Second, the state asserts that the officers did not meaningfully interfere with any pos- sessory interest that defendant had (assuming one existed) so as to effect a seizure under either Article I, section 9, or the Fourth Amendment. Third, the state makes the argu- ment that it failed to present to the Court of Appeals: it asserts that, even if the officers significantly interfered with a possessory interest that defendant had in the package, the seizure was not unreasonable in the absence of a warrant because the officers reasonably suspected that the package contained contraband. The state does not renew its argu- ment before the Court of Appeals that, if a seizure occurred, defendant’s eventual consent to the searches of the package at 339 n 9. finding, set out above, that there was a seizure at the latest when Castaneda told defendant that, if he refused consent, the officers would apply for a warrant. Id. In so concluding, the Court of Appeals specifically referred to the trial court’s and his bedroom satisfied the consent exception to the war- *9 rant requirement.
II. ANALYSIS
In keeping with our customary practice, we first
address the state’s arguments under Article I, section 9; we
turn to the Fourth Amendment only if we conclude that no
state constitutional violation occurred.
State v. Newcomb
,
359 Or 756, 764, 375 P3d 434 (2016). Article I, section 9,
provides, in part: “No law shall violate the right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable search, or seizure[.]” As its terms
suggest, Article I, section 9, applies only when government
officials engage in a “search” or effect a “seizure.”
State v.
Howard/Dawson
,
Article I, section 9, does not protect against every search or seizure by the government, but only against those that are arbitrary, oppressive, or otherwise “unreason- able.” State v. Fair , 353 Or 588, 602, 302 P3d 417 (2013). Subject to certain limited exceptions, a search or seizure is The Fourth Amendment to the United States Constitution states:
“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated[.]”
unreasonable and, therefore, unlawful under Article I, sec-
tion 9, unless it is supported by probable cause and a war-
rant.
State v. Rodgers/Kirkeby
,
A. Defendant’s Interest in the Package
We begin our analysis with the state’s argument that defendant lacked a constitutionally protected interest in the package when it was removed from the sorting bin at the USPS facility. Initially, we note that defendant has asserted that he had a constitutionally protected interest *10 in the package throughout its transit in the stream of mail, and the trial court so concluded. Viewed in that broader context, then, the threshold question is whether—as the addressee of the package—defendant had a constitution- ally protected interest in it while it was in the stream of mail. The state does not dispute that an addressee has a constitutionally protected privacy interest that precludes an unreasonable search of a package in the stream of mail. See Ex parte Jackson , 96 US 727, 733, 24 L Ed 2d 877 (1877) (letters and sealed packages, when in the mail, may only be opened and examined under a warrant, as would be required when papers are subjected to a search in one’s household). But, as the state correctly observes, defendant’s challenge in this case is to an asserted unreasonable seizure—not a search—of the package. [5] Accordingly, the precise threshold question is whether defendant, as the package’s addressee, had a protected possessory interest in the package while it was in the stream of mail.
The term “possessory interest” does not appear in
the text of Article I, section 9; rather, it is a term that this
court and other courts (usually interpreting the Fourth
Amendment) have used to determine whether an item of
property has been seized for constitutional purposes.
See,
had any ownership interest in the package.”).
See Barnthouse
[5]
,
This court has not previously considered whether an addressee has a possessory interest in mailed packages under Article I, section 9, nor has it identified the contours of such an interest. However, at minimum, as a third-party beneficiary of the agreement between the sender and USPS, defendant had the right—a property-based right—to have the package delivered to him by its guaranteed delivery time. See USPS Domestic Mail Manual § 113 (setting out guaranteed delivery standards for priority mail express); see also United States v. LaFrance , 879 F2d 1, 7 (1st Cir 1989) (addressee’s possessory interest in FedEx package while in transit derives from contract; possessory interest at stake was contract-based expectancy that package would be deliv- ered to designated address by guaranteed day and time).
The fact that Article I, section 9, emphasizes prop-
erty law concepts in determining what qualifies as a pro-
tected possessory interest supports the conclusion that
that possessory interest was protected under the Oregon
the defendant’s challenge to the trial court’s denial of his motion to suppress
evidence found in a search of the package after the dog had alerted, this court
Federal Express truck and exposed a package inside to a dog sniff. In rejecting
alluded to, but did not reach, the issue before us:
State v. Kosta
In ,
“In the present case, we need not determine the bounds of an individual’s Article I, section 9, interests to conclude that defendant lacked any privacy or possessory interest in the package at the time when the police intercepted the Federal Express truck and subsequently exposed the package to the trained narcotics detection dog. Although defendant argues that he ‘was injured by the challenged police conduct,’ he fails to articulate any basis for his alleged privacy interest to be free from governmental intrusion into the package, given that he did not cause the package to be transported and that he was not the addressee, the intended recipient or an individual with an otherwise identifiable interest at the time of the detention of the package. Consequently, there is no basis for defendant to assert a possessory or ownership interest in the package during transit. We hold that defendant’s Article I, section 9, interests were not violated by the police conduct involving the stop of the truck and the exposure of the package to the police dog.” Id . at 553-34 (footnote omitted).
Constitution.
See Newcomb
,
The state remonstrates that defendant had no right
to demand that the package be held or redirected while it
was in the stream of mail and that he therefore lacked suffi-
cient dominion or control over the package to have construc-
tive possession of it before its guaranteed delivery time. In support of that argument, the state relies on decisions
involving the question whether a defendant possessed an
item under a particular criminal statute criminalizing the
possession of that item.
See
,
e.g.
,
State v. Barger
,
But the issue here is not whether defendant
pos-
sessed
the package; rather it is whether defendant had a
protected
possessory interest
in it. The difference matters
focuses on constructive possession because defendant concedes that he did not
actually possess the package while it was in the stream of mail.
control or the right to control is necessary to constructive possession.”). The state
,
In Juarez-Godinez , the defendant, who was stopped for speeding, could not produce a driver license but gave the officer a temporary registration for the car. 326 Or at 3. The person named on the registration was not the defen- dant and was not present. The officer learned that the reg- istered owner was on probation for delivery of a controlled substance. The officer summoned a drug-sniffing dog to the scene. Id. at 4. About 15 minutes after the initial stop, the officer arrested the defendant for failure to display a valid driver license and placed him in the back of a police vehicle. The officer then asked the defendant and his passengers for consent to search the car. They refused. Another police offi- cer arrived later with a dog, which alerted to the presence of drugs in the car. Id . The officer had the car impounded and obtained a search warrant. The ensuing search revealed a substantial quantity of drugs, which led to the defendant being charged with delivery of a controlled substance. The defendant moved to suppress the evidence found in the search, arguing that it was the product of an unlawful sei- zure of the car. The trial court granted the motion, and the Court of Appeals affirmed. Id. at 5.
On review, this court also affirmed, concluding that the police had seized the car for purposes of Article I, section 9, even though the defendant did not own the car and was prohibited from driving it on account of the arrest. As the court explained,
“Indisputably, defendant had been placed under arrest. As
a consequence of that arrest, defendant was unable to drive
the car away himself. Still, he retained a possessory inter-
est in the car and, in normal circumstances, could have
transferred possession of it to one of his passengers and
directed that it be driven away.”
Here, defendant had a contract-based possessory interest in the package while it was in transit that, at a minimum, included the right to receive delivery of it by its guaranteed delivery time. The state’s remonstrance not- withstanding, we conclude that that possessory interest was protected under Article I, section 9.
B. Did the State Significantly Interfere With Defendant’s
Possessory Interest?
The next question is whether the actions of the offi- cers significantly interfered with defendant’s possessory interest in the package. See Juarez-Godinez , 326 Or at 6 (seizure occurs when there is significant interference with possessory interest in property). Although defendant’s main argument is that the officers seized the package when it was removed from the sorting bin at the USPS facility, as noted, he has consistently asserted that, “beginning with the initial detention of the package, the police made a series of warrantless seizures in violation of both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution.” Barnthouse , 271 Or App at 321. In keeping with the progressive nature of that argu- ment, the trial court concluded that, at the latest, a seizure occurred when Castaneda told defendant that, if he were arguments concerning the existence and scope of defendant’s possessory interest make clear that addressees “may control delivery of their mail” by requesting the United States Postal Service. Specifically, they point to the provisions that in the package on various provisions of the Domestic Mail Manual published by that it be held for pickup or delivered to a different address. See Barnthouse , 271 Or App at 330 (quoting USPS , §§ 508.1.1.1 and 508.7.2.1). We need not address those arguments, or the merits of the Court of Appeals’ analysis of defendant’s possessory interest based on those provisions, because, as Domestic Mail Manual we explain below, we conclude that, irrespective of those provisions, the police in this case significantly interfered with defendant’s right to receive delivery of the package. The parties, as did the Court of Appeals in its analysis, primarily focus their to withhold consent to a search of the package, the officers would apply for a warrant. Because, as we now explain, evi- dence in the record supports that conclusion, we need not determine whether a seizure occurred earlier in the course of the law enforcement operation.
As discussed, in observing the sorting of mail at the postal facility, Castaneda noticed the package, considered it suspicious, and set it aside for further investigation. He then subjected the package to a dog-sniff, and the dog alerted to the presence of contraband. At the suppression hearing, Castaneda testified that, even if the dog had not alerted to the package, nothing about the investigation would have changed; the package would have been taken by authorities to defendant’s residence in an attempt to obtain his consent to a search of its contents. It is true, as the state points out, that the officers brought the package to defendant’s res- idence before its guaranteed delivery time. However, that does not mean that they did not significantly interfere with defendant’s possessory interest in it. According to the trial court’s unchallenged finding: “This is really a special deliv- *14 ery that’s going to happen. And then we saw what that deliv- ery plan was.” In accordance with that plan, as Castaneda explained to defendant, if defendant had not consented to a search, the officers would have sought a warrant.
Consistent with the trial court’s finding, a reason-
able inference to be drawn from Castaneda’s testimony is
that, if defendant had chosen not to consent to the search
and instead required the officers to apply for a warrant, the
officers would not have delivered the unopened package to
defendant while they sought a warrant, nor would they have
permitted anyone else to deliver it to him, irrespective of its
guaranteed delivery time.
See Juarez-Godinez
,
Reasonable Suspicion Argument
Our conclusion that the package was seized ordi-
narily would not end our inquiry, because, as discussed
above, only seizures that are “unreasonable” violate Article I,
section 9. The trial court ruled that the officers’ seizure of
the package in this case was unreasonable, because it was
not supported either by reasonable suspicion or by proba-
ble cause and a warrant. The state contends on review that
any seizure in this case was justified on the ground that
a brief warrantless investigative detention of property is
lawful if police officers have reasonable suspicion that the
property is associated with criminal activity. According to
the state, because a police officer lawfully may stop—
i.e.
,
seize—a
person
without a warrant based on reasonable sus-
picion of criminal activity without violating Article I, sec-
tion 9,
Rodgers/Kirkeby
,
We conclude that the state’s reasonable suspicion
argument is not properly before us. The state’s argument
hinges on the premise that the trial court erred in ruling
that the seizure of the package was not supported by rea-
sonable suspicion, but the state did not challenge that ruling
before the Court of Appeals. Accordingly, it is not preserved,
and we do not consider it further.
See
ORAP 9.20(2) (ques-
tions before the Supreme Court include all questions that
were properly before the Court of Appeals that the petition
or response claim were incorrectly decided);
see also State
v. Sokell
,
The decision of the Court of Appeals and the judg- ment of the circuit court are affirmed.
to obtain those consents, but it has not advanced that argument in this court. Accordingly, we do not consider it here. Article I, section 9, we do not consider its lawfulness under the Fourth Amendment. Having concluded that the seizure of the package was unlawful under