Lead Opinion
Thе state appeals from a pretrial order suppressing evidence seized pursuant to a search warrant. The warrant was issued on the basis of information obtained by the police during a traffic stop. We affirm.
We recite the facts, which are not disputed, as found by the trial court:
“The Defendant was stopped on October 13, 1992, at approximately 1:25 a.m. for what appeared to be a routine traffic stop for exceeding the maximum speed limit. The Defendant’s vehicle did not stop immediately upon seeing Trooper Burdick’s overhead lights, but did puli off at the first [exit] ramp that the vehicle came to. Upon making contact with the driver, Trooper Burdick noted that all of the occupants in the vehicle were hispanic, that the Defendant was the driver of the vehicle, and that there was a female passenger in the front passenger seat and a male passenger in the back seat behind the front passenger. Trooper Burdick also observed that there were numerous air fresheners in the vehicle and that there was no luggage visible in the vehicle. Trooper Burdick also noted that the oсcupants were nicely dressed and that the Defendant had ‘salon styled hair. ’ When asked where they were going to, the occupants told Trooper Burdick that they were on their way home to Tacoma, that they had been visiting a relative in Eugene. When the driver was asked for his driver’s license, he was not able to produce one and gave Trooper Burdick the name of Oscar Sanchez. When asked to produce the registration for the vehicle, the Defendant produced a temporary registration in the name of a person who was not present. When a computer check was done on the registered owner, Trooper Burdick was told that the registered owner was on parole. A computer check on the name of Oscar Sanchez revealed that there was an outstanding warrant for Oscar Alverez-Martinez, aka Oscar Sanchez, with a date of birth of September 28,1971. Trooper Burdick then re-contacted the Defendant and advised him about the warrant. The Defendant then told Trooper Burdick that the Defendant’s name was Oscar Sanchez-Sanchez and that he had never been arrеsted and was not the person described on the warrant. During this time, Trooper Lewis had arrived at the scene and primarily acted as backup for Trooper Burdick. Trooper Burdick also contacted dispatch and requested that Senior Trooper Milton and his canine, ‘Bud,’ respond to the scene. After discussing the outstanding warrant with the*594 Defendant, Trooper Burdick then placed the Defendant under arrest for failing to display a driver’s license. Approximately 15 minutes had elapsed since the initial stop at this time. Defendant was handcuffed and placed in the rear of Trooper Burdick’s patrol vehicle. Trooper Burdick then contacted the Defendant in the Trooper’s patrol car and advised him that they were having a problem with people trafficking in narcotics on the highways, and Trooper Burdick asked the Defendant if the Defendant had any drugs, weapons or large amount of money in the Defendant’s vehicle. The Defendant told Trooper Burdick that he did not. The Defendant refused several requests by the Trooper to search the vehicle. The occupants of the vehicle were nоt told they were free to leave, even though the female passenger had what appeared to be a valid Washington driver’s license and the computer check on her revealed ‘no wants.’ The occupants of the vehicle never asked to leave, nor did they ask if they could drive the vehicle from the scene. Trooper Milton and his dog arrived at the scene at 2:11 a.m., approximately 46 minutes after the initial stop for the traffic violation. Trooper Milton contacted the driver of the car and was again refused consent to search the vehicle. Bud, the dog, was then allowed to sniff the outside of the vehicle and ‘alerted’ on the crack of the lower left corner of the passenger door. Trooper Milton determined that Bud was reacting to the odor of controlled substances. The occupants of the vehicle were again contacted and permission was requested to search the vehicle. The occupants again refused to grant consent to search the vehicle. The search warrant was subsequently obtained for the search of the vehicle based on the above information. Neither the Defendant, nor the occupants of the vehicle were informed that they were free to leave the scene of the stop until after the dog search was complete. Trooper Burdick testified that he could have impounded the vehicle prior to the dog search if he had not been able to verify with the registered owner that the occupants had permission to use the vehicle. He also testified that he did not attempt to contact the registered owner of the vehicle. Trooper Burdick also testified that he was not aware of any statute authorizing him to impound the vehicle, but that it was their office policy to do so if the registered owner could not be located to verify permission to use the vehicle.”
Based on the evidence seized during the execution of the warrant, defendant and the two passengers were charged by indictment with three counts of unlawful delivery of a controlled substance. ORS 475.992. Defendant moved to
“Based on the above [findings], the Court finds that the detention of the Defendant’s vehicle was unreasonable under the circumstances, and that the application of ‘Bud’ to the vehicle was overly intrusive and constituted a warrantless search.”
On appeal, the state characterizes as the “threshold question * * * whether Trooper Burdick unlawfully ‘detained’ the vehicle defendant was driving * * * and, if so, whether that illegality provides any basis to suppress evidence.” The state argues that the vehicle was not detained, but that even if it was detained, the detention was lawful.
We first consider whether the trial court correctly concluded that the vehicle was detained unlawfully. Based on its findings, quoted above, the trial court concluded that “the detention of the Defendant’s vehicle was unreasonable under the circumstances.” The legal basis of the court’s opinion is not entirely clear. The court may have been analogizing the situation to an investigatory “stop” of a person. Under ORS 131.615(1), an officer who reasonably suspects that a person has committed a crime may briefly detain that person to make a reasonable inquiry. The detention and inquiry, however,
The trial court may have been holding, in essence, that the vehicle was seized unlawfully. If so, we do not agree that the vehicle was seized before the dog-sniff. A seizure occurs when there is a
“significant interference with a person’s possessory or ownership interests in property. The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person’s possessory interest in that ‘effect.’” State v. Owens,302 Or 196 , 207,729 P2d 524 (1986).
In evaluating whether there was a seizure of the vehicle here, we are bound by the trial court’s findings of historical fact if evidence supports them. Cf. Ball v. Gladden,
The state contends that the vehicle was not seized, but that it remained at the scene as an unavoidable consequence of defendant’s arrest. See State v. Woods,
The state next argues that the trial court erred in concluding that the dog-sniff inspection of the vehicle cоnstituted a search. The state asserts that we should adopt the reasoning set forth in our decision in State v. Slowikowski,
Under Article I, section 9, a search occurs when the police invade a person’s privacy interests. State v. Nagel,
“is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. A court has never held, for example, that a police officer engages in a search by making unaided observations from a public place, and an individual therefore cannot be said to have a constitutionally protected interest in freedom from such scrutiny.”
Slowikowski is the only Oregon case in which the legality of a dog-sniff inspection has been directly addressed. See State v. Kosta,
Citing numerous federal and out-of-state cases decided under the Fourth Amendment, this court concluded that “because defendant had no reasonable expectation of privacy in the odor of marijuana escaping from his unit, the dog-sniff here was not a search.”
The Supreme Court affirmed our decision, but on different grounds. Slowikowski,
“When the police lawfully seize a container, they can thoroughly examine the container’s exterior without violating any privacy interest of the owner or the person from whom the container was seized. For example, the police can observe, feel, smell, shake and weigh it. Furthermore, not all containers found by the police merit the same protection under Article I, section 9. Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in ‘plain view,’ outside the confines of any container. Applying the doctrine of ‘plain view’ to transparent containers, we hold that no cognizable privacy interest inheres in their contents, and thus that transparent containers can be opened and their contents seized. No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents.” Slowi-kowski,307 Or at 24 (emphasis supplied).
The Supreme Court in Slowikowski concluded that the defendant’s locker similarly announced its contents because “[t]he odor emanating from defendant’s storage locker was readily detectable by Deputy Kennedy.” Id. at 25. Had the officer discovered the odor without the dog, the court held, the
The court commented that because dogs have been used for similar purposes since long before the advent of either the state оr federal constitutions, there might be a “historical exception” for such use of dogs.
In this case, the state contends that the reasoning expressed in our Slowikowski opinion still supports the conclusion that a dog-sniff inspection of a lawfully stopped vehicle is not a search. We disagree. In that opinion, we recognized that the defendant’s argument under both Article I, section 9, and the Fourth Amendment was grounded on the reasonable expectation of privacy analysis enunciated in Katz v. United States,
Since that opinion was issued, however, the Oregon Supreme Court has interpreted Article I, section 9, in a way that seriously undermines the foundation of our analysis in Slowikowski. First, the court has since recognized that a defendant may, in fact, have cognizable Article I, section 9, privacy and property interests in contraband. Kosta,
That distinction is significant in that it can lead to different conclusions as to the lawfulness of police conduct. In United States v. Knotts,
Finally, and perhaps most importantly, we believe that the Supreme Court’s analysis in Slowikowski raises serious questions about the applicability of the “plain smell” doctrine to odors that are not detectable by a human nose. In that case, there were two “sniff’ investigations — one by the dog and one by the narсotics officer — but the court applied distinctly different analyses to each. As to the officer, the court applied a “plain smell” analysis to conclude that, because he was in a place where he had a right to be and because the odors he detected were entirely outside the locker, his conduct, despite its purposive nature, was not a search.
The court could have reached the same conclusion with respect to the dog’s inspection, because, as the court found, the dog, too, was lawfully on the premises and sniffed only the outside of the locker. However, in its discussion of the dog-sniff, the court made no mention whatsoever of the facts relevant to a “plain smell” analysis. Instead, and despite its recognition that “purposiveness” of action is not determinative as to whether a search has occurred, the court concluded that the dog’s sniffing did not constitute a search because the dog did not purposively intrude into a protected area. Id. Thus, although the court did find that the locker “announced its contents,” the only identified recipients of that announcement were the officers who were lawfully on the premises. Id. at 24. There is no suggestion in the opinion that the contents also were “announced” to the dog.
We conclude that the vehicle in this case did not announce its contents such that defendant lacked a cognizable privacy interest in those contents. In its most recent discussion of the privacy interests protected by Article I, section 9, the Supreme Court reiterated the statements it made in Campbell:
“ ‘One explanation for the absence of a constitutionally protected interest against certain forms of government scrutiny may be the absence of any freedom from those forms of scrutiny in society at large. The reason that the observations of a police officer who is standing in a public place infringe no privacy interest may be that there is no generally recognized*603 freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom from scrutiny available to “the people.” ’ ” Nagel,320 Or at 30 n 5 (quoting Campbell,306 Or at 157 ).
The government thus will not be said to have intruded on a person’s “privacy” when the government’s scrutiny is no different than what could have been done by any private individual. Compare Wacker,
In this case, and in marked contrast to the facts of Slowikowski, there is no suggestion that the odors “emanating” from the vehicle were so strong that “anyone who tried
It is also important to note that this is not a case in which the police used a device to ‘ ‘enhance’ ’ their own perceptions. Unlike using a 135 mm lens, State v. Louis,
That conclusion, however, does not end our inquiry. The remaining issue is whether a dog-sniff search implicates the usual Article I, section 9, warrant requirements imposed on police searches. See State v. Stevens,
“If the issue is framed in terms of whether a totally unrestrained use of such dogs in a dragnet fashion would be tolerable in a free society, one’s answer might likely be no. If so, then under the test earlier suggested as appropriate under Katz, such use of trained dogs to detect concealed contraband should be held tо constitute a Fourth Amendment search. Yet it is clear that this particular surveillance technique amounts to a relatively minor intrusion upon privacy, much less than is involved, say, in the physical entry and ransacking of a house in an effort to find a quantity of narcotics. Because this is so, and because the use of trained dogs is a valuable surveillance technique which would be considerably hampered if it could be utilized only upon full probable cause and with search warrant in hand, from this perspective the push is in the direction of a holding that the use of trained dogs to detect concealed contraband is not a search. This quite obviously leads to the question of whether there is some middle ground, that is, whether it is possible to subject this law enforcement practice to some restraints so as to ensure that it is not used in a dragnet fashion or in a*606 random or unprincipled fashion, but yet not destroy its effectiveness by imposing all the limitations which are applicable to other, more traditional kinds of searches that are much more threatening to privacy and security.” LaFave, 1 Search and Seizure § 2.1(e) at 315 (emphasis in original).
Among the state courts that have concluded that a dog-sniff is a state constitutional search, the trend is to find such a “middle ground” by holding such searches to a standard no more exacting than reasonable and articulable suspicion that the item to be searched contains contraband.
In this case, however, we need not decide that issue. Even assuming that a reasonable and articulable suspicion of drug activity would be sufficient to justify a warrantless dog-sniff search of a lawfully stopped vehicle, the evidence does not support such a suspicion here. In his sworn affidavit for the search warrant, Burdick stated that he allowed Bud to sniff the vehicle based on his “reasonable suspicion that controlled substances were present in the vehicle”:
“From my training and experience, I noticed several characteristics displayed by the occupants of the vehicle that I know are often the same characteristics displayed by known narcotics traffickers. I noticed a heavy odor of air freshener in the vehicle. I did not see any luggage in the vehicle. I noticed that all occupants were wearing newly purchased clothing. The driver was wearing a gold nеcklace, a gold ring, and had salon-styled hair. A third-party [vehicle] registration is also very common with narcotics traffickers. I also know through my training and experience that Tacoma, Washington, [defendant’s stated destination] is a frequent destination of narcotics traffickers.”
We conclude that none of those observations, either individually or collectively, justify a reasonable suspicion that the vehicle contained controlled substances. In its discussion of “reasonable suspicion” in the context of an investigatory stop, ORS 131.615(1), the Supreme Court in State v. Valdez,
Applying that rationale here, a clean-smelling car containing three well-dressed occupants en route to Tacoma does not provide an objectively reasonable basis, whether by itself or added to the other factors, to suspect that the vehicle contained contraband. The lack of visible luggage also adds nothing, because, with three adults riding in the vehicle, any luggage would likely have been placed in the trunk. Finally, there is no objective quality to any of Burdick’s other observations that would entitle them to any weight. The registered owner of the vehicle was not even at the scene, and the alleged drug “record” of the passenger was unspecified and unconfirmed.
We conclude that the warrantless search by the dog of the vehicle driven by defendant violated defendant’s rights under Article I, section 9, and that the trial court did not err in suppressing the evidence obtained as a result of that search.
Affirmed.
Notes
Neither defendant’s motion nor the trial court’s order cited аny specific constitutional provisions; however, because we resolve the issue on state constitutional grounds, we need not consider the issue under the federal constitution.
The state makes similar arguments regarding the alleged detention of the passengers. However, the trial court made no findings or conclusions as to that issue, nor do we believe that a discussion of their status is necessary to the disposition of this case.
Although the dissent initially quotes the correct test for determining whether police conduct rises to the level of a search under Article I, section 9, see
That dictum appears to be the impetus for the dissent’s lengthy discussion of the “historical precedent” of using dogs to smell odors that humans cannot detect, and its ultimate conclusion that, because of the historical precedent, the indiscriminate use of dogs by police to reveal the contents of sealed containers cannot be considered a search. However, we fail to see how that history aids our inquiry into whether the police conduct at issue intruded on a privacy interest protected under Article I, section 9. As discussed below, unlike the federal constitution, a search under Article I, section 9, is not defined by a reasonable expectation of privacy. For our purposes, then, it is immaterial that it was “common knowledge to the inhabitants of the Oregon Territory” that dogs were able to smell and react to odors that could not be detected by humans.
But see cases cited below at n 10 (holding that dog-sniff investigations are state constitutional searches).
See also State v. Louis,
“The question is when observation (or listening) becomes a ‘search’ within the legal meaning of that term. Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. One would not, for instance, expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises. An indecent exposure in a window opening to public view is not very different.”
The dissent strongly implies that there can be no search without a physical intrusion into the vehicle. That, of course, is not the law, even under the less protective provisions of the Fourth Amendment. See, e.g., Katz v. United States,
As noted by LaFave, the use of a trained dog is analogous to the use of a magnetometer to detect metal on a person or in an object. Courts have consistently held that the use of a magnetometer constitutes a search under the Fourth Amendment. LaFave, 1 Search and Seizure § 2.2(f) at 368, § 2.2(d) at 348-49.
The dissent states that our holding places us in the minority of jurisdictions that have considered the issue.
It bears repeating that, under Article I, section 9, “[w]e must decide ‘whether the practice, if engaged in wholly at the discretion of the government, will significantly impair “the people’s” freedom from scrutiny.’” Nagel,
See, e.g., McGahan v. State,
At the hearing, Burdick testified that the computer check revealed a record on the passenger’s name for “some type of narcotics offense,” but that such a “hit” does not necessarily indicate a conviction.
Dissenting Opinion
dissenting.
The majority holds that the use of a dog to smell the odor of narcotics escaping from defendant’s car constitutes an “unreasonable” search under Article I, section 9, of the Oregon Constitution. It reasons,
“In fact, at no time did the officers ever detеct the contraband; their only indication of the vehicle’s contents was the dog’s actions. [The dog’s] extraordinary sense of smell was used as a substitute for the officer’s inferior senses, and it was that substitute that allowed the detection of something that was otherwise unexposed. * * * We thus conclude that under these circumstances, the use of [the dog] to reveal the contents of defendant’s vehicle constituted a search under Article I, section 9.”135 Or App at 604-05 (emphasis in original).
The majority’s reasoning is erroneous. Under Article I, section 9, there is no significant privacy interest in odors that have escaped from containers in a parked automobile in a public place.
A “search” occurs when a person’s privacy or pos-sessory interests are invaded. State v. Owens,
“A privacy interest, as that phrase is used in this court’s Article I, section 9, opinions, is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. * * *
“Government scrutiny aside, individual freedom from scrutiny is determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping. One explanation for the absence of a constitutionally protected interest against certain forms of government scrutiny may be the absence of any freedom from those forms of*609 scrutiny in society at large. The reason that the observations of a police officer who is standing in a public place infringe no privacy interest may be that there is no generally recognized freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom available to ‘the people. ’ In contrast, both laws and social conventions have long recognized the right to exclude others from certain places deemed to be private. If the government were able to enter such places without constitutional restraint, ‘the people’s’ freedom from scrutiny would be substantially impaired.
“Our intention is not to set forth a definition of a search based upon social and legal norms of behavior but to clarify the nature of the interest protected by Article I, section 9. Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in shaping those norms. But since 1859, when Article I, section 9, was adopted, the government’s ability to scrutinize the affairs of ‘the people’ has been enhanced by technological and organizational developments that could not have been foreseen then. * * * In deciding whether government practices that make use of those developments are searches, we must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair ‘the people’s’ freedom from scrutiny, for the protection of that freеdom is the principle that underlies the prohibition on ‘unreasonable searches’ set forth in Article I, section 9. In this context, it is appropriate to recall what this court said in State v. Robertson,293 Or 402 , 434,649 P2d 569 (1982). ‘Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle.’” State v. Campbell,306 Or 157 , 170-71,759 P2d 1040 (1988) (citations omitted).
In this case, defendant was lawfully arrested after being stopped on Interstate 5. When the police brought the dog to the scene, defendant’s car was still parked alongside the freeway. In that sense, his privacy interest in the car was no different than had he parked the car in a shopping mall parking lot. Defendant never asked the officer to release the car to one of its passengers, nor did any of the passengers seek to drive the vehicle away. No search of any person or of items attached to a person occurred. There was never a physical
Thus, the narrow issue is whether the use of a dog under these circumstances to smell an odor outside the vehicle that the officer could not detect makes what otherwise would not be a search, a “search.” In State v. Nagel,
“In order to determine whether particular police conduct constitutes a search, ‘we must look to the nature of the act asserted to be a search.’ The test to determine whether police conduct rises to the level of a search is whether the govеrnment’s conduct would ‘significantly impair an individual’s interest in freedom from scrutiny, i.e., his privacy.’ We must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair ‘the peoples’ freedom from scrutiny.”320 Or at 29 (citations omitted).
The use of dogs to smell odors of controlled substances escaping from an object like an automobile is not like the use of a technological advancement such as a radio transmitter or a magnetometer used to detect metal on a person or in an object. Rather, the practice of the use of dogs to smell odors that humans cannot smell is an adaptation of the canine’s natural sense of smell arising from law enforcement organizational developments to combat drug trafficking. In People v. Price,
*611 “The historical precedent for utilizing the inherent qualities of canines is well chronicled. Dogs, endowed by nature with senses of smell and hearing superior to humans, have long been employed by police to detect crime and track criminals. Detection of contraband is a similar and related task which has led to the special training and successful use of dogs to assist exposing the criminal.”78 AD2d at 485 .
A dog’s sense of smell can be eight times stronger than a human’s, and enables dogs to smell odors from a distance as far as 75 feet. John Schuster, Constitutional Limitations of the Use of Canines to Detect Evidence of Crime, 44 Fordam L Review 973, 986 (1976).
The use of dogs to detect odors of controlled substances began in this country in the 1940’s as an “offshoot of the use of tracking dogs to apprehend fugitives and suspected criminals — an accepted practice in many jurisdictions.” Max A. Hanson, United States v. Solis, Have the Government’s Supersniffers Come Down with a Case of Constitutional Nasal Congestion?, 13 San Diego L Rev 410, 414 (1976). See also M. Harney and J. Cross, The Narcotic Officer’s Notebook 297 (2d ed 1973). However, the use of dogs to smell odors or objects that humans could not smell is not of recent invention. Humans have relied on the dog’s keen sense of smell for literally thousands of years. For instance, in the ancient Greek epic, The Odyssey, written in approximately 700 B.C., Homer describes the return of Odysseus to his home and family. Because Odysseus is disguised as a beggar, no one recognizes him except Argos, his devoted tracking hound. See also Cynegeticus (Greek treatise on hunting and dogs authored by Xenophone between 430 and 370 B.C.). In England and in this country from its earliest days, there is literature about the use of dogs to find objects and people by detecting the odor left behind when the object or the person
In the light of that knowledge, the question is whether the framers of section 9 would have considered the use of a dog by police to sniff an odor under the circumstances of this case to be “sufficiently” intrusive so as to “significantly” invade a privacy right. Nagel,
Of course, the majority is correct that in our decision in Slowikowski, we used a “reasonable expectation of privacy” test which is no longer the proper test under Oregon law. Consequently, the Supreme Court used different reasoning to arrive at its result in Slowikowski,
In Louis, the defendant exposed himself to public view through his living room window in his own home. The court held that he had no cognizable privacy right even though the police officers photographed him with a 135 mm camera lens from across the street. In Campbell, the court explained its reasoning in Louis. It pointed out that had the police entered the defendant’s living room unlawfully to observe what could be observed from the street, an illegal search would have occurred. Thus, the determination of whether a search occurred did not depend on whether the defendant’s body was exposed to public view, but whether the action of the police in viewing it could be characterized as a search. Because the police were in a place where they had a right to be when they observed the defendant and what they saw could be seen with the unaided eye, their actions did not constitute a search. Campbell,
The “police action” in this case was to use a dog in a way that dogs have been used historically by law enforcement: to smell an odor that could not be smelled by humans. The odors from the controlled substances inside the car had escaped from the interior of the car. The dog and its handler were standing alongside a public highway where defendant’s car was parked. No intrusion into the interior of the car occurred. Unquestionably, defendant had a privacy interest in the contents of his car, but the dog-sniff took place without any physical intrusion into those contents or the interior of the car. As the Supreme Court explained in United States v. Place,
“A ‘canine sniff by a well-trained 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 technique 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 subject to the embarrassment and inconvience entailed in less discriminate and more intrusive investigative methods. ’ ’
The conduct of the police in this case was no different in substance than any police action that historically used a dog to find a lost or concealed object or to track a fugitive to where he was hiding in an enclosed structure. In each situation, the police, with the use of a dog, detect an invisible odor left in a public area that leads to the location of the object or the person. The scent of the object or the person announces its presence even though neither is exposed to human perception. Here, the chemical odors of defendant’s narcotics had escaped from his automobile into a public place where they were subject to scrutiny by the public. The odors were discernible without any physical intrusion into a private area, and
As a result of the majority’s holding, Oregon finds itself in company with a minority of the jurisdictions that consider “dog-sniffs” of objects to be a “search.”
In summary, the majority’s analysis when extended to other potential factual circumstances is an “all or nothing’ ’ ruling concerning the legality of dog-sniffs for controlled substances in Oregon. The majority’s dramatic change of Oregon law is ill-reasoned because it does not take into account the historical precedent of the use of dogs by law enforcement and because it fails to focus on the circumstances of the police action in this case. The fact that the odors
For these reasons, I dissent.
The subsequent search pursuant to the warrant uncovered 111 grams of cocaine, 50 grams of tar heroin and 3 1/2 pounds of marijuana in the car.
The New York court held that no search occurred when a dog was used to sniff
In 1848, a well-known Oregon pioneer, Thomas Clark, came west on the Oregon Trail. In the spring of 1850, Clark took money that he and others had made mining gold east to buy cattle. By the spring of 1851, he had 65 Morgan mares and 63 Durham cattle ready to drive across the plains to Oregon. Clark, an Englishman, was also a hunter and a lоver of hunting dogs, and brought with him hunting hounds. One day while on the trail, Clark’s party was attacked by a band of Shoshone and Bannock Indians. Clark, hearing the shooting from a distance, launched a single-handed counterattack on horseback with his hounds. The Indians, believing that they were being attacked by a large party, fled. Bill Vandervert, as related to the Oregon Journal, November 22-23,1922, and recounted in Fred Lockley, Conversations with Bullwhackers, Muleskinners, Pioneers, Prospectors, ’49ers, Indian Fighters, Trappers, Ex-Barkeepers, Authors, Preachers, Poets & Near Poets & All Sorts & Conditions of Men (1981).
The court said,
“[I]t may be that, inasmuch as dogs have been used for purposes analogous to the one for which Breaker was utilized since long before the advent of either the state or federal constitutions, there is an historical exception for such use of dogs, i.e., such a use would not be a search. The question is interesting, but we need not answer it here.”307 Or at 26 (footnote omitted).
The “dog-sniff’ of a person or of effects on or near a person presents a different issue than a “dog-sniff’ of an object insofar as privacy rights and the degree of intrusive action is concerned. State v. Boyce, 44 Wash App 724,
The majority makes several unwarranted assertions about the breadth of this analysis. First, every case under section 9 is fact specific. Our holding should go no further than to determine the legality of a dog-sniff under the circumstances of this case. Second, although not controlling, whether a physical intrusion occurs will always be an aspect of whether a “search” has occurred. Our focus should be on the intrusiveness of the police action. Third, although other states employ different analysis regarding the use of dogs to detect narcotics, their rulings apply social norms concerning how privacy interests of the kind involved here are viewed. Under the majority’s view, Oregon will be the first state to outlaw the use of dogs to detect narcotics unless a “reasonable suspicion” standard is subsequently adopted.