Argued and Submitted February 11, 2014.
[Copyrighted Material Omitted]
120431515. Multnomah County Circuit Court. Christopher J. Marshall, Judge.
David B. Thompson, Senior Assistant Attorney General, argued the cause for appellant. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Stephen A. Houze argued the cause and filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 314] NAKAMOTO, J.
Police removed a package intended for delivery to defendant from the stream of mail at a United States Postal Service sorting facility. A drug-detection dog alerted to the presence of narcotic odor in the package. Later, without a warrant, the police took the package to defendant's residence and obtained defendant's consent to search the package and his bedroom. Based on the evidence discovered, defendant was charged with one count each of unlawful possession of marijuana, ORS 475.864, and delivery of marijuana for consideration, ORS 475.860. The trial court concluded that the police unlawfully seized the package in violation of both the Oregon and United States constitutions when they removed it from the stream of mail and that they subsequently exploited that seizure to gain defendant's consent to the searches. The court therefore suppressed all evidence obtained pursuant to the seizure and subsequent search. The state appeals that pretrial order. According to the state, defendant had no constitutionally cognizable possessory interest in the package, and, therefore, the police did not unlawfully seize it. The state argues, in the alternative, that, even if the police did illegally seize the package, they did not exploit that illegality in obtaining defendant's consent to the searches. For the reasons explained below, we affirm the trial court's order.
We base our statement of the facts on the trial court's findings. " If findings of historical fact are not made on all pertinent issues and there is evidence from which such facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion." State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).
As part of an inter-agency drug interdiction team, United States Postal Inspector Helton and Portland Police Bureau (PPB) Officers Castaneda and Groshong regularly examine in-transit U.S. mail at a postal air
cargo center near the Portland International Airport for packages that might contain illegal drugs or drug money. Postal [271 Or.App. 315] inspectors are federal law enforcement agents. At the hearing on defendant's motion, Helton testified that his primary duties pertain to the interdiction of drugs and drug money. Although he has the authority under federal law to handle ( e.g., deliver) mail, that is not his assigned job. According to Helton, when PPB officers are present at the sorting facility, they are operating under his authority in their handling of the mail and assisting him with his duties. Indeed, pursuant to postal regulations, nonpostal employees in a postal facility must be escorted by an employee.
The air cargo center is a secure facility. The public is not allowed there, and there is no customer service located at the air cargo facility. So, an intended recipient could not show up and pick up a package there. However, Helton testified that there is " a time along this path of delivery, that the public could intercede" ; " a customer could go to their local post office and say I'm expecting an express mail package, if you could hold it out and let me pick it up early in the morning, I know that postal employees will provide that service for customers, * * * [b]ut before then there's not a chance for the public to interact with, you know, with postal employees."
When examining and investigating packages at the sorting facility, the interdiction team typically follows the same basic routine. Early in the morning, large bags of mail are offloaded from incoming flights. Bags containing express mail are clearly distinguished from other bags. Postal employees open the bags and empty their contents into large sorting bins. Express mail packages are sorted in a separate area from priority mail. Postal employees sort through the express mail bins to track and route packages to their final destinations. They place the packages into express mailbags that are designated to be delivered to a specific post office, from which a postal carrier takes and delivers the package to the intended recipient by the time specified on the face of each package, typically, either by noon or 3:00 p.m. that day, depending on the delivery location. As the postal employees are sorting through the bins, members of the interdiction team stand next to the bins and inspect their contents for packages that they believe may contain contraband.
[271 Or.App. 316] They look for packages bearing exterior indicators that they deem characteristic of illegal-drug or drug-money parcels. Such indicators include the " overtaping" of a package's seams; handwritten, as opposed to printed, shipping information; delivery from an individual to an individual, rather than to or from a business entity; variation between the zip code from which a package was sent and the zip code listed for the return address; payment for delivery by cash or debit card, instead of billing to a business account; origination from a non-medical-marijuana state; waiver of any signature requirement at delivery; and use of possibly fictitious or incomplete identifying information for the sender or recipient. Helton testified that it is common for the public to send express mail packages using handwritten labels and for people, including himself, to use cash to pay their fee.
If, based on the presence of one or more of those indicators, the interdiction team decides to investigate a package, they then remove the parcel " from the normal stream of mail" to a " secondary" area 30 feet away from the sorting bins to subject it to a narcotics canine deployment line. They place the package on the floor in a line with six other " control" packages, and Groshong deploys his narcotics dog, Nikko, to examine the packages. Groshong testified that Nikko has an accuracy rate of approximately 90 percent, indicating that, about 10 percent of the time, Nikko alerts to packages that do not actually contain narcotics. Conversely, Nikko has also failed to alert to packages at the sorting facility that were later determined to contain contraband.
The package is then set aside for further investigation, whether or not Nikko alerts to it. At that point, there is " no chance it's going to get back into the stream of mail." Rather, it is " under [Helton's] control in a law enforcement sense." It is placed on a cart, separate from the standard sorting bins,
with other express mail packages that the team is " holding out for that day" for investigation. The team conducts between 30 to 40 lineups each day. About seven to 14 parcels are set aside daily for further investigation. According to Groshong, the team currently investigates a greater relative number of packages that have elicited no [271 Or.App. 317] alert from Nikko than in the past. Helton testified that postal employees know that those are " my packages, and I need to hold onto those" from then on; postal employees are prohibited from tampering with or attempting to deliver those packages.
As the team continues to examine and identify packages for further investigation, they may also begin to investigate packages already set aside that morning by, for example, searching law enforcement databases for information related to the addresses or names listed on the packages. Finally, as Helton testified, for each package, " that same day, usually by delivery time, we try to make contact with the intended recipient." As Castaneda elaborated, the team takes each package to its delivery address, they " knock on the door with the package, usually accompanied by a postal inspector, and try to get consent to open the package, or wherever basically that investigation takes us."
Helton testified that it is United States Postal Service (USPS) policy that a federal search warrant must be obtained to open packages coming through the U.S. mail, but noted that " [o]ne of the exceptions to the search warrant requirement, under both the federal and state constitution[s,] * * * is consent of someone who has an expectation of privacy in that particular package." Helton, Castaneda, and Groshong each testified differently regarding the authority of PPB officers to seek a search warrant. Helton stated that PPB officers can apply for a state warrant and serve as the affiant for federal search warrants as well. Groshong stated that PPB officers are prohibited by USPS policy from applying " for search warrants in these types of cases." And, according to Castaneda, the responsibility for applying for a search warrant for their investigations usually rests with the individual officer who leads the " knock-and-talk" ultimately conducted at the address of the intended recipient.
The officers also testified concerning how long it would take to obtain a warrant. Groshong estimated that it typically takes several hours to obtain a federal search warrant: the time spent preparing the affidavit; finding an Assistant United States Attorney to review the warrant [271 Or.App. 318] (1-2 hours); and getting an appointment with a federal judge (1-2 hours). Helton has previously applied for federal search warrants to open U.S. mail, and for Oregon search warrants as well. He is familiar with the process for telephonically obtaining federal search warrants but has never done so. He does not know how long it would take to get a state search warrant by phone, although he knows that there is always a duty judge available to officers by phone specifically for that purpose in Multnomah County. Castaneda stated that he has applied for a search warrant in Multnomah County several times after identifying suspicious parcels at the postal air cargo center.
One morning, Helton, Castaneda, Groshong, and another PPB officer, Francas, were examining express mail packages as they were being sorted at the air cargo center. At about 6:00 a.m., Castaneda noticed a package with hand-written labeling, sent from Delaware (a non-medical-marijuana state), with an originating zip code different from the sender's zip code. The package was addressed to " Maxi-pad Barnt" ; was paid-for by cash or debit card, with no phone number listed for either the sender or recipient; and had a signed and highlighted signature-waiver box. The package was scheduled to be delivered by noon that day. Helton later testified that he believed that the clerk who had accepted the package in Delaware was likely the one who highlighted the waiver signature box, stating that that is a " typical" practice.
Castaneda placed the package in a dog-deployment line, and Nikko alerted to the package. Castaneda " took custody of the parcel," gave it to Helton, and returned to examining the bins for other packages that might contain contraband. Helton searched law-enforcement databases for any information
related to the shipping information on the package. Helton's search did not reveal any information suggesting that either the recipient's address or the sender's address were associated with any criminal activity, and the officers had no prior knowledge or suspicion of defendant being involved in any criminal activity. Helton did discover, though, that, not surprisingly, no one named " Maxi-pad Barnt" lived at the intended recipient's address and that the [271 Or.App. 319] sender's apartment number as listed on the package (" C7" ) differed from the apartment number that Helton found for the sender (" C27" ).
After completing their examination of the sorting bins, the interdiction team (Castaneda, Groshong, Francas, and Helton) conducted follow-up investigations into packages that they had identified that morning as suspicious. Groshong testified that all of the " local follow-ups" that day " for the Portland area were knock-and-talk follow-ups." At 9:30 a.m., the team arrived at defendant's residence with the package. Nobody had attempted to obtain a search warrant during the three-and-a-half-hour period between the positive dog-alert and arriving at defendant's residence. According to Helton, he and Castaneda decided together not to apply for a search warrant in this case. Castaneda testified that nothing impeded his ability to apply for a search warrant that morning. When asked on cross-examination why he did not apply for a warrant, Castaneda replied, " I--I--there's other ways of opening the package." The following colloquy then took place:
" [DEFENSE COUNSEL:] You didn't have to go through the trouble of trying to get a search warrant, did you?
" [CASTANEDA:] No, I did not.
" Q Okay. Instead, you went to the residence and tried to talk your way in and to try to get consent.
" A Correct."
Once at defendant's residence, Castaneda knocked on the front door and two individuals answered. One was a resident of the home, and the other was a friend staying there. Castaneda identified himself as a Portland police officer and asked if either of them was expecting a package. After they replied that they were not, Castaneda asked them if they recognized the name of the addressee. They answered that it was probably for defendant, who lived at the residence. Castaneda asked if he could use the roommate's cell phone to call defendant, whose number was listed in the phone, from inside the residence, and the roommate consented.
[271 Or.App. 320] Castaneda placed the call, and defendant answered. Castaneda identified himself as a Portland police officer and asked with whom he was speaking. Defendant gave Castaneda his name. Castaneda explained to defendant that " he was not under arrest, but that I was investigating a suspicious parcel going to the residence." Defendant responded that he was not expecting any package. Castaneda replied that the other individuals at the house stated that they were not expecting a package, and that the name on the parcel was similar to defendant's name. Defendant repeated that he was not expecting any package.
Castaneda asked defendant for consent to open the parcel. According to Castaneda, defendant " was a little hesitant at first." Castaneda told defendant that he could deny consent and repeated that he was not under arrest. Castaneda then stated that, if defendant denied consent, he would apply for a search warrant. Defendant acquiesced, and Francas opened the package, inside of which were several stacks of currency wrapped in a t-shirt. Castaneda told defendant what they had found in the package. Defendant told Castaneda that the money was not his and that he was not expecting any money.
Castaneda then told defendant that he was continuing the investigation and asked defendant for consent to search his bedroom for evidence of narcotics distribution and money laundering. Defendant replied that he was not sure that he wanted to consent. Castaneda repeated that defendant was not under arrest and that he had the right to refuse consent, but that if he did, Castaneda would apply for a warrant to search the residence. Defendant then consented to a search of his bedroom. At that point, according to Castaneda, " it seemed like [defendant] was getting really nervous," and defendant stated
that " he wanted to get off the phone." Castaneda gave defendant his contact information, and the phone call ended. Upon searching defendant's bedroom, the police discovered a large amount of marijuana, packaging materials similar to the parcel detained that morning, and a vacuum sealer.
The package did not leave the officers' physical possession during the time that they were at the house. [271 Or.App. 321] The officers maintained control and custody of the package during the knock-and-talk and the searches, and they took the package to the police property room after leaving defendant's residence. A warrant was never obtained. When asked by the deputy district attorney, " If there hadn't been a dog hit in this case, would you have changed anything about your investigation?" Castaneda replied, " No, I wouldn't. I would have continued. I would have still went to the house and continued the same way."
As noted above, based on the evidence discovered, defendant was charged with one count each of unlawful possession of marijuana, ORS 475.864, and delivery of marijuana for consideration, ORS 475.860. In a pretrial motion to suppress, defendant argued 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. According to defendant, under both federal and state constitutional jurisprudence, he held protected privacy and possessory interests in the package the entire time that the police detained and investigated it. The police significantly interfered with that interest, argued defendant, when they removed the package from the sorting bin and detained it for a dog sniff. Defendant contended that, at all points in time, the police lacked probable cause to seize the package and that no exception to the warrant requirement applied to excuse their unlawful conduct. Defendant also asserted that the police lacked reasonable suspicion to support the initial seizure of the package from the sorting bin and that, in any case, with regard to Article I, section 9, reasonable suspicion does not excuse warrantless investigative detentions of property. Additionally, defendant argued that the police planned to and did in fact exploit their initial, unlawful detention of the package to evade the necessity of obtaining a warrant by gaining defendant's consent to seize and search the package and search his bedroom. According to defendant, his consent was not free and voluntary, and all of the evidence gathered subsequent to and as a result of the original seizure was fruit of the poisonous tree. Defendant moved to suppress all evidence gained from the unlawful police conduct, including evidence of the dog sniff, [271 Or.App. 322] the items found through the searches of the package and of defendant's residence, and the statements that he made to Castaneda on the phone.
The state responded that defendant's possessory interest in the package was limited under federal law--and should be likewise limited under state law--to a reasonable expectation that the package would not be detained by postal employees beyond the guaranteed delivery date and time. Therefore, the state argued, when the interdiction team removed defendant's package from the normal stream of mail, they did not " seize" the package for purposes of Article I, section 9, or the Fourth Amendment. The state reasoned that, because Helton and Castaneda took the package to defendant's residence before the guaranteed delivery time, at a point when defendant had no right yet to exercise any dominion or control over the package, there was no state action that sufficiently interfered with any possessory interest of defendant's. The state argued, in the alternative that, even if the package was seized pursuant to Article I, section 9, and the Fourth Amendment, there was reasonable suspicion to effect that seizure. The state also contended that, even if the detention of the package ...