This post examines an opinion from the Oregon Supreme Court:
State v. Barnthouse, 380 P.3d 952
(2016). The post is long because the opinion describes the facts in the case in
detail and is also careful to outline the legal issues and how they are
applicable, or are not applicable, to the legal issues in the case. Or, as lawyers say, this is a
“fact-sensitive” decision.
The court begins by explaining that the
issue on review in this case is whether
police officers' 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.
State v. Barnthouse,
supra.
The Supreme Court went on to explain, in some detail, how
and why Barnthouse was charged with possession of marijuana and delivery of
marijuana. State v. Barnthouse, supra.
Inter-agency drug interdiction teams
comprising United States Postal Service (USPS) inspectors and local police
officers routinely examine in-transit mail at USPS mail sorting centers,
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 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 apparently 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 handwritten 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 interdiction team,
then came from around a corner with a dog, who alerted to the presence of
contraband in the package.
State v. Barnthouse,
supra.
The opinion goes on to explain that, 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 investigation. Helton
placed the package on a cart designated for mail that the dog had identified
and conducted computer 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 clarified, if the dog had not alerted
to the package, nothing about the investigation would have changed.
State v. Barnthouse,
supra.
The court goes on to point out that,
[a]t 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 must be for defendant, their housemate, who was
not there.
Castaneda obtained defendant's full
name and phone number from them and called him. When defendant answered,
Castaneda told defendant that he was a police officer and asked to whom he was
speaking. Defendant identified himself. Castaneda explained to defendant
that he was not under arrest but that Castaneda was investigating a suspicious
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 defendant, 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
packaging 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
marijuana for consideration.
State v. Barnthouse,
supra.
The opinion then takes up the legal issues in the case,
explaining that prior to his trial,
defendant moved to suppress the
evidence discovered in the searches of the package and his bedroom. Defendant
argued that, under both Article I, section 9, and the Fourth Amendment,
the officers had unlawfully 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 particular, defendant asserted that
he had a constitutionally protected 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 initially seized the
package, when they removed it from the sorting bin and set it aside for a dog
sniff. Moreover, defendant argued:
`And the further they go, the more it
is clear as can be that indeed we do have a seizure from a constitutional
perspective. 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 happen with
this package.
`* * * [By the time of the dog sniff,]
a seizure had happened. 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.’
State v. Barnthouse,
supra.
The Supreme Court’s opinion goes on to explain that the
trial court
also determined that there was neither
reasonable 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 circumstances 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 standards, 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 package. The waiver of the
signature upon delivery being highlighted [;] * * * the sending post office was
in a different zipcode [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.’
State v. Barnthouse,
supra.
The Court’s opinion then explains that the trial court judge
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 defendant'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
seeking 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 challenged evidence.
State v. Barnthouse,
supra.
The Supreme Court’s opinion goes on to explain that the
state (the prosecution)
appealed the suppression order. Before
the Court of Appeals, the state argued that, until the guaranteed time for
delivery of the package had passed, defendant 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 transit.
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
consent 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.
State v. Barnthouse,
supra.
The opinion goes on to explain that the Court of Appeals
affirmed the trial court's suppression
ruling. State v. Barnthouse, 271 Or.App. 312, 350 P.3d 536 (2015).
The court first held that, as its addressee, defendant had a constitutionally
protected possessory interest 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 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 to customers.’ State v. Barnthouse at 330, 350 P.3d 536.
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
possessory 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, 350 P.3d 536.
State v. Barnthouse,
supra.
The Supreme Court then opinion goes on to explain that the
Court of Appeals
`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, 350 P.3d 536.
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 warrant, 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, 350 P.3d 536. The court
held that once the officers took possession of the package and decided to seek
defendant's consent to search it, and thereafter, while maintaining physical
control of the package during the `knock and talk’ operation, `the
interdiction team quite literally dispossessed defendant of the package.’ Id.
at 338, 350 P.3d 536. That is, the officers `deprived defendant of
his package as well as his right to control its course through the mail.’ Id. at
339, 350 P.3d 536. The Court of Appeals concluded that it was reasonable to
infer that the officers would maintain possession of the package while a
warrant was sought if defendant refused consent to search. Id. at
338–39, 350 P.3d 536. As a consequence, the court held, `the government
significantly interfered with defendant's constitutionally protected possessory
interest 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, 350 P.3d 536.
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, 350 P.3d 536.
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 suppression ruling and the decision of the Court of Appeals,
albeit based on somewhat different reasoning.
State v. Barnthouse,
supra.
The Supreme Court then began its analysis of the legal
issues in the case, explaining that
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 possessory 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 argument 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 argument before the Court of
Appeals that, if a seizure occurred, defendant's eventual consent to the
searches of the package and his bedroom satisfied the consent exception to
the warrant requirement.
State v. Barnthouse,
supra.
The Supreme Court began its analysis of the legal issues in
the case by explaining that
[i]n 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 P.3d 434 (2016). Article I, section 9, provides, in part: `No law
shall violate the right of the people 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, 342 Or. 635, 639–40, 157 P.3d 1189 (2007). Somewhat different,
albeit interrelated, interests are implicated in a search than in a seizure. A
search occurs when the government invades an individual's privacy
interest, State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986),
whereas a seizure occurs when there is a `significant interference, even a
temporary one, with a person's possessory or ownership interests in the
property.’ State v. Juarez–Godinez, 326 Or. 1, 6, 942 P.2d 772
(1997); 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 `unreasonable.’ State v. Fair, 353 Or. 588,
602, 302 P.3d 417 (2013). Subject to certain limited exceptions, a search or
seizure is unreasonable and, therefore, unlawful under Article I,
section 9, unless it is supported by probable cause and a warrant. State
v. Rodgers/Kirkeby, 347 Or. 610, 624, 227 P.3d 695 (2010). The state's
third argument is directed at establishing the reasonableness of any seizure in
this case because, according to the state, the officer's reasonable suspicion
satisfied an exception to the warrant requirement allowing for the temporary
detention of the package.
State v. Barnthouse,
supra. The court goes on to explain that
[w]e 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 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 constitutionally 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 U.S. 727, 733 (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. 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.
State v. Barnthouse,
supra.
And the opinion then explains that 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, e.g., Newcomb, 359 Or. At 773, 375 P.3d 434
(describing `seizure,’ whether under Article I, section 9, or under Fourth
Amendment, as significant interference with `possessory interest’ in property).
The concept of a possessory interest, as it is pertinent to Article I, section
9, grounded in property law. Id. at
764, 375 P.3d 434; Howard/Dawson, 342
Or. 642-43, 157 P.3d 1189.
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 F.2d 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 delivered to designated address
by guaranteed day and time). . . .
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
sufficient dominion or control over the package to have constructive 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, 349 Or. 553, 247 P.3d 309 . . . (2011) (holding
that, in accessing Internet web-page and intentionally calling digital images
of child sexual abuse onto computer screen, defendant did not
“possess” images within meaning of statute criminalizing possession of digital
images of sexually explicit conduct involving children). . . .
But the issue here
is not whether defendant possessed the package; rather it is
whether defendant had a protected possessory interest in it.
The difference matters because not all constitutionally protected
possessory interests in property are necessarily accompanied by possession,
whether actual or constructive. . . .
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 notwithstanding, we conclude
that that possessory interest was protected under Article I, section 9.
State v. Barnthouse,
supra.
The Supreme Court then took up the next two issues: (i) Did
the state significantly interfere with defendent’s possessory interest? and, if
so, (ii) Was the seizure reasonable?
As to the first issue, the Supreme Court explained that,
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 residence 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 delivery
that's going to happen. And then we saw what that delivery 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 reasonable 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, 326 Or. at 7, 942 P.2d
772 (appellate court is bound by trial court's factual findings in
suppression hearing, as long as those findings are supported by evidence in
record). Under those circumstances—that is, where, having physical control of
the package, the officers curtailed its guaranteed delivery to defendant—the
trial court did not err in concluding that the officers significantly
interfered with defendant's possessory interest in the package and, therefore,
seized it. See id. at 8, 942 P.2d 772 (describing seizure
effected by curtailment of defendant's possessory interest).
State v. Barnthouse,
supra.
And, finally, the court took up the third and final
issue: Was the seizure “reasonable?” It
began by explaining that
[o]ur conclusion that the package was
seized ordinarily 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
probable 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 suspicion of criminal activity without
violating Article I, section 9, Rodgers/Kirkeby, 347 Or. at
621, 227 P.3d 695, a brief investigative seizure of property should not be subject to a more stringent standard.
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 reasonable 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 ≠ORAP9.20(2) (questions 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, 360 Or.
392, 393 n. 1, 380 P.3d 975, 975 (2016) (applying rule and declining to
consider arguments not raised in Court of Appeals). Because the state has not
advanced any other argument supporting a different outcome, we conclude
that the seizure of the package violated Article I, section 9. Because
the package was unlawfully seized, the trial court correctly suppressed the
evidence discovered as a result of that seizure.
The decision of the Court of Appeals
and the judgment of the circuit court are affirmed.
State v. Barnthouse,
supra.
