State v. Barnthouse ( 2016 )

No. 64 October 6, 2016 403
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. 271 Or App 312, 350 P3d 536 (2015).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
404 State v. Barnthouse
Case Summary: A postal inspector and police officers detained a suspicious
looking USPS express mail package addressed to defendant at a US mail sort-
ing facility, subjected it to a dog sniff, and then hand-delivered it to defendant’s
house, where, without handing over the package, they asked defendant for con-
sent to a search of its contents. Defendant consented and the search revealed a
substantial amount of money. Defendant subsequently also consented to a search
of his room, where the officers found a large quantity of marijuana and various
shipping materials. Before defendant’s trial on charges of unlawful possession of
marijuana and delivery of marijuana for consideration, defendant moved to sup-
press the evidence found in the package and in his room on the ground that the
package was seized in violation of the Oregon and United States Constitutions.
The trial court suppressed the evidence, the state filed an interlocutory appeal,
and the Court of Appeals affirmed. Held: Defendant had a constitutionally pro-
tected possessory interest in the package while it was in transit that, at a min-
imum included the right to receive delivery of it by its guaranteed time, and,
by significantly interfering with that interest by retaining physical control over
the package and curtailing its guaranteed delivery, the police officers seized the
package in violation of Article I, section 9, of the Oregon Constitution.
The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.
Cite as 360 Or 403 (2016) 405
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
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.
406 State v. Barnthouse
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.1 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
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,
1
When defense counsel asked Castaneda why he did not apply for a warrant,
he responded: “[T]here’s other ways of opening the package.”
Cite as 360 Or 403 (2016) 407
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.2 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.
2
At the suppression hearing, the parties stipulated, in addition to the evi-
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.”
408 State v. Barnthouse
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.
Cite as 360 Or 403 (2016) 409
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-
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
410 State v. Barnthouse
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-
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
Cite as 360 Or 403 (2016) 411
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.”
Id. at 338. That is, the officers “deprived defendant of his
412 State v. Barnthouse
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 338-39.3 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
3
In so concluding, the Court of Appeals specifically referred to the trial court’s
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.
at 339 n 9.
Cite as 360 Or 403 (2016) 413
and his bedroom satisfied the consent exception to the war-
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[.]”4 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 P3d 1189 (2007).
Somewhat different, albeit interrelated, interests are impli-
cated 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 P2d 524 (1986), whereas a sei-
zure 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 P2d 722 (1997); Owens, 302 Or at 207. See Newcomb,
359 Or at 764 (“Although the two interests—privacy and
ownership/possession—are not necessarily coextensive,
property law concepts of ownership and possessory rights
can bear significantly on the existence or nonexistence of a
protected privacy interest in the property.”). The state’s first
two arguments are directed at establishing that the offi-
cers did not effect a seizure because, according to the state,
defendant did not have a constitutionally protected posses-
sory interest in the package and, even if he did, there was no
significant interference with that interest.
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
4
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[.]”
414 State v. Barnthouse
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, 347 Or 610, 624, 227 P3d 695
(2010). The state’s third argument is directed at establish-
ing the reasonableness of any seizure in this case because,
according to the state, the officer’s reasonable suspicion sat-
isfied an exception to the warrant requirement allowing for
the temporary detention of the package.
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
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,
5
See Barnthouse, 271 Or App at 325 n 3 (“Defendant does not argue that he
had any ownership interest in the package.”).
Cite as 360 Or 403 (2016) 415
e.g., Newcomb, 359 Or at 773 (describing “seizure,” whether
under Article I, section 9, or under Fourth Amendment, as
significant interference with “possessory interest” in prop-
erty). The concept of a possessory interest, as it is pertinent
to Article I, section 9, is grounded in property law. Id. at
764; Howard/Dawson, 342 Or at 642-43.
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.6 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
6
In State v. Kosta, 304 Or 549, 748 P2d 72 (1987), police officers stopped a
Federal Express truck and exposed a package inside to a dog sniff. In rejecting
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
alluded to, but did not reach, the issue before us:
“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).
416 State v. Barnthouse
Constitution. See Newcomb, 359 Or at 764. So, too, does the
existence of defendant’s accompanying constitutionally pro-
tected privacy interest in the package while it was in the
stream of mail. See Jackson, 96 US at 733; see also Newcomb,
359 Or at 764 (explaining interrelatedness of privacy and
possessory interests in property); State v. Cook, 332 Or 601,
609, 34 P3d 156 (2001) (referring, for purposes of Article I,
section 9, to “the privacy interests that accompanied the
right to possess [items]”). In fact, Castaneda arguably
acknowledged defendant’s possessory interest in the pack-
age when he sought defendant’s consent to open and search
it. See Juarez-Godinez, 326 Or at 7-8 (officer’s “request that
defendant consent to the search at least arguably was a rec-
ognition of defendant’s possessory interest”).
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.7
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 P3d 309, adh’d to as modified on recons, 350 Or 233,
P3d 1030 (2011), (holding that, in accessing Internet web-
page and intentionally calling digital images of child sex-
ual abuse onto computer screen, defendant did not “possess”
images within meaning of statute criminalizing possession
of digital images of sexually explicit conduct involving chil-
dren); State v. Casey, 346 Or 54, 203 P3d 202 (2009) (hold-
ing that defendant charged with being felon in possession of
firearm did not possess a firearm that he did not know was
concealed on a guest’s person).
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
7
See State v. Oare, 249 Or 597, 599, 439 P2d 885 (1968) (“Evidence of the
control or the right to control is necessary to constructive possession.”). The state
focuses on constructive possession because defendant concedes that he did not
actually possess the package while it was in the stream of mail.
Cite as 360 Or 403 (2016) 417
because not all constitutionally protected possessory inter-
ests in property are necessarily accompanied by possession,
whether actual or constructive. On that point, other author-
ity from this court is more instructive than the decisions
that the state cites.
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.”
326 Or at 7. In short, at the point when the police arguably
seized the defendant’s car, the defendant had neither actual
possession nor control-based constructive possession of the
418 State v. Barnthouse
car. Nevertheless, this court held that he had a possessory
interest in it under Article I, section 9. Juarez-Godinez thus
shows that a person may have a protected possessory inter-
est in property under Article I, section 9, notwithstanding
being unable to assert dominion or control over it—that is,
even though the person is not in actual or constructive pos-
session of it.
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.8 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
8
The parties, as did the Court of Appeals in its analysis, primarily focus their
arguments concerning the existence and scope of defendant’s possessory interest
in the package on various provisions of the Domestic Mail Manual published by
the United States Postal Service. Specifically, they point to the provisions that
make clear that addressees “may control delivery of their mail” by requesting
that it be held for pickup or delivered to a different address. See Barnthouse, 271
Or App at 330 (quoting USPS Domestic Mail Manual, §§ 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
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.
Cite as 360 Or 403 (2016) 419
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-
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, 326 Or at 7(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 pack-
age and, therefore, seized it. See id. at 8 (describing seizure
effected by curtailment of defendant’s possessory interest).
420 State v. Barnthouse
C.  Was the Seizure Unreasonable? – the State’s Unpreserved
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, 347 Or at 621, a brief investigative
seizure of property should not be subject to a more stringent
standard.9
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, 360 Or 392, 393 n 1, ___ P3d ___ (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,10 we conclude that
9
See United States v. Place, 462 US 696, 103 S Ct 2637, 77 L Ed 2d 110(1983) (applying principles of Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d
889 (1968), which permits warrantless investigative seizure of person based on
reasonable suspicion, to hold that government may temporarily seize property
without warrant and without violating Fourth Amendment based on reasonable
suspicion that it is associated with criminal activity).
10
As noted, the state argued in the Court of Appeals that the trial court also
erred in ruling that defendant’s consents to the searches of the package and his
bedroom were invalid insofar as the officers exploited the seizure of the package
Cite as 360 Or 403 (2016) 421
the seizure of the package violated Article I, section 9.11
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 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.
11
Having concluded that the seizure of the package was unlawful under
Article I, section 9, we do not consider its lawfulness under the Fourth Amendment.