State v. Juarez-Godinez , 326 Or. 1 ( 1997 )

GILLETTE, J.

This is a criminal case in which defendant is charged with three counts of delivery of controlled substances (heroin, cocaine, and marijuana). The physical evidence in the case was seized pursuant to a search warrant. That warrant was obtained as a result of events that occurred after police stopped a car that defendant was driving. Those events included defendant’s arrest on an unrelated charge, a 31-minute delay thereafter, and then an external “sniff’ of the car by a trained dog, which led to discovery of drugs in the car.

Before defendant’s trial, the trial court issued an order suppressing all evidence obtained from the car, concluding that the detention and the ensuing dog-sniff were an unconstitutional seizure followed by an unconstitutional search.¹ On the state’s appeal, the Court of Appeals held that there had not been an unlawful detention, but affirmed on the ground that the dog-sniff violated defendant’s rights under Article I, section 9, of the Oregon Constitution. State v. Juarez-Godinez, 135 Or App 591, 900 P2d 1044 (1995). We allowed the state’s petition for review and now affirm, albeit on different grounds.

The following historical facts, taken from the trial court’s findings, are supported by the evidence. At approximately 1:25 a.m. on October 13, 1992, Oregon State Police Trooper Burdick stopped defendant’s car for exceeding the maximum speed limit. When Burdick approached defendant’s car, he noted that defendant and his two passengers were Hispanic and well dressed and that the car contained a number of aromatic air fresheners and no visible luggage. He learned that the occupants were on their way to Tacoma. Defendant identified himself to Burdick (untruthfully) as “Oscar Sanchez.” Defendant could not produce a driver license, but did give Burdick a temporary registration for the car.

Burdick ran a computer check on “Oscar Sanchez” and on the person named on the car’s registration (who was not present). Burdick learned that there was an outstanding warrant for an Oscar Alverez-Martinez, aka Oscar Sanchez, and that the car’s registered owner was on probation for delivery of a controlled substance. Burdick radioed for a backup officer and requested that Senior Trooper Milton and his drug-sniffing dog, “Bud,” be summoned to the scene. Shortly thereafter, the requested backup arrived.

At that point (approximately 15 minutes after the initial stop) Burdick arrested defendant for failure to display a valid driver license and placed him in the rear of the police car. Burdick then asked defendant if he could search the car for drugs, weapons, or large amounts of money. Defendant refused to consent. After defendant and his passengers declined to consent to a search of the car, Burdick told them that “Officer Milton was going to come and sniff search the car, and if the dog alerted on the car that I would apply for a search warrant.”

At 2:11 a.m., 46 minutes after the initial stop, Trooper Milton arrived with his dog. In the interim, the two passengers, who had been told neither that they were free to leave nor that they had to stay, remained in the vicinity. One of the passengers had a valid driver license, but neither passenger asked to be allowed to drive the car from the scene or to leave in any other way.

Upon Trooper Milton’s arrival, Burdick again asked defendant if he could search the car. Defendant again refused to consent. Milton then allowed “Bud” to sniff the exterior of the car. The dog “alerted” at the lower left corner of the passenger door — behavior that, according to Milton, indicated that the dog had detected the odor of a controlled substance. Burdick had the car impounded and applied for a search warrant by an affidavit that reported the foregoing facts. The search warrant was issued and, in the ensuing search, the police discovered substantial quantities of drugs, which led to the present charges.

Defendant moved to suppress the drug evidence, arguing that it was the product of (1) an unlawful detention of the car that he had been driving and (2) a warrantless search of the car, viz., the dog-sniff, that was not supported by probable cause or reasonable suspicion. The trial court granted the motion on both grounds.

On the state’s appeal, the Court of Appeals affirmed, concluding that the dog-sniff constituted an illegal search and that evidence obtained as a result of the dog-sniff therefore was properly suppressed. In so holding, the Court of Appeals first considered and then rejected the trial court’s alternative basis for suppression — illegal detention of the car. Juarez-Godinez, 135 Or App at 595-97. Like the Court of Appeals, we deal first with that threshold issue because, if the trial court’s ruling is correct in that respect, we need not consider the dog-sniff question.

In keeping with our traditional practice, we decide the question before us under the relevant provision of the Oregon Constitution, viz., Article I, section 9. See, e.g., State v. Campbell, 306 Or 157, 162, 759 P2d 1040 (1988) (stating principle). At the same time, we note that the recent adoption by the people of Measure 40, a constitutional amendment, may cause a significant change in that practice. Several constitutional issues concerning the validity of Measure 40 have been argued to this court recently. However, we have chosen to dispose of this case before resolving those arguments, because the outcome of this case would be no different, whether or not Measure 40 were applied to it.

Not all governmental intrusions trigger the protections guaranteed by Article I, section 9, of the Oregon Constitution. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). Thus, in determining whether a particular governmental action violates Article I, section 9, of the Oregon Constitution,² we first must decide whether the action is either a “search” or a “seizure” within the meaning of that section. At this juncture, we are concerned with what defendant asserts was a “seizure” of an effect, i.e., a car that was lawfully in his possession.

Property is “seized,” for purposes of Article I, section 9, when there is a significant interference, even a temporary one, with a person’s possessory or ownership interests in the property. Owens, 302 Or at 207; State v. Tanner, 304 Or 312, 745 P2d 757 (1987). Beyond that rather spare definition, orneases do not offer much in the way of explanation: Although they clearly indicate that a “seizure” of property occurs when police physically remove property from a person’s possession, State v. Elkins, 245 Or 279, 422 P2d 250 (1966), they have not dealt directly with nonphysical acts of interference with property.

We think, however, that our cases pertaining to seizures of persons are instructive.³ Those cases indicate, for example, that, for purposes of Article I, section 9, “interference” with a person need not be accomplished by means of physical force, but may result from a mere show of authority. State v. Warner, 284 Or 147, 165-66, 585 P2d 681 (1978) (police seized defendant when they “asked” him to return to tavern and place identification on table). Our cases show, moreover, that a police officer has seized a person, for purposes of Article I, section 9, if that person believes that he or she has been seized and that belief is objectively reasonable. See, e.g., State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991) (stating proposition);⁴ State v. Gerrish, 311 Or 506, 511, 815 P2d 1244 (1991) (same). Finally, our seizure-of-person cases hold that any examination into whether an encounter between a police officer and a citizen constitutes a seizure is necessarily a “fact-specific inquiry into the totality of the circumstances of the particular case.” Holmes, 311 Or at 408.

Those same precepts are helpful in determining when an object has been seized. Just as a person may be seized by a show of authority, so can a piece of property. Just as police conduct with respect to a person is tested according to what a defendant did believe and what an objectively reasonable person would believe under the circumstances, so is police conduct with respect to property. Finally, just as any determination as to whether a person has been seized necessarily involves a fact-specific inquiry, so does the determination as the whether an object has been seized.

With those principles in mind, we turn to the trial court’s conclusion that defendant’s car was unreasonably “detained,” i.e., “seized” in the constitutional sense. In reviewing that conclusion, we are bound by the trial court’s factual findings, as long as those findings are supported by evidence in the record. See Warner, 284 Or at 156-57 (stating proposition); Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968) (same). Moreover, if the trial court failed to articulate expressly a factual finding on some pertinent issue, we will assume that the facts were decided in a manner consistent with the court’s ultimate conclusions, as long as there is evidence in the record, and inferences that reasonably may be drawn from that evidence, that would support such a resolution. See State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993) (stating proposition); Warner, 284 Or at 156-57 (same).

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 interest 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.⁵ Indeed, Burdick’s request that defendant consent to the search at least arguably was a recognition of defendant’s possessory interest, and defendant’s refusal to allow Burdick to search was an effort to exercise that possessory interest.

The question, then, is whether there is evidence in the record to support a conclusion that Burdick interfered in some significant way with defendant’s possessory interest. We think that there is. In particular, there is evidence that Burdick told defendant and his companions, after Burdick was denied permission to search, that another officer and his dog were coming to check the car. Burdick’s statements were and reasonably could have been interpreted as curtailing, by a show of authority, defendant’s rights to transfer possession of, and direct the movements of, the car.

In view of the surrounding circumstances, a trier of fact reasonably could infer that, regardless of defendant’s wishes, Burdick was not going to allow the car to leave until Milton and his drug-sniffing dog arrived. A trier of fact also could infer from the fact that defendant did not ask if his companions could drive the car away (at a time when such inaction clearly was contrary to his self-interest) that defendant had interpreted Burdick’s statement as foreclosing that option.⁶ If the trial court, as trier of fact, did so find (and our standard of review, stated above at 7, requires us to assume that it did), then the car had been seized in the constitutional sense — by actually curtailing defendant’s right to direct the car’s movements or, at the very least, by causing defendant reasonably to believe that that right had been curtailed.

Having ascertained that the automobile was, in fact, “seized,” we must determine whether that seizure offended Article I, section 9, of the Oregon Constitution. We have stated, on various occasions, that a warrantless seizure is unconstitutional unless it is justified under one of a few carefully circumscribed exceptions to the warrant requirement. See, e.g., State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (so stating). We do not find that any exception applies to the circumstances in this case. We conclude that the seizure of the car was invalid.⁷

One final question remains: Does the fact that the car was unlawfully detained compel the suppression of evidence discovered in a subsequent search of the car? In other words, was that evidence a product of the unlawful detention? See Pooler v. MVD, 306 Or 47, 52, 755 P2d 701 (1988) (unlawful stop may invalidate an ensuing arrest, but only through the exclusion of evidence garnered from the stop).

Unquestionably, it was. As a result of the unlawful detention, the police were able to subject the car to a dog-sniff that, in turn, was used to obtain a search warrant. Without the evidence garnered from the detention, any application for a search warrant could have been supported only by Bur-dick’s observations of circumstances that, however much they may have piqued his curiosity, were relatively unremarkable: (1) defendant and his companions were Hispanic and expensively dressed, (2) the car’s occupants were making a long trip with no visible luggage, (3) the car was owned by a drug offender, (4) defendant was “visibly nervous” and unable to produce identification, and (5) the car smelled of aromatic air fresheners and was registered to a third party who was on probation for delivery of a controlled substance. Even when viewed through the filter of Burdick’s training and experience, those observations did not amount to probable cause and were, consequently, insufficient to support the issuance of the search warrant. Cf. State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977) (in the absence of any very remarkable activity, police officer’s instinct and experience cannot, by themselves, justify stop).⁸

We conclude that Burdick’s detention of defendant’s car until it could be sniffed by “Bud” amounted to a seizure, that the seizure violated Article I, section 9, of the Oregon Constitution, and that the evidence that was obtained in the subsequent search of defendant’s car pursuant to a search warrant was a product of that unlawful seizure.

Although the question is a close one, it does not appear to us that the result in this case would be different under the Fourth Amendment. Although the United States Supreme Court holds that investigative detentions of personal property can be constitutionally valid, United States v. Place, 462 US 696, 706, 103 S Ct 2637, 77 L Ed 2d 110 (1983), the facts arousing the officer’s suspicions here were too minimal, and the duration of the seizure too lengthy, to meet the requirements of the Place rule. Compare United States v. Sokolow, 490 US 1, 10-11, 109 S Ct 1581, 104 L Ed 2d 1 (1989) (fact that the defendant bought two airplane tickets for total of $2,100 from roll of $20 bills, traveled under name different from that listed for his telephone number, was headed for Miami a source of illegal drugs, traveled for 10 hours from Honolulu, to stay in Miami for 48 hours, appeared nervous, and did not check his luggage supported a reasonable suspicion of wrongdoing).

We hold that the trial court’s order suppressing evidence was, on the facts found by that court, constitutionally correct under both state and federal constitutions. The Court of Appeals decision thus reached the right result.⁹

The decision of the Court of Appeals is affirmed. The order of the circuit court is affirmed.

1 The trial court did not say whether it reached that conclusion under Article I, section 9, of the Oregon Constitution, the Fourth Amendment to the United States Constitution, or both.

2 Article I, section 9, provides:

“No law shall violate the right of the people to he secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

The text of the Fourth Amendment to the United States Constitution is the same in all material respects.

3 There is an obvious relationship between the two types of seizures that is reflected in their respective definitions. As discussed, we define seizure of an effect as a significant interference with an ownership or possessory interest. In a similar vein, we define seizure of a person as a significant interference with an individual’s liberty of movement. State v. Holmes, 311 Or 400, 409, 813 P2d 28 (1991).

4 In Holmes, the court said that a seizure of a person occurs under Article I, section 9, of the Oregon Constitution:

“(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable under the circumstances.”

(Footnote omitted.)

5 Certainly, there was no legal barrier to such an outcome: At least one of the passengers held a valid driver license.

6 Of course, a different inference might be drawn from defendant’s inaction, i.e., that defendant failed to ask for the car’s release because he did not wish to or think to have the car driven away. In holding that a seizure did not occur, because defendant and his companions never asked to have it released, the Court of Appeals appears to have relied on that very inference. State v. Juarez-Godinez, 135 Or App 591, 597, 900 P2d 1044 (1995). But, because a legitimate alternative inference supports the trial court’s ultimate conclusion (that defendant believed that making such a request would be futile), we must assume that the trial court drew that inference.

7 The dissent takes a different view of both the facts and the law. As to the facts, it may be that the evidence is such that the trial judge could have made findings that accord with the dissent’s view. The point, however, is that the judge did not do that. See, e.g., State v. Warner, 284 Or 147, 156-57, 585 P2d 681 (1978) (assumption is that facts were found consistent with trial court’s ultimate legal conclusion, where evidence would support such findings). Moreover, it does not appear to us that the state, which lost at trial, argued to the Court of Appeals the legal theory on which the dissent now relies. The state is not entitled to prevail on that theory now. See, e.g., State v. Hickmann, 273 Or 358, 540 P2d 1406 (1975) (illustrating proposition).

8 The state argues that, in order to conclude that the drug evidence was obtained as the result of the unlawful action, we must find affirmative evidence in the record showing that defendant’s companions would have driven the car elsewhere but for Officer Burdick’s actions. We disagree. Not only does that proposition erroneously relieve the state of its burden of proving that the warrantless seizure of the car was justified, it does so by reviving a factual issue that we already have addressed. As we have stated earlier in this opinion, the trial court was entitled to infer (and we assume that the trial court did infer) from defendant’s inaction that defendant believed that the car had been seized and that requesting its release would have been futile. Insofar as Burdick’s actions provided the basis for that belief, they resulted in defendant’s inaction and, consequently, in the car’s continuing presence at the scene.

9 Because we determine that the police impermissibly seized defendant’s car, we need not decide whether the use of “Bud” during that seizure was a search for constitutional purposes.