State v. Barnthouse
Case # A153361
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A153361.pdf
United States Postal Inspectors regularly examine in-transit U.S. mail at a postal air cargo center near Portland International Airport for packages that might contain illegal drugs or drug money. They look for particular exterior indicators, including “overtaping” of a package’s seams, handwritten shipping information, variation between the zip code from which a package was sent and the zip code listed for the return address, as well as other things. One morning, the inspectors noticed a package with handwritten labeling, sent from 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,” had been paid for by cash or debit card, had no phone number listed for either the sender or receiver, and had a signed and highlighted signature-waiver box. An interdiction team separated the package and set it with control boxes for a drug dog sniff. The drug dog alerted to a package. The investigators took custody of the package and researched the sender and recipient. Unsurprisingly, no one named “Maxi-pad Barnt” lived at the recipient address. About three-and-a-half hours after the dog alerted, the Portland Police Bureau Officers took the package to defendant Barnthouse’s – the recipient’s – house. Although they later testified that they could have, none of the Officers attempted to get a search warrant for the package. In fact, at trial one of the Officers testified that they intended to go to the residence and “talk” their way in and try to get consent to open the package.
Barnthouse was not at home when the Officers arrived, but his roommates gave the Officers his phone number. The Officers called Barnthouse and asked if he was expecting a package. Barnthouse told the Officers he was not expecting a package, and the Officers asked Barnthouse for permission to open the package. One Officer told Barnthouse that he could deny consent and told him again that he was not under arrest. The Officer also said that he would apply for a search warrant if Barnthouse denied consent. Barnthouse eventually acquiesced, and the Officers opened the package. Inside were several stacks of currency wrapped in a t-shirt. Although Barnthouse denied that the money was his, the Officers asked for consent to search his bedroom for evidence of narcotics distribution and money laundering. The Officers again told Barnthouse that if he did not consent, they would apply for a warrant. Barnthouse consented, and the Officers discovered a large amount of marijuana, packaging materials similar to the package, and a vacuum sealer. Barnthouse was charged with Unlawful Possession of Marijuana, ORS 475.864, and Delivery of Marijuana for Consideration, ORS 475.860.
In a pretrial motion, Barnthouse moved to suppress the evidence, arguing that beginning with the initial detention of the package, the police made a series of warrantless searches in violation of both Article I, Section 9 of the Oregon Constitution and the Fourth Amendment of the United States Constitution. He contends that the Police lacked probable cause to seize the package and that no exception to the warrant requirement applied to the unlawful seizure. The trial court granted Barnthouse’s motion, and the State now appeals. The State argues that because the package was delivered – albeit by the Police – by the guaranteed delivery date and time, it was not “seized” for purposes of Article I, Section 9 or the Fourth Amendment.
The Court of Appeals first concludes that, as the intended recipient, Barnthouse had an Article I, Section 9 possessory interest in the package once the package was deposited in the stream of mail. It bases its conclusion, in part, on the fact that a mail recipient “may control delivery of their mail” pursuant to USP, Mail Manual, § 508.1.1.1 at 711. Additionally, a mail recipient may go to the post office and request to have a package held for personal pick up.
The Court of Appeals further explains that the recipient of express mail must yield a certain degree of possessory rights to the USPS for purposes of handling and delivering mail, but those rights are yielded only to the USPS. Moreover, the Court points out the “strong historical relationship between the USPS and the sanctity of the mails.” For these reasons, the Court of Appeals concludes that Police may not detain a package in which a recipient has a possessory interest without probable cause and a warrant or without “one of the carefully delineated exceptions to the warrant requirement.”
The Court of Appeals also concludes that the Police conduct of removing Barnthouse’s package from the mail stream constituted significant interference with Barnthouse’s possessory interest in the package. The Court explains that the Police intended to imply that, if Barnthouse refused to consent to a search of the package, they would maintain possession of the package while seeking a warrant. Thus, the Police deprived Barnthouse of his package as well as his right to control its course through the mail. Accordingly, the trial court correctly concluded that the Officers seized the package for purposes of Article I, Section 9 when they removed it from the mail stream and throughout the course of their investigation. The Court of Appeals goes on to note that although the Police took the package to the residence before the guaranteed delivery time, they never surrendered the package. Therefore, it was never “delivered.”
Finally, the Court of Appeals concludes that the Police exploited their unlawful seizure to obtain Barnthouse’s consent to search the package and bedroom. The Court notes that the Officers testified that they intended all along to present the package to Barnthouse in order to get his consent to search it. Their purpose in doing so was to avoid obtaining a warrant and to exploit their possession of the package. Furthermore, by showing up at Barnthouse’s house, they obtained information that otherwise would not have been available to them – Barnthouse’s identity and phone number.
In summary, the government unlawfully seized the package without a warrant when a warrant was required. The government then used the unlawfully seized package to exploit consent to search. Accordingly, the trial court did not err in granting Barnthouse’s motion to suppress, and the decision is affirmed.