Oregon Supreme Ct - Oct 6, 2016

by: Sara Werboff • October 10, 2016 • no comments

Search and Seizure - Defendant Has a Possessory Interest in Undelivered Mail and Seizure was Unlawful

The court concludes that, under Article I, section 9, police unlawfully seized a package addressed to defendant and defendant was entitled to suppression of evidence discovered as a result. In this case, police officers pulled a package addressed to "Maxi-pad Barnt" from the stream of mail and set it aside for a dog sniff. The dog alerted. The police then took the package to the address, and eventually contacted defendant by phone. The officer asked for consent, telling defendant that if he did not give consent, the police would apply for a warrant. Defendant consented, and the police found cash in the package. The police then asked defendant for consent to search his home for evidence of drug trafficking or money laundering. Defendant consented to that as well and police found substantial amounts of marijuana, among other incriminating evidence.

On review, the court first determines that a package's addressee has a protected possessory interest in the package. The court notes that a package's addressee has a property interest and a privacy interest in the package, which, under Oregon case law, indicates that the addressee also has a possessory interest. The court also rejects the state's argument that, because defendant did not have actual or constructive possession of the package, he had no possessory interest. The court explains that "not all constitutionally protected possessory interests in property are necessarily accompanied by possession, whether actual or constructive." The court concludes that "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 court next concludes that the state significantly interfered with defendant's possessory interest when the officer told defendant that, if he were to withhold consent to search, the officer would apply for a search warrant. In so doing, the officers curtailed the package's guaranteed delivery to defendant. Finally, the court declines to consider the state's argument that the seizure was supported by reasonable suspicion because it is unpreserved.

State v. Barnthouse, 360 Or 403 (2016) (Brewer, J.)