Portland police practice of pulling U.S. mail for dog 'sniff test' unlawful, court rules

By Aimee Green | The Oregonian | May 20, 2015

A U.S. postal inspector and Portland police had no legal authority to intercept a package headed to a Southeast Portland home just because they had a hunch it contained contraband and a police dog later alerted to it, the Oregon Court of Appeals ruled Wednesday.

The ruling likely will put an end to what has been a long-standing practice:

Having a postal inspector and two police officers pulling aside and examining express-mail packages at a Portland International Airport postal cargo center without first obtaining search warrants.

It's the first time an appeals court in Oregon has ruled on the issue, said Stephen Houze, the Portland defense attorney who represented the defendant in the case, Max Barnthouse.

Barnthouse, then 26, was arrested and booked into the downtown Multnomah County jail in April 2012 after police pulled a package from the mail stream that had been headed for delivery to his home near Southeast 36th and Belmont Street.

Although the package might have seemed innocuous to the average person, it set off red flags for police officers regularly stationed at the postal cargo center. According to the appeals court's summary of the case:

  • It was addressed to a pseudonym "Maxi-pad Barnt" -- similar to Barnthouse's name. Police said that senders and recipients associated with the drug world often hide their identities behind fictitious names.
  • It was sent from a state where medical marijuana isn't legal -- Delaware -- to a state where medical marijuana is legal and the drug is more prevalent -- Oregon. Authorities say marijuana buyers often send money to Oregon and get marijuana in return.
  • The address was handwritten, not typed.
  • The sender's listed ZIP code was different from the ZIP code from where the package was sent.
  • The postage was paid with cash or debit card, not from an established business account.
  • That was enough, police said, for them to remove Barnthouse's package from the mail stream about 6 a.m. and set it aside for the narcotics-detection police dog, Nikko, to sniff. The dog signaled that something of interest was inside the package.

Pulling packages for the sniff test is something police and a postal inspector do 30 to 40 times per day, according to the appeals court summary. The dog is correct about 90 percent of the time, an officer testified. Officers typically end up investigating seven to 14 of the pulled packages a day by using their computer databases to search the names and addresses on them to see if they're linked to known criminals, according to the summary.

Officers also will bring the packages to their intended recipients, then ask the recipients for consent to see what's inside.

That's what happened in Barnthouse's case, according to the appeals court's summary.

By 9:30 a.m., which was about 3 1/2 hours after they intercepted Barnthouse's package, police showed up at his doorstep. When Barnthouse's housemates said that they weren't expecting a package, one of them gave police Barnthouse's phone number.

Officers phoned him to say that he wasn't under arrest and he could deny consent to search the package and his bedroom, but if he did, they'd apply for a warrant.

Barnthouse acquiesced.

Police found several stacks of cash wrapped in a T-shirt in the package and found a large amount of marijuana, packaging materials and a vacuum sealer in Barnthouse's bedroom, according to the appeals court summary.

Barnthouse was accused of being a drug dealer -- specifically, the crimes of unlawful delivery of marijuana for consideration and unlawful possession of marijuana. Barnthouse hired Houze as his defense attorney.

On the eve of trial in December 2012, Houze argued that the evidence should be suppressed because police violated Barnthouse's constitutional right to be free from unlawful search and seizure.

Multnomah County Circuit Judge Christopher Marshall agreed, finding that the first misstep by police was physically removing the package from the mail stream when they had no reasonable suspicion or probable cause.

Prosecutors brought the case to the Court of Appeals -- arguing that police hadn't actually "seized" the package -- that Barnthouse had no "possessory interests" in the package -- because officers brought the package to his home hours before its guaranteed delivery time of noon.

The appeals court disagreed Wednesday by upholding the lower court's decision.

"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," the appeals court wrote.

The case against Barnthouse is now essentially over. Prosecutors have no evidence to proceed.

A police spokesman, Sgt. Pete Simpson, said he couldn't comment on the ruling, and that the city attorney's office needed to review it before deciding whether police practices should change.

Barnthouse's attorney, Houze, said the ruling will change the way police have seized mail from behind the scenes.

"These practices have been going on forever, without anyone being aware of it ... without challenge up to this point," Houze said. "They have to stop now."

The ruling was made by a three-judge panel of the appeals court: Rex Armstrong, Lynn Nakamoto and James Egan.