Police pulling packages from mail fails 'sniff test' of Oregon Supreme Court

By Aimee Green | The Oregonian | October 6, 2016

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The Oregon Supreme Court on Thursday dealt a blow to the practice by Portland police and U.S. postal inspectors of pulling packages from the mail stream to investigate them for drugs or drug money.

It's long been recognized locally and federally that police don't have a right to open private letters or parcels without a warrant, but the ruling makes clear that police acting without a warrant in Oregon also don't have a right to interfere with the mail by doing just about everything short of opening it.

At issue was the case of Max Barnthouse, who was 26 in February 2012 when Portland police and a U.S. postal inspector set aside a package for him at the Portland International Airport postal cargo center.

After identifying the package as suspicious, investigators placed it in a "line up" of six packages. The investigators had a specially trained, drug-sniffing dog walk by the package, and the dog signaled there was something of interest in it, according to a previous court summary of the case.

The investigators also studied the addresses of the sender and the recipient, Barnthouse, before showing up at his Southeast Belmont home with the package and the urgent request to open it and to search Barnthouse's bedroom.

Barnthouse reluctantly consented to both. Police found stacks of cash in the package and a "large quantity" of marijuana, packaging materials and a vacuum sealer in his bedroom -- leading to charges of drug dealing in Multnomah County Circuit Court.

Police said the procedures used in Barnthouse's case were typical. On a given day, they usually pull about 30 to 40 suspicious-looking packages from the postal cargo center and walk a drug dog by them for a "sniff test." 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 to see if they're linked to known criminals, according to a previous court summary of the case.

In Barnthouse's case, police said they still would have investigated his package even if the dog hadn't alerted to it. That's because police said there was still plenty that justified their suspicions that the package contained drugs or drug money, according to the Supreme Court summary of the case:

  • It was addressed to a pseudonym "Maxi-pad Barnt" -- similar to Barnthouse's name. Police said 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 it 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 one where the package originated.

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

Judge Christopher Marshall agreed, finding 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. They also said Barnthouse had no "possessory interests" in the package because officers brought it to his home hours before its guaranteed express-mail delivery time of noon.

The appeals court disagreed in 2015 by upholding Marshall's lower court ruling. Thursday, the Supreme Court also upheld Marshall's ruling, by finding that Barnthouse indeed had a "possessory interest" in the package while it was in transit to him.

That meant police first needed to get a warrant to pull aside the package.

The Supreme Court ruled that although police stood on Barnthouse's doorstep hours before the guaranteed delivery time for the package, if Barnthouse hadn't consented to their opening of the package, they would ground the process to a halt while they asked a judge for a warrant.

"They had no intention of delivering (the package)," Houze, Barnthouse's defense attorney, told The Oregonian/OregonLive on Thursday.

Houze applauded Thursday's ruling, noting this is the first time the high court has ruled on the practice of police and postal inspectors pulling aside mail without warrants.