Filed: April 7, 2011
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
STEVEN MICHAEL FOSTER,
Petitioner on Review.
(CC CR060302; CA A135857; SC S058240)
On review from the Court of Appeals.*
Argued and submitted May 7, 2010, at Portland State University, Portland, Oregon.
Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for petitioner on review.
Karla Ferrall, Assistant Attorney General, Salem, argued the cause for respondent on review. With her on the briefs were John R. Kroger, Attorney General, and Jerome Lidz, Solicitor General.
Before De Muniz, Chief Justice, and Durham, Balmer, Kistler, Walters, and Linder, Justices.**
LINDER, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*Appeal from Yamhill County Circuit Court, Ronald W. Stone, Judge. 233 Or App 135, 225 P3d 830 (2010).
**Gillette, J., retired December 31, 2010, and did not participate in the decision of this case. Landau, J., did not participate in the consideration or decision of this case.
LINDER, J.
After a lawful stop of defendant's car, police searched the car based on an alert by an officer's drug-detection dog. The search recovered a pipe with drug residue on it, which resulted in defendant's arrest and prosecution for possession of methamphetamine. At trial, defendant moved to suppress evidence of the seized pipe, arguing that the dog alert was insufficiently reliable to provide probable cause to search his car. After a hearing, the trial court denied defendant's motion and, following a bench trial, the trial court found defendant guilty. On appeal, defendant challenged the denial of his motion to suppress, renewing his argument that the dog alert was unreliable. The Court of Appeals affirmed. State v. Foster, 233 Or App 135, 225 P3d 830 (2010). We allowed review to consider the issue of whether, and under what circumstances, an alert by a drug-detection dog provides probable cause to search.
As we will explain, we hold that an alert by a properly trained and reliable drug-detection dog can be a basis for probable cause to search. Whether a particular alert by a particular dog provides probable cause is an issue that requires an individualized inquiry, based on the totality of the circumstances known to police, which typically will include such considerations as the dog's and its handler's training, certification, and performance. In this case, we conclude that the drug-detection dog's alert to defendant's car provided officers with probable cause to search, and we affirm the decision of the Court of Appeals and the judgment of the circuit court.
I. BACKGROUND
Because neither party questions the accuracy of the facts recounted by the Court of Appeals, we draw from that court's description, which, based on our own review of the record, is an accurate and thorough overview of the pertinent facts. See id. at 137 (describing the facts of the case). Officer Ray, who was familiar with defendant and suspected that defendant was involved in dealing methamphetamine, saw defendant talking to a person who was a suspected drug user.(1) Ray then observed defendant get into his car and drive away without wearing a seat belt, which is a traffic violation. ORS 811.210(4). Ray, and another officer with him, then stopped defendant for that violation. Because of his suspicion that defendant had just engaged in drug activity, Ray called for a canine unit. Officer Hulke, along with his drug-detection dog, Benny, responded. With defendant out of the car, Hulke had Benny smell the car's exterior as Ray finished writing defendant a ticket. Benny "alerted" -- i.e., indicated the presence of a drug scent -- at the driver's side door handle. After Ray advised defendant of Benny's alert, defendant denied that the car contained drugs or related paraphernalia, but said that Benny might have alerted because a relative might have smoked marijuana in the car earlier. Ray asked defendant if he would consent to a search of the car, and defendant refused. Ray then searched the car and found methamphetamine residue on a pipe that was inside a fanny pack on the seat of the car.
As described, defendant moved to suppress the pipe, contending that Ray lacked probable cause to search his car because Benny's alert was not a reliable basis for a belief that seizable evidence of drugs was probably in defendant's car at the time of the search. At the hearing, the state presented testimony from Hulke describing Benny's training and certification, his field performance, and his later recertification. The state also presented testimony from Officer Fyfe, a master dog trainer who tests and certifies drug-detection dogs for the Oregon Police Canine Association (OPCA), which is the organization that certified Benny as a drug-detection dog. The OPCA is a private organization that, as the record shows and the trial court found, currently is the only organization in Oregon that certifies drug-detection dogs. Using the so-called "play-reward" method of training, the OPCA certifies dogs and their handler-officers as a team, and encourages the officers to maintain records of on going training and field deployments. The certification is purely private; no Oregon statutes or regulations set standards for or otherwise govern drug-detection dog training and certification or record-keeping. To rebut the state's evidence, defendant presented expert testimony from a chemist, Woodford, who discussed the "science" of drug odor detection by dogs and who has expertise in the general area of the methods used to train drug-detection dogs. Woodford did not offer an opinion as to Benny's reliability specifically; he instead offered his opinion as to the reliability generally of dogs trained through the play-reward method and other methods.
Because of the importance of the expert testimony to the issue before us, we quote the Court of Appeals' description of it, which began by summarizing the "play-reward" method used to train Benny and most drug-detection dogs used by police in the United States:
"According to Hulke and Fyfe, a police officer and master dog trainer who certifies dogs for OPCA, the 'play reward' system of training dogs to detect drugs involves pairing a dog with a specific handler. The dogs are trained to detect heroin, cocaine, methamphetamine, and marijuana. Initially, the handler exposes the dog to a training aid such as a tennis ball that has been submerged in the drug and familiarizes the dog with the odor by playing with it. Then the trainer hides the ball, and the dog learns to sniff it out. Next, the trainer hides the drug rather than a tennis ball. When the dog finds the drug, it is rewarded by being allowed to play with a favorite toy. After the dog and the handler have worked together for a significant period of time, they are eligible for testing by the OPCA. As described by Fyfe, the test involves [testing the dog's ability to detect the presence of drug-scented items in two rooms, three vehicles, seven packages, and an open area. To prevent handler cuing and to force the teams to perform under stress, the handler does not know how many items, if any, the dog should alert to on each deployment.] Each environment may have up to three drug packages hidden in it, or may have none at all. The environments also have distracters, such as dirty clothing and urine. [To pass the portion of the test in rooms and vehicles, a dog must have at least a 90 percent accuracy rate. For the packages and open area, the dog must be 100 percent accurate.] Approximately 25 percent of the dogs fail the test. If a dog passes the test, it is certified for one year and must complete the test again to be recertified.
"Defendant provided expert testimony from Woodford, a chemist who had patented a pseudo-scent, methyl benzolate, which is the scent dogs detect from cocaine. He testified that he has consulted with various federal agencies and the military concerning dogs that are trained to detect drugs and explosives. He indicated that the 'highest level' of training involves 'imprinting' a dog and using food rewards. This method takes three to four months and involves taking dogs into clean rooms in which cans with odors inside them, including drug odors and distractor odors, are placed on wheels. The dogs do not work with handlers at that point. Eventually, when a dog becomes 'imprinted' to alerting to the drug odors, it is ready to work with a handler. Woodford testified that all drug-detection dogs have high rates of false positives, because the scents that they detect in the drugs also are detectable in a number of legal substances, including foods and perfumes. He further testified that dogs trained in this manner cost $10,000 to $15,000. He concluded that the imprinting method was 'generally accepted' as 'the scientifically based way to do it.'
"[Woodford] criticized the 'play reward' system of training dogs, suggesting that simply choosing dogs from an animal shelter (which is where Hulke obtained Benny) was inappropriate, because a psychological profile of a dog should be done before it is selected for imprinting. He suggested that the play-reward system was 'okay' and that it works to 'a certain extent' but not as well as imprinting, because the incidence of false positives cannot be accurately tracked. He suggested that a major flaw with the play-reward system is that the dog may simply be detecting the scent of the handler who handled the drugs when they were hidden, or may be picking up on subtle cues from the handler, such as changes in heart rate or breathing patterns when the dog is near the place where the handler has hidden the drugs. As for the method used by the [OPCA] to certify the dogs, Woodford asserted that it likely was flawed because the dog would simply track the scent of the person who placed the drug, which would lead the dog to the drug.
"In rebuttal, Fyfe testified that during play-reward testing, a dog's handlers do not place the drugs in the environments. Moreover, the people who do place the drugs in the environments handle the drug packages with gloves and also go to various points in the environments and disturb the environments, so that 'our dogs are able to go out there and not alert to skin, crushed grass, disturbed earth where we bury the drug training aid[.]' Fyfe also testified that the play-reward system is the only system in general use in the United States for training drug-detection dogs."
Foster, 233 Or App at 144-45.
The experts also described a dog's generally superior sense of smell and the fact that a dog is capable of detecting trace amounts and residual odors of a drug that may remain after the odor-emanating drug is no longer present, or that may be carried by an object or a person who had contact with drugs in another location. On deployments in the field, when a dog alerts to a location and a subsequent search of that location does not result in the seizure of drugs or drug paraphernalia, there is no way to determine whether the dog alerted to a residual odor or whether the alert was a result of dog or handler error.
Regarding Benny and his particular training, Hulke explained that he obtained Benny from the Oregon Humane Society shelter in 2004, after Fyfe first selected Benny from the available dogs at the shelter. Hulke initially trained Benny for approximately 70 hours, using the play-reward method. Hulke described Benny's initial training (using a scented tennis ball, hiding the ball, etc.) in a variety of settings, such as vehicles, schools, and wineries, where he introduced distractions, such as other animals or animal feces. Someone other than Hulke sometimes hid the training aid to avoid cuing Benny to the aid with his own scent. Hulke was assisted in some of his training by a "master trainer" certified by the OPCA.
After their initial 70 training hours, Benny and Hulke passed the OPCA certification test on their second try. After passing the test, Hulke trained Benny for about 230 additional hours before beginning to use him on patrol in October 2004. Hulke continued Benny's training after October 2004, with assistance from the master trainer from OPCA. Hulke and Benny were recertified on April 11, 2006, approximately two weeks before the alert at issue here.
Hulke deploys Benny only when he or other officers have "corroborating evidence or information" that narcotics may be present. Hulke described that information as including, for example, if "the vehicle has come from a known drug house, if the driver is associated with narcotics, if an officer had seen some drug paraphernalia inside the vehicle, if the passengers are known drug users, anything of that nature." On vehicle deployments, Hulke has a set routine in which he walks Benny twice around a vehicle, first smelling low along the perimeter of the vehicle, and smelling higher on the second pass. Consistent with Benny's training, Hulke rewards Benny by playing with him immediately after an alert. That positive reinforcement follows an alert, regardless of whether a subsequent search recovers drugs or other seizable evidence, on the theory that a properly trained drug-detection dog has done what it is trained to do -- i.e., alert to the odor of an illegal drug -- even if the odor turns out to have been a residual one.
According to Hulke's records of Benny's deployments in the field, between October 2004 and December 2006, 66 percent of Benny's alerts resulted in searches that led police to seizable evidence of a drug-related crime. In the other 34 percent, Benny's alert could have been a false one -- that is, Benny could have alerted without having smelled the odor of any of the drugs he was trained to detect. If, however, Benny was alerting consistently with his training, the alerts in situations that did not result in the seizure of drug evidence would have been to a residual odor that remained after illegal drugs were removed from the area of the alert, or were carried by an object or person that had been in contact with illegal drugs.(2)
II. ANALYSIS
With that background, we turn to the issue that this case presents. Stated in broad terms, the issue is whether, and under what circumstances, an alert by a drug-detection dog provides probable cause to search. Stated in more specific terms, the issue is whether, in this particular instance, Benny's alert to the door handle of defendant's car provided the officers with probable cause to search for evidence of drugs.
The general legal principles that apply to resolve the issue presented are both familiar and settled. An officer may lawfully search a stopped vehicle and its contents without a warrant or consent if the vehicle was mobile when it was stopped and if the officer had probable cause to believe that seizable items would be found. State v. Brown, 301 Or 268, 274-76, 721 P2d 1357 (1986).(3) The probable cause analysis for a warrantless search is the same as for a warranted one. Id. (officers constitutionally may search a lawfully stopped vehicle if "a magistrate could issue a constitutionally sound search warrant based on the probable cause articulated by the officers"). Probable cause exists if the facts on which the officers relied would "lead a reasonable person to believe that seizable things will probably be found in the location to be searched." State v. Anspach, 298 Or 375, 381, 692 P2d 602 (1984). The standard is one of probability, not certainty. Id. at 380-81. In assessing probable cause, a court must consider the "totality of the circumstances, including the officer's training and experience." State v. Vasquez-Villagomez, 346 Or 12, 23, 203 P3d 193 (2009). In addition, the facts articulated in support of probable cause must be assessed in a commonsense and realistic fashion. State v. Coffey, 309 Or 342, 346, 88 P2d 424 (1990); State v. Villagran, 294 Or 404, 408, 657 P2d 1223 (1983). Because the state must establish the validity of a warrantless search, ORS 133.693(4), it is the state's burden to show that the search was supported by probable cause.
The parties generally agree on how those legal principles apply in assessing whether an alert by a drug-detection dog provides probable cause to search. Implicitly, the parties endorse what appears to be the universally accepted proposition that an alert by a properly trained and reliable drug-detection dog can provide probable cause for a search. See, e.g., State v. Smith, 327 Or 366, 369, 963 P2d 642 (1998) (description in application for warrant of drug-detection dog's alert to storage facility contributed to probable cause to search); see generally Wayne R. LaFave, 1 Search and Seizure