The state appeals from a pretrial order suppressing evidence seized pursuant to a search warrant. The warrant was issued on the basis of information obtained by the police during a traffic stop. We affirm.
We recite the facts, which are not disputed, as found by the trial court:
“The Defendant was stopped on October 13, 1992, at approximately 1:25 a.m. for what appeared to be a routine traffic stop for exceeding the maximum speed limit. The Defendant’s vehicle did not stop immediately upon seeing Trooper Burdick’s overhead lights, but did puli off at the first [exit] ramp that the vehicle came to. Upon making contact with the driver, Trooper Burdick noted that all of the occupants in the vehicle were hispanic, that the Defendant was the driver of the vehicle, and that there was a female passenger in the front passenger seat and a male passenger in the back seat behind the front passenger. Trooper Burdick also observed that there were numerous air fresheners in the vehicle and that there was no luggage visible in the vehicle. Trooper Burdick also noted that the occupants were nicely dressed and that the Defendant had ‘salon styled hair. ’ When asked where they were going to, the occupants told Trooper Burdick that they were on their way home to Tacoma, that they had been visiting a relative in Eugene. When the driver was asked for his driver’s license, he was not able to produce one and gave Trooper Burdick the name of Oscar Sanchez. When asked to produce the registration for the vehicle, the Defendant produced a temporary registration in the name of a person who was not present. When a computer check was done on the registered owner, Trooper Burdick was told that the registered owner was on parole. A computer check on the name of Oscar Sanchez revealed that there was an outstanding warrant for Oscar Alverez-Martinez, aka Oscar Sanchez, with a date of birth of September 28,1971. Trooper Burdick then re-contacted the Defendant and advised him about the warrant. The Defendant then told Trooper Burdick that the Defendant’s name was Oscar Sanchez-Sanchez and that he had never been arrested and was not the person described on the warrant. During this time, Trooper Lewis had arrived at the scene and primarily acted as backup for Trooper Burdick. Trooper Burdick also contacted dispatch and requested that Senior Trooper Milton and his canine, ‘Bud,’ respond to the scene. After discussing the outstanding warrant with the *594Defendant, Trooper Burdick then placed the Defendant under arrest for failing to display a driver’s license. Approximately 15 minutes had elapsed since the initial stop at this time. Defendant was handcuffed and placed in the rear of Trooper Burdick’s patrol vehicle. Trooper Burdick then contacted the Defendant in the Trooper’s patrol car and advised him that they were having a problem with people trafficking in narcotics on the highways, and Trooper Burdick asked the Defendant if the Defendant had any drugs, weapons or large amount of money in the Defendant’s vehicle. The Defendant told Trooper Burdick that he did not. The Defendant refused several requests by the Trooper to search the vehicle. The occupants of the vehicle were not told they were free to leave, even though the female passenger had what appeared to be a valid Washington driver’s license and the computer check on her revealed ‘no wants.’ The occupants of the vehicle never asked to leave, nor did they ask if they could drive the vehicle from the scene. Trooper Milton and his dog arrived at the scene at 2:11 a.m., approximately 46 minutes after the initial stop for the traffic violation. Trooper Milton contacted the driver of the car and was again refused consent to search the vehicle. Bud, the dog, was then allowed to sniff the outside of the vehicle and ‘alerted’ on the crack of the lower left corner of the passenger door. Trooper Milton determined that Bud was reacting to the odor of controlled substances. The occupants of the vehicle were again contacted and permission was requested to search the vehicle. The occupants again refused to grant consent to search the vehicle. The search warrant was subsequently obtained for the search of the vehicle based on the above information. Neither the Defendant, nor the occupants of the vehicle were informed that they were free to leave the scene of the stop until after the dog search was complete. Trooper Burdick testified that he could have impounded the vehicle prior to the dog search if he had not been able to verify with the registered owner that the occupants had permission to use the vehicle. He also testified that he did not attempt to contact the registered owner of the vehicle. Trooper Burdick also testified that he was not aware of any statute authorizing him to impound the vehicle, but that it was their office policy to do so if the registered owner could not be located to verify permission to use the vehicle.”
Based on the evidence seized during the execution of the warrant, defendant and the two passengers were charged by indictment with three counts of unlawful delivery of a controlled substance. ORS 475.992. Defendant moved to *595suppress the evidence on the ground that the search was “unconstitutional.”1 He argued that once he was arrested, the basis for the original stop had dissipated and, lacking reasonable grounds to believe that a crime had been committed, Burdick had no grounds to detain the vehicle and the passengers. He also argued that because the inquiry should have ended after defendant and the passengers refused to consent to a search, the subsequent 50-minute detention was unreasonably long. Finally, he argued that the use of Bud constituted a warrantless search that was not supported by either reasonable suspicion or probable cause. After a hearing on defendant’s motion, the court reached the following conclusions, and suppressed the evidence:
“Based on the above [findings], the Court finds that the detention of the Defendant’s vehicle was unreasonable under the circumstances, and that the application of ‘Bud’ to the vehicle was overly intrusive and constituted a warrantless search.”
On appeal, the state characterizes as the “threshold question * * * whether Trooper Burdick unlawfully ‘detained’ the vehicle defendant was driving * * * and, if so, whether that illegality provides any basis to suppress evidence.” The state argues that the vehicle was not detained, but that even if it was detained, the detention was lawful.2 The state also contends that the dog-sniff was not a search.
We first consider whether the trial court correctly concluded that the vehicle was detained unlawfully. Based on its findings, quoted above, the trial court concluded that “the detention of the Defendant’s vehicle was unreasonable under the circumstances.” The legal basis of the court’s opinion is not entirely clear. The court may have been analogizing the situation to an investigatory “stop” of a person. Under ORS 131.615(1), an officer who reasonably suspects that a person has committed a crime may briefly detain that person to make a reasonable inquiry. The detention and inquiry, however, *596may be for no longer than a reasonable time. ORS 131.615(2). Although some courts have applied that type of analysis to hold that brief detentions of personal property for investigatory purposes are lawful where the police have a reasonable suspicion that the property contains evidence of a crime, see, e.g., United States v. Place, 462 US 696, 103 S Ct 2647, 77 L Ed 2d 110 (1983) (holding that 90-minute detention of suitcase was excessive), we have not done so. Regardless, such an application of those statutes was never presented to the trial court, nor do the parties propose on appeal that we now adopt that approach.
The trial court may have been holding, in essence, that the vehicle was seized unlawfully. If so, we do not agree that the vehicle was seized before the dog-sniff. A seizure occurs when there is a
“significant interference with a person’s possessory or ownership interests in property. The seizure of an article by the police and the retention of it (even temporarily) is a significant intrusion into a person’s possessory interest in that ‘effect.’” State v. Owens, 302 Or 196, 207, 729 P2d 524 (1986).
In evaluating whether there was a seizure of the vehicle here, we are bound by the trial court’s findings of historical fact if evidence supports them. Cf. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
The state contends that the vehicle was not seized, but that it remained at the scene as an unavoidable consequence of defendant’s arrest. See State v. Woods, 134 Or App 53, 894 P2d 511, rev den 321 Or 340 (1995) (request that passenger exit arrested driver’s car was practical consequence of officer’s need to tow car). Defendant argues that the vehicle was seized because of Burdick’s specific actions and statements, and that that seizure was independent of defendant’s arrest. After defendant and the passengers refused to consent to a search of the vehicle, Burdick did tell them that officer Milton was coming, that the dog was going to sniff the vehicle, and that, if the dog alerted, Burdick would apply for a search warrant. However, as the trial court found, defendant never asked that the vehicle be released, nor did the passengers, who were not under arrest, ask to leave with the vehicle. Further, Burdick testified that had defendant asked *597that the vehicle be released, Burdick would have allowed a licensed driver to take it away, assuming the registered owner had been contacted and consented. Under these circumstances, the officer’s actions before the dog-sniff occurred did not constitute a seizure of the vehicle. Accordingly, we conclude that the trial court erred in concluding that the vehicle was detained unlawfully.
The state next argues that the trial court erred in concluding that the dog-sniff inspection of the vehicle constituted a search. The state asserts that we should adopt the reasoning set forth in our decision in State v. Slowikowski, 87 Or App 677, 743 P2d 1126 (1987), aff’d on other grounds 307 Or 19, 761 P2d 1315 (1988). The essence of the state’s argument is that the odor emanating from the vehicle announced its contents and, therefore, under the “plain smell’ ’ variant of the ‘ ‘plain view’ ’ doctrine, defendant had no cognizable privacy interest that was invaded. Defendant contends only that the purposive application of the dog to the vehicle constituted an unlawful warrantless search.
Under Article I, section 9, a search occurs when the police invade a person’s privacy interests. State v. Nagel, 320 Or 24, 29, 880 P2d 451 (1994); Owens, 302 Or at 206. To determine whether an asserted interest is protected under that provision, i.e., whether particular police conduct is a search, we apply “an objective test of whether the government’s conduct ‘would significantly impair an individual’s interest in freedom from scrutiny, i.e., his privacy.’” State v. Wacker, 317 Or 419, 425, 856 P2d 1029 (1993) (citation omitted); see also Nagel, 320 Or at 24. In State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988), the Supreme Court explained that a privacy interest under Article I, section 9,
“is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. A court has never held, for example, that a police officer engages in a search by making unaided observations from a public place, and an individual therefore cannot be said to have a constitutionally protected interest in freedom from such scrutiny.”
*598It is undisputed that individuals have a privacy interest in the contents of their vehicles. See State v. Rhodes, 315 Or 191, 196-97, 843 P2d 927 (1992). It is also clear, however, that not all police actions that reveal those contents constitute an “intrusion.” See, e.g., State v. Jackson, 296 Or 430, 438, 677 P2d 21 (1984) (no intrusion to walk around vehicle and look through its windows); State v. Evans, 101 Or App 340, 709 P2d 1177 (1990) (no intrusion to shine flashlight on the defendant while he was in vehicle). The issue presented here is whether having the dog sniff the vehicle that defendant was driving intruded upon a protected privacy interest.3
Slowikowski is the only Oregon case in which the legality of a dog-sniff inspection has been directly addressed. See State v. Kosta, 304 Or 549, 748 P2d 72 (1987) (because the defendant articulated no basis for possessory or ownership interest, court did not reach legality of detention and exposure of package to narcotics detection dog); State v. Dupay, 62 Or App 798, 662 P2d 736, rev den 295 Or 541 (1983) (because the defendant’s bag was unlawfully seized, court did not address whether the subsequent dog-sniff was a search). In Slowikowski, the police were at a mini-storage facility to conduct a training exercise with a marijuana-detecting dog. When the dog unexpectedly alerted to the defendant’s locker, a narcotics investigator got down on his hands and knees and detected a distinct odor of marijuana coming from the locker door. On the basis of that information, a search warrant was issued, and the ensuing search disclosed 20 pounds of marijuana. On appeal of his conviction for possession of a controlled substance, the defendant argued that allowing the dog to sniff his storage unit was a search and that the search violated Article I, section 9, and the Fourth Amendment because the police did not have a reasonable suspicion that the unit contained contraband. The state argued that no privacy interest was invaded and, thus, that there was no *599search, because the defendant could not have had a reasonable expectation of privacy in the odor escaping from his storage unit.
Citing numerous federal and out-of-state cases decided under the Fourth Amendment, this court concluded that “because defendant had no reasonable expectation of privacy in the odor of marijuana escaping from his unit, the dog-sniff here was not a search.” 87 Or App at 685. We also concluded that the facts of the case met “the requirements of the plain smell variant of the plain view doctrine.” Id. (citing State v. Bridewell, 87 Or App 316, 742 P2d 648 (1987), rev’d 306 Or 231, 759 P2d 1054 (1988)).
The Supreme Court affirmed our decision, but on different grounds. Slowikowski, 307 Or at 27. The court first considered the discussion in Owens, 302 Or at 206, pertaining to containers that announce their contents:
“When the police lawfully seize a container, they can thoroughly examine the container’s exterior without violating any privacy interest of the owner or the person from whom the container was seized. For example, the police can observe, feel, smell, shake and weigh it. Furthermore, not all containers found by the police merit the same protection under Article I, section 9. Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in ‘plain view,’ outside the confines of any container. Applying the doctrine of ‘plain view’ to transparent containers, we hold that no cognizable privacy interest inheres in their contents, and thus that transparent containers can be opened and their contents seized. No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents.” Slowi-kowski, 307 Or at 24 (emphasis supplied).
The Supreme Court in Slowikowski concluded that the defendant’s locker similarly announced its contents because “[t]he odor emanating from defendant’s storage locker was readily detectable by Deputy Kennedy.” Id. at 25. Had the officer discovered the odor without the dog, the court held, the *600discovery would not have been a search. The only issue, then, was the significance of the fact that the officer did not smell the odor until after the dog directed his attention to it.
The court commented that because dogs have been used for similar purposes since long before the advent of either the state or federal constitutions, there might be a “historical exception” for such use of dogs.4 Id. at 27. However, the court found it unnecessary to decide that question in the light of its conclusion that, because the dog-sniff was not a purposive intrusion into the defendant’s privacy, the use of the dog was not a search. The court further concluded that the use of the dog did not convert the officer’s close sniffing of the area outside of the locker into a search. It also noted that the fact that the officer’s sniffing was purposive was not determinative: “The odors he detected were all entirely outside the locker, where anyone who tried could have detected them.” Id. Notably, the court did not apply that reasoning to its analysis of the dog’s sniffing.
In this case, the state contends that the reasoning expressed in our Slowikowski opinion still supports the conclusion that a dog-sniff inspection of a lawfully stopped vehicle is not a search. We disagree. In that opinion, we recognized that the defendant’s argument under both Article I, section 9, and the Fourth Amendment was grounded on the reasonable expectation of privacy analysis enunciated in Katz v. United States, 389 US 347, 361, 88 S Ct 507, 19 L Ed 2d 576 (1967) (Harlan, J., concurring). 87 Or App at 680. Noting that the issue was one of first impression under Article I, section 9, we emphasized that the “overwhelming trend” among the courts, including the United States Supreme Court, was to find that the use of a trained dog to sniff property located in a *601public place does not constitute a search.5 Id. at 681-82. We cited more than 20 opinions decided by federal courts and by state courts under the federal constitution before concluding that the dog-sniff was not a search, on the ground that the defendant had “no reasonable expectation of privacy” in the odor escaping from his locker. Additionally, in reaching our conclusion that the defendant lacked a protectable privacy interest, we quoted with approval the California Supreme Court’s conclusion that “one who secretes illegal narcotics in his suitcase has no protectable privacy interest in those narcotics.” People v. Mayberry, 31 Cal 3d 335, 340, 182 Cal Rptr 617, 644 P2d 810 (1982) (emphasis in original), quoted in Slowikowski, 87 Or App at 684.
Since that opinion was issued, however, the Oregon Supreme Court has interpreted Article I, section 9, in a way that seriously undermines the foundation of our analysis in Slowikowski. First, the court has since recognized that a defendant may, in fact, have cognizable Article I, section 9, privacy and property interests in contraband. Kosta, 304 Or at 553. More significantly, however, the Supreme Court has unanimously rejected the phrase “reasonable expectation of privacy” to define searches under Article I, section 9. Campbell, 306 Or at 164. Instead, the rights protected under that provision “are defined not by the privacy one expects but by the privacy one has a right to expect from the government.” State v. Tanner, 304 Or 312, 321-22 n 7, 745 P2d 757 (1987) (emphasis supplied); see also Nagel, 320 Or at 29.
That distinction is significant in that it can lead to different conclusions as to the lawfulness of police conduct. In United States v. Knotts, 460 US 276, 103 S Ct 1081, 75 L Ed 2d 55 (1985), for example, the United States Supreme Court held that monitoring the location of a car by use of a radio transmitter is not a search under the Fourth Amendment, because society is not prepared to consider as reasonable an expectation of privacy in the movements of a car that is open to public view. In contrast, such conduct is a search under Article I, section 9, because “the practice, if engaged in wholly at the discretion of the government, will significantly impair *602‘the people’s’ freedom from scrutiny.” Campbell, 306 Or at 171, 172.
Finally, and perhaps most importantly, we believe that the Supreme Court’s analysis in Slowikowski raises serious questions about the applicability of the “plain smell” doctrine to odors that are not detectable by a human nose. In that case, there were two “sniff’ investigations — one by the dog and one by the narcotics officer — but the court applied distinctly different analyses to each. As to the officer, the court applied a “plain smell” analysis to conclude that, because he was in a place where he had a right to be and because the odors he detected were entirely outside the locker, his conduct, despite its purposive nature, was not a search. 307 Or at 27.
The court could have reached the same conclusion with respect to the dog’s inspection, because, as the court found, the dog, too, was lawfully on the premises and sniffed only the outside of the locker. However, in its discussion of the dog-sniff, the court made no mention whatsoever of the facts relevant to a “plain smell” analysis. Instead, and despite its recognition that “purposiveness” of action is not determinative as to whether a search has occurred, the court concluded that the dog’s sniffing did not constitute a search because the dog did not purposively intrude into a protected area. Id. Thus, although the court did find that the locker “announced its contents,” the only identified recipients of that announcement were the officers who were lawfully on the premises. Id. at 24. There is no suggestion in the opinion that the contents also were “announced” to the dog.
We conclude that the vehicle in this case did not announce its contents such that defendant lacked a cognizable privacy interest in those contents. In its most recent discussion of the privacy interests protected by Article I, section 9, the Supreme Court reiterated the statements it made in Campbell:
“ ‘One explanation for the absence of a constitutionally protected interest against certain forms of government scrutiny may be the absence of any freedom from those forms of scrutiny in society at large. The reason that the observations of a police officer who is standing in a public place infringe no privacy interest may be that there is no generally recognized *603freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom from scrutiny available to “the people.” ’ ” Nagel, 320 Or at 30 n 5 (quoting Campbell, 306 Or at 157).
The government thus will not be said to have intruded on a person’s “privacy” when the government’s scrutiny is no different than what could have been done by any private individual. Compare Wacker, 317 Or at 419 (no privacy interests invaded when police observed the defendant carry out drug activities in a lighted car in a tavern parking lot during business hours) with Nagel, 320 Or at 31 (privacy interests invaded by administration of field sobriety tests, because the police “created a situation that exposed information about defendant that was otherwise not observable by the officer or by members of the general public”) and State v. Portrey, 134 Or App 460, 896 P2d 7 (1995) (privacy interests invaded when police picked up and examined the soles of boots left in a box on the front porch of the defendant’s apartment).6 It follows, then, that the reason there is no cognizable Article I, section 9, privacy interest in a container that announces its contents is because the contents of such a container are plain to any individual who is present. Owens, 302 Or at 206; see also State v. Nichol, 55 Or App 162, 166, 637 P2d 625 (1981), rev den 292 Or 581, cert den 459 US 824 (1982) (odor of marijuana emanating from paper bag “revealed its contents as fully as if it had been made of clear, not opaque, material”). The fact that it is the government who discerns those contents, rather than a private citizen, does not, in and of itself, render that discovery intrusive.
In this case, and in marked contrast to the facts of Slowikowski, there is no suggestion that the odors “emanating” from the vehicle were so strong that “anyone who tried *604could have detected them.” 307 Or at 27. In fact, the reason Burdick called the dog to the scene, and waited 50 minutes for the dog’s arrival, was so the dog could inspect the vehicle’s contents, contents that Burdick could not fully discern with his own senses. A container that emits an aroma that is beyond the range of the human sense of smell “announces” nothing. See Wayne R. LaFave, 1 Search and Seizure § 2.2(f) at 368 (2d ed 1987) (“As one commentator has rightly noted, ‘application of a “plain smell” doctrine to dog searches * * * stretches the imagination’ * * *.”) (citation omitted). Accordingly, because defendant’s vehicle did not “announce its contents,” that theory cannot support the state’s argument that defendant lacked a cognizable privacy interest in the contents of the vehicle.7
It is also important to note that this is not a case in which the police used a device to ‘ ‘enhance’ ’ their own perceptions. Unlike using a 135 mm lens, State v. Louis, 296 Or 57, 672 P2d 708 (1983), or a flashlight, State v. Faulkner, 102 Or App 417, 794 P2d 821, rev den 310 Or 422 (1990), allowing Bud to sniff the vehicle neither magnified, enhanced, nor improved the officers’ senses, nor did it allow them to do more efficiently that which they could otherwise have accomplished with their own senses. In fact, at no time did the officers ever detect the contraband; their only indication of the vehicle’s contents was the dog’s actions. Bud’s extraordinary sense of smell was used as a substitute for the officers’ inferior senses, and it was that substitute that allowed the detection of something that was otherwise completely unexposed. See LaFave, 1 Search and Seizure § 2.2(f) at 368.8 We thus conclude that, under these circumstances, the use of *605Bud to reveal the contents of defendant’s vehicle constituted a search under Article I, section 9.9
That conclusion, however, does not end our inquiry. The remaining issue is whether a dog-sniff search implicates the usual Article I, section 9, warrant requirements imposed on police searches. See State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991) (warrantless searches are per se unreasonable under Article I, section 9, unless police act within an established exception to warrant requirement). LaFave has addressed this issue in the context of the Fourth Amendment:
“If the issue is framed in terms of whether a totally unrestrained use of such dogs in a dragnet fashion would be tolerable in a free society, one’s answer might likely be no. If so, then under the test earlier suggested as appropriate under Katz, such use of trained dogs to detect concealed contraband should be held to constitute a Fourth Amendment search. Yet it is clear that this particular surveillance technique amounts to a relatively minor intrusion upon privacy, much less than is involved, say, in the physical entry and ransacking of a house in an effort to find a quantity of narcotics. Because this is so, and because the use of trained dogs is a valuable surveillance technique which would be considerably hampered if it could be utilized only upon full probable cause and with search warrant in hand, from this perspective the push is in the direction of a holding that the use of trained dogs to detect concealed contraband is not a search. This quite obviously leads to the question of whether there is some middle ground, that is, whether it is possible to subject this law enforcement practice to some restraints so as to ensure that it is not used in a dragnet fashion or in a *606random or unprincipled fashion, but yet not destroy its effectiveness by imposing all the limitations which are applicable to other, more traditional kinds of searches that are much more threatening to privacy and security.” LaFave, 1 Search and Seizure § 2.1(e) at 315 (emphasis in original).
Among the state courts that have concluded that a dog-sniff is a state constitutional search, the trend is to find such a “middle ground” by holding such searches to a standard no more exacting than reasonable and articulable suspicion that the item to be searched contains contraband.10
In this case, however, we need not decide that issue. Even assuming that a reasonable and articulable suspicion of drug activity would be sufficient to justify a warrantless dog-sniff search of a lawfully stopped vehicle, the evidence does not support such a suspicion here. In his sworn affidavit for the search warrant, Burdick stated that he allowed Bud to sniff the vehicle based on his “reasonable suspicion that controlled substances were present in the vehicle”:
“From my training and experience, I noticed several characteristics displayed by the occupants of the vehicle that I know are often the same characteristics displayed by known narcotics traffickers. I noticed a heavy odor of air freshener in the vehicle. I did not see any luggage in the vehicle. I noticed that all occupants were wearing newly purchased clothing. The driver was wearing a gold necklace, a gold ring, and had salon-styled hair. A third-party [vehicle] registration is also very common with narcotics traffickers. I also know through my training and experience that Tacoma, Washington, [defendant’s stated destination] is a frequent destination of narcotics traffickers.”
*607Burdick also noted that the registered owner of the vehicle was on probation for a delivery of a controlled substance, that one of the passengers had an unconfirmed drug “offense,”11 and that when defendant refused Burdick’s request for consent to search the vehicle, defendant became “visibly nervous, turning pale, agitated, perspiring, and exhibited furtive eye movements.”
We conclude that none of those observations, either individually or collectively, justify a reasonable suspicion that the vehicle contained controlled substances. In its discussion of “reasonable suspicion” in the context of an investigatory stop, ORS 131.615(1), the Supreme Court in State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977), held that an experienced police officer’s instinct and experience cannot form the entire basis of reasonable suspicion. Thus, the court accorded no weight to the investigating officer’s observations of “shined shoes, sharp clothes, neat ‘Afro’ haircuts, and people who stand and stare at officers.” Id.
Applying that rationale here, a clean-smelling car containing three well-dressed occupants en route to Tacoma does not provide an objectively reasonable basis, whether by itself or added to the other factors, to suspect that the vehicle contained contraband. The lack of visible luggage also adds nothing, because, with three adults riding in the vehicle, any luggage would likely have been placed in the trunk. Finally, there is no objective quality to any of Burdick’s other observations that would entitle them to any weight. The registered owner of the vehicle was not even at the scene, and the alleged drug “record” of the passenger was unspecified and unconfirmed.
We conclude that the warrantless search by the dog of the vehicle driven by defendant violated defendant’s rights under Article I, section 9, and that the trial court did not err in suppressing the evidence obtained as a result of that search.
Affirmed.
Neither defendant’s motion nor the trial court’s order cited any specific constitutional provisions; however, because we resolve the issue on state constitutional grounds, we need not consider the issue under the federal constitution.
The state makes similar arguments regarding the alleged detention of the passengers. However, the trial court made no findings or conclusions as to that issue, nor do we believe that a discussion of their status is necessary to the disposition of this case.
Although the dissent initially quotes the correct test for determining whether police conduct rises to the level of a search under Article I, section 9, see 135 Or App at 610, it inexplicably proceeds to craft a new standard for the particular police conduct at issue here. The dissent contends that “the question is whether the framers of section 9 would have considered the use of a dog by police to sniff an odor under the circumstances of this case to be Ta search].” Id. at 612. Despite its citation to Nagel, we find no authority in that case, or any other, for the dissent’s novel application of Article I, section 9.
That dictum appears to be the impetus for the dissent’s lengthy discussion of the “historical precedent” of using dogs to smell odors that humans cannot detect, and its ultimate conclusion that, because of the historical precedent, the indiscriminate use of dogs by police to reveal the contents of sealed containers cannot be considered a search. However, we fail to see how that history aids our inquiry into whether the police conduct at issue intruded on a privacy interest protected under Article I, section 9. As discussed below, unlike the federal constitution, a search under Article I, section 9, is not defined by a reasonable expectation of privacy. For our purposes, then, it is immaterial that it was “common knowledge to the inhabitants of the Oregon Territory” that dogs were able to smell and react to odors that could not be detected by humans. 135 Or App at 612.
But see cases cited below at n 10 (holding that dog-sniff investigations are state constitutional searches).
See also State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983), in which the Supreme Court considered whether the police invaded a protected privacy interest when they photographed the defendant exposing himself in his living room window:
“The question is when observation (or listening) becomes a ‘search’ within the legal meaning of that term. Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. One would not, for instance, expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises. An indecent exposure in a window opening to public view is not very different.”
The dissent strongly implies that there can be no search without a physical intrusion into the vehicle. That, of course, is not the law, even under the less protective provisions of the Fourth Amendment. See, e.g., Katz v. United States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967) (sound waves gathered by electronic surveillance equipment held to be search); State v. Blacker, 52 Or App 1077, 630 P2d 413 (1981) (telescopic scrutiny of objects inside home held to be search), cited with approval in Louis, 296 Or at 61.
As noted by LaFave, the use of a trained dog is analogous to the use of a magnetometer to detect metal on a person or in an object. Courts have consistently held that the use of a magnetometer constitutes a search under the Fourth Amendment. LaFave, 1 Search and Seizure § 2.2(f) at 368, § 2.2(d) at 348-49.
The dissent states that our holding places us in the minority of jurisdictions that have considered the issue. 135 Or App at 615. Assuming that is correct, it may be because only a minority of jurisdictions analyze their state constitutional protections against unreasonable searches and seizures differently than the federal constitutional counterpart. In fact, of the eight cases cited by the dissent as being decided on state constitutional grounds, id. at n 5, five were actually decided under the Fourth Amendment, while the remaining three either adopted the federal rule without analysis or were otherwise based on a “reasonable expectation of privacy” standard.
It bears repeating that, under Article I, section 9, “[w]e must decide ‘whether the practice, if engaged in wholly at the discretion of the government, will significantly impair “the people’s” freedom from scrutiny.’” Nagel, 320 Or at 29 (quoting Campbell, 306 Or at 171). In essence, the dissent would hold that the police may conduct dog-sniff investigations at every traffic stop, may roam indiscriminately through the halls of public housing projects with trained dogs, and may use this crime detection device in any other context at random and without reason without significantly impairing “the people’s” freedom from scrutiny.
See, e.g., McGahan v. State, 807 P2d 506 (Alaska App 1991) (dog-sniff of warehouse exterior accessible to public was search requiring reasonable suspicion); People v. Boylan, 854 P2d 807 (Colo 1993) (dog-sniff of package at Federal Express office was search requiring reasonable suspicion); State v. Torres, 230 Conn 372, 645 A2d 529 (1994) (assuming without deciding that dog-sniff of car was a search, action warranted by reasonable and articulable suspicion); State v. Pellicci, 133 NH 523, 580 A2d 710 (1990) (dog-sniff of car’s exterior was search requiring reasonable suspicion); People v. Dunn, 77 NY2d 19, 563 NYS2d 388, 564 NE2d 1054 (1990), cert den sub nom Dunn v. New York, 501 US 1219 (1991) (dog-sniff of residence from apartment hallway was search requiring reasonable suspicion); Commonwealth v. Johnston, 515 Pa 454, 530 A2d 74 (1987) (dog-sniff of rented storage locker was search requiring reasonable and articulable suspicion). But see Commonwealth v. Martin, 534 Pa 136, 626 A2d 556 (1993) (full probable cause and warrant required for dog-sniff of person).
At the hearing, Burdick testified that the computer check revealed a record on the passenger’s name for “some type of narcotics offense,” but that such a “hit” does not necessarily indicate a conviction.