dissenting.
The majority holds that the use of a dog to smell the odor of narcotics escaping from defendant’s car constitutes an “unreasonable” search under Article I, section 9, of the Oregon Constitution. It reasons,
“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. [The dog’s] extraordinary sense of smell was used as a substitute for the officer’s inferior senses, and it was that substitute that allowed the detection of something that was otherwise unexposed. * * * We thus conclude that under these circumstances, the use of [the dog] to reveal the contents of defendant’s vehicle constituted a search under Article I, section 9.” 135 Or App at 604-05 (emphasis in original).
The majority’s reasoning is erroneous. Under Article I, section 9, there is no significant privacy interest in odors that have escaped from containers in a parked automobile in a public place.
A “search” occurs when a person’s privacy or pos-sessory interests are invaded. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). Not every “purposive action” by the police that intrudes into the life of a private citizen is a “search” under section 9. State v. Slowikowski, 307 Or 19, 27, 761 P2d 1315 (1988). Section 9 forbids only those intrusions which constitute “unreasonable searches and seizures.” “The extent to which actions by state officials are governed by section 9 is defined by the general privacy interests of the ‘people’ rather than by the privacy interest of particular people.” State v. Tanner, 304 Or 312, 320, 745 P2d 757 (1987). Thus, the Supreme Court explains,
“A privacy interest, as that phrase is used in this court’s Article I, section 9, opinions, 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. * * *
“Government scrutiny aside, individual freedom from scrutiny is determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping. 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 *609scrutiny 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 freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom available to ‘the people. ’ In contrast, both laws and social conventions have long recognized the right to exclude others from certain places deemed to be private. If the government were able to enter such places without constitutional restraint, ‘the people’s’ freedom from scrutiny would be substantially impaired.
“Our intention is not to set forth a definition of a search based upon social and legal norms of behavior but to clarify the nature of the interest protected by Article I, section 9. Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in shaping those norms. But since 1859, when Article I, section 9, was adopted, the government’s ability to scrutinize the affairs of ‘the people’ has been enhanced by technological and organizational developments that could not have been foreseen then. * * * In deciding whether government practices that make use of those developments are searches, we must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair ‘the people’s’ freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on ‘unreasonable searches’ set forth in Article I, section 9. In this context, it is appropriate to recall what this court said in State v. Robertson, 293 Or 402, 434, 649 P2d 569 (1982). ‘Constitutional interpretation of broad clauses locks neither the powers of lawmakers nor the guarantees of civil liberties into their exact historic forms in the 18th and 19th centuries, as long as the extension remains true to the initial principle.’” State v. Campbell, 306 Or 157, 170-71, 759 P2d 1040 (1988) (citations omitted).
In this case, defendant was lawfully arrested after being stopped on Interstate 5. When the police brought the dog to the scene, defendant’s car was still parked alongside the freeway. In that sense, his privacy interest in the car was no different than had he parked the car in a shopping mall parking lot. Defendant never asked the officer to release the car to one of its passengers, nor did any of the passengers seek to drive the vehicle away. No search of any person or of items attached to a person occurred. There was never a physical *610invasion by the dog or its handler into the interior of the car during the dog-sniff. The dog handler permitted the dog to sniff only around the exterior of the car. While sniffing, the dog “alerted” to the bottom portion of one of the passenger doors. Consequently, the police had the vehicle towed, and later, they obtained a search warrant to search its interior.1 Unquestionably, had the officers been able to smell the odor of the narcotics while standing outside of the car parked along the freeway, there would have been no “search” within the meaning of section 9. In that instance, the odors that emitted from the interior of the car would have revealed their sources as fully as if the controlled substances had been visible from outside the car. See Slowikowski; see also State v. Nichol, 55 Or App 162, 166, 637 P2d 625 (1981).
Thus, the narrow issue is whether the use of a dog under these circumstances to smell an odor outside the vehicle that the officer could not detect makes what otherwise would not be a search, a “search.” In State v. Nagel, 320 Or 24, 880 P2d 451 (1994), the court instructed,
“In order to determine whether particular police conduct constitutes a search, ‘we must look to the nature of the act asserted to be a search.’ The test to determine whether police conduct rises to the level of a search is whether the government’s conduct would ‘significantly impair an individual’s interest in freedom from scrutiny, i.e., his privacy.’ We must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair ‘the peoples’ freedom from scrutiny.” 320 Or at 29 (citations omitted).
The use of dogs to smell odors of controlled substances escaping from an object like an automobile is not like the use of a technological advancement such as a radio transmitter or a magnetometer used to detect metal on a person or in an object. Rather, the practice of the use of dogs to smell odors that humans cannot smell is an adaptation of the canine’s natural sense of smell arising from law enforcement organizational developments to combat drug trafficking. In People v. Price, 78 AD2d 484, 434 NYS2d 834, aff’d 446 NYS2d 906 (1981),2 the court noted,
*611“The historical precedent for utilizing the inherent qualities of canines is well chronicled. Dogs, endowed by nature with senses of smell and hearing superior to humans, have long been employed by police to detect crime and track criminals. Detection of contraband is a similar and related task which has led to the special training and successful use of dogs to assist exposing the criminal.” 78 AD2d at 485.
A dog’s sense of smell can be eight times stronger than a human’s, and enables dogs to smell odors from a distance as far as 75 feet. John Schuster, Constitutional Limitations of the Use of Canines to Detect Evidence of Crime, 44 Fordam L Review 973, 986 (1976).
The use of dogs to detect odors of controlled substances began in this country in the 1940’s as an “offshoot of the use of tracking dogs to apprehend fugitives and suspected criminals — an accepted practice in many jurisdictions.” Max A. Hanson, United States v. Solis, Have the Government’s Supersniffers Come Down with a Case of Constitutional Nasal Congestion?, 13 San Diego L Rev 410, 414 (1976). See also M. Harney and J. Cross, The Narcotic Officer’s Notebook 297 (2d ed 1973). However, the use of dogs to smell odors or objects that humans could not smell is not of recent invention. Humans have relied on the dog’s keen sense of smell for literally thousands of years. For instance, in the ancient Greek epic, The Odyssey, written in approximately 700 B.C., Homer describes the return of Odysseus to his home and family. Because Odysseus is disguised as a beggar, no one recognizes him except Argos, his devoted tracking hound. See also Cynegeticus (Greek treatise on hunting and dogs authored by Xenophone between 430 and 370 B.C.). In England and in this country from its earliest days, there is literature about the use of dogs to find objects and people by detecting the odor left behind when the object or the person *612was no longer discernible by humans. See generally 1 Wigmore on Evidence § 177 (3d ed 1940); J.C. McWhorter, The Bloodhound as a Witness, 54 Am L Rev 109, 114 (1920); Annot., 18 ALR 3d 1221 (1968). For instance, in 1570, Dr. Johannes Caius wrote Of Englishe Dogges, and described how dogs were used to track lost cattle and horses as well as thieves. In this country, Native Americans were the first Americans to employ the dog’s sense of smell. In 1755, Benjamin Franklin suggested using dogs as a defensive measure against Indian raids because they could be turned out to search surrounding woods for the scent of attackers. Downey, History of Dogs for Defense (1955). Similarly, Harriet Beacher Stowe’s Uncle Tom’s Cabin (1852), provides a graphic description of the use of dogs to track runaway slaves. When emigrants came to the Oregon Territory, they brought with them their hunting dogs trained to track scents.3 In sum, the use of dogs to smell scents or odors invisible to humans has a lengthy historical precedent, and it cannot be disputed that the dog’s ability to be trained to smell and to alert to a particular odor invisible to humans would have been common knowledge to the inhabitants of the Oregon Territory prior to statehood.
In the light of that knowledge, 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 “sufficiently” intrusive so as to “significantly” invade a privacy right. Nagel, 320 Or at 29. The majority answers that inquiry by reasoning that the “plain smell” doctrine is inapplicable because “[a] container that emits an aroma that is beyond the range of the human sense of smell ‘announces’ nothing,” 135 Or App at 604, and *613because it believes that our analysis in State v. Slowikowski, 87 Or App 677, 743 P2d 1126 (1987), is no longer persuasive in the light of the holding of the Supreme Court in Campbell, 135 Or App at 602. As will become evident in the discussion to follow, the majority’s reasoning fails to properly focus the analysis on the “police action” in this case and whether in a historical context, that “action” was “sufficiently” intrusive to “significantly” invade a privacy interest of defendant.
Of course, the majority is correct that in our decision in Slowikowski, we used a “reasonable expectation of privacy” test which is no longer the proper test under Oregon law. Consequently, the Supreme Court used different reasoning to arrive at its result in Slowikowski, 307 Or at 27. However, that does not mean that the court believed that dog-sniffs violate section 9. In fact, the court expressly declined to reach the issue.4 Moreover, the court’s analysis in Campbell of its holding in State v. Louis, 296 Or 57, 672 P2d 708 (1983), suggests that a dog-sniff under the circumstances of this case does not violate section 9.
In Louis, the defendant exposed himself to public view through his living room window in his own home. The court held that he had no cognizable privacy right even though the police officers photographed him with a 135 mm camera lens from across the street. In Campbell, the court explained its reasoning in Louis. It pointed out that had the police entered the defendant’s living room unlawfully to observe what could be observed from the street, an illegal search would have occurred. Thus, the determination of whether a search occurred did not depend on whether the defendant’s body was exposed to public view, but whether the action of the police in viewing it could be characterized as a search. Because the police were in a place where they had a right to be when they observed the defendant and what they saw could be seen with the unaided eye, their actions did not constitute a search. Campbell, 306 Or at 167. Similarly, the *614proper analysis here does not depend on whether humans could smell the odors from the car, but whether the use of a dog is so intrusive into defendant’s privacy interest so as to constitute a search.
The “police action” in this case was to use a dog in a way that dogs have been used historically by law enforcement: to smell an odor that could not be smelled by humans. The odors from the controlled substances inside the car had escaped from the interior of the car. The dog and its handler were standing alongside a public highway where defendant’s car was parked. No intrusion into the interior of the car occurred. Unquestionably, defendant had a privacy interest in the contents of his car, but the dog-sniff took place without any physical intrusion into those contents or the interior of the car. As the Supreme Court explained in United States v. Place, 462 US 696, 707, 77 L Ed 2d 110, 103 S Ct 2637 (1983):
“A ‘canine sniff by a well-trained detection dog, however, does not require opening the luggage. It does not expose noncontraband items that otherwise would remain hidden from public view, as does, for example, an officer’s rummaging through the contents of the luggage. Thus, the manner in which information is obtained through this investigative technique is much less intrusive than a typical search. Moreover, the technique discloses only the presence or absence of narcotics, a contraband item. Thus, despite the fact that the sniff tells the authorities something about the contents of the luggage, the information obtained is limited. This limited disclosure also ensures that the owner of the property is not subject to the embarrassment and inconvience entailed in less discriminate and more intrusive investigative methods. ’ ’
The conduct of the police in this case was no different in substance than any police action that historically used a dog to find a lost or concealed object or to track a fugitive to where he was hiding in an enclosed structure. In each situation, the police, with the use of a dog, detect an invisible odor left in a public area that leads to the location of the object or the person. The scent of the object or the person announces its presence even though neither is exposed to human perception. Here, the chemical odors of defendant’s narcotics had escaped from his automobile into a public place where they were subject to scrutiny by the public. The odors were discernible without any physical intrusion into a private area, and *615the dog handler was in a place where he had a right to be. Moreover, the use made of the dog under these circumstances did not violate any social or legal norm in effect at the time of the adoption of the constitution. There is nothing to indicate that citizens of the Oregon Territory would have considered the use of a dog by enforcement agents to detect the odor of an object emitting into a public place under the circumstances of this case to be offensive or to sufficiently impair any significant, cognizable privacy interest.
As a result of the majority’s holding, Oregon finds itself in company with a minority of the jurisdictions that consider “dog-sniffs” of objects to be a “search.”5 The majority implies that it might hold differently if there had been a reasonable and articulable suspicion that the car contained narcotics before the dog was brought to the scene. That is an untenable suggestion under Oregon law. See State v. Carter/Grant, 316 Or 6, 848 P2d 599 (1993) (holding that mere suspicions, no matter how reasonable, are insufficient to support the issuance of a search warrant under section 9).
In summary, the majority’s analysis when extended to other potential factual circumstances is an “all or nothing’ ’ ruling concerning the legality of dog-sniffs for controlled substances in Oregon. The majority’s dramatic change of Oregon law is ill-reasoned because it does not take into account the historical precedent of the use of dogs by law enforcement and because it fails to focus on the circumstances of the police action in this case. The fact that the odors *616from defendant’s car were only defectible by a canine is of no constitutional significance because there was no physical intrusion of any private container and it cannot be reasonably said that the police action in this case violated social and legal norms. Defendant drove his car on a public highway while it contained narcotics, the odor of which escaped into the surrounding area. That odor, when detected by the dog from a public place, revealed the contents of the vehicle as fully as if the controlled substance had been visible from the exterior of the car. I would hold that the use of the dog under these circumstances to sniff the exterior of a parked automobile in a public place was not sufficiently intrusive so as to significantly invade defendant’s privacy interests under Article I, section 9, of the Oregon Constitution.6
For these reasons, I dissent.
Riggs, J., joins in this dissent.The subsequent search pursuant to the warrant uncovered 111 grams of cocaine, 50 grams of tar heroin and 3 1/2 pounds of marijuana in the car.
The New York court held that no search occurred when a dog was used to sniff *611luggage at an airport. In United States v. Place, 462 US 696, 77 L Ed 2d 110, 103 S Ct 2637 (1983), the Supreme Court held that while the owner of luggage does have a reasonable expectation of privacy in the contents of his or her luggage, the exposure of the luggage to a dog-sniff is not so intrusive so as to constitute a “search” under the Fourth Amendment. In State v. Kosta, 304 Or 549, 748 P2d 72 (1987), police used a dog to sniff a detained package being delivered by Federal Express. The court held that because the defendant did not assert an identifiable interest in the package at the time of the detention of the package, it did notneedto reach the issue in this case under section 9. Id. at 554.
In 1848, a well-known Oregon pioneer, Thomas Clark, came west on the Oregon Trail. In the spring of 1850, Clark took money that he and others had made mining gold east to buy cattle. By the spring of 1851, he had 65 Morgan mares and 63 Durham cattle ready to drive across the plains to Oregon. Clark, an Englishman, was also a hunter and a lover of hunting dogs, and brought with him hunting hounds. One day while on the trail, Clark’s party was attacked by a band of Shoshone and Bannock Indians. Clark, hearing the shooting from a distance, launched a single-handed counterattack on horseback with his hounds. The Indians, believing that they were being attacked by a large party, fled. Bill Vandervert, as related to the Oregon Journal, November 22-23,1922, and recounted in Fred Lockley, Conversations with Bullwhackers, Muleskinners, Pioneers, Prospectors, ’49ers, Indian Fighters, Trappers, Ex-Barkeepers, Authors, Preachers, Poets & Near Poets & All Sorts & Conditions of Men (1981).
The court said,
“[I]t may be that, inasmuch as dogs have been used for purposes analogous to the one for which Breaker was utilized since long before the advent of either the state or federal constitutions, there is an historical exception for such use of dogs, i.e., such a use would not be a search. The question is interesting, but we need not answer it here.” 307 Or at 26 (footnote omitted).
The “dog-sniff’ of a person or of effects on or near a person presents a different issue than a “dog-sniff’ of an object insofar as privacy rights and the degree of intrusive action is concerned. State v. Boyce, 44 Wash App 724, 723 P2d 28 n 4 (1986). As to dog-sniffs of objects, the Ninth Circuit in U.S. v. Lingenfelter, 997 F2d 632 (9th Cir 1993), has held that a canine-sniff outside a drug suspect’s commercial warehouse did not constitute a “search.” Many state courts have held similarly under their own state constitutions. See State v. Paredes, 167 Ariz 609, 810 P2d 607, rev den (1991) (drug detection dog’s alert to vehicle while standing outside vehicle near trunk did not constitute search); People v. Salih, 173 Cal App 3d 1009, 219 Cal Rptr 603 (1985), rev den (1986) (canine-sniff of mailed parcel not a search); Cardwell v. State, 482 So 2d 512 (Fla App 1986) (canine-sniff of vehicles at roadblock not a search); State v. Snitkin, 67 Haw 168, 681 P2d 980 (1984) (dog-sniff of a sealed container was not a search); State v. Daly, 14 Kan App 2d 310, 789 P2d 1203, rev den (1990) (subjecting luggage or packages to dog-sniff was not a search); State v. Villanueva, 110 NM 359, 796 P2d 252, cert den 110 NM 260 (1990) (dog-sniff of luggage not a search); Strout v. State, 688 SW2d 188 (Tex App 1985) (canine-sniff of safety deposit box not a search); Boyce (canine-sniff of safety deposit box was not a search).
The majority makes several unwarranted assertions about the breadth of this analysis. First, every case under section 9 is fact specific. Our holding should go no further than to determine the legality of a dog-sniff under the circumstances of this case. Second, although not controlling, whether a physical intrusion occurs will always be an aspect of whether a “search” has occurred. Our focus should be on the intrusiveness of the police action. Third, although other states employ different analysis regarding the use of dogs to detect narcotics, their rulings apply social norms concerning how privacy interests of the kind involved here are viewed. Under the majority’s view, Oregon will be the first state to outlaw the use of dogs to detect narcotics unless a “reasonable suspicion” standard is subsequently adopted.