State v. Sines, 379 P.3d 502

Background

In 2006 a housekeeper anonymously reported suspected sexual abuse of defendant’s adopted nine‑year‑old daughter to DHS after observing an unusual discharge on the child’s underwear and other indicia of abuse.
The housekeeper told the DHS worker she had considered taking a pair of the child’s underwear; the DHS worker said a local lab could test underwear and gave the housekeeper his direct number but expressly told her he could not tell her to take the underwear.
DHS and a deputy agreed to delay the usual 24‑hour safety check to a five‑day response window (the delay was not communicated to the housekeeper).
Another employee of defendant’s household took one pair of the child’s underwear from the laundry while the children were at school and gave it to the housekeeper, who delivered it to DHS/police the next day.
Lab testing found spermatozoa; police obtained a warrant, searched defendant’s home, and defendant was convicted on multiple counts of first‑degree sexual abuse.
Trial court denied defendant’s suppression motion; the Court of Appeals reversed, concluding the private seizure had become state action. The Oregon Supreme Court granted review.

Issues

Issue	State (Petitioner) Argument	Sines (Respondent) Argument	Held
Whether a private citizen’s warrantless seizure of evidence becomes state action under Article I, §9	Use common‑law agency: state action exists only if state directed, controlled, or conveyed authority to act on its behalf	Adopt Ninth Circuit two‑part test: government knew and acquiesced; private actor intended to assist law enforcement	The Court adopted a common‑law agency approach and held no state action: DHS did not direct, authorize, or actively encourage the seizure
Whether DHS’s statements (lab testing available, giving phone number) and delay of safety check transformed the housekeeper into a state agent	Those communications/actions were not affirmative direction; they did not manifest assent for the housekeeper to act as agent	Such contacts amounted to acquiescence and encouragement making the seizure state action	Court held those communications and the uncommunicated delay were insufficient to constitute affirmative government instigation or authorization
Whether failure to warn the housekeeper that taking property could be theft makes private seizure attributable to the state	No obligation to discourage private searches; silence is insufficient to create agency	Failure to warn meant acquiescence and effectively encouraged the seizure	Court rejected this theory: lack of warning does not transform private conduct into state action
Whether evidence obtained after the private seizure should be suppressed as fruit of unconstitutional search	If private seizure is not state action, Article I, §9 is not implicated and exclusionary rule does not apply	If seizure is state action, subsequent search/seizure without warrant must be suppressed	Because seizure was private, evidence was not excluded on state‑action grounds; case remanded for other issues

Key Cases Cited

State v. Tucker, 330 Or. 85 (Or. 2000) (Article I, §9 implicated when a state officer requests a private person to search a place and the private person acts because of and within the scope of that request)
State v. Luman, 347 Or. 487 (Or. 2009) (private illegal search does not become state action merely because evidence is later in police possession)
State v. Smith, 310 Or. 1 (Or. 1990) (private informant not a state agent where officers did not sufficiently initiate, plan, control, or support the informant’s activities)
State v. Waterbury, 50 Or. App. 115 (Or. Ct. App. 1981) (circumstantial encouragement by police insufficient to convert private search into state action)
United States v. Jarrett, 338 F.3d 339 (4th Cir. 2003) (use of common‑law agency principles in fact‑intensive inquiry whether private actor acted on behalf of government)
United States v. Koenig, 856 F.2d 843 (7th Cir. 1988) (rejecting bright‑line rule that knowledge plus acquiescence equals agency)
United States v. Smythe, 84 F.3d 1240 (10th Cir. 1996) (government must affirmatively encourage, initiate, or instigate private action to find state action)
United States v. Walther, 652 F.2d 788 (9th Cir. 1981) (mere governmental authorization of a type of private search insufficient without active participation or encouragement)
United States v. Miller, 688 F.2d 652 (9th Cir. 1982) (articulated two‑part test — knowledge/acquiescence and motive to assist law enforcement — relied on by respondents but not adopted by the Court)