344 P.3d 63
Or. Ct. App.2015Background
- Defendant, a homeless man, built a tarp-covered makeshift shelter in a recessed alcove that extended ~2 feet onto a public sidewalk, violating Portland code prohibiting structures on public right-of-way.
- Portland officers had previously warned defendant to remove the structure one week earlier and returned later to consider abating it.
- On return, Officer Kofoed lifted a tarp flap to look inside; Officer Lowry observed defendant holding a glass methamphetamine pipe and lighter and arrested him for violating the city code; further evidence led to a methamphetamine possession charge.
- Defendant moved to suppress evidence discovered after the tarp was lifted, arguing the lift was a warrantless search violating Article I, §9 of the Oregon Constitution and the Fourth Amendment.
- Trial court found the shelter was defendant’s residence but denied suppression, reasoning the structure was an unlawful public obstruction subject to summary abatement and therefore carried no right to privacy; defendant was convicted and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether lifting the tarp was a search under Article I, §9 | State: no protected privacy interest because structure violated code and police may summarily abate obstructions | Defendant: tarp-covered shelter was his residence and thus entitled to residential privacy protections | Court: not a protected private place—structure was illegal on public right-of-way and police authorized to abate; no Article I, §9 violation |
| Whether lifting tarp violated Fourth Amendment | State: no reasonable expectation of privacy in an illegal, temporary structure on public land known to be unlawful | Defendant: residential character of shelter creates reasonable expectation of privacy | Court: no reasonable expectation of privacy where structure was illegally erected on public space, defendant had been told to remove it, and city had not acquiesced; Fourth Amendment not violated |
| Whether prior non-removal created acquiescence by city (raised on appeal) | N/A (state argued no acquiescence) | Defendant: officers’ earlier failure to remove could imply acquiescence and create privacy expectation | Court: issue unpreserved; factual inquiry not decided; short one-week gap unlikely to show long-standing acquiescence |
| Whether observation was plain view after lawful action | State: officers were in a place they could be and lifted tarp while addressing a code violation; items were in plain view | Defendant: lifting tarp was a warrantless intrusion into private space | Court: lawful conduct given summary-abatement authority; items observed in plain view and admissible |
Key Cases Cited
- State v. Campbell, 306 Or 157 (1988) (privacy clause protects freedom from government scrutiny; focus on government conduct)
- State v. Smith, 327 Or 366 (1998) (privacy inquiry asks whether place can legitimately be deemed private)
- United States v. Ruckman, 806 F.2d 1471 (10th Cir. 1986) (no Fourth Amendment privacy expectation in an illegal cave dwelling on public land)
- U.S. v. Sandoval, 200 F.3d 659 (9th Cir. 2000) (privacy expectation may exist where government has not instructed occupant to vacate and has not prohibited use)
- Lavan v. City of Los Angeles, 693 F.3d 1022 (9th Cir. 2012) (addresses seizure/destruction of personal property on sidewalk; suggests in dicta possible privacy in shelters but did not decide the point)