STATE OF OREGON, Petitioner on Review, v. JOHN FREDERICK LUMAN, Respondent on Review.
CC 04102244; CA A132197; SC S056470
Supreme Court of Oregon
December 31, 2009
347 Or. 487 | 223 P.3d 1041
Argued and submitted March 6, 2009
Chris Dunfield, Petersen, Dunfield & Fahy, Corvallis, argued the cause and filed the brief for respondent on review.
De Muniz, C. J., dissented and filed an opinion, in which Durham and Walters, JJ., joined.
The state appeals from a Court of Appeals decision reversing a trial court order that denied in part defendant‘s motion to suppress evidence. As in State v. Heckathorne, 347 Or 474, 223 P3d 1034 (2009), the issue in this case involves the warrant requirement in
The relevant facts are undisputed. Defendant owned a restaurant and catering service. He kept a television in the restaurant kitchen, and he instructed the restaurant staff not to use the television. Nevertheless, the employees sometimes watched the television while they worked. On one occasion, when defendant was not in the restaurant, an employee, Smith, turned on the television to watch the news. However, when Smith did so, a videotape in an attached videocassette recorder (VCR) began playing automatically. The videotape displayed images of women using the restaurant‘s only restroom. Smith alerted a female coworker, Jones, and the two watched parts of the videotape. Smith and Jones then discovered wires running from the VCR into an electrical plug in the wall of the bathroom directly across from the toilet, as well as an area where they believed a camera could have been placed. The employees also found other videotapes in the kitchen and in a bag in the restaurant‘s walk-in cooler. Some of the videotapes were hand-labeled with the names of
Four days later, without obtaining a warrant, a deputy sheriff watched the videotapes. Most of the videotapes contained recordings of the restroom when it was not in use, or “dead time.” However, interspersed throughout the “dead time” were recordings of women in a state of partial nudity as they used the restroom. The two videotapes labeled “master” contained the same images, but they had been edited to remove the “dead time.” In total, the videotapes contained images of 48 different people.
Defendant was charged with 48 counts of invasion of personal privacy, in violation of
Defendant appealed, assigning error to the trial court‘s failure to suppress the “master” videotape. The Court of Appeals reversed, concluding that the trial court erred, under
“the mere fact that a private third party has knowledge of the contents of something in which a defendant claims a privacy interest—even if that party conveys the information to the police—does not mean that a defendant no longer has ‘the right to be free from intrusive forms of government scrutiny.’ State v. Dixson/Digby, 307 Or 195, 208, 766 P2d 1015 (1988).
Article I, section 9 , does not countenance such a result.”
Id. at 626. In this case, the Court of Appeals observed, defendant did not evince an intent to relinquish his privacy interest in the videotape; rather, a “special effort” on the part of the employees, including violating workplace rules, was required to view the images on the videotape. Id. at 627. Therefore, according to the court, because defendant did not,
As noted, this court allowed the state‘s petition for review. On review, the state repeats the arguments that it made to the Court of Appeals.2
We begin with first principles.
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
That provision protects individuals “against unreasonable search, or seizure,” and it protects both possessory and privacy interests in effects. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). As the Court of Appeals observed, there is no real dispute that the sheriff‘s office‘s possession of the videotape was lawful. Luman, 220 Or App at 622. That is so because private parties, not state actors, first viewed the videotape and then, on their own initiative, brought it to the sheriff‘s office. It is axiomatic that
The foregoing principle applies even if the private parties acted unlawfully in conducting the search and seizure that ultimately led to police possession of the evidence. That is, even if defendant‘s employees in this case had committed theft (which they did not) when they took the videotape from defendant‘s restaurant and delivered it to the sheriff‘s office,3
that fact would not somehow turn that conduct into state action or render the sheriff‘s office‘s later possession of the videotape unlawful. This court has not stated so much expressly, but the federal courts clearly have endorsed that proposition under the
For example, in Burdeau v. McDowell, 256 US 465, 41 S Ct 574, 65 L Ed 1048 (1921), the defendant‘s former coworkers broke into his private office, drilled into his private safe, broke the locks on his private desk, and broke into and abstracted documents from his private files, all in order to steal books and papers that established that the defendant had committed fraud against his former employer. As the United States Supreme Court stated with respect to the defendant‘s subsequent
“The
Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies * * *.“In the present case the record clearly shows that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner‘s property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of [the former employer]. It is manifest that there was no invasion of the security afforded by the
Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken was turned over to the prosecuting officers of the Federal Government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his
private property under the circumstances herein disclosed, but with such remedies we are not now concerned.”
256 US at 475; see also, e.g., United States v. Snowadzki, 723 F2d 1427 (9th Cir), cert den, 469 US 839 (1984) (documents showing defendant had significant unreported income, which had been provided to IRS by defendant‘s coworker who had stolen them from defendant‘s desk, admissible in defendant‘s subsequent trial on charges of filing false tax returns; no
No party has suggested that the rule under the Oregon Constitution should be different; given what this court stated in Tucker, we assume the rule is the same. Therefore, because the deputy‘s receipt of the videotape (from the private citizens who had taken it) was constitutionally lawful, defendant no longer retained a protected possessory interest in the videotape or privacy interest in its exterior. The only question remaining, then, is whether defendant nonetheless retained a protected privacy interest in what that videotape showed that would be invaded by the deputy‘s warrantless viewing of it.
As discussed above, in holding that a warrant was required, the Court of Appeals held that the deputy conducted a “search” of the videotape when he viewed it. As this court stated in State v. Howard/Dawson, 342 Or 635, 640, 157 P3d 1189 (2007), a “search” occurs when an individual‘s protected privacy interests are invaded.4 The court went on:
“When * * * the police act without a warrant and no exception to the warrant requirement applies, the question whether the police have violated
Article I, section 9 , reduces
to whether the officers’ acts invaded either a constitutionally protected possessory or privacy interest.”
Put differently, if the police do not invade a protected privacy interest by examining a piece of evidence, a “search” does not occur and no warrant is necessary.5 In addition, as this court often has stated, the privacy protected under
As noted, the Court of Appeals held that defendant retained a privacy interest in the videotape, because nothing in his conduct evinced his intent to abdicate that privacy interest, and his employees had to undertake “special efforts,” including violating workplace rules, to view the videotape. Under
We have no trouble concluding that he did not. Once private parties have seized a piece of evidence, examined it, and delivered it to a police officer (thereby giving the police
As the state has pointed out in its brief to this court, that is the rule that the federal courts employ in analogous situations under the
“When an official search is properly authorized—whether by consent or by the issuance of a valid warrant—the scope of the search is limited by the terms of its authorization. * * *
“If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party‘s invasion of another person‘s privacy. Even
though some circumstances—for example, if the results of the private search are in plain view when materials are turned over to the Government—may justify the Government‘s re-examination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search. That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained.”
Walter, 447 US at 656-57 (footnote omitted).
However, the Court later explained the limitations on the Walter rule in United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85 (1984). In Jacobsen, Federal Express employees inspected a cardboard box that had been damaged in transit. Inside the box was a tube, approximately ten inches long, made of duct tape. Two employees cut open the tube and, inside it, found four plastic bags, which they then pulled out. One of them contained several ounces of white powder. The employees then notified the Drug Enforcement Administration (DEA). Before the first DEA agent arrived, the employees replaced the plastic bags in the tube and put the tube back into the box.
When the DEA agent arrived, he looked in the box, saw the slit in the tube that the employees had made, pulled out the plastic bags, opened them, and then performed a field test on the white powder. That test confirmed that the substance was cocaine. Eventually, other agents arrived; they performed a second test, rewrapped the tube, and obtained a warrant to search the defendant‘s address, to which the box and tube were supposed to have been delivered. The defendant subsequently was charged with and convicted of possession of a controlled substance with intent to distribute it. In upholding the trial court‘s denial of the defendant‘s motion to suppress the evidence found in the tube, the Court stated,
“The initial invasions of respondents’ package were occasioned by private action. Those invasions revealed that
the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the
Fourth Amendment because of their private character.“The additional invasions of respondents’ privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search. * * *
“*****
“This standard follows from the analysis applicable when private parties reveal other kinds of private information to the authorities. It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the
Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, theFourth Amendment does not prohibit governmental use of the now nonprivate information[.] * * * TheFourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case the authorities have not relied on what is in effect a private search, and therefore presumptively violate theFourth Amendment if they act without a warrant.”
Jacobsen, 466 US at 115-18 (footnotes and citations omitted). And, the Court held, because the search conducted by the federal agent in pulling the plastic bags out of the tube and examining them was not more intrusive than the private search that had preceded it, it did not further infringe on the defendant‘s privacy.6
In this case, defendant‘s employees seized the videotape, viewed it, handed it over to the deputy, and told him exactly what was on it. (And, as noted, none of that private conduct violated defendant‘s
The foregoing is consistent with this court‘s decision in State v. Munro, 339 Or 545, 124 P3d 1221 (2005). In Munro, the police obtained a search warrant permitting the officers to search for and seize drug-related evidence, including, among other things, business records, photographs, and videotapes. In the ensuing search, the police seized, among other things, a videotape. When the officers initially tried to view the videotape, it appeared to be blank; nevertheless, the officers retained the videotape. Based on other evidence found in the search pursuant to the warrant, the defendant was charged with possession of a controlled substance. Sometime later, while the defendant‘s trial on the drug charge was
On review, this court reversed the decision of the Court of Appeals. In so doing, the court accepted the state‘s concession that the police officers’ viewing of the videotape was a search, but stated that the question before the court was whether the defendant had retained any privacy interest in the videotape (after its seizure and initial examination) that could not lawfully be invaded under the authority of the first, drug-related warrant. 339 Or at 550. The court held that he did not. The court noted that the warrant authorized the seizure of the videotape, thereby depriving the defendant of his possessory interest in the videotape. Id. at 552. The court then stated, “Similarly, the warrant authorized the police to invade the privacy of the videotape by examining and exhibiting its contents.” Id. That is, the court held, once the police lawfully seized the videotape and, therefore, lawfully possessed the videotape for criminal investigatory purposes, the police were fully entitled to examine and exhibit the videotape:
“[T]he warrant lawfully authorized the seizure of the videotape and the invasion of defendant‘s privacy interest in its contents. Once the police seized the videotape under the authority of the warrant, any privacy interest that defendant had in the contents of the videotape was destroyed by the authority of the warrant permitting the examination and exhibition of the contents of the videotape. Until such time as defendant regained lawful possession of the videotape, he had no remaining privacy interest in its contents that he could assert.
“The fact that the police did not initially observe any images on the videotape when they initially examined it is of no legal significance. Once they lawfully had seized the videotape, nothing prevented the police from examining the contents of the videotape as often as they deemed necessary. Furthermore, once the videotape was lawfully seized under the authority of the warrant, any images stored on the videotape, no matter how hidden, private, or secret, were no longer protected by
Article I, section 9 .”
The Court of Appeals read the foregoing passages from Munro as supporting its contrary conclusion that, because there was no search warrant in this case destroying defendant‘s possessory and privacy interest in the videotape, defendant retained a privacy interest in it and a warrant therefore was required to view it. That reading was based on the Court of Appeals’ understanding that the warrant in Munro specifically, and in so many words, authorized not only the seizure of the videotape but also the viewing of it. Luman, 220 Or App at 626 (“That is, the dispositive circumstance in Munro was that ‘the warrant authorized the police to invade the privacy of the videotape.‘” (Emphasis in original.)). That understanding, however, is wrong.
The warrant in Munro provided, ” ‘You are hereby commanded to search: * * * For the following described property: * * * videotapes * * *.’ ” 339 Or at 548 n 4. That is all. Thus, when the Munro court referred to “the authority of the warrant permitting the examination and exhibition of the contents of the videotape,” the court clearly was speaking of the right to play and view the videotape that inhered in the lawful seizure of the videotape (which was all that the warrant expressly permitted). In this case, as already discussed, the sheriff‘s office gained lawful possession of the videotape for criminal investigatory purposes when defendant‘s employee brought the videotape into the sheriff‘s office, told the deputy sheriff what was on the videotape and the circumstances surrounding its discovery, and handed it over. That set of circumstances is the functional equivalent of the lawful “seizure” in Munro under the authority of the warrant, which also gave the police lawful possession of the videotape. And, as in Munro, because the sheriff‘s office‘s possession of the
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
DE MUNIZ, C. J., dissenting.
The videocassette is a constitutionally protected effect, and its contents are the images on the videotape. Those images are not in plain view and can be viewed only by the use of an electronic device.
The majority, relying on
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
That preference has its origins in the constitutional principle of separation of powers and recognizes that a search pursuant to a warrant involves both the executive branch, which conducts the search, and the judicial branch, which decides whether to issue the warrant. By contrast, a warrantless search is a unilateral act of the executive branch
The majority emphasizes the fact that the employees told the police “exactly what was on [the videotape.]” 347 Or at 499. The fact that defendant‘s employees told the police what they saw when they played the videocassette may have provided probable cause to believe, as the employees claimed, that the videotape contained images of women using the restroom. However, the employees’ statements did not physically place the images in the plain view of the police such that they could observe those images without using an electronic device to reveal them, thereby conducting a search. Because the viewing of the images on the videotape was a search, the police were required to obtain a warrant or establish an exception to the warrant requirement before conducting that search.
The majority also is confused regarding the extent of the warrant issued in State v. Munro, 339 Or 545, 124 P3d 1221 (2005). The majority states that the warrant authorized only the seizure of the videocassette at issue in that case, but not the viewing of it, and that this court thus determined that the right to view the images on the videotape “inhered” in its lawful seizure. 347 Or at 501. That is a not a complete reading of the affidavit in support of the search warrant and the warrant that was issued in that case. The affidavit provided, in part:
“Persons who possess and distribute marijuana and other controlled substances often keep records pertaining to
their illegal narcotic activities. These include records of marijuana values they have packaged and sold, lists of customers and associates, and records of drug payments and debts. Such records are commonly kept at the premises where the controlled substances are processed and sold, are secured in safes, lockboxes, computers, or other secure or concealed locations secreted at the location. This facilitates easy access by the seller while affording protection from unwanted discovery.
“These records include written and electronically stored business documents, ledgers, address books, computer files and software, telephone toll records, notes, messages, photographs and video films, and encrypted memoranda indicating drug debts/sales.” ”
Munro, 339 Or at 547-48 n 3 (first emphasis added, second emphasis in original). In turn, the warrant provided, in part:
“You are hereby commanded to search:
“*****
“For the following described property:
“‘[I]tems of identification such as utility bills, mail addressed to the occupants, rent receipts and property ownership papers, financial and personal paper; business records such as ledgers, address books, bank records, travel records, computers and their files and related software, telephone toll records; phone recorders, cellular telephones, electronic pagers, caller identification devices, notes, messages, encrypted memoranda, records of drug sales and debts, photographs and videotapes[.]’ ”
Id. at 548 n 4 (emphasis omitted). The warrant in Munro explicitly provided the authority to view the images on the videotape. The warrant did not, as the majority asserts, provide explicit authority to seize and only implied authority to search. The court explained that
“[o]nce the police seized the videotape under the authority of the warrant, any privacy interest that defendant had in the contents of the videotape was destroyed by the authority of the warrant permitting the examination and exhibition of the contents of the videotape. Until such time as defendant regained lawful possession of the videotape, he had no
remaining privacy interest in its contents that he could assert.”
339 Or at 552 (emphasis added). The conclusion that the majority draws here—that lawful possession of an effect by the police thereby extinguishes a person‘s privacy rights in the contents of that effect—is not supported by this court‘s decision in Munro. Moreover, that conclusion contradicts other pertinent
For example, in State v. Keller, 265 Or 622, 510 P2d 568 (1973), defendant was stopped in her car and arrested. During an inventory of the contents of her car, the police noted an open cosmetic case on the floor in front of the driver‘s seat, and its contents, syringes and needles, were in plain view. They also observed a fishing tackle box, on the floor of the back seat, held closed by a “red wire tied around it.” Id. at 624. The police removed the wire and opened the tackle box to inventory its contents and observed five vials of liquid, litmus paper, and razor blades. The liquid later was determined to be a controlled substance, which was the basis of the indictment against defendant. The arresting officer testified that when the box was opened there was the odor of methamphetamine, which he had smelled before in a “narcotics lab.” Id. This court affirmed the trial court‘s ruling that the evidence should be suppressed, stating that
“[w]ith no exigent circumstances present [the police] could have easily inventoried ‘one fishing tackle box,’ along with other items in plain view. If they had probable cause to believe a crime was being committed, after seeing the syringes and needles in the open cosmetic case, they could have sought a search warrant from a disinterested magistrate.”
Here, as in Keller, the fact that the police had possession of the videocassette did not automatically result in defendant‘s loss of his privacy interest in the images on the videotape such that the warrant requirement could be dispensed with.
As noted above, this court has concluded numerous times that warrantless searches, unless falling within a few, well-defined exceptions, are per se unreasonable. Davis, 295 Or at 237; see also State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (“As this court repeatedly has stated, if an instruction
Knowing that the videocassette was given to them by defendant‘s employees, and not by defendant himself, the officers could not have reasonably concluded that defendant intended to relinquish his privacy interests in the images on the videotape, nor should this court. See id. at 608 (question to be resolved in such cases is whether a defendant‘s statements and conduct demonstrated that he relinquished all constitutionally protected interests in articles of property, so that both warrantless seizure of property and resultant search by police were reasonable under
In light of the foregoing, I would conclude that the officers conducted a warrantless search when they viewed the images on the “master” videotape, to which no exception to the warrant requirement applied. Thus, I would hold that the trial court erred in declining to suppress the images on that videotape. I respectfully dissent.
Durham and Walters, JJ., join in this opinion.
Notes
“(1) Except as provided in
“(a)(A) The person knowingly makes or records a photograph, motion picture, videotape or other visual recording of another person in a state of nudity without the consent of the person being recorded; and
“(B) At the time the visual recording is made or recorded the person being recorded is in a place and circumstances where the person has a reasonable expectation of personal privacy[.]”
The“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”