Privacy Interests
CONTENTS:
- Overview
- Plain View
- Plain Smell
- Revealed Contents and Confirmatory Tests
- Matters of Public Record
- Electronic Surveillance
- Homes
- Houseguests
- Curtilage
- Non-Residential Property
- Open Fields
- Hospital Rooms
- Prison Searches
- Field Sobriety Tests
- Bodily Fluids and DNA
- Oral and Electronic Communications
- Medical Marijuana Registration
- DMV Records
- Garbage
- Bailees
- Status as Contraband
At their core, privacy interests “are circumscribed by the space in which they exist and, more particularly, by the barriers to public entry (physical and sensory) that define that private space.” State v. Smith, 327 Or. 366, 373 (1998). However, the protection afforded by section 9 goes well beyond physical concepts of privacy—it protects information by ensuring a personal “freedom from certain forms of governmental scrutiny.” Id. at 372.
Despite this broad metaphysical formulation of the right, it is still easy to get caught up in physical concepts. For example, because the “form” of scrutiny employed by the State is often dependant on the types of barriers it encounters, the key inquiry generally concerns the adequacy of physical and technological barriers used to shield identifying information from general public awareness. See, e.g., State v. Heckathorne, 347 Or. 474 (2009). Usually, if the State can establish that those barriers are inadequate to block discovery of identifying information through normal sensory perception (e.g., sight, smell and hearing), then no privacy right is afforded, and, therefore, no “search” has occurred. (Note, however, that the sensory perceptions of touch and taste will often raise the issue of “seizure”).
Keep in mind, though, that “a person’s right to be free from unreasonable searches extends to those places and things in which the person has a ‘privacy interest,’ even when there is no physical or sensory invasion into the person’s own possessions or space.” State v. Delp, 218 Or. App. 17, 22 (2008) (analyzing, but ultimately rejecting, defendant’s contention that 18 U.S.C. § 2703 created a protected privacy interest in his AOL subscriber information because it prevented companies from general dissemination of such information). Therefore, an enterprising attorney may find that legal and conceptual boundaries can be just as effective as physical boundaries in the protection—or destruction—of a protected privacy interest.
ARTICLES
- Kenneth Kreuscher: Challenging Random License Plate Checks After Davis (Feb 2011).
- Rankin Johnson IV: When State Subpoenas Evade Search Warrant Requirements (March 2011).
- State v. Brown, 348 Or. 293 (2010) (“Additionally, a person who places an item in plain view has relinquished any constitutionally protected privacy interest in the item. That person, however, may renew theprivacy interest simply by removing the item from plain view.”).
- State v. Warren, 221 Or. App. 514 (2008) (No invasion of privacy occurred when officer used a flashlight to look into the cab of defendant’s truck at 9:30 p.m.—”[U]se of the flashlight to see what was otherwise in plain view did not significantly impair defendant’s freedom from scrutiny”).
- State v. Ford, 220 Or. App. 247 (2008) (Where defendant’s consent allowed officers to see a handgun in a drawer, the defendant’s subsequent act of closing the drawer did not nullify that plain view observation—”We are unpersuaded by defendant’s argument that the plain view doctrine does not apply because the contraband was no longer in plain view after defendant closed the drawer. Simply because Glenn could no longer see what he had immediately recognized as contraband does not negate the fact that Glenn had already seen it in plain view.”).
- State v. Barnum, 136 Or. App. 167 (1995) (Opening defendant’s notebook to look for handwriting samples constituted a “search:” ”A determination that a handwriting exemplar is not testimonial or communicative would allow for its compelled production without violating the Article I, section 12, protection against self-incrimination. But the process by which the exemplar is obtained still must satisfy the strictures of Article I, section 9.”).
- State v. Rhodes, 315 Or. 191 (1992) (“Hughes’ act of opening the door of defendant’s pickup from three or four inches (at which point the inside of the vehicle could not be seen or smelled) to completely open, thus exposing the contents of the inside of the vehicle, and looking inside was a ‘search’ under Article I, section 9″).
- State v. Ainsworth, 310 Or. 613 (1990) (No “search” occurred where officers flew helicopter over defendant’s property multiple times at an altitude ranging anywhere from 500 ft. to 15 ft. above the tree line—”[T]his court has interpreted Article I, section 9, to mean that a police officer at a lawful vantage point who observes contraband or illegal conduct has not conducted a search in the constitutional sense.”).
- State v. Smith, 327 Or. 366 (1998) (“The clear import of the foregoing is that, at least when they are conducted in a public place, dog sniffs are not searches. And, because they are not, the protections of Article I, section 9—including the warrant requirement—do not apply.”).
- State v. Rhodes, 315 Or. 191 (1992) (“Hughes’ act of opening the door of defendant’s pickup from three or four inches (at which point the inside of the vehicle could not be seen or smelled) to completely open, thus exposing the contents of the inside of the vehicle, and looking inside was a ‘search’ under Article I, section 9″).
- State v Heckathorne, 347 Or. 474 (2009) (There is no cognizable privacy interest where objects, “by their very nature announce their contents.” The general rule is that (1) the contents of a container may be revealed not only visually, but also by the container’s feel or smell, and, possibly, by its taste or sound; and (2) individual expertise and training may provide the knowledge that turns various sensory clues into probable cause.).
- State v. Luman, 347 Or. 487 (2009)(where private parties viewed videotape and disclosed both the tape and its contents to officer, those contents were “revealed” such that the officer could perform a confirmatory search mirroring the private search).
- State v. Stock, 209 Or. App. 7 (2006) (where officer found “a used syringe containing apparent drug residue, a glass methamphetamine pipe, and a bottle cap that was folded over and that had a small plastic bag protruding from it,” the bottle cap and bag did not plainly reveal their contents)
- State v. Kruchek, 156 Or.App. 617 (1998), aff’d by an equally divided court 331 Or. 664, 20 P.3d 180 (2001) (holding that the Owens exception for containers that “announce their contents” applies only to those which “do so in a way that announces that contraband is their sole content”).
- State v. Slowikowski, 307 Or. 19 (1988) (No privacy interest in marijuana odors emanating from a storage locker: “Defendant’s locker ‘announced its contents’ in much the same manner as did the transparent container in Owens….The odors he detected were all entirely outside the locker, where anyone who tried could have detected them.”).
- State v. Owens, 302 Or. 196 (1986) (“No warrant is required for the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents”).
- State v. Makuch, 340 Or. 658 (2006) (Defendants did not retain privacy interest in the contents of their attorney’s personal organizer, even though their names and contact information were listed therein—”[D]efendants had no privacy interest in the fact that they were clients of Neal, or that their names and addresses were written in Neal’s personal organizer, simply because that information was not private; Neal’s representation of defendants was a matter of public record, and defendants do not suggest that their names or addresses were secret or nonpublic.”).
- State v. Meredith, 337 Or. 299 (2004) (“Unlike the monitoring of the defendant as a member of the general public in Campbell, the monitoring of the transmitter at issue in this case occurred in a factually unique context and employment relationship. Unlike the defendant in Campbell, defendant here was using a truck that her employer had provided to perform her work duties. Defendant had no right to privacy with respect to that truck’s location, and the transmitter never disclosed anything other than that location.”).
- State v. Campbell, 306 Or. 157 (1988) (“The issue is whether police use of a radio transmitter to locate a private automobile to which the transmitter has been surreptitiously attached is a ‘search’ or ‘seizure’ under Article I, section 9, of the Oregon Constitution. We hold that it is a search”—”[I]t is wrong to characterize the radio transmitter as simply a device for ‘enhancing’ visual observations in the manner of moderate power binoculars or camera lenses.…The transmitter has nothing to do with vision; it broadcasts a signal that enables the police to locate, with little delay, the transmitter from anywhere that its signal can be received.”).
- State v. Tanner, 304 Or. 312 (1987) (It is axiomatic that “[r]esidence in a house is uniformly deemed to be a sufficient basis for concluding that the violation of the privacy of the house violated the residents’ privacy interests.”).
- State v. Brown, 183 Or. App. 434 (2002) (Although defendant was a guest in the motor home, the facts established were sufficient to find that he had a privacy interest extending to its entire interior—”Under Article I, section 9, a person who has entrusted possessions to the owner of a house has a protected privacy interest in the area of the house in which the possessions are located.”).
- State v. Tanner, 304 Or. 312 (1987) (“[T]here is no reason to assume that the class of persons with privacy interests in a house is limited to residents.” For example, the court explains, “[i]f A invites B to dinner at A’s house and the police burst in on the dinner, it would be ludicrous to contend that the police have infringed upon a privacy interest of A but not upon a privacy interest of B….The only limitation is that ‘B’s interest in the privacy of the house would not be as extensive as that of A. An invitation to dinner would not necessarily give B an interest in the privacy of the basement. It may also be that if B were a trespasser, B would not have a recognizable privacy interest.’“).
- State v Olinger, 240 Or. App. 215 (2010) (An officer’s entry into the area on the side of a house is presumptively a trespass unless there is evidence that invitation is otherwise implied. Here, officers did not have implied consent to go down a driveway on the side of Defendant’s house to look at the VIN number of the car).
- State v. Malvern, 230 Or. App. 370 (2009) (“[A]ssuming for the sake of argument that there is a basis for implying that defendant consented to the detectives approaching the door of his residence and attempting to make contact with him, there is simply no basis on this record for implying an invitation for the detectives to, as the trial court found, ‘beg[i]n randomly walking’ around the remainder of his property.”).
- State v. Pierce, 226 Or.App. 336 (2009) (“The fundamental principle…is that intrusions onto residential curtilage are deemed to be trespasses unless the entry is privileged or has defendant’s express or implied consent….Nevertheless, given prevailing social norms, the homeowner is presumed to have implicitly consented to entry into the front yard to approach the front door. Conversely, also given prevailing norms, such a presumption of implied consent to enter is not ascribed to other areas of the curtilage….Rather, entry onto those areas is presumptively a trespass….Nevertheless, that presumptive treatment is not necessarily conclusive: A homeowner can abrogate the presumption of implied consent to approach the front door by undertaking sufficient steps to exclude casual visitors from the front yard….Conversely, the presumption that other invasions of the curtilage are trespasses can be overcome by evidence that the homeowner has sufficiently implicitly or explicitly invited entry.”).
- State v. Somfleth, 168 Or.App. 414 (2000) (In determining whether officers invaded the privacy of defendant’s backyard, the court assessed “three factual elements that are probative of implied consent to entry: (1) the proximity of the public alleyway to defendant’s backyard; (2) the fence separating the alley from the backyard; and (3) the open gate and path leading from the gate to defendant’s back door.” After doing so, the factors did not suggest that he had implicitly consented to entry).
- State v. Larson, 159 Or. App. 34 (1999) (“The factors used to determine whether an area is within the curtilage of a private dwelling are often relevant in assessing whether a particular area of an apartment complex is one in which an individual has privacy rights for purposes of Article I, section 9.Nonetheless, because of the differences between a typical single-family dwelling and multiple-family dwellings, a strict application of the traditional curtilage doctrine to apartment dwellings should not be determinative of whether privacy rights exist. We believe that the better approach is to evaluate whether a privacy right exists based on the application of general legal principles relating to privacy interests to the circumstances of each case.”).
- State v. Dixson, 307 Or. 105 (1988) (“The drafters of Article I, section 9, are unlikely to have intended to exclude from its protections all real property except houses, i.e., structures where people customarily reside. The scope of the section is broader than a literal reading of its terms….If the individual has a privacy interest in land outside the curtilage of his dwelling, that privacy interest will not go unprotected simply because of its location.” As is the case in the “open fields” inquiry, courts will look to the totality of the circumstances in an effort to assess whether the owner/possessor has taken objective measures to ensure freedom from public scrutiny).
- State v. Dixson, 307 Or. 105 (1988) (“An individual’s privacy interest in land he or she has left unimproved and unbounded is not sufficient to trigger the protections of Article I, section 9. Thus, it is not sufficient that the property in question is privately owned, or that it is shielded from view by vegetation or topographical barriers, because those features do not necessarily indicate the owner’s intention that the property be kept private. A person who wishes to preserve a constitutionally protected privacy interest in land outside the curtilage must manifest an intention to exclude the public by erecting barriers to entry, such as fences, or by posting signs.”).
- State v. Andreason, 307 Or. 190 (1988) (The key inquiry in the open fields doctrine is whether owner manifested an intent to exclude).
- State v. Cromb, 220 Or. App. 315 (2008) (Defendant did not have privacy interest in hospital room—”"[W]ith a few possible exceptions, privacy interests can be recognized only by their association with aprivate place where the claimant has the right to exclude others….The hospital emergency room in this case, even a curtained-off portion of it, is not a private place.”).
- State v. Hartman, 238 Or. App. 582 (2010) (“Both Tiner and Sanders rest on the theory that an individual convicted of a felony forfeits particular rights under the Oregon Constitution, including the right under Article I, section 9, to be free from certain searches and seizures. Here, defendant was not even arrested for a felony, much less convicted of one and, thus, Tiner and Sanders are inapposite”—Therefore, defendant retained a privacy interest in his boots).
- State v. Sanders, 343 Or. 35 (2007) (Defendant could be required to give blood and buccal samples pursuant to a conviction—”In our view, it is the requirement of a felony conviction that is the key here. In most of the cases that we have cited above, the person whose privacy interests were invaded without a warrant had not been convicted. In those cases, the state had no basis for arguing that the person had any lesser privacy right than the general public. On the other hand, the warrant requirement never has been applied to convicted persons who have been placed in state custody as a result of their convictions. That is so, because it is inherent in the very notion of punishment for a felony conviction that an offender’s freedom is or may be drastically curtailed.”).
- State v. Tiner, 340 Or. 551 (2006) (Defendant could be required to remove his shirt and have photographs taken of the tattoos on his torso—”Once defendant was imprisoned, he lacked the right to privacy that he enjoyed when he was not in prison. Among the rights that he forfeited was the right to keep his personal appearance—including any distinguishing marks such as tattoos—from being known to the state. The state thus reasonably could compel defendant to remove his shirt so that he could be photographed.”).
- State v. Greenough, 216 Or. App. 426 (2007) (“Defendant’s refusals are neither protected nor private, and police observations of those refusals are not “searches” under Article I, section 9.”).
- State v. Burshia, 201 Or. App. 678 (Or. App. 2005) (“Subjecting a person to a breath test is a search and seizure that requires either a warrant or an exception to the warrant requirement.”).
- Ezzell v. DMV, 17 P.3d 516 (Or. App. 2000)(HGN, along with other FST’s, required probable cause and warrant or warrant exception).
- State v. Stowers, 136 Or. App. 448 (Or. App. 1995) (“a person’s pulse is private, and it is not subject to examination absent a warrant or a constitutionally recognized exception to the warrant requirement”; thus officer’s action of placing his fingers on defendant’s neck were unconstitutional as they were no supported by probable cause).
- State v. Nagel, 320 Or. 24 (1994) (Asking a suspect to perform field sobriety tests such as saying the alphabet, counting backwards, and standing on one leg implicates privacy interests because it “created a situation in which [the police officer] could observe certain aspects of the defendant’s physical and psychological condition that he was otherwise unable to observe.”)
- State v. Sanders, 343 Or. 35 (2007) (“Thus, in requiring convicted felons to provide a blood or buccal sample, ORS 137.076 effectively subjects those individuals to what commonly would be understood to be searches and seizures as an additional consequence of their convictions.”).
- DOJ v. Spring, 201 Or. App. 367 (Or. App. 2005) (“The procedure involved in this case — obtaining genetic material by swabbing the inside of an individual’s cheek….remains materially indistinguishable from blood draws or urine samples by which the state obtains bodily fluids that are not ordinarily available for public inspection. It is, accordingly, a search within the meaning of Article I, section 9.”).
- Weber v. Oakridge School Dist. 76, 184 Or. App. 415 (Or. App. 2002) (Random urinalysis of student athletes constitutes both a search and a seizure).
- State v. Milligan, 304 Or. 659 (1988) (“The extraction of a blood sample by the police is both a search of the person and a seizure of an ‘effect’ — the person’s blood.”).
- State v. Binner, 131 Or. App. 677 (Or. App. 1984) (where defendant consented to blood draw for limited purpose of testing alcohol content, it was an impermissible search to also test the blood for illicit drugs).
- Content—Courts have repeatedly recognized that the requirements for interception of oral, electronic and wire communications set forth in ORS § 133.724 create a privacy interest in the content of those communications. See, e.g.,State v. Johnson, 340 Or. 319 (2006). However, information relating to those communications that is in the possession of third parties for their legitimate business interests is not afforded a privacy interest. Id.
- Oregon law explicitly limits the degree to which law enforcement officials may access and use information located in the medical marijuana registry. See ORS § 475.331. In one of the few cases to address that provision, the Oregon Court of Appeals held that law enforcement could not access the registry database for the purpose of processing a Concealed Handgun License. Held v. Hanlin, 09CV2854CC (Or. App. Dec. 15, 2010).
- State v. Clark, 238 Or. App. 211 (2010) (“Here, for the same reasons expressed in Davis, we reject defendant’s contention that he has an inherent privacy interest in his DMV records such that the officer’s conduct violated Article I, section 9, when he accessed those records.”).
- State v. Davis, 237 Or. App. 351 (2010) (It is not an unconstitutional search for an officer to randomly access a person’s DMV records. Here, the officer saw defendant’s car, accessed DMV information based on the car’s license plates and pulled defendant over for DWS. There is no inherent privacy right in DMV records and ORS 802.177 doesn’t create one).
- State v. Howard/Dawson, 342 Or. 635 (2007) (Although a person may retain privacy and possessory interests in garbage when it is set out for collection, that person relinquishes all such interests once the sanitation company collects that garbage—The court notes that the legal relationship between the company and the client essentially parallels the law of abandonment. Also noteworthy is the implicit weight the court gives to contractual scope in defining the right to privacy).
- State v. Galloway/Hoesly, 198 Or. App. 585 (2005) (Defendants retained a constitutionally protected possessory interest in the contents of their garbage cans while the cans awaited collection, and the police seizure from those garbage cans violated that interest. Because the possessory interest issue was dispositive, the court does not address privacy).
- State v. Herrin, 323 Or. 188 (1996) (“There is uncontroverted evidence of defendant’s right to control the vehicle searched: Defendant told the police that he was buying the automobile, and they testified to his claim. As defendant asserts, the police officers apparently accepted defendant’s statement that he was buying the automobile. Defendant’s connection with the automobile is sufficient to support a privacy interest in him for the purpose of search and seizure law.”).
- State v. Kosta, 304 Or. 549 (1987) (Holding that “the fact that a seized item may be contraband does not prevent a defendant from having a cognizable property interest, as well as a privacy interest, in the item.”).
Is There a Privacy or Possessory Interest?
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