State v. Wacker

• Decision Date: 26 February 1992
• Citation: 111 Or.App. 483,826 P.2d 1019
• Parties: STATE of Oregon, Appellant, v. Bart Dale WACKER, Respondent. C8904498CR; CA A62171.
• Court: Oregon Court of Appeals

Page 1019

826 P.2d 1019

111 Or.App. 483

STATE of Oregon, Appellant, v. Bart Dale WACKER, Respondent.

C8904498CR; CA A62171.

Court of Appeals of Oregon.

Argued and Submitted Feb. 27, 1991.

Decided Feb. 26, 1992.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the briefs were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Peter Gartlan, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Sally L. Avera, Public Defender.

Before BUTTLER, P.J., and ROSSMAN and DE MUNIZ, JJ.

BUTTLER, Presiding Judge.

The state seeks reversal of an order granting defendant's motion to suppress evidence discovered as a result of police observation of defendant with a "starlight scope" ¹ and camcorder. The sole issue is whether the enhanced observations made by using the scope constituted a search. We agree with the trial court that it did and affirm.

With the consent of the Aloha Tavern owner, three officers stationed themselves in a darkened, second floor office above the front end of the tavern parking lot. The officers used the scope and a video camcorder to watch the lot for drug activity. The scope enabled the viewer to see clearly at night and is capable of magnifying an image 6.8 times. The camcorder enhanced available light to one lux and magnified an image up to 4 times. The two devices were used independently; the scope was not used to enhance the images observed and photographed with the camcorder.

Because the camcorder was not connected to a monitor, the officers' observations of the activities using that device were limited to what they could see through the viewfinder, a 1 1/2"' X 2"' screen. At about 11:30 p.m., on January 25, 1989, the officers noticed a car, a Nissan, pull into the lot and park in the darkest part of the lot, 29 feet from where they were stationed. After observing the activities inside the car with the aid of the scope, the officers formed the opinion that the occupants were engaging in criminal drug activity. The observing officers then radioed for a marked patrol car to stop the Nissan after it left the lot. It was stopped and, after a consensual search, evidence of crime was seized. Defendant moved to suppress evidence of the observations made by the officers by using the enhancement devices, as well as the evidence seized at the scene of the stop, because, he contended, the stop was the result of the enhanced observations.

The trial court made these findings "14a. It is impossible to tell what activities the deputies observed in the Nissan with the naked eye, what activities they observed with the use of the starlite scope and what activities they observed through the camcorder viewfinder.

"15. The observations made by the deputies through the viewing screen of the camcorder were insufficient to establish a reasonable suspicion to believe a crime had been committed.

"16. The activities the deputies observed in the Nissan without the use of the starlite scope were not sufficient to establish a reasonable suspicion a crime had been committed, nor to establish probable cause that a crime had been committed and that the occupants of the Nissan were the persons who had committed the crime.

"17. The use of the starlite scope by the deputies to observe activities in the Nissan was an unreasonable intrusion upon the occupants' right to privacy."

The court concluded that the use of the scope constituted a warrantless search and granted defendant's motion to suppress in its entirety. Although the state concedes that the findings are supported by the record, it contends that the use of the scope did not amount to a search. We disagree.

A search occurs when a person's privacy rights are significantly impaired. State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988); State v. Casconi, 94 Or.App. 457, 766 P.2d 397 (1988). The state does not contend that every use of a starlight scope is permissible. Rather, it argues that, because "the activities in the car were apparent to all who walked by, the incremental loss of privacy resulting from the officer's use of the nightscope cannot be described as a significant impairment." That argument appears to be that defendant had no reasonable expectation of privacy, the test applied in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), under the federal constitution, but rejected as the test under Article I, section 9, in State v. Campbell, supra, where the court said:

"Because the phrase continues to appear so often in arguments, we here expressly reject it for defining searches under Article I, section 9. The phrase becomes a formula for expressing a conclusion rather than a starting point for analysis, masking the various substantive considerations that are the real bases on which Fourth Amendment searches are defined. See, e.g., Wilkins, Defining the 'Reasonable Expectation of Privacy': An Emerging Tripartite Analysis, 40 Vand L Rev 1077 (1987). Moreover, the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right. See State v. Tanner, supra, 304 Or at 321 n 7 [745 P.2d 757 (1987) ]." 306 Or. at 164, 759 P.2d 1040. (Emphasis in original.)

Furthermore, the state's argument is theoretical: There is no evidence that the activities were apparent or visible to anybody other than the officers observing them through the scope. The car was parked in the darkest part of the lot; the video tape shows that, during the 30 minutes of taping, 4 people walked by the car and the occupants were not holding anything up where it could be seen. When a car pulled up behind them, they lowered whatever they were holding to below the window level. Whenever they thought that their activities might be observed, they took steps to avoid being observed. In Campbell, the court said:

"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. Tiny radio transmitters for surreptitiously locating objects to which the transmitters are attached are among these developments. In deciding whether government practices that make use of these 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." 306 Or. at 171, 759 P.2d 1040.

Oregon courts have declined to hold that a person has no privacy interest in areas that are accessible to the public. State v. Campbell, supra; State v. Owczarzak, 94 Or.App. 500, 766 P.2d 399 (1988); State v. Casconi, supra, 94 Or.App. at 457, 766 P.2d 397.

In State v. Owczarzak, supra, the police, who were investigating sexual activity in public restrooms, installed two video cameras in "peepholes" so that they could watch what was occurring in and in front of two toilet stalls, which had no doors. We rejected the state's argument that, "because defendant's conduct took place in an area open to the view of others in the restroom, he had no protected privacy interest." 94 Or.App. at 503, 766 P.2d 399. Although the area in which an individual's activities are conducted may affect the extent of the person's privacy interest, what the person seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. State v. Campbell, supra, 306 Or. at 169, 759 P.2d 1040. Defendant sought to keep his activities private by parking in the darkest corner of the lot, away from the main walkway and by discontinuing them whenever somebody walked by or when a car approached. The state, relying on State v. Ainsworth, 310 Or. 613, 801 P.2d 749 (1990), contends that that makes no difference. However, Ainsworth held only that a "police officer's unaided observation * * * from a lawful vantage point is not a search under Article I, section 9, * * *." 310 Or. at 621, 801 P.2d 749. ² (Emphasis supplied.)

Whether the government's use of the technological enhancements involved in this case constitutes a search, therefore, is not determined by whether other police conduct might have resulted in the same discovery, State v. Owczarzak, supra, 94 Or.App. at 503, 766 P.2d 399, or solely by reference to the area at which the government conduct is directed, but by whether the surreptitious surveillance itself is a practice that, if engaged in entirely at...