State v. Ainsworth

• Citation: 801 P.2d 749,310 Or. 613
• Decision Date: 26 November 1990
• Docket Number: 85-3452-C-2,Nos. 85-3451-C-2,s. 85-3451-C-2
• Parties: STATE of Oregon, Petitioner on Review, v. Cheryl Lynne AINSWORTH, Respondent on Review. STATE of Oregon, Petitioner on Review, v. John AINSWORTH, Respondent on Review. TC; CA A41480 (Control), A41596 SC S36097.
• Court: Supreme Court of Oregon

Page 749

801 P.2d 749

310 Or. 613

STATE of Oregon, Petitioner on Review, v. Cheryl Lynne AINSWORTH, Respondent on Review.

STATE of Oregon, Petitioner on Review, v. John AINSWORTH, Respondent on Review.

TC Nos. 85-3451-C-2, 85-3452-C-2; CA A41480 (Control),

A41596 SC S36097.

Supreme Court of Oregon.

Argued and Submitted Oct. 4, 1989.

Decided Nov. 26, 1990.

Jonathan H. Fussner, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Robert J. McCrea, Eugene, argued the cause for respondents on review.

Before PETERSON, C.J., and LINDE ^*, CARSON, JONES ^**, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.

CARSON, Justice.

The issue in this case is whether purposive aerial observation by police constitutes an "unreasonable search" under Article I, section 9, of the Oregon Constitution. ¹ We

conclude that a purposive aerial observation is not, simply by virtue of either of these characteristics, a search for constitutional purposes. Because we determine that defendants' constitutional rights were not violated in this case, we reverse the decision of the Court of Appeals and affirm the trial court's judgments of conviction.

FACTS

Defendants, husband and wife, live on approximately 14 acres of rural property in Jackson County. Their house is located roughly in the center of the rectangular-shaped property. The entire part of the property behind the house is enclosed by a four-foot high animal fence topped with two strands of barbed wire. A barn and a poultry pen are in the enclosed area. The boundaries of the property are posted with "No Trespassing" signs. The marijuana plants that gave rise to this criminal prosecution were growing about 300 feet behind the house in a heavily wooded area. Most of the plants were under two large trees, 45 to 50 feet in height. Defendant husband testified at the suppression hearing that the plants specifically were placed so that they could not be seen from above or from outside the property.

On September 10, 1985, acting on a tip that there was marijuana growing on defendants' property, two deputy sheriffs chartered a helicopter to fly over the property and verify the tip. While the helicopter was over defendants' property, one of the deputies observed the marijuana plants. The helicopter circled three or four times and descended somewhat for the second deputy to confirm the observation. There was conflicting testimony regarding the helicopter's altitude while over defendants' land. One deputy testified that the altitude was "pretty close to four or five hundred feet"; defendants' son testified that the helicopter was about "15 feet above the tree line."

Based upon the deputies' observations during the helicopter flight, a search warrant was obtained. Upon execution of the warrant, sheriff's deputies seized 17 marijuana plants found growing in plastic buckets. Dried marijuana plants were found elsewhere on the property.

Defendants were indicted for manufacture and possession of a controlled substance (marijuana). ² Defendants moved to suppress all evidence derived from the aerial observation and subsequent warranted search. The trial court denied the motion. After a trial to the court on stipulated facts, defendant husband was convicted of manufacture and possession, and defendant wife was convicted of possession.

Defendants appealed their convictions, arguing that the aerial observation used to support the issuance of the search warrant was a warrantless search in violation of Article I, section 9, of the Oregon Constitution. Finding that the aerial observation constituted a warrantless search and that no exception to the warrant requirement applied, a divided Court of Appeals, in banc, reversed and remanded, holding that the evidence must be suppressed. State v. Ainsworth, 95 Or.App. 240, 770 P.2d 58 (1989).

ANALYSIS

At the outset, it is important to emphasize the scope of the protection guaranteed by Article I, section 9. That provision does not protect citizens from all forms of governmental observation, but only from unreasonable "searches" (and seizures). It follows, therefore, that the threshold question in any Article I, section 9, search analysis is whether the police conduct at issue is sufficiently intrusive to be classified as a search. State v. Campbell, 306 Or. 157, 162-63, 759 P.2d 1040 (1988). As explained below, because the police conduct at issue in this case was not an Article I, section 9, "search," we do not reach the issue of whether it was unreasonable. ³

Article I, section 9, protects privacy and possessory interests from unreasonable governmental intrusion. State v. Tanner, 304 Or. 312, 319-20, 745 P.2d 757 (1987); see State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986). "The constitutional provisions against unreasonable searches and seizures do not protect a right to keep any information, no matter how hidden or 'private,' secret from the government. What the provisions forbid are unreasonable searches and seizures, i.e., certain acts of the government." State v. Campbell, supra, 306 Or. at 166, 759 P.2d 1040. (Emphasis in original.) (Citations omitted.) Thus,

"[t]he interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. A court has never held, for example, that a police officer engages in a search by making unaided observations from a public place, and an individual therefore cannot be said to have a constitutionally protected interest in freedom from such scrutiny." State v. Campbell, supra, 306 Or. at 170, 759 P.2d 1040.

As the above-quoted passage suggests, this 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. See generally 1 LaFave, Search and Seizure § 2.2(a) (2d ed 1987) (discussion of Fourth Amendment "open view" doctrine). In State v. Slowikowski, 307 Or. 19, 23, 761 P.2d 1315 (1988), for example, this court began its Article I, section 9, analysis by asking "whether the officers were legitimately on the premises when the marijuana was detected." (Emphasis added.) That the officers "had a right to be where they were," id. at 24, 761 P.2d 1315, was a determinative prerequisite to our conclusion that there was no Article I, section 9, search. We stated the rationale behind this principle in State v. Campbell, supra, 306 Or. at 170, 759 P.2d 1040:

"The reason that the observations of a police officer who is standing in a public place infringe no privacy interest may be that there is no generally recognized freedom from such scrutiny by private individuals. Such observations by the police would thus not significantly reduce the freedom from scrutiny available to 'the people.' "

The particular mode of transportation that officers use to attain their lawful vantage point is of no constitutional significance. ⁴ Whether on foot, by motor vehicle, boat, tall building, promontory, air balloon, or aircraft ⁵--the manner is unimportant if the officers are at a location where they are lawfully entitled to be. Because there is no evidence that the sheriff's deputies in this case were violating any common law or statutory rights of defendants, nor any rules, regulations, or other legal restrictions, ⁶ they lawfully were in the air above defendants' land. ⁷ Because the privacy interest protected by Article I, section 9, is the "privacy to which one has a right," State v. Campbell, supra, 306 Or. at 164, 759 P.2d 1040 (emphasis in original), the sheriff's deputies did not impermissibly intrude on defendants' privacy interest. Their actions did not constitute a search within the meaning of Article I, section 9.

This result is consonant with the result reached by the United States Supreme Court in a similar aerial observation case, California v. Ciraolo, 476 U.S. 207, 215, 106 S.Ct. 1809, 90 L.Ed.2d 210 (1986). ⁸ That Court held: "The Fourth Amendment simply does not require the police traveling in the public airways at this altitude to obtain a warrant in order to observe what is visible to the naked eye." (Footnote omitted.) See Dow Chemical Co. v. United States, 476 U.S. 227, 106 S.Ct. 1819, 90 L.Ed.2d 226 (1986) (evidence obtained from aerial surveillance is admissible if the government aircraft flies in public navigable airspace and the object of the search is in open view on the ground below). Indeed, in its most recent aerial observation case, the United States Supreme Court stressed the importance of the lawfulness of the police vantage point:

"We would have a different case if flying at that altitude had been contrary to law or regulation. But helicopters are not bound by the lower limits of the navigable airspace allowed to other aircraft.

Any member of the public could legally have been flying over Riley's property in a helicopter at the altitude of 400 feet and could have observed Riley's greenhouse. The police officer did no more. This is not to say that an inspection of the curtilage of a house from an aircraft will always pass muster under the Fourth Amendment simply because the plane is within the navigable airspace specified by law. But it is of obvious importance that the helicopter in this case was not violating the law * * *." Florida v. Riley, 488 U.S. 445, 451, 109 S.Ct. 693, 696-97, 102 L.Ed.2d 835 (1989). (Emphasis in original.) (Footnote omitted.)

Defendants argue the importance of, and the Court of Appeals emphasized, the purposive nature of the observation made by the sheriff's deputies. In concluding that there was an unlawful search in this case, the Court of Appeals relied upon language in State v. Slowikowski, supra, that there was no search in that case because there was no "purposive intrusion into a protected area." 307 Or....