State v. Campbell

• Decision Date: 12 July 1988
• Citation: 759 P.2d 1040,306 Or. 157
• Parties: , 57 USLW 2099 STATE of Oregon, Petitioner on Review, v. Roger Jonathan Scott CAMPBELL, Respondent on Review. TC 85-164, 85-165; CA A37511; SC S34651.
• Court: Oregon Supreme Court

Page 1040

759 P.2d 1040

306 Or. 157, 57 USLW 2099

STATE of Oregon, Petitioner on Review, v. Roger Jonathan Scott CAMPBELL, Respondent on Review.

TC 85-164, 85-165; CA A37511; SC S34651.

Supreme Court of Oregon.

Argued and Submitted May 5, 1988.

Decided July 12, 1988.

Philip Schradle, 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.

Michael D. Curtis, Metropolitan Public Defender, Oregon City, argued the cause for respondent on review.

Before PETERSON, C.J., and LENT, LINDE, CAMPBELL, CARSON and GILLETTE, JJ.

LENT, Justice.

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. ¹ We hold that it is a search. Because no warrant authorized the police to locate defendant's automobile in this manner, we affirm the decisions of the circuit court and the Court of Appeals to suppress the evidence thereby obtained.

I.

We base our statement of the facts on the findings of the circuit court. ² A trial court's findings are binding upon appellate courts if there is constitutionally sufficient evidence in the record to support those findings. See State v. Warner, 284 Or. 147, 156-59, 585 P.2d 681 (1978).

In late 1984, police officers in Washington and Columbia Counties began to suspect that defendant was committing residential burglaries in a rural area along the border of those two counties. The police suspected defendant because he was then on probation for burglaries that were committed in a somewhat similar fashion, because he lived in the area, and because his automobile had been seen near some of the burglarized residences when those burglaries were thought to have been committed. ³ To verify their suspicion, police officers attempted to follow defendant's automobile on a number of occasions but were unsuccessful. The rural area made it difficult to follow defendant closely without detection, and defendant began to drive evasively after becoming aware of the efforts to follow him.

Having failed to follow defendant visually, members of the Washington County Sheriff's Office decided to follow him by means of a radio transmitter attached to his automobile. A detective from that office testified that radio transmitters were used to follow individuals pursuant to "in-house criteria."

"Number one, it has to be a person that our intelligence tells [us] is active in whatever criminal activity we're trying to investigate. Number two, another major consideration that we have is we have attempted to follow them through our ordinary means. That means to have four or five cars out and try on their regular moving surveillance to follow the person. It's after that fails and we have no other resource then we will use the bird dogs [radio transmitters]."

The detective testified that no effort was made to obtain a search warrant to attach or monitor the transmitter because no warrant was believed to be required so long as the attachment was to the outside of the automobile while it was in a public place.

On January 15, 1985, a Washington County Sheriff's Office detective surreptitiously attached a small, battery-powered radio transmitter to the underside of defendant's automobile while it was parked in a public parking lot. Magnets in the transmitter held it to the automobile, and the attachment was made without entering the vehicle. The transmitter broadcasted a radio signal by which a companion receiver placed in an automobile or aircraft could determine the direction of the transmitter from the receiver. By gauging the strength of the signal received, a rough estimate of the transmitter's distance could also be made.

Initial efforts to follow defendant's automobile with a ground-based receiver were either unsuccessful or did not uncover any criminal activity. On January 21, 1985, a police officer replaced the transmitter's batteries, again while the automobile was in a public parking lot. The next day, after failing to pick up the signal with the ground-based receiver, Officers attempted to locate the automobile with a receiver in a small airplane. That receiver also failed to pick up the signal in the area in which the burglaries had been committed, but, by climbing to 4500 feet and flying in widening patterns, the officers were able to pick up a faint signal, which was tracked to a rural area near Molalla, Oregon, some 40 miles to the southeast in Clackamas County. There they discovered defendant's automobile parked along a public road near a residence. From the airplane, they visually followed the automobile when it moved to the driveway of another residence, where they observed defendant get out of the automobile and act in a manner that suggested to them that he was burglarizing the residence.

Defendant was indicted for burglarizing the two Clackamas County residences and moved to suppress all evidence derived from the use of the radio transmitter attached to his automobile. ⁴ The circuit court held that use of the transmitter required a warrant based upon a showing of probable cause to believe that defendant's automobile was engaged in ongoing criminal activity. Because the police had not obtained a warrant, and because the court concluded that no exigency obviated the need for a warrant, the court allowed defendant's motion to suppress.

On the state's appeal pursuant to ORS 138.060(3), a panel of the Court of Appeals affirmed with one judge dissenting. State v. Campbell, 87 Or.App. 415, 742 P.2d 683 (1987). The court held that the attachment and monitoring of the transmitter was a significant "trespass" to defendant's automobile and was, for that reason, a seizure of the automobile under the Oregon Constitution. 87 Or.App. at 420, 742 P.2d 683. The dissenting judge would have held that there was no seizure because there was no interference with defendant's use of his automobile and no search because defendant had no privacy interest in the use of his automobile in a public place. 87 Or.App. at 422-23, 742 P.2d 683 (Warren, J., dissenting).

II.

Defendant argues that the attachment and monitoring of the transmitter violated his rights under Article I, section 9, and the Fourth Amendment to the United States Constitution. ⁵ Before deciding a federal claim, we must first consider and decide all questions of state law. State v. Kennedy, 295 Or. 260, 262-65, 666 P.2d 1316 (1983) (citing cases). "This is required, not for the sake either of parochialism or of style, but because the state does not deny any right claimed under the federal Constitution when the claim before the court in fact is fully met by state law." Sterling v. Cupp, 290 Or. 611, 614, 625 P.2d 123 (1981); see also State v. Spada, 286 Or. 305, 309, 594 P.2d 815 (1979). We also may not reach a state constitutional issue if a claim is fully satisfied under other provisions of state law. See, e.g., State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977). This rule applies even if the parties have raised only constitutional issues on appeal. State v. Spada, supra, 286 Or. at 309, 594 P.2d 815.

In accordance with their "in-house criteria," the police officers attached and monitored the transmitter on defendant's automobile in order to investigate and prevent the crime of burglary, ORS 164.225. No Oregon statute governs the use of radio transmitters to locate objects or people, and, apart from what the constitution may require, the conduct of the police officers in attaching and monitoring the transmitter was not contrary to any other law. The issue on which the lawfulness of the police conduct turns, then, is whether the attachment or monitoring of the transmitter was a search or seizure under Article I, section 9, of the Oregon Constitution. A search or seizure to obtain evidence of a crime is unconstitutional if no warrant authorized the search or seizure and there is no exigency that would obviate the need for a warrant. State v. Kosta, 304 Or. 549, 553, 748 P.2d 72 (1987); State v. Owens, 302 Or. 196, 205-06, 729 P.2d 524 (1986). In this case, there was neither a warrant nor any exigency that would have obviated the need for a warrant. If the attachment or monitoring of the transmitter was a search or seizure, the motion to suppress was properly allowed. See State v. Kosta, supra, 304 Or. at 553, 748 P.2d 72; State v. Tanner, 304 Or. 312, 315, 745 P.2d 757 (1987); State v. Davis, 295 Or. 227, 231-37, 666 P.2d 802 (1983); State v. Laundy, 103 Or. 443, 494, 204 P. 958, 206 P. 290 (1922).

III.

This court has often stated that "privacy" is the interest protected by Article I, section 9, against unreasonable searches but has had little occasion to further define that interest. See, e.g., State v. Tanner, supra, 304 Or. at 319, 745 P.2d 757; State v. Owens, supra, 302 Or. at 206, 729 P.2d 524; State v. Louis, 296 Or. 57, 60-61, 672 P.2d 708 (1983); State v. Elkins, 245 Or. 279, 288-92, 422 P.2d 250 (1966). Nearly all of the government actions that have been challenged under Article I, section 9, have long been recognized as searches, and the court has had no difficulty equating these traditionally recognized searches with infringements of privacy interests. See, e.g., State v. Louis, supra, 296 Or. at 60, 672 P.2d 708.

Privacy is also recognized by the Supreme Court of the United States as the interest protected by the Fourth Amendment's prohibition on unreasonable searches. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Since Katz, the Court has defined a Fourth Amendment search as a government action that infringes upon a "reasonable expectation of privacy." ⁶ The state urges us to adopt this definition, together with the Court's applications of it, for Article I, section 9. The state points in particular to iUnited...