State v. Cromb

• Decision Date: 11 June 2008
• Docket Number: A129799 (Control).,0401-30440.,0401-30254.,A130120.
• Citation: 220 Or. App. 315,185 P.3d 1120
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Michael James CROMB, aka Arthur John Cromb, Defendant-Appellant.
• Court: Oregon Court of Appeals

185 P.3d 1120

220 Or. App. 315

STATE of Oregon, Plaintiff-Respondent, v. Michael James CROMB, aka Arthur John Cromb, Defendant-Appellant.

0401-30254.

0401-30440.

A129799 (Control).

A130120.

Court of Appeals of Oregon.

Argued and Submitted March 31, 2008.

Decided June 11, 2008.

Tammy W. Sun, Deputy Public Defender, argued the cause for appellant. On the brief were Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Stephanie Hortsch, Deputy Public Defender, Office of Public Defense Services.

David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before EDMONDS, Presiding Judge, and BREWER, Chief Judge, and WOLLHEIM, Judge.

BREWER, C.J.

A police officer walked into the area of a hospital emergency room where defendant was being treated after a car accident. The officer observed defendant's vital signs and medical staff's diagnosis of his condition and, thereafter, obtained a sample of defendant's urine for chemical testing. ORS 813.140.¹ A grand jury indicted defendant for, among other offenses, driving under the influence of intoxicants (DUII). ORS 813.010. Defendant filed a motion to suppress the test results of the urine sample, asserting that the investigating officer's warrantless observations in the emergency room that led to the seizure of the urine sample violated his rights to be free from unreasonable searches and seizures under the Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution. The trial court denied the motion, and defendant was convicted based on his ensuing conditional guilty plea. On appeal, he assigns error to the denial of his motion to suppress. We affirm.

We review the denial of a motion to suppress for errors of law, and we are bound by the trial court's findings of historical fact as long as there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). We presume that the court found the facts in a manner that is consistent with its ultimate conclusion. State v. Ready, 148 Or.App. 149, 153-54, 939 P.2d 117, rev. den., 326 Or. 68, 950 P.2d 892 (1997). The facts we state are either undisputed or are binding upon us because they are taken from those found by the trial court.

Officer Johnson was dispatched to a hospital to contact defendant regarding a DUII investigation. Johnson learned from an officer at the scene that defendant's car had crashed into a telephone pole. Johnson found defendant in a hospital emergency room. The emergency room is open to the public; anyone can enter. However, there are areas within the emergency room that can be curtained off. Johnson found defendant in a bed in one of those areas. Defendant testified that the curtain was closed when Johnson entered the area. However, defendant also testified that he knew that hospital personnel, not defendant himself, had control over who was present in the emergency room.

Johnson observed a blood pressure monitor indicating that defendant's pulse rate was near the high end of the normal range but that his blood pressure was significantly subnormal. Johnson asked defendant for permission to check his pupils. At that point, a medical staff person said that defendant's vital signs were getting too low and voiced suspicion that there was a narcotic analgesic in his system. Based on his own observations, the information from medical staff, and his knowledge of the circumstances of the accident, Johnson concluded that he had probable cause to believe that defendant had been driving under the influence of intoxicants. Johnson asked the medical staff to retain defendant's urine bag and withdraw a sample for testing. They complied.

At the suppression hearing, Johnson testified that, in the previous year, he had responded to the same hospital emergency room between six and 12 occasions to conduct investigations. None of the personnel there — whether technicians, doctors, or nurses — had ever excluded him or denied him access to any of the treatment areas. Johnson testified that he had a "working relationship with the emergency room technicians," who gave him access for investigative purposes to anyone who was receiving treatment in the emergency room.

In his motion to suppress, defendant argued that he had a constitutionally protected privacy interest in the area of the emergency room where he was being treated and that the officer's entry into that area and his observations of defendant's condition constituted a warrantless search that violated that interest. Defendant also argued that the chemical test of his urine sample was inadmissible under ORS 813.140, because, without the challenged observations, the officer lacked probable cause under the statute to seize the sample.

After hearing the evidence, the trial court denied defendant's motion. The court adopted the state's theory that (1) defendant had no protected privacy interest in the hospital emergency room and, thus, Johnson's entry into the area where defendant was being treated and the observations that he made there did not constitute a search under the United States or Oregon constitution; or (2) even if defendant had such a privacy interest, the officer lawfully conducted his "search" based on valid third-party consent by the medical staff; and (3) the seizure of defendant's urine sample for chemical testing was lawful under either ORS 813.140 or ORS 813.320.² After the court ruled, defendant entered his conditional guilty plea, and the court entered a judgment convicting him of DUII.

The parties renew their respective arguments on appeal. We begin with defendant's argument that Johnson engaged in a search for purposes of Article I, section 9, of the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 265, 666 P.2d 1316 (1983) (courts address state constitutional issues before those under the federal constitution).

Article I, section 9, protects against unreasonable searches and seizures. State v. Campbell, 306 Or. 157, 163, 759 P.2d 1040 (1988). "A `search' occurs when a person's privacy interests are invaded." State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986). "A privacy interest * * * is an interest in freedom from particular forms of scrutiny." Campbell, 306 Or. at 170, 759 P.2d 1040. Campbell did not announce a one-size-fits-all test for privacy interests protected under Article I, section 9; cases decided both before and after Campbell have assessed the existence of a protected privacy interest "in light of the particular context in which the government conduct occurred." State v. Meredith, 337 Or. 299, 306, 96 P.3d 342 (2004). We apply an objective test to determine whether a search occurred by asking whether the state's conduct significantly impairs "an individual's interest in freedom from scrutiny[.]" State v. Dixson/Digby, 307 Or. 195, 211, 766 P.2d 1015 (1988). Privacy interests generally are not self-announcing and, with a few possible exceptions, can be recognized only by their association with a private place where the claimant has the right to exclude others. Campbell, 306 Or. at 170-71, 759 P.2d 1040; see also Dixson/Digby, 307 Or. at 211-12, 766 P.2d 1015.

It follows that whether defendant here had a protected privacy interest in the area of the emergency room where he was being treated turns on whether that area was essentially a private place where he was entitled to freedom from scrutiny. According to defendant, even though it was located within a hospital open to the public, the space in which Johnson found him was private, because it was a curtained-off area where he was receiving medical treatment. Defendant argues that "health information is particularly sensitive and should be treated confidentially with safeguards to prevent disclosure without an individual's consent," as demonstrated by ORS 192.518 and ORS 192.520, which provide an individual protection from the unauthorized use or disclosure of health information.³

Before addressing the merits of defendant's arguments, we pause to consider the relationship between the prescribed analysis under Article I, section 9, and the pertinent test under the Fourth Amendment. This court sometimes has said that an indication of whether police conduct constitutes a search for purposes of Article I, section 9, is "whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion." State v. Portrey, 134 Or.App. 460, 464, 896 P.2d 7 (1995). That statement derives from Campbell, 306 Or. at 170, 759 P.2d 1040, and the Supreme Court has adhered to it in later decisions. See, e.g., State v. Howard/Dawson, 342 Or. 635, 642, 157 P.3d 1189 (2007). However, viewed in isolation, it expresses an incomplete understanding of the relationship between social and legal norms of behavior and individual privacy interests. In Campbell, the court also said:

"Our intention is not to set forth a definition of search based upon social and legal norms of behavior but to clarify the nature of the interest protected by Article I, section 9. Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in shaping those norms."

Campbell, 306 Or. at 171, 759 P.2d 1040; see also State v. Rodriguez-Ganegar, 186 Or. App. 530, 534-35 n. 2, 63 P.3d 1225 (2003). Thus, societal expectations do not necessarily translate into a protected privacy interest under Article I, section 9. See Howard/Dawson, 342 Or. at 643, 157 P.3d 1189 (declining to decide whether the defendant's subjective expectations of privacy were reasonable, because 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).

Unlike Article I, section 9, the ...