State v. Dixson

• Decision Date: 12 August 1987
• Citation: 740 P.2d 1224,87 Or.App. 1
• Parties: STATE of Oregon, Respondent, v. Theresa DIXSON, Appellant. STATE of Oregon, Respondent, v. Jeffrey D. DIGBY, Appellant. STATE of Oregon, Respondent, v. Lorin Lou DIXSON, Appellant. 84-1823, 84-1821, 84-1822; CA A34586 (control), CA A34808, CA A34817. Court of Appeals of Oregon, In Banc
• Court: Oregon Court of Appeals

Page 1224

740 P.2d 1224

87 Or.App. 1

STATE of Oregon, Respondent, v. Theresa DIXSON, Appellant.

STATE of Oregon, Respondent, v. Jeffrey D. DIGBY, Appellant.

STATE of Oregon, Respondent, v. Lorin Lou DIXSON, Appellant.

84-1823, 84-1821, 84-1822; CA A34586 (control), CA A34808,

CA A34817.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Oct. 29, 1985.

Resubmitted In Banc March 12, 1987.

Decided Aug. 12, 1987.

James C. Coffey, North Bend, argued the cause for appellant Jeffrey D. Digby. With him on the brief were Hayner, Waring, Stebbins & Coffey, North Bend; Nicholas C. Nylander and Flaxel, Todd & Nylander North Bend; and Kathleen P. Eymann and Chandler & Stokes, Coos Bay.

Nicholas C. Nylander, North Bend, argued the cause for appellant Lorin Lou Dixson. With him on the brief were Flaxel, Todd & Nylander, North Bend; James C. Coffey and Hayner, Waring, Stebbins & Coffey, North Bend; and Kathleen P. Eymann and Chandler & Stokes, Coos Bay.

Kathleen P. Eymann and Chandler & Stokes, Coos Bay, filed the brief for appellant Theresa Dixson. With them on the brief were James C. Coffey and Hayner, Waring, Stebbins & Coffey, North Bend; Nicholas C. Nylander and Flaxel, Todd & Nylander, North Bend.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

YOUNG, Judge.

In these consolidated cases, defendants appeal from their convictions for the manufacture and possession of a controlled substance. They contend that the trial court erred in denying their motions to suppress evidence seized from the Dixsons' property in a warrantless search. The issue is whether ARTICLE I, SECTION 9, OF THE OREGON CONSTITUTION¹ requires a warrant for a search of an "open field." We hold that it does and reverse.

The Dixsons were purchasing the property in question, consisting of 40 acres, and lived in a home approximately 800 feet from the area where the marijuana plants were seized. That area was outside the curtilage of the home. Only a portion of the 40 acres was fenced. Lorin Dixson cultivated the land with the help of Digby. Sheriff's deputies, acting on a tip from an informant that marijuana was growing on property owned by Rogge Lumber Company, went to the area and saw the Dixson residence, access roads and a vehicle being used to transport water. One of the officers then checked with the assessor's office to determine the property boundaries in the area. The following day, he flew over the area ² and saw several patches of what he believed to be growing marijuana. He concluded, mistakenly, that the plants were growing on the Rogge property and obtained Rogge's consent to search its land for marijuana.

To get to the plants, the officers drove on a public road to a dirt logging road on the Dixson property. That road had not been used for some time and was not passable with a passenger car. At the property line, the Dixsons had posted a "No Hunting" sign on a wire cable that was stretched across the road to block access. They had also felled a large madrona tree across it to prevent access. The officers walked around the cable and continued down the logging road to another dirt road, which also had a wire cable stretched across it with a "No Hunting" sign attached. They walked around that cable as well and came to another "No Hunting" sign. Vegetation on and around the Dixson property was thick brush and, as the trial court found, the marijuana was not visible from ground level other than from the Dixson property. The officers saw the marijuana plants by pushing aside the brush after entering the land. They also encountered Lorin Dixson and Digby at the site of the plants.

The trial court found that Digby had a proprietary interest in the marijuana plants but no ownership interest in or right to possess the Dixson land. Therefore, it concluded that Digby did not have "standing" to object to the search that occurred on the Dixsons' property. With respect to the Dixsons, the trial court, relying entirely on Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984), held that they had no legitimate expectation that the area outside of their curtilage would remain free from warrantless intrusion by the sheriff's deputies. Accordingly, it denied all of the motions to suppress.

The decisive issue is not, as the trial court apparently thought, one of federal law. Whether defendant's land is constitutionally protected depends, in the first instance, not on United States Supreme Court cases interpreting the Fourth Amendment, but on the basic principles underlying the Oregon Constitution. We derive our analysis from them. ³ See State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983). While those principles may be similar to those underlying the Fourth Amendment, we need not join the federal retreat from the constitutional requirements. ⁴

The dispositive question is whether Article I, section 9, protects defendants from police intrusions onto the land where the marijuana was found. If it does, the deputies violated the constitutional protection, because they did not have a search warrant and the circumstances did not create an exception to the warrant requirement. If the land were within the curtilage of defendants' home, it would come within the specific constitutional language of "persons, houses, papers, and effects * * *." State v. Lee, 120 Or. 643, 253 P. 533 (1927); State v. Ohling, 70 Or.App. 249, 688 P.2d 1384, rev. den. 298 Or. 334, 691 P.2d 483 (1984). Because it is not, we must determine whether Article I, section 9, is concerned exclusively with the rights that it expressly mentions or whether it uses those rights as tools to achieve a broader purpose. That is, does the constitution protect property as property, or is its protection of property a means to a greater end?

We believe it obvious that the constitution protects property in order to protect something more--one's personalty or individuality--from official control. It does so by adapting traditional trespass law to create areas where officials may not go. Article I, section 9, and the Fourth Amendment are the direct product of the experience that Americans had during the pre-revolutionary period with uncontrolled executive power. The colonists (and their supporters in England) looked to safeguards against arbitrary searches and seizures as one of the bulwarks of the liberty for which they fought the Revolution. See Jensen, The Founding of a Nation: A History of the American Revolution, 1763-1776, 155-58, 258, 377-78 (1968); Cooley,Constitutional Limitations, 300-303 n. 1 (1st ed. 1868).

The tie between liberty and the right to exclude others from one's property remained basic in American thinking after the Revolution. In one's home one could be oneself. Writers frequently quoted a statement the Earl of Chatham, an English supporter of the American colonists, made before the revolution:

"The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement." Quoted in Cooley, Constitutional Limitations, supra, 299 n. 3.

Over a century later, the United States Supreme Court made a similar point in describing the heart of a violation of the Fourth Amendment:

"It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of the indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense * * *." Boyd v. United States, 116 U.S. 616, 630, 6 S.Ct. 524, 532, 29 L.Ed. 746 (1886). (Emphasis supplied.)

In this century, we call the "liberty" to which Chatham and the Supreme Court referred the "right to privacy." It is inherent in the purpose of Article I, section 9, and we must construe the state constitution to protect that right.

As the Supreme Court said in State v. Duffy, et al., 135 Or. 290, 297, 295 P. 953 (1931), the purpose of that provision is "to protect the individual in the sanctity of his home and in the privacy of his books, papers and property * * *." (Emphasis supplied.) The constitution is as extensive as the privacy which it is designed to protect. As a result of the sophisticated technology and increasingly complex society which have developed in this century, we now face situations in which literal adherence to the constitutional language defeats the constitutional purpose. We must extend constitutional protections beyond the express language of the constitution in order to give the constitution continuing life. The danger in doing so is that we may lose a solid foundation for those rights. We thus must also establish an objective basis for deciding privacy rights that is both based in prior law and comports with the constitutional purpose.

The federal cases give us little help in this regard. At least since Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967), they have recognized the necessity of protecting privacy beyond the literal terms of the Fourth Amendment. The test they use, however, is so flexible that it has little objective content beyond the specific cases decided. ⁵ Because the criteria by which to protect privacy under the state constitution remain unclear, we may approach the problem afresh. ⁶ There are two issues involved in applying Article I, section 9, to facts which are outside its literal language: First, what places or things does the provision protect? Second, from what kinds of investigations does it protect them? In Katz v. United States, supra, for instance, the court held that the defendant was protected in a public telephone booth from a...