State v. Dixson, CA-A34808

Citation307 Or. 195,766 P.2d 1015
Decision Date20 December 1988
Docket NumberCA-A34808,A34817
Parties, 57 USLW 2435 STATE of Oregon, Petitioner on Review, v. Theresa DIXSON, Respondent on Review, STATE of Oregon, Petitioner on Review, v. Jeffrey D. DIGBY, Respondent on Review. STATE of Oregon, Petitioner on Review, v. Lorin Lou DIXSON, Respondent on Review. TC 84-1821, 84-1822, 84-1823; CA A34586,; SC S34536.
CourtSupreme Court of Oregon
With him on the petition were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem

Kathleen P. Eymann, Coos Bay, argued the cause on behalf of the respondent on review Theresa Dixson.

James Coffey, North Bend, argued the cause on behalf of the respondent on review Jeffrey D. Digby.

Nick Nylander, North Bend, argued the cause on behalf of the respondent on review Lorin Dixson.

GILLETTE, Justice.

The issue in these criminal cases, combined for purposes of appeal, is whether the search and seizure provision in the Oregon Constitution protects land outside the "curtilage" of a residence. The Court of Appeals concluded that it does, and reversed the defendants' convictions for the manufacture and possession of controlled substances. State v. Dixson/Digby, 87 Or.App. 1, 740 P.2d 1224 (1987) (plurality). We affirm the Court of Appeals conclusion that Article I, section 9 is applicable to lands like those involved in this case, but reverse that court's application of the rule to these facts.


Sheriff's deputies received an informant's tip that marijuana was growing on heavily forested land owned by the Rogge Lumber Company. One of the officers, after checking with the assessor's office to determine the property boundaries, flew over the land and saw marijuana growing on what he believed to be land belonging to the lumber company. The officers requested and received the company's permission to search the property for marijuana.

The officers drove onto the property by way of a public road until they reached a dirt logging road the informant had described as leading to the marijuana. Unknown to the officers, this road extended onto property being purchased by defendants Lorin and Theresa Dixson, and on which they lived. The dirt road had fallen into disuse and no longer was passable by car. The trunk of a large tree lay across the road and, a little further on, a wire cable with a "No Hunting" sign on it stretched across the road. The officers left their car and walked past the fallen tree and wire cable. Just past the cable was another dirt road running along a fence line. This road also had a wire cable and "No Hunting" sign stretched across it. The officers continued walking down this second road. At a bend in the road, they encountered another "No Hunting" sign. The area was rural and covered with thick brush. The officers were able to see marijuana plants only after pushing aside the brush. The plants, which were on the Dixsons' property, were not visible at ground level except from that property.

Returning the next day, the officers found defendant Jeff Digby and Lorin Dixson near the marijuana plants. The officers arrested both men and seized the plants.

Defendants each were charged with the manufacture and possession of a controlled substance. They filed motions based on the Fourth Amendment to the United States Constitution and Article I, section 9, of the Oregon Constitution to suppress the evidence derived from the officers' search of their property. The trial court denied the motions, finding that Digby lacked "standing" to challenge the search on the Dixsons' property and that the Dixsons "had no legitimate expectation that the area where the marijuana was being grown [which the Court found to be outside the Dixsons' curtilage] would remain free from warrantless intrusion by the Sheriff's deputies."

Defendants appealed. The Court of Appeals, sitting in banc, reversed. A plurality of that court found that Article I, section 9, of the Oregon Constitution, protects privately owned open lands from warrantless searches and seizures, and that Digby, as well as the Dixsons, had a protected privacy interest in the marijuana. State v. Dixson/Digby, supra, 87 Or.App. at 11, 740 P.2d 1224.


A plurality of the Court of Appeals, sitting in banc, rejected an "open fields" exception to the requirements of Article I, section 9, of the Oregon Constitution. Cf. Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). Article I, section 9, provides:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized."

The plurality below apparently assumed that land outside the curtilage of a dwelling is not among the "effects" that are expressly protected by Article I, section 9. Nevertheless, the court concluded that the provision does protect such land, reasoning that, because Article I, section 9, was intended to protect the privacy of the individual, see, e.g., State v. Duffy, 135 Or. 290, 297, 295 P. 953 (1931), its coverage is "as extensive as the privacy which it is designed to protect." State v. Dixson/Digby, supra, 87 Or.App. at 7, 740 P.2d 1224.

The plurality went on to conclude that Article I, section 9, protected the Dixson's land from warrantless intrusions by the police:

"The officers intruded into areas which are protected under common law trespass rules that existed long before the adoption of either the Fourth Amendment or Article I, section 9. Those areas are also protected under more recent criminal trespass statutes. ORS 164.205(6); ORS 164.245(1). The right to exclude unwanted intruders from them is well established. Although the land is not within the constitutional definition of 'home,' the well-established right to control entry gives the possessor of the land a privacy interest in it as against anyone with a lesser right to possession. It does not matter that the officers did not have the mens rea necessary to subject them to criminal liability. What matters is that statutes and the common law protect the Dixons' [sic ] land. See Oliver v. United States, supra, 466 US at 189-93 (Marshall, J., dissenting). The Dixsons, therefore, had a privacy interest in the land which they could assert against the police."

87 Or.App. at 10-11, 740 P.2d 1224 (footnote omitted). The plurality also concluded that Digby had a protected interest in the area, because "[h]e had a proprietary interest in the growing plants, helped care for them and had the right to exclude others from the property. In short, he was a licensee whose rights in the land were greater than those of the officers." 87 Or.App. at 11, 740 P.2d 1224.

The specially concurring opinion disagreed with the plurality's conclusion that all land outside the curtilage of a residence is protected by Article I, section 9, from unreasonable searches and seizures. Instead, the three specially concurring judges would extend Article I, section 9, protection only to land in which the occupants' expectation of privacy has been "objectively manifested," either through the construction of artificial barriers or the posting of signs or through reliance on the land's topography, vegetation, and other natural barriers to inspection. 87 Or.App. at 11-16, 740 P.2d 1224 (Buttler, J., specially concurring). The specially concurring judges also noted:

"On the other hand, if the property's physical characteristics are such that the area in question may be seen without technological enhancement from a public place, such as a road, no amount of subjective expectation that activities in that area will be private will make the area a constitutionally protected one. In that circumstance, the possessor would be in a situation analogous to the defendant in State v. Owens, supra, [302 Or. 196, 729 P.2d 524 (1986) ], who carried contraband in a transparent vial (her effect) that announced its contents, thereby making it permissible for the police to seize it and test its contents."

Id. at 14, 740 P.2d 1224 (footnote omitted).

Judge Van Hoomissen, dissenting, would have established an "open fields" exception Judge Rossman, joined by Judge Deits, also dissented, arguing that whether an intrusion into land outside the curtilage of a residence is an unreasonable search should depend on whether the occupants have exhibited a "reasonable expectation of privacy" in the area. State v. Dixson/Digby, supra, 87 Or.App. at 31-32, 740 P.2d 1224 (Rossman, J., dissenting). This dissent would hold, "under the facts of this case, that these defendants did not objectively manifest a reasonable expectation of privacy in the property searched, regardless of what might have been going on in their collective heads." Id. at 32, 740 P.2d 1224.

to Article I, section 9, identical to the rule set out in Oliver v. United States, supra. State v. Dixson/Digby, supra, 87 Or.App. at 16-31, 740 P.2d 1224 (Van Hoomissen, J., dissenting). That dissenting opinion relied on the similarity between the texts of Article I, section 9, and the Fourth Amendment, the desirability of a uniform standard under the state and federal constitutions, and the absence of any historical basis for deviating from the federal rule in this area. The dissent also relied on State v. Lee, 120 Or. 643, 253 P. 533 (1927), and State v. Evans, 143 Or. 603, 22 P.2d 496 (1933), for the proposition that Article I, section 9, is subject to an "open fields" exception. Finally, the dissent found persuasive federal decisions and state decisions adopting the federal rule, arguing that the rule is essential to the...

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