State v. Lien

Decision Date09 May 2019
Docket NumberSC S064826
Citation364 Or. 750,441 P.3d 185
Parties STATE of Oregon, Respondent on Review, v. Tracy Lynn LIEN, Petitioner on Review. State of Oregon, Respondent on Review, v. Travis Allen Wilverding, Petitioner on Review.
CourtOregon Supreme Court

Anne Fujita Munsey, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Jamie K. Contreras, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, Justices, and Kistler, Senior Justice pro tempore.**


Article I, section 9, of the Oregon Constitution provides, in part, that "[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]" These consolidated cases concern whether the warrantless search of defendants’ garbage bin violated a protected interest of defendants under Article I, section 9.

Police officers discovered incriminating drug-related evidence in defendants’ garbage by having a sanitation company manager specially pick up defendants’ garbage bin on trash pick-up day, transport it to the sanitation company’s facilities, and turn it over to the officers, who then searched the bin. After the trial court denied their motions to suppress that evidence, defendants were convicted on drug-related charges. The Court of Appeals affirmed those convictions, concluding that, although defendants retained protected possessory and privacy interests in the garbage while their bin rested at the curb, the police did not violate their interests by taking possession of the bin and searching its contents, because defendants had lost their interests when the sanitation company picked up their garbage bin.

On review, we hold that defendants retained protected privacy interests in their garbage under Article I, section 9, which the police invaded when they searched defendants’ garbage bin without a warrant. Accordingly, the trial court erred by denying defendantsmotions to suppress evidence, and we reverse the decision of the Court of Appeals and the judgments of the circuit court and remand for further proceedings before the circuit court.


We begin with the facts concerning the retrieval and search of defendants’ garbage bin, which are not disputed. While defendants lived together in Lebanon, Oregon, local police received information about possible drug activity at their house and decided to investigate. Lebanon Police Department Detective McCubbins contacted the sanitation company servicing the house, Republic Services. Republic is a private company that has a franchise agreement with the City of Lebanon to pick up and haul garbage from private residences. Neither defendant had a separate written agreement with Republic.

McCubbins asked Republic to collect the contents of defendants’ garbage bin separately from the other private residences that Republic served so that defendants’ garbage could be searched by police officers. A manager for Republic agreed to cooperate, obtaining defendants’ garbage for the police before the regular garbage truck arrived at the house:

"On the day that defendants’ garbage was usually picked up, the police parked down the street to observe Republic’s collection of defendants’ trash. The police arrived at 7:00 a.m. and noticed that defendants’ garbage cart had already been placed by the sidewalk. On that morning, a manager for Republic drove to defendants’ residence in a white pickup truck ahead of the larger mechanical sanitation truck that would normally collect defendants’ garbage. The manager arrived outside defendants’ residence around 8:00 or 9:00 a.m. The manager timed his drive to make sure that he showed up before the company’s larger mechanical truck emptied the cart. The manager grabbed defendants’ cart and placed it in his company pickup truck. The manager then provided defendants with an empty replacement cart from the back of his truck."

State v. Lien , 283 Or. App. 334, 337, 387 P.3d 489 (2017).

Republic’s manager then gave defendants’ garbage bin to the police: "The manager drove defendants’ bin and garbage to a Republic company lot where Republic stored its extra garbage carts. The manager then handed control of the cart to the police, who searched it and found, among other things, evidence of illegal drugs, including drug bindles." Id. Using that evidence, the police sought and obtained a warrant to search the home.

Defendants were both subsequently charged with a variety of drug-related offenses. Before trial, both moved to suppress the evidence discovered in their garbage bin, arguing that the warrantless search, not otherwise encompassed by any exception to the warrant requirement, had violated their rights against unreasonable search or seizure under Article I, section 9.

At the hearing on defendantsmotions to suppress, McCubbins testified for the state and described how the police had obtained defendants’ garbage bin and the chain of custody of the bin and its contents. McCubbins acknowledged that defendants’ garbage bin was handled "not in the normal manner" but, rather, "in a special manner" at his request.

Defendants called defendant Lien and Republic’s manager as witnesses. They testified concerning Republic’s residential garbage service in Lebanon and the sanitation company’s usual practices when picking up that garbage. Lien testified that she had lived at her residence for approximately five years and that Republic was the company that picked up her household garbage. She testified that some of that garbage was private in nature and that she had expected the garbage in defendants’ bin "to be mixed with other people’s garbage and go out to the landfill." She explained that, while she had no written agreement with Republic, she nevertheless had expected that the sanitation company would process defendants’ garbage in the same way that it processed everyone else’s garbage, that is, without anyone going through it before it was commingled and taken to the landfill.

Republic’s manager described the usual process of residential garbage collection and disposal: The garbage bins have lids, and customers must place their bins near the street within reach of the mechanical arm on the garbage truck. The company uses a large, automated side-load garbage truck to grab the bins and dump their contents into the opening at the top of the truck. The driver typically does not have to get out of the truck and does not see the contents of the individual garbage bins. A truck can hold the garbage of 350 to 400 households, and, once the truck is full, the driver takes it directly to the landfill and dumps the load of garbage out.

Republic’s manager also testified about agreements in place regarding Republic’s residential services in Lebanon. He testified that Republic has a franchise agreement with the city to provide garbage service for city residents and that residents had no choice about which company collected their garbage. The sanitation company’s franchise agreement did not have a provision stating that it could provide a resident’s garbage to law enforcement. Republic did not have a written agreement with its residential customers, nor did it tell customers that it may provide garbage to law enforcement officers at their request. The manager agreed that it was reasonable for Republic’s customers to expect that their garbage would be picked up in the ordinary manner, that is, that the lid on the garbage bin would be closed and the bin then emptied into the mechanized garbage truck without the driver getting out and looking into the bin. He also testified that he collected defendants’ garbage bin because the police asked him to do that, but he would not collect garbage from a customer for a private citizen because that would "violate the customer’s privacy."

The trial court credited the witnesses’ testimony. Its findings included the following: "Defendants placed the garbage can at the curb," and "they believed that some of its contents were personal or private in nature." "No one provided any notice to defendants that their garbage was subject to search or examination." "Republic [S]ervices will bring customer’s garbage to the police when requested but will not deliver garbage collected from defendants to anyone else." "Ordinarily when the garbage is picked up by Republic Services it is dumped at the Coffin Butte landfill," and "a single garbage truck holds the refuse of 350-400 households." "Republic’s trucks are highly mechanized. In most instances the driver never touches the garbage cans—a mechanical arm picks up the cans and empties them into the truck. No employee ordinarily sees the garbage content."

The trial court nevertheless denied defendantsmotions to suppress. The trial court first concluded that Republic’s manager, who had picked up and delivered defendant’s garbage to the police, had "acted exclusively at the request and direction of the police" and "was acting as an agent for the state." It followed, the trial court continued, that the manager’s seizure of defendants’ garbage constituted state action. The trial court nevertheless concluded that defendants already had abandoned their garbage, along with any "reasonable expectation they would ever see their garbage again or have access to it," before the garbage had been picked up. The court concluded that, despite defendants’ subjective expectation of privacy, they retained no privacy interest in property that they had abandoned.

After the trial court denied defendantsmotions to suppress, defendants agreed to enter...

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9 cases
  • State v. Savinskiy
    • United States
    • Oregon Supreme Court
    • May 23, 2019
    ...more than merely guarantee a defendant that a lawyer will be present in court when a case is called for trial." 364 Or. at 828, 441 P.3d at 571 (Duncan, J., dissenting). But there is a fundamental difference between preserving counsel's effectiveness in defending against the charged offense......
  • State v. Laney
    • United States
    • Oregon Court of Appeals
    • March 23, 2022
    ...the court and the parties discussed the fact that, on May 9, the Oregon Supreme Court had issued its opinion in State v. Lien/Wilverding , 364 Or. 750, 441 P.3d 185 (2019). Both parties agreed that Lien/Wilverding was a significant new decision on abandonment of property rights under Arti......
  • State v. Taplin
    • United States
    • Oregon Court of Appeals
    • May 19, 2021
    ...that privacy, of any kind, is necessarily limited within the context of a jail or detention facility. See State v. Lien/Wilverding , 364 Or. 750, 760, 441 P.3d 185 (2019) (noting "first, that privacy—freedom from government scrutiny—is a fundamental principle and value protected by Article ......
  • State v. Alcaraz
    • United States
    • Oregon Court of Appeals
    • March 9, 2022
    ...9, applies only to government-conducted or -directed searches and seizures, not those of private citizens." State v. Lien/Wilverding , 364 Or. 750, 767, 441 P.3d 185 (2019). We now return to the next step of our analysis. Having concluded that defendant was stopped, the only remaining quest......
  • Request a trial to view additional results
4 books & journal articles
  • § 3.2 Foundational Issues
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 3 Search and Seizure—without Warrants
    • Invalid date
    ...or contractual rights, although such rights may inform the analysis in a given case." State v. Lien/Wilverding, 364 Or 750, 759-60, 441 P3d 185 (2019). Rather, the right to privacy is the "freedom from scrutiny as 'determined by social and legal norms of behavior, such as trespass laws and ......
  • § 4.4 Searches and Seizures
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 4 Search and Seizure—with Warrants
    • Invalid date
    ...465, 896 P2d 7 (1995)); and (6) the contents of a garbage bin at curbside on collection day (State v. Lien/Wilverding, 364 Or 750, 777-79, 441 P3d 185 (2019)). On the other hand, private places do not include the exterior of any lawfully seized containers. In State v. Owens, 302 Or 196, 206......
  • § 4.3 Government Action
    • United States
    • Criminal Law in Oregon (OSBar) Chapter 4 Search and Seizure—with Warrants
    • Invalid date
    ...essentially those of the state." State v. Sines, 359 Or 41, 50, 379 P3d 502 (2016). See also State v. Lien/Wilverding, 364 Or 750, 777-79, 441 P3d 185 (2019). To determine whether a private search constitutes "state action," courts apply common-law agency principles to determine whether a s......
  • Chapter § 1.2
    • United States
    • Oregon Constitutional Law (2022 ed.) (OSBar) Chapter 1 Constitutionalism
    • Invalid date
    ...unwanted scrutiny in their homes, their curtilage, and their uncultivated, fenced, and posted property. State v. Lien, 364 Or 750, 759-60, 441 P3d 185 (2019) (Article I, section 9, protects "freedom from scrutiny.") As a result, the Oregon Constitution erects another imaginary impenetrable ......

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