State v. Luman

• Decision Date: 25 June 2008
• Docket Number: A132197.,04102244.
• Citation: 188 P.3d 372,220 Or. App. 617
• Parties: STATE of Oregon, Plaintiff-Respondent, v. John Frederick LUMAN, Defendant-Appellant.
• Court: Oregon Court of Appeals

188 P.3d 372

220 Or. App. 617

STATE of Oregon, Plaintiff-Respondent, v. John Frederick LUMAN, Defendant-Appellant.

04102244.

A132197.

Court of Appeals of Oregon.

Argued and Submitted January 02, 2008.

Decided June 25, 2008.

Chris W. Dunfield, Corvallis, argued the cause and filed the brief for appellant.

Janet A. Metcalf, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

Defendant was convicted on 11 counts of invasion of personal privacy, ORS 163.700,¹ and argues on appeal that the trial court erred in denying in part his motion to suppress evidence found on a videotape. As explained below, we conclude that the videotape should have been suppressed. Accordingly, we reverse and remand.

The facts pertinent to the issue presented on appeal are, for the most part, not in dispute, as the parties stipulated to most of the facts at the suppression hearing. On August 23, 2004, one of the employees at defendant's restaurant and catering business, Smith, turned on the television in the kitchen to watch the news, although defendant had instructed the employees not to use the television.² When Smith turned on the television, a video in an attached video recorder began playing. Smith observed that the video appeared to show women using the toilet in the restaurant's restroom. He alerted another employee, Jones, who also observed portions of the videotape. Smith and Jones investigated the restroom and located wires running from the video recorder to the restroom, as well as an area where they believed the camera could have been placed. They also located several additional videotapes in the kitchen, as well as a large number of videotapes in a bag inside a walk-in cooler. Two of the videotapes, including the one that Smith and Jones watched, were labeled "master." Some of the other tapes had handwritten labels with names of movies on them. Jones turned all of the videotapes over to the Linn County Sheriff's Office.

Four days later, and without first obtaining a warrant, Deputy Harmon viewed the videotapes. Most of them were recordings of the restroom that contained considerable footage of times when the restroom was not in use. The videotapes did, however, also contain numerous images of people using the toilet in the restroom. The camera had been positioned in such a way as to show female patrons using the toilet in a state of partial nudity. The two tapes labeled "master" contained the same images but had been edited. In total, the tapes contained footage of 48 people using the restroom.³

Defendant was charged with 48 counts of invasion of personal privacy. He moved to suppress the videotapes and all evidence derived from the videotapes on the ground that Harmon's viewing of the tapes without first obtaining a warrant was an unconstitutional search of the videotapes in violation of defendant's rights under Article I, section 9, of the Oregon Constitution, as well as the Fourth Amendment to the United States Constitution. The state responded that no warrant was required for Harmon to view the videotapes because the sheriff's office had received the videotapes from an employee who described the contents of one of the tapes-and, consequently, the tapes "announced their contents" as containing evidence of the crime of invasion of personal privacy.

The trial court addressed the motion to suppress in a comprehensive and thoughtful letter opinion.⁴ Ultimately, the court concluded that, with the exception of the "master" videotape that defendant's employees had viewed before calling the police, Harmon's viewing of the tapes violated defendant's rights under Article I, section 9. The trial court first rejected the state's contention that the videotapes "announced their contents":

"I am convinced by this argument that the police had probable cause to obtain a warrant, but it does not convince me that the tapes `announced' their contents. When I think of evidence `announcing' its contents, I think of the `suggestive drawings' and the `explicit descriptions of the contents' as found on the videotapes in Walter [v. United States, 447 U.S. 649, 653, 100 S.Ct. 2395, 65 L.Ed.2d 410 (1980)]. Here, most of the tapes simply had homemade stickers with the names of commercial movies written on them while two of them were labeled `Master.' This by no means `announced' that they contained the offensive material that was actually contained on the videos. Indeed, if `possession of evidence coupled with probable cause to believe inspection would produce evidence of a crime' was the same as evidence `announcing its contents' the need for the majority of search warrants would be unnecessary."

The court concluded, however, that a different analysis controlled with respect to the "master" tape viewed by the employees:

"Here, one video had been viewed (at least partially) by Defendant's employees, but none of the other tapes had been viewed. The contents of none of the tapes, including the one viewed by the employees, were in `plain view' as the cocaine was in [State v. Glade, 61 Or.App. 723, 659 P.2d 406, rev. den., 295 Or. 446, 668 P.2d 382 (1983)]. But still, at least the contents of the `master' tape had become `apparent' by the time the police examined it and under [State v. Munro, 194 Or.App. 538, 546, 96 P.3d 348 (2004), rev'd on other grounds, 339 Or. 545, 124 P.3d 1221 (2005)], the police invaded no privacy interest of Defendant which had not already been invaded. The same cannot be said for the videotapes in the cooler or the other videotapes in the kitchen. The police may have had probable cause to believe that these other tapes contained incriminating material but their contents had not become apparent and Defendant's privacy interest still trumped any warrantless search (minus other exceptions such as exigent circumstances—which do not exist in this case). Under Article I, section 9, the master tape is not suppressed. All others are."

Thus, the court's disposition as to the "master" tape rested on the premise that, because the contents of that tape had become apparent (because of the employees' statements to the police) by the time Harmon examined it, "the police invaded no privacy interest of Defendant which had not already been invaded"—and that conclusion, in turn, flowed from the trial court's understanding and application of our decision in Munro.⁵

In light of the trial court's ruling, the state proceeded on 11 counts of invasion of personal privacy, as substantiated by the content of the "master" videotape. The jury found defendant guilty on all counts.

On appeal, defendant argues that, under Article I, section 9, or the Fourth Amendment, the trial court erred in denying in part his motion to suppress. He also advances assignments of error pertaining to the foundational admissibility of the "master" videotape, as well as a challenge to the imposition of consecutive sentences. For the reasons that follow, we conclude that the trial court erred, under Article I, section 9, in denying defendant's motion to suppress. Consequently, we reverse and remand.⁶

We note, at the outset, that the question presented here pertains solely to the lawfulness of the purported search, and not of any seizure. That is, defendant does not assert that the police obtained the videotapes unlawfully. Further, the state does not assert that the videotapes were abandoned property in which defendant could assert no interest. Thus, the issue is simply whether, by viewing the videotapes without first obtaining a warrant, Harmon unlawfully "searched" the videotapes, in violation of defendant's rights under Article I, section 9. See generally State v. Heckathorne, 218 Or. App. 283, 287, 179 P.3d 693 (2008) (Article I, section 9, protects both possessory and privacy interests).

Article I, section 9, guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." A search conducted without a warrant is deemed per se unreasonable unless it falls within an exception to the warrant requirement. Here, no warrant was obtained for the viewing of the videotapes, and the state has identified no applicable exception to the warrant requirement. Thus, the only argument available to the state in seeking to justify the warrantless viewing of the videotapes was that the viewing did not constitute a "search" within the meaning of Article I, section 9. See State v. Howard/Dawson, 342 Or. 635, 640, 157 P.3d 1189 (2007) (when police act without a warrant and no exception to the warrant requirement applies, "the question whether the police have violated Article I, section 9, reduces to whether the officers' acts invaded either a constitutionally protected possessory or privacy interest").

Before proceeding to the core of the parties' dispute on appeal — viz., Munro's proper application to these circumstances— we confirm the trial court's determination that none of the videotapes, including the "master" tape viewed by defendant's employees, "announced its contents." In State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986), the court summarized the controlling principles:

"Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in `plain view,' outside the confines of any container. Applying the doctrine of `plain view' to transparent containers, we hold that no cognizable privacy interest inheres in their contents, and thus that transparent containers can be...