State v. Meredith

• Decision Date: 26 August 2004
• Citation: 337 Or. 299,96 P.3d 342
• Parties: STATE of Oregon, Respondent on Review, v. Tamera Louise MEREDITH, Petitioner on Review.
• Court: Oregon Supreme Court

96 P.3d 342

337 Or. 299

STATE of Oregon, Respondent on Review, v. Tamera Louise MEREDITH, Petitioner on Review.

(98CR212OFE; CA A106960; SC S50173).

Supreme Court of Oregon.

Argued and submitted April 15, 2004.

Decided August 26, 2004.

Rebecca Duncan, Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs was Peter A. Ozanne, Executive Director, Office of Public Defense Services.

Douglas Zier, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Julia E. Markley, Perkins Coie, Portland, argued the cause and filed the brief for amicus curiae ACLU Foundation of Oregon, Inc. With her on the brief were Michael S. Simon and Chin See Ming, Portland.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, DE MUNIZ, and BALMER, Justices.¹

RIGGS, J.

In this criminal case, we must decide whether, under the circumstances here, the attachment and monitoring of an electronic tracking device ("transmitter") to a truck that defendant's government employer owned constituted a "search" under Article I, section 9, of the Oregon Constitution.² In affirming the trial court's denial of defendant's motion to suppress the evidence derived from the use of the transmitter, the Court of Appeals held that neither the attachment nor the subsequent monitoring of the transmitter had amounted to a search under Article I, section 9. State v. Meredith, 184 Or.App. 523, 56 P.3d 943 (2002). We agree and therefore affirm the decision of the Court of Appeals and the judgment of the trial court.

The facts relevant to our decision are few, and we state them briefly. The United States Forest Service (USFS) employed defendant as a fire prevention technician in the Tiller District of the Umpqua National Forest. The USFS provided trucks for its personnel, including defendant, to use in the performance of their work duties. The USFS owned the trucks, which remained at the job site, and employees picked up and dropped off the keys to the trucks at the beginning and end of the work day. Defendant customarily used the same truck, although she did not have exclusive use of that truck and used a different vehicle when that truck was not available.

In August 1998, the USFS district ranger in charge of the Tiller District authorized USFS law enforcement agents to attach a transmitter to the undercarriage of the USFS truck that defendant customarily used during her work shift. The transmitter emits a signal on a certain frequency that changes in speed depending on whether the vehicle is stationary or moving. By using a separate receiver, a person can determine the transmitter's location.

The USFS agents attached the transmitter to the truck in the evening while the truck was parked in the USFS parking lot. The next day, the agents monitored the transmitter from an airplane. After determining the truck's location, the agents were able to track the truck visually, except when forest cover obscured their view.

After monitoring the truck for approximately an hour and a half, the agents saw the truck stop, reverse up a road, and come to a stop in an open area near a logging spur. The agents observed defendant leave the truck and squat down for about 20 seconds, stand up rapidly, get back into the truck, and drive away from the area. One of the agents immediately saw a flash of orange at the location where defendant had been, and, within seconds, he saw a widening dark patch on the ground and smoke rising from the area.

The state charged defendant with 35 counts of first-degree arson, ORS 164.325, involving the incident at issue here and other fires of suspicious origin. Defendant filed a pretrial motion to suppress all evidence derived from the agents' observations, arguing that the use of the transmitter to locate and track the movements of her employer's truck had constituted a warrantless and unlawful search under Article I, section 9. After hearing testimony and argument at a pretrial hearing, the trial court concluded that the USFS action had amounted to a search under this court's decision in State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988) (holding that warrantless attachment of similar transmitter to private vehicle and monitoring of transmitter had been unreasonable search under Article I, section 9). The trial court further held, however, that the search had been reasonable because defendant's employer had consented to the installation and operation of the transmitter. A jury ultimately convicted defendant of two counts of first-degree arson.

On defendant's subsequent appeal, a divided, en banc Court of Appeals affirmed, but on different grounds. Meredith, 184 Or.App. at 525-26, 56 P.3d 943. The majority recognized that Campbell had involved the same technology and the same type of monitoring by a government agent that had occurred in the present case. The majority stressed, however, that Campbell had involved the attachment of a transmitter to a private vehicle and that the monitoring of that vehicle involved government scrutiny of private and personal activities. The majority contrasted that type of intrusion with the use of the transmitter in this case, which involved disclosure of the location of defendant's employer's truck while on public land and during defendant's working hours. The majority concluded that "defendant had no privacy interest in the location of her employer's vehicles while she was working on public land" and, therefore, that no search had occurred under Article I, section 9. Meredith, 184 Or.App. at 530, 56 P.3d 943.

Four judges dissented, arguing that the secret use of a transmitter to monitor defendant's movements during the work day had invaded defendant's protected privacy interest against electronic surveillance in the workplace. Id. at 531, 56 P.3d 943 (Kistler, J., dissenting). The dissent asserted that the majority's holding was inconsistent with Campbell and rejected the view that defendant's status as a government employee, or any right of the USFS to know the location of its truck during the day, altered the relevant analysis. Meredith, 184 Or.App. at 533-35,56 P.3d 943 (Kistler, J., dissenting). The dissent also contended that the majority's analysis threatened to authorize the use of more intrusive surveillance technology in the workplace. Id. (Kistler, J., dissenting).

In deciding whether the government conduct here violated Article I, section 9, the threshold question is whether the conduct at issue constituted a "search." See State v. Juarez-Godinez, 326 Or. 1, 5-6, 942 P.2d 772 (1997) (outlining methodology for addressing Article I, section 9, questions). If the government conduct did not amount to a "search" within the meaning of Article I, section 9, then the protections of that constitutional provision do not apply, and our inquiry ends. See State v. Smith, 327 Or. 366, 374, 963 P.2d 642 (1998) (stating that, because dog sniff conducted in public place was not search, protections of Article I, section 9, did not apply).

Under Article I, section 9, a search occurs when the government invades a protected privacy interest. E.g., Smith, 327 Or. at 372, 963 P.2d 642 (describing pivotal question for purposes of defining Article I, section 9, search as "whether the police invaded a protected privacy interest"); State v. Nagel, 320 Or. 24, 29, 880 P.2d 451 (1994) ("Under Article I, section 9, a search is `an intrusion by a governmental officer, agent, or employee into the protected privacy interest of an individual.'") (quoting State v. Rhodes, 315 Or. 191, 196, 843 P.2d 927 (1992)). Here, defendant does not argue, nor could she argue successfully, that the attachment or the monitoring of the transmitter on her employer's truck was a physical or sensory invasion of her private space. See Smith, 327 Or. at 373, 963 P.2d 642 ("[T]he privacy interests that are protected by Article I, section 9, commonly are circumscribed by the space in which they exist and, more particularly, by the barriers to public entry (physical and sensory) that define that private space."). As defendant correctly argues, however, the absence of a physical or sensory invasion of defendant's private space does not necessarily defeat her claim that the government conduct constituted a "search" for purposes of Article I, section 9. We therefore must consider the interest for which defendant asserts constitutional protection and determine whether that interest is "private" within the meaning of Article I, section 9.

To define her protected privacy interest in the present case, defendant relies on this court's decision in Campbell. In Campbell, the police, acting without a warrant, surreptitiously attached a radio transmitter to the underside of the defendant's vehicle while it was parked in a public parking lot. Using a small airplane, the police monitored the transmitter to determine the location of the defendant's vehicle, visually followed it, and observed the defendant burglarizing a residence. On review, this court concluded that the attachment and monitoring of the transmitter had amounted to a constitutionally significant "search" that had violated Article I, section 9. Campbell, 306 Or. at 172, 759 P.2d 1040.

Defendant interprets Campbell as establishing a right to be free from the government's surreptitious use of a transmitter to monitor a person's location and movements under any circumstances. Defendant bases that argument not simply on Campbell's ultimate conclusion that the use of the transmitter had amounted to a search in that case. Rather, she relies on the court's definition of privacy in Campbell as "an interest in freedom from particular forms of scrutiny," id. at 170, 759 P.2d 1040, and its description of when the government's use of technological developments would trigger Article I, section 9,...