DUNCAN, J. pro tempore.
This appeal comes to us on remand from the Supreme Court. In our initial opinion, we reversed and remanded defendant's convictions based on defendant's first assignment of error. We concluded that defendant's employees were acting on behalf of the state when they took a pair of defendant's nine-year-old daughter's underwear from a laundry hamper in his home and delivered it to a sheriff's deputy and, consequently, that evidence discovered in the underwear and the fruits of a search warrant based on that evidence were obtained in violation of Article I, section 9, of the Oregon Constitution. State v. Sines , 263 Or.App. 343, 328 P.3d 747 (2014) ( Sines I ). On review, the Supreme Court reversed, concluding that "the actions of defendant's employees in searching for and seizing the underwear constituted private conduct and therefore did not violate Article I, section 9." State v. Sines , 359 Or. 41, 62, 379 P.3d 502 (2016) ( Sines II ). The court remanded the case to us to consider defendant's similar argument under the Fourth Amendment to the United States Constitution and, if necessary, to address defendant's remaining assignments of error. Id.at 43 n. 1, 62, 379 P.3d 502.
On remand, we first conclude that, for the reasons articulated by the Supreme Court in Sines II, the employees' conduct was private conduct for purposes of the Fourth Amendment. Then we turn to defendant's second assignment of error, in which he argues that the trial court erred in denying his motion to suppress because the acceptance of the underwear by the deputy was an unlawful seizure under Article I, section 9, and the subsequent warrantless testing of the underwear was unlawful under both Article I, section 9, and the Fourth Amendment. We conclude that, even assuming that the officer's acceptance of the underwear was a lawful seizure, the testing of the underwear was an unlawful search under both Article I, section 9, and the Fourth Amendment. Because the testing was a search and was not justified by a warrant or any exception to the warrant requirement, defendant was entitled to suppression of the evidence derived from the testing.
Finally, as we did in Sines I, we conclude that the trial court's erroneous denial of defendant's motion to suppress "all evidence, including derivative evidence and statements, obtained through the unlawful and warrantless * * * testing of the underwear by the Oregon State Crime Lab" was not harmless. Consequently, we reverse defendant's convictions and remand for further proceedings.1
I. HISTORICAL AND PROCEDURAL FACTSWe take the background facts, the facts regarding defendant's first assignment of error, and the procedural history of the case from the Supreme Court opinion. We set out additional facts as necessary during our discussion of defendant's second assignment of error.
"Early in 2005, defendant and his wife adopted two siblings—T, a young girl, and V, her brother. Approximately one year later, defendant's wife and biological son moved out of the family residence. Defendant's housekeeper subsequently began to discover indications of what she thought might be sexual activity between defendant and the then-nine-year-old T.
"The housekeeper had observed, among other things, that T was sleeping with defendant in his bedroom and, in the bed, the housekeeper had found a 'type of Vaseline stuff' '[u]p to half way up [defendant's] sheets,' as well as signs of the substance's use in the bathroom. Based on her observation of Vaseline-like handprints on the bathroom walls, the housekeeper believed that defendant 'had been having sex with somebody in the bathroom area,' despite the fact that defendant's wife had moved out and defendant had no girlfriend. When the housekeeper, concerned about the possible abuse of T, suggested to defendant 'to go get a girlfriend,' he told her 'he did not need one, he had T.'
"Defendant's housekeeper also observed a 'lot of discharge' in various pairs of T's underwear, noting that in some, the crotch of the garment had become so stiff that they had to be thrown away. According to the housekeeper, the heavily stained children's underwear appeared abnormal in that they did not look as if they had been worn by a child, but rather by a sexually active adult.
"In March 2006, after consulting with another employee of defendant who worked in the home and also suspected that defendant was having sex with T, the housekeeper anonymously called a DHS [Department of Human Services] 'tip line' regarding the possible abuse. According to the DHS employee who took her call at around noon, the housekeeper appeared to be on the verge of tears, and first asked what the agency could determine from a pair of underwear. The DHS employee testified that he had responded by saying, 'Well, there's a lab here locally that can probably tell a lot. What's your concern?' The housekeeper then gradually related her observations regarding defendant and T, including the nature and extent of the discharge that she had observed on T's underwear, and told the DHS employee that she was considering taking a pair from defendant's house. The DHS employee reiterated several times that he could not tell her to take that kind of action, and that it was her decision. At the hearing on defendant's motion to suppress, the housekeeper stated that the DHS employee never asked her to get a pair of underwear; she said, 'No. Never.' She also testified, 'It was my idea.' The DHS employee gave the housekeeper his direct telephone number, expecting, based on their conversation, that she probably would take the underwear. The housekeeper retained her anonymity throughout their conversation, although she eventually disclosed the names of defendant and defendant's wife.
"Following the housekeeper's phone call, the DHS employee contacted a deputy at the Deschutes County Sheriff's Office. As a general matter, DHS policy called for safety checks to be conducted within 24 hours after receipt of a call regarding suspected abuse, unless there was good cause for delay. The DHS employee and the deputy sheriff instead decided to assign the case a five-day response time to see whether the housekeeper would take any action. Neither the DHS policy nor the decision to extend the time period was communicated to the housekeeper.
"The same day that she talked to DHS, the housekeeper called another employee of defendant who similarly suspected abuse and who was planning to work at defendant's house the next day. The housekeeper told the other employee, 'I'm thinking we need to get something of evidence,' and 'I'm thinking underwear.' The other employee said, 'I'll see what I can do.' The following day, while defendant was taking T and her brother to school, the other employee went into the laundry room of defendant's house and took the first pair of T's underwear that she saw. She turned the underwear over to the housekeeper after work. The housekeeper then called her DHS contact, who arranged for her to bring the underwear to DHS and the deputy sheriff the next day, which she did.
"The child's underwear was immediately delivered to the Oregon State Police Crime Lab in Bend for testing. When the tests revealed spermatozoa on the garment, authorities obtained and executed a warrant to search defendant's house. Defendant was arrested at that time, and police seized other evidence, including a nightgown, pajama pants, a bathing suit, and jeans, all belonging to T. Tests conducted on those items revealed additional evidence of spermatozoa and seminal fluid.
"Defendant was charged with nine counts of first-degree sexual abuse, one count of first-degree rape, and two counts of first-degree sodomy, charges that involved both T and her brother, V. Before trial, as relevant here, defendant moved to suppress
" 'all evidence, including derivative evidence and statements, obtained through the [housekeeper's] unlawful and warrantless (a) search of the laundry hamper in his home, (b) seizure of the underwear from the hamper, (c) seizure of the underwear by police and (d) the destruction and testing of the underwear by the Oregon State Crime Lab.'
"Following a hearing on that motion, the trial court denied defendant's motion. As to the initial taking of T's underwear by defendant's employees, the court reviewed the evidence at the hearing to determine whether, under the circumstances, either employee had acted 'as an instrument or agent of the government,' making their conduct 'state action' for purposes of Article I, section 9. It concluded that they had not. The trial court explained that the housekeeper 'was not directed [by the DHS employee] to seize [T's] underwear.' Rather, the employees themselves discussed and then executed a 'plan of action.' The court noted that the DHS employee did not encourage or participate in the seizure of the underwear and that, while he 'may have had an expectation that the housekeeper would likely obtain possession of the underwear,' he specifically told the housekeeper that he could not ask her to search for or seize it. The court stated that any 'circumstantial encouragement' during his conversation with the housekeeper was 'insufficient governmental involvement to warrant application of the exclusionary rule,' citing State v. Waterbury, 50 Or.App. 115, 622 P.2d 330, rev den, 290 Or. 651 [––– P.2d ––––] (1981). Accordingly, the trial court ruled that the actions of defendant's two employees 'do not constitute state action.' The trial court also held
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