State v. Sines
| Decision Date | 14 April 2016 |
| Docket Number | SC S062493.,CC 06FE1054AB,CA A146025 |
| Citation | 379 P.3d 502,359 Or. 41 |
| Parties | STATE of Oregon, Petitioner on Review, v. John Albert SINES, Respondent on Review. |
| Court | Oregon Supreme Court |
Michael A. Casper, Deputy Solicitor General, Salem, argued the cause and filed the brief for petitioner. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Lawrence Matasar, Portland, argued the cause and filed the brief for respondent. With him on the brief was Lisa A. Maxfield, Pacific Northwest Law LLP, Portland.
Before BALMER, Chief Justice, and KISTLER, WALTERS, LINDER, LANDAU, BALDWIN, Justices, and SERCOMBE, Judge of the Court of Appeals, Justice pro tempore.**
, C.J.
This case requires us to consider whether a private citizen's seizure of criminal evidence was subject to suppression at trial as the fruit of an unlawful government search. Defendant came to the attention of law enforcement after his housekeeper anonymously called the child protective services division of the Department of Human Services (DHS) and said that she suspected that defendant might be sexually abusing his adopted daughter. The housekeeper's suspicions had been raised after finding an unusual “discharge” on several pairs of the child's underwear, and she told DHS that she had considered taking a pair for authorities to examine. In response to a question from the housekeeper, the DHS employee who handled the call said that he would be able to connect the housekeeper with someone in law enforcement who could analyze the underwear and confirm or refute her concerns. The DHS employee told the housekeeper several times that he could not tell her to take the victim's underwear. The next day the housekeeper obtained a pair of the victim's underwear, and the following day she turned it over to the police. Based on that evidence and other statements by the housekeeper, police obtained a warrant and searched defendant's house, after which defendant was arrested and charged with a number of sex crimes. Defendant's motion to suppress the evidence obtained through the search and seizure of the underwear was denied, and he was convicted on four counts of first-degree sexual abuse.
The Court of Appeals reversed, holding that the trial court had erred in denying defendant's motion to suppress. The court concluded that, although the underwear had been procured by a private person, there was nevertheless sufficient contact between state officials and the private person that the warrantless search and seizure constituted state action, in violation of Article I, section 9, of the Oregon Constitution
. State v. Sines, 263 Or.App. 343, 328 P.3d 747 (2014). For the reasons set out below, we reverse the Court of Appeals decision and remand to that court for consideration of other issues raised but not addressed in defendant's appeal.1
We take the relevant facts from the record and the Court of Appeals opinion, setting them out consistently with the trial court's explicit and implicit findings. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993)
. We review the trial court's denial of defendant's motion to suppress for errors of law.
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 “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, 2 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, 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.
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 (1981). Accordingly, the trial court ruled that the actions of defendant's two employees “do not constitute state action.” The trial court also held that the police acquisition of the underwear from the housekeeper was not an unlawful seizure, because that action was supported by “an...
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