State v. Wacker

• Decision Date: 19 August 1993
• Citation: 856 P.2d 1029,317 Or. 419
• Parties: STATE of Oregon, Petitioner on Review, v. Bart Dale WACKER, Respondent on Review. CC C8904498CR; CA A62171; SC S39421.
• Court: Oregon Supreme Court

Page 1029

856 P.2d 1029

317 Or. 419

STATE of Oregon, Petitioner on Review, v. Bart Dale WACKER, Respondent on Review.

CC C8904498CR; CA A62171; SC S39421.

Supreme Court of Oregon,

In Banc.

Argued and Submitted March 2, 1993.

Decided Aug. 19, 1993.

Rives Kistler, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on the petition were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

[317 Or. 420-A] Peter Gartlan, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the response was Sally L. Avera, Public Defender, Salem.

Thomas J. Crabtree, of Crabtree & Rahmsdorff, Defense Services, Inc., Bend, filed a brief for amicus curiae Oregon Crim. Defense Lawyers Ass'n.

VAN HOOMISSEN, Justice.

Defendant was charged with unlawful possession of a controlled substance (cocaine). ORS 475.992. Before trial, he moved to suppress the state's evidence, arguing that the seizure of the evidence was "tainted" by an unlawful search. The trial court ordered the evidence suppressed. The Court of Appeals affirmed. State v. Wacker, 111 Or.App. 483, 826 P.2d 1019 (1992). We allowed the state's petition for review. The dispositive issue is whether the police "searched" a car in which defendant was a passenger. For the reasons that follow, we hold that, because the police did not invade defendant's protected privacy interest, no search occurred. ¹ Accordingly, we reverse and remand to the trial court.

The owner of a tavern was concerned about illegal drug activity around his business. He requested police assistance. With the owner's permission, police officers stationed themselves in a second floor office above the tavern to watch for drug activity. ² The officers used a "starlight scope" ³ and a video camcorder ⁴ to record their observations. The two devices were used independently of each other.

About 11:30 p.m., defendant and Deborah Weare drove into the tavern's parking lot in Weare's Nissan car. Weare was driving. She parked directly behind the tavern, six parking spaces from the side of the parking lot bounded by the side street. The officers' second floor vantage point was 29 feet from the car.

As the night went on, the number of other cars in the lot increased. About 10 to 15 other cars were in the lot while defendant and Weare were there. Other patrons of the tavern walked near Weare's car to enter the tavern. Two people stopped as they passed the car, motioned to the people inside the car and, apparently, engaged in conversation with them. Defendant and Weare stayed inside the car for several minutes before entering the tavern.

About 30 minutes later, defendant and Weare came out of the tavern with a third person; all three of them got into the car. Someone turned on the console or overhead car light, which remained on part of the time that the three people were inside the car.

After observing the activities inside the car, the officers formed an opinion that the people in the car were engaging in criminal drug activity. The officers then radioed other officers to stop the car after it left the parking lot. ORS 131.615. ⁵ It was stopped and, after a consensual search, ⁶ evidence of crime was seized. Defendant and Weare were charged with unlawful possession of a controlled substance. ⁷

Before trial, defendant moved to suppress the evidence on the ground that the use of the starlight scope and the camcorder to observe activity within Weare's car was an illegal search and that, without the information obtained by use of those devices, there was no basis for the subsequent stop and search of the car and its occupants. Accordingly, defendant argued, any evidence seized was "tainted" and must be suppressed. Defendant relied on Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the Constitution of the United States.

The trial court found in part:

"5. Deputy Watson observed the occupants of the Nissan handling a vial, placing the vial to their noses, bending down and sniffing, handing items to each other and reaching into the console of the auto. Watson also observed the female scraping a substance off a mirror-like object and licking the residue. ⁸

"6. Deputy Watson observed the Nissan at times with the naked eye and at times with the starlite scope.

"7. While the Nissan was at the [tavern] parking lot being observed by Deputies Mathews and Watson, the driver and passenger of the Nissan got out of the vehicle at least once. At one time a third party, a female, got into the vehicle, with the passenger and the driver with the driver's and passenger's consent. The third party sat in the back seat. A light was on in the Nissan at times. This was a dome light or a map light. Other unknown persons were in proximity to the Nissan at times during the deputies' observations.

"8. The camcorder recorded these observations and statements made by the three deputies as they were observing the Nissan. ⁹ The deputies' statements included a running account of what they could and could not see. It is unclear whether the deputies speaking are observing the Nissan with their naked eye, or by use of the starlite scope or through the camcorder.

"9. The video tape made by Deputy Watson using the camcorder was very similar to what Deputy Watson could see with the naked eye. The image is magnified by the camcorder lens, however the image is grainier than the human eye perceives.

"10. Deputies Kuni, Watson and Mathews have considerable experience in investigating drug cases and are familiar with drug related activities.

"11. After observing the activities in the Nissan, the deputies formed the opinion that there was criminal drug activity occurring in the Nissan.

"12. The deputies radioed for a marked patrol unit to stop the Nissan as it left the [tavern] lot.

"13. Washington County Sheriff's Office Deputy Alan Julian followed the Nissan * * * and stopped the Nissan by blocking the Nissan with his unit.

"14. It is impossible to tell what activities the deputies observed in the Nissan with the naked eye, what activities they observed with the use of the starlite scope and what activities they observed through the camcorder viewfinder."

The trial court ordered that "everything the officers observed with the starlight scope must be suppressed." The court also ordered that "any evidence obtained from the stop and consensual search of the Nissan must also be suppressed as it is tainted by the illegal search." The court's oral remarks suggest that it based its ruling on Article I, section 9, and State v. Campbell, 306 Or. 157, 759 P.2d 1040 (1988).

The Court of Appeals affirmed, holding that the police surveillance "significantly impaired defendant's right to be free from scrutiny and, therefore, constituted a warrantless search." State v. Wacker, supra, 111 Or.App. at 489, 826 P.2d 1019. The Court of Appeals' decision also appears to have been based on Article I, section 9, and State v. Campbell, supra. We allowed the state's petition for review.

We first consider defendant's arguments under Article I, section 9. ¹⁰ Article I, section 9, of the Oregon Constitution, provides in part:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure * * *." ¹¹

In State v. Owens, 302 Or. 196, 206, 729 P.2d 524 (1986), this court stated that "[a] 'search' occurs when a person's privacy interests are invaded." In State v. Louis, 296 Or. 57, 60, 672 P.2d 708 (1983), this court noted: "The first issue to determine is did the defendant exhibit an intention to protect his privacy?" In State v. Campbell, supra, this court explained:

"[T]he privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right." 306 Or. at 164, 759 P.2d 1040 (emphasis in original) (citing State v. Tanner, 304 Or. 312, 321-22 n. 7, 745 P.2d 757 (1987)).

The privacy interests protected from unreasonable searches under Article I, section 9, are defined by an objective test of whether the government's conduct "would significantly impair an individual's interest in freedom from scrutiny, i.e., his privacy." State v. Dixson/Digby, 307 Or. 195, 211, 766 P.2d 1015 (1988) (analyzing privacy interests in unimproved land outside the curtilage of a home). If no privacy interest is implicated, no "search" has occurred under Article I, section 9.

In State v. Louis, supra, 296 Or. at 61, 672 P.2d 708, this court stated:

"[N]ot everything that police officers see or hear one do in private quarters requires a search warrant. The question is when observation (or listening) becomes a 'search' within the legal meaning of that term. Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort. One would not, for instance, expect police to obtain a search warrant to charge violation of a noise ordinance against sounds emanating from private premises. An indecent exposure in a window opening to public view is not very different."

See also State v. Rhodes, 315 Or. 191, 197, 843 P.2d 927 (1992) (opening door of car that was stopped with its motor running was search); State v. Dixson/Digby, supra, 307 Or. at 204-08, 766 P.2d 1015 (discussing distinction between privacy interests within the curtilage of a home and outside the curtilage); State v. Campbell, supra, 306 Or. at 172, 759 P.2d 1040 (attaching tracking device to car violated Article I, section 9); State v. Kosta, 304 Or. 549, 555, 748 P.2d 72 (1987) (opening car trunk was a search); State v. Owens, supra, 302 Or. at 206, 729 P.2d 524 (containers that by their very nature announce their contents do not support a cognizable privacy interest under Article I, section 9); State v. Jackson, 296 Or. 430, 438, 677 P.2d 21 (1984) ("An officer who has lawfully stopped a...