State v. Dixson

740 P.2d 1224, 87 Or. App. 1, 1987 Ore. App. LEXIS 4197

• Court: Court of Appeals of Oregon
• Decided: August 12, 1987
• Docket: 84-1823, 84-1821, 84-1822 CA A34586 (control), CA A34808, CA A34817
• Status: Published

Opinions

YOUNG, J.

In these consolidated cases, defendants appeal from their convictions for the manufacture and possession of a controlled substance. They contend that the trial court erred in denying their motions to suppress evidence seized from the Dixsons’ property in a warrantless search. The issue is whether Article I, section 9,¹ of the Oregon Constitution requires a warrant for a search of an “open field.” We hold that it does and reverse. .

The Dixsons were purchasing the property in question, consisting of 40 acres, and lived in a home approximately 800 feet from the area where the marijuana plants were seized. That area was outside the curtilage of the home. Only a portion of the 40 acres was fenced. Lorin Dixson cultivated the land with the help of Digby. Sheriffs deputies, acting on a tip from an informant that marijuana was'growing on property owned by Rogge Lumber Company, went to the area and saw the Dixson residence, access roads and a vehicle being used to transport water. One of the officers then checked with the assessor’s office to determine the property boundaries in the area. The following day, he flew over the area² and saw several patches of what he believed to be growing marijuana. He concluded, mistakenly, that the plants were growing on the Rogge property and obtained Rogge’s consent to search its land for marijuana.

To get to the plants, the officers drove on a public road to a dirt logging road on the Dixson property. That road had not been used for some time and was not passable with a passenger car. At the property line, the Dixsons had posted a “No Hunting” sign on a wire cable that was stretched across the road to block access. They had also felled a large madrona tree across it to prevent access. The officers walked around the cable and continued down the logging road to another dirt road, which also had a wire cable stretched across it with a “No Hunting” sign attached. They walked around that cable as well and came to another “No Hunting” sign. Vegetation on and around the Dixson property was thick brush and, as the trial court found, the marijuana was not visible from ground level other than from the Dixson property. The officers saw the marijuana plants by pushing aside the brush after entering the land. They also encountered Lorin Dixson and Digby at the site of the plants.

The trial court found that Digby had a proprietary interest in the marijuana plants but no ownership interest in or right to possess the Dixson land. Therefore, it concluded that Digby did not have “standing” to object to the search that occurred on the Dixsons’ property. With respect to the Dixsons, the trial court, relying entirely on Oliver v. United States, 466 US 170, 104 S Ct 1735, 80 L Ed 2d 214 (1984), held that they had no legitimate expectation that the area outside of their curtilage would remain free from warrantless intrusion by the sheriffs deputies. Accordingly, it denied all of the motions to suppress.

The decisive issue is not, as the trial court apparently thought, one of federal law. Whether defendant’s land is constitutionally protected depends, in the first instance, not on United States Supreme Court cases interpreting the Fourth Amendment, but on the basic principles underlying the Oregon Constitution. We derive our analysis from them.³ See State v. Kennedy, 295 Or 260, 666 P2d 1316 (1983). While those principles may be similar to those underlying the Fourth Amendment, we need not join the federal retreat from the constitutional requirements.⁴

The dispositive question is whether Article I, section 9, protects defendants from police intrusions onto the land where the marijuana was found. If it does, the deputies violated the constitutional protection, because they did not have a search warrant and the circumstances did not create an exception to the warrant requirement. If the land were within the curtilage of defendants’ home, it would come within the specific constitutional language of “persons, houses, papers, and effects * * *.” State v. Lee, 120 Or 643, 253 P 533 (1927); State v. Ohling, 70 Or App 249, 688 P2d 1384, rev den 298 Or 334 (1984). Because it is not, we must determine whether Article I, section 9, is concerned exclusively with the rights that it expressly mentions or whether it uses those rights as tools to achieve a broader purpose. That is, does the constitution protect property as property, or is its protection of property a means to a greater end?

We believe it obvious that the constitution protects property in order to protect something more — one’s personalty or individuality — from official control. It does so by adapting traditional trespass law to create areas where officials may not go. Article I, section 9, and the Fourth Amendment are the direct product of the experience that Americans had during the pre-revolutionary period with uncontrolled executive power. The colonists (and their supporters in England) looked to safeguards against arbitrary searches and seizures as one of the bulwarks of the liberty for which they fought the Revolution. See Jensen, The Founding of a Nation: A History of the American Revolution, 1763-1776, 155-58, 258, 377-78 (1968); Cooley, Constitutional Limitations, 300-303 n 1 (1st ed 1868).

The tie between liberty and the right to exclude others from one’s property remained basic in American thinking after the Revolution. In one’s home one could be oneself. Writers frequently quoted a statement the Earl of Chatham, an English supporter of the American colonists, made before the revolution:

“The poorest man may, in his cottage, bid defiance to all the forces of the Crown. It may be frail; its roof may shake; the wind may blow through it; the storm may enter; the rain may enter; but the king of England may not enter; all his force dares not cross the threshold of the ruined tenement.” Quoted in Cooley, Constitutional Limitations, supra, 299 n 3.

Over a century later, the United States Supreme Court made a similar point in describing the heart of a violation of the Fourth Amendment:

“It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the offense; but it is the invasion of the indefeasible right of personal security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offense * * *.” Boyd v. United States, 116 US 616, 630, 6 S Ct 524, 29 L Ed 746 (1886). (Emphasis supplied.)

In this century, we call the “liberty” to which Chatham and the Supreme Court referred the “right to privacy.” It is inherent in the purpose of Article I, section 9, and we must construe the state constitution to protect that right.

As the Supreme Court said in State v. Duffy, et al., 135 Or 290, 297, 295 P 953 (1931), the purpose of that provision is “to protect the individual in the sanctity of his home and in the privacy of his books, papers and property * * (Emphasis supplied.) The constitution is as extensive as the privacy which it is designed to protect. As a result of the sophisticated technology and increasingly complex society which have developed in this century, we now face situations in which literal adherence to the constitutional language defeats the constitutional purpose. We must extend constitutional protections beyond the express language of the constitution in order to give the constitution continuing life. The danger in doing so is that we may lose a solid foundation for those rights. We thus must also establish an objective basis for deciding privacy rights that is both based in prior law and comports with the constitutional purpose.

The federal cases give us little help in this regard. At least since Katz v. United States, 389 US 347, 88 S Ct 507, 19 L Ed 2d 576 (1967), they have recognized the necessity of protecting privacy beyond the literal terms of the Fourth Amendment. The test they use, however, is so flexible that it has little objective content beyond the specific cases decided.⁵ Because the criteria by which to protect privacy under the state constitution remain unclear, we may approach the problem afresh.⁶

There are two issues involved in applying Article I, section 9, to facts which are outside its literal language: First, what places or things does the provision protect? Second, from what kinds of investigations does it protect them? In Katz v. United States, supra, for instance, the court held that the defendant was protected in a public telephone booth from a device which allowed officers to overhear and record his side of a conversation. Although we might agree with that holding, the “reasonable expectation of privacy” test which courts have drawn from Justice Harlan’s concurrence both misdirects our attention and provides no answer to those questions.

The Katz test has two parts: the defendant must show both an actual (“subjective”) expectation of privacy and that the expectation is reasonable, that is, that it is one which society will honor.⁷ The requirement of a subjective expectation turns the issue on its head: a person’s rights do not depend on what he or she expects, but on what society provides to everyone. After all, the less the police respect citizens’ rights, the lower will likely be a citizen’s subjective expectations of privacy. To the degree that this criterion has any value, it is not in determining whether the person, place or thing is protected but in deciding whether particular police action violated that protection.

For instance, a person who chooses to grow marijuana in a front yard does not lose his rights in the yard. The police may not, without a warrant or an exception to the warrant requirement, intrude into the yard. They may, however, look at and photograph the crop from an adjacent public place and use their observations and photographs in applying for a search warrant and as evidence at trial. The reason is not that the yard is unprotected or that the person has no subjective expectation of privacy in it; rather, the police action is proper because the police did not violate the protection that the constitution gives. “Persons may conduct themselves in otherwise protected areas in such a way that their words or acts can be plainly seen or heard outside without any special effort.” State v. Louis, 296 Or 57, 61, 672 P2d 708 (1983). The Katz test leads to a misunderstanding of that fundamental concept.⁸

The second part of the Katz test, that the expectation be one which society will honor, simply restates the problem; it is not a test at all. It does not suggest how a court might determine that a particular “expectation” is “reasonable.” If that determination depends on something other than the predictions of those who decide the particular case, it must come from sources which explicate society’s understanding of constitutional values. The proper question, thus, is not what the defendant expects or whether that expectation is reasonable but whether the constitution protects the defendant. That is the question before us.

Although the Supreme Court has not clearly stated what it believes to be the extent of the constitutional protection of privacy, it has indicated "that “intrusion upon seclusion,” as described in Restatement (Second) Torts § 652B, may be a privacy right whose violation gives rise to a tort. Anderson v. Fisher Broadcasting Co. 300 Or 452, 712 P2d 803 (1986). That approach is consistent with one commentator’s suggestion that privacy protects one’s secrecy and solitude. Note, “Protecting Privacy Under the Fourth Amendment,” 91 Yale LJ 313, 327-30 (1981). Both suggestions are in line with the early understandings of the constitutional purpose discussed above. We follow those suggestions and hold that Article I, section 9, protects a person’s right to exclude unwanted intrusions and unwanted methods of intruding from places and things over which that person has legitimate control. The right to exclude protects a person’s secrecy and solitude. Whether one has legitimate control over a place or thing can usually be decided on the basis of other law. For this reason, the test states objective criteria which we can readily apply to this case.

The officers intruded into areas which are protected under common law trespass rules that existed long before the adoption of either the Fourth Amendment or Article I, section 9. Those areas are also protected under more recent criminal trespass statutes. ORS 164.205(6); ORS 164.245(1). The right to exclude unwanted intruders from them is well established. Although the land is not within the constitutional definition of “home,” the well-established right to control entry gives the possessor of the land a privacy interest in it as against anyone with a lesser right to possession. It does not matter that the officers did not have the mens rea necessary to subject them to criminal liability. What matters is that statutes and the common law protect the Dixons’ land.⁹ See Oliver v. United States, supra, 466 US at 189-93 (Marshall, J., dissenting). The Dixsons, therefore, had a privacy interest in the land which they could assert against the police.

Digby’s motion should also have been granted. He had a proprietary interest in the growing plants, helped care for them and had the right to exclude others from the property. In short, he was a licensee whose rights in the land were greater than those of the officers. He, along with the Dixsons, had a privacy right in the area in question. His Article I, section 9, rights were violated in the same way as were the Dixsons’ rights.¹⁰

Reversed and remanded for a new trial in each case.

1 Article I, section 9, provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

2 Defendants do not attack the validity of the aerial observation.

3 We noted in State v. Russo, 68 Or App 760, 764 n 2, 683 P2d 163 (1984), that “[t]he existence and extent of an ‘open field’ doctrine under the Oregon Constitution is an open question.”

4 In his dissent, Judge Van Hoomissen ignores a basic rule of Oregon constitutional law: The Oregon Constitution is independent of the federal or other state constitutions. Federal constitutional opinions are relevant to Oregon decisions'only to the extent that they convince by their reasoning, even when the federal and Oregon constitutions have the same origins and are designed to protect the same values. State v. Soriano, 68 Or App 642, 645-46, 684 P2d 1220, opinion adopted 298 Or 392, 693 P2d 26 (1984); State v. Kennedy, supra. While Article I, section 9, and the Fourth Amendment have the same roots and reflect the same values, there is no reason to believe that the United States Supreme Court in 1984 (the year of Oliver v. United States, supra) was better able to apply those values than is this court in 1987. Neither court can claim any special channel to those who adopted the constitutions. By relying on older cases such as State v. Flores, 280 Or 273, 570 P2d 965 (1977), and State v. Florance, 270 Or , 527 P2d 1202 (1974), the dissent evades current Oregon law.

It is also curious that the dissent ignores federal law when it is apparently contrary to its position. Its attack on our willingness to extend constitutional protections beyond the explicit constitutional language in order to preserve constitutional values conveniently ignores that that is precisely what the federal courts have purported to do since Katz v. United States, infra. Indeed, our position is in some respects closer to the federal position than is the dissent’s. Like the federal courts, we recognize the constitutional importance of protecting privacy; we simply consider the Katz test to be insufficiently objective and therefore inadequate to place clear limits on official action. The dissent would apparently retain the pre-Katz property-only law in its entirety, using the letter of the law to kill the spirit.

Finally, we have not “overturned” previous Oregon cases. State v. Evans, 143 Or 603, 22 P2d 496 (1933), concerned the search of a hunting camp on public land; it is not authority for the “open fields” doctrine. Neither it, State v. Lee, infra, nor the other cases the dissent cites considered the effect that the protection of privacy inherent in Article I, section 9, might have in extending the constitution’s express property-based language. That is an issue of first impression under the Oregon Constitution. We must resolve it by applying the constitutional purpose, not by stale attacks on supposed “judicial activism.”

5 For instance, the United States Supreme Court requires a “reasonable expectation of privacy” before it will hold that the Fourth Amendment protects a defendant’s rights, even in the kind of property which the constitution specifically lists. See, e.g., United States v. Jacobson, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85 (1984) (private search so invaded the defendant’s privacy interest in a package that subsequent warrantless government intrusion was permissible; no discussion of the defendant’s continuing property right in it).

6 The special concurrence suggests that the question is not completely open, because the Oregon Supreme Court has several times referred to “privacy interests” under Article 1, section 9. However, the special concurrence is incorrect in its belief that the court’s use of that term gives us any guidance for this case. In every case that the Supreme Court has decided the constitutional protection was clear; the object searched was the defendant’s “effect.” The court refers to “privacy interests” as a kind of interest that the constitution protects, not as a method for determining what places or things the constitution protects. In contrast, the question before us in this case is whether a particular place has any constitutional protection at all.

7 See LaFave, Search and Seizure, § 2.1 (2nd ed 1986), for a description and discussion of the Katz test as the federal courts apply it.

8 Although the special concurrence would also reject Katz, its insistence that the land’s physical characteristics make it “private” before it is protected suffers from the same flaws. The special concurrence does correctly recognize that, however we resolve the privacy aspects of these issues, the specific constitutional language sets a floor below which we cannot go. If a police intrusion is a trespass into the defendant’s home, papers or effects, it violates the defendant’s rights. See State v. Normile, 74 Or App 545, 702 P2d 1160, rev den 300 Or 162 (1985); State v. Ohling, supra; State v. Russo, 68 Or App 760, 683 P2d 163 (1984).

9 We do not suggest that defendants’ privacy interests are measured solely by their property rights; however, those property rights provide a solid foundation for determining that defendants in this case have privacy interests which the constitution protects.

10 That a person has the right to exclude, of course, is not necessarily the end of the question. In many situations there will be implied or express consent for members of the public to enter land for hiking, hunting, fishing and similar activities. See, e.g., State v. Ohling, supra (implied consent to go to front door of residence). Implied consent might be more likely for an “open field” than for land within the curtilage. However, the issue is whether the owner gave consent to intrude; the owner necessarily has the right to exclude. There was no consent here, and the police intrusion was thus impermissible.