State v. Meredith

56 P.3d 943, 184 Or. App. 523, 19 I.E.R. Cas. (BNA) 390, 2002 Ore. App. LEXIS 1722
CourtCourt of Appeals of Oregon
DecidedOctober 30, 2002
Docket98CR212OFE; A106960
StatusPublished
Cited by2 cases

This text of 56 P.3d 943 (State v. Meredith) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Meredith, 56 P.3d 943, 184 Or. App. 523, 19 I.E.R. Cas. (BNA) 390, 2002 Ore. App. LEXIS 1722 (Or. Ct. App. 2002).

Opinions

[525]*525EDMONDS, J.

Defendant appeals from convictions for two counts of first-degree arson. ORS 164.325. On appeal, she argues that the trial court erred in denying her motion to suppress evidence obtained after a radio transmitter was attached to her employer’s truck. We affirm.

Defendant was employed as a fire prevention technician by the United States Forest Service (USFS). Her duties required her to travel in her employer’s vehicle in the Tiller District of the Umpqua National Forest. In August 1998, the USFS district ranger in charge of the Tiller District authorized USFS law enforcement agents to attach an electronic transmitter to the undercarriage of a USFS pickup truck that defendant customarily used during her work shift. The following day, USFS law enforcement agents monitored the location of the vehicle within the Tiller District from an airplane through the transmissions from the transmitter as defendant traveled. The signals indicated when the pickup was moving and when it was stopped. By monitoring the strength or weakness of the signal, agents were able to pinpoint the truck’s location and keep it in sight, except when forest cover obscured their view.

At one point, defendant radioed to the ranger station that she was returning to headquarters. Then, as the agents monitored her vehicle, they saw the pickup stop and back up a road. The pickup went onto a logging spur and into a grassy open area. The agents observed defendant get out of the truck and squat down for about 20 seconds, “do something” with her hands, get back into the pickup, and drive away from the area. One of the agents immediately saw a flash of orange at the exact spot where defendant had been, and within seconds, he saw smoke rising from the spot and a widening dark patch on the ground.

At a pretrial hearing, defendant sought to exclude all evidence obtained from the agent’s observations. Specifically, she contended that the use of the radio transmitter to locate the USFS pickup constituted an invasion of a protected privacy interest under Article I, section 9, of the Oregon Constitution.1 The trial court reasoned that the government’s [526]*526action constituted a search, but held that the search was reasonable because it was conducted with the consent of defendant’s employer, the owner of the truck. Defendant appeals, arguing that the use of the radio transmitter constituted a search, that the search was warrantless and not justified by an exception to the warrant requirement, and that, despite USFS consent to the agent’s monitoring of the location of the truck, the transmitter invaded defendant’s privacy interest because it provided “continuous information about the vehicle’s location and its movements when it was in defendant’s possession.” We disagree with defendant’s arguments and conclude that no search occurred. In arriving at our conclusion, we follow the methodology prescribed by the Oregon Supreme Court, and we limit our holding to the specific facts of this case.

Under Article I, section 9, a “search” occurs when the government invades “the privacy to which one has a right.” State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988) (emphasis omitted). Privacy interests generally

“[a]re not self-announcing and, with a few possible exceptions, can be recognized only by their association with a private place, i.e., by the fact that an object is kept or conduct occurs in a place that legitimately can be deemed private. See, e.g., [State v.] Dixson / Digby, [307 Or 195, 211-12, 766 P2d 1015 (1988)] (defendant had protectable privacy interest in activity on undeveloped privately owned land only to the extent that he manifested an intent to exclude others by erecting fences or ‘no trespassing’ signs). Ultimately, then, the 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 the private space.”

State v. Smith, 327 Or 366, 372-73, 963 P2d 642 (1998) (emphasis in original; footnote omitted).

Defendant and the dissent rely on the holding in Campbell in support of the position that, ipso facto, the monitoring of radio transmissions from a tracking device [527]*527installed on a vehicle invades the operator’s privacy interests. In Campbell, the police suspected that the defendant was a perpetrator of residential burglaries occurring in a rural area. After trying to follow the defendant with other means of surveillance, they attached a transmitter to his vehicle while the defendant was meeting with his probation officer. After six days of monitoring his vehicle, the batteries in the transmitter grew weak, and the officers instructed his probation officer to schedule another meeting with the defendant so that they could replace the transmitter’s batteries. Thereafter, the police monitored his movements in two counties by using an airplane with a device that received transmissions from the transmitter. On the seventh day of monitoring the defendant’s location, the police observed the defendant enter a house that was not his own and come out of it with personal belongings that he placed in his car. See State v. Campbell, 87 Or App at 415, 417-18, 742 P2d 683 (1987).

The trial court in Campbell suppressed the evidence obtained by the use of the radio transmitter. On appeal, both this court and the Supreme Court affirmed. In its opinion, the Supreme Court defined the issue as “whether police use of a radio transmitter to locate a private automobile to which the transmitter has been surreptitiously attached is a ‘search’ or ‘seizure’ under Article I, section 9, of the Oregon Constitution.” 306 Or at 159 (emphasis added). It observed,

“[A] privacy interest, as that phrase is used in this court’s Article I, section 9, opinions is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from any scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search.”

306 Or at 170.

As the court later held in State v. Ainsworth, 310 Or 613, 616, 801 P2d 749 (1990), not all forms of scrutiny constitute searches; the threshold inquiry of whether a search occurs is “whether the police conduct at issue is sufficiently intrusive to be classified as a search.” The facts of this case do not readily fall into the definition of a significant intrusion [528]*528into a specific privacy interest. One kind of identifiable privacy interest is in one’s property, or in physical objects such as houses or automobiles. Here, unlike in Campbell, there was no physical invasion or trespass of defendant’s property interests.2 The radio transmitter was not attached to defendant’s own vehicle, but to her employer’s vehicle, with the employer’s consent. In the absence of a physical trespass to a protected property interest, we must look elsewhere to identify what privacy interests of defendant, if any, were invaded by the conduct of the USFS and its agents.

A significant intrusion into an identifiable privacy interest under Article I, section 9, can also occur when there is a sensory

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Related

State v. Meredith
96 P.3d 342 (Oregon Supreme Court, 2004)
State v. Meredith
56 P.3d 943 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
56 P.3d 943, 184 Or. App. 523, 19 I.E.R. Cas. (BNA) 390, 2002 Ore. App. LEXIS 1722, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-meredith-orctapp-2002.