State v. Luman

The state appeals from a Court of Appeals decision reversing a trial court order that denied in part defendant’s motion to suppress evidence. As in State v. Heckathorne, 347 Or 474, 223 P3d 1034 (2009), the issue in this case involves the warrant requirement in Article I, section 9, of the Oregon Constitution. Here, the question is whether the police were required to obtain a search warrant to view the images on a videotape in their possession when, without the owner’s consent, private parties already had viewed the videotape and then given it to the police. The Court of Appeals concluded (1) that the videotape is not a transparent container that announces its contents, and (2) that the fact that private parties (who were employees of defendant) had viewed a part of the videotape before turning it over to the police and had described to the police what they had seen on the videotape did not extinguish defendant’s privacy interest in the contents of the videotape. Therefore, the Court of Appeals held, the police violated defendant’s privacy right under Article I, section 9, when they viewed the videotape without first securing a warrant. State v. Luman, 220 Or App 617, 628, 188 P3d 372 (2008). We allowed the state’s petition for review and now reverse the decision of the Court of Appeals.

The relevant facts are undisputed. Defendant owned a restaurant and catering service. He kept a television in the restaurant kitchen, and he instructed the restaurant staff not to use the television. Nevertheless, the employees sometimes watched the television while they worked. On one occasion, when defendant was not in the restaurant, an employee, Smith, turned on the television to watch the news. However, when Smith did so, a videotape in an attached videocassette recorder (VCR) began playing automatically. The videotape displayed images of women using the restaurant’s only restroom. Smith alerted a female coworker, Jones, and the two watched parts of the videotape. Smith and Jones then discovered wires running from the VCR into an electrical plug in the wall of the bathroom directly across from the toilet, as well as an area where they believed a camera could have been placed. The employees also found other videotapes in the kitchen and in a bag in the restaurant’s walk-in cooler. Some of the videotapes were hand-labeled with the names of *490movies; two videotapes, including the videotape in the VCR, were hand-labeled “master.” Later that day, after showing the videotapes to two other employees and debating what they should do with them, Jones called the sheriffs office and eventually turned the videotapes over to the sheriff s office.

Four days later, without obtaining a warrant, a deputy sheriff watched the videotapes. Most of the videotapes contained recordings of the restroom when it was not in use, or “dead time.” However, interspersed throughout the “dead time” were recordings of women in a state of partial nudity as they used the restroom. The two videotapes labeled “master” contained the same images, but they had been edited to remove the “dead time.” In total, the videotapes contained images of 48 different people.

Defendant was charged with 48 counts of invasion of personal privacy, in violation of ORS 163.700.1 Before trial, defendant moved to suppress the videotapes and all evidence derived from them, on the ground that the deputy viewed the videotapes without first securing a warrant to do so and thereby engaged in an unconstitutional search in violation of defendant’s privacy rights under Article I, section 9, of the Oregon Constitution and under the Fourth Amendment to the United States Constitution. The state responded that no warrant was required, because the sheriffs office lawfully had received the videotapes from the employee, who had informed the deputy of the contents of the videotapes. According to the state, defendant had no remaining privacy interest in the contents of the videotapes, because the employee’s description of the contents of the videotapes “announced” that the videotapes contained evidence of a crime.

*491The trial court suppressed all the videotapes but one; the court declined to suppress the “master” videotape that Smith initially viewed in the VCR at defendant’s restaurant and then watched with Jones and other employees. The trial court reasoned that the videotapes that defendant’s employees had not previously viewed did not “announce” that those videotapes contained evidence of a crime; the court therefore ordered that those videotapes be suppressed. However, the trial court reasoned that the contents of the “master” videotape had become “apparent” by the time the police had viewed it. Therefore, the trial court concluded that defendant had no remaining privacy interest in the “master” videotape and refused to suppress it. The “master” videotape, which contained recordings of 11 different women using the restroom, was introduced into evidence at defendant’s trial. Based on that evidence, a jury found defendant guilty of 11 counts of invasion of personal privacy.

Defendant appealed, assigning error to the trial court’s failure to suppress the “master” videotape. The Court of Appeals reversed, concluding that the trial court erred, under Article I, section 9, in refusing to suppress the videotape. The court rejected the state’s argument that defendant no longer had a privacy interest in the contents of the “master” videotape because Smith and the other employees had viewed the videotape and had described the images on the videotape to the police. In doing so, the Court of Appeals stated that

“the mere fact that a private third party has knowledge of the contents of something in which a defendant claims a privacy interest — even if that party conveys the information to the police — does not mean that a defendant no longer has ‘the right to be free from intrusive forms of government scrutiny.’ State v. Dixson/Digby, 307 Or 195, 208, 766 P2d 1015 (1988). Article I, section 9, does not countenance such a result.”

Id. at 626. In this case, the Court of Appeals observed, defendant did not evince an intent to relinquish his privacy interest in the videotape; rather, a “special effort” on the part of the employees, including violating workplace rules, was required to view the images on the videotape. Id. at 627. Therefore, according to the court, because defendant did not, *492by his own conduct, abdicate his privacy interest in the videotape, he still retained that interest, even after his employees had viewed the videotape and delivered it to the sheriffs office, and the deputy’s viewing of the videotape without a warrant violated that privacy interest. Id. at 627-28.

As noted, this court allowed the state’s petition for review. On review, the state repeats the arguments that it made to the Court of Appeals.2

We begin with first principles. Article I, section 9, of the Oregon Constitution, 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.”

That provision protects individuals “against unreasonable search, or seizure,” and it protects both possessory and privacy interests in effects. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). As the Court of Appeals observed, there is no real dispute that the sheriffs office’s possession of the videotape was lawful. Luman, 220 Or App at 622. That is so because private parties, not state actors, first viewed the videotape and then, on their own initiative, brought it to the sheriffs office. It is axiomatic that Article I, section 9, applies only to government-conducted or -directed searches and seizures, not those of private parties. State v. Tucker, 330 Or 85, 89, 997 P2d 182 (2000) (“It is true that Article I, section 9, prohibits only state action that infringes on a citizen’s constitutional rights.”).

The foregoing principle applies even if the private parties acted unlawfully in conducting the search and seizure that ultimately led to police possession of the evidence. That is, even if defendant’s employees in this case had committed theft (which they did not) when they took the videotape from defendant’s restaurant and delivered it to the sheriffs office,3 *493that fact would not somehow turn that conduct into state action or render the sheriffs office’s later possession of the videotape unlawful. This court has not stated so much expressly, but the federal courts clearly have endorsed that proposition under the Fourth Amendment to the United States Constitution, and we find that reasoning persuasive.

For example, in Burdeau v. McDowell, 256 US 465, 41 S Ct 574, 65 L Ed 1048 (1921), the defendant’s former coworkers broke into his private office, drilled into his private safe, broke the locks on his private desk, and broke into and abstracted documents from his private files, all in order to steal books and papers that established that the defendant had committed fraud against his former employer. As the United States Supreme Court stated with respect to the defendant’s subsequent Fourth Amendment challenge to the prosecution’s use of that evidence against him:

“The Fourth Amendment gives protection against unlawful searches and seizures, and as shown in the previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies * * *.

“In the present case the record clearly shows that no official of the Federal Government had anything to do with the wrongful seizure of the petitioner’s property, or any knowledge thereof until several months after the property had been taken from him and was in the possession of [the former employer]. It is manifest that there was no invasion of the security afforded by the Fourth Amendment against unreasonable search and seizure, as whatever wrong was done was the act of individuals in taking the property of another. A portion of the property so taken was turned over to the prosecuting officers of the Federal Government. We assume that petitioner has an unquestionable right of redress against those who illegally and wrongfully took his *494private property under the circumstances herein disclosed, but with such remedies we are not now concerned.”

256 US at 475; see also, e.g., United States v. Snowadzki, 723 F2d 1427 (9th Cir), cert den, 469 US 839 (1984) (documents showing defendant had significant unreported income, which had been provided to IRS by defendant’s coworker who had stolen them from defendant’s desk, admissible in defendant’s subsequent trial on charges of filing false tax returns; no Fourth Amendment violation, because government not involved in theft); United States v. Connors, 441 F3d 527 (7th Cir 2006) (no Fourth Amendment violation requiring suppression of evidence obtained by bitter ex-wife who knew about defendant’s Cuban cigar smuggling operation, cozied up to defendant to gain entry into his home, stole incriminating documents from defendant’s private files, and put them in the trash for federal agents to find).

No party has suggested that the rule under the Oregon Constitution should be different; given what this court stated in Tucker, we assume the rule is the same. Therefore, because the deputy’s receipt of the videotape (from the private citizens who had taken it) was constitutionally lawful, defendant no longer retained a protected possessory interest in the videotape or privacy interest in its exterior. The only question remaining, then, is whether defendant nonetheless retained a protected privacy interest in what that videotape showed that would be invaded by the deputy’s warrantless viewing of it.

As discussed above, in holding that a warrant was required, the Court of Appeals held that the deputy conducted a “search” of the videotape when he viewed it. As this court stated in State v. Howard /Dawson, 342 Or 635, 640, 157 P3d 1189 (2007), a “search” occurs when an individual’s protected privacy interests are invaded.4 The court went on:

“When * * * the police act without a warrant and no exception to the warrant requirement applies, the question whether the police have violated Article I, section 9, reduces *495to whether the officers’ acts invaded either a constitutionally protected possessory or privacy interest.”

Put differently, if the police do not invade a protected privacy interest by examining a piece of evidence, a “search” does not occur and no warrant is necessary.5 In addition, as this court often has stated, the privacy protected under Article I, section 9, “ ‘is not the privacy that one reasonably expects but the privacy to which one has a right.’ ” 342 Or at 643 (quoting State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988); emphasis in Campbell).

As noted, the Court of Appeals held that defendant retained a privacy interest in the videotape, because nothing in his conduct evinced his intent to abdicate that privacy interest, and his employees had to undertake “special efforts,” including violating workplace rules, to view the videotape. Under Article I, section 9, however, the fact that defendant did not evince an intent to relinquish his privacy interest in the videotape is irrelevant to the question whether he retained a protected privacy interest in the videotape or whether a search occurred. Even defendants whose property is lawfully seized under the authority of a warrant may not intend to relinquish their privacy interest in that property. The only relevant question is whether defendant had any right to privacy in the videotape once his employees had viewed it and turned it over to law enforcement.

We have no trouble concluding that he did not. Once private parties have seized a piece of evidence, examined it, and delivered it to a police officer (thereby giving the police *496officer lawful possession of that evidence for criminal investigatory purposes), the police officer’s subsequent, confirmatory examination of that evidence involves no additional injury to any privacy interest of the property owner; any privacy interest that the property owner once may have had in that piece of evidence is destroyed, at least to the extent of the scope of the private search.

As the state has pointed out in its brief to this court, that is the rule that the federal courts employ in analogous situations under the Fourth Amendment. That rule first was adopted by a majority of the United States Supreme Court in Walter v. United States, 447 US 649, 100 S Ct 2395, 65 L Ed 2d 410 (1980). In Walter, private parties had received a box full of pornographic 8 mm films that had been misdelivered by a private carrier. The private parties had opened the box, which was plain cardboard, and had seen that the box contained a shipment of 871 individual boxes, each apparently containing a pornographic film. On one side of each box was a suggestive drawing and, on the other, an explicit description of the film. The private parties did not actually open any of the boxes or view the films before turning them over to the FBI. FBI agents then viewed the films with a projector without first obtaining a warrant. In overturning the defendant’s subsequent convictions on obscenity charges, the Court held that, although the nature of the contents of those films was suggested by descriptive material on their individual containers, exhibition of the films without a warrant nevertheless constituted an unreasonable invasion of the defendant’s constitutionally protected interest in privacy; the fact that private parties had opened some of the packages before the private parties gave the boxes to the FBI did not excuse the failure to obtain a search warrant. In so holding, the Court stated,

“When an official search is properly authorized— whether by consent or by the issuance of a valid warrant— the scope of the search is limited by the terms of its authorization. * * *

“If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party’s invasion of another person’s privacy. Even *497though some circumstances — for example, if the results of the private search are in plain view when materials are turned over to the Government — may justify the Government’s re-examination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening one could only draw inferences about what was on the films. The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search. That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained.”

Walter, 447 US at 656-57 (footnote omitted).

However, the Court later explained the limitations on the Walter rule in United States v. Jacobsen, 466 US 109, 104 S Ct 1652, 80 L Ed 2d 85 (1984). In Jacobsen, Federal Express employees inspected a cardboard box that had been damaged in transit. Inside the box was a tube, approximately ten inches long, made of duct tape. Two employees cut open the tube and, inside it, found four plastic bags, which they then pulled out. One of them contained several ounces of white powder. The employees then notified the Drug Enforcement Administration (DEA). Before the first DEA agent arrived, the employees replaced the plastic bags in the tube and put the tube back into the box.

When the DEA agent arrived, he looked in the box, saw the slit in the tube that the employees had made, pulled out the plastic bags, opened them, and then performed a field test on the white powder. That test confirmed that the substance was cocaine. Eventually, other agents arrived; they performed a second test, rewrapped the tube, and obtained a warrant to search the defendant’s address, to which the box and tube were supposed to have been delivered. The defendant subsequently was charged with and convicted of possession of a controlled substance with intent to distribute it. In upholding the trial court’s denial of the defendant’s motion to suppress the evidence found in the tube, the Court stated,

“The initial invasions of respondents’ package were occasioned by private action. Those invasions revealed that *498the package contained only one significant item, a suspicious looking tape tube. Cutting the end of the tube and extracting its contents revealed a suspicious looking plastic bag of white powder. Whether those invasions were accidental or deliberate, and whether they were reasonable or unreasonable, they did not violate the Fourth Amendment because of their private character.

“The additional invasions of respondents’ privacy by the government agent must be tested by the degree to which they exceeded the scope of the private search. * * *

“This standard follows from the analysis applicable when private parties reveal other kinds of private information to the authorities. It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information^] * * * The Fourth Amendment is implicated only if the authorities use information with respect to which the expectation of privacy has not already been frustrated. In such a case the authorities have not relied on what is in effect a private search, and therefore presumptively violate the Fourth Amendment if they act without a warrant.”

Jacobsen, 466 US at 115-18 (footnotes and citations omitted). And, the Court held, because the search conducted by the federal agent in pulling the plastic bags out of the tube and examining them was not more intrusive than the private search that had preceded it, it did not further infringe on the defendant’s privacy.6

*499We recognize that the foregoing analysis differs from the approach that this court would take under Article I, section 9, to the extent that the question whether a person’s Fourth Amendment right to be free from unreasonable searches and seizures is violated turns on whether the person has a “reasonable expectation” of privacy, rather than a “right” to that privacy as under Article I, section 9. However, that distinction does not render the federal analysis inapposite to the situation before us. Rather, we conclude that a private search frustrates a person’s right to privacy under Oregon’s Constitution exactly to the same extent that it frustrates a person’s expectation of privacy under the federal constitution.

In this case, defendant’s employees seized the videotape, viewed it, handed it over to the deputy, and told him exactly what was on it. (And, as noted, none of that private conduct violated defendant’s Article I, section 9, rights.) At that point, defendant no longer retained a protected possessory or privacy interest in the piece of evidence; those interests were destroyed by the private conduct. That is, defendant no longer had a right to privacy in the videotape. Because the deputy’s act in viewing the videotape invaded neither a possessory interest nor a right to privacy in the images on the videotape that was protected by Article I, section 9, of the Oregon Constitution, that act was not a search and no warrant was required.7

The foregoing is consistent with this court’s decision in State v. Munro, 339 Or 545, 124 P3d 1221 (2005). In Munro, the police obtained a search warrant permitting the officers to search for and seize drug-related evidence, including, among other things, business records, photographs, and videotapes. In the ensuing search, the police seized, among other things, a videotape. When the officers initially tried to view the videotape, it appeared to be blank; nevertheless, the officers retained the videotape. Based on other evidence found in the search pursuant to the warrant, the defendant was charged with possession of a controlled substance. Sometime later, while the defendant’s trial on the drug charge was *500pending, the police officers obtained information suggesting that the videotape contained images of child pornography. Without obtaining another warrant, the officers sent the videotape to a video service company, which was able to access the pornographic contents of the videotape, and the defendant was charged with encouraging child sexual abuse. Before the defendant’s subsequent trial on that charge, the defendant unsuccessfully moved to suppress the images found on the videotape, arguing that the police officers’ viewing of the videotape was an unconstitutional warrantless search. The defendant eventually was convicted of that charge. On defendant’s appeal, the Court of Appeals reversed and remanded the case for a new trial.

On review, this court reversed the decision of the Court of Appeals. In so doing, the court accepted the state’s concession that the police officers’ viewing of the videotape was a search, but stated that the question before the court was whether the defendant had retained any privacy interest in the videotape (after its seizure and initial examination) that could not lawfully be invaded under the authority of the first, drug-related warrant. 339 Or at 550. The court held that he did not. The court noted that the warrant authorized the seizure of the videotape, thereby depriving the defendant of his possessory interest in the videotape. Id. at 552. The court then stated, “Similarly, the warrant authorized the police to invade the privacy of the videotape by examining and exhibiting its contents.” Id. That is, the court held, once the police lawfully seized the videotape and, therefore, lawfully possessed the videotape for criminal investigatory purposes, the police were fully entitled to examine and exhibit the videotape:

“[T]he warrant lawfully authorized the seizure of the videotape and the invasion of defendant’s privacy interest in its contents. Once the police seized the videotape under the authority of the warrant, any privacy interest that defendant had in the contents of the videotape was destroyed by the authority of the warrant permitting the examination and exhibition of the contents of the videotape. Until such time as defendant regained lawful possession of the videotape, he had no remaining privacy interest in its contents that he could assert.

*501“The fact that the police did not initially observe any images on the videotape when they initially examined it is of no legal significance. Once they lawfully had seized the videotape, nothing prevented the police from examining the contents of the videotape as often as they deemed necessary. Furthermore, once the videotape was lawfully seized under the authority of the warrant, any images stored on the videotape, no matter how hidden, private, or secret, were no longer protected by Article I, section 9.”

Id. at 552-53.

The Court of Appeals read the foregoing passages from Munro as supporting its contrary conclusion that, because there was no search warrant in this case destroying defendant’s possessory and privacy interest in the videotape, defendant retained a privacy interest in it and a warrant therefore was required to view it. That reading was based on the Court of Appeals’ understanding that the warrant in Munro specifically, and in so many words, authorized not only the seizure of the videotape but also the viewing of it. Luman, 220 Or App at 626 (“That is, the dispositive circumstance in Munro was that ‘the warrant authorized the police to invade the privacy of the videotape.’ ” (Emphasis in original.)). That understanding, however, is wrong.

The warrant in Munro provided, “ Nou are hereby commanded to search: * * * For the following described property: * * * videotapes * * ” 339 Or at 548 n 4. That is all. Thus, when the Munro court referred to “the authority of the warrant permitting the examination and exhibition of the contents of the videotape,” the court clearly was speaking of the right to play and view the videotape that inhered in the lawful seizure of the videotape (which was all that the warrant expressly permitted). In this case, as already discussed, the sheriffs office gained lawful possession of the videotape for criminal investigatory purposes when defendant’s employee brought the videotape into the sheriffs office, told the deputy sheriff what was on the videotape and the circumstances surrounding its discovery, and handed it over. That set of circumstances is the functional equivalent of the lawful “seizure” in Munro under the authority of the warrant, which also gave the police lawful possession of the videotape. And, as in Munro, because the sheriffs office’s possession of the *502videotape for criminal investigatory purposes was lawful, any protected possessory or privacy interest defendant might have had in the videotape was lost, at least to the extent that the employees already had viewed it, and the deputy’s subsequent confirmatory viewing of the videotape was not a constitutionally impermissible search. The contrary conclusion of the Court of Appeals was erroneous.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.