S056470, Opinion — State v. Luman

1 printed pages contain little extracted OCR body text; searchable legal-body completeness has not been established for those pages.

OCR transcription for search; preserved printed pages are authoritative

Argued and submitted March 6, decision of Court of Appeals reversed;
judgment of circuit court affirmed December 31, 2009
STATE OF OREGON,
Petitioner on Review,
U.

JOHN FREDERICK LUMAN,
Respondent on Review.
(CC 04102244; CA A132197; SC S056470)
223 P3d 1041

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

CJS, Searches and Seizures § 23.

# En Banc

On review from the Court of Appeals .*

Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause for petitioner on review. With her on the
briefs were Hardy Myers, Attorney General, and Mary H.
Williams, Solicitor General.

Chris Dunfield, Petersen, Dunfield & Fahy, Corvallis,
argued the cause and filed the brief for respondent on review.

\* Appeal from Linn County Circuit Court, Glen D. Baisinger, Judge. 220 Or
App 617, 188 P3d 372 (2008).

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

GILLETTE, J.

The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is affirmed.

De Muniz, C. J., dissented and filed an opinion, in which
Durham and Walters, JJ., joined.

<!-- PageBreak -->

<!-- PageHeader="488-b" -->
<!-- PageHeader="State v. Luman" -->
<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

GILLETTE, J.

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 con-
sent, 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 par-
ties (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 con-
tents 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 video-
cassette 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 electri-
cal 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

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

movies; 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 sheriff's office and
eventually turned the videotapes over to the sheriff's office.

Four days later, without obtaining a warrant, a dep-
uty 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 sheriff's 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.

1 ORS 163.700 provides, in part:

"(1) Except as provided in ORS 163.702 [pertaining to medical and law
enforcement exceptions], a person commits the crime of invasion of personal
privacy if:

"(a)(A) The person knowingly makes or records a photograph, motion pic-
ture, videotape or other visual recording of another person in a state of nudity
without the consent of the person being recorded; and

"(B) At the time the visual recording is made or recorded the person being
recorded is in a place and circumstances where the person has a reasonable
expectation of personal privacy[.]"

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

The 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 restau-
rant 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 video-
tape. The court rejected the state's argument that defendant
no longer had a privacy interest in the contents of the "mas-
ter" 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 informa-
tion to the police-does not mean that a defendant no
longer has 'the right to be free from intrusive forms of gov-
ernment scrutiny.' State v. Dixson / Digby, 307 Or 195, 208,
766 P2d 1015 (1988). Article I, section 9, does not counte-
nance such a result."

Id. at 626. In this case, the Court of Appeals observed, defen-
dant did not evince an intent to relinquish his privacy inter-
est 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,

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

by his own conduct, abdicate his privacy interest in the video-
tape, he still retained that interest, even after his employees
had viewed the videotape and delivered it to the sheriff's
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 unrea-
sonable 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 pri-
vacy 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 sheriff's office's possession of the video-
tape was lawful. Luman, 220 Or App at 622. That is so
because private parties, not state actors, first viewed the vid-
eotape and then, on their own initiative, brought it to the
sheriff's office. It is axiomatic that Article I, section 9, applies
only to government-conducted or -directed searches and sei-
zures, 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 consti-
tutional 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 sheriff's office,3

2 The state does not challenge the trial court's suppression of the videotapes
that the employees had not previously viewed. Because those videotapes are not
part of this case, we refer in this opinion to the singular "videotape" that is at issue.

3 We note that defendant never has argued that the employees acted unlaw-
fully in taking the videotape. It is true that defendant has maintained that his

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

that fact would not somehow turn that conduct into state
action or render the sheriff's 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 previ-
ous 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 govern-
mental 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

employees took the videotape without his permission or consent and that their
delivery of the videotape to the sheriff's office was unauthorized, but it is clear from
context that that argument merely was intended to refute the state's contention
that defendant had relinquished his possessory and privacy interest in the video-
tape; it was not an assertion that the sheriff's office's possession of the videotape
was unlawful.

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

private 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 sup-
pression 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 incriminat-
ing 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 con-
ducted 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 excep-
tion to the warrant requirement applies, the question
whether the police have violated Article I, section 9, reduces

4 The court also stated that a "seizure" occurs when government agents signif-
icantly interfere with the person's possessory or ownership interest in the prop-
erty. Howard / Dawson, 342 Or at 640.

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

to whether the officers' acts invaded either a constitution-
ally 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, sec-
tion 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

5 In Howard / Dawson, the defendants had thrown incriminating evidence in
their garbage, and a police officer made arrangements to have the sanitation com-
pany deliver the defendants' garbage to him after collecting it. The police officer
looked through that garbage without obtaining a warrant and used what he found
there to support a warrant to search the defendants' house. The defendants agreed
that they did not retain an ownership or possessory interest in their garbage once
the sanitation company had picked it up, but argued that they still retained a pri-
vacy interest in it, the invasion of which would constitute a "search." The court
stated that, although the defendants may not have expected the sanitation com-
pany or anyone else to look through their garbage, their subjective expectations
were irrelevant. The court held that the defendants had no protected privacy inter-
est in the garbage once the sanitation company had picked it up. 342 Or at 643.
Consequently, no "search" occurred when the officer looked through the garbage
and no warrant was required.

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

officer lawful possession of that evidence for criminal inves-
tigatory purposes), the police officer's subsequent, confirma-
tory examination of that evidence involves no additional
injury to any privacy interest of the property owner; any pri-
vacy 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 con-
tained 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 with-
out 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 con-
tainers, exhibition of the films without a warrant neverthe-
less 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 author-
ization. * * *

"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

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

though 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 con-
ducted 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 sub-
stance 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 defen-
dant subsequently was charged with and convicted of posses-
sion 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

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

the package contained only one significant item, a suspi-
cious 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 acci-
dental 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 informa-
tion to the authorities. It is well settled that when an indi-
vidual 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 govern-
mental use of the now nonprivate information[.] * * * The
Fourth Amendment is implicated only if the authorities use
information with respect to which the expectation of pri-
vacy 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 fed-
eral 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

6 The Court also held that the field test of the white powder, which had not
been conducted by the Federal Express employees and therefore technically
exceeded the scope of the private search, was not an unlawful "search" or "seizure"
within the meaning of the Fourth Amendment. According to the Court, "[a] chem-
ical test that merely discloses whether or not a particular substance is cocaine does
not compromise any legitimate interest in privacy." Jacobsen, 466 US at 123. That
also is consistent with this court's jurisprudence under Article I, section 9, of the
Oregon Constitution.

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

We recognize that the foregoing analysis differs from
the approach that this court would take under Article I, sec-
tion 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 inappo-
site to the situation before us. Rather, we conclude that a pri-
vate search frustrates a person's right to privacy under
Oregon's Constitution exactly to the same extent that it frus-
trates 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 pri-
vate conduct violated defendant's Article I, section 9, rights.)
At that point, defendant no longer retained a protected pos-
sessory 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, sec-
tion 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, includ-
ing, 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. Some-
time later, while the defendant's trial on the drug charge was

7 It follows from the foregoing discussion that defendant's Fourth Amendment
rights also were not violated by the deputy's viewing of the videotape.

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

pending, 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' view-
ing 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, law-
fully possessed the videotape for criminal investigatory pur-
poses, the police were fully entitled to examine and exhibit
the videotape:

"[T]he warrant lawfully authorized the seizure of the video-
tape 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 defen-
dant 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 video-
tape, he had no remaining privacy interest in its contents
that he could assert.

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

"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 neces-
sary. 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 circum-
stance in Munro was that 'the warrant authorized the police
to invade the privacy of the videotape.'" (Emphasis in origi-
nal.)). That understanding, however, is wrong.

The warrant in Munro provided, "'You are hereby
commanded to search: * * * For the following described prop-
erty: * * * 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 war-
rant expressly permitted). In this case, as already discussed,
the sheriff's office gained lawful possession of the videotape
for criminal investigatory purposes when defendant's
employee brought the videotape into the sheriff's office, told
the deputy sheriff what was on the videotape and the circum-
stances 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 sheriff's office's possession of the

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

videotape 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 sub-
sequent confirmatory viewing of the videotape was not a con-
stitutionally 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.

DE MUNIZ, C. J., dissenting.

The videocassette is a constitutionally protected
effect, and its contents are the images on the videotape.
Those images are not in plain view and can be viewed only by
the use of an electronic device. Article I, section 9, of the
Oregon Constitution protects a person's right of privacy in
the contents of an effect against unreasonable search and sei-
zure. Today, however, the majority concludes that, once third
parties have seized and viewed the contents of an effect
before giving it to the police, the owner's privacy interest in
the contents of the effect has been extinguished, thereby
relieving the police of their constitutional obligation to obtain
a search warrant. Because I would hold that defendant
retained a privacy interest in the images on the videotape
and that the police violated defendant's privacy right pro-
tected by Article I, section 9, when they viewed the images on
the videotape without first securing a warrant, I respectfully
dissent.

The majority, relying on Fourth Amendment1 cases,
concludes that the police did not need to obtain a search war-
rant before viewing the images, because that viewing
revealed nothing more than, or at least did not significantly
expand, the scope of the prior private "search" of the video-
tape by defendant's employees. Citing United States v. Jacobsen,
466 US 109, 115, 104 S Ct 1652, 80 L Ed 2d 85 (1984), the

1 The Fourth Amendment provides:

"The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated, and
no Warrants shall issue, but upon probable cause, supported by Oath or affir-
mation, and particularly describing the place to be searched, and the persons
or things to be seized."

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

majority concludes that, although the federal analysis differs
from the approach this court would take under Article I, sec-
tion 9, that analysis is nonetheless applicable here because "a
private search frustrates a person's right to privacy under
Oregon's Constitution exactly to the same extent that it frus-
trates a person's expectation of privacy under the federal con-
stitution." 347 Or at 499 (emphasis in original). That reason-
ing contradicts this court's prior Article I, section 9, case law.

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 unrea-
sonable 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."

Article I, section 9, protects both possessory and privacy
interests in effects. State v. Owens, 302 Or 196, 206, 729 P2d
524 (1986). "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." State v. Campbell, 306 Or
157, 170, 759 P2d 1040 (1988). Privacy interests that are pro-
tected 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
that private space." State v. Smith, 327 Or 366, 373, 963 P2d
642 (1998). It is governmental intrusion past those barriers,
engaged in wholly at the discretion of the government, that
Article I, section 9, protects against through the warrant
requirement. Campbell, 306 Or at 171. Indeed, when war-
rants are challenged, courts resolve doubtful or marginal
cases in favor of the preference for warrants, State v. Tacker,
241 Or 597, 602, 407 P2d 851 (1965), in order to encourage
the use of warrants by the police before they act.

That preference has its origins in the constitutional
principle of separation of powers and recognizes that a search
pursuant to a warrant involves both the executive branch,
which conducts the search, and the judicial branch, which
decides whether to issue the warrant. By contrast, a war-
rantless search is a unilateral act of the executive branch

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

unchecked by judicial oversight. Under Article I, section 9,
the rule in Oregon is clear: "warrantless * * * searches ** *
are per se unreasonable unless falling within one of the few
'specifically established and well-delineated exceptions' to
the warrant requirement." State v. Davis, 295 Or 227, 237,
666 P2d 802 (1983) (quoting Katz v. United States, 389 US
347, 357, 88 S Ct 507, 19 L Ed 2d 576 (1967)). Article I, sec-
tion 9, requires that a police officer have probable cause and
either a valid warrant or a justification under an exception to
the warrant requirement, to conduct a lawful search. Those
justifications cannot be merely a concern that it would be
inconvenient to obtain a warrant or that, as the majority con-
cludes here, so little privacy remains after a third-party
search that no constitutional protection is justified.

The majority emphasizes the fact that the employees
told the police "exactly what was on [the videotape.]" 347 Or
at 499. The fact that defendant's employees told the police
what they saw when they played the videocassette may have
provided probable cause to believe, as the employees claimed,
that the videotape contained images of women using the rest-
room. However, the employees' statements did not physically
place the images in the plain view of the police such that they
could observe those images without using an electronic
device to reveal them, thereby conducting a search. Because
the viewing of the images on the videotape was a search, the
police were required to obtain a warrant or establish an
exception to the warrant requirement before conducting that
search.

The majority also is confused regarding the extent of
the warrant issued in State v. Munro, 339 Or 545, 124 P3d
1221 (2005). The majority states that the warrant authorized
only the seizure of the videocassette at issue in that case, but
not the viewing of it, and that this court thus determined that
the right to view the images on the videotape "inhered" in its
lawful seizure. 347 Or at 501. That is a not a complete read-
ing of the affidavit in support of the search warrant and the
warrant that was issued in that case. The affidavit provided,
in part:

" 'Persons who possess and distribute marijuana and
other controlled substances often keep records pertaining to

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

their illegal narcotic activities. These include records of
marijuana values they have packaged and sold, lists of cus-
tomers and associates, and records of drug payments and
debts. Such records are commonly kept at the premises
where the controlled substances are processed and sold, are
secured in safes, lockboxes, computers, or other secure or
concealed locations secreted at the location. This facilitates
easy access by the seller while affording protection from
unwanted discovery.

" "These records include written and electronically
stored business documents, ledgers, address books, com-
puter files and software, telephone toll records, notes, mes-
sages, photographs and video films, and encrypted memo-
randa indicating drug debts/sales.'"

Munro, 339 Or at 547-48 n 3 (first emphasis added, second
emphasis in original). In turn, the warrant provided, in part:

" 'You are hereby commanded to search:

***** * *

" 'For the following described property:

" '[I]tems of identification such as utility bills, mail
addressed to the occupants, rent receipts and property own-
ership papers, financial and personal paper; business
records such as ledgers, address books, bank records, travel
records, computers and their files and related software,
telephone toll records; phone recorders, cellular telephones,
electronic pagers, caller identification devices, notes, mes-
sages, encrypted memoranda, records of drug sales and
debts, photographs and videotapes[.]'"

Id. at 548 n 4 (emphasis omitted). The warrant in Munro
explicitly provided the authority to view the images on the
videotape. The warrant did not, as the majority asserts, pro-
vide explicit authority to seize and only implied authority to
search. The court explained that

"[o]nce 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

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

remaining privacy interest in its contents that he could
assert."

339 Or at 552 (emphasis added). The conclusion that the
majority draws here-that lawful possession of an effect by
the police thereby extinguishes a person's privacy rights in
the contents of that effect-is not supported by this court's
decision in Munro. Moreover, that conclusion contradicts
other pertinent Article I, section 9, case law from this court.

For example, in State v. Keller, 265 Or 622, 510 P2d
568 (1973), defendant was stopped in her car and arrested.
During an inventory of the contents of her car, the police
noted an open cosmetic case on the floor in front of the
driver's seat, and its contents, syringes and needles, were in
plain view. They also observed a fishing tackle box, on the
floor of the back seat, held closed by a "red wire tied around
it." Id. at 624. The police removed the wire and opened the
tackle box to inventory its contents and observed five vials of
liquid, litmus paper, and razor blades. The liquid later was
determined to be a controlled substance, which was the basis
of the indictment against defendant. The arresting officer
testified that when the box was opened there was the odor of
methamphetamine, which he had smelled before in a "nar-
cotics lab." Id. This court affirmed the trial court's ruling that
the evidence should be suppressed, stating that

"[w]ith no exigent circumstances present [the police] could
have easily inventoried 'one fishing tackle box,' along with
other items in plain view. If they had probable cause to
believe a crime was being committed, after seeing the syrin-
ges and needles in the open cosmetic case, they could have
sought a search warrant from a disinterested magistrate."

Id. at 625-26.

Here, as in Keller, the fact that the police had posses-
sion of the videocassette did not automatically result in
defendant's loss of his privacy interest in the images on the
videotape such that the warrant requirement could be dis-
pensed with.

As noted above, this court has concluded numerous
times that warrantless searches, unless falling within a few,
well-defined exceptions, are per se unreasonable. Davis, 295
Or at 237; see also State v. Kosta, 304 Or 549, 553, 748 P2d 72
(1987) ("As this court repeatedly has stated, if an instruction

<!-- PageBreak -->

<!-- PageHeader="Cite as 347 Or 487 (2009)" -->

is a 'search' or a 'seizure,' it requires 'probable cause and a
search warrant or separate justification under one of the few,
carefully circumscribed exceptions to the warrant require-
ment' of Article I, section 9, of the Oregon Constitution.").
Here, defendant had manifested his intent to keep the
images on the videotape private by instructing his employees
that they were forbidden from watching the television. More-
over, defendant's loss of possession was not because he had
somehow abandoned the videocassette. Instead, the video-
cassette was taken from his possession without his permis-
sion. Defendant's conduct demonstrated his intent to exercise
his privacy interest in the videotape, even if, after its theft by
his employees, he lost his possessory interest in the videocas-
sette. See State v. Cook, 332 Or 601, 607-08, 34 P3d 156
(2001) ("[B]ecause Article I, section 9, protects both posses-
sory and privacy interests in effects, property law concepts of
ownership and possession are relevant, though not always
conclusive, in the factual and legal determination whether a
defendant relinquished all constitutionally protected inter-
ests in an article of property."). The majority maintains that,
by taking the videocassette out of defendant's restaurant
without permission, the employees did not commit "theft."
Given that defendant does not challenge the subsequent sei-
zure of the videotape or the possession of it by the police, it is
unclear why the majority feels this is a significant point, and
in my view it is a distinction without a difference. It is undis-
puted that the employees did not have permission to use the
television in the kitchen and did not have permission to
remove the videocassette from the premises. That is enough
to demonstrate defendant's intent to keep the images on the
videotape private.

Knowing that the videocassette was given to them
by defendant's employees, and not by defendant himself, the
officers could not have reasonably concluded that defendant
intended to relinquish his privacy interests in the images on
the videotape, nor should this court. See id. at 608 (question
to be resolved in such cases is whether a defendant's state-
ments and conduct demonstrated that he relinquished all
constitutionally protected interests in articles of property, so
that both warrantless seizure of property and resultant
search by police were reasonable under Article I, section 9).

<!-- PageBreak -->

<!-- PageHeader="State v. Luman" -->

Because the images on the videotape were not visible, defen-
dant retained a privacy interest in the images on the video-
tape even though he had lost his possessory interest when
Jones gave the videocassette to the police. In the absence of
some exception to the warrant requirement or an exigency
that would require the police to proceed quickly to preserve
evidence, the police were required to secure a warrant to view
the images on the videotape. In my view, the warrant
requirement under Article I, section 9, is not a mere formality
that can be so casually cast aside, as the majority does here.

In light of the foregoing, I would conclude that the
officers conducted a warrantless search when they viewed
the images on the "master" videotape, to which no exception
to the warrant requirement applied. Thus, I would hold that
the trial court erred in declining to suppress the images on
that videotape. I respectfully dissent.

Durham and Walters, JJ., join in this opinion.