S055687, Opinion — State ex rel Dept. of Human Services v. W. P.

657
Argued and submitted September 18, 2008, decision of Court of Appeals and
judgment of circuit court affirmed February 5, 2009
In the Matter of W. L. P,
a Minor Child.
STATE ex rel
DEPARTMENT OF HUMAN SERVICES,
Respondent on Review,
v.
W. P.,
Petitioner on Review.
(CC 07201J; CA A136056; SC S055687)
202P3d167
CJS, Infants § 58.
En Banc
On review from the Court of Appeals.*
* Appeal from Lane County Circuit Court, Eveleen Henry, Judge. 216 Or App
555, 173 P3d 841 (2007).

658 	State ex rel Dept. of Human Services v. W. P.
James A Palmer, Eugene, argued the cause and filed the
brief for petitioner on review.
Anna M. Joyce, Assistant Attorney General, argued the
cause and filed the brief for respondent on review. With her
on the brief were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor General.
BALMER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.

Cite as 345 Or 	659
BALMER,J.
We allowed review in this case to consider whether
the exclusionary rule, under which illegally obtained evi-
dence is excluded from certain court proceedings, applies to a
parent's motion to suppress evidence in a juvenile depend-
ency proceeding involving the parent's child. The juvenile
court determined that it does not and therefore denied a
motion to suppress filed by child's father. The court then
found child to be within the jurisdiction of the juvenile court
and placed child in the custody of the Department of Human
Services (DHS). Father appealed, arguing that the court had
erred in denying his motion to suppress. The Court of
Appeals affirmed without opinion. State ex rel Dept. 	of
Human Services v. W. P., 216 Or App 555, 173 P3d 841
(2007). We allowed father's petition for review and now
affirm.
In March 2007, in connection with a drug investiga-
tion involving mother, police executed a search warrant of
the home of mother, father, and child. During that search,
officers found drugs in the home and on father's person. Both
parents were arrested, and the police contacted DHS con-
cerning child. Due to both parents' arrests and the fact that
drugs were found within child's reach, DHS placed child in
foster care and filed a juvenile dependency petition, request-
ing 	that 	the 	court 	take 	jurisdiction 	over 	child. 	ORS
419B.100.1 Pursuant to that petition, the juvenile court con-
ducted a jurisdictional and dispositional hearing on May 22,
2007. 	See 	ORS 	419B.305(1) 	(requiring 	hearing 	within
60 days of filing of petition). At the hearing, father moved to
suppress evidence found in the search, claiming that the
search warrant was not supported by probable cause. The
juvenile court denied the motion because it concluded that
the exclusionary rule does not apply in juvenile dependency
1 ORS 419B.100(1) provides, in part:
"LT]he juvenile court has exclusive original jurisdiction in any case involving a
person who is under 18 years of age and:
''* * * * *
"(c) Whose condition or circumstances are such as to endanger the welfare
of the person or of others[.]"

660 	State ex rel Dept. of Human Services v. W. P.
proceedings. Because of that ruling, the court did not reach
the issue whether the search warrant was valid.
After the juvenile court denied father's motion to
suppress, father consented to proceed on stipulated facts, and
the juvenile court found child to be within the jurisdiction of
the court. 2 The court then proceeded to make a dispositional
determination. See ORS 419B.325 (after hearing required by
ORS 419B.305, court must enter order directing disposition
of case). The court made child a ward of the state, placed child
in the legal custody ofDHS, determined that it was in child's
best interest to be placed in foster care, and ordered father to
participate in various services, including drug treatment and
psychological evaluation. 3
Father appealed the juvenile court's judgment of
jurisdiction, arguing that the juvenile court had erred in
refusing to apply the exclusionary rule to juvenile depend-
ency cases. As noted, the Court of Appeals affirmed without
opinion, and father petitioned this court for review. We
allowed review to consider father's claim that, under Article I,
section 	9, 	of the 	Oregon 	Constitution 4 	or 	the 	Fourth
Amendment to the United States Constitution, 5 the juvenile
2 The court had entered a judgment of jurisdiction with respect to mother on
May 17, 2007. That judgment is not at issue here.
3 L'nder the statutory scheme for children who are determined to be within the
jurisdiction of the juvenile court, the court must hold an additional hearing at least
every 12 months that the child remains in substitute care, such as foster care. ORS
419B.470{6). If the juvenile court finds that the parent has made sufficient pro-
gress so that the child can be safely returned to his care, the court may order the
child returned to the parent's home. See ORS 419B.4 76(2), (4) {describing deter-
minations to be made and dispositional alternatives available t<1juvenile court fol-
lowing later hearings).
4 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 parti~,ularly describing the place to be searched, and the person or thing to
be seized.
" The Fourth Amendment to the United States Constitution 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."

Cite as 345 Or 657 	661
court should have granted his motion to suppress evidence
seized in the search.
We begin by describing the statutory basis for juve-
nile dependency proceedings, because those statutes estab-
lish specific rights and duties of father, child, and the state
that are central to our consideration of father's constitutional
claims. ORS 419B.090 creates the juvenile court and articu-
lates the state policies that proceedings in that court are
intended to advance. The state's policy "recognize[s] that chil-
dren are individuals who have legal rights" and that those
rights include "[p]ermanency with a safe family[,]" "[f]reedom
from physical, sexual or emotional abuse or exploitation[,]"
and "[f]reedom from substantial neglect of basic needs." ORS
419B.090(2)(a). The statute further states that parents "have
a duty to afford their children [those] rights" and to remove
"any impediment to [the parents'] ability to perform parental
duties that afford [those] rights to their children." ORS
419B.090(2)(b). Moreover, if a parent "fails to fulfill [those]
duties, the juvenile court may determine that it is in the best
interests of the child to remove the child from the parent
* * * either temporarily or permanently." Id. 	In juvenile
dependency proceedings, the court is to "guard the liberty
interest of parents protected by the Fourteenth Amendment
to the United States Constitution," including the right "to
direct the upbringing of their children," while also "pro-
tect[ing] 	the 	rights 	and 	interests 	of children[.]" 	ORS
419B.090(4).
In furtherance of those state goals, the juvenile
court "has exclusive original jurisdiction" in any case involv-
ing a child "[w]hose condition or circumstances are such
as 	to 	endanger 	the 	welfare 	of the 	[child] 	* * *." 	ORS
419B.100(1)(c). IfDHS determines that a child's condition or
circumstances endanger the welfare of the child, DHS files a
petition asking the juvenile court to take jurisdiction over the
child, and the court holds a jurisdictional hearing. ORS
419B.305 - 419B.310. If the court determines the child to be
within its jurisdiction, the court makes the child a ward of the
court. ORS 419B.328. The court then determines whether it
would be "in the best interest and welfare" of the child to be
placed under protective supervision, and, if it so determines,

662 	State ex rel Dept. of Human Services v. W. P.
the court may place the child with the parent (subject to court
and DHS supervision) or in some other setting, such as with
a relative or in foster care. ORS 419B.331 (describing protec-
tive supervision). As noted, if the juvenile court determines
that the child is within the jurisdiction of the court, the court
must conduct hearings at least every 12 months to review the
appropriate placement of the child. ORS 419B.470(6). Juve-
nile courts 	administering those 	statutes "act in parens
patriae, focusing on family unity and the best interests of the
child." State ex rel Juv. Dept. v. Geist, 310 Or 176, 189, 796
P2d 1193 (1990) (footnote omitted).
With that background, we turn to father's argument
that the evidence that he possessed drugs should have been
excluded from the juvenile court jurisdictional hearing. We
begin with father's state constitutional claims. See Sterling v.
Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (court analyzes
state claims before federal claims). As noted, the juvenile
court did not decide whether the evidence was obtained in
violation of father's constitutional rights, because it con-
cluded that, 	even if the 	evidence had 	been unlawfully
obtained, it should not be excluded. For purposes of this opin-
ion, therefore, we assume that the evidence was unlawfully
obtained. Oregon courts have consistently held that evidence
obtained from a person in violation of Article I, section 9, may
not be used against that person in a criminal proceeding. See,
e.g., State v. Davis, 295 Or 227, 666 P2d 802 (1983) (so hold-
ing). Indeed, the exclusionary rule is often described as "the
rule excluding [evidence] from criminal prosecutions," id. at
231 (emphasis added), and as protecting the "right not to be
prosecuted upon evidence [illegally] secured." Id. 	at 235
(emphasis added). The issue in this case is whether the rule
that this court has applied to motions to suppress by defen-
dants in criminal cases also should be applied to a motion to
suppress by a parent in a juvenile dependency proceeding. 6
In State Forester v. Umpqua River Nav., 258 Or 10, 26, 478 P2d 631 (1970),
this court declined to apply the exclusionary rule to civil proceedings. In that case,
however, this court did not separately analyze the principles underlying the federal
exclusionary rule based on the Fourth Amendment and those underlying the state
exclusionary rule based on Article I, section 9.

Cite as 345 Or 657 (2009) 	663
This court explained the analytical approach for
resolving that issue in State ex rel Juv. Dept. v. Rogers, 314
Or 114, 836 P2d 127 (1992). In Rogers, the issue was whether
the exclusionary rule should be applied in a probation revo-
cation hearing in a juvenile delinquency case. The juvenile's
probation had been revoked, in part, because he had unlaw-
fully possessed a gun, and he moved to suppress the gun,
arguing that it had been seized in violation of Article I, sec-
tion 9. Id. at 116. This court began by noting that, in earlier
decisions, the court had protected the individual's right to be
secure against unlawful search or seizure "through the sanc-
tion of suppression of evidence in criminal prosecutions." Id.
at 120 (emphasis added). It recognized, however, that crimi-
nal prosecutions are "not necessarily the only proceedings in
which the sanction of suppression of evidence is required to
vindicate an individual's Article I, section 9 rights[.]" Id.
Rather, if the individual's "liberty interest is sufficiently
analogous to the liberty interest at stake in traditional crim-
inal prosecutions that the reasons for the sanction of suppres-
sion of evidence are equally applicable," then the evidence
should be suppressed. Id. In Rogers, the juvenile was "at lib-
erty" before he was found to have violated his probation; after
the probation revocation, he was "in the custody of the state"
and had "lost his liberty" for reasons that were comparable to
those in a criminal proceeding. Id. For those reasons, this
court concluded that the juvenile's liberty interest in the pro-
bation revocation proceeding was "sufficiently analogous" to
a defendant's liberty interest that is at stake in a traditional
criminal prosecution and that the physical evidence at issue
therefore should have been suppressed. Id.
We turn to a consideration of the nature of father's
liberty interest in this juvenile dependency proceeding. Obvi-
ously, this is not a criminal proceeding. See Geist, 310 Or at
188 (holding that proceeding to terminate parental rights,
which is one possible outcome of a juvenile dependency pro-
ceeding, is not a criminal prosecution). Neither is it like the
probation revocation proceeding in Rogers, because father
does not face incarceration or similar criminal law sanctions
as a result of this proceeding. The proceeding does not involve
any effort by the state to punish the parent for wrongdoing.

664 	State ex rel 	of Human Services v. W. P.
Rather, in a juvenile dependency proceeding, the welfare of
the child is the court's primary consideration, and the state's
purpose in initiating such a proceeding is to intervene as nec-
essary to protect the child. See ORS 419B.100(1)(c) (child
found to be within jurisdiction of court if child's condition
or circumstances "endanger the welfare" of child); ORS
419B.331 (permitting court to place child under protective
supervision "[w ]hen the court determines it would be in the
best interest and welfare of a ward"); ORS 419B.476 (requir-
ing that court "consider the ward's health and safety the par-
amount concerns" at permanency hearing). Because this case
does not implicate father's liberty interest in remaining free
from state custody, Rogers does not require the court to
exclude the evidence based on father's motion, even if the evi-
dence was unlawfully seized.
Father argues that the juvenile dependency proceed-
ing interferes with his liberty interest in controlling the care
and custody of his child. See O'Donnell-Lamont and Lamont,
337 Or 86, 100, 91 P3d 721 (2004) (recognizing parents' inter-
est, protected by the Due Process Clause, in making decisions
concerning their children); ORS 419B.090(4) (parent has "lib-
erty interest" in "direct[ing] the upbringing" of a child). This
is a juvenile dependency proceeding in which the juvenile
court determined that child was within the jurisdiction of the
court. The court temporarily removed child from father's
home, but, as discussed above, child can be returned to
father's home if father complies with the juvenile court's
orders and participates in the services provided by DHS so as
to make it possible for child to safely return home. See ORS
419B.470; ORS 419B.476 (describing procedures and stan-
dards for juvenile court decisions regarding status of child
that is within the jurisdiction of the court).
Although any restriction by the state on father's con-
trol over the upbringing of child interferes with father's lib-
erty interest, the restriction at issue here-an order deter-
mining that child is within the jurisdiction of the juvenile
court-is temporary and conditional. In a criminal prosecu-
tion, the defendant himself or herself is subject to a final
adjudication that may result in incarceration and immediate
loss of physical liberty, possible criminal fines, and tempo-
rary or permanent restrictions on travel, association, and

Cite as 345 Or 657 (2009) 	665
behavior. The nature of the defendant's liberty interest at
stake in a criminal prosecution is such that, as this court
stated in Davis, the court will "deny[] the state the use of
[illegally seized] evidence * * * against the persons whose
rights were violated[.]" 295 Or at 237. But the interest at
stake in this juvenile dependency proceeding is qualitatively
different. The proceeding did not result in a final determina-
tion depriving father of a constitutionally protected liberty
interest, such as could result from other criminal or civil
proceedings.
Moreover, we do not consider a parent's interest in
controlling a child's upbringing in a vacuum. As the statutes
discussed above demonstrate, a child also has specific legal
rights and interests, and the state initiates juvenile depend-
ency proceedings to protect those rights. In exercising juris-
diction over a child, the juvenile court must "protect the
rights and interests" of the child, as well as the parent's inter-
est. ORS 419B.090(4). In contrast to a criminal proceeding,
where the principal interests at stake are those of the defen-
dant and the state, the critical interest in a juvenile depend-
ency proceeding is that of a different person, the child. See
ORS 419B.100(1)(c) (juvenile court has exclusive jurisdiction
when child's "condition or circumstances are such as to
endanger the welfare" of child). If the child is found to be
within the jurisdiction of the court, then court decisions as to
supervision and custody are made based on "the best interest
and welfare" of the child. ORS 419B.331. In our view, given
those distinctive aspects of a juvenile dependency proceed-
ing, father's interest here is not sufficiently analogous to the
interests involved in our earlier decisions to require the
exclusion of unlawfully seized evidence on father's motion.
Although father acknowledges that this court has
applied the exclusionary rule only in criminal cases and in
the analogous setting of a juvenile delinquency probation
revocation hearing, he argues that this court's statements
about the rule in earlier cases support his position. In partic-
ular, he points to Davis, where this court stated that it has
given effect to the prohibition on unlawful searches "by
restoring the parties to their position as if the state's officers
had remained within the limits of their authority." 295 Or at

666 	State ex rel Dept. of Human Services v. W. P.
237. Father argues that Davis demonstrates that the exclu-
sionary rule prevents the state from using any evidence
secured in violation of a person's rights against that person,
whether in a criminal or civil proceeding. He asserts that the
only way in which a court can "restor[e] the parties to their
position as ifthe state's officers had remained within the lim-
its of their authority" is to exclude the wrongfully obtained
evidence from this juvenile dependency proceeding.
Father's reliance on Davis is misplaced. First, Davis
did not purport to state a rule that would apply in every case.
Rather, Davis simply reviewed this court's earlier cases (and
some federal cases) discussing when the exclusionary rule
had and had not been applied, id. 	at 233-37, and then
attempted to summarize those holdings in the sentence that
father cited. However, every Oregon case that the court cited
involved the application of the exclusionary rule in a criminal
proceeding, and Davis itself was a criminal case. Thus, the
holding in Davis provides little guidance with respect to the
application of the exclusionary rule to other proceedings.
Second, a closer examination of the statement upon
which father relies shows that it does not support his position
here. The court stated in Davis that protections against ille-
gal searches should be "given effect" by "restoring the parties
to their position" as ifthe illegal search had not occurred. 295
Or at 237 (emphasis added). In Davis, as in other criminal
cases, the remedy of exclusion makes sense, because the per-
sons (or "parties") whose interests are involved in the crimi-
nal prosecution-the state and the defendant-are the same
persons who were involved in the illegal search. However, in
a juvenile dependency proceeding, as discussed in detail
above, the dispute involves not just the state and the person
whose Article I, section 9, rights were violated in the search
and who now seeks exclusion of the evidence. Rather, an
additional critical interest is involved: that of the child who is
the subject of the proceeding. The statutes make the child's
interests paramount on a sufficient showing of danger to the
child. Restoring the state and the parent who invokes the
exclusionary rule to their previous "positions" may vindicate
the privacy interest of the parent whose Article I, section 9,
rights were violated and prevent the state from making use

Cite as 345 Or 657 (2009) 	667
of illegally obtained evidence, but it would do so at the poten-
tial cost of failing to protect the interests of the vulnerable
subject in a dependency proceeding, viz., the child.
Father is correct that Article I, section 9, protects his
right to be "secure" against "unreasonable search, or sei-
zure[,]" and nothing in the constitutional text or in this
court's cases suggests that that right is only a rule of criminal
procedure. If the warrant here was not properly based on
probable cause, then father's rights under Article I, section 9,
were violated. However, that conclusion does not answer the
different question of whether the juvenile court must exclude
that 	evidence 	in 	this 	dependency 	proceeding based 	on
father's motion. As we have discussed above, the answer to
that question, applying the test that this court articulated in
Rogers, depends on the nature of father's liberty interest in
the juvenile court's determination that child is within the
jurisdiction of the court and whether that interest was "suf-
ficiently analogous to the liberty interest at stake in tradi-
tional criminal prosecutions that the reasons for the sanction
of suppression of evidence are equally applicable[.]" Rogers,
314 Or at 120. As noted in our earlier analysis, father's inter-
est in directing the upbringing of child free from the tempo-
rary conditions imposed by the jurisdictional order is not suf-
ficiently analogous to the liberties and rights that may be at
stake in other proceedings to require the exclusion from the
juvenile proceeding, based on father's objection, of evidence
unlawfully seized from him.
Having concluded that the Oregon Constitution does
not require exclusion of the evidence illegally seized from
father, we now turn to whether the Fourth Amendment
requires the exclusion of such evidence in a juvenile depend-
ency proceeding. The federal exclusionary rule is "a judicially
created remedy designed to safeguard Fourth Amendment
rights generally through its deterrent effect[.]" United States
v. Calandra, 414 US 338, 348, 94 S Ct 613, 38 L Ed 2d 561
(1974). Because of the remedial nature of the federal rule,
courts must "weigh the likely social benefits of excluding
unlawfully seized evidence against the likely costs" to deter-
mine whether it applies. INS v. Lopez-Mendoza, 468 US
1032, 1041, 104 S Ct 3479, 82 L Ed 2d 778 (1984). Using that

668 	State ex rel Dept. of Human Services v. W. P.
framework, the United States Supreme Court has held that
the exclusionary rule does not apply in most proceedings out-
side traditional criminal prosecutions. Pennsylvania Bd. of
Probation and Parole v. Scott, 524 US 357, 364, 118 S Ct
2014, 141 L Ed 2d 344 (1998) (parole revocation proceeding);
Lopez-Mendoza, 468 US at 1046 (civil deportation hearing);
United States u. Janis, 428 US 433, 454, 96 S Ct 3021, 49
L Ed 2d 1046 (1976) (civil tax proceeding); Calandra, 414 US
at 351-52 (grand jury proceeding). But see Plymouth Sedan u.
Pennsylvania, 380 US 693, 700-02, 85 S Ct 1246, 14 L Ed 2d
170 (1965) (exclusionary rule applies in forfeiture proceed-
ings due to "quasi-criminal" nature of such proceedings).
In 	determining 	the 	likely 	social 	benefits, 	the
Supreme Court has stated that "the 'prime purpose' of the
[exclusionary] rule, if not the sole one, 'is to deter future
unlawful police conduct.'" Janis, 428 US at 446 (quoting
Calandra, 414 US at 34 7). For example, in Janis, the govern-
ment attempted to use evidence seized by local law enforce-
ment in a federal civil tax proceeding. The Court noted that
the improperly seized evidence would be excluded in both a
state and a federal criminal trial, so "the local law enforce-
ment official [wa]s already 'punished' * * *.'' 428 US at 448.
Either the exclusion of the evidence in the criminal cases
would sufficiently deter law enforcement from violating
Fourth Amendment rights, in which case excluding the evi-
dence from civil cases would have only a marginal effect, or
law enforcement would not be deterred by exclusion, in which
case the exclusionary rule is not a useful deterrent and
should not be used at all. Id. at 453-54. Thus, the Court held
that the exclusionary rule did not apply in a civil tax proceed-
ing. Similarly, the search here was conducted by local law
enforcement officials investigating potential criminal activ-
ity. If it was improperly seized, the evidence will be excluded
in any criminal proceedings against father. As in Janis,
applying the exclusionary rule to the juvenile dependency
proceeding would provide little, if any, additional deterrence.
In contrast, the likely costs of applying the exclusion-
ary rule to juvenile dependency proceedings are great. In any
proceeding, the cost of the exclusionary rule includes "the
loss of often probative evidence and all of the secondary costs

Cite as 345 Or 657 	669
that flow from the less accurate or more cumbersome adjudi-
cation that therefore occurs." Lopez-Mendoza, 468 US at
1041. In a juvenile dependency proceeding, those "secondary
costs" include the likelihood that the state will be unable to
respond effectively to threats to a child's safety. In cases
where illegally seized evidence is the state's only evidence of
neglect or abuse, the state would be required to leave the
child, potentially, in harm's way. Weighing the substantial
social cost of ignoring children's safety against the minimal
additional deterrence achieved by applying the exclusionary
rule to juvenile dependency proceedings, we conclude that
the federal exclusionary rule does not apply in juvenile
dependency proceedings.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.