State v. Davis

¶1Defendant appeals a judgment of conviction for driving while suspended (DWS), ORS 811.182.1 He was arrested after a Jackson County Sheriffs deputy randomly accessed defendant’s driving records after defendant drove by the deputy. Defendant’s driving records revealed that his license had been suspended. The deputy stopped defendant solely because his license had been suspended. Defendant assigns error to the trial court’s denial of his motion to suppress all evidence that the deputy discovered during his random investigation. Defendant argues that the deputy’s investigation constituted an unreasonable search in violation of Article I, section 9, of the Oregon Constitution and that the deputy’s investigation imposed an unequal and standardless burden on defendant in contravention of Article I, section 20, of the Oregon Constitution. We review the trial court’s legal conclusions under Article I, sections 9 and 20, for errors of law, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), and affirm.

¶2On review for errors of law, “[a] trial court’s findings of historical fact are binding on appellate courts if there is constitutionally sufficient evidence in the record to support those findings.” Id.We state the facts according to that standard. Two on-duty Jackson County Sheriffs deputies were driving in a patrol car. Jackson County Sheriffs deputies regularly run registration plates of vehicles that they encounter. They do that for two reasons. First, they do so during traffic stops to identify the stopped individuals, to determine whether the stopped vehicles are stolen, and to assess the validity of the vehicles’ registration plates — that is, whether the plates have been switched from other vehicles or are current. Second, they also routinely randomly run registration plates that they observe in public to determine whether vehicles have been stolen or whether the registration plates are valid. Although there was no written policy mandating that the deputies randomly run registration plates on vehicles they encountered, the deputies are trained to run registration plates for the described reasons.

¶3*354As the two deputies were on patrol, they drove past defendant and observed his vehicle, registration plate, and face. In accordance with his training, the deputy in the passenger seat randomly ran the registration plate on the vehicle that defendant was driving.2 The deputy’s decision was not based on defendant’s appearance or a belief that defendant had committed a traffic infraction. Instead, the trial court found that the deputy’s decision to run defendant’s plate was purely random in the sense that the deputy could have run anyone’s license plate. It observed that, consistently with the deputy’s practice, “we are all subject to the same possibility, which is having our license plate run at such time as we choose to drive down the street.” The deputy’s random investigation revealed that the Oregon Department of Transportation, Driver and Motor Vehicles Division (DMV) had suspended the vehicle owner’s driving privileges. Then, according to the deputy’s routine practice, he accessed a Jackson County booking photo of the vehicle’s owner to determine whether the vehicle’s owner was the driver whom the deputy had observed. The photo matched the driver’s appearance. After concluding that defendant was driving while suspended, the deputies stopped the vehicle, confirmed that defendant was driving while his license was suspended, and then arrested him.

¶4Before trial, defendant moved to suppress all evidence derived from the deputy’s random investigation. That evidence, defendant argued, was obtained through an unreasonable search under Article I, section 9, and was also an unlawful exercise of police discretion under Article I, section 20. The trial court denied defendant’s motion, and defendant filed a conditional guilty plea to DWS, reserving his right to appeal the court’s denial of his motion to suppress evidence. On appeal, defendant renews the arguments that he made in support of his motion to suppress.

¶5We first consider defendant’s argument regarding a warrantless search. Article I, section 9, provides, in pertinent part, “No law shall violate the right of the people to be secure *355in their persons, houses, papers, and effects, against unreasonable search, or seizure.” A police officer conducts an Article I, section 9, search by intruding upon a person’s privacy interest. “A privacy interest … is an interest in freedom from particular forms of scrutiny.” State v. Campbell, 306 Or 157, 170, 759 P2d 1040 (1988). If the government conduct did not invade a privacy interest, then no search occurred; Article I, section 9, is not implicated, and the inquiry is concluded. State v. Meredith, 337 Or 299, 303, 96 P3d 342 (2004). Whether government conduct intrudes upon a person’s cognizable privacy is a question of law. State v. Johnson, 340 Or 319, 336, 131 P3d 173, cert den, 549 US 1079 (2006). Accordingly, we first consider whether defendant has a protected privacy interest in his driving records.

¶6Defendant identifies two potential privacy interests. First, he argues that, although his registration plate was in plain view as he drove on public streets, his driving records were not. Defendant concludes that he has a privacy interest in his driving records because they are not generally available to the public. Second, defendant argues that ORS 802.177 creates a privacy interest by prohibiting the Department of Transportation (DOT) from disclosing personal information contained in driving records.

¶7Defendant’s first argument relies on Campbell. In that case, police officers attached a transmitter to the defendant’s vehicle and then pervasively and constantly monitored the defendant’s movements. 306 Or at 160-61. That use of a transmitter implicated the defendant’s privacy interest in moving about free from scrutiny, because “the police monitoring of the transmitter allowed the government to observe a range of conduct that normally would have been inaccessible to the general public or to government officials.” Meredith, 337 Or at 307 (summarizing Campbell). Defendant argues that, as in Campbell, “instantaneous and standardless access to the electronic DMV database creates a situation that exposed information about defendant that is otherwise not observable by either an officer or by members of the general public and is, thus, private.”

¶8Defendant’s reliance on Campbellis misplaced. The officer’s scrutiny of defendant’s driving records is not *356comparable to the pervasive and constant surveillance that occurred in Campbell. See 306 Or at 172. To the contrary, here, the deputy’s investigation was neither pervasive nor constant. The deputy’s random access to defendant’s driving records was prompted by the deputy’s contemporaneous observation of defendant, and was limited to the information contained in defendant’s DMV driving records.

¶9Johnson further undermines defendant’s argument. In Johnson, the state subpoenaed the defendant’s bank, medical, cellular telephone, employment, and other similar records. The defendant objected to evidence that he drove a specific car. The Supreme Court rejected “any claim that [the] defendant might have a cognizable privacy interest in the license plates on his car, photographs taken of him in a public place, the address that he provided to his employer for tax and payroll purposes, or the telephone usage records of his employer.” 340 Or at 335-36. It then considered the defendant’s argument that he had a privacy interest in his cellular telephone calls. The court recognized that the defendant had a privacy interest in the content of the phone calls, but rejected the defendant’s assertion that he had a privacy interest in the records of those calls. It reasoned, “The cellular telephone provider generated and maintained those records … for the provider’s own, separate, and legitimate business purposes.” Id. at 336.

¶10Here, defendant’s driver’s license and car registration records were created by the state for its own purposes, just as in Johnson, where the cellular telephone provider’s records were created for the provider’s own purposes. The state has a substantial administrative interest in confirming that only licensed persons drive properly registered vehicles on public roads. ORS 803.300 requires vehicles to be registered. ORS 803.540 requires vehicles to display registration plates, in part, as confirmation that the vehicles are registered. ORS 803.550 prohibits obscuring registration plates. The state can access a person’s driving records by observing a driver’s registration plate that is displayed in plain view and looking up that registration plate number in the state’s own records. See Higgins v. DMV, 335 Or 481, 487, 72 P3d 628 (2003) (“The characters that the state assigns to a vehicle’s registration plates facilitate the prompt identification of the *357vehicle for law enforcement purposes.”). Indeed, the state has created an electronic system that allows authorized agencies and government entities to access the driving records of individuals and vehicles. See ORS 181.730 (establishing the Law Enforcement Data System). Notwithstanding our conclusion that defendant does not have an inherent privacy interest in his driving records, we next consider whether the state granted defendant a privacy interest in his driving records.

¶11Defendant argues that ORS 802.177 creates a privacy interest in the personal information in his driving record by generally prohibiting the DMV, which is a division of the DOT, from disclosing personal information contained in those records. We agree with defendant that ORS 802.177 limits the disclosure of a person’s personal information; however, that limitation extends no farther than the statute itself provides. State v. Makuch/Riesterer, 340 Or 658, 671, 136 P3d 658 (2006). The limitation does not extend as far as defendant contends, because defendant fails to persuasively explain why the exceptions to ORS 802.179, which are expressly incorporated by ORS 802.177, do not apply to this case.

¶12We construe the statute by considering its text in context along with any legislative history offered by the parties, if helpful.3State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). ORS 802.177 generally prohibits the DMV from disclosing personal information contained in driving records to any person. It provides:

“Except as otherwise provided in ORS 802.179, neither the Department of Transportation nor any officer, employee or contractor of the department may knowingly disclose or otherwise make available to any person personal information about an individual that is obtained by the department in connection with a motor vehicle record.”

¶13(Emphasis added.) An expressly incorporated exception to ORS 802.177, ORS 802.179(1) provides:

“The Department of Transportation, upon request or as required by law, shall disclose personal information from a *358motor vehicle record to a government agency for use in carrying out its governmental functions.”

¶14Defendant argues that the exemption under ORS 802.179(1) applies only to a government entity’s lawful function. Defendant concludes that the DMV “was not authorized to disclose [his] personal information in the course of satisfying the [deputy’s] mere whims or curiosity.” That argument is not persuasive. The deputy was on duty when he accessed defendant’s driving records. One of the Jackson County Sheriffs duties is to arrest “all persons guilty of public offenses,” ORS 206.010, and a sheriff is permitted to delegate his duties and authority to deputies, ORS 204.635(3). The deputy accessed defendant’s driving records consistently with his governmental function of investigating to detect illegal activity. Because the exemption found in ORS 802.179(1) applies, defendant has no cognizable privacy interest in DMV records concerning him or vehicles registered to him under ORS 802.177, at least as to a law enforcement officer’s investigation pursuant to the officer’s duties. In conclusion, the deputy did not invade defendant’s privacy interest. Therefore, there was no search under Article I, section 9.

¶15We next consider whether the trial court erred in rejecting defendant’s contention that the deputy’s investigation of his driving records violated Article I, section 20. According to defendant, the deputy’s action imposed an unequal burden on him because it “not only undercut defendant’s ability to move freely through the public sphere without being subject to substantial scrutiny, but it also led to a criminal prosecution, one of the most severe burdens the government may impose on a citizen.”

¶16Article I, section 20, provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” It proscribes two types of unequal treatment: “first, to any citizen, and second, to any class of citizens. In other words, it may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs.” State v. Clark, 291 Or 231, 237, 630 P2d 810 (1981). It “also was early established *359that the guarantee reaches forbidden inequality in the administration of laws under delegated authority as well as in legislative enactments … Id. at 239.

¶17 Thus, “[o]ne branch of Article I, section 20” — the branch that defendant invokes in this case — calls for an “analysis whether the government has made or applied a law so as to grant or deny privileges or immunities to an individual person without legitimate reasons related to that person’s individual situation.” Id.Said another way, the state must not distribute “a benefit or burden in a haphazard, random, standardless, ad hoc fashion — that is, ‘without any coherent, systematic policy.’ ” State v. Walton, 215 Or App 628, 633-34, 170 P3d 1122 (2007), rev den, 344 Or 671 (2008) (quoting State v. Freeland, 295 Or 367, 375, 667 P2d 509 (1983)).

¶18That said, “[a] complaint of unequal treatment … cannot rest simply on the exercise of discretion.” Rather, the defendant has the burden of proving that the state administered laws “ ‘haphazardly by ‘ad hoc decisions’ that … do not ‘uniformly rest on meaningful criteria that indeed make the privileges [or immunities] … equally available to all persons similarly situated, or, in the constitutional phrase, ‘upon the same terms.’ ” Freeland, 295 Or at 377 (quoting State v. Edmonson, 291 Or 251, 254, 630 P2d 822 (1981)).

¶19During the hearing on the motion to suppress, the deputy who ran defendant’s plates testified regarding bis practice of running plates. The deputy testified that it is “an everyday activity’ of his,

“directing traffic stops, running plates — that I run plates routinely to know the individual that I am dealing with, to know whether it is a vehicle that has been stolen, plates have been switched, … and it is a good officer safety reason so that if I conduct, or before I conduct a traffic stop in knowing who I am dealing with before I get out of my vehicle.”

¶20Later, the deputy explained that he ran defendant’s plates without any suspicion of criminal activity, and that he “randomly run[s] plates to make sure that vehicles aren’t stolen.” That practice is “just normal course,” a “normal activity.”

¶21*360On cross-examination, the deputy acknowledged that he was not aware of a “policy that creates standards for how you are going to conduct these random license plate searches,” and that he was not aware of a “spoken custom or just informal policy that folks talk about in the Department.” However, he testified that he is, in fact, trained to run plates.

¶22Based on the deputy’s testimony, defendant and the dissent conclude that the decision to run defendant’s plates was essentially made ad hoc, unconstrained by any legitimate standards or criteria. The deputy’s testimony could be read that way — as though he were making the decision to run the plates without any standard in mind. But that is not the only plausible reading of the deputy’s testimony, nor — given our standard of review — is it the one we credit. See, e.g., State v. Khoshnaw, 234 Or App 24, 26, 227 P3d 1188 (2010) (where trial court denies a motion to suppress, we “review the record, and all inferences that it will support, in the light most favorable to the trial court’s findings”).

¶23Though his testimony is not a model of clarity, the deputy explained that he runs license plates “randomly” in the ordinary course of his patrol duties, pursuant to his training. He further testified that, in this particular circumstance, he ran the plates after he saw “the license plate from the front of the truck, and … observed the face of the individual driving the truck.” He then ran the plate “just to know who owned the vehicle that I am dealing with,” to make sure that the vehicle was not stolen. The decision to run the plates, the deputy testified, “had nothing to do with the individual’s looks” but was instead simply “a normal activity.”

¶24Viewed in the light most consistent with the trial court’s ruling,4 the deputy’s testimony suggests that the decision to run the plates was not a haphazard or ad hoc decision at all. Instead, it was the result of a confluence of training, time, and opportunity: the deputy was trained to run plates to investigate for stolen vehicles; based on the position of defendant’s vehicle, the deputy was able to see defendant’s *361front license plate and was able to make out defendant’s physical characteristics, which would have allowed him to compare the driver to the registered owner. Under those circumstances, the result was that defendant’s license plates were run as part of the deputy’s normal activity of investigating for stolen vehicles. In the course of that activity, any driver who happened to be coming out of the parking lot at that moment would have been subject to the same scrutiny. There was nothing arbitrary or whimsical about the deputy’s decision to run defendant’s license plates; rather, that decision was “random” — in the deputy’s words — only in the sense that, because of the juxtaposition of time and place, the plates that were run were defendant’s, and not some other citizen’s. So understood, we cannot conclude that defendant was denied any privilege or immunity on the same terms as other citizens — the benchmark of Article I, section 20. See Clark, 291 Or at 246 (“We do not believe equal protection goes so far as to require previously stated standards as long as no discriminatory practice or illegitimate motive is shown and the use of discretion has a defensible explanation.”).

¶25Given our view of the record, we need not address some of the more provocative issues raised in the dissent.5 We simply note that Article I, section 20, has never been applied to require police officers to articulate and adhere to criteria for every discretionary patrol activity that might occur in the ordinary course of a day. To extend Freelandin that way— that is, to require officers to justify decisions such as stopping one speeding car as opposed to another — would represent a quantum leap from where our Article I, section 20, jurisprudence has gone before.

¶26Affirmed.

¶32concurring.

¶33I concur with the majority’s conclusion that the ad hoc investigation of the license registration of a vehicle *362driven by defendant did not violate Article I, section 9, of the Oregon Constitution. I also agree that the investigation did not deny defendant an official privilege or immunity made available to other citizens of this state as proscribed by Article I, section 20. That provision provides that “[n]o law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.” (Emphasis added.) This case does not involve a law that classifies privileges in impermissible ways (“granting to any … class of citizens privileges [ ] or immunities”) or that affects an individual citizen (“granting to any citizen … privileges[ ] or immunities”) by a delegation of authority to a government agent to offer or restrict an official privilege or immunity that is available to that person. Under our case law, those are the types of laws that are regulated by Article I, section 20. The action of the police officer here was not taken under a law that either directly or indirectly classifies license check inquiries or creates privileges or immunities for persons affected by those inquiries. Thus, Article I, section 20, is immaterial to the outcome of this case.

¶34The guarantee under Article I, section 20, “reaches forbidden inequality in the administration of laws under delegated authority as well as in legislative enactments.” State v. Clark, 291 Or 231, 239, 630 P2d 810, cert den, 454 US 1084 (1981). That delegated authority could be conferred by different types of laws. For example, the legislature could confer authority on an agent to grant or deny benefits or permissions. Such an enactment violates Article I, section 20, when it empowers the agent to confer privileges or immunities that the legislature itself could not confer directly. See White v. Holman, 44 Or 180, 74 P 933 (1904) (statute violates Article I, section 20, when it authorized a board to grant an exclusive privilege to operate a sailors’ boarding house).

¶35In such a case, the law creates the privilege or immunity (e.g., a license, permit, or legal advantage) and directs the agent to allocate or determine that advantage (e.g., grant or deny the license under particular circumstances). The statutes are replete with laws that create privileges or immunities by directing official action to allow or limit those privileges. For example, professional licensing requirements and *363oversight statutes, local government ordinances to allow zoning variances, and state regulations allowing water appropriations are all laws that create a legal privilege by directing actions by a governmental agent to allow, deny, or limit that entitlement. Those types of laws fit squarely within the scope of Article I, section 20, because they directly delegate authority to grant a privilege. Laws involving the specific authority to create a benefit are tested under Article I, section 20, for whether they permit outcomes that violate the constitutional command by, for example, improperly allocating a privilege or immunity or creating a monopoly.

¶36In other cases, a law separately creates the benefit, advantage, or right that is administered under more broadly delegated authority from the legislature. The contemporary decisions on citizen rights under Article I, section 20, involve this type of benefit-creating law that is administered by an official under that official’s general legal authority. See City of Salem v. Bruner, 299 Or 262, 702 P2d 70 (1985) (administration by police officer of statutes creating different appeal rights under local ordinances defining the authority of a police officer); State v. Freeland, 295 Or 367, 667 P2d 509 (1983), and Clark, 291 Or 231 (administration by district attorney of dual charging system created by statute and constitutional provision under general state statutes defining the authority of a district attorney); State v. Walton, 215 Or App 628, 170 P3d 1122 (2007), rev den, 344 Or 671 (2008) (administration by prosecutor of statutes creating different sanctions for conduct by probationer under state statutes defining the authority of a district attorney).1

¶37In this case, the deputy sheriff exercised authority conferred by statute. See ORS 206.010 (setting out general duties of a sheriff, including authority to “[a]rrest … all persons guilty of public offenses”); ORS 204.635(3) (delegating authority to deputy sheriff to “perform any act or duty *364that the principal has”). Those statutes did not specifically authorize the deputy to establish the purported privilege or immunity at stake in this case. The question becomes whether some other law did.

¶38The resulting Article I, section 20, inquiry, as framed by Bruner, is whether “a person is denied some advantage to which he or she would be entitled but for a choice made by a governmental authority.” 299 Or at 268-69 (emphasis added). An entitlement is necessarily legal in character; otherwise, the claim is unenforceable and without legal status. A privilege or immunity, in this entitlement sense, is an advantage that is created or embellished by a constitutional or statutory policy. Cf. id. at 268 (“[T]he fact that two processes exist by which one person may enjoy advantages not available to another is precisely what triggers the Article I, section 20, concerns we addressed in Freeland”).

¶39Thus, I interpret the Clark line of cases to require official consistency when a government official is tasked by law to create or allocate a specific legal right or is authorized by law to administer a privilege or immunity created by a separate law. Where I part company with the dissent is in its assumption that a citizen enjoys a privilege or immunity, in this constitutional sense, to be free of any bad consequence of official action. Under that logic, any arbitrary exercise of official discretion that produces some detriment to a defendant — such as a police officer’s decision to pursue one of two speeding cars — violates Article I, section 20.

¶40In my view, the reach of the provision is not that broad. Instead, a privilege or immunity under Article I, section 20, must be “granted” in the sense of achieving that status by legislative or constitutional enactment; it is only official action with respect to that type of privilege or immunity that is constrained by the provision.2 In this case, there is no law that creates or regulates a privilege or immunity to be free from license plate scrutiny.

¶41*365Thus, defendant does not point to any entitlement created by law that is given to others but not him. Indeed, both the majority and the dissent agree that no person has a legal entitlement under Article I, section 9, to be free from official scrutiny in these circumstances. It is difficult to conclude that defendant has a privilege to obtain what others lack.

¶42I concur in the decision for these separate reasons.