State v. Goldberg

                                       660

       Argued and submitted January 14, 2020, reversed and remanded
                              March 10, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                RACHAEL PATRICIA GOLDBERG,
                     Defendant-Appellant.
                   Lane County Circuit Court
                     17CR69845; A167666
                                   

    Defendant appeals from his sole judgment of conviction of one count of failure
to perform the duties of a driver when property is damaged, ORS 811.700. During
the investigation of a hit-and-run vehicle accident, an officer took a piece of broken car bumper from the accident scene and later entered defendant’s private
property, stood in the driveway where defendant’s car was parked, and compared
and photographed the piece to defendant’s bumper. Defendant assigns error to
the trial court’s denial of his motion to suppress the photograph on the theory
that the officer’s actions constituted a warrantless search. Defendant also argues
that visible scratch and scuff marks are insufficient to constitute “damage” for
purposes of ORS 811.700. Held: The trial court erred in denying defendant’s
motion to suppress. The officer’s actions in kneeling by the vehicle, holding up the
broken piece, and photographing it, exceeded the social norms that one reasonably expects of visitors and exceeded the scope of consent that a reasonable property owner holds out to those visitors seeking to make contact. It does not matter
that the officer did not physically touch the car. Regarding the issue of “damage,”
in the light most favorable to the state, the scuff and scratch marks on the vehicle
were sufficient for the trial court to deny the motion for judgment of acquittal.
    Reversed and remanded.



    En Banc
    Charles D. Carlson, Judge.
   Francis Gieringer argued the cause for appellant. On
the brief were Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, and Sara F. Werboff, Deputy Public
Defender, Office of Public Defense Services.
   Dashiell Farewell argued the cause for respondent. On
the brief were Ellen F. Rosenblum, Attorney General,
Benjamin Gutman, Solicitor General, and E. Nani Apo,
Assistant Attorney General.
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  Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,
Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers,
Mooney, and Kamins, Judges.
  JAMES, J.
  Reversed and remanded.
  James, J., filed the opinion of the court in which
Armstrong, Ortega, Lagesen, Tookey, DeHoog, Shorr, and
Aoyagi, JJ., joined.
    DeVore, J., concurred in part and dissented in part and
filed an opinion in which Egan, C. J., Powers, Mooney, and
Kamins, JJ., joined.
662                                        State v. Goldberg

        JAMES, J.
         In furtherance of his investigation of a hit and run
vehicle accident, an officer took a piece of broken car bumper
from the scene. He entered defendant’s private property,
stood in the driveway where defendant’s car was parked,
crouched down to hold the broken piece up to the vehicle like
a jigsaw puzzle piece, and took the following photograph:




         The state charged defendant with one count of failure to perform the duties of a driver when property is damaged, ORS 811.700. At trial, defendant argued that the officer’s actions constituted a warrantless search and moved to
suppress. The state argued that the officer’s location in the
driveway was consistent with a social visitor, and that by
virtue of the fact that the officer did not touch the car, his
actions were lawful.
         In considering the motion to suppress, the trial
court noted, “I don’t recall any testimony that there was
any touching. We’re talking about observations and utilizing some other part to compare.” Ultimately, although
recognizing this exact fact scenario was not addressed in
case law, and that “[w]e’re kind of on a cusp here,” the trial
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court denied the motion to suppress, relying on a distinction
between manipulation and observation:
   “It appears to me the officer, under Oregon case law, had a
   right to be in the front yard in that area, and these were
   mere—mere observations.
      “The fact that he had something in his possession from
   a victim doesn’t mean it’s a search of that item. It’s not a
   manipulation of the vehicle, holding it up to compare, I
   think, is part of the observation.”
Defendant was convicted of the sole charge, and now appeals,
raising two assignments of error.
         We selected this case for en banc consideration to
answer this question: Is the fact that an officer didn’t touch
or manipulate an object determinative as to whether his
actions, while being present on private property without a
warrant, constituted a search? The answer is no.
         As we explain, when an officer is present on private
property without a warrant, the touchstone of the inquiry
into whether the officer conducted a search is focused on the
reasonable scope of permission a landowner holds out to the
public for social entry, and the norms of behavior reasonably
expected of social visitors. When an officer exceeds the reasonable invitation to the public, either by being at a location
not reasonably related to social access, or by behaving in a
way contrary to the reasonably accepted norms of behavior
for a visitor to the property, a search has occurred. Here,
the officer’s actions exceeded those reasonably accorded
social visitors, and the trial court erred in denying defendant’s motion to suppress. As that error was not harmless,
we reverse and remand.
         “We review the trial court’s denial of the motion to
suppress for legal error.” State v. Miller, 

, 

 (2014). In reviewing a denial of a motion
to suppress, we are bound by the trial court’s findings of
historical fact that are supported by constitutionally sufficient evidence in the record. State v. Martinez, 

, 

 (2020), rev den, 

 (2021).
The facts pertinent to the issue on appeal are brief and
undisputed.
664                                          State v. Goldberg

          Daniel Gonzales, the complainant of the hit-andrun, was driving his truck to work on October 16, 2017, when
he felt a vehicle hit the rear of his truck. He saw a white car
speed off. He pulled over and inspected his truck, seeing
paint transfer marks on the rear passenger quarter panel
and tire. He also observed pieces in the road that appeared
to have come from the other vehicle, and he collected them
and placed them in the truck bed.
         Deputy Bryan Holiman went to look at the truck
and vehicle parts and photographed them. Based on an
internet search of the grill design and other pieces, the deputy believed that the car that struck Gonzales was a white
Chevrolet Impala made between 2006 and 2010.
         Two days later, Holiman received new information which led him to a friend of defendant’s, McLaughlin.
McLaughlin knew that defendant drove a white Impala and
he had given defendant a ride the day before. McLaughlin
told Holiman that the Impala had been in a “fender-bender.”
         Holiman knew defendant from other contacts and
knew that she drove a white Impala with Nevada license
plates. Holiman went to the address where he believed
defendant was staying and saw a white Impala with Nevada
plates parked in the driveway. He approached the Impala
and saw that it had front-end damage consistent with
the accident report. Holiman left to retrieve the vehicle
pieces from Gonzales and returned to defendant’s address.
He entered the driveway and compared the pieces to the
Impala, holding them up against the bumper to reveal that
the pieces fit perfectly. He took a photo of him holding the
broken piece against the bumper, which was admitted into
evidence at the trial. It is the deputy’s act of piecing the
bumper together and taking that photo that was the focus
of the suppression motion, and the subject of this appeal.
         Article I, section 9, of the Oregon Constitution guarantees that “[n]o law shall violate the right of the people to be
secure in their persons, houses, papers, and effects, against
unreasonable search, or seizure[.]” “[T]he privacy protected
by Article I, section 9, is not the privacy that one reasonably
expects but the privacy to which one has a right.” State v.
Campbell, 

, 

 (1988) (emphases
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in original). The rights afforded under Article I, section 9, are
at their apex in the home—the “quintessential domain protected by the constitutional guarantee against warrantless
searches.” State v. Louis, 

, 

 (1983).
         In considering whether a violation of Article I, section 9, has occurred, we ask whether the government’s conduct “would significantly impair an individual’s interest in
freedom from scrutiny, i.e., his privacy.” State v. Dixson/
Digby, 

, 

 (1988). “[T]he threshold question in any Article I, section 9, search analysis is
whether the police conduct at issue is sufficiently intrusive
to be classified as a search.” State v. Ainsworth, 

, 

 (1990) (citing Campbell, 

).
“One indication of whether a government action intrudes
on a person’s privacy right is whether a private individual
would offend social and legal norms of behavior by engaging
in the same kind of intrusion.” State v. Portrey, 

, 

 (1995).
         The protection of Article I, section 9, extends beyond
the home to include the curtilage. State v. Breshears/Oliver,

, 

 (1989). When considering a warrantless entry onto the curtilage of private property, an officer’s status as law enforcement affords him no
greater right to intrude than any other stranger. See State
v. Ohling, 

, 

, rev den, 

 (1984); see also State v. Russo, 

,

 (1984). If an officer’s presence on the property
is trespassory, it is an unconstitutional search. See State v.
Lee, 

, 

 (1927); Smith v. McDuffee,

, 

, 

 (1914); State v. Russo,

, 

 (1984); State v. Brown, 

, 

 (1969), rev den (1970).
         However, when considering the curtilage surrounding a home there exists an operative, but rebuttable,
presumption—that the landowner has impliedly consented
to visitors going to the front door of the house. See State v.
Ohling, 

, 

, rev den, 

 (1984). As we said in Ohling,
   “[g]oing to the front door and knocking was not a trespass.
   Drivers who run out of gas, Girl Scouts selling cookies, and
666                                               State v. Goldberg

      political candidates all go to front doors of residences on a
      more or less regular basis. Doing so is so common in this
      society that, unless there are posted warnings, a fence, a
      moat filled with crocodiles, or other evidence of a desire to
      exclude casual visitors, the person living in the house has
      impliedly consented to the intrusion.”

         The rebuttable presumption of implied consent to
approach the front door of the home is bounded by two considerations: location and behavior. An officer exceeds the
implied consent as to location when the officer deviates from
the path to the front door and explores other areas of the
curtilage where, according to social norms, visitors would
not have an implied invitation:
      “Going to the back of the house is a different matter. Such
      an action is both less common and less acceptable in our
      society. There is no implied consent for a stranger to do so.
      ‘[W]e do not place things of a private nature on our front
      porches that we may very well entrust to the seclusion of
      a backyard, patio or deck.’ State v. Corbett, 

, 

 (1973), rev den (1974).”
Id. at 253. (brackets in original). Those same social norms
constrain the behavior of an officer, even when he is present
in a permissible area of the curtilage. “An officer’s right to
go to the front door of a house is based on implied consent to
allow visitors to take reasonable steps to make contact with
the occupant.” State v. Gabbard, 

, 

 (1994).
          In State v. Portrey, police found a boot print at the
site of a burglary. Suspecting defendant’s involvement, officers went to his home to question him. 

,

 (1995). On the defendant’s front porch, the officers
observed a pair of boots sitting in a box. One of the officers
picked up the boots, turned them over, and looked at the
soles. The soles matched the boot print at the burglary and
police thereafter obtained a search warrant for the defendant’s home. 

.
        We held that the officer’s act of picking up and
looking at the soles of the boots was an unconstitutional
search. Our conclusion was grounded in the principle that
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the implied consent that allows for an officer to enter the
curtilage to approach a front door does not extend to conduct
beyond that which would reasonably be expected of someone
approaching the door:
   “[T]he intrusion to which an occupant impliedly consents
   is limited. One may expect that visitors will stand on the
   front porch for the purpose of engaging in conversation, but
   that does not mean that it is expected that visitors will
   pick up items on the front porch and examine what is not in
   view. By impliedly consenting to one form of intrusion, an
   occupant does not necessarily consent to being subjected to
   other forms of scrutiny as well.”
Id. at 465.
          In State v. Cardell, the Toledo Police Department
received an anonymous report that a car was “racing” in the
area. 

, 

 (2002). An officer
received a dispatch that the suspect car was a blue Pontiac
GTO. The officer saw the suspect vehicle in a driveway. As
the officer walked up the driveway to contact the homeowner, “he stopped and felt the rear tires to determine if
they were hot. In Gillespie’s opinion, the tires were hotter
than they would be due to normal driving and the slippage
of the tires on the road likely had caused the tires to become
that hot.” 

. We held that the officer’s actions constituted an unconstitutional search in violation of Article I,
section 9:
   “In walking past the car, Gillespie did nothing unlawful.
   Visitors, including the police, have implied consent to enter
   the driveways and front yards of homes, in the absence of
   some overt action by the residents to exclude them.
      “…
       “Whether officer Gillespie could touch the tires, however, is a distinct and different issue. The scope of a homeowner’s implied consent to approach the home is limited to
   those acts reasonably undertaken to contact the residents
   of the home; such consent does not extend, for instance, to
   an exploratory search of the curtilage.”

 at 108 (citing Ohling, 

, and State v.
Somflethi, 

, 

 (2000)).
668                                         State v. Goldberg

         Applying those principles here, to determine whether
the officer’s actions in this case constituted an unlawful
search, we consider whether the officer, either by location
or action, exceeded the reasonable scope of consent to entry
onto the property held out by the occupant. The parties do
not dispute that the officer, standing in the driveway, did
not exceed the scope of consent as to location. We agree.
As we said in Cardell, “[v]isitors, including the police, have
implied consent to enter the driveways and front yards of
homes.” Id. at 108. The question therefore distills down to
whether the officer’s actions here exceeded the scope of consent, as defined by the expected social norms of behaviors
for persons “to take reasonable steps to make contact with
the occupant.” Gabbard, 

. They did.
         It does not matter that the officer did not physically
touch the car, as was the trial court’s focus here. Hovering
one’s finger a centimeter above an object does not categorically transform an action from unlawful to lawful. That the
officer here may not have pieced the bumper together so the
pieces were actually touching (although the photos tend to
suggest that the pieces were touching) is not the appropriate focus. Neither Portrey nor Cardell sought to carve out
physical touching or manipulation as a dispositive factor.
The inquiry is broader—asking whether an officer’s actions
exceed those to which a reasonable property occupant
impliedly consents. As we said in Portrey, “[o]ne may expect
that visitors will stand on the front porch for the purpose of
engaging in conversation, but that does not mean that it is
expected that visitors will pick up items on the front porch
and examine what is not in view.” 

.
        In State v. Fortmeyer/Palmer, we held that,
   “[t]o find strangers, on their knees, attempting to peer
   through what appears to be a covered basement window,
   would be suspicious, uncommon, and unacceptable in our
   society.”

, 

 (2001) (citing Portrey, 

 (whether police engage in a search by
examining items not “entirely visible” depends, in part, on
“social and legal norms of behavior”) and State v. Larson,

, 

, rev den, 

 (1999)
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(“The presence of an individual, other than a resident or
guest, in the back area of an apartment building, peering up
at the second-floor windows, would offend social and legal
norms of behavior.”)).
          Similarly, the average home occupant would be reasonably concerned to find a stranger squatting down by the
front of their car, parked in their driveway, holding up an
object and photographing the vehicle. Rather than being the
normal social behavior one reasonably expects from a visitor, this is the type of behavior that is more likely to draw, at
a minimum, a shout of alarm and inquiry—“Hey! What are
you doing?”—if not a call to the police. The officer here stood
in no superior position to a stranger. Acts that would be seen
as intrusive and unacceptable by a nosy neighbor are no less
so when performed by law enforcement.
         The officer’s actions here exceeded the social norms
that one reasonably expects of visitors and exceeded the
scope of consent that a reasonable property owner holds out
to those visitors seeking to make contact. Those actions converted the officer’s presence into a trespass, which in turn
rendered them a search in violation of Article I, section 9.
Accordingly, the trial court erred in denying defendant’s
motion to suppress. The product of that search—the photographs taken—were relied upon by the state at trial. The
admission of those photographs was harmful to defendant,
and the state does not contend otherwise.1
         Finally, we address one remaining issue: whether
the trial court erred in denying defendant’s motion for judgment of acquittal on the count of failing to perform the
duties of a driver when property is damaged, ORS 811.700.
Defendant argues that visible scratch and scuff marks are
insufficient to constitute “damage” for purposes of the statute. We disagree.

    1
      In the trial court, the parties litigated whether defendant’s subsequent
statements to the officer—given the following day—derived from the violation
of defendant’s constitutional rights or whether the officer’s questions were based
entirely on what he knew before that point. Because it concluded that there was
no violation, the trial court did not reach the scope of suppression or resolve the
parties’ legal and factual disputes on that issue. On remand, the trial court can
consider the scope of suppression in light of our ruling.
670                                          State v. Goldberg

         First, we note that ORS 811.700 mandates that one
of the duties of a driver is to “[i]mmediately stop the driver’s
vehicle at the scene of the collision …” for, among other
purposes, to facilitate the exchange of information as to the
“insurance carrier covering the motor vehicle, the insurance
policy number of the insurance policy insuring the motor
vehicle and the phone number of the insurance carrier.” ORS
811.700(1)(a), (b). The exchange of insurance information,
for even the most minor of scratches, facilitates the filing of
claims and the general motor vehicle insurance scheme.
          Second, in State v. Jones, 

,

 (2019), in the context of ORS 164.354, we held
that the plain and ordinary meaning of the term “damage”
included physical harm or “losing completeness, efficiency,
or function.” We held that property “may be damaged even
if such loss of efficiency or function has no appreciable affect
on the economic value. Even objects with no economic value
at all can be damaged if the harm affects some other value—
like sentimental value.” 

 Defendant has not persuaded us
that ORS 811.700 requires a different common meaning of
damage than ORS 154.354. See also State v. Morales, 

, 

 (2021) (applying Jones in a related
context).
         Here, on this record, in the light most favorable to
the state, the scuff and scratch marks on the vehicle were
sufficient for the trial court to deny the motion for judgment
of acquittal.
        Reversed and remanded.
        DeVORE, J., concurring in part, dissenting in
part.
        The majority holds that a deputy conducts an
unlawful search in violation of Article I, section 9, of the
Oregon Constitution—after looking at a damaged car in
the home’s parking area where he has lawful permission
to be and after having spoken with the home’s residents—
when the deputy stoops to compare and photograph a trimfragment from the accident scene to the damaged car of the
hit-and-run driver. Although defendant, the car’s owner,
had not covered or hidden her car and although the home’s
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residents expressed no offense at the deputy’s interest in the
car when the deputy visited them repeatedly, the majority
opinion, preferring to rely upon an abstraction, determines
that our “social and legal norms of behavior” are offended
and, accordingly, so too our constitution.
         I respectfully disagree because the majority opinion retreats to an abstraction, determined later on appeal,
and departs from our line of more developed case law that,
until now, has provided officers and courts a bright line to
observe: That is, an officer exceeds a homeowner’s implied
consent to be present in the curtilage approaching a home
when the officer manipulates objects in a manner that
reveals information otherwise visually impossible to see.
See State v. Portrey, 

, 

 (1995)
(overturning boot); State v. Cardell, 

, 

 (2002) (feeling heat of tires).
         I do agree with the majority opinion on the first
assignment of error that the trial court properly rejected
defendant’s motion for judgment of acquittal, challenging
whether the victim’s truck sufficed as “damaged” for purposes of the hit-and-run statute, ORS 811.700 (2017).1 That
question is addressed, among other reasons, because it is
likely to arise again upon remand insofar as the evidence
to be excluded by the majority opinion is only that from the
deputy’s second visit at which the comparison photographs
were taken, not the earlier photographs of the damaged car
from the deputy’s first visit to the property.2

    1
       In relevant part, ORS 811.700(1) (2017) provides:
     “A person commits the offense of failure to perform the duties of a driver
     when property is damaged if the person is the driver of any vehicle and the
     person does not perform duties required[.]”
This statute, ORS 811.700 (2017), amended by Or Laws 2017, ch 75, § 1; Or Laws
2018, ch 22, § 1, is the version that was in effect at the time of the incident in this
case. As such, the subsequent amendments do not affect the analysis, and all
references in this opinion are to the 2017 version.
     2
       Like the majority opinion, I express no opinion on the later visits to the
property at which the deputy visited defendant camped in the backyard. Whether
the deputy’s visits later with defendant resulted independently from the deputy’s
first permissible visit with the residents, resulted only from the comparison of
the accident fragment to the car, or were in themselves otherwise impermissible
remains for the trial court to determine upon remand. See State v. Unger, 

, 

 (2014) (discussing exploitation analysis for admissibility of
evidence discovered after an unlawful search).
672                                                    State v. Goldberg

         In her second assignment of error, defendant argues
that the trial court erred in denying her motion to suppress.
For purposes of reviewing a motion to suppress, we consider
the relevant facts as adduced at the suppression hearing.
State v. Bistrika, 

, 

, rev den,

 (2014), cert den, 

 (2015). We defer
to the trial court’s factual findings as long as there is evidence in the record to support them, and we presume, with
regard to pertinent and disputed facts for which there are
no express findings, that the trial court decided those facts
in a manner consistent with its ultimate conclusions. State
v. Mazzola (A139257), 

, 

(2010). Because the facts matter, this opinion gives them
more attention.
        Defendant’s car struck Gonzales’s pickup truck,
and defendant left the scene without stopping to exchange
the information required by ORS 811.700.3 Gonzales saw a
white car drive away. He collected pieces of the car’s bumper
cover and grill from the middle of the street. Later that
day, Deputy Holiman spoke with Gonzales. Holiman photographed the paint transfer, scratches, and abrasion on the
rear quarter panel of the pickup and on the steel wheel.
         From the remnants of white car that Gonzales had
collected, Holiman deduced that car was a white Chevy
Impala, likely made between 2006 and 2010. Two days later,
an acquaintance of defendant told Holiman that defendant
was the owner of a Chevy and that she had been driving at
the time of the accident. Holiman happened to know from
previous interactions with defendant that defendant drove a
white Chevy Impala.
        On his first of four visits, Holiman drove to a rural
residential property where defendant was camping in the
backyard, and he parked along the lane. An unpaved parking area, suitable for several cars, was adjacent to a shed
structure with “a ramp leading up to a kind of a covered
walkway to the front door of the house.” Holiman saw a white
Chevy Impala with Nevada license plates in the parking
    3
      Under these circumstances, ORS 811.700(1)(a) required that defendant
should have stopped and given Gonzales her name, address, and her vehicle registration number.
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area by the shed and ramp to the door of the house. Upon
seeing the Chevy, Holiman confirmed that the car belonged
to defendant through Nevada DMV records. While walking
from the road through the parking area toward the front
door, Holiman immediately saw that the Chevy had extensive front-end damage and that most of the front bumper
trim was missing.
         Holiman testified that the first thing he did was
to go “and knock[ ] on the door and talk[ ] with someone at
the house.” Paynter, the owner, did not express any displeasure with the deputy’s presence and did not tell the deputy
to leave. Paynter told Holiman that defendant was living
in a tent around the back of the property but that she was
not present at the time. Failing to find defendant, Holiman
left—but, at some point before leaving, he took photos of
defendant’s car in the parking area by the shed and ramp to
the front door.4
        Holiman called Gonzales’s wife and borrowed the
car remnants that Gonzales had collected at the scene of the
accident.
         Later the same day, Holiman returned with the remnants to the Paynter property where defendant was camping.
This repeat visit is when the comparison photographs were
taken that become the issue in this case. Holiman spoke
with Paynter’s 30-year-old son who lived there and who said
that defendant was not at the property. In his testimony,
Paynter’s son described the location, saying that there was
no signage on the property telling people that they cannot
come on the property. He said that he did not tell Holiman
that he could or could not come on the property, and he did
not tell Holiman to leave. He testified, “[Holiman] just stood
right there in front of me next to the vehicle.” The conversation with the deputy took place “directly next to the vehicle”
and the woodshed. The woodshed is in front of the house
between the house and street. He recalled that the “nature
of the contact” was that the deputy was looking for defendant. In the apparent presence of Paynter’s son, Holiman
took photographs of the Chevy as it sat in the parking area,

   4
       Those photographs of the damaged, white car are not at issue.
674                                                       State v. Goldberg

uncovered and in the open, where they talked. Holiman held
a remnant of the bumper trim up to the car to where the
broken edges aligned. Holiman saw that the color and shape
of the molding remnant found at the accident scene matched
the vehicle.
         The following morning, Holiman returned to the
property and spoke to defendant from outside her tent.
Defendant was inside and refused initially to speak with
him. She relented and invited Holiman in. She made a few
statements confirming her ownership and sole control of the
vehicle. She promised to come to Holiman’s office that day
before noon to discuss the accident. Defendant, however,
failed to appear at his office, so Holiman returned to the
property to speak with her and, ultimately, arrested her.
         Before trial, defendant moved to suppress the evidence obtained during Holiman’s trips to the property,
including the photographs taken by Holiman. Defendant
argued that Holiman conducted a warrantless search of
the Chevy in violation of Article I, section 9, of the Oregon
Constitution when he paused and held the bumper pieces up
to the Chevy.5 The trial court denied the motion to suppress,
concluding that Holiman did not perform a search when he
compared pieces of the bumper trim to the Chevy as the car
sat in the open parking area.
         The majority opinion finds that ruling to be error.
Thus, the question becomes whether Holiman performed an
unlawful search when, in the parking area where he had
legally implied or factually tacit permission to be, he compared broken pieces of bumper trim to the hit-and-run car.
Like the facts, the answer requires a closer look at the law.
        The Oregon Supreme Court has “emphasize[d]” the
scope of the protection guaranteed by Article I, section 9,
by reminding us that the provision does not protect citizens
from all forms of governmental observation, but only from

    5
      At the suppression hearing, the trial court corrected defense counsel’s argument that described the deputy as “touching the vehicle.” The court recounted,
“I don’t recall any testimony that there was any touching. We’re talking about
observations and utilizing some other part to compare.” Defense counsel did not
disagree, responding instead, “I believe that Officer Holiman actually held the
piece up to the car and photographed an exact match ….” (Emphases added.)
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unreasonable searches and seizures. State v. Ainsworth, 

, 

 (1990). As a result, “the threshold
question in any Article I, section 9, search analysis is
whether the police conduct at issue is sufficiently intrusive to
be classified as a search.” 

 (emphasis added). “One indication of whether a government action intrudes on a person’s
privacy right is whether a private individual would offend
social and legal norms of behavior by engaging in the same
kind of intrusion.” Portrey, 

. However, people may sacrifice their right to privacy by conducting themselves “in otherwise protected areas in such a way that their
words or acts can plainly be seen or heard outside without
any special effort.” State v. Louis, 

, 

(1983) (emphasis added). Beyond such abstract statements,
the case law of this court has developed to define what is
“sufficiently intrusive” in two lines of cases when an officer peers into a home and when an officer is merely present
outside of a home in publicly permissible areas of approach.
Both lines of cases are instructive here.
         Generally, “a person’s home is the ‘quintessential
domain protected by the constitutional guarantee against
warrantless searches.’ ” State v. Fortmeyer/Palmer, 

, 

 (2001) (quoting State v. Louis, 

). We recognize that a person’s privacy interest in
the home extends to the area outside the home, known as the
curtilage. City of Eugene v. Silva, 

, 

 (2005). However, that privacy interest in curtilage
is qualified. “[A]bsent evidence of an intent to exclude, an
occupant impliedly consents to people walking to the front
door and knocking on it, because of social and legal norms of
behavior.” Portrey, 

. Police officers, like any
other person, are at liberty to observe all objects and activities from that vantage point, and any observations made
along the way do not constitute a search. 

. Some
time ago, we elaborated on those “social and legal norms of
behavior,” stating:
   “Going to the front door and knocking was not a trespass.
   Drivers who run out of gas, Girl Scouts selling cookies, and
   political candidates all go to front doors of residences on a
   more or less regular basis. Doing so is so common in this
   society that, unless there are posted warnings, a fence, a
676                                             State v. Goldberg

   moat filled with crocodiles, or other evidence of a desire to
   exclude casual visitors, the person living in the house has
   impliedly consented to the intrusion. Going to the back
   of the house is a different matter. Such an action is both
   less common and less acceptable in our society. There is no
   implied consent for a stranger to do so.”

State v. Ohling, 

, 

, rev den,

 (1984) (citation omitted) (determining that,
unlike plants that might be on a front porch, marijuana
plants on a back porch were not in an area subject to implied
permission to enter). We have explained our analysis in
terms of trespass, observing:
   “By their actions the officers intruded onto the curtilage of
   defendant’s dwelling. Their action was a trespass unless it
   was privileged or had defendant’s express or implied consent. If it was trespassory, the search violated Art I, section
   9 of the Oregon Constitution.”

Id. at 252; see id. at 254 (“What they did instead was trespass within the curtilage of defendant’s dwelling, a constitutionally protected area.”).
         A line of cases indicates that peering into a home
is problematic, most particularly where the occupant has
taken steps indicative of a desire for privacy and the officer’s actions or behavior are intrusive. For example, in
Fortmeyer, the defendant refused to give consent to officers
to allow them into the home to search for growing marijuana. 

. Rebuffed, the officers went to a
common area adjoining defendant’s house with the neighbor’s permission. From there, they saw a basement window
imperfectly blocked by a leaning door panel and cardboard.
By kneeling down and peering just right through a narrow
gap in the window’s obstructions, the officers saw marijuana
growing inside. 

. Defendant moved to suppress,
arguing that he had communicated a desire for privacy with
those obstructions. We agreed. Although the officers were in
a lawful viewing place, we determined that their behavior
in kneeling down and turning their heads at a particular
angle to peer through a covered window breached the social
and legal norms of behavior. It was an unlawful search.

; see also State v. Gabbard, 

,
Cite as 

 (2021)                                 677

, rev den, 

 (1994) (bending down and
peeking through a crack in siding constituted a search).
           We reached the opposite conclusion in State v.
Castillo-Salgado, 

, 

, rev den,

 (2003). We began with the observation that a
“ ‘police officer’s unaided observation, purposive or not, from
a lawful vantage point is not a search ….’ ” Id. at 610 (quoting Ainsworth, 

). The defendant argued that
an officer violated social norms when, while passing by an
apartment window on a walkway the officer inclined his
head in order to see through a gap in blinds that had been
left as if someone had peered outside. We disagreed. We held,
under the totality of the circumstances, that the officer was
in a lawful vantage point, that the officer’s attention had
been drawn by movement inside, that he saw defendant’s
activities without engaging in any extraordinary effort, and
that he did not invade defendant’s privacy interest. That conduct was not a search. Id. at 611; see also State v. Rodriguez-Ganegar, 

, 

, rev den, 

 (2003) (no search occurred where a loud noise drew an
officer’s attention to a three-fourths to one inch vertical gap
in motel curtains and it took no “special effort” to see the
activity plainly visible inside).
          A second line of cases pertains to when an officer is
outside in the curtilage, approaching a house and encounters something plainly visible without special effort. In that
context, the question posed in Ainsworth “whether the police
conduct at issue is sufficiently intrusive to be classified as a
search,” 

 (emphasis added), becomes a question
whether the officer handled or examined the object in a way
to reveal something that was not visible. For example, in
Portrey, we determined that an officer exceeded the homeowner’s implied consent and performed a search where he
picked up a boot that was next to the front door and turned it
over to reveal that the sole of the boot matched impressions
left at a crime scene. 

. We explained:
   “[D]efendant’s privacy interest continued in the articles on
   his front porch that were not entirely visible to someone
   standing there, even though he had impliedly consented
   to visitors coming to his front door. The officers’ actions
   intruded on a privacy interest defendant maintained in
678                                          State v. Goldberg

   the area around his front door to which defendant had not
   impliedly or expressly consented.”

. Because turning the boot over revealed what
otherwise was not visible, the conduct constituted a search.
         Similarly, in Cardell, we concluded that an officer
performed a search where he felt the tire of a car parked
along the pathway to a front door because doing so revealed
that the tire was hot, indicative of recent use consistent
with a report of “racing.” 

. Feeling the
tire’s heat revealed something not visible and, accordingly,
exceeded the scope of implied consent. 

.
         On the facts of this case, the officer’s conduct was
not “sufficiently intrusive” or contrary to “social and legal
norms” as demonstrated by the existing lines of cases. The
conduct at issue here does not involve kneeling to peer
through a gap in siding or an obstructed window to see
inside a home. See, e.g., Fortmeyer, 

(peering into obstructed basement window). Nor does the
conduct involve manipulating an object in the curtilage outside a home to reveal information that is not already visible.
Portrey, 

. Nor, for that matter, does the
conduct involve the use of extraordinary efforts to uncover
hidden information such as the use of thermal technology or
drug-sniffing dogs. See Kyllo v. United States, 

, 

, 

 (2001) (use of sense-enhancing
technology to gather information regarding interior of home
that could not otherwise have been obtained without physical intrusion into constitutionally protected area constitutes a “search” under the Fourth Amendment to the United
States Constitution); Florida v. Jardines, 

, 

, 

 (2013) (drug-sniffing dog on front
porch constituted a search under the Fourth Amendment).
          The facts of this case do not constitute conduct that
is “sufficiently intrusive” in any of those ways, nor in some
new way. The facts that drive that conclusion are undisputed. Before visiting the property, Holiman had researched
and identified the make and model of the hit-and-run car
from the remnants Gonzales had recovered. Holiman knew
what to look for. On his first visit, as he walked up the driveway toward the front door of the residence, Holiman was
Cite as 

 (2021)                                               679

in a lawful vantage point when he observed the front-end
damage to the Chevy.6 His eyes were drawn to the portion
of the Chevy’s grill and bumper trim that was missing. He
made that observation without any extraordinary effort to
see what could not be readily seen or to peer into secluded
spaces. No one disputes his entrance, observations made, or
the photographs taken of the damaged car from the first
visit.
         Likewise, on his second visit, it took no extraordinary action or unusual movement for the deputy to take a
closer look at defendant’s Chevy as it sat openly in plain
view. 7 The car still sat beside the shed and entrance ramp to
the front door. Holiman and Paynter’s son talked standing
beside the car.
         We are taught by Ohling that the “social and legal
norms” are indicated, informed, or controlled by the facts
at hand in a particular case. Portrey, 

(discussing Ohling, 

). Generally, without
trespassing, anyone from Girl Scouts to political candidates
may approach through entrance curtilage, and that is no
less true for a deputy. Ohling, 

. Generally,
implied consent governs. 

 But, specific facts inform or even
control. “Other evidence” may be found to show “a desire to
exclude causal visitors” such as “posted warnings, a fence,
[or] a moat filled with crocodiles.” 

 By the same token,
a willing engagement with the residents should be equally
relevant as crocodiles to our understanding of whether trespass has occurred or “social and legal norms” have been violated in the facts at hand.
         Here, there were no signs or crocodiles to keep out
casual visitors. To the contrary, the occupants whom the
deputy found engaged with the deputy without any reservation or objection. First, Holiman spoke with the homeowner Paynter and next with his adult son. Paynter was not

    6
      Defendant acknowledges on appeal, “Here the officer’s initial observation of
the front-end damage to the Impala was lawfully obtained when he saw it as he
was walking to the front door of the residence.”
    7
      See Castillo-Salgado, 

 (concluding that no search occurred
where an officer observed illegal activity through a gap in kitchen window blinds
as he approached a front door after his attention happened to be drawn by movement inside the apartment).
680                                         State v. Goldberg

displeased with the deputy’s presence and did not tell the
deputy to leave. At some point, Holiman took the first set of
photos of the car, which are not at issue. On his second visit,
Holiman spoke with Paynter’s adult son while the two men
stood beside the car at the shed and entrance ramp to the
house. The son did not say whether Holiman could be on the
property, nor did he tell Holiman to leave. Construing the
facts in the light most favorable to the trial court’s ruling,
see Bistrika, 

, neither man felt a need to
discuss permission. In short, Holiman had the tacit permission, not just implied permission, to be present beside the
car with Paynter’s son.
          To confirm the conclusion that he had already
reached—that the recovered remnants came from defendant’s Chevy, Holiman held a trim remnant next up to
the damaged car and took photographs. By comparing the
trim remnant with the car, Holiman did not discover any
new information that was not already openly visible on the
first visit. The mere matching of the remnant with the car
revealed nothing that could not have been done later with
separate photographs. Two separate photographs—one of
the remnant and one of its place on the damaged car—would
permit a viewer to match the remnant and the car. Although
holding a trim remnant up to the car to take a photograph
may have provided the police with a vivid, recorded depiction of Holiman’s observation of the car, holding the piece
up to the car was not necessary for Holiman to come to the
conclusion that the remnant originated from the defendant’s
car. Holiman held the broken pieces up to the Chevy only
to demonstrate the conclusion that he had already reached
through simple observation. The pieces of trim in his hands
came from defendant’s Chevy.
         Because there is no reason to believe that Paynter’s
son had left the scene, Holiman’s comparison apparently
occurred in his presence. There is no reason to assume that
the comparison offended the “social or legal norms” as to
Paynter’s son. Because defendant had left her car unhidden
and uncovered in a place where anyone could approach the
house, there is no reason that Holiman’s comparison offended
the “social or legal norms” as to defendant who camped in
the backyard of the property. Because the comparison did
Cite as 

 (2021)                             681

not require Holiman to kneel to peek into a secluded space,
it does not matter that Holiman may have crouched to hold
the remnant and take the photographs; there is no reason
to declare that to be extraordinary behavior on these facts.
Compare Fortmeyer, 

 (kneeling to peer in
obscured basement window).
         Unlike the soles of the boot in Portrey or the heat
of the tire in Cardell, the broken edges of the Chevy’s grill
and bumper trim were visually exposed to Holiman without
the need for any tactile interaction with the object. Holiman
did not manipulate the car to reveal something hidden from
view. He did not move car parts or test the car for unseeable information. While in a lawful vantage point and after
talking with a property occupant, Holiman only observed
and photographed what was plainly visible with the collision remnant in his hand. In so doing, he did not engage in
“intrusive” behavior, contrary to the implied or tacit permission of the occupants, nor contrary to Article I, section 9, of
the Oregon Constitution.
         In my view, the prior lines of cases provide specific
rules that are easier to apply in the field and enforce in
the courtroom. The test of Portrey and Cardell is a bright
line against manipulation of an object in the curtilage to
reveal unseen information. The test of the majority opinion, however, whether we would be offended if we were the
home occupant, is a subjective judgment that we make later,
divorced from the conduct of the occupants in the case at
hand. I fear that test may prove unhelpful.
       On the first assignment I concur; on the second
assignment, I respectfully dissent.
         Egan, C. J., Powers, Mooney, and Kamins, JJ., join
in this dissent.