State v. Dixson

¶1dissenting.

¶2I find no principled reason to impose a higher standard governing law enforcement officers under Article I, section 9, of the Oregon Constitution, than is imposed by the Fourth Amendment.1 I would hold that Article I, section 9, is inapplicable in “open fields.” See Hester v. United States, 265 US 57, 44 S Ct 445, 68 L Ed 898 (1924).2 That construction is faithful to the text of Article I, section 9, and to its original intent. It also is supported by Oregon authority, by recent federal authority and by authority from other states. It provides for a uniform rule of law enforcement between state and federal officers. No unique local conditions support a contrary construction. The plurality’s analysis would merely require *17law enforcement officers, in most situations, to use aerial surveillance to gather the information necessary to obtain a warrant or to justify warrantless entry onto the property. It is not easy to see how such a requirement would advance legitimate privacy interests. See Oliver v. United States, 466 US 170, 179 n 9, 104 S Ct 1735, 80 L Ed 2d 214 (1984). Furthermore, the plurality has decided this case on a theory not raised in the trial court and not briefed or argued on appeal. Therefore, I respectfully dissent.

¶3Text

¶4The plain meaning of the explicit text of Article I, section 9, delineates the scope of its affirmative protections. It protects “persons, houses, papers, and effects.” The plurality forthrightly concedes that the place where the deputies found the marijuana growing was outside the curtilage of the Dix-sons’ home, and, therefore, does not come within the “specific constitutional language” of Article I, section 9. 87 Or App at 6. That concession should end this court’s inquiry. When the language of the constitution is plain and certain, there is no reason for applying rules of construction. State ex rel Bell v. Pierce et al, 118 Or 533, 540, 247 P 812 (1926); see Cooley, Constitutional Limitations 55 (1868). Justice Linde frequently exhorts lawyers and judges to “read the statute.” The same rule ought to apply to the constitution.

¶5History

¶6The plurality points to no history to show that either the drafters of the Oregon Constitution, or the people who ratified it, intended the explicit text of Article I, section 9, to encompass more than what it says.3See State v. Flores, 280 Or 273, 280-81, 570 P2d 965 (1977) (no indication that drafters of Oregon Constitution intended that Article I, section 9, be different from the Fourth Amendment); State v. Flores, supra, 280 Or at 284, (Linde, J., dissenting) (Article I, section 9, was meant to embody the same principle as Fourth Amendment and early state constitutions); State v. Kennedy, 295 Or 260, 270, 666 P2d 1316 (1983) (absent evidence to the contrary, *18substantially identical terms in state and federal constitutions are presumed to have the same objective); State v. Robinson, 64 Or App 770, 773, 669 P2d 1175 (1983) (nothing indicates that the question of whether conduct constitutes a search is analyzed differently under state and federal constitutions); see also State v. Holt, 291 Or 343, 345 n 1, 630 P2d 854 (1981) (Fourth Amendment and Article I, section 9, assumed to be coextensive).4

¶7Oregon Authority

¶8In State v. Lee, 120 Or 643, 253 P 533 (1927), the Supreme Court articulated the equivalent of an “open fields” doctrine under the Oregon Constitution. In Lee, the court recognized the common law distinction between a “house” and the land inside its curtilage and land beyond the curtilage in the “open fields.”5 The Supreme Court had no reason to *19recognize that distinction in Lee, except to recognize the common law rule that the legal protection afforded to each category of real property was different. The specially concurring opinion correctly observes that the plurality overrules Lee, at least by implication. 87 Or App at 11.

¶9The Supreme Court also instructed in Leethat Article I, section 9, is to be construed “in conformity with the principles of the common law.” 120 Or at 649.6See Cooley, Constitutional Limitations, supra, at 60-62. Again, the parallel with Hesteris evident. Construing Article I, section 9, in conformity with those principles, it is clear that “open fields” do not enjoy any special protection under the Oregon Constitution.

¶10In State v. Evans, 143 Or 603, 611, 22 P2d 496 (1933), the Supreme Court stated:

“The inhibition against search and seizure does not extend to … open fields.” (Citations omitted.)

¶11The most recent Oregon State Bar publication on Search and Seizure states:

*20“State v. Evans, supra, 143 Or at 611, established as a matter of Oregon law that the ‘inhibition against search and seizure does not extend to woods or open fields or public lands, such as a forest reserve.’ ” 1 Criminal Law, Oregon State Bar CLE Handbook 3-178 (1986). (Emphasis supplied.)

¶12This court has consistently followed Hester v. United States, supra. In State v. Brown, 1 Or App 322, 325, 461 P2d 836 (1969), rev den (1970), we stated:

“It is established in the law of search and seizure that an open-field investigation, even though the officers may be upon the private property of the defendant, is not unreasonable and is not cause for suppressing seized evidence.”

¶13We also followed Hesterin State v. Stanton, 7 Or App 286, 490 P2d 1274 (1971). See State v. Fondren, 285 Or 361, 364, 591 P2d 1374, cert den 444 US 834 (1979). However, in Stanton, we mistakenly concluded that Katz had limited Hester. In State v. Walle, 52 Or App 963, 969, 630 P2d 377 (1981), we persisted in our error and overruled portions of Stanton, not because we had rejected Hester, but because we thought Katz had limited it.

¶14I read Lee, Evans and Brownto have accepted Hesterunder Article I, section 9. I read Stantonand Walleto have limited Hesterby superimposing a “reasonable expectation of privacy” analysis on it. Defendants essentially agree with my analysis of the relevant Oregon authorities. I would adhere to earlier state authority on the basis of stare decisis.

¶15Defendants’ Argument

¶16Defendants concede that these are “open fields” cases. They contend that the trial court erred in failing to follow “existing Oregon law regarding the ‘open fields’ issue.” They argue that the evidence in this case must be suppressed if the area in which the marijuana was growing was a “constitutionally protected area” and that the test to determine whether the area is constitutionally protected is “whether the defendants had a reasonable expectation of privacy in such area.” Thus, defendants ask this court to conduct a Katz-type analysis under Article I, section 9, which Wallesuggests is the proper approach. The problem with their argument is that Katz did not modify Hester’s “open fields” rule.

¶17Defendants’ reliance on State v. Walle, supra,and *21State v. Carter/Burton 54 Or App 852, 856, 636 P2d 460 (1981), is misplaced. Those cases were decided under the Fourth Amendment, see State v. Russo, supra n 5, 68 Or App at 764 n 1, and, thus, they are superceded by Oliver v. United States, supra. They are not authority for defendants’ interpretation of the Oregon Constitution.

¶18Defendants have never argued that they were entitled to relief under Article I, section 9, because the deputies “trespassed” on their land.7 The plurality provides no justification for reversing the trial court on a theory not raised in the trial court and not briefed or argued on appeal.

¶19Similarity of Texts

¶20The “discovery” of unique individual rights in a state constitution should spring from a process that is reasonable and reasoned.8 It should also reflect an intelligent awareness and assessment of federal experience. In determining whether independent state analysis is appropriate in this case, the similarity of the state and federal texts is a good starting point for inquiry. The text of Article I, section 9, is virtually identical with the corresponding text of the Fourth Amendment. See n 1, supra. The scope of both provisions is similar. State v. *22Elkins, 245 Or 279, 282, 422 P2d 250 (1966). Thus, the state text provides no basis for the plurality’s analysis. See State v. Flores, supra, 280 Or at 280.

¶21Federal Authority

¶22In construing the Oregon Constitution, we are not bound by federal interpretations of the Fourth Amendment. State v. Kennedy, supra, 295 Or at 265-68. We may adopt a higher standard under the Oregon Constitution than that enunciated by the United States Supreme Court. State v. Caraher, 293 Or 741, 750, 653 P2d 942 (1982); Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983). There is no requirement that we adopt a higher standard and, if we find United States Supreme Court decisions persuasive, we are free to align ourselves with them. State v. Brown, 301 Or 268, 274, 721 P2d 1357 (1986); State v. Flores, supra; see State v. Campbell, 299 Or 633, 648, 705 P2d 694 (1985) (adopting United States Supreme Court’s reasoning in construing Article I, section 11, of the Oregon Constitution).

¶23In State v. Kennedy, supra,Justice Linde explained:

“This court like others has high respect for the opinions of the [United States] Supreme Court, particularly when they provide insight into the origins of provisions common to the state and federal bills or rights rather than only a contemporary ‘balance’ of pragmatic considerations about which reasonable people may differ over time and among the several states.” 295 Or at 267.

¶24See State v. Lowry, 295 Or 337, 351, 667 P2d 996 (1983) (Jones, J., specially concurring).

¶25In construing Article I, section 9, the Supreme Court generally has followed Fourth Amendment analysis. See State v. Brown, supra, 301 Or at 274; State v. Kell, 303 Or 89, 734 P2d 334 (1987); State v. Smith, 301 Or 681, 725 P2d 894 (1986); State v. Sparklin, 296 Or 85, 672 P2d 1182 (1983); State v. Brown, 291 Or 642, 661, 634 P2d 212 (1981) (Linde, J., concurring); State v. Flores, supra; State v. Florance, 270 Or 169, 527 P2d 1202 (1974); see also State v. Flores, 68 Or App 617, 619-26, 685 P2d 999, rev den 298 Or 151 (1984). When the Oregon Supreme Court has departed from federal authority in construing Oregon’s Bill of Rights, it usually has provided a principled reason for doing so. See, e.g., State v. Henry, 302 Or 510, 732 P2d 9 (1987); State v. Kock, 302 Or 29, 725 P2d 1285*23(1986); State v. Kessler, 289 Or 359, 614 P2d 94 (1980). In failing to explain in a principled manner its radical departure from recent federal authority directly on point, the plurality fails to show the “high respect for the opinions of the [United States] Supreme Court” that our Supreme Court repeatedly has stated should be shown. See, e.g., State v. Kennedy, supra, 295 Or at 267; City of Portland v. Thornton, 174 Or 508, 512, 149 P2d 972 (1942), cert den 323 US 770 (1944).

¶26Uniform Standard

¶27Although the need for a uniform standard of law enforcement is not controlling, the Supreme Court has recognized that

“[T]o promote effective law enforcement, particularly when state and federal law enforcement agencies collaborate, and to farther the orderly administration of criminal trials, there ought to be a uniform rule. We see no need to re-examine the position we took in [State v. Florance, supra, 270 Or at 184; State v. Evans, 258 Or 437, 442, 483 P2d 1300 (1971)].” State v. Flores, supra, 280 Or at 281.

¶28Inexplicably, the plurality ignores this important consideration in departing from Oregon authority and from federal authority. See Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va L Rev 873, 937 (1976) (state courts too rarely debate the need for national uniformity).

¶29Other States

¶30Most of Oregon’s Bill of Rights was taken verbatim from the Indiana Constitution (1851), which in turn had antecedents dating back at least to the time of the early state constitutions of the Revolutionary Era. Article I, section 9, of the Oregon Constitution is virtually identical to Article I, section 11, of the Indiana Constitution.9 The Indiana Supreme Court has found that Article I, section 11, of that state’s constitution is practically a reiteration of the Fourth *24Amendment to the United States Constitution, Applegate v. State, 158 Ind 119, 124, 63 NE 16 (1902), and that it is but a reaffirmance of the rights of persons as they existed at common law. Carey et al v. Sheets, 67 Ind 375, 377 (1879). That is consistent with our Supreme Court’s directive in State v. Lee, supra,that we construe Article I, section 9, in conformity with the common law. More importantly, the Indiana Supreme Court has held that Article I, section 11, of that state’s constitution does not protect fields, woods or land some distance from a house or dwelling. Williams v. State, 201 Ind 175, 178, 166 NE 663 (1929). That is also consistent with our Supreme Court’s holding in Evans that “the inhibition against search and seizure does not extend to … open fields.” 143 Or at 611.

¶31Other states have reached the same result under their state constitutions. In Brown v. State, 48 Ala App 84, 86, 261 So 2d 914 (1971), aff’d 288 Ala 732, 261 So 2d 919 (1972), the court stated:

“It does not appear that the Appellate Courts of Alabama have ever extended the protection afforded by [Article I, section 5, of the Alabama Constitution] to open fields or pasture land beyond the curtilage of the home or business establishment. ….

“Our research indicates that the present weight of authority, state and federal courts, supports the above cited cases. See 74 A.L.R. 1454 and 89 A.L.R.2d 780, for many cases collected on this subject. The states of Kentucky, Texas, Oklahoma, Indiana and Missouri hold to this view.

<<…

“This court sees no good reason to depart from the time-honored understanding of the Bar and Courts that Article 1, § 5, Constitution of 1901 [sic] does not extend to open land outside of the curtilage, nor do we think that the framers of the Constitution of 1901 intended it to be so inclusive. We prefer to follow the rule laid down, supra, in the Federal Courts, … (Citations omitted.)

¶32In The People v. Grundeis, 413 Ill 145, 108 NE2d 483 (1952), the defendant claimed violations of both the state and federal constitutions because no warrant was obtained to search his real property. The Illinois Supreme Court stated:

“ [I]t is well settled that a search of open fields and other places *25not within the curtilage of a dwelling falls outside the constitutional protection against unreasonable search and seizure. Thus, in Hester v. United States, [supra, 265 US at 59], Mr. Justice Holmes asserted, ‘… it is enough to say that, apart from the justification, the special protection accorded by the Fourth Amendment to the people in their “persons, houses, papers and effects,” is not extended to the open fields.’ … This ruling has been consistently followed under constitutions which, like those of Illinois and the Federal government, guarantee to the people security ‘in their persons, houses, papers and effects’ against unreasonable search and seizure.” 413 Ill at 151. (Citations omitted.)

¶33See People v. Lashmett, 71 Ill App 3d 429, 389 NE2d 888 (1979), cert den 444 US 1081 (1980).

¶34In State v. Seaton, 679 SW2d 908, 909 (Mo App 1984), the Missouri Court of Appeals stated:

“Defendant’s lone point relied on is that the trial court erred in admitting into evidence the samples of the marijuana seized from the five field patches because they were obtained under an unlawful search warrant in violation of defendant’s right to privacy under the provisions of the Fourth and Fourteenth amendments to the Constitution of the United States and Art. I, § 15 of the Constitution of the state of Missouri. The ‘open fields’ doctrine permits police officers to enter and search a field without a warrant.”

¶35See State v. Simpson, 639 SW2d 230 (Mo App 1982).

¶36In State v. Havlat, 222 Neb 554, 561, 385 NW2d 436 (1986), the Nebraska Supreme Court stated:

“Concerning the open fields doctrine, our state Constitution does not afford more protection than does the fourth amendment to the federal Constitution as interpreted in Oliver v. United States, [supra], and we decline to judicially impose higher standards governing law enforcement officers under the provisions of the state Constitution.”

¶37In Beasley v. State, 683 SW2d 132, 135 (Tex App 1984), the Texas Court of Appeals held:

“We hold that the language in Article I, Section 9 of the Texas Constitution is substantially similar to, and not more restrictive than, the language of the Fourth Amendment of the United States Constitution. Therefore, the Texas Constitution does not prohibit the application of the ‘open field *26doctrine’ as described in Oliver v. United States, [supra] and Goehring v. State, 627 S.W.2d 159 (Tex.Cr.App. 1982).”

¶38Other states have followed Hester’s analysis, although it is not always clear from reading the opinions whether a particular court was applying the federal or state constitution, or both. See, e.g., Ford v. State, 264 Ark 141, 142, 569 SW2d 105 (1978), cert den 441 US 947 (1979); People v. Barbarick, 168 Cal App 3d 731, 747 n 3, 214 Cal Rptr 322 (1985); Kennemore v. State, 222 Ga 252, 254, 149 SE2d 471 (1966); Giddens v. State, 156 Ga App 258, 259, 274 SE2d 595 (1980), cert den 450 US 1026 (1981); Brent v. Commonwealth, 194 Ky 504, 512, 240 SW 45 (1922); Commonwealth v. Janek, 242 Pa Super 340, 342, 363 A2d 1299 (1976). The plurality fails to cite a single case from any jurisdiction that supports its “trespass” analysis.

¶39Mischief Designed to be Guarded Against

¶40The Fourth Amendment was directed against the use of general search warrants which were in use in New England at the time. See United States v. Snyder, 278 F 650 (ND W Va 1922). The requirement that all search warrants be specific is the heart of the Fourth Amendment.10 Article I, section 9, was meant to embody the same principle as the Fourth Amendment and the state constitutions that preceded the federal Bill of Rights. State v. Flores, supra, 280 Or at 284-85 (Linde, J., dissenting). Thus, this case is not concerned with any of the mischief that Article I, section 9, was intended to curtail.

¶41Plurality Analysis

¶42The plurality asks

“whether Article I, section 9, is concerned exclusively with the rights that it expressly mentions or whether it uses those *27rights as tools to achieve a broader purpose. That is, does the constitution protect property as property, or is its protection of property a means to a greater end?” 87 Or App at 6.

¶43The plurality concludes:

“We believe it obvious that the constitution protects property in order to protect something more — one’s personality or individuality — from official control. It does so by adapting traditional trespass law to create areas where officials may not go.” 87 Or App at 6.

¶44What is the authority for this novel reading of the Oregon Constitution? All we find is the plurality’s ipse dixit.11Forgive me, but I cannot see “the emperor’s new clothes.” In holding

“that Article I, section 9, protects a person’s right to exclude unwanted intrusions and unwanted methods of intruding from places and things over which that person has legitimate control. The right to exclude protects a person’s secrecy and solitude,” 87 Or App at 10,

¶45the plurality has hopelessly confused constitutional law with the civil and criminal law of trespass.12

¶46*28Popular Demand

¶47In extending constitutional protections beyond the explicit text of Article I, section 9, the plurality seeks to give “continuing life” to the state constitution. 87 Or App at 8.13 If a state constitution is intended to “mirror” the fundamental values of each generation, it is abundantly clear that the overwhelming number of Oregonians would not favor a startling new construction of their state constitution that would “invent” a new protection for marijuana growers that only recently has been specifically rejected by the United States Supreme Court under the Fourth Amendment. One only needs to look back to the November, 1986, General Election when Ballot Measure 5, which would have legalized private possession and growing of marijuana for personal use, was soundly defeated at the polls, to gauge the sentiment of Oregonians toward any action, such as this, that will make the illegal production of marijuana in this state much easier. So much for the “felt necessities of the time.” Holmes, The Common Law 1.

¶48Policy Considerations

¶49The plurality provides no pragmatic or policy reasons demonstrating that its conclusion is reasonable. Where is the social science research documenting unique local conditions, such as widespread police misconduct infringing citizens’ rights to be free from “unreasonable” searches and seizures, that would require a different rule under the state constitution? See State v. Flores, supra, 280 Or at 280. There is none. The spectre of platoons of jack-booted state storm-troopers assaulting the “open fields” of Oregon ferreting out evidence of criminal activity is simply unreal. See State v. Smith, supra, *29301 Or at 699 (Oregon not a part of the country where physical brutality and violence exist).

¶50The plurality’s reference to “sophisticated technology and increasingly complex society which have developed in this century” is a “red herring.” 87 Or App at 8. No technology was used in the challenged search.14 Further, in the context of this case, the only thing that is “increasingly complex” about our society is the fact that illegal marijuana is reportedly Oregon’s leading cash crop.

¶51Conclusion

¶52Regrettably, a plurality of this court recognizes no obligation to base constitutional rationales on neutral principles. It substitutes its own social theories for the plain meaning of the specific constitutional text. Its result-oriented decisional process turns appellate review into a continuing constitutional convention. One well might ask, why do we need a written constitution at all if judges can “create” new rights where none previously existed and where neither text, history or authority support such discoveries? I reject the substitution of some other set of values for those that may be derived from the unambiguous text of the constitution and the assumed intent of its framers and ratifiers. Although judges are free to “interpret” the constitution, the people alone have the right to “amend” it. Article XVII, Constitution of Oregon.

¶53Unprincipled judicial activism under the state constitution invites citizens to abandon their independent state guarantees in favor of entrusting their rights to federal law. See State v. Kennedy, supra, 295 Or at 270. It also undermines the effectiveness of state legislatures. “Privacy” is not the only value in society; we must balance degrees of it against other important values. Balancing competing values is preeminently a matter for the political process, not the courts, which are a poor substitute for the Legislature when it comes to examining the pros and cons of an issue and balancing competing values. In this case, for example, the theory on which this court has based its result was never raised in the *30trial court or on appeal. Rather, it sprang-forth, sua sponte, without input from the bench or bar, or from the public.

¶54Professor Howard, one of our nation’s foremost authorities on constitutional law, has cautioned:

“The case for an independent role for state courts should not be read as a case for unthinking activism. No judge, state or federal, is a knight errant, whose only concern is to do good. Hence, the state judge, when presented with the invitation to develop a body of state constitutional law, should pause to consider some of the dangers and hazards that may lie along the way.” Howard, State Courts and Constitutional Rights in the Day of the Burger Court, supra, at 873.

¶55Former Chief Justice Burger has noted:

“With our dual system of state and federal laws, administered by parallel state and federal courts, different standards may arise in various areas. But when state courts interpret state law to require more than the Federal Constitution requires, the citizens of the state must be aware that they have the power to amend state law to ensure rational law enforcement. The people of Florida have now done so with respect to Art I, § 12, of the State Constitution; they have it within their power to do so with respect to Fla Stat § 327.56 (1981).” Florida v. Casal, 462 US 637, 639, 103 S Ct 3100, 77 L Ed 2d 277 (1983) (Burger, C. J., concurring) [15]

¶56In sum, I find no principled reason to apply Article I, section 9, to facts which, the plurality concedes, “are outside its literal language.” 87 Or App at 8.16 The plurality analysis is short on authority and long on policy-making — a prerogative *31most Oregonians understand to be reserved to the people. See Article IV, section 1, Constitution of Oregon.17

¶81dissenting.

¶82I agree with the plurality that, as a general proposition, the protection afforded by Article I, section 9, of the Oregon Constitution against unreasonable searches and seizures extends beyond its literal terms. However, I also agree with the specially concurring opinion’s criticism of the “analysis” offered by the plurality which, I believe, incorrectly assumes that we are presented with an open slate. Furthermore, I am seriously concerned about the removal of all notions of reasonableness, which has historically been the touchstone of Oregon search and seizure law, from the test to determine whether a search warrant is required to search real property under the circumstances of a particular case. In State v. Walle, 52 Or App 963, 630 P2d 377 (1981), we applied the “reasonable expectation of privacy” approach under circumstances very similar to this case. I would apply the same test here and hold that this record does not provide evidence of an objectively “reasonable expectation of privacy” as to the land on which the marijuana was discovered, even assuming that it is possible to manifest a constitutionally protected privacy interest in an open field.1 Accordingly, I respectfully dissent.

¶83The reasonable expectation of privacy test, as applied in State v. Walle, supra,is derived from Justice Harlan’s concurrence in Katz v. United States, 389 US 347, 361, 88 S Ct 507, 19 L Ed 2d 576 (1967). As he explained it, a “reasonable expectation of privacy” encompasses two elements: (1) a subjective expectation of privacy that (2) is objectively reasonable. In other words, although an individual might have a *32subjective expectation of privacy in real property, that expectation — standing alone — is not enough to establish a constitutionally-protected privacy interest. Additionally, the individual’s expectation of privacy must be objectively reasonable if it is to be one that society is willing to recognize.

¶84With respect to real property, it is not, as the plurality holds, sufficient that the land in question is private property. Neither is it sufficient, as the special concurrence would hold, that the area is protected from public view by virtue of its topography or vegetation. In order to establish a constitutionally protected privacy interest, the owner of land must, at the very least, in some way affirmatively demonstrate that the public is not welcome on the land. Commonly employed means of conveying that message include erecting fences2 and posting “No Trespassing” signs. Both actions imply one message: KEEP OUT! Defendants did nothing that would convey the kind of message that would assert a claim to privacy. Surely, “No Hunting” signs, such as they did post, do not say that hikers or other nonhunters are unwelcome. Similarly, making access roads impassable to motor vehicles is not evidence of an intent to deter foot traffic. As one officer testified, he had no intention of trespassing on the Dixson property. Rather, because there were no barriers to his free passage, he reasonably assumed that he was still on the property owned by Rogge Lumber Company.

¶85Therefore, I would hold, under the facts of this case, that these defendants did not objectively manifest a reasonable expectation of privacy in the property searched, regardless of what might have been going on in their collective heads. It is unnecessary to sail into uncharted waters by formulating a new, untested constitutional analysis, as the' plurality and special concurrence have done. It is also unnecessary to determine, as Judge Van Hoomissen would, whether there is an open fields “exception” to Article I, section 9, of the Oregon Constitution, analogous to that under the federal Fourth Amendment.