section 9 search in Oregon

2025The Supreme Court has held that “a police officer’s unaided observation, purposive or not, from a lawful vantage point is not a search under Article I, section 9, of the Oregon Constitution.” Id. at 621 .

2003Thus, “[a] police officer’s unaided observation, purposive or not, from a lawful vantage point is not a search under Article I, section 9, of the Oregon Constitution.” Ainsworth, 310 Or at 621 .

2015Combest, 271 Or App at 48 (quoting State v. Wacker, 317 Or 419, 425 , 856 P2d 1029 (1993)). 4 We concluded in Combest that the police conduct did not constitute a search under Article I, section 9, reasoning that the information that the police were able to obtain using the software was “the same information that was available to any other user of the network” and “[t]he police obtained that information by zeroing in on shared files that contained child pornography, not by engaging in all-encompassing surveillance of defendant’s online activity.” 271 Or App at 56 .

2015Combest, 271 Or App at 48 (quoting State v. Wacker, 317 Or 419, 425 , 856 P2d 1029 (1993)). 4 We concluded in Combest that the police conduct did not constitute a search under Article I, section 9, reasoning that the information that the police were able to obtain using the software was “the same information that was available to any other user of the network” and “[t]he police obtained that information by zeroing in on shared files that contained child pornography, not by engaging in all-encompassing surveillance of defendant’s online activity.” 271 Or App at 56 .

2024See State v. Nagel, 320 Or 24, 31 , 880 P2d 451 (1994) (explaining that FSTs involve “a series of specialized and unusual acts designed to elicit information that [the] defendant would not have exposed to the public without the officer’s direction” and concluding that the administration of FSTs “constitutes a search within the meaning of Article I, section 9”); see also State v. Maddux, 144 Or App 34, 41 , 925 P2d 124 (1996) (holding that, where a defendant voluntarily consents to a request to perform FSTs, the performance of the tests does not violate Article I, section 9).

2024See State v. Nagel, 320 Or 24, 31 , 880 P2d 451 (1994) (explaining that FSTs involve “a series of specialized and unusual acts designed to elicit information that [the] defendant would not have exposed to the public without the officer’s direction” and concluding that the administration of FSTs “constitutes a search within the meaning of Article I, section 9”); see also State v. Maddux, 144 Or App 34, 41 , 925 P2d 124 (1996) (holding that, where a defendant voluntarily consents to a request to perform FSTs, the performance of the tests does not violate Article I, section 9).

2017See State v. Caraher, 293 Or 741, 759 , 653 P2d 942 (1982) (holding that a search incident to arrest under Article I, section 9, is not limited to “considerations of the officer’s safety and [the] destruction of evidence” but also “permit [s] a search when it is relevant to the crime for which [the] defendant is being arrested and so long as it is reasonable in light of all the facts”).

2017See State v. Caraher, 293 Or 741, 759 , 653 P2d 942 (1982) (holding that a search incident to arrest under Article I, section 9, is not limited to “considerations of the officer’s safety and [the] destruction of evidence” but also “permit [s] a search when it is relevant to the crime for which [the] defendant is being arrested and so long as it is reasonable in light of all the facts”).

2026As explained below, those facts are significant in light of the protections of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. *232 we’re talking about comings and goings” and allowed officers to track “each and every location that that car goes,” whereas the pole camera was “a stationary object that just record[ed] comings and goings of a particular location[.]” See State v. Campbell, 306 Or 157 , 759 P2d 1040 (1988) (use of a radio transmitter attached to a car to track its location was a search under Article I, section 9); United

2026As explained below, those facts are significant in light of the protections of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. *232 we’re talking about comings and goings” and allowed officers to track “each and every location that that car goes,” whereas the pole camera was “a stationary object that just record[ed] comings and goings of a particular location[.]” See State v. Campbell, 306 Or 157 , 759 P2d 1040 (1988) (use of a radio transmitter attached to a car to track its location was a search under Article I, section 9); United

2015Still, in other contexts, we have emphasized that “[t]he final bastion of privacy is to be found in the area of human procreation and excretion” and, “ [i] f a person is entitled to any shred of privacy, then it is to privacy as to these matters.” Sterling v. Cupp, 44 Or App 755, 761 , 607 P2d 206 (1980), aff'd as modified, 290 Or 611 , 625 P2d 123 (1981) (considering the extent of the privacy right as to searches of inmates by opposite-sex correctional officers); see also State v. Casconi, 94 Or App 457 , 766 P2d 397 (1988) (hidden and warrantless police surveillance of a doorless public rest

2015Still, in other contexts, we have emphasized that “[t]he final bastion of privacy is to be found in the area of human procreation and excretion” and, “ [i] f a person is entitled to any shred of privacy, then it is to privacy as to these matters.” Sterling v. Cupp, 44 Or App 755, 761 , 607 P2d 206 (1980), aff'd as modified, 290 Or 611 , 625 P2d 123 (1981) (considering the extent of the privacy right as to searches of inmates by opposite-sex correctional officers); see also State v. Casconi, 94 Or App 457 , 766 P2d 397 (1988) (hidden and warrantless police surveillance of a doorless public rest

2026See State v. Voyles, 280 Or App 579, 584 , 382 P3d 583 , rev den, 360 Or 751 (2016) (examination of property is not a search protected under Article I, section 9 if the defendant has no protected privacy or possessory interest in the property).

2026See State v. Voyles, 280 Or App 579, 584 , 382 P3d 583 , rev den, 360 Or 751 (2016) (examination of property is not a search protected under Article I, section 9 if the defendant has no protected privacy or possessory interest in the property).

2010State v. Foster, 347 Or 1, 5 , 217 P3d 168 (2009) (an observation from a lawful vantage point is not a search under Article I, section 9); State v. Ohling, 70 Or App 249, 252 , 688 P2d 1384 , rev den, 298 Or 334 (1984).

2010State v. Foster, 347 Or 1, 5 , 217 P3d 168 (2009) (an observation from a lawful vantage point is not a search under Article I, section 9); State v. Ohling, 70 Or App 249, 252 , 688 P2d 1384 , rev den, 298 Or 334 (1984).

1998For the more fundamental proposition that use of a trained drug detection dog is a search within the meaning of Article I, section 9, the majority relied on that court’s earlier decision in State v. Juarez-Godinez, 135 Or App 591 , 900 P2d 1044 (1995), aff'd 326 Or 1 , 942 P2d 772 (1995), a decision that had held that dog sniffs were constitutionally significant searches. 3 Having decided in defendant’s favor on the search issue, the Court of Appeals never reached the alternative seizure argument.

1998For the more fundamental proposition that use of a trained drug detection dog is a search within the meaning of Article I, section 9, the majority relied on that court’s earlier decision in State v. Juarez-Godinez, 135 Or App 591 , 900 P2d 1044 (1995), aff'd 326 Or 1 , 942 P2d 772 (1995), a decision that had held that dog sniffs were constitutionally significant searches. 3 Having decided in defendant’s favor on the search issue, the Court of Appeals never reached the alternative seizure argument.

2013Compare State v. Vondehn, 348 Or 462, 480-81 , 236 P3d 691 (2010) (noting that a valid waiver of the right against self-incrimination must be both knowing and voluntary), with State v. Hall, 339 Or 7, 20 , 115 P3d 908 (2005) (“[A]ny case in which the state relies upon a defendant’s consent to validate a warrantless search, the state must prove by a preponderance of the evidence that the defendant’s consent was voluntary.” (Emphasis in Hall.)).

2013Compare State v. Vondehn, 348 Or 462, 480-81 , 236 P3d 691 (2010) (noting that a valid waiver of the right against self-incrimination must be both knowing and voluntary), with State v. Hall, 339 Or 7, 20 , 115 P3d 908 (2005) (“[A]ny case in which the state relies upon a defendant’s consent to validate a warrantless search, the state must prove by a preponderance of the evidence that the defendant’s consent was voluntary.” (Emphasis in Hall.)).

2013The state’s two-fold response on appeal is that unlocking the restroom door was not a search under Article I, section 9, because defendant was not using the restroom for a “private purpose” and that, in any event, the facts adduced at the hearing are sufficient to support the conclusion that, although the trial court’s reasoning was erroneous, its decision was correct under the “inevitable discovery” rationale: The disputed evidence “‘inevitably would have been discovered, absent the illegality, by proper and predictable police investigatory procedures.’ ” State v. Johnson, 340 Or 319, 326 , 1

2013The state’s two-fold response on appeal is that unlocking the restroom door was not a search under Article I, section 9, because defendant was not using the restroom for a “private purpose” and that, in any event, the facts adduced at the hearing are sufficient to support the conclusion that, although the trial court’s reasoning was erroneous, its decision was correct under the “inevitable discovery” rationale: The disputed evidence “‘inevitably would have been discovered, absent the illegality, by proper and predictable police investigatory procedures.’ ” State v. Johnson, 340 Or 319, 326 , 1

2010State v. Johnson, 120 Or App 151, 157 , 851 P2d 1160 , rev den, 318 Or 26 (1993).

2010State v. Johnson, 120 Or App 151, 157 , 851 P2d 1160 , rev den, 318 Or 26 (1993).

1997See State v. Slowikowski, 87 Or App 677, 681-82 , 743 P2d 1126 (1987), aff'd on other grounds 307 Or 19 , 761 P2d 1315 (1988) (the overwhelming trend among the courts, including the United States Supreme Court, is to find that the use of a trained dog to sniff property located in a public place is not a search); State v. Kosta, 75 Or App 713, 719 , 708 P2d 365 (1985), aff'd on other grounds 304 Or 549 , 748 P2d 72 (1987) (investigation after valid stop, limited in intensity and scope, does not constitute an unreasonable search under Article I, section 9).

1997See State v. Slowikowski, 87 Or App 677, 681-82 , 743 P2d 1126 (1987), aff'd on other grounds 307 Or 19 , 761 P2d 1315 (1988) (the overwhelming trend among the courts, including the United States Supreme Court, is to find that the use of a trained dog to sniff property located in a public place is not a search); State v. Kosta, 75 Or App 713, 719 , 708 P2d 365 (1985), aff'd on other grounds 304 Or 549 , 748 P2d 72 (1987) (investigation after valid stop, limited in intensity and scope, does not constitute an unreasonable search under Article I, section 9).

1997In State v. Smith, 148 Or App 235 , 939 P2d 157 (1997), two of the Court of Appeals’ judges that found the use of a dog to be a search in the present case, retreated from that conclusion and stated that they were wrong in holding that a dog-sniff is a search under Article I, section 9.

1997In State v. Smith, 148 Or App 235 , 939 P2d 157 (1997), two of the Court of Appeals’ judges that found the use of a dog to be a search in the present case, retreated from that conclusion and stated that they were wrong in holding that a dog-sniff is a search under Article I, section 9.