§ 4.3 Government Action

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 4.3 GOVERNMENT ACTION

Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution protect citizens from unreasonable government intrusion into their "persons, houses, papers and effects." Neither provision is implicated when private citizens search or seize a defendant's property. State v. Tucker, 330 Or 85, 89, 997 P2d 182 (2000) ("Article I, section 9, prohibits only state action that infringes on a citizen's constitutional rights"). Once a private party has searched or seized an item, a "police officer's subsequent, confirmatory examination of that evidence involves no additional injury to any privacy interest of the property owner," as long as police officers do not expand the scope of the private search. State v. Luman, 347 Or 487, 495-96, 223 P3d 1041 (2009). However, sufficient governmental involvement may transform what would otherwise be a private search into governmental action subject to the constitution. See Tucker, 330 Or at 90.

Under Article I, section 9, a private search becomes subject to constitutional limitations on search and seizure when the "private citizen's conduct in pursuing his or her own search and seizure [has] become so intertwined with the conduct of a state actor that the private citizen's actions are essentially those of the state." State v. Sines, 359 Or 41, 50, 379 P3d 502 (2016). See also State v. Lien/Wilverding, 364 Or 750, 777-79, 441 P3d 185 (2019). To determine whether a private search constitutes "state action," courts apply common-law agency principles to determine whether a state official communicated, by statements or conduct, that the private party was authorized to act as an agent of the state. Sines, 359 Or at 59.

A private search or seizure may, however, destroy the privacy or possessory interests protected by Article I, section 9, at least to the extent of the private search. In Luman, the defendant's video tapes containing evidence of a crime were viewed, without permission, by his employees. They then turned over the tapes to the police and told them what was on them. Although the search by the employees was unquestionably a private search not subject to constitutional protection, the court held that the subsequent, warrantless search of the videos by the police did not violate Article I, section 9, because the private viewing destroyed the defendant's protected possessory or privacy interest in the tapes. Luman, 347 Or at 495-99; cf. State v. Sines, 287...