Chapter § 1.2

• Jurisdiction: Oregon

§ 1.2 STATE SUPREMACY

Perhaps the best way to illustrate the relationship between analogous state and federal constitutional rights is spatial. For this purpose, the right to be free in one's person and property from unreasonable physical intrusion—"privacy" in its basic sense—provides the best example. Imagine a parcel of property, in the middle of which stands a home. Surrounding the home is a cultivated and well-maintained lawn, a shed for gardening tools, and a garage. Surrounding the cultivated lawn and outbuildings is an area of uncultivated and unoccupied timberland. The boundary between this entire parcel of property and surrounding public land is marked by a low fence and "Private Property—No Trespassing" signs. Now imagine that a local police officer, with neither a search warrant nor any suspicion whatsoever that the landowner possesses or has done anything unlawful, steps over the fence and stumbles on an unoccupied car on a dirt road. The car is in the timber; it is outside of the lawn area containing the house and outbuildings (the "curtilage") but inside of the area marked "No Trespassing."

The United States Supreme Court has construed the Fourth Amendment to the United States Constitution to mean that people have a constitutionally protected privacy interest in their homes and curtilage, but not in the land outside of this cultivated area. Hester v. United States, 265 US 57, 59, 44 S Ct 445, 68 L Ed 898 (1924); Oliver v. United States, 466 US 170, 183-84 & n 14, 104 S Ct 1735, 80 L Ed 2d 214 (1984). The Fourth Amendment, in other words, erects an imaginary but impenetrable barrier at the boundary between the curtilage and the rest of the world, and everything within that barrier is an area of individual freedom from unwanted scrutiny, protected against government intrusion, while everything outside of it is fair game—even land that is conspicuously posted with "No Trespassing" signs. Under the Fourth Amendment, then, the police can look inside the car, open its trunk, and look inside the glove compartment without having violated the property owner's constitutional right to be free from unreasonable search.

On the other hand, the Oregon Supreme Court—invoking local custom, geography, and topography—has construed Article I, section 9, of the Oregon Constitution to mean that the people of the state have a constitutionally protected right to freedom from unwanted scrutiny in their homes, their curtilage, and their uncultivated, fenced, and...