The issue is whether police use of a radio transmitter to locate a private automobile to which the transmitter has been surreptitiously attached is a "search" or "seizure" under Article I, section 9, of the Oregon Constitution.
We base our statement of the facts on the findings of the circuit court.
In late 1984, police officers in Washington and Columbia Counties began to suspect that defendant was committing residential burglaries in a rural area along the border of those two counties. The police suspected defendant because he was then on probation for burglaries that were committed in a somewhat similar fashion, because he lived in the area, and because his automobile had been seen near some of the burglarized residences when those burglaries were thought to have been committed.
Having failed to follow defendant visually, members of the Washington County Sheriff's Office decided to follow him by means of a radio transmitter attached to his automobile. A detective from that office testified that radio transmitters were used to follow individuals pursuant to "in-house criteria."
The detective testified that no effort was made to obtain a search warrant to attach or monitor the transmitter because no warrant was believed to be required so long as the attachment was to the outside of the automobile while it was in a public place.
On January 15, 1985, a Washington County Sheriff's Office detective surreptitiously
Initial efforts to follow defendant's automobile with a ground-based receiver were either unsuccessful or did not uncover any criminal activity. On January 21, 1985, a police officer replaced the transmitter's batteries, again while the automobile was in a public parking lot. The next day, after failing to pick up the signal with the ground-based receiver, officers attempted to locate the automobile with a receiver in a small airplane. That receiver also failed to pick up the signal in the area in which the burglaries had been committed, but, by climbing to 4500 feet and flying in widening patterns, the officers were able to pick up a faint signal, which was tracked to a rural area near Molalla, Oregon, some 40 miles to the southeast in Clackamas County. There they discovered defendant's automobile parked along a public road near a residence. From the airplane, they visually followed the automobile when it moved to the driveway of another residence, where they observed defendant get out of the automobile and act in a manner that suggested to them that he was burglarizing the residence.
Defendant was indicted for burglarizing the two Clackamas County residences and moved to suppress all evidence derived from the use of the radio transmitter attached to his automobile.
On the state's appeal pursuant to ORS 138.060(3), a panel of the Court of Appeals affirmed with one judge dissenting. State v. Campbell, 37 Or.App. 415, 742 P.2d 683 (1987). The court held that the attachment and monitoring of the transmitter was a significant "trespass" to defendant's automobile and was, for that reason, a seizure of the automobile under the Oregon Constitution. 87 Or. App. at 420, 742 P.2d 683. The dissenting judge would have held that there was no seizure because there was no interference with defendant's use of his automobile and no search because defendant had no privacy interest in the use of his automobile in a public place. 87 Or. App. at 422-23, 742 P.2d 683 (Warren, J., dissenting).
Defendant argues that the attachment and monitoring of the transmitter violated his rights under Article I, section 9, and the Fourth Amendment to the United States Constitution.
In accordance with their "in-house criteria," the police officers attached and monitored the transmitter on defendant's automobile in order to investigate and prevent the crime of burglary, ORS 164.225. No Oregon statute governs the use of radio transmitters to locate objects or people, and, apart from what the constitution may require, the conduct of the police officers in attaching and monitoring the transmitter was not contrary to any other law. The issue on which the lawfulness of the police conduct turns, then, is whether the attachment or monitoring of the transmitter was a search or seizure under Article I, section 9, of the Oregon Constitution. A search or seizure to obtain evidence of a crime is unconstitutional if no warrant authorized the search or seizure and there is no exigency that would obviate the need for a warrant. State v. Kosta, 304 Or. 549, 553, 748 P.2d 72 (1987); State v. Owens, 302 Or. 196, 205-06, 729 P.2d 524 (1986). In this case, there was neither a warrant nor any exigency that would have obviated the need for a warrant. If the attachment or monitoring of the transmitter was a search or seizure, the motion to suppress was properly allowed. See State v. Kosta, supra, 304 Or. at 553, 748 P.2d 72; State v. Tanner, 304 Or. 312, 315, 745 P.2d 757 (1987); State v. Davis, 295 Or. 227, 231-37, 666 P.2d 802 (1983); State v. Laundy, 103 Or. 443, 494, 204 P. 958, 206 P. 290 (1922).
This court has often stated that "privacy" is the interest protected by Article I, section 9, against unreasonable searches but has had little occasion to further define that interest. See, e.g., State v. Tanner, supra, 304 Or. at 319, 745 P.2d 757; State v. Owens, supra, 302 Or. at 206, 729 P.2d 524; State v. Louis, 296 Or. 57, 60-61, 672 P.2d 708 (1983); State v. Elkins, 245 Or. 279, 288-92, 422 P.2d 250 (1966). Nearly all of the government actions that have been challenged under Article I, section 9, have long been recognized as searches, and the court has had no difficulty equating these traditionally recognized searches with infringements of privacy interests. See, e.g., State v. Louis, supra, 296 Or. at 60, 672 P.2d 708.
Privacy is also recognized by the Supreme Court of the United States as the interest protected by the Fourth Amendment's prohibition on unreasonable searches. See Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Since Katz, the Court has defined a Fourth Amendment search as a government action that infringes upon a "reasonable expectation of privacy."
This court has expressed doubts about the wisdom of defining Article I, section 9, searches in terms of "reasonable expectations of privacy." See State v. Tanner, supra, 304 Or. at 321 n. 7, 745 P.2d 757; State v. Louis, supra, 296 Or. at 60, 672 P.2d 708. Because the phrase continues to appear so often in arguments, we here expressly reject it for defining searches under Article I, section 9. The phrase becomes a formula for expressing a conclusion rather than a starting point for analysis, masking the various substantive considerations that are the real bases on which Fourth Amendment searches are defined. See, e.g., Wilkins, Defining the "Reasonable Expectation of Privacy": An Emerging Tripartite Analysis, 40 Vand.L. Rev. 1077 (1987). Moreover, the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right. See State v. Tanner, supra, 304 Or. at 321 n. 7, 745 P.2d 757. The Supreme Court of the United States is not unaware of this difficulty, for it has stated that a "reasonable expectation of privacy" is an expectation of privacy that is "legitimate" or that "society is prepared to recognize as reasonable." E.g., United States v. Jacobsen, 466 U.S. 109, 122-23, 104 S.Ct. 1652, 1661-62, 80 L.Ed.2d 85 (1984). The definitional gloss, however, does not make the phrase any more useful for defining a search. Justice Harlan, who was responsible for originating the phrase "reasonable expectation of privacy" in his Katz concurrence, wrote four years later:
United States v. White, 401 U.S. 745, 786, 91 S.Ct. 1122, 1143, 28 L.Ed.2d 453 (1971) (Harlan, J., dissenting).
We therefore turn to the substance of the state's arguments, shorn of their "reasonable expectation of privacy" packaging. The state, relying on Karo and Knotts, makes essentially two arguments, which are based on somewhat different factual premises. The first argument is that no privacy interest of defendant was infringed
We do not accept either the factual or the legal premise of the state's first argument. The state says in its brief, quoting United States v. Knotts, supra, 460 U.S. at 281-82, 103 S.Ct. at 1085-86;
The argument is factually unsound on the record before us, because the police, notwithstanding diligent efforts, found it impossible to follow defendant's automobile through visual surveillance. Indeed, their policy was not to use a transmitter unless visual surveillance had failed. Moreover, it is wrong to characterize the radio transmitter as simply a device for "enhancing" visual observations in the manner of moderate power binoculars or camera lenses. Cf. State v. Louis, supra, 296 Or. at 61, 672 P.2d 708 (use of 135 mm camera lens not a search). The transmitter has nothing to do with vision; it broadcasts a signal that enables the police to locate, with little delay, the transmitter from anywhere that its signal can be received. Using the transmitter, police were able to locate defendant's automobile some 40 miles from where they expected to find it, and to do so they did not need to maintain constant surveillance of the transmitter or to follow a trail, as one would track a person by looking for footprints, broken branches, etc.
But even were we to accept the factual premise of the state's first argument, its legal premise is also unsound. That premise is that information legitimately available through one means may be obtained through any other means without engaging in a search.
The constitutional provisions against unreasonable searches and seizures do not protect a right to keep any information, no matter how hidden or "private," secret from the government. Cf. State v. Weist, 302 Or. 370, 376-77, 730 P.2d 26 (1986) (constitutional provisions do not limit warrants to evidence of crimes); ORS 133.535 (statutory specification of things subject to search and seizure); Warden v. Hayden, 387 U.S. 294, 304, 87 S.Ct. 1642, 1648-49, 18 L.Ed.2d 782 (1967) (rejecting contention that police may not search for and seize "mere evidence"). What the provisions forbid are unreasonable searches and seizures, i.e., certain acts of the government. Article I, section 9, "presents the police with a web of rules that are meant to protect the privacy interests of `the people,' and the police violate section 9 if and only if they violate these rules." State v. Tanner, supra, 304 Or. at 320, 745 P.2d 757. Whether police conduct is a search does not turn on whether its object could be discovered by conduct that is not a search. For example, in State v. Louis, supra, the defendant exposed himself to public view through his living room window. This court held that police officers did not engage in a search by photographing him from a house across the street with a 135 mm camera lens, which provided only minimal enhancement of what could be observed with the unaided eye. Nonetheless, the police officers would have engaged in a search had they entered his living room to observe what could be observed from the street. Similarly, if an undercover police officer is invited into a home and observes illegal conduct, the officer has not committed a search, but an unconsented entry into the home by other police officers to observe what the undercover officer could or did observe would be a search. The issue is not whether what the police learned by using the transmitter in this case was "exposed
The state's second argument does not rest on the factual premise that the police observed with the transmitter what any member of the public could have observed. The argument, rather, is that only government actions that observe conduct or objects within "protected premises" are searches, for, so the state argues, it is only within "protected premises" that an individual has a privacy interest protected by Article I, section 9. In making this argument, the state concedes that the transmitter at least "enhances" what members of the public can observe.
The state cites State v. Louis, supra, in support of its argument. After holding that police use of a 135 mm camera lens to take pictures of the interior of a house from a neighboring house was not a "search" under Article I, section 9, the court continued:
296 Or. at 61, 672 P.2d 708. The state reads the italicized language in support of its argument, but that is a misreading of Louis, as a quotation from a preceding paragraph makes clear:
296 Or. at 60, 672 P.2d 708. This court's reference to "protected premises" in Louis was intended to affirm that the recognition of privacy as the fundamental interest protected against government searches did not qualify the protection traditionally accorded to "protected premises" such as houses under the older "constitutionally protected area" analysis for identifying "searches" under the Fourth Amendment and Article I, section 9. Louis did not imply that only government actions that learned something about the interior of "protected premises" could be searches.
For a half-century, the United States Supreme Court defined a Fourth Amendment search as a physical trespass to a "constitutionally protected area," i.e., a physical trespass to those "areas" explicitly protected by the Fourth Amendment: persons, houses, papers, and effects. See, e.g., Olmstead v. United States, 277 U.S. 438, 465-66, 48 S.Ct. 564, 568, 72 L.Ed. 944 (1928) (telephone tap was not a search because the tap did not involve a trespass to a person, house, paper or effect). This definition of a search was long criticized for its narrow and arbitrary reading of the interests protected by the Fourth Amendment. See Amsterdam, Perspectives on the Fourth Amendment, 58 Minn.L.Rev. 349, 382 & n. 316 (1974). With a growing recognition that privacy was the principal interest to be protected, the Court began to abandon the definition, see, e.g., Jones v. United States, 362 U.S. 257, 266, 80 S.Ct. 725, 733-34, 4 L.Ed.2d 697 (1960); Silverman v. United States, 365 U.S. 505, 511, 81 S.Ct. 679, 682-83, 5 L.Ed.2d 734 (1961), and eventually rejected it altogether in Katz v. United States, supra.
In Katz, FBI agents placed a listening device on the outside of a public telephone booth. The device was not a wiretap and would ordinarily pick up only the words of the person in the booth. Id., 389 U.S. at 354 & nn. 14-15, 88 S.Ct. at 512-13 nn. 14-15. The defendant argued that use of the listening device violated his Fourth Amendment rights because a telephone
389 U.S. at 351-52, 88 S.Ct. at 511-12.
To be sure, the state does not ask us to go so far as to rule that there is no search without a physical trespass to "protected premises." But the notion that the interests protected against government searches by Article I, section 9, are limited to interests in certain "protected premises" is unsustainable given this court's repeated recognition of privacy as the principal interest protected against unlawful searches. See State v. Tanner, supra, 304 Or. at 319, 745 P.2d 757; State v. Owens, supra, 302 Or. at 206, 729 P.2d 524; State v. Elkins, supra, 245 Or. at 288-92, 422 P.2d 250. Intrusions and technologically enhanced observations into "protected premises" infringe privacy interests protected by Article I, section 9, but the question whether an individual's privacy interests have been infringed by an act of the police cannot always be resolved by reference to the area at which the act is directed. Cf. State v. Tanner, supra, (search of home in which defendant had no possessory interest nevertheless violated defendant's privacy interests); Katz v. United States, supra.
With respect to the use of radio transmitters to locate objects and people, it is not even possible to ascertain whether the use is directed at a "protected premise" until after the object or person is located. Learning the location of the object or person is, after all, the purpose of the device. This fact demonstrates another difficulty with the state's contention that police use of transmitter is a search only if the transmitter is in a "protected premise." The constitution is addressed to the government. The rules laid down for the government by Article I, section 9, must be rules that the government is capable of following. See State v. Tanner, supra, 304 Or. at 320, 745 P.2d 757. Using a transmitter is either a search or it is not. Whether using the transmitter is a search cannot depend upon the fortuity of where the transmitter happens to be taken by the person under observation. In order to decide whether the government has searched, we must look to the nature of the act asserted to be a search.
A privacy interest, as that phrase is used in this court's Article I, section 9, opinions, is an interest in freedom from particular forms of scrutiny. The interest is not one of freedom from scrutiny in general, because, if that were the case, any form of scrutiny would infringe a privacy interest and thereby be considered a search. A court has never held, for example, that a police officer engages in a search by making unaided observations from a public place, and an individual therefore cannot be said to have a constitutionally protected interest in freedom from such scrutiny.
Government scrutiny aside, individual freedom from scrutiny is determined by social and legal norms of behavior, such as trespass laws and conventions against eavesdropping. See Katz v. United States, supra, 389 U.S. at 350-51, 88 S.Ct. at 510-11; United States v. White, supra, 401 U.S. at 786, 91 S.Ct. at 1143 (Harlan, J., dissenting); Gross, The Concept of Privacy, 42 NYUL Rev 34, 35-37 (1967). One explanation for the absence of a constitutionally protected interest against certain forms of government scrutiny may be the absence of any freedom from those forms of scrutiny in society at large. The reason that the observations of a police officer who is standing in a public place infringe
Our intention is not to set forth a definition of search based upon social and legal norms of behavior but to clarify the nature of the interest protected by Article I, section 9. Social and legal norms cannot govern the scope of the constitutional provision, which itself plays a substantial role in shaping those norms. See, e.g., United States v. White, supra, 401 U.S. at 786, 91 S.Ct. at 1143 (Harlan, J., dissenting). But since 1859, when Article I, section 9, was adopted, the government's ability to scrutinize the affairs of "the people" has been enhanced by technological and organizational developments that could not have been foreseen then. Tiny radio transmitters for surreptitiously locating objects to which the transmitters are attached are among these developments. In deciding whether government practices that make use of these developments are searches, we must decide whether the practice, if engaged in wholly at the discretion of the government, will significantly impair "the people's" freedom from scrutiny, for the protection of that freedom is the principle that underlies the prohibition on "unreasonable searches" set forth in Article I, section 9.
As we noted above, use of a radio transmitter to locate an object to which the transmitter is attached cannot be equated with visual tracking. See also 1 LaFave, Search and Seizure § 2.7(d) (2d ed 1987). Any device that enables the police quickly to locate a person or object anywhere within a 40-mile radius, day or night, over a period of several days, is a significant limitation on freedom from scrutiny, as the facts of this case demonstrate. The limitation is made more substantial by the fact that the radio transmitter is much more difficult to detect than would-be observers who must rely upon the sense of sight. Without an ongoing, meticulous examination of one's possessions, one can never be sure that one's location is not being monitored by means of a radio transmitter. Thus, individuals must more readily assume that they are the objects of government scrutiny. Professor Amsterdam and Justice Harlan, among others, have observed that freedom may be impaired as much, if not more so, by the threat of scrutiny as by the fact of scrutiny. See United States v. White, supra, 401 U.S. at 787-89, 91 S.Ct. at 1143-45 (Harlan, J., dissenting); Amsterdam, supra, at 402-03.
The problem presented by this case is essentially much like that presented in Katz, which was whether using a hidden listening device placed in a public place could be considered a search. Conversations
We hold that the use of the radio transmitter to locate defendant's automobile was a search under Article I, section 9, of the Oregon Constitution. Because the police did not have a warrant to use the transmitter, and because no exigency obviated the need to obtain a warrant, use of the transmitter violated defendant's rights under Article I, section 9.
Our disposition of this case makes it unnecessary to decide whether the Court of Appeals correctly held that the attachment and monitoring of the transmitter was a "seizure" under Article I, section 9. We also need not address defendant's Fourth Amendment arguments.
The judgment of the circuit court and the decision of the Court of Appeals are affirmed. The case is remanded to the circuit court for further proceedings.
The Fourth Amendment applies to the states through the due process clause of the Fourteenth Amendment. Ker v. California, 374 U.S. 23, 30-34, 83 S.Ct. 1623, 1628-30, 10 L.Ed.2d 726 (1963).