A Frighteningly Out-of-Touch Ruling on the Subsequent Inspection of Lawfully Seized Evidence

Posted by Scott Heiser, Director of ALDF's Criminal Justice Program on July 21, 2008

The Fourth Amendment states that,

"The right
of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized."

The corollary clause found in Oregon State Constitution (Article I, Section 9), states that,

"No
law shall violate the right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable search, or
seizure; and no warrant shall issue but upon probable cause, supported
by oath, or affirmation, and particularly describing the place to be
searched, and the person or thing to be seized."

The common edict in both Constitutions is quite obvious: we citizens are to be free from unreasonable searches and seizures.  Notwithstanding State v. Davis, 295 Or 227 (1983)1,
the basic concept–i.e., the application of the simple rule of reason in
analyzing the propriety of the government’s acquisition of evidence
against a suspect–has clung to life despite having endured years of
steady erosion to the remaining shreds of integrity in our justice
system.  Sadly, we just lost another big chunk of ground when the
Oregon Court of Appeals issued its opinion in State v. Luman.

The Facts:
The defendant owned a restaurant.  His employees turn on the TV in the
kitchen to watch the news while working (this was done contrary to
prior instruction from their boss, the defendant, to not use the TV). 
When they turned on the TV, the attached VCR started playing a tape
with footage of women using the restroom at the restaurant owned by the
defendant–the tape was graphic in nature and depicted unknowing and
non-consenting female patrons using the toilet and in various states of
undress.2
The employees investigated further and discovered that the defendant
had installed a hidden camera in the bathroom and that he had not just
videotaped women using the facilities, but that he had also edited the
raw footage to create a "highlights" or "best of" reel for his
perverted pleasure. The employees turned over all of the evidence they
found, including the videotapes, to the police.  The investigating
officer viewed the tapes to confirm the witnesses’ statements and to
attempt to identify the victims the defendant taped using the bathroom.
The defendant was convicted of his crimes.  

On appeal, he challenged the trial court’s refusal
to suppress the videotapes, claiming the officer needed a warrant to
review the tapes supplied to him by the defendant’s employees.  The
Court of Appeals agreed with the defendant, reversed his conviction and
held that in cases where the police lawfully possess evidence (meaning
that the seizure of the evidence is valid), before they can examine the
evidence lawfully in their possession with anything other than their
naked eye, they have to secure a formal search warrant.  Really?  Is it
honestly unreasonable for a cop to review the evidence supplied to him
by citizens before going to the next stage of the investigation?  Three
judges on the Oregon Court of Appeals seem to think so.  Never mind
that one could just as well argue that it is unreasonable for a cop to not
review the lawfully seized evidence before moving on with the case. 
Keep in mind the language of both the state and federal
Constitutions–we are to be protected against unreasonable searches.  

This
holding is profoundly out of touch and demonstrates a wholesale
abandonment of the rule of reason contemplated when the constructs of
search and seizure were originally articulated in our Constitutions.

Under the strained logic of this opinion, the
subsequent testing of lawfully seized drugs will now require a warrant;
the subsequent analysis of one’s lawfully seized blood or urine for
evidence of impairment will require a warrant; DNA testing of lawfully
seized crime scene trace evidence will now require a warrant.  Heck,
what if this was a photo album (rather than a videotape)–by the court’s
logic, the officer would need a warrant just to open the book to look
at the pictures.  Moreover, one simply cannot reconcile the many other
cases in Oregon that have yielded a practical result directly opposite
to that rendered by the Luman court.  See, State v. Langevin, 84 Or App 376, (1987), aff’d 304 Or 674 (1988); State v. Owens, 302 Or 196 (1986); State v. Westlund, 302 Or 225 (1986); State v. Herbert, 302 Or 237 (1986); State v. Plummer, 134 Or App 438 (1995).3

There can be no doubt that Luman will meet the same fate as did State v. Lowry, 295 Or 337 (1983), which was rejected in State v. Owens,
302 Or 196 (1986) three years later.  However, until that happens, the
defense will have a heyday exploiting this wrongly decided, poorly
reasoned and profoundly out-of-touch opinion to its fullest, yielding
plenty of unreasonable results.

1 Holding that, despite
more than 125 years of Oregon jurisprudence, state offenders will
forevermore enjoy even more new and exciting opportunities to escape
accountability for their conduct by the court’s sua sponte alteration of the application of the state exclusionary rule, to the profound benefit of Oregon’s criminals.

2The
crime at issue here is call "Invasion of Personal Privacy," ORS
163.700, and the substantive offense has nothing to do with animal law,
but the implications of this case’s holding most certainly do.

3 Admittedly, the
reasoning of many of these opinions is unduly strained and the holdings
appear to be, at least in part, driven by the severity of the
underlying conduct.  Nevertheless, the court in these cited opinions
reached the correct result, albeit oftentimes for the wrong reason in
most cases. Justice Rossman once wisely noted that, "[W]henever the
police lawfully seize and have in their possession a container that
they have probable cause to believe contains evidence of a crime, they
have a right to open it, examine the contents and to subject the
contents to confirmatory testing without a warrant." State v. Langevin, 84 Or App at 384. Sadly, the Court of Appeals is not yet ready to apply this sage bit of wisdom.  


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