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

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.