WASHINGTON and OREGON: SEARCH AND SEIZURE OF YOUR HOME:  WHERE WOULD YOU MOVE TO?

As you may have read in my earlier blogs, Washington state protects individual rights, more than its southern neighbor, the state of Oregon.  Nowhere is this more evident, than in the case of State vs. Ferrier. 136 Wash.2d at 118-19, 96o P.2d 927.   In the Ferrier case, the Washington state Supreme Court has ruled that when police officers conduct a knock and talk for the purpose of obtaining consent to search a home, and thereby avoid the necessity of obtaining a warrant, they must, 1) prior to entering the home, inform the person from whom consent is sought that he or she may lawfully refuse to consent to the search and 2) that they can revoke, at any time, the consent that they give, and 3) they can limit the scope of the consent to certain areas of the home.   The failure to provide these warnings, prior to entering the home, vitiates any consent given thereafter. State vs. Ferrier. 136 Wash.2d at 118-19, 96o P.2d 927

The Washington State Supreme Court in that decision was discussing the right to be free from unreasonable searches and seizures under article I, section 7 of the Washington state Constitution. This right, under state law, goes further than the Fourth Amendment in the U.S. federal constitution in protecting “against warrantless searches and seizures, with no express limitations” to this protection.  City of Seattle v. Mesiani, 110 Wash.2d 454, 456, 755 P.2d 775 (1988) (citing Simpson, 95 Wash.2d at 178, 622 P.2d 1199). In addition, the Washington state Legislature has long provided protection against unlawful government intrusions into the home, making it a gross misdemeanor “for any policeman or other peace officer to enter and search any private dwelling house or place of residence without the authority of a search warrant issued upon a complaint as by law provided.”  RCW 10.79.040.

So, in Washington state, the police, when without a search warrant, need to give, either read to or in writing, someone specific rights told to the homeowner, then, get their consent, then can be told by the person what the police can search and what they cannot search. If the police violate this policy and rule, they could be guilty of a crime pursuant to RCW 10.79.040. Wow!

Now, let’s take a look in the state of Oregon, just south of the river from Vancouver, Washington.

Under the Oregon Constitution, Article 1 Section 9, 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.  T]he privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right.” Id. at 164, 759 P.2d 1040 (emphasis in original). That privacy right is particularly pertinent when it involves a person’s home. See generally State v. Tanner, 304 Or. 312, 320, 745 P.2d 757 (1987). That is so because a person’s home is the “quintessential domain protected by the constitutional guarantee against warrantless searches.” State v. Louis, 296 Or. 57, 60, 672 P.2d 708 (1983). The privacy rights protected by Article I, section 9, are defined by an objective test of whether the government’s conduct “would significantly impair an individual’s interest in freedom from scrutiny, i.e., his privacy.” State v. Dixson/Digby, 307 Or. 195, 211, 766 P.2d 1015 (1988). “[T]he threshold question in any Article I, section 9, search analysis is whether the police conduct at issue is sufficiently intrusive to be classified as a search.” State v. Ainsworth, 310 Or. 613, 616, 801 P.2d 749 (1990) (citing Campbell, 306 Or. at 162-63, 759 P.2d 1040). “One indication of whether a government action intrudes on a person’s privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or.App. 460, 464, 896 P.2d 7 (1995). However, people may sacrifice their right to privacy by conducting themselves “in otherwise protected areas in such a way that their words or acts can plainly be seen or heard outside without any special effort.” Louis, 296 Or. at 61, 672 P.2d 708. See, e.g., State v. Wacker, 317 Or. 419, 426-27, 856 P.2d 1029 (1993) (defendant, who carried out activities in a lighted car in the parking lot of a business open to the public where people regularly passed within a few feet of the car, had no protected privacy interest that was violated when police watched the activities).

So, in Oregon, there has to be 1) a search (as defined in Oregon law) and 2) the search would offend social and legal norms of behavior by engaging in the same kind of intrusion as a private person. An illegal search by the police or other agency is currently not a crime in Oregon state.  In Oregon searches have been held to be invalid by merely checking boots on a doorstep or peering through cracks to see inside someone’s basement.  It is mostly a case by case basis in Oregon.  If it is normal for the private public to conduct a search, it is sufficient for the police to do so.  So, with a high resolution lens on a camera, the police could conduct a search of an open window to someone’s home and it could be deemed open to the public.  Let’s look at some more Oregon cases.

In State vs. Chinn, 231 Or. 259, 373 P.2d 392 (1962)  for example, the Oregon Court of Appeals addressed the lawfulness of a warrantless police search of the defendant’s apartment on a tip that a man who had committed sexual abuse lived there. The police knocked on the door and were allowed to enter by one of the occupants, who told them that the defendant was not present. The police proceeded to search the premises, and, when finished, decided to remain at the apartment, watch television, and wait for the defendant to return. When the defendant returned, they arrested him and took with them evidence that they had discovered during the search. When the defendant challenged the lawfulness of the warrantless search, the state argued that the evidence was constitutionally seized during an arrest. The Oregon Supreme Court agreed.  So, basically, in Oregon, if the police conduct a search of one’s home and find incriminating evidence when the owner is not home and establish a connection to a lawful arrest, the search is valid.  This is a far cry from just north of the river in Washington state where the police have to read special rights, and not make a mistake, or they themselves have committed a crime by conducting an unlawful search.

Also, let’s look at some other Oregon cases.    State constitutional prohibition against unreasonable searches or seizures is limit on “state action,” and it does not apply to searches or seizures by private persons acting on their own volition; however, when private parties act at behest of State or under mantle of State’s authority, their actions are subject to constitutional limitations. Const. Art. 1, § 9. State v. Okeke, 1986, 82 Or.App. 393, 728 P.2d 872, review allowed 303 Or. 261, 735 P.2d 1224, affirmed 304 Or. 367, 745 P.2d 418.    Article I, section 9, is a limit on “state action,” and it does not apply to searches or seizures by private persons acting on their own volition. State of Oregon v. Olsen, 212 Or. 191, 317 P.2d 938 (1957); State v. Padilla, 9 Or. App. 162, 496 P.2d 256 (1972). When, however, private parties act at the behest of the state or under the mantle of its authority, their actions are subject to constitutional limitations. State v. Lowry, 37 Or.App. 641, 588 P.2d 623 (1978), rev. den. 285 Or. 195 (1979).In the Okeke case, and in the Lowry case, the police worked with private parties to conduct a search, they didn’t just watch the private party conduct the search.  However, where an individual, who undercover police officer approached and inquired about purchase of drugs, took officer to defendant’s apartment and when they arrived such individual knocked on door and, after receiving no answer, opened unlocked door and indicated to officer that he should enter with him and, on entry, reached behind couch and pulled out a paper bag containing drugs, which he gave to the officer, the court found that the drugs were not fruit of an illegal search and seizure since apartment was not searched by the officer and officer did not directly participate in any way but was a mere observer. U.S.C.A.Const. Amend. 4. State v. Boutin, 1976, 26 Or.App. 485, 552 P.2d 1349, review denied by the Oregon Supreme Court.  In the Boutin case, the police did begin the inquiry, did enter the house of the defendant without his consent and without a warrant, did aid and assist a private person to an unlawful private entry into the home, (which would offend the social norms mentioned above if a private person conducted the search), and yet, the search is fine under Oregon law.   So ,basically, in Oregon, the police can enter without a warrant and you still may lose on appeal if you contest it in court.  Again, this is a far cry from just north of the river in Washington state where the police have to read special rights, and not make a mistake, or they themselves have committed a crime by conducting an unlawful search.

So, to conclude this article.  Let’s say, hypothetically, you have your own stash of 99 marijuana plants, a special breed of plant that isn’t even legal in Washington state (but the feds won’t touch because it is less than 100 plants).  Also, let’s say you want to move to the Portland area to make some profits on your plants in the liberal city of Portland.  Knowing what you just read above, seriously, where would you move to?  Portland, Oregon?  Or Vancouver, Washington?

• This article was written by Gregory Scott Hoover with legal research conducted by many sources. Gregory Hoover is with the firm of the Hoover Law Group. They have offices in Seattle 815 S. Weller Street Suite 105 Seattle,WA  98104 Phone: (206) 613-3111 Fax: (206) 613-3112 and Bellevue 40 Lake Bellevue Drive Suite 100 Bellevue,WA  98005 Phone: (425) 223-8300 Fax: (425) 451-9438 Portland 1001 SW 5th Avenue Suite 1100 Portland, OR  97204 Phone: (503) 222-1276 Fax:  (503) 220-1815. Hoover Law Group’s primary area of legal practice is in the form of civil and criminal litigation, immigration law, and assisting those involved in real estate transactions. Mr. Hoover is licensed in both Oregon and Washington, and New York, U.S.A., and England and Wales. Mr. Hoover is also a skilled negotiator, mediator and arbitrator. As a skilled negotiator and litigator, Mr. Hoover, and his staff, can skillfully resolve your situation through effective negotiations or, if necessary, aggressively represent your matter in court.

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