Oregon Supreme Court 12-31-09
Read the full article for details about the following new cases:
- Privacy interest - closed container - smell
- Privacy interest - closed container - shared
Two bad opinions today from the Oregon Supreme Court on the privacy interests of closed containers:
Privacy interest - closed container - smell
A smelly container may announce its contents such that privacy interests are lost. Here, a container reeking of ammonium, combined with contextual clues like discoloration of metal, announced itself as containing methamphetamine precursors. Thus, defendant's privacy interests were lost and the officer's confirmatory test was Constitutionally valid. The two general propositions on which this case is based:
(1) the contents of a container may be revealed not only visually, but also by the container's feel or smell, and, possibly, by its taste or sound; and (2) individual expertise and training may provide the knowledge that turns various sensory clues into probable cause.
A videotape (or any other item) which is taken and viewed by private parties no longer retains a privacy interest, at least to the extent of the viewing. Even if the private party has stolen the videotape from the lawful owner. Thus, if the private party hands the material over to the police, they may watch the tape without a warrant because it involves no additional injury to a privacy interest. Here, employees of a restaurant discovered that the restauranteur was illicitly taping women using the restroom. The employees watched some of the tapes and then took them to the County Sheriff who also watched them. State v. Luman
Despite the limiting nature of these opinions, there are still open questions. Here's Ryan's argument, for example, that a ballistics test still requires a warrant:
In short, the argument is this: when a gun is seized as, say, a search incident to arrest, and a ballistics test later reveals that the gun was used in some other case where the gun had been discharged (i.e., the cops have bullets or shell casings from the other incident), then the cops needed a warrant to do the ballistics test. The state's primary response will be: a ballistics test is merely a confirmatory test, and confirmatory tests don't require a warrant. Except that a confirmatory test simply confirms the item is what it seems to be: the suspected meth is meth, the apparent blood drop is in fact blood. Such an argument would fly if the test were simply to confirm that the firearm was in fact a firearm. But a ballistics test is no more confirmatory than a blood test to determine DNA is a confirmatory test. (The state will blur the distinction, arguing that "the test simply confirmed that the defendant was guilty, hence it's confirmatory.) Now, I think this argument will fail when the firearm was seized pursuant to a warrant. And it might still lose if the state can make an argument that there is no protected privacy interest in the gun. But note that in the Luman opinion, even though the video was evidence of a crime, the only reason the protected privacy interest was destroyed was because private citizens had viewed (apparently) the entire video tape. (Umm, just out of curiosity, why didn't the private citizens stop after it became obvious what it was?) That is not going to apply to a ballistics test where, obviously, a person can see the striations in any meaningful way, or a blood test, where the DNA isn't visible, or any other microscopic exam.