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State v. Sines

Court of Appeals of Oregon

September 20, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JOHN ALBERT SINES, Defendant-Appellant.

          Submitted on remand June 6, 2016.

         Deschutes County Circuit Court 06FE1054AB Alta Jean Brady, Judge.

         On remand from the Oregon Supreme Court, State v. Sines, 359 Or. 41, 379 P.3d 502 (2016).

          Lisa A. Maxfeld fled the brief for appellant.

          John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Shorr, Judge, and Duncan, Judge pro tempore.

         Case Summary: Defendant appeals four convictions for first-degree sexual abuse, contending that the trial court erred in denying his motion to suppress evidence derived from a pair of underwear that his employees took from a laundry hamper in his home and turned over to the police. As pertinent on remand from the Supreme Court, defendant contends that the taking of the underwear was an unlawful seizure under the Fourth Amendment to the United States Constitution and the subsequent warrantless testing of the underwear involved several unlawful searches under Article I, section 9, of the Oregon Constitution and the Fourth Amendment. Held: For the reasons articulated by the Supreme Court in State v. Sines, 359 Or. 41, 379 P.2d 502 (2016), the employees' conduct was private conduct, not state action, for purposes of the Fourth Amendment as well as for purposes of Article I, section 9. However, the testing was a search under both the Fourth Amendment and Article I, section 9, because it exceeded the scope of the employees' private search by providing previously unknown and unobservable information. It was not merely confirmatory testing. Because no warrant was obtained and the state has not identified any applicable exception to [287 Or. 851] the warrant requirement, the testing violated both the Fourth Amendment and Article I, section 9.

         Convictions on Counts 1 through 4 reversed and remanded; otherwise affirmed.

         [287 Or. 852] DUNCAN, J. pro tempore

         This appeal comes to us on remand from the Supreme Court. In our initial opinion, we reversed and remanded defendant's convictions based on defendant's first assignment of error. We concluded that defendant's employees were acting on behalf of the state when they took a pair of defendant's nine-year-old daughter's underwear from a laundry hamper in his home and delivered it to a sheriff's deputy and, consequently, that evidence discovered in the underwear and the fruits of a search warrant based on that evidence were obtained in violation of Article I, section 9, of the Oregon Constitution. State v. Sines. 263 Or.App. 343, 328 P.3d 747 (2014) (Sines I). On review, the Supreme Court reversed, concluding that "the actions of defendant's employees in searching for and seizing the underwear constituted private conduct and therefore did not violate Article I, section 9." State v. Sines. 359 Or. 41, 62, 379 P.3d 502 (2016) (Sines II). The court remanded the case to us to consider defendant's similar argument under the Fourth Amendment to the United States Constitution and, if necessary, to address defendant's remaining assignments of error. Id. at 43 n 1, 62.

         On remand, we first conclude that, for the reasons articulated by the Supreme Court in Sines II, the employees' conduct was private conduct for purposes of the Fourth Amendment. Then we turn to defendant's second assignment of error, in which he argues that the trial court erred in denying his motion to suppress because the acceptance of the underwear by the deputy was an unlawful seizure under Article I, section 9, and the subsequent warrantless testing of the underwear was unlawful under both Article I, section 9, and the Fourth Amendment. We conclude that, even assuming that the officer's acceptance of the underwear was a lawful seizure, the testing of the underwear was an unlawful search under both Article I, section 9, and the Fourth Amendment. Because the testing was a search and was not justified by a warrant or any exception to the warrant requirement, defendant was entitled to suppression of the evidence derived from the testing.

         Finally, as we did in Sines I, we conclude that the trial court's erroneous denial of defendant's motion to [287 Or. 853] suppress "all evidence, including derivative evidence and statements, obtained through the unlawful and warrantless * * * testing of the underwear by the Oregon State Crime Lab" was not harmless. Consequently, we reverse defendant's convictions and remand for further proceedings.[1]

         I. HISTORICAL AND PROCEDURAL FACTS

         We take the background facts, the facts regarding defendant's first assignment of error, and the procedural history of the case from the Supreme Court opinion. We set out additional facts as necessary during our discussion of defendant's second assignment of error.

"Early in 2005, defendant and his wife adopted two siblings-T, a young girl, and V, her brother. Approximately one year later, defendant's wife and biological son moved out of the family residence. Defendant's housekeeper subsequently began to discover indications of what she thought might be sexual activity between defendant and the then-nine-year-old T.
"The housekeeper had observed, among other things, that T was sleeping with defendant in his bedroom and, in the bed, the housekeeper had found a 'type of Vaseline stuff '[u]p to halfway up [defendant's] sheets, ' as well as signs of the substance's use in the bathroom. Based on her observation of Vaseline-like handprints on the bathroom walls, the housekeeper believed that defendant 'had been having sex with somebody in the bathroom area, ' despite the fact that defendant's wife had moved out and defendant had no girlfriend. When the housekeeper, concerned about the possible abuse of T, suggested to defendant 'to go get a girlfriend, ' he told her 'he did not need one, he had T.'
"Defendant's housekeeper also observed a 'lot of discharge' in various pairs of T's underwear, noting that in some, the crotch of the garment had become so stiff that they had to be thrown away. According to the housekeeper, the heavily stained children's underwear appeared abnormal in that they did not look as if they had been worn by a child, but rather by a sexually active adult.
[287 Or. 854] "In March 2006, after consulting with another employee of defendant who worked in the home and also suspected that defendant was having sex with T, the housekeeper anonymously called a DHS [Department of Human Services] 'tip line' regarding the possible abuse. According to the DHS employee who took her call at around noon, the housekeeper appeared to be on the verge of tears, and first asked what the agency could determine from a pair of underwear. The DHS employee testified that he had responded by saying, 'Well, there's a lab here locally that can probably tell a lot. What's your concern?' The housekeeper then gradually related her observations regarding defendant and T, including the nature and extent of the discharge that she had observed on T's underwear, and told the DHS employee that she was considering taking a pair from defendant's house. The DHS employee reiterated several times that he could not tell her to take that kind of action, and that it was her decision. At the hearing on defendant's motion to suppress, the housekeeper stated that the DHS employee never asked her to get a pair of underwear; she said, 'No. Never.' She also testified, 'It was my idea.' The DHS employee gave the housekeeper his direct telephone number, expecting, based on their conversation, that she probably would take the underwear. The housekeeper retained her anonymity throughout their conversation, although she eventually disclosed the names of defendant and defendant's wife.
"Following the housekeeper's phone call, the DHS employee contacted a deputy at the Deschutes County Sheriffs Office. As a general matter, DHS policy called for safety checks to be conducted within 24 hours after receipt of a call regarding suspected abuse, unless there was good cause for delay. The DHS employee and the deputy sheriff instead decided to assign the case a five-day response time to see whether the housekeeper would take any action. Neither the DHS policy nor the decision to extend the time period was communicated to the housekeeper.
"The same day that she talked to DHS, the housekeeper called another employee of defendant who similarly suspected abuse and who was planning to work at defendant's house the next day. The housekeeper told the other employee, 'I'm thinking we need to get something of evidence, ' and 'I'm thinking underwear.' The other employee said, 'I'll see what I can do.' The following day, while defendant was taking T and her brother to school, the [287 Or. 855] other employee went into the laundry room of defendant's house and took the first pair of T's underwear that she saw. She turned the underwear over to the housekeeper after work. The housekeeper then called her DHS contact, who arranged for her to bring the underwear to DHS and the deputy sheriff the next day, which she did.
"The child's underwear was immediately delivered to the Oregon State Police Crime Lab in Bend for testing. When the tests revealed spermatozoa on the garment, authorities obtained and executed a warrant to search defendant's house. Defendant was arrested at that time, and police seized other evidence, including a nightgown, pajama pants, a bathing suit, and jeans, all belonging to T. Tests conducted on those items revealed additional evidence of spermatozoa and seminal fluid.
"Defendant was charged with nine counts of first-degree sexual abuse, one count of first-degree rape, and two counts of first-degree sodomy, charges that involved both T and her brother, V. Before trial, as relevant here, defendant moved to suppress
"'all evidence, including derivative evidence and statements, obtained through the [housekeeper's] unlawful and warrantless (a) search of the laundry hamper in his home, (b) seizure of the underwear from the hamper, (c) seizure of the underwear by police and (d) the destruction and testing of the underwear by the Oregon State Crime Lab.'
"Following a hearing on that motion, the trial court denied defendant's motion. As to the initial taking of T's underwear by defendant's employees, the court reviewed the evidence at the hearing to determine whether, under the circumstances, either employee had acted 'as an instrument or agent of the government, ' making their conduct 'state action' for purposes of Article I, section 9. It concluded that they had not. The trial court explained that the housekeeper 'was not directed [by the DHS employee] to seize [T's] underwear.' Rather, the employees themselves discussed and then executed a 'plan of action.' The court noted that the DHS employee did not encourage or participate in the seizure of the underwear and that, while he 'may have had an expectation that the housekeeper would likely obtain possession of the underwear, ' he specifically told the housekeeper that he could not ask her to search [287 Or. 856] for or seize it. The court stated that any 'circumstantial encouragement' during his conversation with the housekeeper was 'insufficient governmental involvement to warrant application of the exclusionary rule, ' citing State v. Waterbury, 50 Or.App. 115, 622 P.2d 330, rev den, 290 Or. 651 (1981). Accordingly, the trial court ruled that the actions of defendant's two employees 'do not constitute state action.' The trial court also held that the police acquisition of the underwear from the housekeeper was not an unlawful seizure, because that action was supported by 'an objectively reasonable belief that the child's underwear contained evidence of a crime, ' and that the testing of the underwear was not an unlawful search, because the information provided to police officers by the housekeeper, together with a visual examination of the underwear, supported the 'objectively reasonable belief that * * * the underwear contained evidence of a crime and the testing would provide confirmation of that belief
"At the trial that followed, the state introduced the test results for the confiscated garments, and a jury convicted defendant on four counts of first-degree sexual abuse involving T; it deadlocked or acquitted on the remaining counts."

Sines II, 359 Or at 44-48 (brackets in Sines II; heading omitted; footnote omitted).

         II. ANALYSIS

         A. Collection of Evidence by Third Party

         As the Supreme Court has instructed us to do, we begin by considering defendant's argument that the employees' conduct was "state action" for purposes of the Fourth Amendment even though it was private conduct under Article I, section 9. Id. at 43 n l.[2] As explained below, the [287 Or. 857] Supreme Court's reasoning in rejecting defendant's argument under Article I, section 9, also answers the question under the Fourth Amendment.

         Before the Supreme Court, the parties presented "two somewhat different approaches for determining when a search and seizure conducted by a citizen should be construed as state action and therefore subject to the constitutional protections provided by Article I, section 9, of the Oregon Constitution." Id. at 51. The state contended that the court should employ common-law agency principles to decide "when a private citizen is acting on behalf of or under the authority of the state"; defendant relied on a two-part test used by the Ninth Circuit Court of Appeals, "viz.: (1) Did the government know of and acquiesce in the conduct being examined, and (2) did the party performing the search intend to assist law enforcement rather than further the party's own ends?" Id. at 52.

         The court concluded that the common-law agency analysis was the better choice and, accordingly, adopted it as the test for state action under Article I, section 9. Id. at 53-59. Applying that analysis, the court concluded that the employees' conduct was not state action. Id. at 59-62. The court also rejected the argument that defendant presents under the Fourth Amendment: The court explained that, given the way the majority of federal cases use the terms "knowledge of" and "acquiescence in" otherwise private conduct, the facts here do not satisfy the first part of the two-part test that defendant urged the court to apply. Id. at 57 (citing United States v. Smythe, 84 F.3d 1240, 1242-43 (10th Cir 1996); United States v. Jarrett, 338 F.3d 339, 346 (4th Cir 2003), cert den, 540 U.S. 1185 (2004); United States v. Koenig, 856 F.2d 843, 847 (7th Cir 1988); and United States v. Walther, 652 F.2d 788, 792 (9th Cir 1981)). The court explained that, "in application, the first part of defendant's proposed test-although using different words-does not appear to differ substantively from the agency principles we have discussed." Id.

         That conclusion-that the federal test that defendant proposed, properly applied, yields a result unfavorable to defendant-also disposes of the argument that [287 Or. 858] defendant makes under the Fourth Amendment. Defendant contends that the employees were state actors under the Fourth Amendment because, applying the same test that defendant proposed that the Supreme Court should adopt under Article I, section 9, DHS knew of and acquiesced in the employees' conduct and the employees' purpose was to assist law enforcement. However, the Supreme Court held that, under these circumstances, DHS did not know of and acquiesce in the employees' conduct as those terms are used in the federal case law. Id. Accordingly, we reject defendant's argument that the employees were state actors under the Fourth Amendment when they searched for and seized the underwear from defendant's home.

         B. Acceptance and Testing of Evidence by the State

         We turn to defendant's second assignment of error, in which he asserts that the trial court erred in denying his motion to suppress because his constitutional rights were violated by two additional types of state action: First, defendant argues that the deputy seized the underwear without a warrant when he accepted it from the housekeeper, and, second, defendant argues that the crime lab's testing of the underwear involved three additional searches.

         1. Additional historical and procedural facts

         We begin by setting out additional facts relevant to defendant's arguments. We are bound by the facts found by the trial court as long as there is constitutionally sufficient evidence to support them. State v. Campbell, 306 Or. 157, 159, 759 P.2d 1040 (1988). In the absence of a specific finding of fact, where there is evidence from which the trial court could have found a pertinent fact in more than one way, we presume that the court's finding was consistent with its ultimate conclusion. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993).

         As noted above, after the housekeeper obtained the underwear from the other employee, she called her DHS contact, who arranged for her to deliver the underwear to a DHS caseworker and the deputy sheriff assigned to the case, Detective Quick. The next morning, the housekeeper met with the caseworker and Quick in a Walmart parking [287 Or. 859] lot. She identified herself and told Quick about the observations that had caused her to believe that defendant was abusing T, including the discharge that she had seen in T's underwear.[3] With respect to the underwear, the housekeeper explained that she had seen discharge that she would expect to see in the underwear of a sexually active woman, not a nine-year-old girl. Quick understood that to mean that the housekeeper believed that the discharge was "the remnants of a male ejaculate * * * that was in the woman and leaked into the underwear."

         After the meeting with the housekeeper, but before he left the parking lot, Quick opened the bag that contained the underwear and looked at it; he wanted to confirm what the housekeeper had told him about the substance in the underwear. He observed brown stains, "yellow-type stains, and * * * kind of a clear stain about the size of a 50-cent piece where the material was kind of stiff looking." He believed that the clear stain was the remnants of a male ejaculate that had been in T and leaked into the underwear.

         Quick immediately delivered the underwear to the Oregon State Police Crime Lab in Bend for testing. The lab director, Bordner, tested the underwear for semen. To do that, she conducted two tests, one for seminal fluid and one for spermatozoa. To test for seminal fluid, she took 34 small cuttings from the underwear at even intervals across the whole crotch panel and tested them for acid phosphatase, which is present in seminal fluid. None of the cuttings tested positive for acid phosphatase. To test for spermatozoa, she took one more cutting from the underwear, extracted the cutting's contents with liquid, and then looked at the liquid extraction on slides under a microscope. Under [287 Or. 860] the microscope, any spermatozoa heads, as well as other cells, ...


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