State v. Sines ( 2016 )

No. 21 April 14, 2016 41
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JOHN ALBERT SINES,
Respondent on Review.
(CC 06FE1054AB; CA A146025; SC S062493)
On review from the Court of Appeals.*
Argued and submitted March 15, 2015, at Willamette
University College of Law, Salem, Oregon.
Michael A. Casper, Deputy Solicitor General, Salem,
argued the cause and filed the brief for petitioner. With him
on the brief were Ellen F. Rosenblum, Attorney General, and
Anna M. Joyce, Solicitor General.
Lawrence Matasar, Portland, argued the cause and filed
the brief for respondent. With him on the brief was Lisa A.
Maxfield, Pacific Northwest Law LLP, Portland.
Before Balmer, Chief Justice, and Kistler, Walters,
Linder, Landau, Baldwin, Justices, and Sercombe, Judge of
the Court of Appeals, Justice pro tempore.**
BALMER, C. J.
The decision of the Court of Appeals is reversed and
the case is remanded to the Court of Appeals for further
proceedings.
______________
**  Appeal from Deschutes County Circuit Court, Alta Brady, Judge. 263 Or
App 343, 328 P3d 747 (2014).
**  Brewer, J., did not participate in the consideration or decision of this case.
42 State v. Sines
Case Summary: In 2006, defendant’s housekeeper anonymously called the
Department of Human Services (DHS) in Bend, Oregon to report that she sus-
pected defendant of sexually abusing his nine-year-old adopted daughter. The
housekeeper had become suspicious after finding, among other things, multiple
examples of an unusual discharge in the crotch of the child’s underwear. The DHS
worker who took her call explained that the substance in question could be tested,
and stated that he could connect the housekeeper with a law enforcement agency
able to conduct such tests and thereby confirm or refute her concerns. When the
housekeeper indicated that she had considered taking some of the underwear
for authorities to examine, the DHS worker advised her several times that he
could not tell her to engage in that kind of action. Following that conversation,
DHS and law enforcement officials decided to delay the safety check investigation
that usually took place within 24 hours of an abuse report, expecting that the
housekeeper might subsequently provide an underwear sample for testing. The
housekeeper obtained a pair of the child’s underwear and turned it over to law
enforcement authorities. Based on the tests that followed and other statements
made by the housekeeper, police obtained a search warrant and collected addi-
tional evidence from defendant’s house, after which defendant was arrested and
charged with multiple sex crimes. Defendant’s motion to suppress the evidence
obtained through the search and seizure of the underwear was denied, and he
was subsequently convicted on four counts of first degree sexual abuse.
The Court of Appeals reversed and remanded that judgment of conviction,
concluding that the housekeeper’s seizure of the underwear and its delivery to
state officials had constituted state action that was unlawful without a warrant.
According to the Court of Appeals, that was so for three reasons. First, the Court
of Appeals reasoned, the DHS worker had known what the housekeeper planned
to do and that she was likely to do it. Second, the DHS worker had communicated
with the housekeeper about her plans and had offered law enforcement support if
she conducted the seizure. And finally, the DHS employee had delayed the safety
check to allow the housekeeper to accomplish the planned seizure. Given those
particular circumstances, the Court of Appeals opined, the trial court had erred
in denying defendant’s motion to suppress. Held: The decision of the Court of
Appeals is reversed and the case is remanded to that court for further proceed-
ings. Drawing on common law agency principles, the Court concludes that the
proper method for determining whether the housekeeper’s conduct constituted
state action is first to examine whether there was evidence that the state officials
had manifested to the housekeeper, through statements or conduct, their intent
that she (as an agent) could or should act on behalf of the state (as the principal).
Because the state actors in this case had not taken affirmative steps to direct or
participate in the housekeeper’s taking of the underwear and had not made state-
ments or engaged in other conduct that would indicate any intent that she act on
behalf of the state, the Court holds that the housekeeper’s search was the act of a
private citizen and therefore did not violate the Oregon Constitution.
The decision of the Court of Appeals is reversed and the case is remanded to
the Court of Appeals for further proceedings.
Cite as 359 Or 41 (2016) 43
BALMER, C. J.
This case requires us to consider whether a private
citizen’s seizure of criminal evidence was subject to suppres-
sion at trial as the fruit of an unlawful government search.
Defendant came to the attention of law enforcement after
his housekeeper anonymously called the child protective ser-
vices division of the Department of Human Services (DHS)
and said that she suspected that defendant might be sexually
abusing his adopted daughter. The housekeeper’s suspicions
had been raised after finding an unusual “discharge” on sev-
eral pairs of the child’s underwear, and she told DHS that
she had considered taking a pair for authorities to examine.
In response to a question from the housekeeper, the DHS
employee who handled the call said that he would be able to
connect the housekeeper with someone in law enforcement
who could analyze the underwear and confirm or refute her
concerns. The DHS employee told the housekeeper several
times that he could not tell her to take the victim’s under-
wear. The next day the housekeeper obtained a pair of the
victim’s underwear, and the following day she turned it over
to the police. Based on that evidence and other statements
by the housekeeper, police obtained a warrant and searched
defendant’s house, after which defendant was arrested and
charged with a number of sex crimes. Defendant’s motion
to suppress the evidence obtained through the search and
seizure of the underwear was denied, and he was convicted
on four counts of first degree sexual abuse.
The Court of Appeals reversed, holding that the trial
court had erred in denying defendant’s motion to suppress.
The court concluded that, although the underwear had been
procured by a private person, there was nevertheless sufficient
contact between state officials and the private person that the
warrantless search and seizure constituted state action, in
violation of Article I, section 9, of the Oregon Constitution.
State v. Sines, 263 Or App 343, 328 P3d 747 (2014). For the
reasons set out below, we reverse the Court of Appeals deci-
sion and remand to that court for consideration of other issues
raised but not addressed in defendant’s appeal.1
1
The Court of Appeals considered the validity of the search and seizure
here only under Article I, section 9, and did not discuss or resolve any claim
44 State v. Sines
FACTS
We take the relevant facts from the record and the
Court of Appeals opinion, setting them out consistently with
the trial court’s explicit and implicit findings. State v. Ehly,
317 Or 66, 75, 854 P2d 421 (1993). We review the trial court’s
denial of defendant’s motion to suppress for errors of law.
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 sub-
sequently 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 half way up [defendant’s] sheets,” as well as signs of
the substance’s use in the bathroom. Based on her observa-
tion 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 girl-
friend. 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 dis-
charge” 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,
by defendant under the Fourth Amendment. Similarly, the state’s petition for
review was based solely on Article I, section 9. The briefs of both parties refer to
Fourth Amendment cases only in the context of their competing arguments on
the proper interpretation of Article I, section 9, and neither party develops any
independent argument as to the validity or invalidity of the search here under
the Fourth Amendment. Accordingly, we express no opinion on that issue, nor do
we express any opinion as to whether that issue was properly raised, preserved,
or developed below, and leave those questions, in the first instance, to the Court
of Appeals on remand. Additionally, because the Court of Appeals reversed and
remanded on the legality of the initial taking of the underwear, it did not address
defendant’s other assignments of error. Depending on the Court of Appeals’ rul-
ings on remand, it may be appropriate for that court to consider defendant’s other
assignments of error at that time.
Cite as 359 Or 41 (2016) 45
the heavily-stained children’s underwear appeared abnor-
mal in that they did not look as if they had been worn by a
child, but rather by a sexually active adult.
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 house-
keeper anonymously called a DHS “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 deter-
mine 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?”2
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 defen-
dant’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 tele-
phone number, expecting, based on their conversation, that
she probably would take the underwear. The housekeeper
retained her anonymity throughout their conversation,
2
On cross-examination, during the hearing on the motion to suppress, coun-
sel for defendant and the DHS worker engaged in the following exchange:
“[Defense counsel:] And so you offered to her the services of the Oregon
State Police Crime Lab?
“[DHS:] I told her that I could hook her up with—I told her that
I could hook her up with people who could make that
happen.
“[Defense counsel:] So if she stole underwear, you could hook her up with
people who could examine it at the Oregon State Crime
Lab. You told her that in the first call?
“[DHS:] I told her that those services were available in—right
here within the community.
“[Defense counsel:] And that you would hook her up with them?
“[DHS:] I could—I would hook her up with a worker and with
law enforcement who could make that happen.”
46 State v. Sines
although she eventally 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
Sheriff’s 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 sher-
iff 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 house-
keeper called another employee of defendant who similarly
suspected abuse and who was planning to work at defen-
dant’s house the next day. The housekeeper told the other
employee, “I’m thinking we need to get something of evi-
dence,” and “I’m thinking underwear.” The other employee
said, “I’ll see what I can do.” The following day, while defen-
dant was taking T and her brother to school, the 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 sher-
iff 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.
PROCEEDINGS BELOW
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
Cite as 359 Or 41 (2016) 47
and her brother, V. Before trial, as relevant here, defendant
moved to suppress
“all evidence, including derivative evidence and state-
ments, 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] under-
wear.” 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 expec-
tation that the housekeeper would likely obtain possession
of the underwear,” he specifically told the housekeeper that
he could not ask her to search for or seize it. The court stated
that any “circumstantial encouragement” during his conver-
sation with the housekeeper was “insufficient governmen-
tal 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 consti-
tute 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 under-
wear 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, sup-
ported the “objectively reasonable belief that * * * the under-
wear contained evidence of a crime and the testing would
provide confirmation of that belief.”
48 State v. Sines
At the trial that followed, the state introduced the
test results for the confiscated garments, and a jury con-
victed defendant on four counts of first-degree sexual abuse
involving T; it deadlocked or acquitted on the remaining
counts.
Defendant appealed, arguing, in part, that any evi-
dence derived from the seizure and testing of T’s underwear
should have been suppressed as the fruit of several unlawful
searches or seizures. Central to the issue now on review,
defendant argued that, because the actions of those who took
T’s underwear and gave it to the police constituted “state
action” for purposes of the Oregon and United States consti-
tutions, both the search and the resulting seizure had been
unlawful because neither had been based on probable cause,
a warrant or, alternatively, some exception to the warrant
requirement.3 In doing so, defendant acknowledged that
Oregon courts had yet to clearly articulate a test to deter-
mine when a private citizen acts as an instrumentality of
the government for search and seizure purposes. Defendant
nevertheless asserted that, in his case, the Court of Appeals
should adopt the two-part inquiry used by the Ninth Circuit
Court of Appeals to analyze such actions under the Fourth
Amendment: (1) Did the government know of and acquiesce
in the conduct being examined, and (2) did the party per-
forming the search intend to assist law enforcement rather
than further the party’s own ends? See, e.g., United States
v. Miller, 688 F2d 652, 657 (9th Cir 1982) (stating test).
Affirmative answers to both questions, according to the
Ninth Circuit, meant that the act, although performed by a
non-state actor, nevertheless constituted state action.
In response, the state argued that the issue raised by
defendant was controlled by Waterbury, the Court of Appeals
decision relied upon by the trial court. In Waterbury, an
informant related information concerning a possible mari-
juana grow to a sheriff’s deputy, who pressed him for details
3
Defendant also contended, as he had at trial, that (1) acceptance of the
underwear by the deputy sheriff—which he knew had been taken without per-
mission from defendant’s house—constituted a second unlawful seizure, and
(2) testing the underwear constituted a second unlawful search. Because it dis-
posed of this case on defendant’s first argument, the Court of Appeals did not
reach those issues.
Cite as 359 Or 41 (2016) 49
concerning its location. The informant had been reluctant to
provide that information and, instead, arranged to meet the
deputy later without specifically apprising him of the reason
for the meeting. When the informant arrived at the desig-
nated meeting place, however, he carried with him several
plants taken from the grow site that the deputy immedi-
ately recognized as marijuana. The deputy and informant
went before a judge, where the deputy obtained a search
warrant for the property in question. The Court of Appeals
subsequently held that the search and seizure performed by
the informant had not involved state action:
“The trial court found that ‘there was no clear under-
standing about what the informant was going to do, but
a reasonable expectation could have been that the infor-
mant was going to provide further evidence to enable the
deputy to obtain a search warrant.’ While it could be said
that the informant had some implicit encouragement from
the police, absent any request or direct participation by the
sheriff, we think such ‘circumstantial encouragement,’ if
any, was insufficient official involvement to warrant apply-
ing the constraints of the exclusionary rule.”
Id. at 120. Citing that holding, the state argued on appeal
that involvement by state actors in procuring T’s underwear
had amounted, at most, to “circumstantial encouragement,”
meaning that, like the evidence procured by the informant
in Waterbury, the evidence procured by the housekeeper
was the product of a private search and had been properly
admitted at trial.
The Court of Appeals noted that this court had held
in State v. Tucker, 330 Or 85, 90, 997 P2d 182 (2000), that
Article I, section 9, applies where a private party conducts
a search “because of and within the scope of” a request by a
state officer, but it also observed that “[n]either we nor the
Supreme Court has explained with precision how much or
what kind of state involvement is sufficient to trigger the
protection of Article I, section 9.” Sines, 263 Or App at 349.
Ultimately, the Court of Appeals agreed with defendant,
concluding that the employees’ seizure of the underwear
and its delivery to state officials constituted state action.
That was so, the court said, for three reasons. First, accord-
ing to the Court of Appeals, the DHS employee “knew what
50 State v. Sines
[the housekeeper] planned to do and that she was likely to
do it.” Second, the DHS employee had “communicated with
[the housekeeper] about her plans and offered law enforce-
ment support if she conducted the seizure * * *.” Third, the
DHS employee had “delayed the safety check to allow [the
housekeeper] to accomplish the planned seizure.” Id. at 356.
Because no warrant had authorized the resulting search and
seizure and the state had not argued that any other excep-
tion to the warrant requirement applied, the court held that
the trial court erred in denying the motion to suppress and
reversed.
DISCUSSION
We begin with a brief overview of first principles.
Article I, section 9, of the Oregon Constitution, provides:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable 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.”
That provision protects individuals “against unreasonable
search, or seizure,” as well as both possessory and privacy
rights in effects. State v. Owens, 302 Or 196, 206, 729 P2d
524 (1986). It is axiomatic, however, that Article I, section 9,
applies only to government-conducted or directed searches
and seizures, not those of private citizens. Tucker, 330 Or at
89; see State v. Tanner, 304 Or 312, 321, 745 P2d 757 (1987)
(privacy interest protected by Article I, section 9, “is an
interest against the state,” and “is not an interest against
private parties.”). That is true even if citizens act unlaw-
fully in obtaining the evidence that later makes its way into
the state’s possession. State v. Luman, 347 Or 487, 492, 223
P3d 1041 (2009).
That said, situations can and do arise in which a
private citizen’s conduct in pursuing his or her own search
and seizure may become so intertwined with the conduct
of a state actor that the private citizen’s actions are essen-
tially those of the state and should be subject to constitu-
tional restrictions on state searches and seizures. State v.
Tucker is one example. There, a state trooper investigating
Cite as 359 Or 41 (2016) 51
an accident called the private tow truck operator who had
towed the vehicle and asked him to search the vehicle. This
court had little difficulty concluding that Article I, section
9, is implicated “if a state officer requests a private per-
son to search a particular place or thing, and if the private
person acts because of and within the scope of the state’s
request.” 330 Or at 90. See also Wayne R. LaFave, 1 Search
and Seizure: A Treatise on the Fourth Amendment § 1.8(b),
at 370 (5th ed. 2012) (“Quite clearly, a search is not private
in nature if it has been ordered or requested by a govern-
ment official.”) Similarly, although no Article I, section 9,
cases are directly on point, Fourth Amendment cases gen-
erally hold that when law enforcement officers participate
with private individuals in a search or seizure, the action
is not a “private search.” Id. at 372 (“A search will also be
deemed subject to Fourth Amendment protections if it is a
‘joint endeavor’ involving both a private person and a gov-
ernment official, as where a detective and a victim of a theft
together enter a suspect’s apartment to retrieve the stolen
goods.” (Footnotes omitted.)).
A more difficult question arises in cases like this
one, where a state officer does not instigate or participate
directly in a search or seizure, but nevertheless has some
communication or involvement related to the search or sei-
zure with the private person before that person engages in
the conduct at issue. On review, the parties present us with
two somewhat different approaches for determining when
a search and seizure conducted by a citizen should be con-
strued as state action and therefore subject to the consti-
tutional protections provided by Article I, section 9, of the
Oregon Constitution.4
The state suggests that common law agency prin-
ciples are useful in determining when a private citizen is
acting on behalf of or under the authority of the state and
therefore subject to constitutional search and seizure lim-
itations. Under the common law, the state notes, an agency
4
In discussing the tests suggested by the parties, it is worth noting that each
party also argues that it would prevail under the other party’s test, as well the
test that it proposes. Although we find the state’s proposed test more useful for
the reasons discussed below, it appears that most of the cases cited by the parties
would have reached the same result under either test.
52 State v. Sines
relationship “results from the manifestation of consent by
one person to another that the other shall act on behalf and
subject to his control, and consent by the other so to act.”
Vaughn v. First Transit, Inc., 346 Or 128, 135, 206 P3d 181
(2009) (quoting Hampton Tree Farms v. Jewett, 320 Or 599,
617, 892 P2d 883 (1995) (emphasis and internal quotations
omitted)). In such a relationship, the principal is vicariously
liable for the acts of its agent “only if the principal ‘intended’
or ‘authorized the result [ ]or the manner of performance’ of
that act.” Vaughn, 346 Or at 137 (bracket in original) (quot-
ing Restatement (Second) of Agency at § 250). In other words,
the state continues, for a principal to be held responsible for
the acts of its agent, the principal must have conveyed to
the agent that he or she is, in fact, authorized to act on the
principal’s behalf. Relying on that analysis, the state pro-
poses that we adopt the following rule and apply it to this
case: A seizure of property by a private citizen becomes state
action for purposes of Article I section 9, only if the citizen
was acting “on the state’s behalf and at the state’s behest,”
i.e., that the state “must have directed or controlled the sei-
zure, or must have conveyed to the citizen that he or she was
authorized to act on the state’s behalf by asking or actively
encouraging the person to do so.”
Defendant urges us instead to adopt the two-part
federal test, mentioned previously, viz.: (1) Did the govern-
ment know of and acquiesce in the conduct being exam-
ined, and (2) did the party performing the search intend
to assist law enforcement rather than further the party’s
own ends?5 Defendant argues that the Court of Appeals
5
Although both parties suggest that this two-part test is generally used by
the federal courts, the landscape is actually more diverse. For example, the First
Circuit considers three factors: (1) the extent of the government’s role in insti-
gating or participating in the search; (2) the government intent and the degree
of control it exercises over the search and the private party; and (3) the extent to
which the private party aims primarily to help the government or to serve its own
interests. United States v. Cameron, 699 F3d 621, 637 (1st Cir 2012), cert den, 133
S. Ct. 1845 (2013). The Fourth Circuit considers whether the private citizen was
an instrument or agent of the government, given the government’s participation
or affirmative encouragement. United States v. Richardson, 607 F3d 357, 364 (4th
Cir 2010). See also United States v. Smythe, 84 F3d 1240, 1243 (10th Cir 1996)
(for private search to be state action, government must “affirmatively encourage,
initiate or instigate the private action”). Moreover, as we discuss later in the text,
some of the words in defendant’s proposed test are used in a different sense than
their ordinary dictionary definitions.
Cite as 359 Or 41 (2016) 53
essentially applied that test and correctly held that it was
met here.
Defendant’s analysis, like that of the Court of
Appeals, begins with what the DHS employee “knew” and
“believed” about the housekeeper’s likely actions. He then
argues, citing dictionary definitions of the word “acquiesce,”
that the state essentially made her conduct its own by not
objecting to the potential taking of the underwear or cau-
tioning the housekeeper that doing so would be a crime. The
state further supported the housekeeper’s possible actions,
defendant asserts, by offering to arrange testing of the
underwear if she took it, and by delaying the safety check.
Those actions, he argues, so encouraged the housekeeper
and defendant’s other employee to take T’s underwear that
the state must be viewed as having essentially “caused” that
search and seizure.
As discussed above, our cases make clear that
Article I, section 9, is a restriction on government searches
and seizures, not private ones. Government generally acts,
of course, through government employees, but it may also
act through non-employee agents, and searches or seizures
by those agents are subject to constitutional protections. See
State v. Nagel, 320 Or 24, 29, 880 P2d 451 (1994) (“Under
Article I, section 9, a search is ‘an intrusion by a government
officer, agent, or employee into the protected privacy inter-
est of an individual.’ ” (Internal quotation marks omitted.)).
Constitutional protections against unreasonable searches
and seizures would be easily circumvented if the govern-
ment was not held responsible—and the exclusionary rule
not applied—to the actions of private individuals taken on
behalf of government. But if a private person cannot be said
to be acting on behalf of government in some sense—that is,
subject to the government’s control as its agent—it is diffi-
cult to see how a search or seizure by that person implicates
the rights that Article I, section 9, protects.
We confronted a similar issue in State v. Smith, 310
Or 1, 791 P2d 836 (1990), where a defendant’s cellmate asked
him questions that led to incriminating statements, and the
defendant sought to suppress those statements at trial on
the theory that the questioning had not been preceded by
54 State v. Sines
Miranda warnings and therefore violated Article I, section
11. This court rejected that argument, concluding that the
cellmate was not acting as a state agent and that Article I,
section 11, therefore was not implicated. We noted that the
cellmate had initiated the contact with law enforcement offi-
cers about the defendant’s statement, and they had told him
that if he heard something he wanted to pass on, he could.
310 Or at 14. The officers, however, told the cellmate that
he was not required to pass any information along and they
made no deals with him. This court concluded that the cell-
mate was not an agent acting on behalf of the state, because
the officers involved were not “directly or indirectly involved
to a sufficient extent in initiating, planning, controlling, or
supporting the informant’s activities” such that the cellmate
could be described as having acted “at the behest” of the
state. Id. at 15.
Other courts have used a similar agency analy-
sis in the search and seizure context. In United States v.
Jarrett, 338 F3d 339 (4th Cir. 2003), for example, the court
examined whether a computer hacker who turned over evi-
dence of child pornography to federal authorities had acted
on behalf of the government. The court did so by engaging
in “a fact-intensive inquiry that is guided by common law
agency principles.” Id. at 344. See also Skinner v. Railway
Labor Exec. Assn., 489 U.S. 602, 614, 109 S. Ct. 1402, 103 L. Ed.
2d 639 (1989) (“Although the Fourth Amendment does not
apply to a search or seizure * * * effected by a private party
on its own initiative, the Amendment protects against such
intrusions if the private party acted as an instrument or
agent of the Government.” (Emphasis added.)); State v.
Wall, 154 NH 237, 240, 910 A2d 1253 (2006) (applying test
of whether “an agency relationship existed between the
government and a private individual”). In United States v.
Koenig, 856 F2d 843, 847 (7th Cir 1988), the court used
common law agency principles to explain its rejection of the
defendant’s proposed brightline rule that “knowledge plus
acquiescence equals agency.” Although the court noted that
the constitutional issue of when a private search may be
deemed state action is not necessarily governed by the com-
mon law definition of agency, id. at 847 n 1, it nevertheless
quoted and followed the Restatement (Second) of Agency in
Cite as 359 Or 41 (2016) 55
holding that a FedEx employee had not acted as the govern-
ment’s agent when he searched a package addressed to the
defendant, despite earlier and contemporaneous communi-
cations between the employee and governmental officers.
Id. at 850.
In our view, too, common-law agency principles
can provide substantial assistance in determining when
a private citizen’s search or seizure should be considered
state action for purposes of Article I, section 9. The state’s
formulation of its proposed test—whether a private party
acts “on behalf” and “at the behest” of state officials—does
have a conclusory ring, but the factual considerations that
lead to those conclusions are helpful, because they look
to the objective statements and conduct of the parties to
assess whether the conduct of a private individual should
be attributed to the government. Common-law agency
exists where a principal “manifests assent to another
person”—the agent—that the agent “shall act on the prin-
cipal’s behalf and subject to the principal’s control, and the
agent manifests assent or otherwise consents so to act.”
Restatement (Third) of Agency § 1.01 (2006). The consider-
ations relevant to the existence of an agent’s actual author-
ity to act on behalf of the principal focus on the “principal’s
manifestation to an agent that, as reasonably understood
by the agent, expresses the principal’s assent that the agent
take action on the principal’s behalf.” Id. § 3.01. Whether
the principal “manifests” assent for the agent to act, and
whether the agent manifests assent or otherwise agrees so
to act, are determined by “written or spoken words or other
conduct.” Id. § 1.03.6
One advantage of the common-law agency analysis
is that, in determining whether agency exists, the emphasis
is on “manifestations” that can be assessed objectively, in
contrast to the Court of Appeals’ test (and defendant’s pro-
posed test), which tend to focus on the subjective motives of
6
Determining whether a principal has assented for another to act as
its agent will often depend on the context in which the conduct of the parties
occurs and other aspects of the relationship between the principal and agent.
See Restatement (Third) of Agency § 1.03 comment e (discussing context in which
assent is manifested) and comment c (discussing assent by organization for per-
son to act as its agent).
56 State v. Sines
the principal and agent, or on what the principal “knew” or
“thought” that the agent might do. See Sines, 263 Or App at
353-56 (emphasizing what state officer “knew” and “under-
stood”). Indeed “manifestation,” as used in the Restatement,
means “conduct by a person, observable by others, that
expresses meaning,” and includes but is not limited to, writ-
ten or spoken words. Id. at § 1.03, comment b.7
In the criminal search context, those agency con-
cepts examine the conduct of government officials that
would communicate to the putative agent that the agent was
acting on behalf of the government. One treatise sums up
the inquiry as follows:
“[A] defendant must show that the government affirma-
tively encouraged, initiated, or otherwise participated in
the private action. Whether there is sufficient government
involvement in a search to transform it into state action is a
question of fact that is determined by looking at the totality
of the circumstances. Generally speaking, however, courts
are likely to find sufficient government involvement where
a government official orders, requests, or directs a search.
Similarly, even in the absence of an order to search, the
use of coercion or affirmative sugestion is usually sufficient
to transform an otherwise private search into state action.
By contrast, the fact that an officer did not discourage the
private party from undertaking the search generally has
been found insufficient to bring the search within the scope
of the Fourth Amendment.”
7
The reference to conduct “observable by others” simply highlights one kind
of communication by a principal that can confer authority to act on an agent. It
need not be “observable” by third persons dealing with the agent, and in many
circumstances involving police—such as the use of an informant—the police and
the agent will seek to prevent the person dealing with the agent from knowing
the agent’s authority. In this context, the communication that establishes the
agency relationship is that between the principal and the agent, and the com-
ment quoted in the text is a reminder that the conduct must be such that a rea-
sonable observer—such as the agent or a later factfinder—would understand the
conduct to be intended by the principal to assent to the creation of an agency
relationship. It is important to remember that, in the kind of agency at issue here,
the agent has “actual authority” to act “on behalf of the principal, consistent with
the principal’s manifestations to the agent that the principal wishes the agent so
to act,” Restatement (Third) of Agency § 2.01 (2006) (describing actual authority),
rather than “apparent authority,” which can exist when “a third party reasonably
believes the [agent] has authority to act on behalf of the principal.” Id. § 2.03
(describing apparent authority).
Cite as 359 Or 41 (2016) 57
Barbara Bergman and Theresa Duncan, 4 Wharton’s
Criminal Procedure § 24:20, 24-77 to 78 (14th ed 2009) (foot-
notes omitted).8
Defendant urges us to adopt the two-part test
described above. Applying the first part of that test,
he focuses on the DHS employee and the deputy sher-
iff’s “knowledge of” and “acquiescence in” the conduct of
defendant’s employees, arguing that those facts support
his claim that the employees acted as agents of the the
government. The federal cases, however, use those terms
in a way that does not aid defendant. In United States v.
Smythe, 84 F3d 1240, 1242-43 (10th Cir 1996), for exam-
ple, the court stated, “Knowledge and acquiescence * * *
encompass the requirement that the government must also
affirmatively encourage, initiate or instigate the private
action.” (Emphasis added). Similarly, the court in Jarrett
set out the test as quoted, but in applying it observed that
“we have required more than mere knowledge and pas-
sive acquiescence by the Government before finding an
agency relationship.” 338 F3d at 346; see also Koenig, 856
F2d at 847 (rejecting “simple, brightline rule” that “knowl-
edge plus acquiescence equals agency”); United States v.
Walther, 652 F2d 788, 792 (9th Cir. 1981) (“Mere govern-
mental authorization of a particular type of private search
in the absence of more active participation or encourage-
ment is similarly insufficient to require the application of
Fourth Amendment standards.”).
Thus, although the first part of defendant’s pro-
posed test is phrased in terms of “knowledge” and “acquies-
cence,” those terms are not used in their ordinary sense, and
courts applying the test have also frequently required affir-
mative “intiation,” “instigation,” “participation,” or “encour-
agement.” Indeed, 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.
8
We quote this passage for its summary of the caselaw. We do not necessarily
agree with the comment in the second sentence that whether a particular search
by a private citizen is state action is a “question of fact.” The determination will
depend upon the facts, but the conclusion ultimately is a legal one.
58 State v. Sines
Neither party disputes that the second part of the
Miller test—that the private individuals acted with the
intent to deter crime and assist law enforcement rather than
to “further their own ends”—was met in this case; defen-
dant’s housekeeper so testified. However, that part of the
test is problematic in some circumstances, like those here,
where defendant’s employees could have intended to protect
defendant’s children from sex abuse as well as wanting to
assist law enforcement. Such mixed motivations have been
noted by several courts. See United States v. Cameron, 699
F3d 621, 638 (1st Cir. 2012) (denying motion to suppress
and noting that although the government has an interest
in combating child pornography, “this does not mean that
Yahoo! cannot voluntarily choose to have the same inter-
est”); United States v. Day, 591 F3d 679, 688 (4th Cir. 2010)
(denying motion to suppress and noting, “Of course, the
objective of ‘deterring crime’ is entirely consistent with
[the private security guards’] responsibility to protect the
tenants and property of the Regency Lake apartment com-
plex, irrespective of any simultaneous goal of assisting law
enforcement.”).
We decline to adopt defendant’s proposed test. The
first part of that test purports to rely on whether the govern-
ment “knew of and acquiesced in” the private conduct. See
Miller, 688 F2d at 657. But those considerations tell us little
about particular government actions that would communi-
cate to a private person any authority or permission to act as
an agent or instrument of the government. They also ask the
factfinder to consider subjective mental states, rather than
statements and conduct that can be assessed objectively.
As discussed above, even the federal courts that use defen-
dant’s proposed test require “active participation or encour-
agement,” see, e.g., Walther, 652 F2d at 792 (so stating), and
conclude that “knowledge and acquiescence” without more
is insufficient to establish state action. Koenig, 856 F2d at
847. In our view, a test that, in application, uses words in
ways that are at odds with the ordinary meaning of those
words is of limited utility. It is, in any event, more difficult
to apply a test that relies on an assessment of what persons
“knew” and what they “acquisesced” in, than it is to apply a
test that examines statements and affirmative conduct for
Cite as 359 Or 41 (2016) 59
manifestations of an intent to confer authority. The state’s
proposed use of common law agency principles to determine
whether, in particular circumstances, a private actor should
be considered a state agent for purposes of Article I, section
9, is, in contrast, clearer and more easily applied.9
With that background, we return to the essentially
undisputed facts here, focusing on the statements and objec-
tive conduct of the individuals involved. Defendant’s house-
keeper anonymously and on her own initiative called DHS to
report the suspected abuse. The DHS employee with whom
she spoke did not direct the housekeeper to search the house
or to seize evidence, saying, instead, that the decision was
“up to her.” The housekeeper also raised the issue of obtain-
ing evidence and the possibility of underwear as evidence;
she testified that getting the underwear “was my idea.”
In response to her question about what they could deter-
mine from underwear, the DHS employee said there was
a lab locally and they could “probably tell a lot.” The DHS
employee gave the housekeeper his direct telephone number.
He also contacted the sheriff’s office to discuss the call, and
he and his contact at the sheriff’s office agreed to conduct
the routine follow-up safety check within five days, rather
than within the usual 24-hour period from the initial report.
Neither the 24-hour safety check protocol or the modifica-
tion that DHS and the sheriff’s office agreed to was commu-
nicated to the housekeeper. The housekeeper subsequently
called defendant’s other employee, and that employee took
the underwear from the laundry room in defendant’s house
the following day, while T and her brother were at school, and
then gave it to the housekeeper. The housekeeper turned the
underwear over to state officials the next day.
The question is whether those facts, and particular
the conduct and statements of the state officials, demonstrate
that those officials communicated to the housekeeper (and
defendant’s other employee) that they were authorized to act
as agents of the state. The DHS employee did not direct or
9
We also find the second part of defendant’s proposed test to be unhelpful
because of the “mixed motivations” issue identified by several federal courts and
discussed above. Of course, the circumstances of the private actor’s conduct,
including job responsibilities and any relationship with the defendant, may well
be relevant facts in deciding whether that conduct constituted state action.
60 State v. Sines
request the housekeeper to take the underwear. The idea of
taking evidence from the house, and of taking underwear in
particular, came from the housekeeper. Although defendant
and the Court of Appeals focus on what DHS employees
“knew” or “thought” or “understood” the housekeeper might
do, the common law agency analysis that we outlined above
looks first to objective manifestations by the principal to
the agent that the agent should or may act on behalf of the
principal. That is consistent with the federal courts’ empha-
sis on affirmative government conduct vis à vis the private
person. See Koening, 856 F2d at 850 (“It is only by the exer-
cise of some form of control that the actions of one may be
attributed to another. Restatement (Second) of Agency § 14
(1958). Mere knowledge of another’s independent action does
not produce vicarious responsibility absent some manifesta-
tion of consent and the ability to control.”); Smythe, 84 F3d at
1242-43 (to make private conduct state action, government
agent must “affirmatively encourage, initiate, or instigate
the private action”). There was little, if any, such affirmative
encouragement, initiation, or instigation here.
Defendant nevertheless argues that the state
encouraged and “supported” the private search in several
ways. First, he argues that DHS delayed its usual 24-hour
safety check to allow the housekeeper sufficient time to con-
duct the search. That unilateral action by the state, however,
was never communicated to the housekeeper, and could not
have affected her or her decision to act. Although the delay
suggests that state officials hoped that the housekeeper’s
actions would assist them in investigating the alleged abuse,
it is irrelevant to whether the state consented to have her
act on the state’s behalf. Moreover, on the facts here, there
is no showing that the delay had an effect on the search
and seizure in any event, because the search and seizure
occurred within 24 hours of the housekeeper’s initial call.
Defendant next asserts that the DHS employee’s
communications with the housekeeper, including discuss-
ing testing the underwear and giving her his direct phone
number, demonstrate a level of indirect support of the
housekeeper’s conduct sufficient to make her an agent of the
state. We disagree. The fact that the DHS employee truth-
fully answered the anonymous caller’s unsolicited question
Cite as 359 Or 41 (2016) 61
about what they could determine from particular evidence
and provided his direct phone number do not rise to the level
of state instigation or direction to make the caller’s subse-
quent search state action.10
Finally, defendant makes two other, related argu-
ments for suppressing the results of the search and seizure
here. First, he asserts that the DHS employee indirectly
encouraged the housekeeper by failing to warn her that tak-
ing property from defendant’s house would constitute theft.
Second, he contends that the evidence should be suppressed
because defendants’ employees stole it from his house.
This court addressed the latter argument in State
v. Luman, 347 Or 487, where, after reiterating that Article I,
section 9, does not apply to private searches, the court stated
that that “principle applies even if the private parties acted
unlawfully in conducting the search and seizure that ulti-
mately led to police possession of the evidence.” The court
distinguished the issue of the criminality of the private
conduct from the issue of whether the actions of the private
parties could be attributed to the state. Even if the private
party had stolen the evidence in question and given it to
the sheriff’s office, “that fact would not somehow turn that
conduct into state action or render the sheriff’s office’s later
possession of the videotape unlawful.” Id. at 493.
The former argument—that the DHS employee’s
failure to warn the housekeeper that taking the underwear
was a crime or otherwise to dissuade her from stealing from
defendant was sufficient government support to make the
private conduct state action—also is not well taken. The
10
The circumstances here are substantially different from State v. Lowry, 37
Or App 641, 588 P2d 623 (1978), where the court concluded that incriminating
statements made by the defendant to an informant without Miranda warnings
should have been suppressed because the informant was acting as an agent of
the state. The informant—a person well-known to authorities as a “dedicated and
accomplished ‘stool pigeon’ ” who had “survived for years by (and in spite of) pro-
viding information to various police and penal authorities,” id. at 643—obtained
admissions from the defendant, his cellmate, and then negotiated a deal with
prison officials pursuant to which he recounted the admissions to the officials,
who then paid him $50 and, at his request, transferred him to a federal correc-
tions facility the next day. Although the Court of Appeals here relied heavily on
Lowry, see Sines, 263 Or App at 349-53, neither party cited that case in their
briefs before the Court of Appeals or this court, and we do not find it helpful.
62 State v. Sines
ultimate issue is whether the housekeeper acted on behalf
of the state, which we determine by considering whether
the state’s conduct would have conveyed to her that she was
so authorized. Failing to warn or advise the housekeeper
against engaging in a potentially criminal act is not such
conduct. As we previously emphasized, “the fact that an offi-
cer did not discourage the private party from undertaking
the search generally has been found insufficient to bring
the search within the scope of the Fourth Amendment.”
Bergman and Duncan, 4 Wharton’s Criminal Procedure
§ 24:20 at 24-78; see also Jarrett, 338 F3d at 347 (“that the
government did not actively discourage Unknownuser from
engaging in illict hacking does not transform Unknownuser
into a Government agent”; government had no special
obligation to discourage illegal hacking by private party);
United States v. Souza, 223 F3d 1197, 1202 (10th Cir 2000)
(“The police are under no duty to discourage private citizens
from conducting searches of their own volition.”).
We conclude, based on the facts explicitly and
implicitly found by the trial court, that the actions of defen-
dant’s employees in searching for and seizing the underwear
constituted private conduct and therefore did not violate
Article I, section 9. We acknowledge that this is a close case.
Contacts between private individuals and state officers
before a private search always require careful examina-
tion to determine whether, given all the circumstances, the
state officers provided such affirmative encouragement and
authorization to the private individuals so as to render them
agents of the state.11 In this case, for the reasons described
above, we hold that they did not. Accordingly, we reverse
the Court of Appeals decision and remand to that court for
consideration of other assignments of error that it did not
address.
The decision of the Court of Appeals is reversed,
and the case is remanded to the Court of Apeals for further
proceedings.
11
Because we conclude that the state officials did not authorize the private
individuals involved here to act as agents of the state, we do not consider the
second step in the common law agency analysis, viz., whether the “agent mani-
fest[ed] or otherwise consent[ed] so to act.” Restatement (Third) of Agency § 1.01.