State v. Wischnofske , 129 Or. App. 231 ( 1994 )

878 P.2d 1130 (1994) 129 Or. App. 231

STATE of Oregon, Appellant—Cross-Respondent,
v.
Larry Dean WISCHNOFSKE, Respondent—Cross-Appellant.

TM92-0141; CA A76385.

Court of Appeals of Oregon.

Argued and Submitted August 9, 1993. Decided July 27, 1994.

Kaye E. Sunderland, Asst. Atty. Gen., argued the cause for appellant—cross-respondent. With her on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Ronald L. Marek, Corvallis, argued the cause and filed the briefs, for respondent—cross-appellant.

Before DEITS, P.J., and EDMONDS and RIGGS,^[*] JJ.

DEITS, Presiding Judge.

The state appeals the trial court's order suppressing portions of a tape recording of statements defendant made while alone in the back seat of a patrol car following his arrest. Defendant cross-appeals the trial court's denial of his motion to suppress evidence of his performance on field sobriety tests. We reverse on the appeal and affirm on the cross-appeal.

On September 29, 1991, while investigating a two-car accident, Officer Eastham reasonably suspected that defendant had been driving under the influence of intoxicants in violation of ORS 813.010. Eastham advised defendant that their conversation was being recorded and gave him Miranda-like warnings. He then asked defendant to perform field sobriety tests and informed him of the consequences of a refusal. Defendant refused to perform the field sobriety tests. Eastham arrested and handcuffed defendant. About 5 minutes after informing defendant that their conversation was being recorded, Eastham placed him in the back seat of the patrol car. Eastham also placed the tape recorder, which was still recording, on a platform between the driver's and right front passenger's seat of the patrol car in a place visible to an occupant of the back seat. Eastham remained outside the patrol car for about 25 minutes to complete his investigation of the accident. During that time, defendant, while alone in the patrol car, made incriminating statements which were recorded by the tape recorder. The trial court found that, although Eastham did not inform defendant that the recorder was in the patrol car or that it was operating, he did not mislead defendant into thinking that no recording would be made.

At trial, defendant moved to suppress the tape recording of the statements that he made while in the patrol car. He argued that the recording violated ORS 165.540(1)(c), ORS 133.721 et seq., Article I, section 9, of the Oregon Constitution and the Fourth Amendment. The trial court held that defendant's statements were not "conversation" under ORS 165.535(1), because he did not transmit or attempt to transmit information to anyone else. For the same reason, the trial court concluded that his statements were not "oral communication" for purposes of ORS 133.721 et seq. The trial court, however, concluded that defendant's "privacy rights" under the Fourth Amendment were violated. It did not reach defendant's state constitutional argument.

The state appeals the trial court's ruling. On appeal, defendant concedes that the tape recording did not violate ORS 165.540(1)(c), because his statements were not "conversation" under the statutory definition of that term in ORS 165.535(1). He argues, here, however, that the trial court's suppression of the statements may be upheld on a number of grounds. First, he continues to assert that the tape recording of his statements violated ORS 133.721 et seq. He also argues that the statements were obtained in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment.

We first address defendant's argument that the tape recording of his statements violated ORS 133.721 et seq, because an ex parte order to intercept the communication was not obtained. State v. Holmes, 311 Or. 400, 404, 813 P.2d 28 (1991). We conclude that these statutes are not applicable here. ORS 133.735 provides that an "aggrieved person" may move to suppress "the contents of any wire, electronic or oral communication intercepted under ORS 133.724" on the grounds that it was unlawfully intercepted. No wire or electronic communication was involved here. Therefore, the critical question is whether defendant's statements were "oral communication." That term is defined in ORS 133.721(7) as

"any oral communication, other than a wire communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation."

We hold that defendant's statements were not oral communication under the statute, because defendant did not have a justifiable expectation that his statements made out loud to himself would not be intercepted after he was arrested and seated in a patrol car.^[1]

No Oregon case directly addresses the requirement that a person hold a justifiable expectation of non-interception before statements become "oral communication" under ORS 133.721(7). However, the statutes at issue were adopted to make Oregon's provisions consistent with federal standards in Title III of the 1968 Omnibus Crime Control Act, 18 U.S.C. §§ 2510-2520. State v. Oslund, 71 Or.App. 701, 706, 693 P.2d 1354, rev. den. 299 Or. 37, 698 P.2d 965 (1985). Accordingly, because the state and federal statutes are nearly identical,^[2] decisions construing the federal statutes are helpful in construing the meaning of "oral communication" in ORS 133.721(7).

In U.S. v. McKinnon, 985 F.2d 525, cert. den. ___ U.S. ___, 114 S. Ct. 130, 126 L. Ed. 2d 94 (11th Cir.1993), the court held that the defendant's conversations in the back seat of a patrol car were not "oral communication" for the purposes of 18 U.S.C. § 2510(2), because the defendant did not have a justifiable expectation that his conversations would not be intercepted.^[3] Similarly, we conclude that, under the circumstances here, defendant did not have a justifiable expectation of non-interception. Defendant had been arrested, handcuffed and placed in the back seat of the patrol car. Eastham did nothing to suggest to defendant that he would be afforded any privacy in the back seat of the patrol car. We hold that the tape recording of statements made by defendant while he was alone in the patrol car did not violate ORS 133.721 et seq.

We now turn to defendant's state constitutional argument. State v. Kennedy, 295 Or. 260, 166, 666 P.2d 1316 (1983). Defendant argues that the tape recording of the contested statements constituted a warrantless search in violation of Article I, section 9, of the Oregon Constitution.^[4] Article I, section 9, protects both property and privacy interests. State v. Owens, 302 Or. 196, 729 P.2d 524 (1986). Here, no property interest of defendant's is at issue. Article I, section 9, protects an individual's "privacy interest" which is defined as "an interest in freedom from certain forms of governmental scrutiny." State v. Dixson/Digby, 307 Or. 195, 206, 766 P.2d 1015 (1988). "[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." State v. Campbell, 306 Or. 157, 164, 759 P.2d 1040 (1988). (Emphasis in original.)

Article I, section 9, does not protect citizens from all forms of governmental observation, but only from unreasonable searches and seizures. As the court explained in State v. Wacker, 317 Or. 419, 856 P.2d 1029 (1993):

"The privacy interests protected from unreasonable searches under 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.' If no privacy interest is implicated, no ``search' has occurred under Article I, section 9." 317 Or at 425 (quoting State v. Dixson/Digby, 307 Or. 195, 211, 766 P.2d 1015 (1988)). (Citation omitted.)

Here, the issue is whether defendant had a protected privacy interest in the contested statements. The interception here did not occur in a public place, in defendant's home, or even in his car; rather, defendant chose to speak out loud while in the back seat of a patrol car, after he had been arrested and informed that his conversations were being recorded, with a tape recorder visible on the passenger's side of the front seat. The police conduct here was not very intrusive. Even if the police engaged in this practice with unfettered discretion, it would not significantly impair the people's right to freedom from scrutiny. We conclude that no privacy interests of defendant's were invaded here and, thus, there was no search within the meaning of Article I, section 9, of the Oregon Constitution.

We reach the same conclusion under the Fourth Amendment.^[5] Fourth Amendment analysis involves a two part inquiry: (1) whether the individual has exhibited an intention to protect privacy; and (2) whether the individual's expectation of privacy is one that society is prepared to recognize as reasonable. Katz v. United States, 389 U.S. 347, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967); State v. Wacker, supra. People v. Crowson, 33 Cal. 3d 623, 190 Cal. Rptr. 165, 660 P.2d 389 (1983), involved circumstances very similar to the situation here. The court explained:

"[W]hether [the defendant's] challenge is based on [the California constitution] or the Fourth Amendment, the issue is whether he had a reasonable expectation that he could conduct a conversation with a suspected accomplice free of police eavesdropping while under arrest and seated in the back seat of a police car. We conclude that he did not.

"[The defendant and his suspected accomplice] obviously had a subjective expectation of privacy; otherwise they would not have made incriminating statements. The ``reasonableness' of [the defendant's] expectation of privacy, however, is ultimately a matter of common sense and practical judgment. ``[T]he expectation [must] be one that society is prepared to recognize as "reasonable."' Here, [the defendant] had just been arrested at a neighborhood bar—a most extreme interference with the ``right to be left alone'—and remained in the custody of the police on the way to jail. Objectively, he surely had no reason to suspect that his conversation with a suspected accomplice in the back of the police car would be afforded any kind of confidentiality. Under these circumstances, we conclude that [the defendant] did not have a reasonable expectation of privacy." (Emphasis in original; citation omitted.)

We agree with the above reasoning and conclude that whatever expectation of privacy defendant may have had in the contested statements, it is not an expectation that society is prepared to recognize as reasonable. See U.S. v. McKinnon, supra, and cases cited therein. Accordingly, defendant's Fourth Amendment rights were not violated by the tape recording of his statements. The trial court erred in suppressing the tape recording on that ground.

Defendant cross-appeals the trial court's denial of his motion to suppress the results of certain field sobriety tests. He argues that his refusal to perform field sobriety tests at the scene of the investigation barred Eastham from requesting that he perform field sobriety tests at the jail without readvising him of the consequences of a refusal. The state argues, relying on State v. Trenary, 316 Or. 172, 850 P.2d 356 (1993), that, because defendant voluntarily complied with Eastham's request at the jail to perform field sobriety tests, the fact that he was not again advised of the consequences of a refusal is of no consequence.

The trial court made the following findings of fact:

"Defendant testified at the omnibus hearing and did not indicate that he had forgotten the officer's earlier advise [sic] regarding ORS 813.136 or forgotten that he could decline to perform field sobriety tests and that evidence of his refusal could be used against him in court. Absent that evidence the logical conclusion is that defendant simply changed his mind about performing the tests."

Here, the trial court found that defendant voluntarily performed the field sobriety tests. Defendant does not challenge that finding. On the basis of this record, we agree with the state that, even if the statutes required that defendant be readvised of the consequences of refusal, because defendant voluntarily performed the field sobriety tests, he was not prejudiced. As the court explained in State v. Trenary, supra, 316 Or. at 178, 850 P.2d 356:

"The failure of the legislature to provide for any consequence if a driver takes field sobriety tests without being informed of the consequences of refusal suggests that it intended that no consequence follows because, in that event, the goal of the statute—that suspected DUII drivers perform field sobriety tests—has been achieved. The legal effect—and intended effect—of the legislature's decision is, in essence, ``no harm, no foul.' The legislature found no prejudice to drivers who take the test without being informed of the consequences of refusal. Therefore, it did not address that contingency in the statute.

"A driver who takes the test without being informed of the consequences of refusal has not been harmed in any legal sense. When a driver drives a car, he or she impliedly consents to field sobriety tests to determine if the driver is under the influence, upon the request of a police officer who has reasonable suspicion that the driver is under the influence. In taking the test, the driver is only doing that which he or she has already consented to do."

The trial court did not err in denying defendant's motion to suppress the results of field sobriety tests.

On appeal, reversed and remanded; affirmed on cross-appeal.

NOTES

[*] Riggs, J., vice Durham, J.

[1] The trial court concluded that defendant's statements did not constitute "oral communication," because he "had no intent to furnish information to another." According to the trial court, defendant's statements were not "communication" at all. We need not address whether the trial court's definition of the term "communication" for purposes of ORS 133.721 et seq. is correct, because of our conclusion that defendant did not have a justifiable expectation of non-interception.

[2] 18 U.S.C. § 2510(2) defines "oral communication" as "any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation[.]"

[3] We note that the defendant in U.S. v. McKinnon, supra, moved to suppress his pre-arrest conversations while in the back seat of a patrol car. Here, we need not decide whether defendant would have had a justifiable expectation of privacy in his "conversations" if he had not been under arrest. Compare Springle v. State, 613 So. 2d 65 (Fla.App. 4 Dist.1993) (defendant ordered to wait in back seat of patrol car for own safety without probable cause or articulable suspicion had justifiable expectation of privacy in conversation) with Brown v. State, 349 So. 2d 1196 (Fla. 4th D.C.A.1977), cert. den. 434 U.S. 1078, 98 S. Ct. 1271, 55 L. Ed. 2d 785 (1978) (arrested person confined in police car has no reasonable expectation of privacy in conversations).

[4] Article I, section 9, of the Oregon Constitution provides, in part:

"No law shall violate the right of the people to be secure in their persons, house, papers, and effects, against unreasonable search, or seizure[.]"

[5] In State v. Ainsworth, 310 Or. 613, 801 P.2d 749 (1990), the court explained that the inquiry under the Fourth Amendment is whether the defendant had a reasonable expectation of privacy and under Article I, section 9, the inquiry is whether a police officer's conduct infringes upon the privacy to which a defendant has a right. The court also noted that: "Although the ultimate question that must be answered to determine whether police have conducted a search differs, many of the issues raised by the analyses are similar." 310 Or. at 620 n. 8, 801 P.2d 749.