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COMMENT

STATE V. HOWARD: JEOPARDIZING


THE RIGHT OF OREGONIANS TO BE
FREE FROM GOVERNMENTAL
SCRUTINY BY ALLOWING IT TO BE
HAULED AWAY ON GARBAGE DAY

Anthony W. Morse*

Abstract: It is not unusual for an individual's garbage can to contain highly


sensitive and personal information. On a typical garbage day, an average
garbage can might contain phone bills, financial statements, discarded bottles
of prescription medication, old letters from friends, and even objects with
traces of your DNA. Article I, section 9 of the Oregon Constitution prohibits
law enforcement officials from unilaterally seizing an individual's garbage
from the curbside, unless they do so with a warrant, or a legally valid warrant
exemption. In State v. Howard, however, the Oregon Court of Appeals held
that the Oregon Constitution is not violated when a police officer acquires an
individual's garbage by acting jointly and cooperatively with the garbage
collector. Drawing on support from principles of agency law, and common
law property concepts, this Comment argues that the Oregon Constitution
prohibits the police from taking possession of an individual's garbage in this
manner, and that any evidence collected in this fashion must be suppressed.
Finally, this Comment argues that the legal precedent set forth in Howard
creates undesirable public policy.

* Candidate for Juris Doctor, New England School of Law (2008); B.S., Western
Oregon University (2003). This work is dedicated to my father, Roger W. Morse, who has
made far too many contributions to my life for me to attempt to recite in this small space.
NEW ENGLAND LAWREVIEW [Vol. 42:929

"Without question, such police conduct would, ifengaged in at will,


interfere with Oregonians'freedom from governmental scrutiny. ,

I. INTRODUCTION
What does your garbage say about you? 2 Are you comfortable with
the idea of someone rummaging through everything that you put in your
garbage can and set out on the curbside for the trash collector to haul away
for permanent disposal? Would it make any difference to you if you had no
idea that he or she was doing so?
What if the person going through your garbage was a perfect stranger
seeking to obtain information regarding the most intimate details of your
life? What if this person was a police officer? Say he or she had a feeling
(but not a warrant, or a legal excuse for lacking one) that you were up to
something. What if he or she did not even have any feeling, but just wanted
to examine your garbage? What if he or she found something "of interest"
to the government? Could the state use it against you? What if the answer
was yes? Would that bother you?
If your interest is piqued, and especially if you live in Oregon, keep
reading. Lots of stuff gets thrown out, and much of it offers a lurid.
description of the people that throw it away. Your cell phone bill offers
who you talk to, when you talk to them, and how frequently it occurs. Your
bank statements provide how much money you have and where to find it.
What about a discarded tampon; what does that say about you? 5It has your
DNA, right? 4 Does your DNA say anything about anybody else?

1. Brief of Defendant-Respondent at 15, State v. Hoesly, 109 P.3d 383 (Or. Ct. App.
2005) (CA No. A120107) (arguing that a warrantless search of the defendant's garbage can,
during which the police obtained a "blood-soaked" tampon that they subsequently had tested
for DNA, narcotics, and seminal fluid, violated Article I, section 9 of the Oregon
Constitution).
2. "A search of trash, like a search of the bedroom, can relate intimate details about
sexual practices, health, and personal hygiene .... [A] sealed trash bag harbors telling
evidence of the intimate activity associated with the sanctity of [an individual's] home and
the privacies of life." California v. Greenwood, 486 U.S. 35, 50 (1988) (Brennan, J.,
dissenting) (internal quotation marks and citations omitted).
3. See infra notes 12-14 and accompanying text.
4. "DNA can potentially reveal a broad array of personal information." Tracey Maclin,
Is Obtaining an Aresstee's DNA a Special Need Search Under the Fourth Amendment?
What Should (and Will) the Supreme Court Do?, 34 J.L. MED. & ETHICs 165, 169 (2006).
Specifically, "DNA analysis maps immutable, lifelong characteristics of an individual.
Indeed, immutability is what makes DNA such an ideal identifier." Id. at 169 n. 105 (internal
quotation marks and citations omitted).
5. The "information revealed in a DNA analysis is not unique only to that donor.
Information from a donor's genome also reveals the private concerns of the donor's parents,
children, and siblings." Id. (internal quotation marks and citations omitted).
2008] STATE V. HOWARD

What do the police do with your DNA after obtaining it? How is it
stored? Does it become part of a larger database? Do the potential uses of
DNA give the police any incentive to go through your garbage and pick it
apart until they find something that they think might contain your DNA,
even if you are not suspected of doing
6
anything wrong? Do you want your
DNA in a law enforcement database?
To whom, besides the government, would this information become
available? 7 Not impressed? You say that you are a respectable, law-abiding
citizen? 8 You do not have anything to hide from anybody?9 Besides, the
police are not going through garbage very often, are they?'
In February of 2006, the Oregon Court of Appeals decided State v.
Howard.1 In Howard, the Oregon Court of Appeals held that the Oregon

6. Some commentators have suggested that various risks accompany such databases:
The leading privacy concerns about more inclusive DNA forensic
databases are that this powerful information (and the biological samples
from which it is obtained) would be collected on a routine basis without
any individualized suspicion of wrongdoing, that individuals would be
coerced to provide samples in dragnets, that relatives of potential
suspects would be tested, and that the original specimens would be
retained indefinitely.
Mark A. Rothstein & Meghan K. Talbott, The Expanding Use of DNA in Law Enforcement:
What Role for Privacy?, 34 J.L. MED. & ETHICS 153, 160 (2006) (commenting on the
potential for abuse by law enforcement officials regarding how DNA samples are collected,
stored, and subsequently used).
7. Highly personal information warehoused by the government has recently proven to
be at risk of misappropriation by private individuals. See Tom Zeller, Jr., Link by Link;
93,754,333 Examples of Data Nonchalance,N.Y. TIMES, Sept. 25, 2006, at C5, available at
2006 WLNR 16579327 (discussing a United States Department of Veterans Affairs laptop
that contained the "names, Social Security numbers and dates of birth of 28 million
veterans" when it was lost by a government official in 2006).
8. In late 2002, Mark Kroeker (acting Chief of Police in Portland, Oregon) voiced his
support of the notion that garbage is legally abandoned and thereby becomes subject to the
scrutiny of the police, or anyone else, once it is set out for collection. Two journalists from
Willamette Week, a local Portland newspaper, went to the Chiefs house and took his
garbage. They also collected the recycling from the home of Portland Mayor Vera Katz.
Afterwards, these two journalists met with Chief Kroeker in his office and revealed what
they had done. Chief Kroeker and Mayor Katz were furious. See Chris Lydgate & Nick
Budnick, Rubbish! Portland's Top Brass Said It Was OK to Swipe Your Garbage - So We
Grabbed Theirs, WILLAMETTE WEEK, Dec. 24, 2002, available at http://wweek.
com/story.php?story=3485.
9. If the Mayor and Chief of Police "were each chewing their nails about the secrets we
might have stumbled on, how the hell should the rest of us be feeling?" Id.
10. Portland Police Officers working in narcotics "conduct 'garbage pulls' once or twice
per month." Id.
11. 129 P.3d 792 (Or. Ct. App. 2006).
NEW ENGLAND LAWREVIEW [Vol. 42:929

Constitution does not prohibit the police from obtaining your garbage with
the assistance of a private third party. 12 Moreover, the court held that
whatever is found may be admitted into evidence for the purpose of
prosecuting a criminal case against you. 13 In April of 2007, the Supreme
14
Court of Oregon affirmed the decision of the Oregon Court of Appeals.
When Howardwas decided by the Oregon Court of Appeals, the court held
that the manner in which the police procured the defendants' garbage was
permissible, because it did not infringe any constitutionally protected
privacy or possessory interests in the garbage. 5 The Supreme Court of
Oregon, however, affirmed only on the ground that the police did not
infringe the defendants' privacy interests when they acquired the
defendants' garbage. 16 The Supreme Court of Oregon, therefore, did not
address whether the police infringed the defendants' constitutionally
protectedpossessory interests in the garbage. 17
This question, that the Supreme Court of Oregon left unanswered, is
the subject of this Comment. This Comment asserts that State v. Howard
was erroneously decided 8 because the actions undertaken by the police
violated the rights of the defendants under Article I, section 9 of the
Oregon Constitution. Specifically, this Comment argues that the
investigatory methods employed by the police violated the defendants'
constitutionally protected possessory interests in their garbage.
This Comment addresses the threat that Howardposes to Oregonians'
right to privacy. 19 This Comment does so, however, by examining how the
Oregon Court of Appeals analyzed whether the defendants' possessory
interests in their garbage was infringed by the police. The precedent set

12. See State v. Howard, 129 P.3d 792, 793 (Or. Ct. App. 2006).
13. Id. In 2005, however, the Oregon Court of Appeals held that the Oregon
Constitution prohibited the police from unilaterally seizing garbage that had been placed in
front of a residence for collection by the garbage collector. State v. Galloway, 109 P.3d 383,
383 (Or. Ct. App. 2005). Galloway holds that individuals, under the aforementioned
circumstances, retain a constitutionally protected possessory interest in their garbage until
collection by the garbage collector takes place. Id.
14. State v. Howard, 157 P.3d 1189, 1190 (Or. 2007).
15. Id.
16. Id.at 1192.
17. See id.
18. Since the Supreme Court of Oregon did not address whether the defendants'
possessory interests were violated-and because this precise issue is the focal point of this
Comment-the analysis that is set forth herein focuses on the decision of the Oregon Court
of Appeals. That said, this writer still respectfully disagrees with the conclusion of the
Supreme Court of Oregon.
19. The right to privacy within the meaning of the Oregon Constitution is known as the
right to be free from governmental scrutiny. See State v. Campbell, 759 P.2d 1040, 1047
(Or. 1988).
2008] STATE V HOWARD

forth by the Oregon Court of Appeals in Howard weakens the existing


possessory interest in garbage that is protected by the Oregon
Constitution, 20 and accordingly jeopardizes the right of Oregonians to be
free from governmental scrutiny. The devitalization of any possessory
interest is detrimental to the right to be free from governmental scrutiny,
because Article I, section 9 of the Oregon Constitution preserves privacy
rights by safeguarding property rights.21 Therefore, the social policy issues
that are addressed by this Comment derive from concerns about privacy
rights, but the constitutional analysis that is set forth herein focuses on
possessory rights.
This Comment argues that the Howard decision jeopardizes the right
of Oregonians to be free from governmental scrutiny because it sanctions
the government's "use of an agent to accomplish what the police cannot
[lawfully] do."22 This Comment asserts that the police in Oregon are not
permitted to use a private party to obtain evidence that they cannot
otherwise lawfully obtain by themselves. This Comment specifically argues
that when a private party acquires possession of physical evidence at the
instruction of the police, the police have violated the Oregon State
Constitution's prohibition of unreasonable searches and seizures, unless
this evidence could have been lawfully acquired by the police officers
themselves. Evidence that could not have been lawfully obtained without
the assistance of the private party must be suppressed, any other result risks
encouraging the state to subject an unjustified number of Oregonians to
invasive governmental intrusions.
Part II of this Comment begins with a brief look at the search and
seizure rules that derive from the Fourth Amendment to the United States
Constitution.23 After completion of this discussion, the focus of this

20. The constitutionally protected possessory interest in garbage was recognized by the
Oregon Court of Appeals in State v. Galloway, 109 P.3d 383, 383 (Or. Ct. App. 2005).
21. Cf Ricardo J. Bascuas, Fourth Amendment Lessons from the Highway and the
Subway: A Principled Approach to Suspicionless Searches, 38 RUTGERS L.J. 719, 770
(2007) ("[T]he Fourth Amendment protects privacy by protectingproperty.").
22. State v. Purvis, 438 P.2d 1002, 1006 (Or. 1968) (Sloan, J., dissenting). Moreover,
allowing such use of a private party by the police in Oregon is analogous to what was
allowed under the now abandoned "silver platter" doctrine. Cf Robert Post, Federalism,
Positive Law, and the Emergence of the American Administrative State: Prohibitionin the
Taft Court Era, 48 WM. & MARY L. REV. 1, 34 n.l 13 (2006) ("Federal use of evidence
gathered by state actors in violation of constitutional norms applicable to the federal
government later became known as the 'silver platter doctrine."'). The rule was recognized
by the United States Supreme Court in 1927. Byars v. United States, 273 U.S. 28, 33 (1927).
The rule, however, has since been abrogated by the Court. 29 AM. JUR. 2D Evidence 608
(2006). The doctrine was expressly overruled in 1960. Elkins v. United States, 364 U.S.
206, 223-24 (1960).
23. See discussion infra Part II.A.
NEW ENGLAND LAW REVIEW [Vol. 42:929

Comment remains on the law of search and seizure, but shifts to Article I,
section 9 of the Oregon Constitution.2 4 Specifically, this Comment will
examine the manner in which Article I, section 9 protects individual
possessory interests.2 5 Part II will also consist of a thorough discussion of
the Oregon Constitution's protection of possessory interests in garbage.2 6
Afterwards, Part III examines the Oregon Court of Appeal's opinion
in State v. Howard,detailing both the factual circumstances of the case, and
the reasoning behind the court's decision.27 Part IV explains why the
Howard court should have suppressed the evidence that was obtained from
the defendants' garbage can. 28 Specifically, Part IV asserts that the police
infringed the defendants' constitutionally protected possessory interests in
the contents of the can. 29 Finally, Part V concludes with some reasons why
the precedent that the30 Oregon Court of Appeals created in Howard is
socially undesirable.
II. BACKGROUND

A. Search and Seizure and the United States Constitution


3
The Fourth Amendment to the United States Constitution 1
effectuates the preservation of the right to privacy and allows individuals to
be free from arbitrary governmental intrusions.32 The text of the
Amendment provides two ,, mechanisms for ,,33accomplishing
,,,, these underlying
objectives-the "Reasonableness Clause, and the "Warrants Clause.

24. See discussion infra Part II.B.


25. See discussion infra Part II.B.
26. See discussion infra Part I.B. 1.b.
27. See discussion infra Part III.
28. See discussion infra Part IV.
29. See infra Part IV.
30. See discussion infra Part V.
31. The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
U.S. CONST. amend. IV.
32. 68 AM. JuR. 2D Searches and Seizures 1 (2000). It is well settled that the Fourth
Amendment protects the right to privacy. David Siegel, Note, Some Traditional Thinking
About Non-TraditionalSearches: Mandatory Drug Testing, the FourthAmendment and the
Supreme Court's BalancingMethodology, 1988 U. CHI. LEGAL F. 285, 293 (1988).
33. "The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated .... U.S. CONST. amend.
2008] STATE V HOWARD

The basic premise of the Reasonableness Clause is that no individual shall


suffer an unreasonable search or seizure executed by the State. 35 The
determination of whether a search or seizure is "reasonable" is made by
weighing the intrusion sustained by the individual, against the advancement
of the legitimate governmental interest that is furthered by the search or
seizure.36
The counterpart to the Reasonableness Clause is the Warrants
Clause.37 The Warrants Clause provides that "no Warrants shall issue, but
upon probable cause, supported by Oath or affirmation, and particularly
describing the place to be searched, and the persons or things to be
seized., 38 A search or seizure conducted in the absence of a warrant is "per
se unreasonable," and violates of the Fourth Amendment's prohibition of
unreasonable searches and seizures, "unless
39 it comes within a recognized
exception to the warrant requirement.
Failure to conduct police operations within the boundaries established
by the Fourth Amendment can result in severe consequences for the
government.4 Primarily, evidence obtained in violation of the Fourth
Amendment is subject to the "exclusionary rule," and is not admissible
against an accused during his or her trial.4 ' This remedy is available against

IV; see Kelly A. Brouchers, Mission Impossible: Applying Arcane Fourth Amendment
Precedent to Advanced CellularPhones, 40 VAL. U. L. REV. 223,230 (2005).
34. See Chris Blair, Illinois v. Caballes: Love Affair with a Drug-Sniffing Dog, 41
TULSA L. REV. 179, 182 n.36 (2005); Brouchers, supra note 33, at 231.
35. See 68 AM. JUR. 2D Searches and Seizures 1 (2000) (citations omitted).
36. Vemonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995); 68 AM. JUR. 2D
Searches and Seizures 11 n.48 (2000) ("To analyze whether a law enforcement action was
'reasonable' under the Fourth Amendment, the governmental interest at stake must be
measured against the individual's right to be free from unwarranted governmental intrusion
into personal freedom and liberty.") (citation omitted).
37. See H. Brendan Burke, Comment, A "Special Need" for Change: Fourth
Amendment Problems and Solutions Regarding DNA Databanking, 34 STETSON L. REV.
161, 167 (2004).
38. U.S. CONST. amend. IV; see also Blair, supra note 34.
39. 68 AM. JUR. 2D Searches and Seizures 12 (2000). "[T]he traditional exceptions to
the warrant requirement, which arise in the context of ordinary police work ... include:
[s]earches incident to a lawful arrest, exigent circumstances, later expanded to include the
automobile exception, hot pursuit, or plain view." Siegel, supra note 32, at 287 n.7 (citations
and internal quotation marks omitted).
40. See Loly Garcia Tor, Mandating Exclusions for Violations of the Knock and
Announce Rule, 83 B.U. L. REV. 853, 857 (2004).
41. Id. ("The exclusionary rule provides that evidence seized by the police in violation
of the Fourth Amendment may not be used in the criminal prosecution of the victim of the
unreasonable search or seizure."). In addition, a Fourth Amendment violation can also give
rise to a civil rights claim against the responsible government officials. See 68 AM. JuR. 2D
Searches and Seizures 7 (2000).
NEWENGLAND LAW REVIEW [Vol. 42:929

the state and federal governments.4 2 One purpose of the exclusionary rule is
to deter the police from engaging in illegal investigatory practices.4 3
The underlying purpose of the Fourth Amendment is readily
apparent," but the scope of its protection is not.45 In addition to protecting
the ambiguous right to privacy, the Fourth Amendment recognizes and
protects property rights.46 This recognition, however, is subject to some
limitation.4 7 For example, garbage placed outside for collection is not
subject to Fourth Amendment protections.48
In California v. Greenwood, the Supreme Court of the United States
held that the Fourth Amendment does not prohibit law enforcement
officials from conducting a warrantless search and seizure of garbage that
has been placed on the curbside for collection.49 In reaching its conclusion,
the Court focused on whether there existed a reasonable expectation of
privacy in the garbage. 50 Although this question was answered in the
negative, the Court did not completely foreclose the possibility of garbage
receiving the Fourth Amendment's protection in the future. 51 The Court

42. Mapp v. Ohio, 367 U.S. 643, 655 (1961) ("[AIll evidence obtained by searches and
seizures in violation of the Constitution is . . . inadmissible in a state court."); Weeks v.
United States, 232 U.S. 383, 398-99 (1914) (stating that obtaining evidence in violation of
the U.S. Constitution by a federal official is inadmissible in a prosecution in federal court).
43. See Sanchez-Llamas v. Oregon, 126 S. Ct. 2669, 2672 (U.S. 2006). Another
common argument made in favor of the exclusionary rule is the "imperative of judicial
integrity" justification. Garcia Tor, supra note 40, at 858.
44. See supra note 32 and accompanying text.
45. See Richard G. Wilkins, Defining the "Reasonable Expectation of Privacy": An
Emerging Tripartite Analysis, 40 VAND. L. REv. 1077, 1088 (1987) ("[T]he fourth
amendment applies whenever government activity infringes upon a 'reasonable expectation
of privacy."'). This standard makes it difficult to accurately predict what is actually within
the purview of the Fourth Amendment because "[t]he factual variables arguably relevant in
determining whether a given situation involves an 'expectation of privacy' that society is
prepared to recognize as 'reasonable' are well-nigh limitless." Id. at 1089.
46. Soldal v. Cook County, II1., 506 U.S. 56, 62 (1992) (holding that "seizure" within
the meaning of the Fourth Amendment occurred when owners were dispossessed of their
mobile home by police, despite no invasion of privacy having occurred).
47. Id. at 63 n.7 ("[T]he Amendment does not protect possessory interests in all kinds of
property.").
48. California v. Greenwood, 486 U.S. 35, 37 (1988) ("[T]he Fourth Amendment [does
not] prohibit[] the warrantless search and seizure of garbage left for collection outside the
curtilage of a home."). But see 68 AM. JUR. 2D Searches and Seizures 24 (2000) ("A
warrantless search or seizure of the items deposited in a trash receptacle on private premises
generally is not justified.") (citing United States v. Wilson, 36 F.3d 1298 (5th Cir. 1994)).
49. Greenwood,486 U.S. at 37.
50. See id. at 39.
51. See id ("The warrantless search and seizure of the garbage bags left at the curb
outside the Greenwood house would violate the Fourth Amendment only if respondents
2008] STATE V. HOWARD

did, however, signal to the states that garbage could receive such protection
under individual state constitutions.5 2 The following section examines
search and seizure under the Oregon Constitution.
B. Search and Seizure and the Oregon Constitution
A search within the meaning of Article I, section 9 of the Oregon
Constitution"3 "occurs when a person's privacy interests are invaded. ' 54 A
seizure, by contrast, does not occur unless the police cause "significant
interference with a person's possessory or ownership interests in
property., 55 Thus, Article I, section 9 protects individuals from
unreasonable searches and seizures
56
of property in which they hold a
possessory or privacy interest.
There are three sets of circumstances in which the police may execute
a search or seizure under Article I, section 9.57 First, as Article I, section 9
explicitly states, the police may execute either a search or a seizure with a
warrant. 58 Second, if the police acted without a warrant-the search or
seizure will still be constitutional if the police executed the search or
seizure with a valid exception to the warrant requirement.5 9 Third, the
police may execute a search or seizure without a warrant, or an exception
to the warrant requirement, if probable cause was not required because the
defendant had no possessory or privacy interests in the property that is
searched or seized.6 Under this scenario, "[t]he State bears the burden of

manifested a subjective expectation of privacy in their garbage that society accepts as


objectively reasonable.").
52. See id. at 43.
53. 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 unreasonable search, or seizure; and
no warrant shall issue but upon probable cause, supported by oath, or
affirmation, and particularly describing the place to be searched, and the
person or thing to be seized.
OR. CONST. art. 1, 9.
54. State v. Owens, 729 P.2d 524, 530 (Or. 1986).
55. Id. at 531.
56. See State v. Galloway, 109 P.3d 383, 385 (Or. Ct. App. 2005).
57. See id.
58. See id.
59. See id. For a discussion of general exceptions to the warrant requirement, see for
example Siegel, supra note 32, at 286-87 n.7.
60. See Galloway, 109 P.3d at 385. "Probable cause" is a "reasonable ground to suspect
that a person has committed or is committing a crime or that a place contains specific items
connected with a crime." BLACK'S LAW DICTIONARY 1239 (8th ed. 2004). "The probable
cause test ... is an objective one; for there to be probable cause, the facts must be such as
NEW ENGLAND LAW REVIEW [Vol. 42:929

demonstrating that a 'defendant


61 lacked possessory or privacy interests in the
property in question.
In sum, if the police execute a search or seizure of property without a
warrant or an exception to the warrant requirement, the state must show the
defendant did not have any possessory or privacy interests in the disputed
property, or the search or seizure will be held unconstitutional.6 2 Property
obtained through an unconstitutional search or seizure is inadmissible into
evidence because "the right to be free from unreasonable searches and
seizures under Article I, section 9 also encompasses the right to be free
from the use of evidence obtained in violation of that state constitutional
provision. 63 The following section specifically addresses the extent to
which Article I, section 9 protects possessory interests.

1. Possessory Interests and Article I, section 9

a. Possessory Interests in General


If an individual holds a possessory interest in an article of property,
the police cannot search or seize it, unless they either have a warrant or can
satisfy an exception to the warrant requirement. 64 Thus, if the police act
without a warrant or an exception to the warrant requirement, the
determination of whether the search or seizure violated Article I, section 9
turns on whether the defendant abandoned65 the property in question.6 6
In order to complete a possessory interest analysis, the reviewing
court is required to answer questions of both fact and law. 67 In State v.
Cook, the Supreme Court of Oregon stated: "property law concepts of
ownership and possession are relevant . . . in the factual and legal
determination whether a defendant relinquished all constitutionally
protected interests in an article ofXroperty. ' '68 Article I, section 9 governs
short and long-term seizures alike. "The seizure of an article [of property]
and the retention of it (even temporarily) is a significant intrusion into a

would warrant a belief by a reasonable man." WAYNE R. LAFAVE & JEROLD H. ISRAEL,
CRIMINAL PROCEDURE 140 (2d ed. 1992).
61. Galloway, 109 P.3d at 385.
62. See id.
63. State v. Hall, 115 P.3d 908, 919 (Or. 2005) (emphasis added).
64. See Galloway, 109 P.3d at 385.
65. "Abandoned property" is "[p]roperty that the owner voluntarily surrenders,
relinquishes, or disclaims." BLACK'S LAW DICTIONARY 1253 (8th ed. 2004).
66. See State v. Cook, 34 P.3d 156, 159-60 (Or. 2001).
67. Id. at 160.
68. 1d.
69. See State v. Owens, 729 P.2d 524, 530-31 (Or. 1986).
2008] STATE V. HOWARD 939
person's possessory interest in that 'effect."' 70 Accordingly, even seizures
of the briefest duration must conform to Article I, section 9 or any evidence
obtained therefrom can be challenged by the defendant as inadmissible.71
A property owner need not be in actual possession of his or her
property, or even know of its location, in order to qualify for the
protections of Article I, section 9.72 State v. Pidcock7 3 is illustrative of this
point. In Pidcock, a woman and her daughter discovered a briefcase close
to the mailbox in front of their house.74 Because the briefcase had a
somewhat lavish appearance and "something heavy inside" shifting about,
they took it inside their house and called the police.75
The briefcase was later opened by a Deputy Sheriff that responded to
the call.76 The briefcase contained quantities of both cocaine and
methamphetamine, $9000 in cash, and a fully loaded .45-caliber automatic
pistol.77 After these events had taken place, a local newspaper received a
call about placing a classified advertisement about a lost briefcase.78
Subsequent to this phone call, the Sheriffs office held a press conference
about the briefcase. 79
Sometime after the press conference concluded, the newspaper
received another call-this time the caller sought to cancel the
advertisement. 80 The caller gave the name, address, and phone number of
the defendant to the paper for the advertisement bill. 81 The defendant
moved to suppress the drugs, but the motion was denied, and the defendant
was subsequently tried and convicted. 2
Two appeals followed the defendant's conviction, in which the
Oregon Court of Appeals and the Supreme Court of Oregon both affirmed
the trial court's decision to deny the defendant's motion to suppress. 83
According to the Supreme Court of Oregon, the rationale behind the Court
of Appeal's decision was that the defendant relinquished his possessory

70. Id. at 531.


71. See id.; see also State v. Hall, 115 P.3d 908, 919 (Or. 2005).
72. See State v. Pidcock, 759 P.2d 1092, 1094 (Or. 1988).
73. Id.
74. Id. at 1093.
75. Id.
76. Id.
77. Id. at 1094.
78. Pideock, 759 P.2d at 1094.
79. See id.
80. Id.
81. Id.
82. See id. at 1093.
83. Id.
NEW ENGLAND LAW REVIEW [Vol. 42:929

interests in the briefcase after he learned that it was found by the police.84
The Supreme Court of Oregon, however, rejected this analysis, and
held that the defendant did have possessory interests in the briefcase when
the police seized and opened it, because the "defendant was still actively
attempting to recover that property."85 In spite of this, the Supreme Court
of Oregon went on to affirm the Court of Appeal's decision, because the
police did not open the briefcase in pursuit of any incriminating evidence,
but did so only in an attempt to discover the briefcase owner's identity.86
The intent of the police officers notwithstanding, Pidcock stands for the
proposition that lost or "mislaid property ' 87 is protected by 88 Article I,
section 9, so long as its owner manifests an intent to recover it.
This principle is also observable in State v. Belcher,89 a companion
case to Pidcock.90 The defendant in Belcher had participated in a bar fight,
and fled before the police arrived at the scene. 9 1 When the police arrived,
they found a backpack that belonged to the defendant, and discovered that
it contained stolen jewelry.92 The defendant was convicted of burglary in
the first degree after losing his motion to suppress the jewelry.93 The trial
court's ruling on the motion was affirmed
94 by the Oregon Court of Appeals
and the Supreme Court of Oregon.
Since the police searched the defendant's backpack without a warrant,
or valid warrant exception, the admissibility of the jewelry depended on
whether the defendant had abandoned his backpack. 95 In its discussion, the
Supreme Court of Oregon framed the issue as "whether the backpack and
its contents were abandoned and whether the police could conduct a
warrantless search of... the backpack., 96 The court held the defendant had
abandoned his backpack because97
he manifested "no indication" that he
would attempt to recover it.

84. See Pidcock, 759 P.2d at 1094.


85. See id. (emphasis added).
86. Id.at 1094-95.
87. Mislaid property is "[p]roperty that has been voluntarily relinquished by the owner
with an intent to recover it later - but that cannot now be found." BLACK'S LAW DICTIONARY
1253 (8th ed. 2004).
88. See Pidcock, 759 P.2d at 1094.
89. 759 P.2d 1096 (Or. 1988).
90. Id.at 1097.
91. Id.
92. Id.
93. See id.at 1096-97.
94. See id.
95. See Belcher, 759 P.2d at 1097.
96. Id.
97. Id.
20081 STATE V HOWARD

Accordingly, the Supreme Court of Oregon affirmed the defendant's


conviction.98 Thus, taken together, Pidcock and Belcher stand for two
propositions: (1) Article I, section 9 does protect lost and misplaced
property, so long as its owner is taking steps to recover it; and (2)
terminating efforts to recover property in order to avoid detection by the
police is a factor to be considered when determining whether property was
abandoned within the meaning of Article I, section 9.99 This latter point
does not always contravene the interests of the defendant.' 00 In State v.
Morton, the Supreme Court of Oregon held that abandonment of property
during the course of an illegal arrest does not terminate the defendant's
Article I, section 9 rights.' '
In Morton, the defendant failed to either appear in court or pay a fine
for a traffic citation, which resulted in the issuance of a warrant for her
arrest. 0 2 Several months later the defendant was arrested pursuant to the
warrant. 0 3 During the course of her arrest a container fell out of her
jacket. 4 The defendant told the arresting officer that it did not belong to
her, that she had never seen it before, and that she did not know what it
contained. 0 5 The container had inside it "methamphetamine and related
paraphernalia."' 0 6 The defendant was subsequently charged with unlawful
possession of a controlled substance, and with unlawful delivery of a
controlled substance, but was successful 07
in convincing the trial court to
suppress the container and its contents. 1
The state appealed, and the Oregon Court of Appeals reversed,
holding that the defendant was ineligible for an Article I, section 9
challenge to how the police obtained the container, because she had
emphatically denied ownership during her arrest. 10 8 The defendant
appealed, and the Supreme Court of Oregon rejected the Court of Appeal's
analysis, noting that establishing ownership of the property in question is
not a requisite condition for qualifying for the protection of Article I,
section 9109 A defendant need only show that he or she had a possessory

98. Id.
99. See id.;
State v. Pidcock, 759 P.2d 1092, 1094 (Or. 1988).
100. See State v. Morton, 953 P.2d 374, 376-77 (Or. 1998).
101. Id.
102. Id.at 375.
103. Id. at 375-76.
104. Id. at 376.
105. Id.
106. Morton, 953 P.2d at 376.
107. See id.at 375.
108. Id.at 376.
109. Id.
NEW ENGLAND LAW REVIEW [Vol. 42:929

interest vested in the property, and this requirement was clearly satisfied. 0
The Supreme Court of Oregon shifted focus to whether the defendant
had actually abandoned the container, and whether her arrest was lawful."'
The court determined the arrest warrant was invalid, and that the defendant
separated herself from the container after the police initiated an illegal
arrest. 1 2 In spite of all of the evidence that the defendant had abandoned
her possessory interests in the container, the court nevertheless held that it
was obtained in violation of Article I, section 9 and that the trial court
properly granted the defendant's motion to suppress the evidence of the
container and its contents." 13 Morton, therefore, stands for the proposition
that abandonment of the property in question does not terminate the
defendant's ability to controvert its admissibility under Article I, section 9
if the abandonment occurred14 during, and only because of, effectuation of an
illegal arrest by the police.'
The issue of explicit denial of ownership of property was again
examined by the Supreme Court of Oregon when it decided State v.
Cook. 15 In Cook, two police officers, while checking an apartment
complex's parking area for potential theft from parked cars, took notice of
the defendant, who was putting clothes into a duffel bag that he had with
him."l 6 The officers approached the defendant because, according to one of
the officers, "'it seemed reasonable to believe that the actions that [the
defendant] was doing would be something 17
consistent with somebody who
had committed a theft from a vehicle.""'
The police asked the defendant about his activities, and the defendant
recounted to the officers that "'he had been out for a walk when he
discovered a pile of clothing there and he thought he may be able to use
some of the clothing and so he was going through the clothing to find items
which he may be able [to] use.""'1 8 The defendant denied ownership of the
bag, and all articles of clothing in the immediate area, save for a "'green
army jacket.""'19
One of the officers told the defendant to "'step out' of the area where

110. See id The Supreme Court of Oregon stated, "the uncontradicted evidence in this
case showed that this defendant had, in fact, been in personal possession of the container in
question only moments before it came into the possession of the police." Id.
111. See id. at 376.
112. See Morton, 953 P.2d at 376.
113. See id. at 376-77.
114. See id.; see also State v. Cook, 34 P.3d 156, 159 (Or. 2001).
115. 34 P.3d 156 (Or. 2001).
116. Id.at 158.
117. Id. (quoting testimony of officer).
118. Id. (quoting testimony of officer).
119. Id. (quoting testimony of officer).
2008] STATE V HOWARD

the bag and other items were. 120 The bag was subsequently searched by an
officer and was found to contain a syringe, two spoons (one of which
"'contained a white powder substance"'), and a clear plastic baggie.' 2'
After the search was complete, the defendant claimed ownership of the
bag. 122 The defendant was later convicted of possession 123 of
methamphetamine, after the trial court denied his motion to suppress.
The Oregon Court of Appeals affirmed
24 before the matter was reviewed by
the Supreme Court of Oregon.1
The Oregon Court of Appeals affirmed the trial court, holding that the
defendant's "'disclaimer of ownership"' constituted abandonment of the
property and effectively terminated his protected possessory interests in the
bag. 125 On appeal before the Supreme Court of Oregon, the defendant
argued that his denial of ownership had no such effect on his Article I,
section 9 interests. 126 In its analysis of Cook, the Supreme Court of Oregon
framed the issue as follows: "whether the defendant's statements and
conduct demonstrated that he relinquished all constitutionally protected
interests in the articles of property, so that both the warrantless seizure of
the property and the resultant search by the police were reasonable under
Article I, section 9.,,127 Importantly, the court also stated that principles
128
of
property law were relevant components to this constitutional analysis.
The Supreme Court of Oregon concluded that it was reasonable for
the officers, based on the statements that the defendant made prior to
execution of the search and seizure, to draw the inference that the bag and
clothes did not belong to the defendant. 129 The court, however, held that
these same statements did not allow the police "to conclude that [the]
defendant intended to relinquish all his constitutionally protected interests
130
in those items.' Thus, the court concluded that the only reason that the
defendant stepped away from the property in question was because he was
ordered to do so by one of the officers, and acting as per the instructions of
the police is not sufficient to constitute abandonment within the meaning of
Article I, section 9.131 Accordingly, the court held that it was an error to

120. Id. at 161 (quoting testimony of officer).


121. Cook, 34 P.3d at 158 (quoting testimony of officer).
122. See id.
123. Id. at 157.
124. Id.
125. See id. at 159 (quoting testimony of officer).
126. See id.
127. Cook, 34 P.3d at 160.
128. See id.
129. Id.
130. Id.
131. Seeid.at 160-61.
NEW ENGLAND LAW REVIEW [Vol. 42:929
2
deny the defendant's motion to suppress.1
Cook stands for the proposition that conduct otherwise potentially
sufficient to constitute abandonment of property within the meaning of
Article I, section 9-walking away from an article of property and
explicitly denying ownership of it-is ineffective when it occurs only
because the defendant is acquiescing to police instruction.133 Thus, the
police cannot coerce someone into abandoning aa article of property
simply so they can seize and subsequently search it. 134 But, Cook is more
important because of the guide that it offers: (1) property law principles are
relevant to an Article I, section 9 analysis; and (2) focus should be placed
on whether the defendant truly intended to abandon all of his or her
interests in the property.'35
In State v. Kendall,136 the Oregon Court of Appeals "addresse[d] the
question of whether a defendant abandons . . . possessory interests in
property that he discards when fleeing the police.' ' 137 In Kendall, a police
officer (Francis) was patrolling a neighborhood in Southeast Portland when
he observed a man (defendant) on a bicycle. 38 Francis recognized the
defendant and was aware that "there was an outstanding warrant for his
arrest."' 139 Francis commanded the defendant to stop, but40 the defendant
ignored him and began to rapidly ride away on his bicycle'
Francis followed the defendant, who circled the same block at least
three times.141 In this course of pursuit, the defendant rode his bike through
the same yard of a house on this block several times. 142 During one of these
trips around the house, the "defendant threw his bicycle into some bushes
on the lot that adjoined the residence and then ran into the house."' 143 After
he made a call for backup, Francis took the defendant's bicycle out of the
bushes and took it back by his police car.' 44 Once his backup arrived,
Francis, accompanied by one of the backup officers, approached the door to
the house and asked for the defendant. 145 Eventually, the defendant

132. Id.at 161.


133. See Cook, 34 P.3d at 160-61.
134. See id
135. See id
136. 24 P.3d 914 (Or. Ct. App. 2001).
137. Id. at 917.
138. Id. at 915.
139. Id.
140. Id.
141. Id.
142. Kendall, 24 P.3d at 915.
143. Id.
144. Id.
145. Id.
2008] STATE V HOWARD
46
emerged, and was placed under arrest by Francis.1
Prior to leaving the house, Francis inventoried the contents of the
"leather zippered shaving kit . . . [that] was attached by a bungee cord to
the back of defendant's bicycle.0 47 Inside the shaving kit Francis found
some "brown chunky powder substance" which turned out to be
methamphetamine1 48 At his trial for possession of a controlled substance,
the defendant sought to suppress the methamphetamine on the ground that 1 49
Francis's search violated Article I, section 9 of the Oregon Constitution.
The state argued that the defendant had abandoned his possessory interests
in the bicycle and the attached 51shaving kit.' 50 The trial court denied the
defendant's motion to suppress.1
The Oregon Court of Appeals reviewed and reversed the trial court's
decision. 52 The Kendall court focused, as did the trial court, on the issue of
whether the bicycle and shaving kit were abandoned property.' 53 The
Kendall court examined the effect of the bicycle being left on private
property, and determined that it countervailed the state's claim that the
bicycle and shaving kit were abandoned property. 54 Additionally, the 55
Kendall court focused on the "nature" of the defendant's property.
Finally, the Kendall court considered the actions of Francis, and decided
that it was evident that he understood
56
that the defendant had not abandoned
his bicycle and shaving kit. 1
Accordingly, the Kendall court held that the "defendant did not
abandon his privacy or possessory interests in his bicycle and bag and...
the search and seizure of his property cannot be justified on that basis.' 57
Kendall stands for the proposition that the location of where the police find
the contested property, the property's nature, and the treatment of the
property by the seizing officer are all factors relevant to the abandonment
analysis under Article I, section 9 of the Oregon Constitution. 158 Kendall

146. Id.
147. Id.
148. Kendall, 24 P.3d at 916.
149. Id.
150. Id.
151. Id.
152. Id. at 918.
153. Id. at 916.
154. Kendall, 24 P.3d at 916.
155. Id. at 917.
156. Id.
157. Id.
158. Id. at 916-17 (the defendant's property was not abandoned because: (1) it was left on
private property; (2) it was a vehicle, which gave the defendant a reasonable expectation
that it would be left undisturbed; and (3) the officer who seized it stated that he planned to
NEW ENGLAND LAW REVIEW [Vol. 42:929
59
was decided with the companion case of State v. Dickson.1
In Dickson, police officers served a search warrant on a home. 160 As
the police approached the house in a convoy of vehicles, the defendant was
observed walking out of the front door with a backpack. 16' The defendant
saw the vehicles approaching the house and began to run.1 62 The police
exited their vehicles, identified '1themselves
63
as police officers, and shouted
"that they had a search warrant."
The defendant was chased by at least one of the police officers, and
when he was somewhere between fifteen and twenty feet from the house,
he discarded his backpack. 64 The defendant, and the backpack, were both
subsequently apprehended and seized by the police.' 65 Afterwards, "one
officer asked [the defendant] about the backpack; [but he] indicated that he
was declining to make any statements. The officers took [the] defendant
into the house and gave Miranda warnings to him and to the other
occupants.' 66
The defendant successfully moved the trial court to suppress the
backpack and its contents, arguing that the police had obtained them in
violation of both Article I, section 9 of the Oregon Constitution, and the
Fourth Amendment to the United States Constitution. 67 The Oregon Court
of Appeals reviewed, and reversed the trial court's order to suppress the
marijuana. 68 The Dickson court focused on the defendant's conduct at the
time that he discarded his backpack, and immediately thereafter. 69

return it to the defendant).


159. 24 P.3d 909 (Or. Ct. App. 2001). Kendall and Dickson were both decided on April
25, 2001. See Kendall, 24 P.3d at 914, 917; Dickson, 24 P.3d at 909.
160. Dickson, 24 P.3d at 910.
161. Id.
162. Id.
163. Id.
164. Id.
165. Id.
166. Dickson, 24 P.3d at 910. Finally, "[olne officer went back outside to search the
curtilage [of the house]. The officer recovered the backpack, opened it, and found a
substantial quantity of marijuana." Id. (internal quotation marks omitted).
167. Id. In addition to resolving issues of the search warrant in the defendant's favor, the
trial court held that the "defendant did not abandon the backpack by dropping it, because he
made no attempt to hide it; in addition, he neither denied nor admitted ownership of it." Id
168. Id.
169. See id. Judge Linder, writing for the court, stated:
The record does not show that [the] defendant took any action indicating
that he was attempting to maintain control of the backpack, such as
hiding it in a place from which he might later be able to retrieve it. To
the contrary, the record indicates that [the] defendant dropped the
2008] STATE V HOWARD

Accordingly, Dickson says that a pertinent consideration of the


abandonment analysis is whether the defendant attempted to conceal the
property, or, in any alternative 7manner,
0
manifested to the police some
desire to exercise control over it.'
In State v. Stafford,171 the Oregon Court of Appeals reiterated that
each of the aforementioned factors articulated in Cook, Morton, Kendall,
and Dickson were still relevant to the abandonment analysis.172 The
defendant in Stafford was accused of "possession and delivery of a
Schedule II controlled substance." 173 The events in Stafford which led to
the narcotics charge began when two 74
police officers responded to a noise
complaint at an apartment complex.'
Police officers Goldschmidt and Chastain encountered the defendant
as he was exiting the "common area" of the complex. 175 When the
defendant saw the officers, he momentarily ducked behind the door to the
common area and appeared as if he was dropping something that he had
been carrying1 76 "Chastain heard a crumpling sound from behind the
door."' 177 After some brief conversation with Chastain, the defendant left
the complex. 178 Goldschmidt entered the door to the common area, and
found a paper bag.179 The bag contained crack cocaine.180
Prior to his trial, the defendant moved to suppress the contents of the
bag-alleging that the officers violated his rights under Article I, section
9.' 1 The trial court admitted the evidence, stating that the defendant had
abandoned the bag, and thereby terminated his protected possessory

backpack in plain sight of officers in close pursuit of him.


Id. at 913. According to Judge Linder, this scenario "made it objectively likely that others
would inspect the backpack; conversely, it also indicates that defendant did not intend to
reclaim the backpack." Id. Finally, the Dickson court noted, "even assuming that defendant
dropped the backpack in response to the arrival of the police at the residence, the police had
arrived there to execute a valid search warrant." Id.
170. State v. Stafford, 57 P.3d 598, 601 (Or. Ct. App. 2002); see also Dickson, 24 P.3d at
913.
171. 57 P.3d 598 (Or. Ct. App. 2002).
172. Id. at 601.
173. Id. at 600.
174. Stafford, 57 P.3d at 599.
175. See id. The complex had an outer door that led into a common area. The doors to the
actual dwellings were in this area. Id.
176. See id.
177. Id.
178. Id.
179. See id.
180. Stafford, 57 P.3d at 599.
181. Id. at 600.
NEW ENGLAND LAW REVIEW [Vol. 42:929

interests.182 The defendant appealed, and the Oregon Court of Appeals


affirmed the trial court's decision. 83 The Stafford court stated that the
following factors were relevant to the defendant's constitutional claim:
(1) whether [the] defendant separated himself or herself from the
property as a result of police instruction . . . or illegal police
conduct . . . (2) whether [the] defendant left the property on
private, as opposed to public, property . . . (3) whether [the]
defendant made any attempt to hide the property or in any other
way manifest an intention to the police 184 that he or she was
attempting to maintain control over it.
The Oregon Court of Appeals applied these factors to the facts of
Stafford.'85 First, the Stafford court noted that the defendant freely, and of
his own volition, discarded the paper bag.' 86 The defendant did drop the
bag in response to seeing the police approach, but the court noted that the
officers were acting lawfully, and that they did not instruct the defendant to
do anything.18 7 As for the second factor, the Stafford court noted that the
bag was placed by the defendant "in a public entryway of a multi-unit
dwelling, where members of the public were likely to see it and likely to
inspect its contents."' 8 8 Finally, under the third factor, the Stafford court
noted that the defendant discarded the bag without even trying to conceal
it.' 89 Rather, the bag was positioned so that it would be discovered by
anyone that entered the common area.190
The defendant argued that the care that he exercised when he placed
the bag by the handrail in the common area evidenced that he had no
intention of abandoning the bag. 191 The Stafford court stated the level of
care exercised by the defendant was inconsequential as to whether the bag
had been abandoned. 92 The Stafford court held that this argument was
countervailed by the holding in Dickson, stating "[a]s in Dickson, [the]
defendant in this case made no attempt to hide the property from public
view or give any indication that the wadded brown paper bag was anything

182. See id
183. Id. at 601.
184. Id.
185. See id.
186. Stafford, 57 P.3d at 601.
187. Id.
188. Id.
189. Id.
190. Id.
191. Id.
192. See Stafford, 57 P.3d at 601.
2008] STATE V. HOWARD

other than discarded trash."'1 93 Accordingly, the Stafford court affirmed the
trial court's
94
decision to admit the paper bag and its contents into
evidence. 1
In sum, the aforementioned cases provide a basic framework for
determining whether an individual has abandoned his or her 95
constitutionally cognizable possessory interests in an article of property.'
None of the cases examined in this section, however, address whether it is
possible to retain possessory interests in garbage, or garbage cans, within
the purview of Article I, section 9 of the Oregon Constitution. 196 The
question of whether someone retains cognizable possessory interests in
their garbage within the meaning of the Oregon Constitution is examined
and answered in the following section.

b. Possessory Interests in Garbage


On March 30, 2005, the Oregon Court of Appeals held in State v.
Galloway that individuals retain a constitutionally cognizable possessory
interest in garbage that they have placed in a garbage can and set out on the
curbside for collection.' 97 The Galloway court heard two appeals by the
State that were consolidated for review.' 98 In both cases, the defendants had
been successful in moving the trial99
court to suppress what had been seized
from their garbage by the police.'
The defendant in Hoesly was employed as a police officer by the city
of Portland, Oregon. 200 This fact, among others, attracted the attention of
the local media.20 ' Ms. Hoesly's case even drew some outspoken criticism
from Portland Chief of Police Mark Kroeker. 20 2 After the trial court granted
Ms. Hoesly's motion to suppress, Chief Kroeker insisted that the search of
her garbage was perfectly lawful.20 3
The seizure of Ms. Hoesly's garbage occurred after some of her
fellow officers received information that she may have been involved in

193. Id.
194. Id.
195. See discussion supra Part Il.B. 1.a.
196. See discussion supra Part I.B. 1.a.
197. State v. Galloway, 109 P.3d 383, 383-84 (Or. Ct. App. 2005) (holding that the
garbage was protected by Article 1, section 9 of the Oregon Constitution).
198. Id. at 383. The cases, respectively, were State v. Hoesly and State v. Galloway. Id at
383-84.
199. Id.
200. Id. at 384.
201. See, e.g., Lydgate & Budnick, supra note 8.
202. See id.
203. See id.
950 NEW ENGLAND LAW REVIEW [Vol. 42:929

drug use.204 This prompted her fellow officers to initiate an investigation


into whether she had actually used illegal drugs.20 5 This investigation
culminated in the police surreptitiously driving to Ms. Hoesly's residence,
which was located outside the city limits of Portland, and seizing the
garbage that she had placed inside of her garbage can and set on the
sidewalk in front of her home for her garbage collector.20 6
The garbage was taken by the police back to their precinct, where 20 7
they examined and photographed what was inside of the garbage bags.
The officers "found straws, baggies, and a pipe that bore traces of a
powdery residue.... [In addition to] a small amount of leafy material. 2 8
Additionally, the officers found a "blood-soaked" tampon which they
subsequently had tested for narcotics, DNA, and seminal fluid.20 9
Based on what they found in the garbage, the officers were able to
obtain a warrant that authorized the search of Ms. Hoesly's house.210 The
warrant was executed, and the officers found a journal in which Ms. Hoesly
had allegedly recorded some inculpatory statements. 211 The officers
obtained a second warrant, this time authorizing the taking of a DNA
sample from Ms. Hoesly.212 A sample was obtained, and it was found to
match the DNA taken from the pipe.
State v. Galloway, the case which was consolidated with State v.
Hoesly, involved an investigation by the Oregon State Police of Thad and
Amy Galloway. 214 In July 2001, a state police officer "removed several
closed, opaque bags from the Galloways' garbage cans at the end of their
driveway" from their residence in Clatskanie, Oregon.21 5 The garbage was
taken back to the police station where it was examined by the police.26 A
paper bag containing a small quantity of marijuana was discovered in the

204. Galloway, 109 P.3d at 384.


205. Id.
206. Id. The police did not take the entire garbage can with them-they only took the
black plastic bags contained therein. Id.
207. Id.
208. Id.
209. Id. This test yielded a DNA sample, but no evidence of narcotics or seminal fluid.
Id.As for the remainder of the garbage, a DNA sample was obtained from the pipe, and
"[s]ome of the other items tested positive for methamphetamine, cocaine, and marijuana."
Id.
210. Galloway, 109 P.3d at 384.
211. Id.
212. Id.
213. Id.
214. Id. at 383-84.
215. Id.
216. Galloway, 109 P.3d at 384.
2008] STATE V HOWARD

Galloway's garbage.2 17
A warrant authorizing the search of the Galloways' home was sought
and obtained by the officer.2 18 The warrant was executed, and the search
yielded discovery of methamphetamine in addition to evidence that
indicated the Galloways were growing marijuana. 21 9 The Galloways were
both charged with drug offenses.22
Each of the aforementioned defendants moved for suppression of the
evidence that was seized from their garbage cans, in addition to the
corresponding derivative evidence. 22 1 Each defendant averred that the
police acted without probable cause, and that the search and seizure of their
garbage was an invasion of their constitutionally protected interests.222 The
state conceded at each suppression hearing that no probable cause existed,
but asserted that no such constitutional violation occurred because each
defendant had relinquished any cognizable right of privacy once they
placed their garbage along the roadside for collection.2 23
Neither trial courts were persuaded by the state and both accordingly
held that each defendant "had a constitutionally protected interest in their
garbage cans and the contents of those cans. 22 4 The evidence was
suppressed in each case, and the state appealed the order of both trial
courts.225 On appeal, the state argued that the contents of the garbage cans
were abandoned by each of the defendants when they placed the cans on
the curbside for collection.22 6
Confronted with the foregoing facts and legal arguments, the Oregon
Court of Appeals framed the precise issue on appeal as "whether
individuals retain interests protected by Article I, section 9 of the Oregon
Constitution in garbage that they have left in garbage cans outside their
homes for curbside collection., 227 Additionally, because the state's
argument was based on the proposition that the garbage in each case was
abandoned property, the Galloway court examined the facts relevant to the

217. Id.
218. Id.
219. Id.
220. Id.
221. Id. Derivative evidence "is discovered as a result of illegally obtained evidence and
is therefore inadmissible because of the primary taint." BLACK'S LAW DICTIONARY 596 (8th
ed. 2004).
222. Galloway, 109 P.3d at 384-85.
223. Id. at 385.
224. Id.
225. Id.
226. Id.
227. Id. at 383.
NEW ENGLAND LAW REVIEW [Vol. 42:929

abandonment analysis. 228 According to the state, however, the proper focal
point of the abandonment inquiry was the garbage itself.229 This contention
was not embraced by the court.23
The approach urged by the state, according to the court, ignored the
fact that the defendants held possessory interests in the garbage cans at the
time the searches and seizures occurred.231 In each case, "the searches of
[the] defendants' garbage involved at least incidental infringements on their
possessory rights in their garbage cans, as the police opened and moved
those cans in order to obtain the garbage located inside. 232 Additionally,
the court concluded that a natural consequence of holding possessory
interests in the garbage cans was retention of possessory interests in the
contents of garbage cans.233
This conclusion was arrived at by the court in spite of the state's
assertion that the defendants manifested no intention to maintain control
over what was inside the cans, or the cans themselves. 23 4 The court

228. Galloway, 109 P.3d at 386. The Galloway court, citing State v. Cook, stated that
determining "[w]hether a person has relinquished a constitutionally protected interest in
property involves both factual and legal questions." Id.(citation omitted). The court focused
on a set of three factual findings made by the trial courts:
(1) Defendants contracted with garbage collection companies to collect
their residential garbage at the curbs in front of their homes at specific
times. (2) Defendants left their residential garbage at the curbs in front
of their homes, pursuant to their agreements with garbage collection
companies, inside opaque, closed garbage cans that were owned by
defendants, from which the garbage collection companies were to
remove the bags of garbage. Defendants' garbage cans, however, were
not to be removed by the garbage collection companies. (3) The
contents of the garbage cans were, in fact, refuse, i.e., items that the
defendants intended to discard.
Id.
229. Id. at 387 ("The state's focus on appeal is on whether defendants retained a privacy
or possessory interest in garbage, given that they manifested an intent to have it hauled
away.").
230. See id.
231. Id.
232. Id.
233. Id at 387-88. The Galloway court, however, made it clear that they were not
deciding whether the defendants retained a constitutionally cognizable privacy interest in
the contents of the cans. Id.at 388 n.3.
234. Galloway, 109 P.3d at 389. Specifically, the court said:
By securing garbage inside a closed, opaque container such as a trash
can, contracting with a garbage collection company to take it away, and
placing the cans, with their contents, at the specified collection point in
anticipation of collection, defendants manifested an intent to maintain
2008] STATE V HOWARD

emphasized that an objective third party could reasonably infer from the
fact that the garbage cans had been placed in front of the defendants'
residences, that the contents of the cans were designated for collection only
by a preordained person or organization.2 35 Therefore, the "defendants
retained protected possessory interests in the contents of their garbage cans
until that collection occurred.,236 Accordingly, 23 the
7
Oregon Court of
Appeals affirmed the suppression order in each case.
Thus, Galloway stands for the proposition that a garbage container
and its contents are protected by Article I, section 9 of the Oregon
Constitution when the container has been placed by an individual in front
of his or her residence for the garbage collector. 238 Specifically, Galloway
establishes that the individual retains constitutionally cognizable
possessory interests in the can and its contents. 239 Finally, a careful reading
of Galloway reveals two important points: (1) the possessory interests
retained by the individual do not terminate until the garbage collector has
taken possession of the garbage in the course of collection; and (2) the
police cannot lawfully acquire possession of the contents of the can directly
from the can's owner. 240 The contents of the can must first be obtained by
the garbage collector.24 1 The chain of possession that begins with the
individual and ends with the police must be interrupted by the garbage
collector. 242 These two final points from Galloway are critical to a thorough
understanding of State v. Howard,243 which is discussed in the following
section.

III. STATE V.HOWARD


In State v. Howard, co-defendants Sharon Howard and Gary Dawson,
each having been convicted of multiple drug offenses, appealed the trial
court's denial of their motion to suppress evidence.244 The evidence sought

control over the contents until such time as the garbage company took it
away.
Id.
at 389.
235. Id.
236. Id.(emphasis added).
237. Id.
238. Id.
239. Id.
240. See Galloway, 109 P.3d at 389.
241. See id
242. See id
243. 129 P.3d 792 (Or. Ct. App. 2006).
244. Id.at 793-94. The defendants were both convicted of manufacturing a controlled
substance, possession of a controlled substance, and frequenting a place where controlled
substances are used. Id.at 793.
NEW ENGLAND LAW REVIEW [Vol. 42:929

to be suppressed was obtained by virtue of a warrantless search of their


garbage can, which they had placed on the curbside for collection.2 45 The
defendants asserted that this search violated their Oregon constitutional
rights.24 6 This argument was rejected by the Oregon Court of Appeals, and
their judgments of conviction were affirmed.2 47

A. Facts
The investigation that ultimately led to the convictions of Howard and
Dawson was initiated by police officers in Linn County, Oregon, after they
were informed that an individual had been making regular purchases of
iodine from a local feed store.248 Included in this information was the
license plate number of the car used by the purchaser. 249 The police
determined that the car was registered to co-defendant Sharon Howard.2 50
The police obtained Ms. Howard's address, and determined that both she
and co-defendant Dawson were living at the same residence in Sweet
Home.2 5 1
The police contacted the manager of the area garbage collection
company to investigate whether illegal drug activities were occurring at
Howard and Dawson's residence.252 The officers asked the manager if they
could examine the garbage that the defendants placed on the curbside for
collection.253 The manager agreed to work with the police, and on the next
day scheduled for collection, accompanied them and the garbage collection
crew to the co-defendants' residence.254
The garbage collection crew took the regular collection truck to the
residence, but the manager drove separately in a pickup truck.2 55 When they
arrived, a police detective was present, and the defendant's garbage can
was on the curbside awaiting collection.25 6 The detective watched as,
pursuant to the agreement made previously between the police and the

245. Id. Howard and Dawson were living together at the same residence in Sweet Home,
Oregon. Id.
246. Id. at 793-94.
247. Id. at 793.
248. See id. Iodine can be used to manufacture methamphetamine. Id.; see also Affidavit
for Search Warrant at 13, State v. Howard, 129 P.3d 792 (Or. Ct. App. 2006) (CA No.
A121011).
249. Howard, 129 P.3d at 793.
250. Id.
251. Id.
252. Id.
253. Id.
254. Id.
255. Howard, 129 P.3d at 793.
256. Id.
2008] STATE V. HOWARD

manager, "a sanitation employee placed the trash can into the manager's
pickup truck, rather than dump the contents into the regular 25
garbage
collection truck, and left a replacement can at the curbside.
When this procedure was complete, the manager was followed by the
detective to an isolated location where the detective examined the garbage
that had been placed inside the can.258 During the course of the search, the
detective found "several items relating to the possession and manufacture
of controlled substances, along with mail addressed to co-defendant
Dawson.,, 259 Two months after this occurred, the entire procedure was
repeated, and the police260
"discovered several additional items relating to
illegal drug activity."
The police used the items that they took from the defendants' garbage
to obtain a warrant that authorized the search of Howard and Dawson's
residence. 26' The warrant was executed, and the "police found and seized
evidence of the use and manufacture of methamphetamine and possession
of marijuana." 262 After the trial court denied the defendants' motion to
suppress, both of them were convicted by a jury for multiple drug
crimes.26 3
B. Opinion of the Oregon Court of Appeals
On review, the Oregon Court of Appeals framed the issue as "whether
[the] police invaded [the] defendants' protected possessory or privacy
rights under Article I, section 9, of the Oregon Constitution by searching
their garbage after the sanitation collection service collected it and
voluntarily turned it over to [the] police. 2 64 The court began with the
question of whether the police infringed the defendants' possessory interest
in the garbage.265 Citing Galloway as precedent, the court decided that they
did not.266 According to the Howard court:
Explicit in our reasoning in Galloway is the acknowledgement
that, once garbage is collected by a sanitation or other refuse
company, the analysis changes. At that point, the original
"owner" of the garbage relinquishes his or her possessory

257. Id.
258. Id.
259. Id.
260. Id.
261. Howard, 129 P.3d at 793.
262. Id.
263. Id. at 794.
264. Id.at 793 (emphasis added).
265. Id. at 794.
266. Id. at 795.
NEW ENGLAND LAW REVIEW [Vol. 42:929

interest to the company that contracted to collect it. From a


possessory standpoint, the garbage belongs to the sanitation
company after it is collected. Necessarily, if police then
confiscate or inspect the garbage, they do not infringe on any
possessory interest of the person who contracted with the
sanitation company to take it away267and dispose of it however the
sanitation company might choose.
Because the police did not examine the garbage until after the
collection occurred, the court concluded that Howard and Dawson's
possessory interests were not infringed.268 The court also determined that
Howard and Dawson did not have any protected privacy interests in their
garbage.269
Accordingly, the defendants' convictions were affirmed. 270 The
court's judgment, however, was not arrived at harmoniously. 271 Judge
Schuman, joined by two other judges, vigorously dissented.272 Judge
Schuman criticized the majority for relying on dictum from Galloway to
dispose of the defendants' possessory interests claim.2 73 In addition, he
asserted that the defendants did have protected privacy interests in their
garbage.2 74 Following the lead of Judge Schuman, the next section
discusses why the Oregon Court of Appeals erred by not suppressing the
evidence obtained from Howard and Dawson's garbage.

IV. WHY THE EVIDENCE SHOULD HAVE BEEN SUPPRESSED.


The police would have violated Article I, section 9 of the Oregon
275
Constitution had they unilaterally seized Howard and Dawson's garbage.
But since the police cooperated with the garbage collector, the Howard
court refused to suppress the evidence taken from Howard and Dawson's
garbage can.276 In Howard, the police sought to acquire something owned
by the defendants for the purpose of furthering a criminal investigation
against them.277 The police were constitutionally barred from taking what

267. Howard, 129 P.3d at 794-95 (emphasis added).


268. Id. at 795. The court also noted that "the garbage was collected in the regular course
of the sanitation company's collection routine." Id.
269. Id.
270. Id. at 793.
271. See id. at 798 (Schuman, J., dissenting).
272. See id. at 798-802.
273. Howard, 129 P.3d at 801 (Schuman, J., dissenting).
274. Id. at 799-800.
275. See State v. Galloway, 109 P.3d 383, 387-88 (Or. Ct. App. 2005).
276. See State v. Howard, 129 P.3d 792, 795 (Or. Ct. App. 2006) (majority opinion).
277. Id. at 793.
2008] STATE V HOWARD

they wanted, unless they satisfied the warrant requirement-so they


recruited the services of a private party who had a contractual right to the
future possession of the defendants' garbage.27 8
In sum, the Howard court's approval of the methods employed by the
police to obtain inculpatory information from the contents of the
defendants' garbage can "allows the use of an agent to accomplish what the
police cannot [lawfully] do., 27 9 The police infringed the defendants'
possessory interests in the contents of their garbage can when they acquired
possession of the defendants' garbage with the aid of the garbage
collector.2 80 Accordingly, this use of the garbage collector by the police
violated Article I, section 9 of the Oregon Constitution. The evidence,
therefore, should have been suppressed.

A. Use by the Police of a Private Party as an Instrumentality of the


Investigatory Process Infringed the Defendants' Possessory
Interests.
Much of this Comment focuses on the property rights that are
protected by Article I, Section 9 of the Oregon Constitution. 28 State v.
Galloway established that an individual retains protected possessory
interests in the contents of his or her garbage can when it has been placed
on the curbside and is awaiting collection. 282 Further, Galloway says that
the police cannot take possession of the contents of the can directly from
the can's owner. 283 This is what the police did in Howard through the use
of the garbage collector as an agent.284 The evidence, therefore, should
have been suppressed.2 85

1. The Law of Agency


"Agency," as defined by the Restatement, "is the fiduciary relation
which results from the manifestation of consent by one person to another
that the other shall act on his behalf and subject to his control, and consent

278. Howard, 129 P.3d at 793-95; see also Galloway, 109 P.3d at 389.
279. State v. Purvis, 438 P.2d 1002, 1006 (Or. 1968) (Sloan, J., dissenting).
280. See discussion infra Part IV.A.
281. See supra Part II.B.1.
282. State v. Galloway, 109 P.3d 383, 389 (Or. Ct. App. 2005); see also supra notes 238-
39 and accompanying text.
283. Galloway, 109 P.3d at 389; see supra notes 240-42 and accompanying text.
284. See discussion infra Part IV.A.2. The use of an agent by the police is
constitutionally significant because Article 1, section 9 protects individuals "against
unreasonable searches and seizures by police and their agents." See State v. Enoch, 536
P.2d 460, 461 (Or. Ct. App. 1975) (emphasis added).
285. See State v. Hall, 115 P.3d 908, 919 (Or. 2005).
NEW ENGLAND LAW REVIEW [Vol. 42:929

by the other so to act.''286 An agency relationship can be created without the


parties intending to do so, and without any belief by the parties that they
have created one.287 All that is needed to create a relation of agency is "the
manifestation by the principal that the agent shall act for him, the agent's
acceptance of the undertaking and the understanding of the parties that the
principal is to be in control of the undertaking. 288
Agency relationships can be created by state and private actors
alike. 289 Therefore, an agency relationship can exist between a federal law
enforcement official and a private party during the course of a criminal
investigation. 290 Local police officers and private individuals are equally
capable of forming such relationships under Oregon law. 291 In addition,
Oregon has adopted the Restatement's rules of agency. 292 Thus, Oregon
law enforcement officials can form agency relationships with private
individuals, so long as the requirements of the Restatement are satisfied.293

2. The Police in HowardAcquired Possession of the Garbage


Directly from the Defendants Through the Use of an Agent.
The interactions between the police and the garbage collector in
Howard created an agency relationship within the meaning of the
Restatement (Second) of Agency. 294 It is readily apparent from the Howard
court's recitation of the facts that: (1) there was manifestation by the police
that the garbage collector would act for them; (2) the garbage collector
agreed to obtain the defendants' garbage for the police; and (3) the
acquisition of the defendants' garbage was to be controlled by the police.295
The police contacted the garbage collection company and asked them to

286. RESTATEMENT (SECOND) OF AGENCY 1 (1958). The "principal" is "[t]he one for
whom action is to be taken," and the "agent" is "[t]he one who is to act." Id.
287. Id.cmt. b.
288. Id. These requirements can be satisfied through an informal agreement between the
principal and the agent. See id.
289. See id.; Note, Warrantless Searches and Seizures, 35 GEO. L. J. ANN. REv. CRIM.
PROC. 37, 91 (2006) ("Even if a third party is acting as an informant or ... agent of the
government....").
290. See U.S. v. Pierce, 893 F.2d 669, 673 (5th Cir. 1990) ("[T]he Fourth Amendment
can be violated by a search conducted by a private party acting as an agent or instrument of
the government.").
291. See State v. Enoch, 536 P.2d 460, 461 (Or. Ct. App. 1975).
292. See Checkley v. Boyd, 107 P.3d 651, 665 (Or. Ct. App. 2005).
293. See supra notes 291-92 and accompanying text.
294. See State v. Howard, 129 P.3d 792, 793 (Or. Ct. App. 2006); RESTATEMENT
(SECOND) OF AGENCY 1 cmt. b (1958).
295. See Howard, 129 P.3d at 793.
2008] STATE V HOWARD 959

arrange an opportunity for them to inspect the defendants' garbage.29 6


There was an agreement between the manager of the garbage collection
company and the police that such an arrangement would be made.2 97
Finally, every step that was taken by the garbage collector to obtain the
defendants' garbage for the police was closely monitored by a detective.298
These factors militate in support of the conclusion that the garbage
collector was acting as an agent of the police.29 9
The legal concept of possession is defined by "having or holding
property in one's power; the exercise of dominion over property. 3 When
the garbage collectors removed the defendants' garbage can from the
curbside, they were acting as agents of the police.3 0 Importantly, when an
agent acquires a tangible article of property on behalf of the principal, it is
the principal,not the agent, that is in lawful possession of the property.30 2
Consequently, when the garbage collectors obtained the defendants'
garbage can, they did not acquire possession of the can and its contents-
the police did.3 3 Hence, the police took possession of the can and its
contents directly from the defendants. 4 Under Galloway, this constitutes
an infringement of the defendants' constitutionally protected possessory
interests in the can and its contents. 30 5 The evidence, therefore, should have
been suppressed.30 6

296. Id.
297. Id.
298. See id
299. See RESTATEMENT (SECOND) OF AGENCY 1 cmt. b (1958). An agency relation can
result from something as minor as "ask[ing] a friend to do a slight service ... such as to
return for credit goods recently purchased from a store ...." Id.It naturally follows, a
fortiori,that what occurred between the police and the garbage collector in Howard created
an agency relationship. See id.
300. BLACK'S LAW DICTIONARY 1201 (8th ed. 2004).
301. See supra notes 294-99 and accompanying text.
302. 73 C.J.S. Property 52 (2004) ("Property in the hands of an agent or servant is in
the possession and control of the principal or employer, the agent or servant having only
custody, since the possession of the agent or servant is the possession of the principal or
employer.") (citations omitted); cf Springer v. Durette, 342 P.2d 132, 136 (Or. 1959) ("The
rule is clear that the possession of the agent is the possession of the principal for the purpose
of acquiring title by adverse possession.") (citing Strom v. Hancock Land Co., 140 P. 458,
461-63 (Or. 1914)).
303. See supra note 302 and accompanying text.
304. See State v. Howard, 129 P.3d 792, 793 (Or. Ct. App. 2006); see also supra notes
302-03 and accompanying text.
305. State v. Galloway, 109 P.3d 383, 387 (Or. Ct. App. 2005); see also supranotes 240-
42 and accompanying text.
306. See State v. Hall, 115 P.3d 908, 919 (Or. 2005).
NEW ENGLAND LA W REVIEW [Vol. 42:929

V. CONCLUSION
When Howard and Dawson's garbage can sat on the curbside
awaiting collection, the car. and its contents were protected by Article I,
section 9 of the Oregon Constitution.3 7 As such, the police were prohibited
from seizing the can and searching its contents, unless they were able to
satisfy the requirements of Article I, section 9.308 The police infringed the
defendants' protected possessory interests by using the garbage collectors
to obtain the contents of the garbage can. 30 9 The evidence, therefore,
should have been suppressed.31 0
The Howard decision authorizes the police to obtain privately owned
property without first acquiring a warrant from a removed and impartial
magistrate. The most dangerous aspect of Howard goes well beyond the
state's ability to use in court evidence that was obtained through odious
means from an individual's garbage can. This decision's concomitant
social peril derives from giving the government unrestricted access to the
highly personal information contained in our garbage cans. This access
extends to the garbage cans of the criminal and law-abiding alike. Whether
this is desirable social policy is beyond all serious debate. Enhancing the
state's ability to monitor the innocuous daily activities of its citizens is
extraordinarily dangerous. 3 1'
It must be remembered that "if [the] police have good reason to
believe that the garbage will yield the fruits, evidence, or instrumentalities
of crime, then they can obtain lawful authority to search by... [acquiring]
a warrant from a neutral and detached magistrate. 3 12 But if probable cause,
reasonableness, and warrants are no longer a part of the investigatory
process, the only safeguard against arbitrary governmental intrusions that
we are left with is the personal discretion of the individual agent of the
State.313 Allowing this to happen is nothing short of an abdication of our
right to be free from unwarranted governmental scrutiny, and is wholly

307. See Galloway, 109 P.3d at 389; see also supra notes 238-42 and accompanying text.
308. See Galloway, 109 P.3d at 385, 389; see also supra notes 238-42 and accompanying
text.
309. See discussion supra Part IV.A.
310. See Hall, 115 P.3d at 919.
311. See, e.g., Rita F. Aronov, Privacy in a Public Setting: The Constitutionalityof Street
Surveillance, 22 QuINNIPIAc L. REV. 769, 809 (2004) ("[E]xcessive surveillance abridges
one's liberty by stripping away its key components - autonomy, anonymity, and
independence."). Similar concerns have resonated throughout literature for some time. See,
e.g., GEORGE ORWELL, NINETEEN EIGHTY-FouR 1 (Penguin Group ed., Penguin Books 2003)
(1949) ("BIG BROTHER IS WATCHING YOU....").
312. State v. Howard, 129 P.3d 792, 802 (Or. Ct. App. 2006) (Schuman, J., dissenting).
313. See id.
2008] STATE V. HOWARD

inconsistent with
314
the underpinnings of a constitutional society governed by
the rule of law.
Your garbage often contains very telling things about you.31 5 The
mere prospect of the State being able to freely sift through garbage cans in
order to assemble dossiers on who buys what at which stores, who is at a
genetic predisposition for which diseases, and who is having sexual
intercourse with whom, 3 16 is abhorrent to any reasonable sense of dignity,
and ostensibly detrimental to the collective peace of mind.31 7 Hopefully the
precedential effect of Howard will be abrogated in the future-lest
Oregonians suffer the injurious consequences that inextricably accompany
all increases in unrestrained governmental scrutiny.31 8 The ceaseless
evisceration of our privacy has become too distressing-the evidence
should have been suppressed.

314. See Todd J. Zywicki, The Rule of Law, Freedom, and Prosperity, 10 SuP. CT. ECON.
REV. 1, 4 (2003) ("The first value of the rule of law is the notion of constitutionalism,
comprising procedural and substantive limitations on the exercise of governmental
authority.").
315. For instance, it may offer:
[Y]our social security number, your bank account numbers, your credit
card account numbers, your diet, where you shop, what you buy, what
medications you take (birth control pills? Viagra? Rogaine? Prozac?),
what cosmetics you use, what congenital diseases your DNA might
disclose, what periodicals you read, what the discarded drafts of your
reports or correspondence say, whom you telephone, how much alcohol
you drink ....
State v. Howard, 129 P.3d 792, 800 (Or. Ct. App. 2006) (Schuman, J., dissenting).
316. Recall Galloway, where the defendant's "blood-soaked" tampon was seized from
her garbage can and tested for the presence of seminal fluid. State v. Galloway, 109 P.3d
383, 384 (Or. Ct. App. 2005); see also supra note 1 and accompanying text.
317. See Aronov, supra note 311, at 769-70 ("[T]he government's close observation of
... people engaged in legal activities is nothing if not troubling.").
318. See Aronov, supra note 311.