State v. Lien/Wilverding

If a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the officer’s request, then [Or Const] Article I, section 9, will govern the search. State v. Tucker, 330 Or 85, 90, 997 P2d 182 (2000)

Defendants appealed from the appellate court’s affirmation of Defendants’ convictions for drug-related crimes. Defendants assigned error to the appellate court’s denial of their motion to suppress evidence discovered from a warrantless search of their garbage can. The garbage can was taken from the curb by the sanitation company and transferred to the police at the request of a police officer. On appeal, Defendants argued the search of their garbage can is a violation of their privacy rights against unreasonable search, or seizure under Oregon Constitution, Art I, § 9. In response, the State argued Defendants retained no constitutionally-protected privacy interest in the garbage because it was property abandoned by Defendants and the sanitation company was authorized to take possession of it. “[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer’s request, then Article I, section 9, will govern the search.” State v. Tucker, 330 Or 85, 90, 997 P2d 182 (2000). The Court held the sanitation company’s taking of the garbage can was state action because the company was acting as the agent of an officer requesting the seizure of the garbage can.

Reversed and remanded.