State v. Goldberg

“One indication of whether a government action intrudes on a person’s privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995).

Defendant appealed a conviction under ORS 811.700: “failure to perform the duties of a driver when property is damaged.” Defendant’s motion to suppress evidence obtained as a result of an officer walking onto Defendant’s property without a warrant and comparing a piece of bumper to Defendant’s damaged bumper was denied by the lower court. Defendant argued the officer's conduct of comparing a piece of bumper left at a hit and run to Defendant’s vehicle in her driveway was an unconstitutional search. The State argued that the officer’s conduct was consistent with the conduct of a visitor and further, the officer never touched Defendant’s car. “One indication of whether a government action intrudes on a person’s privacy right is whether a private individual would offend social and legal norms of behavior by engaging in the same kind of intrusion.” State v. Portrey, 134 Or App 460, 464, 896 P2d 7 (1995).  The Court held that the fact that the officer never touched the car was not determinative to the inquiry of whether the officer’s conduct constituted normal behavior. The Court reasoned that an average homeowner would be reasonably troubled to witness the officer’s peculiar actions. Thus, the officer needed a warrant to conduct such a search. Reversed and remanded.