A homeless person’s temporary structure, a tarp over a crate and a shopping cart, was encroaching on the sideway, the right-of-way. Therefore, he had no reasonable expectation of privacy in it under the state constitution or the Fourth Amendment, and it could be removed. Entry into the enclosure was not unreasonable. State v. Tegland, 269 Or. App. 1 (February 11, 2015):
Defendant argues that the officer’s conduct of lifting up the tarp did invade his privacy interest. He posits that, because (as the trial court determined) the structure constituted his residence and he had erected physical barriers “to establish a zone of privacy,” any invasion of that space implicated the same privacy interests as those associated with more “traditional” residential structures, such as homes or apartments. See, e.g., State v. Tanner, 304 Or 312, 321, 745 P2d 757 (1987) (“Residence in a house is uniformly deemed to be a sufficient basis for concluding that the violation of the privacy of the house violated the residents’ privacy interests.”); State v. Louis, 296 Or 57, 60, 672 P2d 708 (1983) (“[L]iving quarters * * * are the quintessential domain protected by the constitutional guarantee against warrantless searches.”).
There is undeniable appeal-and merit-to the proposition that constitutional protections of privacy cannot vary, categorically, depending on whether living space is “permanent” or “transient” and “makeshift.” Nevertheless, just as the “permanent” versus “makeshift” character of residential space cannot be categorically conclusive of the constitutional inquiry, neither can the “residential” character of the space. That is, although the fact that the referent space was someone’s residence is highly significant, it is not per se dispositive. Rather, the touchstone, for purposes of Article I, section 9, is whether the space is “a place that legitimately can be deemed private.” State v. Smith, 327 Or 366, 372-73, 963 P2d 642 (1998) (emphasis added).
As defendant observes, “a homeless person living in the street does not have the privilege of maintaining solid physical barriers within which to conduct private activities. Yet, social norms allow the homeless person a modicum of dignity.” We do not understand defendant to acknowledge any principled limitation or qualification of such categorical protection of “residential” space.
In State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988), the court stated that the underlying principle to Article I, section 9’s prohibition on unreasonable searches is “‘the people’s’ freedom from [government] scrutiny.” Thus, we explained in State v. Holiday, 258 Or App 601, 310 P3d 1149 (2013), that the focus of our inquiry under Article I, section 9, is “whether the particular practice that is alleged to be a search, ‘if engaged in wholly at the discretion of the government, will significantly impair the people’s freedom from scrutiny.'” Id. at 607 (quoting Campbell, 306 Or at 171) (some internal quotation marks omitted). We further explained:
“In focusing on [the above question], the court must consider the particular context in which the government conduct occurred and also consider the interest for which defendant asserts constitutional protection and determine whether that interest is private within the meaning of Article I, section 9. * * * [The privacy interest under Article I, section 9,] is an interest in freedom from particular forms of scrutiny. Thus, in cases involving the alleged violation of a protected privacy interest, the analytical focus is on the government’s conduct rather than on a defendant’s subjective expectations.”
Id. (internal quotation marks and citations omitted; emphasis in original).
Here, our “focus * * * on the government’s conduct”-and, particularly, its implications for “the people’s freedom from scrutiny,” id.-is fundamentally informed by three uncontroverted circumstances. First, defendant’s structure violated the city code prohibition against temporary structures on a public right-of-way. Second, the police had authorization, under the city code, to summarily abate any such obstruction, meaning that the officers were authorized under the city code to summarily deconstruct and remove the encroaching structure. And, third, the police had previously informed defendant that he could not camp in that spot. Given the combination of those circumstances, the police conduct here did not violate the constitutional protections against being subjected to impermissible forms of government scrutiny. Accordingly, the officers’ conduct did not violate Article I, section 9.
We proceed to defendant’s Fourth Amendment challenge. The Fourth Amendment protects an individual’s reasonable expectation of privacy-that is, an expectation “that society is prepared to recognize as reasonable.” State v. Wacker, 317 Or 419, 427-28, 856 P2d 1029 (1993) (internal quotation marks and citations omitted).
In analogous circumstances, other jurisdictions have considered whether a government agent’s entry into a person’s temporary structure built on public land violates the Fourth Amendment or similar “reasonable expectation”-based law. Those jurisdictions have uniformly held that a person has no “reasonable expectation of privacy” in a temporary structure illegally built on public land, where the person knows that the structure is there without permission and the governmental entity that controls the space has not in some manner acquiesced to the temporary structure. See United States v. Ruckman, 806 F2d 1471, 1472-73 (10th Cir 1986) (the Fourth Amendment was not violated, because the defendant held no objectively reasonable expectation of privacy in the cave he had resided in for several months, where the cave was on public land, and the defendant admitted that he was trespassing and subject to immediate ejectment); …
