OR: Police view through bedroom window violated defendant’s right to privacy

Officer’s view into bedroom window violated the Oregon Constitution by invading defendant’s privacy. Homeowners expect visitors to come to the door or the garage, not the bedroom window. State v. Foster, 219 Ore. App. 276, 182 P.3d 262 (2008):

The issue is whether Hardison’s observations occurred from a lawful vantage point. Initially, we note that it was lawful for the deputies to approach the front door to serve the restraining order on an occupant of the residence. In State v. Gabbard, 129 Ore. App. 122, 128, 877 P.2d 1217 (1994), we stated that “[a]n officer’s right to go to the front door of a house is based on implied consent to allow visitors to take reasonable steps to make contact with the occupant.” That consent, however, is limited. In Portrey, we explained that

“[o]ne may expect that visitors will stand on the front porch for purpose of engaging in conversation, but that does not mean that it is expected that visitors will pick up items on the front porch and examine what is not in view. By impliedly consenting to one form of intrusion, an occupant does not necessarily consent to being subjected to other forms of scrutiny as well.”

134 Ore. App. at 465.

As explained above, people have a privacy interest in the immediate area around their residence over which they exercise control. The area immediately outside defendant’s bedroom window is such an area. As a resident of the premises, defendant exercised joint control over that area and was entitled to exclude members of the public from it. Indeed, the area outside defendant’s bedroom window is not on a path to the garage, driveway, front door, or back door, and it is 20 feet away from the front door. Moreover, Hardison had to walk past the front door in order to position himself where he could see in the window.

Our reasoning in Jackson helps to inform the analysis. In Jackson, an informant told deputies that he had seen marijuana plants growing in pots behind the defendant’s residence. 71 Ore. App. at 78. The deputies, after concluding that they lacked probable cause to obtain a warrant, drove to the defendant’s house intending to request his consent to search. Id. After knocking on the defendant’s front door and receiving no answer, a deputy walked around the corner of the house and saw a marijuana plant. Id. at 78-79. We concluded that the officer’s vantage point exceeded the scope of implied consent and was unlawful:

“We do not agree that the deputy saw the marijuana from a legal vantage point. The trial court did not rule that the plant in the side yard was visible from the porch, driveway or road, nor does the state contend that the plant was visible from any point less private than the southwest corner of defendant’s house. Although in State v. Ohling, [70 Ore. App. 249, 688 P.2d 1384 (1984),] the officers had to walk around to the back of the house to see the marijuana plants, the rationale of that decision is that, in so doing, they left the area in which consent to the presence of strangers is implied. There was no implied consent in this case to the deputy’s leaving the front porch and walking to the corner of the house next to the side yard.”

Id. at 79 (emphasis added).