Oregon adopts the objective test of the Restatement of Agency in determining whether a private party is acting as an agent of the police in seizing evidence. Here it was a housekeeper suspecting her employer of sexually abusing a 9 year old foster child in the home, and she purloined a pair of her underwear to give the police for testing. She called DHS before she did it. They didn’t actively encourage her to do it. State v. Sines, 359 Ore. 41, 2016 Ore. LEXIS 252 (April 14, 2016), rev’g 263 Ore. App. 343, 328 P.3d 747 (2014) (cited in Treatise § 18.05 n.5):
The question is whether those facts, and particular the conduct and statements of the state officials, demonstrate that those officials communicated to the housekeeper (and defendant’s other employee) that they were authorized to act as agents of the state. The DHS employee did not direct or request the housekeeper to take the underwear. The idea of taking evidence from the house, and of taking underwear in particular, came from the housekeeper. Although defendant and the Court of Appeals focus on what DHS employees “knew” or “thought” or “understood” the housekeeper might do, the common law agency analysis that we outlined above looks first to objective manifestations by the principal to the agent that the agent should or may act on behalf of the principal. That is consistent with the federal courts’ emphasis on affirmative government conduct vis à vis the private person. See Koenig, 856 F2d at 850 (“It is only by the exercise of some form of control that the actions of one may be attributed to another. Restatement (Second) of Agency § 14 (1958). Mere knowledge of another’s independent action does not produce vicarious responsibility absent some manifestation of consent and the ability to control.”); Smythe, 84 F3d at 1242-43 (to make private conduct state action, government agent must “affirmatively encourage, initiate, or instigate the private action”). There was little, if any, such affirmative encouragement, initiation, or instigation here.
. . .
Defendant next asserts that the DHS employee’s communications with the housekeeper, including discussing testing the underwear and giving her his direct phone number, demonstrate a level of indirect support of the housekeeper’s conduct sufficient to make her an agent of the state. We disagree. The fact that the DHS employee truthfully answered the anonymous caller’s unsolicited question about what they could determine from particular evidence and provided his direct phone number do not rise to the level of state instigation or direction to make the caller’s subsequent search state action.
Finally, defendant makes two other, related arguments for suppressing the results of the search and seizure here. First, he asserts that the DHS employee indirectly encouraged the housekeeper by failing to warn her that taking property from defendant’s house would constitute theft. Second, he contends that the evidence should be suppressed because defendants’ employees stole it from his house.
This court addressed the latter argument in State v. Luman, 347 Ore. 487, 223 P.3d 1041, where, after reiterating that Article I, section 9, does not apply to private searches, the court stated that that “principle applies even if the private parties acted unlawfully in conducting the search and seizure that ultimately led to police possession of the evidence.” The court distinguished the issue of the criminality of the private conduct from the issue of whether the actions of the private parties could be attributed to the state. Even if the private party had stolen the evidence in question and given it to the sheriff’s office, “that fact would not somehow turn that conduct into state action or render the sheriff’s office’s later possession of the videotape unlawful.” Id. at 493.
The former argument—that the DHS employee’s failure to warn the housekeeper that taking the underwear was a crime or otherwise to dissuade her from stealing from defendant was sufficient government support to make the private conduct state action—also is not well taken. The ultimate issue is whether the housekeeper acted on behalf of the state, which we determine by considering whether the state’s conduct would have conveyed to her that she was so authorized. Failing to warn or advise the housekeeper against engaging in a potentially criminal act is not such conduct. As we previously emphasized, “the fact that an officer did not discourage the private party from undertaking the search generally has been found insufficient to bring the search within the scope of the Fourth Amendment.” Bergman and Duncan, 4 Wharton’s Criminal Procedure § 24:20 at 24-78; see also Jarrett, 338 F3d at 347 (“that the government did not actively discourage the private party from engaging in illict hacking does not transform a private party into a Government agent”; government had no special obligation to discourage illegal hacking by private party); United States v. Souza, 223 F3d 1197, 1202 (10th Cir 2000) (“The police are under no duty to discourage private citizens from conducting searches of their own volition.”).
We conclude, based on the facts explicitly and implicitly found by the trial court, that the actions of defendant’s employees in searching for and seizing the underwear constituted private conduct and therefore did not violate Article I, section 9. We acknowledge that this is a close case. Contacts between private individuals and state officers before a private search always require careful examination to determine whether, given all the circumstances, the state officers provided such affirmative encouragement and authorization to the private individuals so as to render them agents of the state. In this case, for the reasons described above, we hold that they did not. Accordingly, we reverse the Court of Appeals decision and remand to that court for consideration of other assignments of error that it did not address.
