GA: Locked wooden workplace locker showed a reasonable expectation of privacy

Defendant who built a wooden locker to keep personal belongings in a workplace sleeping area who had it locked with the only key had a reasonable expectation of privacy in the locker, and a warrant was required to enter it. Coworker did not have apparent authority to consent. Tidwell v. State, 2009 Ga. LEXIS 88 (March 9, 2009).

Police officer who, at 1 a.m., came to defendant’s house and walked down 30′ driveway next to house to look over fence into backyard violated defendant’s rights in his curtilage. State v. Pierce, 226 Ore. App. 336, 203 P.3d 343 (2009) (6-4):

Again, the record here is devoid of any evidence that either of the officers responding to the noise complaint had a good faith belief–let alone reasonable grounds to believe–that the noise from the residential backyard indicated “an immediate need for their assistance for the protection of life.” Id. Indeed, the testimony of both Vollrath and the other officer confirms that they were investigating the crime of disorderly conduct–and not that they were attempting to render emergency aid. See generally State v. Salisbury, 223 Ore. App. 516, 524-25, 196 P.3d 1017 (2008) (officers heard yelling and screaming within the curtilage of an apartment consistent with a “domestic quarrel,” but that did not indicate that violence was occurring and did not justify entry under “emergency aid doctrine”).

In sum, regardless of the existence of probable cause, Vollrath’s warrantless invasion of the side and rear areas of the residential curtilage was not justified by any exigency. Further–and the state does not contend otherwise–Vollrath’s observations, and defendant’s statements and consent to search following those observations, were the unattenuated product of that predicate warrantless intrusion. See generally State v. Hall, 339 Ore. 7, 115 P.3d 908 (2005).

The dissent contends, however, that the trial court’s ruling should nevertheless be affirmed on an alternative ground, viz., that Vollrath’s warrantless invasion and consequent observations did not constitute a “search” for purposes of Article I, section 9. As noted, the state has expressly abandoned, and conceded, that matter on appeal. See __ Or App at ___ (slip op at 4). Of course, a respondent’s concession of law is not binding on us. But, here, it is revealing–and correct.

Dissent:

Article I, section 9, protects individual interests from unreasonable scrutiny. The Oregon Supreme Court interprets that interest by reference to social and legal norms of behavior. Governmental intrusions on curtilage to approach the front door of residential homes are permissible because social norms provide that private individuals may take reasonable steps to make contact with residents there. Similarly, when a resident manifests an expectation that private individuals may seek contact on portions of the residential curtilage away from the front door, and such contact would not offend social and legal norms of behavior, a private individual may do so without violating the law. Under the facts of this case, where defendant engaged in disorderly conduct–by making unreasonable noise that caused public inconvenience, annoyance or alarm at 1:00 a.m.–it would have been socially acceptable, and legal, for a member of the public to walk down the driveway to ask defendant to quiet down. Because a member of the public could walk down the driveway without engaging in criminal behavior, a police officer so intruding does not violate defendant’s Article I, section 9, rights. Consequently, the trial court did not err by denying defendant’s motion to suppress.