OR: Blue discoloration on an ammonia tank announced its contents | Warrant not needed to replicate private search

Blue discoloration on an ammonia tank announced its contents, and a warrant was not needed to test it. State v. Heckathorne, 347 Ore. 474, 223 P.3d 1034 (2009), revg State v. Heckathorne, 218 Ore. App. 283, 179 P.3d 693 (2008):

The same must be said with respect to that court’s ruling on the merits. The Court of Appeals concentrated its attention on the meaning of the blue discoloration on the fittings of the cylinder: Did that discoloration, or did it not, fairly give rise to the inference that the cylinder contained anhydrous ammonia? In our view, that issue can be argued either way, and it has been. We express no opinion on it, however, because the record in this case contained other, decisive evidence.

As noted above, the police opened and vented some of the contents of the cylinder. Defendants do not in this court challenge either the police possession of the cylinder or Studebaker’s venting of the cylinder — they challenge only the later testing of the cylinder to confirm the contents. However, according to Bettencourt, Studebaker reported a strong odor of ammonia when he vented the container. In other words, when the cylinder was vented, the contents of the cylinder, that is, the ammonia, became discernable to Studebaker. And, because the ammonia was exposed and discernable (through the sense of smell), defendants no longer had a privacy interest in the contents of the cylinder. Thus, as in Owens, the use of the Drager device to perform a confirmatory test on the contents of the cylinder did not infringe any privacy interest protected by the Oregon Constitution. Therefore, the trial court did not err in denying defendants’ motion to suppress evidence of the contents of the cylinder. The Court of Appeals erred in ruling to the contrary.

For the same reasons, once the ammonia was plainly discernable, Studebaker’s testing of the contents of the cylinder did not violate defendants’ Fourth Amendment rights. See United States v. Jacobsen, 466 US 109, 123-25, 104 S Ct 1652, 80 L Ed 2d 85 (1984) (field test of substance for the presence of cocaine was not unlawful search or seizure because test could reveal only whether substance was cocaine and thus could not compromise any legitimate privacy interest).

A search warrant was not needed to recreate a private search of videotapes that were viewed by them and turned over to the police. State v. Luman, 347 Ore. 487 (2009), revg State v. Luman, 220 Ore. App. 617 (2008):

In this case, defendant’s employees seized the videotape, viewed it, handed it over to the deputy, and told him exactly what was on it. (And, as noted, none of that private conduct violated defendant’s Article I, section 9, rights.) At that point, defendant no longer retained a protected possessory or privacy interest in the piece of evidence; those interests were destroyed by the private conduct. That is, defendant no longer had a right to privacy in the videotape. Because the deputy’s act in viewing the videotape invaded neither a possessory interest nor a right to privacy in the images on the videotape that was protected by Article I, section 9, of the Oregon Constitution, that act was not a search and no warrant was required.