OR: Testing for semen in 9 yo girl’s underwear obtained by private search required a SW (under state constitution)

Defendant’s housekeeper’s finding likely semen in his 9 year old daughter’s underwear and turning it over to the authorities was a private search. “[T]esting of the underwear for semen was a ‘search’ under the Fourth Amendment because it significantly expanded the scope of the private search by revealing information that was not known after the private search and after Quick’s inspection of the underwear.” State v. Sines, 287 Ore. App. 850, 2017 Ore. App. LEXIS 1084 (Sept. 20, 2017), on remand from 359 Ore. 41, 379 P.3d 502 (2016) (cited in Treatise § 18.05 n.3):

In sum, we conclude that the housekeeper’s collection of the underwear was not a state action under the Fourth Amendment, and we assume, without deciding, that the officer’s acceptance of the underwear was not an unlawful seizure under Article I, section 9. But, we conclude that the subsequent testing of the underwear violated both the Fourth Amendment and Article I, section 9.

Under the Fourth Amendment, an officer who receives property from a third party cannot search the property in a manner that exceeds the scope of any search that the third party conducted and reported to the officer, unless the officer has the right to make an independent search. Walter, 447 U.S. at 657-58. That is true even if the officer has probable cause to believe that the property contains evidence of a crime, because a search must be based on probable cause and a warrant or an exception to the warrant requirement. Id. at 657 n 10. Here, the testing of the underwear exceeded the scope of the visual observations made by the house-keeper and the officer who received the underwear from her. The testing involved the extraction and microscopic examination of substances on the underwear and revealed information that was not previously known or observed.

In addition, the testing was not the type of testing that would merely confirm the presence of contraband, see Jacobsen, 466 U.S. at 122-23 (authorizing confirmatory testing for cocaine), for two reasons. First, the testing was not for contraband; it was not for an illegal substance. See id. at 123 n 23 (court’s holding regarding confirmatory testing is confined to contraband). Second, even assuming that a confirmatory test can be conducted for noncontraband, the spermatozoa testing here was not merely confirmatory, it was a general investigation that could reveal information beyond the mere presence of spermatozoa. See id. at 122 (holding that testing was confirmatory where it could not reveal anything other than whether the tested substance was what it was it was virtually certain to be). Thus, the testing was a search under the Fourth Amendment.

Similarly, the testing was a search under Article I, section 9. The testing exceeded the scope of the private search, and it provided previously unknown and unobservable information. See Luman, 347 Ore. at 496 (third-party search frustrates a privacy interest in a personal effect “to the extent of the scope of a private search”). And, for the same reasons discussed in connection with the Fourth Amendment, the testing was not a confirmatory test for contraband. See Kruchek, 156 Ore. App. at 622-23 (explaining that the reasoning of Owens applies to inspections that will not reveal any information other than that already detectable).

Because, under both the Fourth Amendment and Article I, section 9, the testing was a search, it had to be justified by probable cause and a warrant or an exception to the warrant requirement. Here, the state did not obtain a warrant “even though one could have easily been obtained,” Walter, 447 U.S. at 657, and it has not identified any applicable exception to the warrant requirement. Therefore, the testing violated both the Fourth Amendment and Article I, section 9, and the trial court erred in denying the motion to suppress the results—both direct and derivative—of the testing.

The Oregon Supreme Court did not go that far on the search issue that a confirmatory test for contraband is different and permissible from a confirmatory test for semen which is not. It likely will go back up there. Also, the original Court of Appeals decision was in June 2014 and the private search was in 2006.