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Date: 02-11-2015

Case Style: State of Oregon v. Gregory James Tegland

Case Number: 269 Or App 1

Judge: Haselton

Court: Oregon Court of Appeals on appeal from the Circuit Court, Multnomah County

Plaintiff's Attorney: Carson L. Whitehead, Assistant Attorney General,
argued the cause for respondent. With him on the brief were
Ellen F. Rosenblum, Attorney General, and Anna M. Joyce,
Solicitor General.

Defendant's Attorney: Meredith Allen, Senior Deputy Public Defender, argued
the cause for appellant. With her on the brief was Peter
Gartlan, Chief Defender, Office of Public Defense Services.

Description: Defendant appeals a judgment of conviction for one
count of possession of methamphetamine, ORS 475.894,
and one count of erecting a structure on a public right of
way, in violation of Portland City Code (PCC) 14A.50.050.
He assigns error to the trial court’s denial of his motion to
suppress evidence found after a police officer lifted a tarp to
defendant’s makeshift shelter that partially blocked a public
sidewalk. We conclude that the officer’s action did not effect
an unlawful search in that defendant had no constitutionally
protected privacy interest associated with the structure.
Accordingly, we affirm.
We review the trial court’s ruling on the motion to
suppress for legal error and are bound by the trial court’s
findings of historical facts “if there is constitutionally sufficient
evidence in the record to support those findings.”
State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). Where the
trial court has made no express findings on disputed issues
of fact, “we will presume that the facts were decided in a
manner consistent with the court’s ultimate conclusion.”
Id.
Defendant was homeless at the time of his arrest.
Using the recessed alcove of an entrance to a private business
building located in southeast Portland, defendant had
built a shelter out of a grocery cart, a wooden pallet, and
multiple tarps. The tarps covered the top of the shelter and
the sides of the shelter and were attached to the building
door, as well as to other parts of the alcove area. The shelter
extended out onto the public sidewalk about two feet—
roughly one-quarter of the width of the sidewalk.
On November 14, 2010, at about 9:00 a.m., Portland
Police Officers Kofoed and Lowry were on patrol together
and saw defendant’s structure blocking part of the public
sidewalk. The officers had seen other makeshift structures
in the same location before, built and inhabited by various
people, and the officers had removed such structures in the
past. They had seen defendant there a week earlier and,
at that time, they told him that he needed to remove his
structure.
4 State v. Tegland
On the morning of defendant’s arrest, the officers
approached the structure to “see if there was anyone there”
and, “because it was blocking the sidewalk, * * * we were
thinking about removing it.” Because the tarps covered
the structure’s sides, the officers could not see anything
that was inside the structure, except for defendant’s feet
and some bedding. Kofoed lifted one of the tarps to peer
inside the structure, and Lowry saw defendant with a glass
methamphetamine pipe and a lighter. The officers arrested
defendant for violating the city’s code against erecting a
structure on a public right of way, PCC 14A.50.0501 and,
in the process of that arrest, the officers found further evidence
that led to defendant’s arrest for possession of methamphetamine.
Defendant was eventually charged with one
count of each offense.
In a pretrial motion, defendant moved to suppress
all evidence of Lowry’s observations after lifting the tarp
to the structure and all evidence derived from those observations.
Defendant argued that Kofoed’s action constituted
an unreasonable search under both Article I, section 9, of
the Oregon Constitution and the Fourth Amendment to
the United States Constitution. The trial court, although
determining that the structure was defendant’s “residence,”
denied the motion to suppress:
“[M]y legal conclusion is that lifting of the tarp flap did not
constitute an unlawful search.
1 PCC 14A.50.050 provides:
“A. It shall be unlawful to erect, install, place, leave, or set up any type
of permanent or temporary fixture or structure of any material(s) in or upon
non-park public property or public right-of-way without a permit or other
authorization from the City.
“B. In addition to other remedies provided by law, such an obstruction
is hereby declared to be a public nuisance. The City Engineer, City Traffic
Engineer, or Chief of Police may summarily abate any such obstruction, or
the obstruction may be abated as prescribed in Chapter 29.60 of this Code.
“C. The provisions of this Section do not apply to merchandise in the
course of lawful receipt or delivery, unless that merchandise remains upon
the public right-of-way for a period longer than 2 hours, whereupon the provisions
of this Section apply.
“D. The provisions of this Section do not apply to depositing material
in public right-of-way for less than 2 hours, unless the material is deposited
with the intent to interfere with free passage or to block or attempt to block
or interfere with any persons(s) using the right-of-way.”
Cite as 269 Or App 1 (2015) 5
“* * * * *
“[PCC 14A.50.050] provides that such structures are
declared a public nuisance and authorizes, among other
people, the Chief of Police to summarily abate any such
obstruction, which leads me to conclude on probably a couple
of alternative grounds that [defendant] had no right to
privacy in an illegal structure on the public right-of-way,
whether he lived there and that would otherwise—or for
other purposes—be considered his residence or not.
“* * * * *
“* * * I don’t think lifting a flap of an unauthorized
structure such as this could be considered an unlawful
search when the police have the authority summarily to
simply remove it.
“Therefore, I conclude that Officer Lowry was in a place
where he had a right to be, including with the tarp flap
lifted by Officer Kofoed when Officer Lowry saw the glass
pipe and the lighter in [defendant’s] hands, in plain view
at this point.”
After waiving his right to a jury trial, defendant was convicted
on both charges. He now appeals, assigning error to
the denial of his motion to suppress.
The disposition of this appeal turns on whether, in
lifting the tarp to the structure, revealing its interior, Kofoed
invaded a constitutionally protected privacy interest, rendering
that action an unlawful warrantless search. In disputing
that matter, the parties reprise their contentions before
the trial court: Defendant argues that the structure was his
residence and, consequently, he necessarily had a protected
privacy interest associated with that structure. The state
counters that, because the structure was erected in violation
of city code provisions2 that authorized police to “summarily
abate” the illegal structure, defendant had no cognizable privacy
interest under either the state or federal constitutions.
Adhering to the requisite “first things first” construct,
State v. Kennedy, 295 Or 260, 262, 666 P2d 1316
(1983), we begin with defendant’s argument under Article I,
2 The trial court determined that defendant had violated not only PCC
14A.50.050, but PCC 14A.50.020 as well, which prohibits camping on public
rights-of-way.
6 State v. Tegland
section 9, which provides, in part, “No law shall violate the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable search, or seizure[.]”
“If the government conduct did not invade a privacy
interest, then no search occurred; Article I, section 9, is not
implicated, and the inquiry is concluded.” State v. Davis, 237
Or App 351, 355, 239 P3d 1002 (2010).
Defendant argues that the officer’s conduct of lifting
up the tarp did invade his privacy interest. He posits
that, because (as the trial court determined) the structure
constituted his residence and he had erected physical barriers
“to establish a zone of privacy,” any invasion of that
space implicated the same privacy interests as those associated
with more “traditional” residential structures, such
as homes or apartments. See, e.g., State v. Tanner, 304 Or
312, 321, 745 P2d 757 (1987) (“Residence in a house is uniformly
deemed to be a sufficient basis for concluding that the
violation of the privacy of the house violated the residents’
privacy interests.”); State v. Louis, 296 Or 57, 60, 672 P2d
708 (1983) (“[L]iving quarters * * * are the quintessential
domain protected by the constitutional guarantee against
warrantless searches.”).
There is undeniable appeal—and merit—to the
proposition that constitutional protections of privacy cannot
vary, categorically, depending on whether living space is
“permanent” or “transient” and “makeshift.”3 Nevertheless,
just as the “permanent” versus “makeshift” character of residential
space cannot be categorically conclusive of the constitutional
inquiry, neither can the “residential” character of
the space.4 That is, although the fact that the referent space
was someone’s residence is highly significant, it is not per se
dispositive. Rather, the touchstone, for purposes of Article I,
section 9, is whether the space is “a place that legitimately
can be deemed private.” State v. Smith, 327 Or 366, 372-73,
963 P2d 642 (1998) (emphasis added).
3 As defendant observes,
“a homeless person living in the street does not have the privilege of maintaining
solid physical barriers within which to conduct private activities. Yet,
social norms allow the homeless person a modicum of dignity.”
4 We do not understand defendant to acknowledge any principled limitation
or qualification of such categorical protection of “residential” space.
Cite as 269 Or App 1 (2015) 7
In State v. Campbell, 306 Or 157, 171, 759 P2d 1040
(1988), the court stated that the underlying principle to
Article I, section 9’s prohibition on unreasonable searches is
“ ‘the people’s’ freedom from [government] scrutiny.” Thus,
we explained in State v. Holiday, 258 Or App 601, 310 P3d
1149 (2013), that the focus of our inquiry under Article I, section
9, is “whether the particular practice that is alleged to
be a search, ‘if engaged in wholly at the discretion of the government,
will significantly impair the people’s freedom from
scrutiny.’ ” Id. at 607 (quoting Campbell, 306 Or at 171) (some
internal quotation marks omitted). We further explained:
“In focusing on [the above question], the court must consider
the particular context in which the government conduct
occurred and also consider the interest for which defendant
asserts constitutional protection and determine whether
that interest is private within the meaning of Article I,
section 9. * * * [The privacy interest under Article I, section
9,] is an interest in freedom from particular forms of
scrutiny. Thus, in cases involving the alleged violation of
a protected privacy interest, the analytical focus is on the
government’s conduct rather than on a defendant’s subjective
expectations.”
Id. (internal quotation marks and citations omitted; emphasis
in original).
Here, our “focus * * * on the government’s conduct”—
and, particularly, its implications for “the people’s freedom
from scrutiny,” id.—is fundamentally informed by three
uncontroverted circumstances. First, defendant’s structure
violated the city code prohibition against temporary
structures on a public right-of-way. Second, the police had
authorization, under the city code, to summarily abate any
such obstruction, meaning that the officers were authorized
under the city code to summarily deconstruct and remove
the encroaching structure.5 And, third, the police had previously
informed defendant that he could not camp in that
5 Defendant contends that the police officers did not approach his structure
for the purpose of removing it, but to see if he was engaged in illegal activities.
The trial court did not render any finding as to that innately factual matter. We
note, however, that there is evidence in the record that the officers approached
defendant’s structure because they were “thinking about removing [the structure].”
See 269 Or App at 4. Thus, there is evidence that at least part of Kofoed’s
motivation in lifting the tarp was to address the code violation.
8 State v. Tegland
spot.6 Given the combination of those circumstances, the
police conduct here did not violate the constitutional protections
against being subjected to impermissible forms of government
scrutiny. Accordingly, the officers’ conduct did not
violate Article I, section 9.
We proceed to defendant’s Fourth Amendment
challenge.7 The Fourth Amendment protects an individual’s
reasonable expectation of privacy—that is, an expectation
“that society is prepared to recognize as reasonable.” State
v. Wacker, 317 Or 419, 427-28, 856 P2d 1029 (1993) (internal
quotation marks and citations omitted).
In analogous circumstances, other jurisdictions
have considered whether a government agent’s entry into a
person’s temporary structure built on public land violates
the Fourth Amendment or similar “reasonable expectation”-
based law. Those jurisdictions have uniformly held that a
person has no “reasonable expectation of privacy” in a temporary
structure illegally built on public land, where the
person knows that the structure is there without permission
and the governmental entity that controls the space has
not in some manner acquiesced to the temporary structure.
See United States v. Ruckman, 806 F2d 1471, 1472-73 (10th
Cir 1986) (the Fourth Amendment was not violated, because
the defendant held no objectively reasonable expectation of
privacy in the cave he had resided in for several months,
where the cave was on public land, and the defendant admitted
that he was trespassing and subject to immediate ejectment);
Amezquita v. Hernandez-Colon, 518 F2d 8, 11 (1st Cir
6 Those circumstances distinguish this case from State v. Wolf, 260 Or App
414, 425, 317 P3d 377 (2013), in which we held that the defendant’s temporary
structure and surrounding outdoor area at his lawfully rented campsite constituted
his “place of residence,” for purposes of determining whether he could
lawfully possess a firearm within his campsite, under ORS 166.250. Cf. State v.
Clemente-Perez, 261 Or App 146, 157-58, 322 P3d 1082, rev allowed, 356 Or 397
(2014) (concluding that the defendant’s truck that was parked under an awning
structure on the defendant’s property adjacent to the house was not part of the
defendant’s “place of residence”).
7 The Fourth Amendment provides:
“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
Cite as 269 Or App 1 (2015) 9
1975), cert den, 424 US 916 (1976) (members of a squatter
community had no Fourth Amendment reasonable expectation
of privacy in their homes on government-owned land,
because they “had no colorable claim to occupy the land * * *
[and] had been asked twice to depart voluntarily”); People v.
Nishi, 207 Cal App 4th 954, 963, 143 Cal Rptr 3d 882, 891
(2012) (the Fourth Amendment was not violated, because
the defendant did not have an objectively reasonable expectation
of privacy within the “curtilage” of his campsite,
where the defendant was illegally camped on public land,
the defendant knew it was illegal, and the defendant had
not been given permission to camp there); People v. Thomas,
38 Cal App 4th 1331, 1335, 45 Cal Rptr 2d 610 (1995) (the
police did not violate the defendant’s Fourth Amendment
rights when they searched the box he was living in on a public
sidewalk: “[A] person who occupies a temporary shelter
on public property without permission and in violation of
an ordinance prohibiting sidewalk blockages is * * * without
a reasonable expectation that his shelter will remain
undisturbed.”).8
Conversely, a “reasonable expectation of privacy”
has been held to exist where the governmental entity that
controlled the space has, by permission or acquiescence,
allowed the structure to be on the public land in question,
even if the structure was not legally permitted. See
U.S. v. Sandoval, 200 F3d 659, 661 (9th Cir 2000) (under
the Fourth Amendment, the defendant had an objectively
reasonable expectation of privacy in his tent on Bureau of
Land Management (BLM) land, where the defendant “was
never instructed to vacate or risk eviction, and the record
does not establish any applicable rules, regulations or practices
concerning recreational or other use of BLM land.
Indeed, whether [the defendant] was legally permitted to
8 But cf. State v. Mooney, 218 Conn 85, 100-01, 588 A2d 145, cert den, 502
US 919 (1991) (finding a reasonable expectation of privacy in a duffel bag and
closed cardboard box that the defendant, a homeless person, kept underneath
a bridge abutment, because the bag and box were “closed containers” found in a
secluded place that the police knew the defendant regarded as his home, the bag
and box were not with the defendant at the time of the search because the officers
had arrested him and taken him into custody, and “the purpose of [the officers’]
search was to obtain evidence of the crimes for which he was in custody”). In this
case, defendant does not argue that his tarp structure was a “closed container” in
which he had a right to privacy.
10 State v. Tegland
be on the land was a matter in dispute.”); State v. Pruss,
145 Idaho 623, 627, 181 P3d 1231, 1235 (2008) (under the
Fourth Amendment and the Idaho Constitution, the defendant
had an objectively reasonable expectation of privacy in
his temporary shelter, despite it being constructed on public
land not designated for camping, because the State of Idaho
had a “longstanding custom” of “[u]tilizing public lands for
outdoor recreational activities,” including on public lands
not designated for camping, and because there was no evidence
that the defendant had been told to leave); People v.
Hughston, 168 Cal App 4th 1062, 1071, 85 Cal Rptr 3d 890
(2008) (the defendant had a Fourth Amendment reasonable
expectation of privacy in a tarp structure “erected on land
specifically set aside for camping during [a] music festival”);
State v. Dias, 62 Haw 52, 55, 609 P2d 637, 640 (1980) (the
defendants had a Fourth Amendment reasonable expectation
of privacy in a shack that was part of a group of shacks
called “Squatter’s Row,” located on land owned by the State
of Hawaii, because “Squatter’s Row” had been “allowed to
exist by sufferance of the State for a considerable period of
time”).9
The gravamen of those decisions is that a person has
no reasonable expectation of privacy interest in a temporary
shelter erected on public space unless the governmental
entity controlling the space has either authorized the structure
or, over a period of time, acquiesced in its existence.
Thus, where erecting a structure in the public space is illegal
and the person has been so informed and told that the
9 Defendant also invokes Lavan v. City of Los Angeles, 693 F3d 1022 (9th Cir
2012), cert den, ___ US ___, 133 S Ct 2855 (2013), as support for his argument
that he had a right of privacy within his temporary structure on the public sidewalk.
In Lavan, the issue was whether city employees could summarily seize and
destroy a person’s unabandoned personal property left temporarily on a public
sidewalk, and the court emphasized that it did not need to answer whether a
person had a reasonable expectation of privacy in his or her personal property;
the issue before it was whether “there was some meaningful interference with [a
person’s] possessory interest in [his or her] property.” Id. at 1027 (internal quotation
marks omitted). In dicta, the court suggested that a person’s expectation of
privacy in his or her unabandoned shelter “may well” be reasonable. Id. at 1028
n 6.
In the light of the body of well-reasoned opinions in which other courts have
engaged in a full consideration of whether a person had a reasonable expectation
of privacy in a temporary shelter constructed on public land, we decline to
embrace Lavan’s ambivalent dicta.
Cite as 269 Or App 1 (2015) 11
structure must be removed, there is no “reasonable expectation
of privacy” associated with the space. Accordingly,
under the totality of the circumstances in this case, the officers’
conduct did not violate the Fourth Amendment.10
The trial court correctly denied defendant’s motion
to suppress.
Affirmed.
10 Defendant contends, for the first time on appeal, that the circumstances
of this case—and, specifically, the officers’ failure to remove the structure when
they first encountered it a week before—bring it within the “acquiescence” qualification
addressed above. See Dias, 62 Haw at 55, 609 P2d at 640. We decline to
address that contention because it is unpreserved. We note, particularly, that
any determination of “acquiescence” is innately factual and circumstantial—for
example, Lowry testified, “Usually, we’ll give them the opportunity to take it
down and move it themselves. If not, then we will generally arrest them [and] cite
them for erecting the structures on the public rights of ways”; Kofoed testified,
“[W]e usually try to be proactive removing those things from the sidewalk”—and
the trial court was not called upon to render findings regarding the city’s actual
practices with respect to the timing of removal of encroaching structures. We
observe, further and parenthetically, that, while the conduct establishing acquiescence
in Dias had continued “for a considerable period of time,” in this case
only a week had elapsed between the officers’ initial and subsequent contact with
defendant.

Outcome: Affirmed.

Plaintiff's Experts:

Defendant's Experts:

Comments:



 
 
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