# State v. Purvis > Oregon Supreme Court · March 27, 1968 · 249 Or. 404 URL: https://www.frixlaw.com/law-library/cases/9562214 ## Case - **Full name:** STATE OF OREGON, Respondent, v. THOMAS WARREN PURVIS, Appellant - **Court:** Oregon Supreme Court - **Decided:** March 27, 1968 - **Citations:** 249 Or. 404; 438 P.2d 1002; 1968 Ore. LEXIS 654 - **Precedential status:** Published - **Opinion:** Dissent by Sloan - **Judges:** Perry, McAllister, Sloan, O'Connell, Goodwin, Denecke, Holman - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by State v. Lien, 364 Or. 750 (2019). - Negative treatments: 2 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9562214 ## How later opinions describe it (automated extraction) - explaining that, although entering the room would not violate any privacy interest that the defendant retained in the trash, it would violate his right to privacy in the room - holding that, under Article I, section 9, a person has no constitutionally protected privacy interest in abandoned property - holding that under Article I, section 9, a person has no constitutionally protected privacy interest in abandoned property - explaining that the workers were authorized to clean the room and to remove trash, including the cigarette - explaining that the cigarette "would be removed in the usual course of cleaning the room" ## Opinion text SLOAN, J., dissenting. The majority adopt the “silver platter” doctrine to searches conducted by hotel maids. The same rule would necessarily apply to any other person who can, at the insistence of government agents, permissively *412 enter an office or a home or any other place. It is rather shocldng to realize that any unfaithful or naive employe or trusted neighbor can ransack a business office or home and bring to the waiting police whatever the searcher may choose to believe is debris. The majority imposes no other test. That, in itself, is bad enough, but the majority permit the police to instruct and direct the employe as to what he should look for. Even in the heyday of the silver platter rule, the Supreme Court would not tolerate the participation of federal agents in a search like that permitted by the majority today. The rule, as enunciated in Byars v. United States, 1927, 273 US 28, at 33 , 47 S Ct 248 , 71 L ed 520, was that the federal government could “* * * avail itself of evidence improperly seized by state officers operating entirely upon their own account. But the rule is otherwise when the federal government itself, through its agents acting as such, participates in the wrongful search and seizure.” And see, Lustig v. United States, 1946, 338 US 74 , 69 S Ct 1372 , 93 L ed 1819, where the federal officers waited until the state officers had entered a hotel room, with a key provided by the manager of the hotel, and searched the room and delivered the evidence to the federal officer. The court suppressed the evidence. Another equally serious shortcoming is that this procedure “* * * bypasses the safeguards provided by an objective predetermination of probable cause, and substitutes instead the far less reliable procedure of an after-the-event justification * * Beck v. Ohio, 1964, 379 US 89, 96 , 85 S Ct 223 , 13 L ed2d 142. Although the record is silent on the matter, it is altogether possible that the hotel manager’s reason for *413 suspecting the presence of narcotics in the room would have justified a search warrant. But it is claimed that what happened here was not a search because the maids were merely instructed to deliver to the officer the ordinary and usual debris. The evidence and the trial court’s findings do not support such a conclusion. The trial court found that the maids were specifically directed to look for homemade cigarettes or cigarette butts. They were directed to look and search, not just perform the mechanical task of emptying wastebaskets. Furthermore, when the usual trash was brought to the officer, it did not contain the evidence he was exploring for. It required further searching by the maids to find the cigarette butt that contained marijuana. This cannot be glossed over as merely examining the contents of wastebaskets or ash trays — it was a search. The majority does admit that the cigarette butt was not abandoned. More significantly, neither was the room abandoned. In Abel v. United States, 1960, 362 US 217, at 241 , 80 S Ct 683 , 4 L ed2d 668, the court only approved the search for trash in a hotel room as abandoned property “for the reason that at the time of the search petitioner had vacated the room.” But more importantly, and why it is substantially identical to the silver platter doctrine, it allows the use of an agent to accomplish what the police cannot do. In Katz v. United States, 1967, 389 US 347 , 88 S Ct 507 , 19 L ed2d 576, the court struck down two untenable doctrines it had previously followed. One, was that a trespass into a prohibited area was necessary before a search was unlawful and secondly, that the police could not use an electronic aid to gain access to evidence that was otherwise inaccessible. The court *414 also was emphatic that the right to unlawful intrusion followed the person- — it was not defined or limited by an enclosure or by the extent or kind of an enclosure. The court summarized many of its prior decisions in this language: “In the absence of such safeguards, [search warrant] this Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end.” 389 US at 356 , 88 S Ct 514 , 19 L ed2d 585. It would be a mistake to assume that Katz is limited to the use of a mechanical agency, not a human one. Katz prevents any invasion, no matter how limited, without constitutional safeguards. As long ago as Gouled v. United States, 1921, 255 US 298 , 41 S Ct 261 , 65 L ed 647, the court prohibited this kind of intrusion. The court’s language in Gouled is worthy of quotation: “The prohibition of the Fourth Amendment is against all unreasonable searches and seizures and if for a Government officer to obtain entrance to a man’s house or office by force or by an illegal threat or show of force, amounting to coercion, and then to search for and seize his private papers, would be an unreasonable, and therefore a prohibited search and seizure, as it certainly would be, it is impossible to successfully contend that a like search and seizure would be a reasonable one if only admission were obtained by stealth instead of by force or coercion. The security and privacy of the home or office and of the papers of the owner would be as much invaded and the search and seizure would be as much against his will in the one case as in the other, and it must therefore be regarded as equally in violation of his constitutional rights. *415 “Without discussing them, we cannot doubt that such decisions as there are in conflict with this conclusion are unsound, and that, whether entrance to the home or office of a person suspected of crime be obtained by a representative of any branch or subdivision of the Government of the United States by stealth, or through social acquaintance, or in the guise of a business call, and whether the owner be present or not when he enters, any search and seizure subsequently and secretly made in his absence falls within the scope of the prohibition of the Fourth Amendment, * * (Emphasis supplied). 255 US at 305, 306 , 41 S Ct 263 , 264, 65 L ed 651. Gouled was tacitly overruled in Warden v. Hayden, 1967, 387 US 294 , 87 S Ct 1642 , 18 L ed2d 782, but only to the extent that Gouled had held that a search warrant did not permit the seizing of mere evidence, a part of the Gouled opinion unrelated to the foregoing quotation. The majority are unable to cite a single authority that permits the conduct allowed by the majority in the instant case and denounced in the above quote. The cases that are someivhat similar to the instant situation have reached the result required by Gouled . Stoner v. California, 1964, 376 US 483 , 84 S Ct 889 , 11 L ed2d 856, is important because it refutes and denies the argued right of a hotel employe to permit entry into an occupied hotel room in the absence of the occupant of the room. It does not answer this condemnation to say in the instant case that the employes entered in the usual course of hotel cleaning. This is sophistry. The employes entered at the direction of the police, consented to by the manager and contrary to the express order of defendant. In Chapman v. United States, 1961, 365 US 610 , *416 81 S Ct 776 , 5 L ed2d 828, the court suppressed distilling equipment found by officers when they were led, by the landlord, into a house occupied by a tenant for the ostensible purpose of checking alleged waste to the premises. The court there recognized the subterfuge for what it was. McDonald v. United States, 1948, 335 US 451 , 69 S Ct 191 , 93 L ed 153, involved entry into a room in a rooming house after the officers were aware that a crime was being committed in the room. In McDonald , as here, the prosecution argued that the police had no probable cause to obtain a warrant. The court responded by saying there was no evidence of an emergency or other exceptional circumstances that “* * * excuse the absence of a search warrant without a showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.” 335 US at 456 . In Johnson v. United States, 1948, 333 US 10 , 68 S Ct 367 , 92 L ed 436, the court denounced entry into a hotel room from which the smell of opium was coming. The substance that comes through the grist mill of these and many other cases beginning in specific language, with Agnello v. United States, 1925, 269 US 20, 33 , 46 S Ct 4, 6 , 70 L ed 145, 149, 51 ALE 409, 414, after observing that no state or national statute or court had permitted entry into a house without a warrant except in extreme cases, the court said “Absence of any judicial approval is persuasive authority that it is unlawful. * * * Belief, however well founded, that an article is concealed in a dwelling house, furnishes no justification for a search of that place without a warrant. And such searches are held unlawful notwithstanding facts unquestionably showing probable cause.” There have been some exceptional do *417 partures from this rule, as in the questionable decision of Ker v. California, 1963, 374 US 23 , 83 S Ct 1623 , 10 L ed2d 726, but the more recent cases repeatedly cite the language just quoted and add to it that no matter how discriminating the officer may be in his intrusion into protected rights, it is bad; and that «=» * * the reach of that amendment cannot turn upon the presence or absence of a physical intrusion into a given enclosure.” Katz v. United States, supra, 19 L ed2d 583. This protection fails when, and only when, the person voluntarily exposes the evidentiary material or it is seized after lawful arrest. If there is doubt of that statement it can be further verified by examining the opinion in Rios v. United States, 1960, 364 US 253 , 80 S Ct 1431 , 4 L ed2d 1688, where the court set aside a conviction for concealment of narcotics based on the search of a taxicab occupied by defendant Rios. The case was remanded for a determination as to whether or not the defendant had voluntarily exposed the narcotics before the police arrested him. In the absence of such a showing, the search was invalid. This also is the clear impact of Lewis v. United States, 1966, 385 US 206 , 87 S Ct 424 ,17 L ed2d 312. In State v. Cartwright, 1966, 246 Or 120 , 418 P2d 822 , cert den 386 US 937 , February 20, 1967, the majority mistakenly held that so long as there was no physical intrusion into protected rights that exploratory search was permissible. Here, the majority say the same thing only here the intrusion is by human aid. The distinction cannot be sanctioned for long and sooner or later the intrusion permitted by the majority must be overruled. The obvious connotations of this decision are too vicious to last. The evidence should be suppressed. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9562214. Public record. Not legal advice.