concluding that an officer conducted a “search” under Article I, section 9, when he conducted a field sobriety test because, in doing so, “[t]he officer created a situation that exposed information about defendant that was otherwise not observable by either the officer or by members of the general public”
How later courts described this case
- concluding that an officer conducted a “search” under Article I, section 9, when he conducted a field sobriety test because, in doing so, “[t]he officer created a situation that exposed information about defendant that was otherwise not observable by either the officer or by members of the general public”
- explaining that FSTs involve “a series of specialized and unusual acts designed to elicit information that [the] defendant would not have exposed to the public without the officer’s direction” and concluding that the administration of FSTs “constitutes a search within the meaning of Article I, section 9”
- holding that field sobriety tests constitute a search under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution, and that the search is reasonable when it is based on probable cause and under exigent circumstances
- stating that “[b]lood-alcohol content is a transitory condition, the evidence of which will dissipate in a relatively short time”
Written by the judges who cited it.
The opinion
UNIS, J.,
concurring.
I agree completely with both the analysis and the result of the court’s opinion. I write separately only to emphasize why the approach taken by the court is correct, as opposed to the approach advocated by Justices Gillette and Graber in their separate opinions.
Justices Gillette and Graber suggest that the court’s holding that the administration of field sobriety tests constitutes a search under Article I, section 9, of the Oregon Constitution is dictum. Justices Gillette and Graber also contend that a better approach would be to decide this case by assuming that the field sobriety tests are a search and deciding that such hypothetical “searches” are reasonable when *38 justified by probable cause and exigent circumstances. The approach suggested by Justices Gillette and Graber is not supported by this court’s precedents, principles of judicial administration, or sound logic.
This court has a well-established methodology for deciding cases under Article I, section 9, of the Oregon Constitution. This court has long taken the approach that the threshold question in any Article I, section 9, case is whether the government activity at issue is a search or a seizure. See, e.g., State v. Wacker, 317 Or 419, 426 , 856 P2d 1029 (1993); State v. Ainsworth, 310 Or 613, 616 , 801 P2d 749 (1990). In State v. Wacker, supra, 317 Or at 426 , this court stated:
“The threshold question in any Article I, section 9, search analysis is whether the police conduct at issue is sufficiently intrusive to be classified as a search. No search occurs unless the police invade a protected privacy interest. If the police conduct is not a search within the meaning of Article I, section 9, this court will not reach the issue of whether the conduct was unreasonable.” (Emphasis added.)
Whether the police conduct at issue is a search is a necessary preliminary inquiry to determining whether the conduct is reasonable. Thus, the court’s holding that the administration of field sobriety tests constitutes a search under Article I, section 9, is not dictum.
The approach taken by the court in this case also recognizes the proper position of the courts in reviewing the actions of the police, which are part of the executive branch of government. The courts are part of the judicial branch. As such, the courts have no general authority to review the reasonableness of executive action. Under the Oregon Constitution, the courts are empowered to scrutinize the “reasonableness” of a particular class of executive conduct, namely searches and seizures, to determine whether such conduct complies with Article I, section 9, of the Oregon Constitution. In other words, unless the court determines that the police activity is a search or a seizure, and therefore subject to Article I, section 9, this court has no authority to evaluate whether the action is *39 “reasonable.” 1 The court’s opinion in this case properly does not presume to review the reasonableness of the actions of a coordinate branch of government without first establishing a solid constitutional basis for such scrutiny.
Finally, the approach suggested by Justices Gillette and Graber is flawed logically. The existence of probable cause and exigent circumstances creates an exception to the general rule that a warrant is required for a search to be reasonable. See State v. Paulson, 313 Or 346, 351 , 833 P2d 1278 (1992) (“[n]ormally, in order for a search to be constitutionally permissible, the police must have a search warrant”). It would make no sense to determine whether the exception applies without first determining that the rule applies. The court therefore takes the proper approach by first determining whether the administration of field sobriety tests is a search, then looking to see if the police had a warrant to justify the search, and then considering if any exception to the warrant requirement applies.
I do not mean to suggest that police conduct that is not a “search” or a “seizure” is immune from judicial scrutiny entirely. Rather, there is no judicial scrutiny under Article I, section 9. Any police conduct must comply with all other applicable administrative, statutory, and constitutional requirements.