# State v. Cartwright > Oregon Supreme Court · September 28, 1966 · 246 Or. 120 URL: https://www.frixlaw.com/law-library/cases/9854858 ## Case - **Full name:** STATE OF OREGON, Respondent, v. MAURICE WHEELER CARTWRIGHT, Jr., Appellant - **Court:** Oregon Supreme Court - **Decided:** September 28, 1966 - **Citations:** 246 Or. 120; 418 P.2d 822; 1966 Ore. LEXIS 643 - **Precedential status:** Published - **Opinion:** Dissent by Sloan - **Judges:** McAllister, Perry, Sloan, Goodwin, Deneoke, Holman, Lusk - **Cited by:** 42 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9854858 ## Opinion text SLOAN, J., dissenting. I cannot join in consenting to this kind of insidious police invasion of my home. If they break down my door and enter and ransack, we denounce it. But I would prefer the latter. I at least know they are there and can take means to oust them. I cannot know if they are crouching in the bushes under my window *148 or listening through the thin wall between my apartment and the next or are tapping my telephone or using electronic eavesdropping devices a block away. By either means no doubt any citizen would condemn himself to some offense, even if it were only a minor violation that could only result in a charge that would cause embarrassment to him or his family. The majority adheres to the untenable rule of Olmstead v. United States, 1928, 277 US 438 , 48 S Ct 564 , 72 L ed 944, 66 ALR 376 , and Silverman v. United States, 1961, 365 US 505 , 81 S Ct 679 , 5 L ed2d 734, that there must be a physical trespass into the home or an intrusion into the walls. I cannot agree. We know now, not just surmise, that a complete search of our life in our house can be accomplished without any form of physical intrusion. See Dash, The Eavesdroppers (1959), and news accounts of recent hearings by a Congressional Committee indicate that the devices and methods described in The Eavesdroppers may be outdated. The use of physical trespass as a means to test the extent of the right to personal security from unreasonable search is obsolete and unworkable. We are not required to follow meaningless decisions of the Supreme Court so long as we do not exceed the outer limits fixed by the Court. More appropriately, we should examine the nature of the right to be protected and the kind of search that violates it. In the discussions centering around this delicate and difficult subject of the right to privacy it is sometimes asked, what is the nature of the right? Is it some vaguely unexpressed natural right, or does it *149 spring from the Fourth and Fifth Amendments'? Although volumes have been written, Mr. Justice Brandéis has defined the right in these few lines: “The protection guaranteed by the Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. And the use, as evidence in a criminal proceeding, of facts ascertained by such intrusion must be deemed a violation of the Fifth.” Olmstead v. United States, supra, 277 US at 478, 479 . In the same opinion, which is really more of a document of historic significance than an opinion, he gave this prophetic warning: “* * * But ‘time works changes, brings into existence new conditions and purposes.’ Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. “Moreover, ‘in the application of a constitution, our contemplation cannot be only of what has been but of what may be.’ The progress of science in furnishing the Government Avith means of *150 espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. ‘That places the liberty of every man in the hands of every petty officer’ was said by James Otis of much lesser intrusions than these.* To Lord Camden, a far slighter intrusion seemed ‘subversive of all the comforts of society.’* Can it be that the Constitution affords no protection against such invasions of individual security?” Olmstead v. United States, supra, 277 US 438, 473, 474 . (*Footnotes omitted). Judge Jerome Frank, also in dissent, has given meaningful expression of need for this protection: “I grant that, as long as the Goldman doctrine endures the domain of Fourth Amendment privacy will be rather restricted, and that it will become more so as new distance-conquering devices for seeing, hearing, and smelling are invented. But I believe that, under the Amendment, the ‘sanctity of a man’s house and the privacies of life’ still remain protected from the uninvited intrusion of physical means by which words within the house are secretly communicated to a person on the outside. A man can still control a small part of his environment, his house; he can retreat thence from outsiders, secure in the knowledge that they cannot get at him without disobeying the Constitution. That is still a sizable hunk of liberty — worth protecting from encroachment. A sane, decent, civilized society must provide some such oasis, some shelter from public scrutiny, some insulated enclosure, some enclave, some inviolate place which is a man’s castle.* Were my colleagues correct, the Fourth Amendment would be inoperative if a gov- *151 eminent agent entered a house covered with a ‘cloak of invisibility’ — a garment which ingenuity may soon yield.” United States v. On Lee, 193 F2d 306, 315, 316 (USCA2d 1951). ('Footnote omitted). Another treatise of historical importance is the dissenting opinion of Mr. Justice Brennan in Lopez v. United States, 1963, 373 US 427 , 83 S Ct 1381 , 10 L ed2d 462. In that opinion Justice Brennan also demonstrates the interaction of the Fourth and Fifth Amendments to “create the comprehensive right of privacy.” 373 US at 456 . It must be recognized that all three of the cited opinions accept the present necessity of saying that eavesdropping of the kind used in the instant case is probably permissible. The reasoning of these opinions, however, does not justify the distinction. I fad to see any difference in the use of a spike driven into the wall, or a sensitive microphone placed either • against the wall or a block away, or the human ear pressed to the outer side of a thin wall. All should be ostracized from permissive invasion. It would be true that if I openly shout in my house, knowing that it can be heard from without that I could not claim the protection. But that does not mean that I must take my family or guests and “whisper in the bathroom.” Jerome Frank’s dissent at 193 F2d 306, 317, supra. It is also urged that to prohibit this kind of search would limit the right of the police to keep surveilance on the outside of the house. This need not be so. It is one thing to observe who comes and goes. It is quite another to surreptitiously peep and eavesdrop to the thoughts and opinions stated inside the house. That is a search for evidence, nothing more. It is this kind *152 of exploratory search that is otherwise prohibited no matter how accomplished. We zealously guard against any other search for evidence only. See State v. Chinn, 1962, 231 Or 259, 266 , 373 P2d 392 . We should exercise greater effort to protect ourselves from the much more dangerous search the majority now approve. For these reasons I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9854858. Public record. Not legal advice.