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State v. Corra
Citations: 745 P.2d 786; 88 Or. App. 339; 1987 Ore. App. LEXIS 5141Docket: 86-CR-0260-JC CA A42471
Court: Court of Appeals of Oregon; November 18, 1987; Oregon; State Appellate Court
The Court of Appeals of Oregon ruled in State of Oregon v. Brian Duane Corra that the trial court's order to suppress evidence related to the manufacture of a controlled substance was reversed. Officer Sawyer entered a neighbor's yard with permission to investigate an anonymous tip about marijuana growth at Corra's duplex. To see over a six-foot fence, Sawyer stood on a one-foot rock and observed marijuana plants in Corra's yard, later obtaining a search warrant based on these observations. Corra contended that Sawyer's actions constituted a warrantless search violating his privacy rights under both the Oregon Constitution and the Fourth Amendment, arguing that the warrant was invalid as it relied on those illegal observations. The court analyzed whether Sawyer's actions constituted a search under Article I, section 9 of the Oregon Constitution, noting that Corra's backyard was part of the curtilage of his home, thus affording him privacy protections. However, the court concluded that Sawyer did not intrude upon Corra's property, as he did not enter the backyard itself. The critical issue was whether Sawyer's standing on the rock violated Corra's reasonable expectation of privacy. The court held that while Corra had a privacy interest in his backyard, he could not prevent others from observing what was visible to the senses without special effort. The court acknowledged that standing on the rock could be viewed as a special effort, yet concluded that Sawyer's quick observations were not significantly longer than what a neighbor might have done, and thus did not exceed constitutional limits. The ruling emphasized the balance between privacy rights and the ability of law enforcement to observe activities in areas that are visible without extraordinary measures. Sawyer's position on a rock to observe what others could see from a lower vantage point does not establish any constitutional significance regarding privacy. The defendant lacks a privacy interest that specifically protects against individuals of shorter stature. Under the Fourth Amendment, while the defendant did express a subjective expectation of privacy in his backyard, this expectation may not be deemed reasonable. The court referenced U.S. v. Cuevas-Sanchez, where surveillance from a height constituted a search despite the visibility of some areas to passersby, noting the significant intrusion involved. Conversely, in United States v. McMillon, where an officer required assistance to see over a fence, the court found no search occurred. Legal commentary suggests that there is a threshold of reasonable expectation of privacy based on property enclosure height. In this case, the court determined that societal norms do not support a reasonable expectation of privacy against brief observations over a six-foot fence, as the defendant should anticipate occasional glances from neighbors. The ruling was reversed and remanded, leaving the question of whether marijuana visibility through fence gaps influences the privacy analysis undecided.