Osburn v. State
Osburn v. State
Opinion of the Court
OPINION
By the Court,
As part of a serial rape investigation, the police attached an electronic monitoring device to the bumper of Frederick Osburn’s vehicle in order to track his movements as he traveled the public streets of Las Vegas. The police did not obtain a warrant prior to attaching the device to the bumper of Osburn’s vehicle, which was parked on the street outside his residence.
Eventually, through visual surveillance, and with the aid of the electronic monitoring device, Osburn was observed committing voyeuristic activities. The police then obtained a search warrant and searched Osburn’s residence and vehicle. As a result of the search, the police found burglary tools and child pornography. Subsequently, Osburn was arrested and charged with three counts of open or gross lewdness, two counts of possession of burglary tools, two counts of use of a minor in producing pornography and
After his indictment, Osburn filed a motion to suppress the evidence obtained from the execution of the search warrant. In his motion, Osburn argued that the attachment of the electronic monitoring device to his vehicle violated his Fourth Amendment right to be free from warrantless searches. Because the police failed to obtain a court order before attaching the device to his vehicle, Osburn requested that the district court suppress all evidence found by the police as a result of the search warrant. The district court denied Osburn’s motion. Osburn then pleaded guilty to six of the counts, reserving his right to appellate review of the order denying his motion to suppress. This appeal ensued.
On appeal, Osburn argues that the attachment of an electronic monitoring device to the exterior of his vehicle constituted an unreasonable search and seizure within the meaning of the Nevada Constitution. Since the information obtained from the use of the electronic monitoring device was included in the application and affidavit for the search warrant, Osburn asserts that the evidence discovered as a result of the execution of the search warrant on September 20, 1997, should be suppressed as fruit of the poisonous tree.
While Osburn acknowledges that federal law may permit the warrantless attachment of an electronic monitoring device to the exterior of a person’s vehicle,
The right of the people to be secure in their persons, houses, papers and effects against unreasonable seizures and searches shall not be violated; and no warrant shall issue but on probable cause, supported by Oath or Affirmation, particularly describing the place or places to be searched, and the person or persons, and thing or things to be seized.
Although the Nevada Constitution and the United States Constitution contain similar search and seizure clauses, the United
Osburn urges us to interpret the Nevada Constitution as providing greater protection than the United States Constitution. As persuasive authority, Osburn cites to the Oregon Supreme Court’s holding in State v. Campbell.
In contrast, the Ninth Circuit Court of Appeals reached a different conclusion when presented with the same issue in United States v. McIver.
We agree with the analysis employed by the Ninth Circuit Court of Appeals in Mclver, and accordingly, we decline to invoke the analysis used by the Oregon Supreme Court. Instead, we shall adhere to our prior decisions that hold that in order for an unreasonable search or seizure to exist, the complaining individual must have a reasonable expectation of privacy, which requires both a subjective and an objective expectation of privacy in the place searched or the item seized.
Based on the above, we conclude that Osburn did not have a reasonable expectation of privacy because he lacked both a subjective and an objective expectation of privacy in the exterior of his vehicle. Therefore, the attachment of the electronic tracking device to the bumper of Osburn’s vehicle did not constitute an unreasonable search or seizure under the Nevada Constitution. Accordingly, we conclude that the district court properly denied Osburn’s motion to suppress, and we affirm the judgment of conviction.
See Costello v. United States, 365 U.S. 265, 280 (1961) (noting that evidence obtained from or as a consequence of lawless official acts is excluded as fruit of the poisonous tree).
See U.S. v. Mclver, 186 F.3d 1119, 1126-27 (9th Cir. 1999) (holding that the warrantless attachment of an electronic tracking device to the undercarriage of a vehicle did not constitute an unreasonable search or seizure).
See Michigan v. Long, 463 U.S. 1032, 1041 (1983).
759 P.2d 1040 (Or. 1988).
Id. at 1126 (quoting New York v. Class, 475 U.S. 106, 114 (1986)); see also Gama v. State, 112 Nev. 833, 838, 920 P.2d 1010, 1013-14 (1996) (stating that a narcotics-trained dog’s sniff of the exterior of a vehicle does not constitute a search).
McIver, 186 F.3d at 1127.
State v. Taylor, 114 Nev. 1071, 1077, 968 P.2d 315, 320 (1998); Young v. State, 109 Nev. 205, 211, 849 P.2d 336, 340 (1993).
Dissenting Opinion
dissenting:
The protection against unreasonable searches and seizures is a
When interpreting a constitutional protection that appears in both the United States and Nevada Constitutions, we will usually defer to and follow the interpretations of the federal courts. The Ninth Circuit Court of Appeals has held that placing an electronic monitor on a vehicle is not a search and seizure under the established law that focuses on a citizen’s expectation of privacy.
If we focus only on a person’s expectation of privacy for his bumper or auto frame and the place where the monitor is placed, I believe we are missing the real impact of the intrusion on a person’s privacy. The automobile’s use is a necessity in most parts of Nevada, and placing a monitor on an individual’s vehicle effectively tracks that person’s every movement just as if the person had it on his or her person. I consider this a substantial invasion of an individual’s privacy and, in effect, a continuing monitoring or effective continuing search of an individual.
In State v. Campbell,
[N]o movement, no location and no conversation in a “public place” would in any measure be secure from the prying of the government. There would in addition be no ready means for individuals to ascertain when they were being scrutinized and when they were not. That is nothing short of a staggering limitation upon personal freedom.7
The court then held:
We hold that the use of the radio transmitter to locate defendant’s automobile was a search under Article I, section 9, of the Oregon Constitution. Because the police did not have a warrant to use the transmitter, and because no exigency obviated the need to obtain a warrant, use of the transmitter violated defendant’s rights under Article I, section 9.8
The fact that few cases have followed this reasoning does not make the Oregon Supreme Court’s analysis invalid. I consider the federal court’s analysis too categorical and myopic. Oregon’s approach recognizes a new form of technology as a hi-tech search that significantly invades a person’s privacy without any judicial safeguard.
To best understand the extent of this intrusion, we should consider what the majority is now permitting law enforcement to do without any oversight whatsoever. The police will be able to place a vehicle monitor on any vehicle, for any reason, and leave it there for as long as they want. There will be no requirement that the monitor be used only when probable cause — or even a reasonable suspicion — is shown, and there will be no time limit on how long the monitor will remain.
I am sure that the vehicle monitor will be used by the police in many cases when there is probable cause to suspect illegal activity and for only as long as is absolutely necessary. But I fear that in some instances, the monitor will be used to continually monitor individuals only because law enforcement considers them “dirty.” In the future, innocent citizens, and perhaps elected officials or even a police officer’s girlfriend or boyfriend, will have their whereabouts continually monitored simply because someone in law enforcement decided to take such action. This gives too much authority to law enforcement and permits the police to use
For these reasons, I respectfully dissent.
See, e.g., Nev. Const. art. 1, § 18.
U.S. v. McIver, 186 F.3d 1119, 1126-27 (9th Cir. 1999).
See Michigan v. Long, 463 U.S. 1032, 1041 (1983).
759 P.2d 1040, 1049 (Or. 1988).
. at 1049.
Reference
- Full Case Name
- FREDERICK ALLEN OSBURN, Appellant, v. THE STATE OF NEVADA, Respondent
- Cited By
- 18 cases
- Status
- Published