No. 21 April 14, 2016 41

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

JOHN ALBERT SINES,

Respondent on Review.

(CC 06FE1054AB; CA A146025; SC S062493)

On review from the Court of Appeals.*

Argued and submitted March 15, 2015, at Willamette 

University College of Law, Salem, Oregon.

Michael A. Casper, Deputy Solicitor General, Salem, 

argued the cause and filed the brief for petitioner. With him 

on the brief were Ellen F. Rosenblum, Attorney General, and 

Anna M. Joyce, Solicitor General.

Lawrence Matasar, Portland, argued the cause and filed 

the brief for respondent. With him on the brief was Lisa A. 

Maxfield, Pacific Northwest Law LLP, Portland.

Before Balmer, Chief Justice, and Kistler, Walters, 

Linder, Landau, Baldwin, Justices, and Sercombe, Judge of 

the Court of Appeals, Justice pro tempore.**

BALMER, C. J.

The decision of the Court of Appeals is reversed and 

the case is remanded to the Court of Appeals for further 

proceedings.

______________

** Appeal from Deschutes County Circuit Court, Alta Brady, Judge. 263 Or 

App 343, 328 P3d 747 (2014).

** Brewer, J., did not participate in the consideration or decision of this case.
42 State v. Sines

Case Summary: In 2006, defendant’s housekeeper anonymously called the 

Department of Human Services (DHS) in Bend, Oregon to report that she suspected defendant of sexually abusing his nine-year-old adopted daughter. The 

housekeeper had become suspicious after finding, among other things, multiple 

examples of an unusual discharge in the crotch of the child’s underwear. The DHS 

worker who took her call explained that the substance in question could be tested, 

and stated that he could connect the housekeeper with a law enforcement agency 

able to conduct such tests and thereby confirm or refute her concerns. When the 

housekeeper indicated that she had considered taking some of the underwear 

for authorities to examine, the DHS worker advised her several times that he 

could not tell her to engage in that kind of action. Following that conversation, 

DHS and law enforcement officials decided to delay the safety check investigation 

that usually took place within 24 hours of an abuse report, expecting that the 

housekeeper might subsequently provide an underwear sample for testing. The 

housekeeper obtained a pair of the child’s underwear and turned it over to law 

enforcement authorities. Based on the tests that followed and other statements 

made by the housekeeper, police obtained a search warrant and collected additional evidence from defendant’s house, after which defendant was arrested and 

charged with multiple sex crimes. Defendant’s motion to suppress the evidence 

obtained through the search and seizure of the underwear was denied, and he 

was subsequently convicted on four counts of first degree sexual abuse.

The Court of Appeals reversed and remanded that judgment of conviction, 

concluding that the housekeeper’s seizure of the underwear and its delivery to 

state officials had constituted state action that was unlawful without a warrant. 

According to the Court of Appeals, that was so for three reasons. First, the Court 

of Appeals reasoned, the DHS worker had known what the housekeeper planned 

to do and that she was likely to do it. Second, the DHS worker had communicated 

with the housekeeper about her plans and had offered law enforcement support if 

she conducted the seizure. And finally, the DHS employee had delayed the safety 

check to allow the housekeeper to accomplish the planned seizure. Given those 

particular circumstances, the Court of Appeals opined, the trial court had erred 

in denying defendant’s motion to suppress. Held: The decision of the Court of 

Appeals is reversed and the case is remanded to that court for further proceedings. Drawing on common law agency principles, the Court concludes that the 

proper method for determining whether the housekeeper’s conduct constituted 

state action is first to examine whether there was evidence that the state officials 

had manifested to the housekeeper, through statements or conduct, their intent 

that she (as an agent) could or should act on behalf of the state (as the principal). 

Because the state actors in this case had not taken affirmative steps to direct or 

participate in the housekeeper’s taking of the underwear and had not made statements or engaged in other conduct that would indicate any intent that she act on 

behalf of the state, the Court holds that the housekeeper’s search was the act of a 

private citizen and therefore did not violate the Oregon Constitution.

The decision of the Court of Appeals is reversed and the case is remanded to 

the Court of Appeals for further proceedings.
Cite as 359 Or 41 (2016) 43

BALMER, C. J.

This case requires us to consider whether a private 

citizen’s seizure of criminal evidence was subject to suppression at trial as the fruit of an unlawful government search. 

Defendant came to the attention of law enforcement after 

his housekeeper anonymously called the child protective services division of the Department of Human Services (DHS) 

and said that she suspected that defendant might be sexually 

abusing his adopted daughter. The housekeeper’s suspicions 

had been raised after finding an unusual “discharge” on several pairs of the child’s underwear, and she told DHS that 

she had considered taking a pair for authorities to examine. 

In response to a question from the housekeeper, the DHS 

employee who handled the call said that he would be able to 

connect the housekeeper with someone in law enforcement 

who could analyze the underwear and confirm or refute her 

concerns. The DHS employee told the housekeeper several 

times that he could not tell her to take the victim’s underwear. The next day the housekeeper obtained a pair of the 

victim’s underwear, and the following day she turned it over 

to the police. Based on that evidence and other statements 

by the housekeeper, police obtained a warrant and searched 

defendant’s house, after which defendant was arrested and 

charged with a number of sex crimes. Defendant’s motion 

to suppress the evidence obtained through the search and 

seizure of the underwear was denied, and he was convicted 

on four counts of first degree sexual abuse.

The Court of Appeals reversed, holding that the trial 

court had erred in denying defendant’s motion to suppress. 

The court concluded that, although the underwear had been 

procured by a private person, there was nevertheless sufficient 

contact between state officials and the private person that the 

warrantless search and seizure constituted state action, in 

violation of Article I, section 9, of the Oregon Constitution. 

State v. Sines, 263 Or App 343, 328 P3d 747 (2014). For the 

reasons set out below, we reverse the Court of Appeals decision and remand to that court for consideration of other issues 

raised but not addressed in defendant’s appeal.1

1 The Court of Appeals considered the validity of the search and seizure 

here only under Article I, section 9, and did not discuss or resolve any claim 
44 State v. Sines

FACTS

We take the relevant facts from the record and the 

Court of Appeals opinion, setting them out consistently with 

the trial court’s explicit and implicit findings. State v. Ehly, 

317 Or 66, 75, 854 P2d 421 (1993). We review the trial court’s 

denial of defendant’s motion to suppress for errors of law.

Early in 2005, defendant and his wife adopted two 

siblings—T, a young girl, and V, her brother. Approximately 

one year later, defendant’s wife and biological son moved 

out of the family residence. Defendant’s housekeeper subsequently began to discover indications of what she thought 

might be sexual activity between defendant and the thennine-year-old T.

The housekeeper had observed, among other things, 

that T was sleeping with defendant in his bedroom and, in 

the bed, the housekeeper had found a “type of Vaseline stuff” 

“[u]p to half way up [defendant’s] sheets,” as well as signs of 

the substance’s use in the bathroom. Based on her observation of Vaseline-like handprints on the bathroom walls, the 

housekeeper believed that defendant “had been having sex 

with somebody in the bathroom area,” despite the fact that 

defendant’s wife had moved out and defendant had no girlfriend. When the housekeeper, concerned about the possible 

abuse of T, suggested to defendant “to go get a girlfriend,” he 

told her “he did not need one, he had T.”

Defendant’s housekeeper also observed a “lot of discharge” in various pairs of T’s underwear, noting that in 

some, the crotch of the garment had become so stiff that 

they had to be thrown away. According to the housekeeper, 

by defendant under the Fourth Amendment. Similarly, the state’s petition for 

review was based solely on Article I, section 9. The briefs of both parties refer to 

Fourth Amendment cases only in the context of their competing arguments on 

the proper interpretation of Article I, section 9, and neither party develops any 

independent argument as to the validity or invalidity of the search here under 

the Fourth Amendment. Accordingly, we express no opinion on that issue, nor do 

we express any opinion as to whether that issue was properly raised, preserved, 

or developed below, and leave those questions, in the first instance, to the Court 

of Appeals on remand. Additionally, because the Court of Appeals reversed and 

remanded on the legality of the initial taking of the underwear, it did not address 

defendant’s other assignments of error. Depending on the Court of Appeals’ rulings on remand, it may be appropriate for that court to consider defendant’s other 

assignments of error at that time.
Cite as 359 Or 41 (2016) 45

the heavily-stained children’s underwear appeared abnormal in that they did not look as if they had been worn by a 

child, but rather by a sexually active adult.

In March 2006, after consulting with another 

employee of defendant who worked in the home and also 

suspected that defendant was having sex with T, the housekeeper anonymously called a DHS “tip line” regarding the 

possible abuse. According to the DHS employee who took her 

call at around noon, the housekeeper appeared to be on the 

verge of tears, and first asked what the agency could determine from a pair of underwear. The DHS employee testified 

that he had responded by saying, “Well, there’s a lab here 

locally that can probably tell a lot. What’s your concern?”2

The housekeeper then gradually related her observations 

regarding defendant and T, including the nature and extent 

of the discharge that she had observed on T’s underwear, 

and told the DHS employee that she was considering taking 

a pair from defendant’s house. The DHS employee reiterated 

several times that he could not tell her to take that kind of 

action, and that it was her decision. At the hearing on defendant’s motion to suppress, the housekeeper stated that the 

DHS employee never asked her to get a pair of underwear; 

she said, “No. Never.” She also testified, “It was my idea.” 

The DHS employee gave the housekeeper his direct telephone number, expecting, based on their conversation, that 

she probably would take the underwear. The housekeeper 

retained her anonymity throughout their conversation, 

2 On cross-examination, during the hearing on the motion to suppress, counsel for defendant and the DHS worker engaged in the following exchange:

“[Defense counsel:] And so you offered to her the services of the Oregon 

State Police Crime Lab?

“[DHS:] I told her that I could hook her up with—I told her that 

I could hook her up with people who could make that 

happen.

“[Defense counsel:] So if she stole underwear, you could hook her up with 

people who could examine it at the Oregon State Crime 

Lab. You told her that in the first call?

“[DHS:] I told her that those services were available in—right 

here within the community.

“[Defense counsel:] And that you would hook her up with them?

“[DHS:] I could—I would hook her up with a worker and with 

law enforcement who could make that happen.”
46 State v. Sines

although she eventally disclosed the names of defendant 

and defendant’s wife.

Following the housekeeper’s phone call, the DHS 

employee contacted a deputy at the Deschutes County 

Sheriff’s Office. As a general matter, DHS policy called for 

safety checks to be conducted within 24 hours after receipt 

of a call regarding suspected abuse, unless there was good 

cause for delay. The DHS employee and the deputy sheriff instead decided to assign the case a five-day response 

time to see whether the housekeeper would take any action. 

Neither the DHS policy nor the decision to extend the time 

period was communicated to the housekeeper.

The same day that she talked to DHS, the housekeeper called another employee of defendant who similarly 

suspected abuse and who was planning to work at defendant’s house the next day. The housekeeper told the other 

employee, “I’m thinking we need to get something of evidence,” and “I’m thinking underwear.” The other employee 

said, “I’ll see what I can do.” The following day, while defendant was taking T and her brother to school, the other 

employee went into the laundry room of defendant’s house 

and took the first pair of T’s underwear that she saw. She 

turned the underwear over to the housekeeper after work. 

The housekeeper then called her DHS contact, who arranged 

for her to bring the underwear to DHS and the deputy sheriff the next day, which she did.

The child’s underwear was immediately delivered 

to the Oregon State Police Crime Lab in Bend for testing. 

When the tests revealed spermatozoa on the garment, 

authorities obtained and executed a warrant to search 

defendant’s house. Defendant was arrested at that time, and 

police seized other evidence, including a nightgown, pajama 

pants, a bathing suit, and jeans, all belonging to T. Tests 

conducted on those items revealed additional evidence of 

spermatozoa and seminal fluid.

PROCEEDINGS BELOW

Defendant was charged with nine counts of firstdegree sexual abuse, one count of first-degree rape, and two 

counts of first-degree sodomy, charges that involved both T 
Cite as 359 Or 41 (2016) 47

and her brother, V. Before trial, as relevant here, defendant 

moved to suppress

“all evidence, including derivative evidence and statements, obtained through the [housekeeper’s] unlawful and 

warrantless (a) search of the laundry hamper in his home, 

(b) seizure of the underwear from the hamper, (c) seizure of 

the underwear by police and (d) the destruction and testing 

of the underwear by the Oregon State Crime Lab.”

Following a hearing on that motion, the trial court 

denied defendant’s motion. As to the initial taking of T’s 

underwear by defendant’s employees, the court reviewed 

the evidence at the hearing to determine whether, under the 

circumstances, either employee had acted “as an instrument 

or agent of the government,” making their conduct “state 

action” for purposes of Article I, section 9. It concluded that 

they had not. The trial court explained that the housekeeper 

“was not directed [by the DHS employee] to seize [T’s] underwear.” Rather, the employees themselves discussed and then 

executed a “plan of action.” The court noted that the DHS 

employee did not encourage or participate in the seizure of 

the underwear and that, while he “may have had an expectation that the housekeeper would likely obtain possession 

of the underwear,” he specifically told the housekeeper that 

he could not ask her to search for or seize it. The court stated 

that any “circumstantial encouragement” during his conversation with the housekeeper was “insufficient governmental involvement to warrant application of the exclusionary 

rule,” citing State v. Waterbury, 50 Or App 115, 622 P 2d 330, 

rev den, 290 Or 651 (1981). Accordingly, the trial court ruled 

that the actions of defendant’s two employees “do not constitute state action.” The trial court also held that the police 

acquisition of the underwear from the housekeeper was not 

an unlawful seizure, because that action was supported 

by “an objectively reasonable belief that the child’s underwear contained evidence of a crime,” and that the testing 

of the underwear was not an unlawful search, because the 

information provided to police officers by the housekeeper, 

together with a visual examination of the underwear, supported the “objectively reasonable belief that *** the underwear contained evidence of a crime and the testing would 

provide confirmation of that belief.”
48 State v. Sines

At the trial that followed, the state introduced the 

test results for the confiscated garments, and a jury convicted defendant on four counts of first-degree sexual abuse 

involving T; it deadlocked or acquitted on the remaining 

counts.

Defendant appealed, arguing, in part, that any evidence derived from the seizure and testing of T’s underwear 

should have been suppressed as the fruit of several unlawful 

searches or seizures. Central to the issue now on review, 

defendant argued that, because the actions of those who took 

T’s underwear and gave it to the police constituted “state 

action” for purposes of the Oregon and United States constitutions, both the search and the resulting seizure had been 

unlawful because neither had been based on probable cause, 

a warrant or, alternatively, some exception to the warrant 

requirement.3

 In doing so, defendant acknowledged that 

Oregon courts had yet to clearly articulate a test to determine when a private citizen acts as an instrumentality of 

the government for search and seizure purposes. Defendant 

nevertheless asserted that, in his case, the Court of Appeals 

should adopt the two-part inquiry used by the Ninth Circuit 

Court of Appeals to analyze such actions under the Fourth 

Amendment: (1) Did the government know of and acquiesce 

in the conduct being examined, and (2) did the party performing the search intend to assist law enforcement rather 

than further the party’s own ends? See, e.g., United States 

v. Miller, 688 F2d 652, 657 (9th Cir 1982) (stating test). 

Affirmative answers to both questions, according to the 

Ninth Circuit, meant that the act, although performed by a 

non-state actor, nevertheless constituted state action.

In response, the state argued that the issue raised by 

defendant was controlled by Waterbury, the Court of Appeals 

decision relied upon by the trial court. In Waterbury, an 

informant related information concerning a possible marijuana grow to a sheriff’s deputy, who pressed him for details 

3 Defendant also contended, as he had at trial, that (1) acceptance of the 

underwear by the deputy sheriff—which he knew had been taken without permission from defendant’s house—constituted a second unlawful seizure, and

(2) testing the underwear constituted a second unlawful search. Because it disposed of this case on defendant’s first argument, the Court of Appeals did not 

reach those issues.
Cite as 359 Or 41 (2016) 49

concerning its location. The informant had been reluctant to 

provide that information and, instead, arranged to meet the 

deputy later without specifically apprising him of the reason 

for the meeting. When the informant arrived at the designated meeting place, however, he carried with him several 

plants taken from the grow site that the deputy immediately recognized as marijuana. The deputy and informant 

went before a judge, where the deputy obtained a search 

warrant for the property in question. The Court of Appeals 

subsequently held that the search and seizure performed by 

the informant had not involved state action:

“The trial court found that ‘there was no clear understanding about what the informant was going to do, but 

a reasonable expectation could have been that the informant was going to provide further evidence to enable the 

deputy to obtain a search warrant.’ While it could be said 

that the informant had some implicit encouragement from 

the police, absent any request or direct participation by the 

sheriff, we think such ‘circumstantial encouragement,’ if 

any, was insufficient official involvement to warrant applying the constraints of the exclusionary rule.”

Id. at 120. Citing that holding, the state argued on appeal 

that involvement by state actors in procuring T’s underwear 

had amounted, at most, to “circumstantial encouragement,” 

meaning that, like the evidence procured by the informant 

in Waterbury, the evidence procured by the housekeeper 

was the product of a private search and had been properly 

admitted at trial.

The Court of Appeals noted that this court had held 

in State v. Tucker, 330 Or 85, 90, 997 P2d 182 (2000), that 

Article I, section 9, applies where a private party conducts 

a search “because of and within the scope of” a request by a 

state officer, but it also observed that “[n]either we nor the 

Supreme Court has explained with precision how much or 

what kind of state involvement is sufficient to trigger the 

protection of Article I, section 9.” Sines, 263 Or App at 349. 

Ultimately, the Court of Appeals agreed with defendant, 

concluding that the employees’ seizure of the underwear 

and its delivery to state officials constituted state action. 

That was so, the court said, for three reasons. First, according to the Court of Appeals, the DHS employee “knew what 
50 State v. Sines

[the housekeeper] planned to do and that she was likely to 

do it.” Second, the DHS employee had “communicated with 

[the housekeeper] about her plans and offered law enforcement support if she conducted the seizure * **.” Third, the 

DHS employee had “delayed the safety check to allow [the 

housekeeper] to accomplish the planned seizure.” Id. at 356. 

Because no warrant had authorized the resulting search and 

seizure and the state had not argued that any other exception to the warrant requirement applied, the court held that 

the trial court erred in denying the motion to suppress and 

reversed.

DISCUSSION

We begin with a brief overview of first principles. 

Article I, section 9, of the Oregon Constitution, provides:

“No law shall violate the right of the people to be secure 

in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but 

upon probable cause, supported by oath, or affirmation, and 

particularly describing the place to be searched, and the 

person or thing to be seized.”

That provision protects individuals “against unreasonable 

search, or seizure,” as well as both possessory and privacy 

rights in effects. State v. Owens, 302 Or 196, 206, 729 P2d 

524 (1986). It is axiomatic, however, that Article I, section 9, 

applies only to government-conducted or directed searches 

and seizures, not those of private citizens. Tucker, 330 Or at 

89; see State v. Tanner, 304 Or 312, 321, 745 P2d 757 (1987) 

(privacy interest protected by Article I, section 9, “is an 

interest against the state,” and “is not an interest against 

private parties.”). That is true even if citizens act unlawfully in obtaining the evidence that later makes its way into 

the state’s possession. State v. Luman, 347 Or 487, 492, 223 

P3d 1041 (2009).

That said, situations can and do arise in which a 

private citizen’s conduct in pursuing his or her own search 

and seizure may become so intertwined with the conduct 

of a state actor that the private citizen’s actions are essentially those of the state and should be subject to constitutional restrictions on state searches and seizures. State v. 

Tucker is one example. There, a state trooper investigating 
Cite as 359 Or 41 (2016) 51

an accident called the private tow truck operator who had 

towed the vehicle and asked him to search the vehicle. This 

court had little difficulty concluding that Article I, section 

9, is implicated “if a state officer requests a private person to search a particular place or thing, and if the private 

person acts because of and within the scope of the state’s 

request.” 330 Or at 90. See also Wayne R. LaFave, 1 Search 

and Seizure: A Treatise on the Fourth Amendment § 1.8(b), 

at 370 (5th ed. 2012) (“Quite clearly, a search is not private 

in nature if it has been ordered or requested by a government official.”) Similarly, although no Article I, section 9, 

cases are directly on point, Fourth Amendment cases generally hold that when law enforcement officers participate

with private individuals in a search or seizure, the action 

is not a “private search.” Id. at 372 (“A search will also be 

deemed subject to Fourth Amendment protections if it is a 

‘joint endeavor’ involving both a private person and a government official, as where a detective and a victim of a theft 

together enter a suspect’s apartment to retrieve the stolen 

goods.” (Footnotes omitted.)).

A more difficult question arises in cases like this 

one, where a state officer does not instigate or participate 

directly in a search or seizure, but nevertheless has some 

communication or involvement related to the search or seizure with the private person before that person engages in 

the conduct at issue. On review, the parties present us with 

two somewhat different approaches for determining when 

a search and seizure conducted by a citizen should be construed as state action and therefore subject to the constitutional protections provided by Article I, section 9, of the 

Oregon Constitution.4

The state suggests that common law agency principles are useful in determining when a private citizen is 

acting on behalf of or under the authority of the state and 

therefore subject to constitutional search and seizure limitations. Under the common law, the state notes, an agency 

4 In discussing the tests suggested by the parties, it is worth noting that each 

party also argues that it would prevail under the other party’s test, as well the 

test that it proposes. Although we find the state’s proposed test more useful for 

the reasons discussed below, it appears that most of the cases cited by the parties 

would have reached the same result under either test. 
52 State v. Sines

relationship “results from the manifestation of consent by 

one person to another that the other shall act on behalf and 

subject to his control, and consent by the other so to act.” 

Vaughn v. First Transit, Inc., 346 Or 128, 135, 206 P3d 181 

(2009) (quoting Hampton Tree Farms v. Jewett, 320 Or 599, 

617, 892 P2d 883 (1995) (emphasis and internal quotations 

omitted)). In such a relationship, the principal is vicariously 

liable for the acts of its agent “only if the principal ‘intended’ 

or ‘authorized the result []or the manner of performance’ of 

that act.” Vaughn, 346 Or at 137 (bracket in original) (quoting Restatement (Second) of Agency at § 250). In other words, 

the state continues, for a principal to be held responsible for 

the acts of its agent, the principal must have conveyed to 

the agent that he or she is, in fact, authorized to act on the 

principal’s behalf. Relying on that analysis, the state proposes that we adopt the following rule and apply it to this 

case: A seizure of property by a private citizen becomes state 

action for purposes of Article I section 9, only if the citizen 

was acting “on the state’s behalf and at the state’s behest,” 

i.e., that the state “must have directed or controlled the seizure, or must have conveyed to the citizen that he or she was 

authorized to act on the state’s behalf by asking or actively 

encouraging the person to do so.”

Defendant urges us instead to adopt the two-part 

federal test, mentioned previously, viz.: (1) Did the government know of and acquiesce in the conduct being examined, and (2) did the party performing the search intend 

to assist law enforcement rather than further the party’s 

own ends?5 Defendant argues that the Court of Appeals 

5 Although both parties suggest that this two-part test is generally used by 

the federal courts, the landscape is actually more diverse. For example, the First 

Circuit considers three factors: (1) the extent of the government’s role in instigating or participating in the search; (2) the government intent and the degree 

of control it exercises over the search and the private party; and (3) the extent to 

which the private party aims primarily to help the government or to serve its own 

interests. United States v. Cameron, 699 F3d 621, 637 (1st Cir 2012), cert den, 133 

S Ct 1845 (2013). The Fourth Circuit considers whether the private citizen was 

an instrument or agent of the government, given the government’s participation 

or affirmative encouragement. United States v. Richardson, 607 F3d 357, 364 (4th 

Cir 2010). See also United States v. Smythe, 84 F3d 1240, 1243 (10th Cir 1996) 

(for private search to be state action, government must “affirmatively encourage, 

initiate or instigate the private action”). Moreover, as we discuss later in the text, 

some of the words in defendant’s proposed test are used in a different sense than 

their ordinary dictionary definitions.
Cite as 359 Or 41 (2016) 53

essentially applied that test and correctly held that it was 

met here.

Defendant’s analysis, like that of the Court of 

Appeals, begins with what the DHS employee “knew” and 

“believed” about the housekeeper’s likely actions. He then 

argues, citing dictionary definitions of the word “acquiesce,” 

that the state essentially made her conduct its own by not 

objecting to the potential taking of the underwear or cautioning the housekeeper that doing so would be a crime. The 

state further supported the housekeeper’s possible actions, 

defendant asserts, by offering to arrange testing of the 

underwear if she took it, and by delaying the safety check. 

Those actions, he argues, so encouraged the housekeeper 

and defendant’s other employee to take T’s underwear that 

the state must be viewed as having essentially “caused” that 

search and seizure.

As discussed above, our cases make clear that 

Article I, section 9, is a restriction on government searches 

and seizures, not private ones. Government generally acts, 

of course, through government employees, but it may also 

act through non-employee agents, and searches or seizures 

by those agents are subject to constitutional protections. See 

State v. Nagel, 320 Or 24, 29, 880 P2d 451 (1994) (“Under 

Article I, section 9, a search is ‘an intrusion by a government 

officer, agent, or employee into the protected privacy interest of an individual.’” (Internal quotation marks omitted.)). 

Constitutional protections against unreasonable searches 

and seizures would be easily circumvented if the government was not held responsible—and the exclusionary rule 

not applied—to the actions of private individuals taken on 

behalf of government. But if a private person cannot be said 

to be acting on behalf of government in some sense—that is, 

subject to the government’s control as its agent—it is difficult to see how a search or seizure by that person implicates 

the rights that Article I, section 9, protects.

We confronted a similar issue in State v. Smith, 310 

Or 1, 791 P2d 836 (1990), where a defendant’s cellmate asked 

him questions that led to incriminating statements, and the 

defendant sought to suppress those statements at trial on 

the theory that the questioning had not been preceded by 
54 State v. Sines

Miranda warnings and therefore violated Article I, section 

11. This court rejected that argument, concluding that the 

cellmate was not acting as a state agent and that Article I, 

section 11, therefore was not implicated. We noted that the 

cellmate had initiated the contact with law enforcement officers about the defendant’s statement, and they had told him 

that if he heard something he wanted to pass on, he could. 

310 Or at 14. The officers, however, told the cellmate that 

he was not required to pass any information along and they 

made no deals with him. This court concluded that the cellmate was not an agent acting on behalf of the state, because 

the officers involved were not “directly or indirectly involved 

to a sufficient extent in initiating, planning, controlling, or 

supporting the informant’s activities” such that the cellmate 

could be described as having acted “at the behest” of the 

state. Id. at 15.

Other courts have used a similar agency analysis in the search and seizure context. In United States v. 

Jarrett, 338 F3d 339 (4th Cir. 2003), for example, the court 

examined whether a computer hacker who turned over evidence of child pornography to federal authorities had acted 

on behalf of the government. The court did so by engaging 

in “a fact-intensive inquiry that is guided by common law 

agency principles.” Id. at 344. See also Skinner v. Railway 

Labor Exec. Assn., 489 US 602, 614, 109 S Ct 1402, 103 L Ed 

2d 639 (1989) (“Although the Fourth Amendment does not 

apply to a search or seizure * ** effected by a private party 

on its own initiative, the Amendment protects against such 

intrusions if the private party acted as an instrument or 

agent of the Government.” (Emphasis added.)); State v. 

Wall, 154 NH 237, 240, 910 A2d 1253 (2006) (applying test 

of whether “an agency relationship existed between the 

government and a private individual”). In United States v. 

Koenig, 856 F2d 843, 847 (7th Cir 1988), the court used 

common law agency principles to explain its rejection of the 

defendant’s proposed brightline rule that “knowledge plus 

acquiescence equals agency.” Although the court noted that 

the constitutional issue of when a private search may be 

deemed state action is not necessarily governed by the common law definition of agency, id. at 847 n 1, it nevertheless 

quoted and followed the Restatement (Second) of Agency in 
Cite as 359 Or 41 (2016) 55

holding that a FedEx employee had not acted as the government’s agent when he searched a package addressed to the 

defendant, despite earlier and contemporaneous communications between the employee and governmental officers. 

Id. at 850.

In our view, too, common-law agency principles 

can provide substantial assistance in determining when 

a private citizen’s search or seizure should be considered 

state action for purposes of Article I, section 9. The state’s 

formulation of its proposed test—whether a private party 

acts “on behalf” and “at the behest” of state officials—does 

have a conclusory ring, but the factual considerations that 

lead to those conclusions are helpful, because they look 

to the objective statements and conduct of the parties to 

assess whether the conduct of a private individual should 

be attributed to the government. Common-law agency 

exists where a principal “manifests assent to another

person”—the agent—that the agent “shall act on the principal’s behalf and subject to the principal’s control, and the 

agent manifests assent or otherwise consents so to act.” 

Restatement (Third) of Agency § 1.01 (2006). The considerations relevant to the existence of an agent’s actual authority to act on behalf of the principal focus on the “principal’s 

manifestation to an agent that, as reasonably understood 

by the agent, expresses the principal’s assent that the agent 

take action on the principal’s behalf.” Id. § 3.01. Whether 

the principal “manifests” assent for the agent to act, and 

whether the agent manifests assent or otherwise agrees so 

to act, are determined by “written or spoken words or other 

conduct.” Id. § 1.03.6

One advantage of the common-law agency analysis 

is that, in determining whether agency exists, the emphasis 

is on “manifestations” that can be assessed objectively, in 

contrast to the Court of Appeals’ test (and defendant’s proposed test), which tend to focus on the subjective motives of 

6 Determining whether a principal has assented for another to act as 

its agent will often depend on the context in which the conduct of the parties 

occurs and other aspects of the relationship between the principal and agent. 

See Restatement (Third) of Agency § 1.03 comment e (discussing context in which 

assent is manifested) and comment c (discussing assent by organization for person to act as its agent).
56 State v. Sines

the principal and agent, or on what the principal “knew” or 

“thought” that the agent might do. See Sines, 263 Or App at 

353-56 (emphasizing what state officer “knew” and “understood”). Indeed “manifestation,” as used in the Restatement, 

means “conduct by a person, observable by others, that 

expresses meaning,” and includes but is not limited to, written or spoken words. Id. at § 1.03, comment b.7

In the criminal search context, those agency concepts examine the conduct of government officials that 

would communicate to the putative agent that the agent was 

acting on behalf of the government. One treatise sums up 

the inquiry as follows:

“[A] defendant must show that the government affirmatively encouraged, initiated, or otherwise participated in 

the private action. Whether there is sufficient government 

involvement in a search to transform it into state action is a 

question of fact that is determined by looking at the totality 

of the circumstances. Generally speaking, however, courts 

are likely to find sufficient government involvement where 

a government official orders, requests, or directs a search. 

Similarly, even in the absence of an order to search, the 

use of coercion or affirmative sugestion is usually sufficient 

to transform an otherwise private search into state action. 

By contrast, the fact that an officer did not discourage the 

private party from undertaking the search generally has 

been found insufficient to bring the search within the scope 

of the Fourth Amendment.”

7 The reference to conduct “observable by others” simply highlights one kind 

of communication by a principal that can confer authority to act on an agent. It 

need not be “observable” by third persons dealing with the agent, and in many 

circumstances involving police—such as the use of an informant—the police and 

the agent will seek to prevent the person dealing with the agent from knowing 

the agent’s authority. In this context, the communication that establishes the 

agency relationship is that between the principal and the agent, and the comment quoted in the text is a reminder that the conduct must be such that a reasonable observer—such as the agent or a later factfinder—would understand the 

conduct to be intended by the principal to assent to the creation of an agency 

relationship. It is important to remember that, in the kind of agency at issue here, 

the agent has “actual authority” to act “on behalf of the principal, consistent with 

the principal’s manifestations to the agent that the principal wishes the agent so 

to act,” Restatement (Third) of Agency § 2.01 (2006) (describing actual authority), 

rather than “apparent authority,” which can exist when “a third party reasonably 

believes the [agent] has authority to act on behalf of the principal.” Id. § 2.03 

(describing apparent authority).
Cite as 359 Or 41 (2016) 57

Barbara Bergman and Theresa Duncan, 4 Wharton’s 

Criminal Procedure § 24:20, 24-77 to 78 (14th ed 2009) (footnotes omitted).8

Defendant urges us to adopt the two-part test 

described above. Applying the first part of that test, 

he focuses on the DHS employee and the deputy sheriff’s “knowledge of” and “acquiescence in” the conduct of 

defendant’s employees, arguing that those facts support 

his claim that the employees acted as agents of the the 

government. The federal cases, however, use those terms 

in a way that does not aid defendant. In United States v. 

Smythe, 84 F3d 1240, 1242-43 (10th Cir 1996), for example, the court stated, “Knowledge and acquiescence *** 

encompass the requirement that the government must also 

affirmatively encourage, initiate or instigate the private 

action.” (Emphasis added). Similarly, the court in Jarrett 

set out the test as quoted, but in applying it observed that 

“we have required more than mere knowledge and passive acquiescence by the Government before finding an 

agency relationship.” 338 F3d at 346; see also Koenig, 856 

F2d at 847 (rejecting “simple, brightline rule” that “knowledge plus acquiescence equals agency”); United States v. 

Walther, 652 F2d 788, 792 (9th Cir. 1981) (“Mere governmental authorization of a particular type of private search 

in the absence of more active participation or encouragement is similarly insufficient to require the application of 

Fourth Amendment standards.”).

Thus, although the first part of defendant’s proposed test is phrased in terms of “knowledge” and “acquiescence,” those terms are not used in their ordinary sense, and 

courts applying the test have also frequently required affirmative “intiation,” “instigation,” “participation,” or “encouragement.” Indeed, in application, the first part of defendant’s 

proposed test—although using different words—does not 

appear to differ substantively from the agency principles we 

have discussed.

8 We quote this passage for its summary of the caselaw. We do not necessarily 

agree with the comment in the second sentence that whether a particular search 

by a private citizen is state action is a “question of fact.” The determination will 

depend upon the facts, but the conclusion ultimately is a legal one.
58 State v. Sines

Neither party disputes that the second part of the 

Miller test—that the private individuals acted with the 

intent to deter crime and assist law enforcement rather than 

to “further their own ends”—was met in this case; defendant’s housekeeper so testified. However, that part of the 

test is problematic in some circumstances, like those here, 

where defendant’s employees could have intended to protect 

defendant’s children from sex abuse as well as wanting to 

assist law enforcement. Such mixed motivations have been 

noted by several courts. See United States v. Cameron, 699 

F3d 621, 638 (1st Cir. 2012) (denying motion to suppress 

and noting that although the government has an interest 

in combating child pornography, “this does not mean that 

Yahoo! cannot voluntarily choose to have the same interest”); United States v. Day, 591 F3d 679, 688 (4th Cir. 2010) 

(denying motion to suppress and noting, “Of course, the 

objective of ‘deterring crime’ is entirely consistent with 

[the private security guards’] responsibility to protect the 

tenants and property of the Regency Lake apartment complex, irrespective of any simultaneous goal of assisting law 

enforcement.”).

We decline to adopt defendant’s proposed test. The 

first part of that test purports to rely on whether the government “knew of and acquiesced in” the private conduct. See 

Miller, 688 F2d at 657. But those considerations tell us little 

about particular government actions that would communicate to a private person any authority or permission to act as 

an agent or instrument of the government. They also ask the 

factfinder to consider subjective mental states, rather than 

statements and conduct that can be assessed objectively. 

As discussed above, even the federal courts that use defendant’s proposed test require “active participation or encouragement,” see, e.g., Walther, 652 F2d at 792 (so stating), and 

conclude that “knowledge and acquiescence” without more 

is insufficient to establish state action. Koenig, 856 F2d at 

847. In our view, a test that, in application, uses words in 

ways that are at odds with the ordinary meaning of those 

words is of limited utility. It is, in any event, more difficult 

to apply a test that relies on an assessment of what persons 

“knew” and what they “acquisesced” in, than it is to apply a 

test that examines statements and affirmative conduct for 
Cite as 359 Or 41 (2016) 59

manifestations of an intent to confer authority. The state’s 

proposed use of common law agency principles to determine 

whether, in particular circumstances, a private actor should 

be considered a state agent for purposes of Article I, section 

9, is, in contrast, clearer and more easily applied.9

With that background, we return to the essentially 

undisputed facts here, focusing on the statements and objective conduct of the individuals involved. Defendant’s housekeeper anonymously and on her own initiative called DHS to 

report the suspected abuse. The DHS employee with whom 

she spoke did not direct the housekeeper to search the house 

or to seize evidence, saying, instead, that the decision was 

“up to her.” The housekeeper also raised the issue of obtaining evidence and the possibility of underwear as evidence; 

she testified that getting the underwear “was my idea.” 

In response to her question about what they could determine from underwear, the DHS employee said there was 

a lab locally and they could “probably tell a lot.” The DHS 

employee gave the housekeeper his direct telephone number. 

He also contacted the sheriff’s office to discuss the call, and 

he and his contact at the sheriff’s office agreed to conduct 

the routine follow-up safety check within five days, rather 

than within the usual 24-hour period from the initial report. 

Neither the 24-hour safety check protocol or the modification that DHS and the sheriff’s office agreed to was communicated to the housekeeper. The housekeeper subsequently 

called defendant’s other employee, and that employee took 

the underwear from the laundry room in defendant’s house 

the following day, while T and her brother were at school, and 

then gave it to the housekeeper. The housekeeper turned the 

underwear over to state officials the next day.

The question is whether those facts, and particular 

the conduct and statements of the state officials, demonstrate 

that those officials communicated to the housekeeper (and 

defendant’s other employee) that they were authorized to act 

as agents of the state. The DHS employee did not direct or 

9 We also find the second part of defendant’s proposed test to be unhelpful 

because of the “mixed motivations” issue identified by several federal courts and 

discussed above. Of course, the circumstances of the private actor’s conduct, 

including job responsibilities and any relationship with the defendant, may well 

be relevant facts in deciding whether that conduct constituted state action.
60 State v. Sines

request the housekeeper to take the underwear. The idea of 

taking evidence from the house, and of taking underwear in 

particular, came from the housekeeper. Although defendant 

and the Court of Appeals focus on what DHS employees 

“knew” or “thought” or “understood” the housekeeper might 

do, the common law agency analysis that we outlined above 

looks first to objective manifestations by the principal to 

the agent that the agent should or may act on behalf of the 

principal. That is consistent with the federal courts’ emphasis on affirmative government conduct vis à vis the private 

person. See Koening, 856 F2d at 850 (“It is only by the exercise of some form of control that the actions of one may be 

attributed to another. Restatement (Second) of Agency § 14 

(1958). Mere knowledge of another’s independent action does 

not produce vicarious responsibility absent some manifestation of consent and the ability to control.”); Smythe, 84 F3d at 

1242-43 (to make private conduct state action, government 

agent must “affirmatively encourage, initiate, or instigate 

the private action”). There was little, if any, such affirmative 

encouragement, initiation, or instigation here.

Defendant nevertheless argues that the state 

encouraged and “supported” the private search in several 

ways. First, he argues that DHS delayed its usual 24-hour 

safety check to allow the housekeeper sufficient time to conduct the search. That unilateral action by the state, however, 

was never communicated to the housekeeper, and could not 

have affected her or her decision to act. Although the delay 

suggests that state officials hoped that the housekeeper’s 

actions would assist them in investigating the alleged abuse, 

it is irrelevant to whether the state consented to have her 

act on the state’s behalf. Moreover, on the facts here, there 

is no showing that the delay had an effect on the search 

and seizure in any event, because the search and seizure 

occurred within 24 hours of the housekeeper’s initial call.

Defendant next asserts that the DHS employee’s 

communications with the housekeeper, including discussing testing the underwear and giving her his direct phone 

number, demonstrate a level of indirect support of the 

housekeeper’s conduct sufficient to make her an agent of the 

state. We disagree. The fact that the DHS employee truthfully answered the anonymous caller’s unsolicited question 
Cite as 359 Or 41 (2016) 61

about what they could determine from particular evidence 

and provided his direct phone number do not rise to the level 

of state instigation or direction to make the caller’s subsequent search state action.10

Finally, defendant makes two other, related arguments for suppressing the results of the search and seizure 

here. First, he asserts that the DHS employee indirectly 

encouraged the housekeeper by failing to warn her that taking property from defendant’s house would constitute theft. 

Second, he contends that the evidence should be suppressed 

because defendants’ employees stole it from his house.

This court addressed the latter argument in State 

v. Luman, 347 Or 487, where, after reiterating that Article I, 

section 9, does not apply to private searches, the court stated 

that that “principle applies even if the private parties acted 

unlawfully in conducting the search and seizure that ultimately led to police possession of the evidence.” The court 

distinguished the issue of the criminality of the private 

conduct from the issue of whether the actions of the private 

parties could be attributed to the state. Even if the private 

party had stolen the evidence in question and given it to 

the sheriff’s office, “that fact would not somehow turn that 

conduct into state action or render the sheriff’s office’s later 

possession of the videotape unlawful.” Id. at 493.

The former argument—that the DHS employee’s 

failure to warn the housekeeper that taking the underwear 

was a crime or otherwise to dissuade her from stealing from 

defendant was sufficient government support to make the 

private conduct state action—also is not well taken. The 

10 The circumstances here are substantially different from State v. Lowry, 37 

Or App 641, 588 P2d 623 (1978), where the court concluded that incriminating 

statements made by the defendant to an informant without Miranda warnings 

should have been suppressed because the informant was acting as an agent of 

the state. The informant—a person well-known to authorities as a “dedicated and 

accomplished ‘stool pigeon’” who had “survived for years by (and in spite of) providing information to various police and penal authorities,” id. at 643—obtained 

admissions from the defendant, his cellmate, and then negotiated a deal with 

prison officials pursuant to which he recounted the admissions to the officials, 

who then paid him $50 and, at his request, transferred him to a federal corrections facility the next day. Although the Court of Appeals here relied heavily on 

Lowry, see Sines, 263 Or App at 349-53, neither party cited that case in their 

briefs before the Court of Appeals or this court, and we do not find it helpful.
62 State v. Sines

ultimate issue is whether the housekeeper acted on behalf 

of the state, which we determine by considering whether 

the state’s conduct would have conveyed to her that she was 

so authorized. Failing to warn or advise the housekeeper 

against engaging in a potentially criminal act is not such 

conduct. As we previously emphasized, “the fact that an officer did not discourage the private party from undertaking 

the search generally has been found insufficient to bring 

the search within the scope of the Fourth Amendment.” 

Bergman and Duncan, 4 Wharton’s Criminal Procedure

§ 24:20 at 24-78; see also Jarrett, 338 F3d at 347 (“that the 

government did not actively discourage Unknownuser from 

engaging in illict hacking does not transform Unknownuser 

into a Government agent”; government had no special 

obligation to discourage illegal hacking by private party); 

United States v. Souza, 223 F3d 1197, 1202 (10th Cir 2000) 

(“The police are under no duty to discourage private citizens 

from conducting searches of their own volition.”).

We conclude, based on the facts explicitly and 

implicitly found by the trial court, that the actions of defendant’s employees in searching for and seizing the underwear 

constituted private conduct and therefore did not violate 

Article I, section 9. We acknowledge that this is a close case. 

Contacts between private individuals and state officers 

before a private search always require careful examination to determine whether, given all the circumstances, the 

state officers provided such affirmative encouragement and 

authorization to the private individuals so as to render them 

agents of the state.11 In this case, for the reasons described 

above, we hold that they did not. Accordingly, we reverse 

the Court of Appeals decision and remand to that court for 

consideration of other assignments of error that it did not 

address.

The decision of the Court of Appeals is reversed, 

and the case is remanded to the Court of Apeals for further 

proceedings.

11 Because we conclude that the state officials did not authorize the private 

individuals involved here to act as agents of the state, we do not consider the 

second step in the common law agency analysis, viz., whether the “agent manifest[ed] or otherwise consent[ed] so to act.” Restatement (Third) of Agency § 1.01.