The Volokh Conspiracy
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"Interfering with the Scent"
From State v. Gardiner, decided Wednesday by the Oregon Court of Appeals (Judge Jacqueline Kamins, joined by Judges Douglas Tookey and James Egan):
A woman reported that a man knocked on her door, stabbed her in the face, and ran away. Hillsboro Police Officers and medical and fire department personnel responded to that call. In order to find the assailant, the officers deployed a K-9-unit tracking dog.
Defendant approached the area on foot and began filming. At one point, while defendant was present, a bicyclist rode through the area after being told to wait 30 seconds by an officer. Defendant had some interactions with officers, and each of them told him to stay clear of the "dog track." {According to officer testimony, the police dog is "trained for [tracking] fresh human odor" through footprints or air scent. Each dog track is never "exactly the same" because factors like weather temperature and wind direction affect a track. During a track, the dog-handler's primary focus is to observe the dog's behavior as it searches for scents, while other officers provide cover for the dog-handler.} Defendant was arrested after he disobeyed Edwards' order to leave the area because defendant continued to walk parallel to the dog track, thereby "interfering with the scent" and interfering with the duties of the police officers….
Defendant claimed this "violate[d] his constitutional right to film police activity," but the court disagreed. First, the court applied the Oregon courts' framework for dealing with free speech challenges under Article I, section 8 of the Oregon Constitution:
The analytical framework for assessing Article 1, section 8, constitutional challenges includes three categories. The first category "consists of laws that focus on the content of speech or writing or are written in terms directed to the substance of any opinion or any subject of communication." The second category "consists of laws that focus[ ] on forbidden effects but expressly prohibit[ ] expression used to achieve those effects." Generally, those laws are analyzed for overbreadth. The third category "consists of laws that focus[ ] on forbidden effects, but without referring to expression at all."
The parties agree that ORS 162.247 is a speech-neutral statute that falls under category three …. In order to determine whether a "category three law violates Article I, section 8, as applied to particular conduct, the court must examine [1] how the law was applied to determine whether the application was directed at the content or the expressive nature of an individual's activities, [2] advanced legitimate state interests, and [3] provided ample alternative opportunities to communicate the intended message." …
First, we consider "how the law was applied to determine whether the application was directed at the content or the expressive nature of an individual's activities." Defendant argues that because the officers allowed a bicyclist to ride through the area and yet "disallow[ed] defendant to film, the officers exercised their authority more restrictively against defendant than they did other members of the public." We disagree. Before the bicyclist rode through the area where the dog track was present, the officer ordered the bicyclist to stop and wait 30 seconds; the bicyclist obliged and rode away without any incident. That interaction does not undermine the conclusion that defendant's conduct of walking parallel to the dog track and disobeying orders—as opposed to the expressive activity of filming the police—were the basis of his arrest. Indeed, the officers repeatedly reassured defendant he could film but told him that he needed to avoid the dog track….
Second, we consider whether the application of ORS 162.247 advanced legitimate state interests. Defendant argues that the application of the statute did not advance legitimate state interests because his following the dog track did not hinder any police investigations. We disagree. The state advanced the legitimate interests of enforcing the statute for three reasons, which we find to be appropriate: (1) an armed suspect may have been present in the area; (2) there were public and police officer safety concerns because of that armed suspect; (3) and the situation was not static because there were no defined search boundaries.
Finally, we consider whether defendant was "provided ample alternative opportunities to communicate the intended message." Defendant argues that officers did not provide alternative avenues because they did not "provide him with specific, clear, unambiguous directions on how to" film the police "that were narrowly tailored to their concern." We disagree. On at least two occasions, defendant was told by at least two officers where to stand to avoid interfering with the dog track. Before arresting defendant, an officer told him to remain in a certain spot. Defendant initially listened to the officer but then began walking parallel to the dog track. Defendant was arrested only after the officers provided him alternative opportunities to remain in specific areas to continue filming.
For the same reasons, we conclude that the officers' conduct did not violate the First Amendment….
Carson L. Whitehead represents the state.
