dissenting.
The videocassette is a constitutionally protected effect, and its contents are the images on the videotape. Those images are not in plain view and can be viewed only by the use of an electronic device. Article I, section 9, of the Oregon Constitution protects a person’s right of privacy in the contents of an effect against unreasonable search and seizure. Today, however, the majority concludes that, once third parties have seized and viewed the contents of an effect before giving it to the police, the owner’s privacy interest in the contents of the effect has been extinguished, thereby relieving the police of their constitutional obligation to obtain a search warrant. Because I would hold that defendant retained a privacy interest in the images on the videotape and that the police violated defendant’s privacy right protected by Article I, section 9, when they viewed the images on the videotape without first securing a warrant, I respectfully dissent.
The majority, relying on Fourth Amendment1 cases, concludes that the police did not need to obtain a search warrant before viewing the images, because that viewing revealed nothing more than, or at least did not significantly expand, the scope of the prior private “search” of the videotape by defendant’s employees. Citing United States v. Jacobsen, 466 US 109, 115, 104 S Ct 1652, 80 L Ed 2d 85 (1984), the *503majority concludes that, although the federal analysis differs from the approach this court would take under Article I, section 9, that analysis is nonetheless applicable here because “a private search frustrates a person’s right to privacy under Oregon’s Constitution exactly to the same extent that it frustrates a person’s expectation of privacy under the federal constitution.” 347 Or at 499 (emphasis in original). That reasoning contradicts this court’s prior Article I, section 9, case law.
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.”
Article I, section 9, protects both possessory and privacy interests in effects. State v. Owens, 302 Or 196, 206, 729 P2d 524 (1986). “A privacy interest, as that phrase is used in this court’s Article I, section 9, opinions, is an interest in freedom from particular forms of scrutiny.” State v. Campbell, 306 Or 157, 170, 759 P2d 1040 (1988). Privacy interests that are protected by Article I, section 9, “commonly are circumscribed by the space in which they exist and, more particularly, by the barriers to public entry (physical and sensory) that define that private space.” State v. Smith, 327 Or 366, 373, 963 P2d 642 (1998). It is governmental intrusion past those barriers, engaged in wholly at the discretion of the government, that Article I, section 9, protects against through the warrant requirement. Campbell, 306 Or at 171. Indeed, when warrants are challenged, courts resolve doubtful or marginal cases in favor of the preference for warrants, State v. Tacker, 241 Or 597, 602, 407 P2d 851 (1965), in order to encourage the use of warrants by the police before they act.
That preference has its origins in the constitutional principle of separation of powers and recognizes that a search pursuant to a warrant involves both the executive branch, which conducts the search, and the judicial branch, which decides whether to issue the warrant. By contrast, a war-rantless search is a unilateral act of the executive branch *504unchecked by judicial oversight. Under Article I, section 9, the rule in Oregon is clear: “warrantless * * * searches * * * are per se unreasonable unless falling within one of the few ‘specifically established and well-delineated exceptions’ to the warrant requirement.” State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983) (quoting Katz v. United States, 389 US 347, 357, 88 S Ct 507, 19 L Ed 2d 576 (1967)). Article I, section 9, requires that a police officer have probable cause and either a valid warrant or a justification under an exception to the warrant requirement, to conduct a lawful search. Those justifications cannot be merely a concern that it would be inconvenient to obtain a warrant or that, as the majority concludes here, so little privacy remains after a third-party search that no constitutional protection is justified.
The majority emphasizes the fact that the employees told the police “exactly what was on [the videotape.]” 347 Or at 499. The fact that defendant’s employees told the police what they saw when they played the videocassette may have provided probable cause to believe, as the employees claimed, that the videotape contained images of women using the restroom. However, the employees’ statements did not physically place the images in the plain view of the police such that they could observe those images without using an electronic device to reveal them, thereby conducting a search. Because the viewing of the images on the videotape was a search, the police were required to obtain a warrant or establish an exception to the warrant requirement before conducting that search.
The majority also is confused regarding the extent of the warrant issued in State v. Munro, 339 Or 545, 124 P3d 1221 (2005). The majority states that the warrant authorized only the seizure of the videocassette at issue in that case, but not the viewing of it, and that this court thus determined that the right to view the images on the videotape “inhered” in its lawful seizure. 347 Or at 501. That is a not a complete reading of the affidavit in support of the search warrant and the warrant that was issued in that case. The affidavit provided, in part:
“ ‘Persons who possess and distribute marijuana and other controlled substances often keep records pertaining to *505their illegal narcotic activities. These include records of marijuana values they have packaged and sold, lists of customers and associates, and records of drug payments and debts. Such records are commonly kept at the premises where the controlled substances are processed and sold, are secured in safes, lockboxes, computers, or other secure or concealed locations secreted at the location. This facilitates easy access by the seller while affording protection from unwanted discovery.
“ ‘These records include written and electronically stored business documents, ledgers, address books, computer files and software, telephone toll records, notes, messages, photographs and video films, and encrypted memo-randa indicating drug debts/sales.’ ”
Munro, 339 Or at 547-48 n 3 (first emphasis added, second emphasis in original). In turn, the warrant provided, in part:
“ Nou are hereby commanded to search:
“ ‘For the following described property:
“ ‘[I]tems of identification such as utility bills, mail addressed to the occupants, rent receipts and property ownership papers, financial and personal paper; business records such as ledgers, address books, bank records, travel records, computers and their files and related software, telephone toll records; phone recorders, cellular telephones, electronic pagers, caller identification devices, notes, messages, encrypted memoranda, records of drug sales and debts, photographs and videotapes[.]’ ”
Id. at 548 n 4 (emphasis omitted). The warrant in Munro explicitly provided the authority to view the images on the videotape. The warrant did not, as the majority asserts, provide explicit authority to seize and only implied authority to search. The court explained that
“[o]nce the police seized the videotape under the authority of the warrant, any privacy interest that defendant had in the contents of the videotape was destroyed by the authority of the warrant permitting the examination and exhibition of the contents of the videotape. Until such time as defendant regained lawful possession of the videotape, he had no *506remaining privacy interest in its contents that he could assert.”
339 Or at 552 (emphasis added). The conclusion that the majority draws here — that lawful possession of an effect by the police thereby extinguishes a person’s privacy rights in the contents of that effect — is not supported by this court’s decision in Munro. Moreover, that conclusion contradicts other pertinent Article I, section 9, case law from this court.
For example, in State v. Keller, 265 Or 622, 510 P2d 568 (1973), defendant was stopped in her car and arrested. During an inventory of the contents of her car, the police noted an open cosmetic case on the floor in front of the driver’s seat, and its contents, syringes and needles, were in plain view. They also observed a fishing tackle box, on the floor of the back seat, held closed by a “red wire tied around it.” Id. at 624. The police removed the wire and opened the tackle box to inventory its contents and observed five vials of liquid, litmus paper, and razor blades. The liquid later was determined to be a controlled substance, which was the basis of the indictment against defendant. The arresting officer testified that when the box was opened there was the odor of methamphetamine, which he had smelled before in a “narcotics lab.” Id. This court affirmed the trial court’s ruling that the evidence should be suppressed, stating that
“[wjith no exigent circumstances present [the police] could have easily inventoried ‘one fishing tackle box,’ along with other items in plain view. If they had probable cause to believe a crime was being committed, after seeing the syringes and needles in the open cosmetic case, they could have sought a search warrant from a disinterested magistrate.”
Id. at 625-26.
Here, as in Keller, the fact that the police had possession of the videocassette did not automatically result in defendant’s loss of his privacy interest in the images on the videotape such that the warrant requirement could be dispensed with.
As noted above, this court has concluded numerous times that warrantless searches, unless falling within a few, well-defined exceptions, are per se unreasonable. Davis, 295 Or at 237; see also State v. Kosta, 304 Or 549, 553, 748 P2d 72 (1987) (“As this court repeatedly has stated, if an instruction *507is a ‘search’ or a ‘seizure,’ it requires ‘probable cause and a search warrant or separate justification under one of the few, carefully circumscribed exceptions to the warrant requirement’ of Article I, section 9, of the Oregon Constitution.”). Here, defendant had manifested his intent to keep the images on the videotape private by instructing his employees that they were forbidden from watching the television. Moreover, defendant’s loss of possession was not because he had somehow abandoned the videocassette. Instead, the videocassette was taken from his possession without his permission. Defendant’s conduct demonstrated his intent to exercise his privacy interest in the videotape, even if, after its theft by his employees, he lost his possessory interest in the videocassette. See State v. Cook, 332 Or 601, 607-08, 34 P3d 156 (2001) (“[B]ecause Article I, section 9, protects both posses-sory and privacy interests in effects, property law concepts of ownership and possession are relevant, though not always conclusive, in the factual and legal determination whether a defendant relinquished all constitutionally protected interests in an article of property.”). The majority maintains that, by taking the videocassette out of defendant’s restaurant without permission, the employees did not commit “theft.” Given that defendant does not challenge the subsequent seizure of the videotape or the possession of it by the police, it is unclear why the majority feels this is a significant point, and in my view it is a distinction without a difference. It is undisputed that the employees did not have permission to use the television in the kitchen and did not have permission to remove the videocassette from the premises. That is enough to demonstrate defendant’s intent to keep the images on the videotape private.
Knowing that the videocassette was given to them by defendant’s employees, and not by defendant himself, the officers could not have reasonably concluded that defendant intended to relinquish his privacy interests in the images on the videotape, nor should this court. See id. at 608 (question to be resolved in such cases is whether a defendant’s statements and conduct demonstrated that he relinquished all constitutionally protected interests in articles of property, so that both warrantless seizure of property and resultant search by police were reasonable under Article I, section 9). *508Because the images on the videotape were not visible, defendant retained a privacy interest in the images on the videotape even though he had lost his possessory interest when Jones gave the videocassette to the police. In the absence of some exception to the warrant requirement or an exigency that would require the police to proceed quickly to preserve evidence, the police were required to secure a warrant to view the images on the videotape. In my view, the warrant requirement under Article I, section 9, is not a mere formality that can be so casually cast aside, as the majority does here.
In light of the foregoing, I would conclude that the officers conducted a warrantless search when they viewed the images on the “master” videotape, to which no exception to the warrant requirement applied. Thus, I would hold that the trial court erred in declining to suppress the images on that videotape. I respectfully dissent.
Durham and Walters, JJ., join in this opinion.The Fourth Amendment provides:
“The right of the people to he secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”