dissenting.
Police, apparently recognizing that they lacked authority to go on defendant Howard’s property in order to seize her curbside garbage container, arranged to have her garbage collection service pick up the container and immediately turn it over to them.1 The officers then took the container away, extracted its contents, and inspected them. The *450state contended at trial that the seizure of the container, extraction of its contents, and inspection did not amount to a violation of defendant’s possessory or privacy interests and, for that reason, that the police conduct was not subject to any of the limitations imposed by Article I, section 9, of the Oregon Constitution. The state, in other words, argued below (and continues to argue on appeal) that the provision of the Oregon Constitution guaranteeing “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search” leaves government officials free to have people’s garbage seized from their property2— without telling them, without a warrant, and without any reason to believe that they have done anything wrong — and then to harvest from the garbage whatever personal information it may yield. The trial court agreed. So does the majority. I do not.3
Under a well-settled and frequently repeated precept first announced in State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988), government officials (usually but not always police officers) interfere with a person’s privacy so as to implicate constitutional limitations when they engage in a “practice,” which, “if engaged in wholly at the discretion of the government, will significantly impair The people’s’ freedom from scrutiny!.]” Accord State v. Nagel, 320 Or 24, 29, 880 P2d 451 (1994); State v. Wacker, 317 Or 419, 425, 856 P2d 1029 (1993); State v. Ainsworth, 310 Or 613, 617, 801 P2d 749 (1990); State v. Dixson/Digby, 307 Or 195, 211, 766 P2d 1015 (1988); State v. Rodriguez-Ganegar, 186 Or App 530, 534, 63 P3d 1225, rev den, 335 Or 578 (2003); State v. Fortmeyer/Palmer, 178 Or App 485, 488-89, 37 P3d 223 (2001); State v. *451Larson, 159 Or App 34, 40, 977 P2d 1175, rev den, 329 Or 318 (1999).
Later cases have clarified that the “practice” is not evaluated in the abstract, but with respect to the context in which it occurs. State v. Meredith, 337 Or 299, 307, 96 P3d 342 (2004). Thus, attaching a “beeper” to a private citizen’s car is a search, whereas attaching one to a public employee’s publicly owned car is not. Id.4 Emphatically, however, whether the act implicates protected privacy interests can never depend on whether the person searched is a criminal suspect: Article I, section 9, protects “the people,” and our determination whether an act is a “search” must always be made with the awareness that it is all Oregonians’ freedom from unwanted government scrutiny that is at stake — even though we are called upon to make that determination in a context where the practical effect of our decision could be that incriminating evidence of a criminal act will be suppressed and, because the “constable has blundered,” the criminal will go free. People v. Defore, 242 NY 13, 21, 150 NE 585, 587, cert den, 270 US 657 (1926) (Cardozo, J.). As Justice Harlan famously noted in the context of electronic eavesdropping,
“[s]ince it is the task of the law to form and project, as well as mirror and reflect, we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society. The critical question, therefore, is whether under our system of government, as reflected in the Constitution, we should impose on our citizens the risks of the electronic listener or observer without at least the protection of a warrant requirement.”
United States v. White, 401 US 745, 786, 91 S Ct 1122, 28 L Ed 2d 453 (1971) (Harlan, J., dissenting) (emphasis added).
*452Thus, the inquiry in the present case is this: Did the police do something that, if they could do it in similar circumstances whenever they wanted, would diminish the freedom from unwanted government scrutiny to which an Oregonian is entitled? In less abstract (but no less relevant) terms: If police officers (or tax collectors or OR-OSHA inspectors or SAIF investigators), without your knowledge and without cause to believe that you had done anything wrong, had your garbage collectors give them your curbside container immediately after pickup, and then the officers took the container to their office, dumped the contents out on the floor, and went through them with the proverbial fine-toothed comb, in the process discovering your social security number, your bank account numbers, your credit card account numbers, your diet, where you shop, what you buy, what medications you take (birth control pills? Viagra? Rogaine? Prozac?), what cosmetics you use, what congenital diseases your DNA might disclose, what periodicals you read, what the discarded drafts of your reports or correspondence say, whom you telephone, how much alcohol you drink, whether or not you threw away that atrocious necktie Aunt Sally gave you for your birthday, and other details of your personal and professional life — in that situation, would you feel that your privacy had been violated? That is the question, and the answer can only be yes.
Put another way, if the state’s rule becomes law, then — as the state itself acknowledges in its brief to this court — people who do not want to give government officials unchecked authority to go through their garbage and discover intimate details of their personal and professional lives are left with four choices: They can haul their own garbage to the dump; they can try to negotiate a side agreement with their scavenger service; they can try systematically to render their refuse incapable of revealing personal information (although that might be difficult with used tampons, which is what police inspected and analyzed in State v. Galloway, 198 Or App 585, 589, 109 P3d 383 (2005)); or they can trust government officials not to avail themselves of all the power we will have conferred on them. I believe that imposing one or another of those options on the people of Oregon would *453unconscionably burden their ability to avoid loss of freedom from unwanted scrutiny.5
The state’s argument that people can take steps to avoid having their garbage officially scrutinized and inventoried might also be made with respect to, for example, outgoing parcels that they leave on their doorstep for a UPS or FedEx truck to pick up. As the trial court noted, “[w]hen garbage is delivered to the curbside, common sense dictates that *454it is with the intent that it be taken to a landfill or garbage dump.” So too when a parcel is left for the carrier to pick up and deliver; that act of faith is performed with the intent that the parcel be taken to a recipient. In both situations, a person deposits a closed item in a publicly accessible place with confidence that a particular person or entity will pick it up and deliver it to a destination. Like the sanitation company, the parcel delivery service is an intermediary and a carrier. Prevailing social norms give us confidence that the carrier will not open the item or divert it to somebody who will. Although a prudent person might well deposit parcels only in a secure collection box or a hand-to-hand transaction, or, for similar reasons, shred or haul his or her own trash, social norms make that prudence optional. If inspections or diversions were to become commonplace and unregulated, “the people” would have suffered a significant loss of their freedom from unwanted scrutiny.
The majority frames the issue in this case as “whether police invaded defendants’ protected possessory or privacy rights under Article I, section 9, of the Oregon Constitution by searching their garbage after the sanitation collection service collected it and voluntarily turned it over to police.” 204 Or App at 440. It then relies on dictum in Galloway to demonstrate that defendants had no possessory interest in their garbage and on State v. Purvis, 249 Or 404, 438 P2d 1002 (1968), to demonstrate that defendants had no privacy interest.
Neither of those cases compels the majority’s conclusions. The Galloway dictum is not controlling because, in that case, we did not reach the dispositive question here; Galloway implies that a person has no possessory interest in refuse after it is picked up, but the case does not address the question whether people might retain a privacy interest. Generally, government interference with a person’s posses-sory interest in property constitutes a seizure, not a search. State v. Owens, 302 Or 196, 207, 729 P2d 524 (1986). A person who loses his or her possessory interest in a closed container nonetheless maintains a privacy interest in the contents of the container thereafter unless the container “announce [s its] contents,” id. at 206, or the same authority that authorized the seizure also authorized a search, see *455State v. Munro, 339 Or 545, 552, 124 P3d 1221 (2005). Neither of those exceptions applies here.6 Thus, even if defendants lost their possessory interest in the garbage when the collectors took it, as Galloway implies, that does not mean that they also lost their privacy interest.
To demonstrate that defendants lost their privacy interest, the majority relies on Purvis. In that case, police recruited hotel housekeepers to collect trash from the defendant’s room and turn it over to them. The housekeepers found and turned over a marijuana cigarette butt that the defendant had left on the floor. The Supreme Court held that, in those circumstances, the police did not violate the Fourth Amendment. 249 Or at 411. Purvis does not apply to the present case for two reasons. First, the police conduct in Purvis differed materially from the conduct in the present case. In Purvis, the defendant apparently casually discarded the evidence and left it exposed to anybody who happened to be in the room. The garbage in the present case, in contrast, was placed in a closed container with the expectation that it would remain obscured until it was commingled with other garbage and therefore not easily retrieved and identifiable. Purvis would be relevant, in other words, if police had seized and inspected loose trash that defendants had strewn about their lawn.
Second, Purvis is clearly a Fourth Amendment case: there is only one passing reference to the state constitution (“the Fourth Amendment and its counterpart in our own constitution,” id. at 409), and that reference occurs in the context of a statement about what hypothetically would be unconstitutional in a different case. All of the cases cited in support of the court’s reasoning are federal cases. Even the court’s incidental discussion of the exclusionary rule, id. at 409 n 2, indicates that the rule has a deterrent rationale and not a remedial one — an observation that is true of the Fourth Amendment exclusionary rule but not the Article I, section 9, *456exclusionary rule. State v. McMurphy, 291 Or 782, 785, 635 P2d 372 (1981). “[TJhere is no presumption that interpretations of the Fourth Amendment by the Supreme Court of the United States are correct interpretations of Article I, section 9.” Campbell, 306 Or at 164 n 7. In fact, the Fourth Amendment analysis of whether police conduct amounts to a violation of a person’s privacy differs significantly from the analysis under Article I, section 9, id. at 170-71, and whether or not the kind of police conduct that occurred in Purvis implicates Article I, section 9, is an open question. We are free to ignore Purvis in resolving that question, and we should do so. See State v. Caraher, 293 Or 741, 750-52, 653 P2d 942 (1982) (court’s Fourth Amendment precedents on an issue irrelevant in deciding same issue under Article I, section 9).
In sum, I am unwilling to endorse a rule under which government authorities — for good reason, bad reason, or no reason at all — are free, through the expedient of recruited civilians, surreptitiously to arrange for the seizure and subsequent inspection and analysis of the contents of garbage containers that people leave at curbside for pickup and delivery to the dump or recycling facility. Such a rule would result in an unwarranted and significant reduction in the people’s freedom from unwanted scrutiny. For that reason, I conclude that officials may not engage in such conduct without a warrant or circumstances justifying an exception to the warrant requirement. It bears repeating that if police have good reason to believe that the garbage will yield the fruits, evidence, or instrumentalities of crime, then they can obtain lawful authority to search by using the procedure that the framers established to ensure that the people would be secure against unreasonable searches: they can obtain a warrant from a neutral and detached magistrate. Police in this case had no warrant, and the state does not argue that some exception to the warrant requirement applied. The search was unlawful, and the evidence derived from it should have been suppressed. I therefore dissent.
Armstrong and Wollheim, JJ., join in this dissent.The police were correct: After this case was briefed, we held that government officials may not seize curbside garbage cans without a warrant or circumstances establishing an exception to the warrant requirement. State v. Galloway, 198 Or App 585, 598, 109 P3d 383 (2005). Defendants do not argue that police are also prohibited from circumventing that constitutional limitation on their authority by recruiting private citizens to conduct the seizure for them. That remains an open question under the Oregon Constitution.
Although the trial court found that the garbage can was taken from an area that was “public,” the court explained that it meant only that it was open to the public. Howard’s uncontradicted testimony was that the garbage can was on her property.
The garbage seizure and inspection occurred during a police investigation into criminal conduct, and the issue of the inspection’s legality arose in the adjudication of a motion to suppress evidence. Those facts are not relevant to the underlying legal issue, which is whether “the people” have a possessory or privacy interest in the contents of their curbside garbage containers. More importantly, stating the facts so as to abstract the generally applicable legal issue from the criminal context in which it is embedded allows the discussion to focus on the fact that Article I, section 9, is a fundamental guarantee to “the people” that government will not unreasonably invade their privacy.
The majority argues that the Campbell rule does not apply here because this case does not involve a police trespass or a technological enhancement. 204 Or App at 447. However, the Supreme Court applied the rule in State v. Nagel, 320 Or 24, 29, 880 P2d 451 (1994) (field sobriety test is search), which involved neither a trespass nor a technological enhancement. Similarly, we applied the rule in State v. Fortmeyer /Palmer, 178 Or App 485, 491-92, 37 P3d 223 (2001), to hold that a police officer in a public area who used his naked eye to peer into a home conducted a search. The majority also notes that I do not discuss State v. Tanner, 304 Or 312, 745 P2d 757 (1987). That case was decided before Campbell, and its musings about hypothetical situations cannot supersede Campbell’s later and more definitive statement.
Those who might take comfort in the belief that garbage searches happen only rarely and only to bad people should note that, in the present case, the officer who recruited Howard’s garbage collector conceded that he did not believe that he had probable cause to suspect that Howard had committed a crime; rather, he conducted the search after learning that Howard “at least twice during the past several months” had purchased unusual quantities of iodine, which is not only a precursor ingredient of methamphetamine but also an item with obvious innocent uses (as are, for example, paper coffee filters, another item that, according to the officer, is frequently purchased by methamphetamine manufacturers). Further, as the following colloquy demonstrates, the search of Howard’s garbage was one instance of what is apparently a common practice:
“Q [by the deputy district attorney]: And when you did look through the garbage can what kinds of things were you looking for?
“A [by Detective Welch]: Well, since I work in narcotics I look for any— anything that could possibly be reía — narcotic related, written notes of drug transfers perhaps, sales receipts from stores that would indicate items that were purchased. In some stores there’s — you have little discount cards that when you run it through to purchase things that name will appear on the receipt in some stores. I look for plastic baggies or any type of container that might have contained a controlled substance, and in some cases I’ll even field test those items to see if in fact it is either yes or no. I look for precursor chemicals that can be purchased at any local store that can be used to manufacture methamphetamine. In some cases — obviously plants. I find marijuana stems in garbages that I’ve obtained through the same way, and I look for any evidence of narcotic crimes.
“Q: And in addition to that do you look for evidence that can help you establish (inaudible) are?
“A: Yes. I occasionally come across mail addressed to that actual house, and in some cases addressed to even other homes, which shows usually the address and the name of the person that it’s addressed to at that house.”
Thus, one may attract the scrutiny of government officials by making an occasional bulk purchase of iodine, coffee filters, Heet Fuel, Benadryl, isopropyl alcohol, wooden matches, or baggies (all items the officer swore were associated with manufacturing and distributing methamphetamine). One who has done so may or may not have had his or her garbage searched, and, during that search, the searchers may have found, inspected, and retained checks, papers, documents, mail, envelopes, letters, receipts, utility and telephone bills, handwritten notes and records, phone numbers, credit card numbers, and bank account numbers (all items that the officer either seized or had authority to seize if he found them).
The state’s assertion that defendants’ garbage container lawfully could be opened because it “announced” that it contained garbage makes as much sense as arguing that a seized briefcase can be opened because it announces that it contains papers or that a seized suitcase can be opened because it announces that it contains things people take when they travel. Unless the exception is to swallow the rule, the “announcement” must be a good deal more specific.