State v. Venet

The majority states that defendant did not raise below the issue of whether the flyover was a purposeful search that violated Article I, section 9. During the omnibus hearing, defendant questioned the lawfulness of the aerial observation and explicitly cited Article I, section 9, as authority. On appeal, defendant claims that the flyover violated Article I, section 9. Both below and here, defendant did enough to raise the issue.

To bolster its refusal to consider defendant’s position respecting the flyover, the majority cites State v. Hitz, 307 Or 183, 766 P2d 373 (1988). That case, however,…