State v. Blair

Decision Date15 June 2017
Docket NumberSC S064262,CC 131055
Citation396 P.3d 908,361 Or. 527
Parties STATE of Oregon, Petitioner on Review, v. Danny Lee BLAIR, Respondent on Review.
CourtOregon Supreme Court

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Laura E. Coffin, Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, Nakamoto, and

Flynn, Justices.**

BREWER, J.

Before his trial on a charge of possession of a controlled substance, defendant moved to suppress the state's primary evidence—drugs that a police officer found in a warrantless but purportedly consensual search of defendant's backpack—on the ground that they were obtained in violation of Article I, section 9, of the Oregon Constitution. The trial court denied the motion and defendant was convicted. The Court of Appeals reversed and remanded, concluding that defendant's consent to the search of his backpack did not extend to untying and looking into an opaque grocery bag, inside the backpack, in which the drugs were found. State v. Blair , 278 Or.App. 512, 522, 380 P.3d 313 (2016).

The state seeks review of that decision, arguing that defendant's unqualified consent to the police officer's generalized request to search the backpack should be deemed on the record before us to encompass consent to open any closed but unlocked containers found inside. We conclude that the state's argument does not comport with Article I, section 9. We further conclude that the dispositive inquiry is a factual one: Did defendant intend to consent to the search of closed containers inside his backpack? It is unclear whether the trial court so understood the inquiry before it, and, on the record before us, we conclude that opposing inferences permissibly could have been drawn from the evidence as to that issue. Accordingly, we reverse the decision of the Court of Appeals, and we vacate the judgment convicting defendant and remand to the circuit court to reconsider its suppression decision under the correct standard.

I. FACTS AND PROCEDURAL HISTORY

The facts that are relevant to the issue before us are not extensive. Responding to a report of a man being chased by armed attackers, members of the Tillamook County Sheriff's Office encountered defendant, the supposed victim. Defendant was agitated, disheveled, and somewhat incoherent, and the officers were doubtful that he had, in fact, been attacked. Defendant mentioned to one of the officers, Sergeant Jackson, that he had left his backpack "up on the hill" and that he also had lost his sweatshirt. Defendant seemed reluctant to go in search of his belongings by himself, so Jackson went with him.

Defendant located the backpack without difficulty. Jackson then asked defendant, in a casual way, if he could search the backpack. Although he did not say so, Jackson suspected that defendant was under the influence of methamphetamine, and he wanted to see if the backpack contained drugs or weapons. Defendant responded, "Yeah, no problem. Go ahead." Inside the backpack, Jackson saw an opaque, plastic grocery bag that was closed with a knot. Jackson untied the knot and found inside the grocery bag, among other items, a Ziploc bag containing psilocybin mushrooms.

Defendant was charged with unlawful possession of a Schedule I controlled substance, ORS 475.752(3)(a). Before trial, he moved to suppress evidence of the mushrooms on the ground that their discovery was the product of an unconstitutional search under Article I, section 9. The state countered that, because defendant had consented to the search of his backpack, the search did not implicate his rights under Article I, section 9. Defendant did not deny having consented to Jackson's request to search the backpack, but he argued that his consent was not voluntary and that, even if it was voluntary, it did not extend to a search of the contents of the knotted grocery bag inside the backpack.

The trial court denied the motion to suppress, holding that defendant's consent was voluntary and that opening and searching the grocery bag was within the scope of that consent.1 Defendant thereafter entered a conditional no contest plea to the charged offense, and the trial court entered a judgment convicting him.

On appeal, defendant challenged the denial of his motion to suppress, asserting the same arguments that he had raised in the trial court. With respect to the scope of consent issue, the Court of Appeals held that:

"[t]he scope of consent is determined by reference to what a typical, reasonable person would have understood by the exchange between the officer and the suspect in light of the totality of the circumstances surrounding the grant of consent in a particular case. Thus, consent to search a particular location or item extends to closed containers found within that location or inside of that item if, under the totality of the circumstances, a reasonable person would have understood that the consent given included those containers."

Blair , 278 Or.App at 516, 380 P.3d 313 (citations omitted). The court was unpersuaded by the state's argument that, when both a police officer's request and an individual's response are general and unqualified, the scope of consent presumptively includes consent to search closed and unlocked containers found inside the stated object of the search. Id . at 519, 380 P.3d 313. The court held, instead, that an officer's generalized request for consent to search some place or thing does not extend to closed containers inside the place or thing unless the surrounding circumstances would reasonably convey that the officers are searching for something that could be hidden in those containers. Id. at 520, 380 P.3d 313. In the absence of such evidence in the record before it, the court determined that it "[could] not conclude that a reasonable person viewing the exchange would have understood that defendant consented to the search of the knotted grocery bag within his backpack." Id. at 522, 380 P.3d 313. Because the warrantless search of the knotted bag could not be justified under the consent exception, the court concluded, it was unreasonable and, therefore, unlawful, and the evidence obtained therefrom should have been suppressed.2 Accordingly, the Court of Appeals reversed defendant's conviction and remanded.

II. FRAMING THE ISSUE ON REVIEW

This court granted the state's petition for review and, on review, the parties reprise their arguments before the Court of Appeals. The primary issue on review—the scope of consent to a warrantless search under Article I, section 9—has not been a frequent subject of consideration by this court. The Court of Appeals, however, has articulated a test for analyzing scope of consent issues under Article I, section 9, and the parties have couched their arguments in terms of that test. As the Court of Appeals conceives the proper test, when consent is asserted as a justification for a warrantless search, the scope of a person's consent "is determined by reference to what a typical, reasonable person would have understood by the exchange between the officer and the suspect * * * in light of the totality of the circumstances surrounding the grant of consent in a particular case." State v. Delong , 275 Or.App. 295, 301, 365 P.3d 591 (2015), rev. den. , 359 Or. 39, 370 P.3d 1252 (2016) (quoting State v. Harvey , 194 Or.App. 102, 106, 93 P.3d 828 (2004) ).

Although the state does not challenge the substance of the Court of Appeals' test, it argues for a corollary "default" rule in cases, like the present one, that involve "nested" closed containers. It argues, specifically, that when a person manifests apparently unqualified consent to a law enforcement officer's generalized request to search a closed container, that manifestation of consent authorizes the officer to open all closed, unlocked containers inside the item—unless other specific circumstances show that the scope of consent did not extend that far.

The state asserts that the word "search" itself conveys the idea of a thorough, rigorous inspection of a closed container that a reasonable person would understand to include inspecting the contents of additional closed containers inside the item. The state also contends that the mere fact that a request to search comes from a police officer would indicate to a reasonable person that the officer is looking for evidence of illegal activity, including drugs and weapons that might be hidden inside closed containers. In other words, the state reasons, a generalized request by a police officer to search a closed container would in and of itself indicate to a reasonable person that the request includes opening and the inspection of the contents of closed containers inside the item—and an unqualified affirmative answer to such a request should be deemed to constitute consent to the opening and inspection of the contents of such additional containers, unless other, specific circumstances indicate a different understanding and intent.

Defendant replies that the state's proposed corollary rule is inconsistent with the "totality of the circumstances" test that, by the state's own concession, should apply: That is so because it gives dispositive significance to two facts (the use of the word "search" and the requester's status as a police officer), while failing to adequately recognize that the import of those facts may depend on other surrounding circumstances. Defendant also argues that the state's proposed rule would effectively impose on a defendant the burden of producing evidence of lack of consent, rather than placing that burden on the state, where it properly belongs. Defendant posits, based on...

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  • State v. Sines
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    ...state, the state has the burden of proving that the action falls within an exception to the warrant requirement. State v. Blair , 361 Or. 527, 534-35, 396 P.3d 908 (2017). A defendant has "a constitutional right to exclude evidence obtained in violation of Article I, section 9" from a crimi......
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