State v. Blair
| Decision Date | 25 May 2016 |
| Docket Number | A156756 |
| Citation | 380 P.3d 313,278 Or.App. 512 |
| Parties | State of Oregon, Plaintiff–Respondent, v. Danny Lee Blair, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.
, J.
Defendant appeals a judgment of conviction for one count of possession of a Schedule I controlled substance, ORS 475.752(3)(a)
, entered upon his conditional no contest plea. He assigns error to the trial court's denial of his motion to suppress evidence found during a warrantless search of his backpack and a closed grocery bag within the backpack. Defendant argues that the state did not prove that he voluntarily consented to the search, or, if he did voluntarily consent to the search of his backpack, that the scope of his consent extended to the closed bag inside. We need not address whether defendant's consent to the search of his backpack was voluntary, because, in any event, the state did not meet its burden of establishing that any such consent extended to the closed bag within the backpack. Because we conclude that the trial court erred in denying defendant's motion to suppress, we reverse and remand.
We take the relevant facts in this case, which are simple and undisputed, from the suppression hearing. On March 12, 2013, the Tillamook County undersheriff and several sheriff's deputies responded to a report that armed suspects were chasing a man in a public park. Upon arriving at the scene, they found defendant, the alleged victim of the attack, who was very unkempt, dirty, and scratched. He appeared to have run through a blackberry patch and to have been digging in the dirt with his hands. Initially, Based upon defendant's demeanor and the circumstances, the responding officers suspected that the story about an armed attack “was probably not completely true.”
While speaking with the officers, defendant mentioned that he had “left some stuff up at the park, [including] a backpack, and had lost his sweatshirt.” Sergeant Jackson suggested, “let's [not] lose your stuff,” and, because defendant did not want to retrieve his backpack alone, Jackson went with him to find it. Defendant became “a little more coherent” as he walked with Jackson, and he was able to locate his backpack without difficulty.
After finding the backpack, Jackson asked defendant whether he could search it. Defendant responded, “[Y]eah, go ahead.” Jackson opened the backpack and found within it a knotted, opaque, Fred Meyer grocery bag. Upon opening that bag, Jackson found a Ziploc bag containing psilocybin mushrooms. Defendant saw Jackson remove the Ziploc bag, at which point defendant said, “[S]hit, those aren't mine.”
The state charged defendant with unlawful possession of a Schedule I controlled substance. Defendant moved pretrial to suppress the mushrooms found during the warrantless search of his backpack and initially argued only that his consent to the search had been involuntary, because he had been under the influence of hallucinogenic mushrooms at the time it was given. At the suppression hearing, defendant added, without objection from the state, that, even if he had voluntarily consented to the search of his backpack, Jackson had exceeded the scope of his consent by opening the closed bag within the backpack.
At the hearing, Jackson described the events detailed above and testified that the overall atmosphere of his encounter with defendant leading up to the search had been “amicable.” Jackson had not used or threatened physical force, and he had not yelled at defendant. He said that he had displayed his badge and, most likely, his firearm, but that he had not been in uniform. Jackson explained that, at some point during the encounter, he had begun to suspect that defendant was under the influence of methamphetamine and experiencing delusions. As a result, when he had asked whether he could search defendant's backpack, he had intended to look for weapons and controlled substances. However, Jackson had not conveyed to defendant his intent to look for those things.
Defendant presented the testimony of a toxicology expert, Meneely, who had reviewed Jackson's report and watched a recording of an interview with defendant. Meneely testified that defendant's behavior had been consistent with that of a person under the influence of psilocybin mushrooms and that a person thus affected might not have been able to understand what was happening around him or even grasp reality. Meneely further testified that, in his opinion, a person under the influence of psilocybin mushrooms does not have the “rational decision making” ability to consent to a legal request. When asked whether the use of psilocybin mushrooms could lead to various states of intoxication, Meneely testified,
At the conclusion of the hearing, the trial court denied defendant's motion to suppress. The court concluded that defendant had voluntarily consented to the search of his backpack, despite any apparent drug use. With regard to the scope of consent, the trial court reasoned that defendant was “there when [the backpack was] searched and the consent wasn't revoked.” Therefore, the court determined that Jackson had not exceeded the scope of defendant's consent by opening the Fred Meyer bag. Following that ruling, defendant entered a conditional no contest plea pursuant to ORS 135.335
(authorizing conditional pleas), and the court entered a judgment of conviction for possession of a Schedule I controlled substance.
On appeal, defendant assigns error to the denial of his motion to suppress and reprises the two arguments he made to the trial court. The state counters that, based on the totality of the circumstances, the trial court did not err in concluding that defendant was sufficiently coherent to give voluntary consent and that, because defendant neither withdrew his consent nor limited its scope, his consent implicitly encompassed the entire backpack, including any closed containers within it. We conclude that the trial court erred in determining that defendant's consent encompassed the grocery bag within his backpack. Due to our conclusion that suppression is required because Jackson's search exceeded the scope of defendant's consent, we do not address defendant's argument regarding voluntariness.
The Oregon Constitution guarantees persons the right to be free from unreasonable searches. Or. Const., Art. I, § 9
; see
State v. Davis , 295 Or. 227, 229 & n. 4, 666 P.2d 802 (1983). A warrantless search is presumptively unreasonable. Davis , 295 Or. at 237, 666 P.2d 802. However, a warrantless search is not unreasonable if it is authorized by a recognized exception to the warrant requirement; voluntary consent is one such exception. State v. Bea , 318 Or. 220, 229, 864 P.2d 854 (1993)
. When the state relies on consent to justify a warrantless search, it bears the burden of establishing that it complied with any limitations on the scope of consent. State v. Harvey , 194 Or.App. 102, 106, 93 P.3d 828
, rev. den. , 337 Or. 657, 103 P.3d 640 (2004). Thus, under Article I, section 9, we must evaluate whether defendant's consent to a search of his backpack, if voluntarily given, also authorized an intrusion upon defendant's separate privacy interest in the closed container within the backpack. Cf.
State v. Delong , 275 Or.App. 295, 301, 365 P.3d 591 (2015), rev. den. , 359 Or. 39, ––– P.3d –––– (2016) (). We review that question for legal error. Id. at 300, 365 P.3d 591.
“The 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.” Id . at 301, 365 P.3d 591
(internal quotation marks and alterations omitted).1 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. See id. ; Harvey , 194 Or.App. at 106, 93 P.3d 828. That inquiry is fact specific, and we consider, among other factors, the specific request made, the stated object of the search, and the surrounding circumstances. Delong , 275 Or.App. at 301, 365 P.3d 591 (describing those factors); State v. Fugate , 210 Or.App. 8, 13, 150 P.3d 409 (2006) (same); State v. Jacobsen , 142 Or.App. 341, 349–50, 922 P.2d 677 (1996) (same).
Those factors help establish the scope of consent, because they indicate what the requesting officer was looking for and, therefore, the areas that a person might reasonably have expected to be searched when consent was given. If an officer could not reasonably have expected the items sought to be found within a given location, no reasonable person would have understood consent to extend to that location. See Delong , 275 Or.App. at 302, 365 P.3d 591
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State v. Blair
...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 generali......
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