State v. Lambert

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Appellant, v. Aaron Scott LAMBERT, also known as Scott Lambert, Respondent. C 92-12-37163; CA A79534.
• Citation: State v. Lambert, 894 P.2d 1189, 134 Or.App. 148 (Or. App. 1995)
• Court: Oregon Court of Appeals
• Decision Date: 26 April 1995

Page 1189

894 P.2d 1189

134 Or.App. 148

STATE of Oregon, Appellant, v. Aaron Scott LAMBERT, also known as Scott Lambert, Respondent.

C 92-12-37163; CA A79534.

Court of Appeals of Oregon.

Argued and Submitted June 29, 1994.

Decided April 26, 1995.

Jonathan H. Fussner, Asst. Atty. Gen., argued the cause for appellant. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Diane L. Alessi, Deputy Public Defender, argued the cause for respondent. On the brief were Sally L. Avera, Public Defender, and David K. Allen, Deputy Public Defender.

Before WARREN, P.J., and EDMONDS and LANDAU, JJ.

LANDAU, Judge.

The state appeals the trial court's order suppressing evidence seized from an apartment that was searched with the consent of one of its occupants. The trial court held that the occupant did not have the authority to consent. We disagree and reverse.

In response to information about illegal drug activity at apartment number 114 of a northwest Portland apartment complex, officer Uehara and two other Portland police officers arrived at that apartment and knocked on the door. A woman who identified herself as Jessica Babcock answered the door. Uehara asked Babcock if she lived there, and Babcock said that she did. Uehara asked if Babcock would talk to them in the hall, and Babcock said that she would. Uehara explained to Babcock that he and the other officers had been informed that illegal drug activities were occurring at the apartment, and asked if the officers could enter the apartment and look around. Babcock replied that the officers could do that.

The officers entered the apartment, and Uehara asked Babcock if he could look at her belongings. Babcock agreed and retrieved her belongings from her room. As Uehara searched Babcock's belongings, one of the other officers observed defendant standing partly behind the door to an adjacent room. The officer asked defendant what he was doing behind the door, and defendant replied that he was not hiding from anything. The officer asked defendant if he could come out from behind the door, and defendant did so. Uehara then asked Babcock if defendant lived in the room from which he had just emerged, and Babcock replied that he did. At that point, defendant went back into his room. As he did, Uehara shined his flashlight into the doorway and saw next to a bed a spoon that contained white powder and hypodermic needles with caps. Uehara immediately entered the room, arrested defendant and seized the spoon of white powder, the hypodermic needles and caps, as well as other items. Uehara read defendant his Miranda warnings and then asked defendant if he lived at the apartment. Defendant replied that he did not live at the apartment and was only a visitor.

Defendant was charged with unlawful possession of a controlled substance. He moved to suppress any evidence obtained from the search, because the police did not obtain valid consent to search the premises. Defendant argued that, according to the rental agreement for the apartment, the lawful tenant of the apartment was Kent Johnson, and the agreement allowed no other persons to occupy the apartment. On the basis of the agreement, defendant concluded that Babcock could not lawfully consent to the search of the premises, because she was not lawfully there in the first place. The trial court agreed and granted defendant's motion.

On appeal, the state argues that the trial court erred in suppressing the evidence seized from the apartment. According to the state, the proper test of the validity of Babcock's consent is whether she possessed "common authority" over the apartment, as evidenced by her joint access to or control of the premises. Whether Babcock violated the terms of a rental agreement in obtaining joint access or control of the premises, the state argues, simply is irrelevant. Defendant disagrees, insisting that only a person with actual, legal authority to be on the premises may consent to a search of a residence. According to defendant, the rental agreement shows that the tenant, Johnson, had such authority, and there is no evidence that he had delegated that authority to Babcock.

We review the trial court's findings of historical fact for evidence in the record. State v. Stevens, 311 Or. 119, 126-27, 806 P.2d 92 (1991). We then determine whether the trial court correctly applied legal principles to those findings of historical fact. Id.; State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). In this case, neither party takes issue with the trial court's findings of historical fact; the challenge is directed at the legal conclusions it draws from those facts.

Consent is one of the recognized exceptions to the general rule that, under both the Fourth Amendment and Article I, section 9, of the Oregon Constitution, a warrantless search is per se unreasonable. State v. Lynch, 94 Or.App. 168, 171, 764 P.2d 957 (1988). Consent may be given by the person whose activities or belongings are the subject of the search or, in some cases, by a third party. Id. at 171-72, 764 P.2d 957. The Oregon Supreme Court described the test for determining whether a third party has validly given consent under the Fourth Amendment in State v. Carsey, 295 Or. 32, 664 P.2d 1085 [134 Or.App. 152] (1983). Adopting the reasoning of the United States Supreme Court in United States v. Matlock, 415 U.S. 164, 171 n. 7, 94 S.Ct. 988, 993 n. 7, 39 L.Ed.2d 242 (1974), the court held that valid third-party consent...