State v. Ready

Decision Date28 May 1997
PartiesSTATE of Oregon, Respondent, v. Richard Owen READY, Appellant. C920041CR, CA A78407.
CourtOregon Court of Appeals

Craig P. Colby, Portland, argued the cause and filed the brief for appellant.

Janet A. Klapstein, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and RIGGS and HASELTON, JJ.

DEITS, Presiding Judge.

A jury convicted defendant of violating ORS 163.672, 1 possession of a depiction of sexual conduct involving a child. On appeal to this court, he challenged the constitutionality of the statute as violating Article I, section 8, of the Oregon Constitution. He also argued that the trial court erred in denying his motion to suppress evidence obtained as a result of a search of his room and that it erred in denying his motion for a judgment of acquittal on the basis that the state failed to prove that the videos at issue were produced after the enactment of ORS 163.672. Finally, defendant assigned error to the trial court's refusal to give certain requested jury instructions.

Based on our decision in State v. Stoneman, 132 Or.App. 137, 888 P.2d 39 (1994), we concluded that the statute at issue here violated Article I, section 8, and reversed the trial court's order denying defendant's demurrer. In view of our disposition, we did not address the other issues raised by defendant. State v. Ready, 132 Or.App. 422, 888 P.2d 603 (1995). Subsequently, the Supreme Court reversed our decision in Stoneman, concluding that ORS 163.680 (1987) 2 did not violate Article I, section 8, of the Oregon Constitution. State v. Stoneman, 323 Or. 536, 920 P.2d 535 (1996). The Supreme Court remanded this case to us, citing Stoneman. State v. Ready, 323 Or. 645, 919 P.2d 495 (1996).

We did not recite the facts in our previous decision. Consequently, we do so now. In December 1991, officers Julian and Duncan went to defendant's apartment looking for a 16-year-old youth, Lucas Stoner, who lived there and whom the officers suspected had been involved in a recent traffic altercation. When they knocked on the door to the apartment, Stoner answered. He told the officers that he and his "dad" 3 lived in the apartment. Officer Duncan asked Stoner if they could look for a serape jacket that might tie him to the altercation. Stoner told them to "go ahead," and that they would not find the jacket.

Duncan first searched in a room that he described as appearing to belong to a young person because it was "messy" and had posters of rock groups on the wall. Duncan then approached the closed door to defendant's bedroom and asked Stoner for permission to enter that room to look for the jacket. Stoner told the officers to "Go ahead and look." While in the bedroom, the officers saw at least one photograph of what appeared to be a partially-clad youth and, inside a closet, through the open door, they saw a box of videotapes with such hand-scribed titles as "kid porn from Larry--movies then stills" and "Hot High and Horny--my porn from Larry." The titles of the videotapes were visible from a position outside of the closet. The officers contacted a sergeant in their office and, after consulting with him, seized the videotapes. Before leaving the apartment, they viewed the videos to verify that they, in fact, contained images of child pornography.

Defendant moved to suppress the evidence obtained as a result of the search of his bedroom. The trial court denied the motion. On appeal, defendant does not contest that Stoner consented to the search of the apartment, including defendant's bedroom. He argues, however, that the trial court erred in concluding that the consent was valid because Stoner did not have "actual authority" to consent to the search of defendant's bedroom, which, he argues, is necessary to justify a search of premises based on the consent of a third party.

Defendant is correct that when the state relies on the consent of a third party to justify a search under Article 1, section 9, of the Oregon Constitution, the third party must have actual authority to consent. Lincoln Loan Co., v. City of Portland, 138 Or.App. 688, 691, 909 P.2d 1243, rev. den. 323 Or. 136, 916 P.2d 311, cert. den. --- U.S. ----, 117 S.Ct. 390, 136 L.Ed.2d 306 (1996); State v. Will, 131 Or.App. 498, 504, 885 P.2d 715 (1994). There are a number of factors that must be considered to determine whether a third party has actual authority to give consent. A critical factor is whether that person has " 'common authority' as evidenced by that person's 'joint use or occupancy of the premises.' " State v. Lambert, 134 Or.App. 148, 152, 894 P.2d 1189 (1995), quoting State v. Carsey, 295 Or. 32, 44-45, 664 P.2d 1085 (1983). Circumstances involving consent by family members or children may require additional considerations. When a child purportedly gives consent, age is a pertinent factor in the inquiry. Will, 131 Or.App. at 505, 885 P.2d 715. Where there is a familial relationship between the third party and the person whose premises the officer is requesting consent to search, that relationship may be pertinent in determining if the third party has the requisite control over the area to be searched. Carsey, 295 Or. at 42, 664 P.2d 1085; Will, 131 Or.App. at 505, 885 P.2d 715. 4 Accordingly, the proper focus of the inquiry here under Article I, section 9, is whether, after considering the evidence regarding all of the pertinent factors, Stoner had actual authority to consent to the search.

The above inquiry, including the ultimate question of whether Stoner had actual authority, necessarily involves resolution of factual issues. Lincoln 138 Or.App. at 691, 909 P.2d 1243. We are, of course, bound by the trial court's findings of fact if the evidence supports them. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). Further, if the trial court did not make findings on all of the pertinent facts, and there is evidence from which those facts could be decided more than one way, we will presume that the trial court found them in a manner consistent with its ultimate conclusion. Id. We then determine whether the trial court applied the correct legal principles to those findings. State v. Orlovski, 146 Or.App. 632, 933 P.2d 976 (1997).

The problem here, however, is that the trial court did not use the correct standard under Article I, section 9, in evaluating the evidence and, consequently, did not make all of the pertinent findings. Rather than determining if Stoner had "actual authority" to give consent under these circumstances, the court evaluated whether there was objective evidence supporting the conclusion that Stoner had "apparent authority" to give consent. As the trial court explained:

"Well [United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) ] is probably the law and it's just a question of whether--actually there are two questions. One is whether there is mutual use of the property by persons generally having joint access or control for most purposes, and age is one factor to be used.

"Now then, we come to the slightly different thing about consent of a third party. The police, at the time of entry, reasonably believe he possesses common authority over the premises. What we've been talking about here, to some degree, is what [defendant] says about the access. And I suppose that really doesn't matter very much. I suppose it has some inferential value, but that's about all. The main question is did the police reasonably believe that there was common authority?

"First of all, the police believed that that was dad, because that's what was told to them. We do have a younger person. I've forgotten now how old he was, 16 years of age or something of that sort, 16, 17. And then he said "That's dad's. I live here with my dad." Well, that's reasonable to assume that he is living with his dad. Then the question is consider his age. Well, his age is getting within a couple years of majority or less. He is not some little grade school kid.

"The police have to demonstrate that they reasonably believed that the boy had common authority over the premises. The police, apparently, at some point, were aware that the telephone in the [defendant's] bedroom worked and, apparently, found out the one outside [the bedroom] didn't work very well, so they were, apparently, aware that there was telephone access. And there was some testimony that he had never been prohibited from going in the room.

"I guess another factor to be considered is also the fact that he gave them authority to go ahead and go in there. That is, I believe, a factor to be considered as well as to giving them a belief that he possessed common authority over the premises. And there I think the older age has something to do with this. I don't like very much the notion that police can go in and search somebody's parent's * * * bedroom on the say so of one of the kids, adopted, guardianship, natural kid, exchange students or whatever. I don't like very much that happening.

" * * * * *

"So I think the real question here even goes beyond Matlock's joint access or control. For most purposes, I think it's different than the meter reader or different from the fireman who are letting the police in. It's different than the case I had in Astoria where the fireman happened to be a police officer as well.

"So it seems to me that the police had a reasonable impression that the boy, full-sized fellow, who--that he had the run of the place gave permission, used the phone, the bed was softer, never been prohibited, all of those things I think in this case allowed the police to go in to look for what they were looking for. The closet was open. And they seized, they looked at the video tapes, and I think they had clear authority to seize the things...

To continue reading

Request your trial
35 cases
  • State v. Kruchek
    • United States
    • Court of Appeals of Oregon
    • 28 Octubre 1998
    ...... See Owens, 302 Or. at 206, 729 P.2d 524; State v. Bechtold, 99 Or.App. 593, 783 P.2d 1008 (1989), rev. den. 309 Or. 521, 789 P.2d 1386 (1990). Nor is it a case in which an otherwise concealing container is labeled in a way that reveals its illegal contents. See State v. Ready, 148 Or.App. 149, 939 P.2d 117, rev. den. 326 Or. 68, 950 P.2d 892 (1997) (videotapes labeled "kid porn from Larry--movies then stills" announced contents as contraband). In such cases, the containers in question not only "announce" their contents but do so in a way that announces that contraband ......
  • State v. Sines
    • United States
    • Court of Appeals of Oregon
    • 20 Septiembre 2017
    ......The dissent in Kruchek also relied on State v. Ready , 148 Or.App. 149, 156, 939 P.2d 117, rev den , 326 Or. 68, 950 P.2d 892 (1997), in which we stated that, under Owens , "no warrant is required for the examination of evidence that announces its contents" as contraband and, consequently, held that no warrant was required to watch videotapes ......
  • State v. Bonilla
    • United States
    • Supreme Court of Oregon
    • 31 Diciembre 2015
    ...that consent, for purposes of Article I, section 9, must be given by a "person with the actual authority to do so"); State v. Ready, 148 Or.App. 149, 152–53, 939 P.2d 117, rev. den., 326 Or. 68, 950 P.2d 892 (1997) (same). As a practical matter, the state was in a poor position to make its ......
  • State v. Bellar, 050230673.
    • United States
    • Court of Appeals of Oregon
    • 30 Septiembre 2009
    ......"[W]hen the state relies on the consent of a third party to justify a search under Article I, section 9, of the Oregon Constitution, the third party must have actual authority to consent." State v. Ready, 148 Or.App. 149, 152-53, 939 P.2d 117, rev. den., 326 Or. 68, 950 P.2d 892 (1997) (citations omitted). See also State v. Fuller, 158 Or.App. 501, 506-07, 976 P.2d 1137 (1999) (third party lacked actual authority to consent to the search of the defendant's nightstand, despite her ability to ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT