Oregon Supreme Ct - Dec 31, 2015

by: Abassos • December 31, 2015 • no comments

A Consent Search Is Justified Only If Someone Who Had Actual Authority Gave Consent. The Federal Doctrine of Apparent Authority Is Inconsistent With Oregon's Conception of Article I, Section 9.

A consent search is justified only if someone who had actual authority gave consent. This is a longstanding Oregon rule under Article I, Section 9. However, the state argued at the Supreme Court that a consent search should pass constitutional muster if the police gained consent to search from someone who had apparent authority to consent. The majority opinion, written by J. Brewer, rejects the apparent authority argument:

There are two overlapping problems with that approach, both of which stem from the fact that the Fourth Amendment doctrine of apparent authority is based on different principles than those underlying the consent exception under Article I, section 9. First, as discussed, the federal doctrine is premised on the Fourth Amendment precept that a reasonable mistake of fact as to the existence of authority to consent does not render a warrantless search invalid. See Rodriguez, 497 US at 184-86. Under that conception of apparent authority, it is immaterial whether the true owner of property authorized (or even appeared to authorize) a third party to consent to search the property. That is, the reasonableness of a factual mistake as to the consenter’s authority does not depend on any objective manifestation by the true owner; in fact, the police may not even know of the existence of the true owner.7

In contrast, because consent under Article I, section 9, involves the relinquishment of a privacy interest, Brown, 348 Or at 305, it must be given by (or lawfully on behalf of) the person who holds the protected privacy interest. See Weaver, 319 Or at 219 (consent must be given by someone “having the authority to do so.”). For that reason, the existence of valid third-party consent depends either on the third party’s common authority over the property based on her or his own property interest, Carsey, 295 Or at 46, or, alternatively, on the application of agency principles.

Second, and relatedly, the state’s argument fails to recognize that, under Article I, section 9, consent always has been treated differently from other recognized justifications for warrantless searches, including, for example, justifications that are based on an exigency that makes obtaining a warrant infeasible. When an exigency-based exception applies, the lawfulness of a search depends on what a reasonable person would make of the facts known to the officer at the time of the search. Unlike a consent search, what the defendant intended or what authority he or she had is not part of that inquiry.

Ultimately, the court rejects the state's argument that a consent search without actual authority is justified by Article I, Section 9. The majority also declines to consider a fundamental shift in Article I, Section 9 jurisprudence (suggested only in oral argument by the state) because the state's argument "primarily consists of a general appeal to the wording of Article I, section 9 . . . [and] does not meaningfully reckon with this court’s prior jurisprudence discussed above."

J. Landau, joined by J. Kistler, concurs to suggest the specific arguments that ought to be raised by the state to overturn Article I, Section 9 jurisprudence. J. Landau would like to see a developed argument that a new exception should be created for officers who have acted in good faith in obtaining what they believe to be valid consent to search: "I confess that I am hard pressed to understand what makes an officer’s search under those circumstances unreasonable." J. Landau also suggests a broader argument that "would entail abandoning the warrant-preference-and- categorical-exception approach to Article I, section 9, in favor of a post hoc, case-by-case examination of the reasonableness of police conduct." J. Landau indicates he's skeptical of this argument (as opposed to the more narrow consent-specific good faith argument), but "it remains an argument worth carefully considering".

State v Bonilla, 358 Or App 475 (2015).