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Oregon Supreme Ct - June 15, 2017

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by: Sara Werboff • June 19, 2017 • no comments

Search and Seizure - Scope of Consent is Determined by Defendant's Actual Intent

The court concludes that remand is required in order for the trial court to find, as a factual matter, whether defendant consented to a search of a closed container in his backpack. Defendant called the police to report that armed men were chasing him through a public park. The police arrived and quickly determined that the report was not true. An officer accompanied defendant to find his backpack. The officer wanted to search the backpack for controlled substances, but did not convey that to defendant. Instead the officer asked defendant if he could search his backpack and defendant said yes. The officer opened the backpack and then opened a knotted, opaque grocery bag inside the backpack, finding hallucinogenic mushrooms. On appeal, the Court of Appeals concluded that the state failed to establish that defendant consented to a search of the closed container in his backpack, explaining that a reasonable person would not have understood the exchange between the officer and defendant to encompass the search of closed containers. On review, the state argued that when closed containers are "nested," a generalized request for consent allows an officer to open all closed containers unless circumstances show that the scope of consent was more limited.

The Supreme Court rejects the state's proposed rule, but adopts a different rule than the Court of Appeals. The court explains that under Article I, section 9, a valid consent requires the defendant to relinquish a privacy interest, and therefore the scope of the consent depends on the defendant's actual understanding and intent. Therefore, whether a defendant consented to a search is a factual question. In determining whether a particular search falls within the scope of defendant's consent, the trial court will determine, based on the totality of circumstances, what the defendant actually intended. But, when defendant's intent is unambiguously expressed, that manifestation of intent is controlling.

The state's proposed rule - when an officer requests to "search" a person would recognize that as encompassing a request to open all closed containers - does not adequately account for other circumstances that would bear on defendant's intent. In this case, the court concludes that defendant's intent is ambiguous. This is the case even though defendant did not object when the officer opened the closed container. The court notes that there is no evidence that defendant had an opportunity to open the closed container, and so that is not an unambiguous manifestation of consent.

State v. Blair, 361 Or 527 (2017) (Brewer, J.)