Oregon Supreme Ct - Dec 31, 2015
by: Abassos • December 31, 2015 • no comments
Consent Search - Actual Authority is Still a Requirement For Consent
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 that the longstanding rule should be abandoned; that a consent search should pass constitutional muster if the police gained consent to search from someone who they reasonably believed to have authority to consent. The court unanimously declines to take the state up on its offer to consider overturning precedent because the issue was insufficiently developed, partly because the state made different arguments at the trial court and court of appeals.
At a deeper level, however, the various members of the court seem to be signaling their willingness to take up the issue. J. Landau, joined by J. Kistler, is most transparent in suggesting to district attorneys the specific arguments that ought to be raised and how to do it. J. Landau would like to see a developed argument that a new exception should be created for officers who have acted reasonably and in good faith in obtaining what they believe to be valid consent to search. The opinion 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".
Technically, the court declines to decide the issue, but functionally dismantles the state’s argument, pointing out that several cases are "inconsistent with the premise that the validity of consent can be controlled by what the police reasonably but mistakenly believe based on facts available to them when they decide to search."
