consent exception in Oregon

2013One such exception is voluntary consent to search: “Under the consent exception to the warrant requirement, the state must prove by a preponderance of the evidence that someone having the authority to do so voluntarily gave the police consent to search the defendant’s person or property and that any limitations on the scope of the consent were complied with.” State v. Weaver, 319 Or 212, 219 , 874 P2d 1322 (1994) (citing State v. Paulson, 313 Or 346, 351-52 , 833 P2d 1278 (1992)).

2013One such exception is voluntary consent to search: “Under the consent exception to the warrant requirement, the state must prove by a preponderance of the evidence that someone having the authority to do so voluntarily gave the police consent to search the defendant’s person or property and that any limitations on the scope of the consent were complied with.” State v. Weaver, 319 Or 212, 219 , 874 P2d 1322 (1994) (citing State v. Paulson, 313 Or 346, 351-52 , 833 P2d 1278 (1992)).

2023“In a contested adoption, the requirement that the court find by clear and convincing evidence an express statutory exception to the consent requirement is a matter of extreme importance because, when the adoption is com- plete, ‘every right and interest of the natural parent’ in the child is terminated.” Eder, 312 Or at 260 (quoting Zockert, 310 Or at 518 ).

1994ORS 109.312; Zockert v. Fanning, 310 Or 514, 518 , 800 P2d 773 (1990).

2020Under the consent exception to the warrant require- ment, the state must prove by “a preponderance of the Cite as 304 Or App 329 (2020) 337 evidence” that the consent was actually given “under the totality of the circumstances.” State v. Jepson, 254 Or App 290, 294 , 292 P3d 660 (2012).

2020Under the consent exception to the warrant require- ment, the state must prove by “a preponderance of the Cite as 304 Or App 329 (2020) 337 evidence” that the consent was actually given “under the totality of the circumstances.” State v. Jepson, 254 Or App 290, 294 , 292 P3d 660 (2012).

1999Also instructive is the Oregon Supreme Court’s reference in Carsey to the United States Supreme Court’s discussion in United States v. Matlock, 415 US 164 , 94 S Ct 988 , 39 L Ed 2d 242 (1974): “The Matlock rule rests upon the premise that one who jointly occupies premises assumes the risk that the co-occupant ‘might permit the common area to be searched.’ * * *. “* * * The Matlock exception is not a good faith exception to the warrant requirement; it is a consent exception resting upon the assumption that joint use or occupancy of the premises by the consenting party creates a species of assu

1999Also instructive is the Oregon Supreme Court’s reference in Carsey to the United States Supreme Court’s discussion in United States v. Matlock, 415 US 164 , 94 S Ct 988 , 39 L Ed 2d 242 (1974): “The Matlock rule rests upon the premise that one who jointly occupies premises assumes the risk that the co-occupant ‘might permit the common area to be searched.’ * * *. “* * * The Matlock exception is not a good faith exception to the warrant requirement; it is a consent exception resting upon the assumption that joint use or occupancy of the premises by the consenting party creates a species of assu

1993State v. Stevens, 311 Or 119, 136-37 , 806 P2d 92 (1991).” (Emphasis in original; some citations omitted.) In the present case, the trial court found as fact, “in accordance with” the officer’s testimony, that defendant consented to the search of his person.

1993State v. Stevens, 311 Or 119, 136-37 , 806 P2d 92 (1991).” (Emphasis in original; some citations omitted.) In the present case, the trial court found as fact, “in accordance with” the officer’s testimony, that defendant consented to the search of his person.

2020For us to determine whether the alleged consent was “actually” given, “the state must establish with some precision how the law enforcement offi- cers make a request of a defendant[.]” State v. Musalf, 280 Or App 142, 152-53 , 380 P3d 1087 (2016) (citing State v. Warner, 284 Or 147, 161 , 585 P2d 681 (1978) (“[A]ppellate courts must know what the state’s witnesses contend was actually said, in order for appellate courts to discharge their consti- tutional function in determining the validity of consent.”)).

2020For us to determine whether the alleged consent was “actually” given, “the state must establish with some precision how the law enforcement offi- cers make a request of a defendant[.]” State v. Musalf, 280 Or App 142, 152-53 , 380 P3d 1087 (2016) (citing State v. Warner, 284 Or 147, 161 , 585 P2d 681 (1978) (“[A]ppellate courts must know what the state’s witnesses contend was actually said, in order for appellate courts to discharge their consti- tutional function in determining the validity of consent.”)).

1997As authority for that proposition, petitioners and the dissent rely on dictum from three Supreme Court cases: Simons v. Smith, 229 Or 277 , 366 P2d 875 (1961), Moody v. Voorhies, 257 Or 105 , 475 P2d 579 (1970), and Eder v. West, 312 Or 244 , 821 P2d 400 (1991).

1997As authority for that proposition, petitioners and the dissent rely on dictum from three Supreme Court cases: Simons v. Smith, 229 Or 277 , 366 P2d 875 (1961), Moody v. Voorhies, 257 Or 105 , 475 P2d 579 (1970), and Eder v. West, 312 Or 244 , 821 P2d 400 (1991).

1997As authority for that proposition, petitioners and the dissent rely on dictum from three Supreme Court cases: Simons v. Smith, 229 Or 277 , 366 P2d 875 (1961), Moody v. Voorhies, 257 Or 105 , 475 P2d 579 (1970), and Eder v. West, 312 Or 244 , 821 P2d 400 (1991).

1997As authority for that proposition, petitioners and the dissent rely on dictum from three Supreme Court cases: Simons v. Smith, 229 Or 277 , 366 P2d 875 (1961), Moody v. Voorhies, 257 Or 105 , 475 P2d 579 (1970), and Eder v. West, 312 Or 244 , 821 P2d 400 (1991).

2025“We review a trial court’s denial of a motion to sup- press for legal error, and we are bound by the trial court’s fac- tual findings if there is constitutionally sufficient evidence in the record to support them.” State v. Wampler, 325 Or App 722, 726 , 530 P3d 133 , rev den, 371 Or 477 (2023).

2025“We review a trial court’s denial of a motion to sup- press for legal error, and we are bound by the trial court’s fac- tual findings if there is constitutionally sufficient evidence in the record to support them.” State v. Wampler, 325 Or App 722, 726 , 530 P3d 133 , rev den, 371 Or 477 (2023).

2022Then, the state must establish (3) the scope of consent given, and finally, (4) that the search conducted did not exceed the scope of the consent given.” State v. Tennant, 310 Or App 70, 75 , 483 P3d 1226 (2021) (footnote omitted).

2022Then, the state must establish (3) the scope of consent given, and finally, (4) that the search conducted did not exceed the scope of the consent given.” State v. Tennant, 310 Or App 70, 75 , 483 P3d 1226 (2021) (footnote omitted).

2020We conclude that it does not. * * * [I]t likely would have been futile for the state to raise a consent-based apparent authority theory before the Court of Appeals, because that court previously had held that only actual authority can satisfy the consent exception. * * * As a practical matter, Cite as 303 Or App 107 (2020) 113 the state was in a poor position to make its consent-based apparent authority argument to any Oregon tribunal other than this court, which has not directly addressed that issue.” (Internal citations omitted.) In keeping with Bonilla, we will consider a litigant’s challen

2020Under the consent exception to the warrant require- ment, the state must prove by “a preponderance of the Cite as 304 Or App 329 (2020) 337 evidence” that the consent was actually given “under the totality of the circumstances.” State v. Jepson, 254 Or App 290, 294 , 292 P3d 660 (2012).

2020Under the consent exception to the warrant require- ment, the state must prove by “a preponderance of the Cite as 304 Or App 329 (2020) 337 evidence” that the consent was actually given “under the totality of the circumstances.” State v. Jepson, 254 Or App 290, 294 , 292 P3d 660 (2012).

2019App. at 120 , 360 P.3d 603 ("In part, the consent requirement is to protect the defendant by assuring that waiver is voluntary and understandingly made with knowledge by the party of his or her rights." (Internal quotation marks and brackets omitted.)).

2017Id. at 505-06 .

2016Cite as 360 Or 403 (2016) 413 and his bedroom satisfied the consent exception to the war- rant requirement.

2015Instead, the court’s discretion to consent is exercised to “take care to ensure that the waiver is not ‘the product of duress or misrepresentation.’” Harrell/Wilson, 353 Or at 263 (quoting Huffman v. Alexander, 197 Or 283, 322 , 251 P2d 87 (1952)).

2015In part, the consent requirement is to protect the defendant by assuring that waiver is voluntary and “‘understandingly made with knowledge by the party of his [or her] rights.’ "Id. (quoting Huffman, 197 Or at 322 )).

2015Because the Fourth Amendment doctrine of apparent authority is not anchored on an agency-based theory of consent, and because the state in this case does not contend that defendant engaged in any conduct that would have caused a reasonable person to believe that she had authorized Bull to consent to a search of the wooden box, we need not reach the issue of whether agency-based apparent authority would suffice to satisfy the consent exception under Article I, section 9. 9 The quintessentially “reasonable” way to establish the government’s authority to conduct a nonconsensual search is through

2015Because the Fourth Amendment doctrine of apparent authority is not anchored on an agency-based theory of consent, and because the state in this case does not contend that defendant engaged in any conduct that would have caused a reasonable person to believe that she had authorized Bull to consent to a search of the wooden box, we need not reach the issue of whether agency-based apparent authority would suffice to satisfy the consent exception under Article I, section 9. 9 The quintessentially “reasonable” way to establish the government’s authority to conduct a nonconsensual search is through

2015See, e.g., State v. Fuller, 158 Or App 501, 505 , 976 P2d 1137 (1999) (holding 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 P2d 117 , rev den, 326 Or 68 , 950 P2d 892 (1997) (same).

2015See, e.g., State v. Fuller, 158 Or App 501, 505 , 976 P2d 1137 (1999) (holding 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 P2d 117 , rev den, 326 Or 68 , 950 P2d 892 (1997) (same).

2015See, e.g., United States v. Moran, 214 F3d 950, 951 (8th Cir 2000) (declining to “pursue the intricacies of property and agency law” when the decisive question under Rodriguez “is whether the search was ‘unreasonable’ within the meaning of the Fourth Amendment”); State v. Morse, 156 Wash 2d 1, 12 n 3, 123 P3d 832 (2005) (noting that “apparent authority,” as used under Fourth Amendment, “is quite different than ‘apparent authority’ as used in agency law,” where “apparent authority stems from the principal’s objective manifestation to a third party”). 8 When this court implied in Carsey that act