Nelson v. Driver and Motor Vehicle Services

“A defendant's ‘mere acquiescence’ to police authority does not constitute voluntary consent.” State v. Stanley, 287 Or App 399, 407 (2017) (quoting State v. Berg, 223 Or App 387, 392 (2008)). 

Petitioner appealed a judgment that suspended his driving privileges for three years for failure to consent to a breathalyzer test. Petitioner assigned error to the lower court's determination that the police did not violate Petitioner's Oregon Constitutional rights. On appeal, Petitioner argued that the police entered his bedroom without a warrant or valid consent. In response, the State argued that the owner of the residence voluntarily consented to the officers’ entry into Petitioner's bedroom, based on the owner's conduct. “A defendant's ‘mere acquiescence’ to police authority does not constitute voluntary consent.” State v. Stanley, 287 Or App 399, 407 (2017) (quoting State v. Berg, 223 Or App 387, 392 (2008)). The Court held that the officers did not have valid consent to enter Petitioner’s bedroom as the owner of the residence did not invite the officers into the bedroom, nor was he provided with a reasonable opportunity to choose whether to allow or deny the officers entry into the bedroom.

Reversed.