State v. Carrillo

The authority of third-party consent to a search “rests . . . on mutual use of the property by persons, generally having joint access or control for most purposes . . . it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection[.]” State v. Jenkins, 179 Or App 92, 101, 39 P3d 868 (2002).

Defendant appealed a conviction involving domestic violence.  Defendant challenged the trial court’s (1) denial of a motion to suppress evidence found in his bedroom, (2) admission of evidence concerning prior acts of domestic violence, and (3) the denial of a motion for acquittal of two counts of unlawful use of a weapon (UUW).  On appeal, Defendant argues the trial court erred in its denial of his motion to suppress because the Defendant’s current intimate partner, A, lacked requisite authority to consent to the search.  The authority of third-party consent to a search “rests . . . on mutual use of the property by persons, generally having joint access or control for most purposes . . . it is reasonable to recognize that any of the coinhabitants has the right to permit the inspection[.]” State v. Jenkins, 179 Or App 92, 101, 39 P3d 868 (2002).  The Court reasons that it is common authority, not legal ownership, that provides the authority to consent to a search.  Therefore, A, established common authority because A lived in the house and shared the bedroom with Defendant for six years.  The Court concluded it was harmless error in admitting evidence of Defendant’s history of domestic violence in light of more formidable evidence showing Defendant’s tendency to perpetrate domestic violence against A.  Finally, the Court determined that the trial court erred in denying Defendant’s motion for judgment of acquittal because the Defendant was entitled to such a judgment given a lack of evidence surrounding the UUW charges.  Convictions for UUW reversed; remanded for resentencing; otherwise affirmed.