State v. Solario

Actual authority over an item requires “permission or acquiescence,” State v. Fuller, 158 Or App 501, 507 (1999), which means that a defendant must know that that the third party was exercising control over the defendant’s personal property and did not object to the third-party exercising control over the defendant’s personal property for there to be valid consent to a search of that item.

Solorio appeals from his conviction under ORS 166.270(1), felon in possession of a firearm stating that the trial court erred by denying his motion to suppress evidence of a gun found in his safe, in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment of the U.S. Constitution. Officers asked two third-parties located within a van for permission to search a safe in the car, where they found a gun. When Dawson came to the scene, officers asked her for permission to search the safe and she said yes. On appeal, the issue was whether third party consent was present. Solorio argued the third-parties lacked actual authority, the gun was a fruit of an unlawful search, and Dawson lacked actual authority to consent. The state argued Dawson had joint access to the safe and she properly delegated her access to the third-parties. Consent to a search may be given only by a person with actual authority to consent. State v. Bonilla, 358 Or 475, 480-81, (2015). Dawson had authority over the van, but there was insufficient evidence to support a finding that Dawson had complete control of the safe. Actual authority over an item requires “permission or acquiescence,” State v. Fuller, 158 Or App 501, 507 (1999), which means that a defendant must know that that the third party was exercising control over the defendant’s personal property and did not object to the third-party exercising control over such property. Such evidence was lacking here. Reverse and remanded.