State v. Tennant

“[A]cquiescence occurs when an individual is not given a reasonable opportunity to choose to consent.” State v. Berg, 223 Or App 387, 392, 196 P3d 547 (2008), adh’d to as modified on recons, 28 Or App 754, 208 P3d 1006, rev den, 346 Or 361 (2009). Additionally, acquiescence may be clear when “a search will occur regardless or whether consent is given.” Id.

Defendant appealed a conviction which was based on a search conducted by two parole officers regarding Defendant’s roommate, who was also on probation. Defendant argued the search was unlawful under Article I, section 9, of the Oregon Constitution because he did not consent to the search, merely acquiesced. The State argued that Defendant’s consent was not the product of coercion or acquiescence. “[A]cquiescence occurs when an individual is not given a reasonable opportunity to choose to consent.” State v. Berg, 223 Or App 387, 392, 196 P3d 547 (2008), adh’d to as modified on recons, 28 Or App 754, 208 P3d 1006, rev den, 346 Or 361 (2009). Additionally, acquiescence may be clear when “a search will occur regardless of whether consent is given.” Id. The Court held the State misstated the acquiescence burden because proof of consent is necessary, not just a lack of acquiescence. Thus, the Court held that affirmative consent was lacking because Defendant was under the mistaken assumption his probationary status required consent of the search. Reversed and remanded.