State v. Blair, 361 Or 527 (2017)

Under Article I, section 9, of the Oregon Constitution, the circumstances demonstrating a defendant’s actual understanding and intent are relevant factors in the analysis of whether a defendant “voluntarily relinquished” his or her privacy interest in a place or thing searched by the government. See, e.g., State v. Stevens, 311 Or 119, 132-38, 806 P2d 92 (1991).

The State sought review of the Court of Appeals judgment reversing the Defendant’s conviction for possession a Schedule I controlled substance, ORS 475.752(3)(a). The trial court denied Defendant’s motion to suppress holding that Defendant’s consent was voluntary and that opening and searching the grocery bag inside his backpack was within the scope of Defendant’s unqualified consent. The Court of Appeals reversed and remanded holding that Defendant’s consent to the search of his backpack did not extend to untying and looking into an opaque grocery bag, inside the backpack, in which mushrooms were found. State v. Blair, 278 Or App 512, 522 (2016). On review, State argued that Defendant’s unqualified consent to the police officer’s generalized request to search Defendant’s backpack included consent to open any closed but unlocked containers inside the bag. In response, Defendant argued that under Article I, Section 9, of the Oregon Constitution, his consent to the search of his backpack did not extend to untying and searching an opaque bag within the backpack. Specifically, Defendant contended that the States interpretation was inconsistent with the “totality of circumstances” test, and it would improperly impose a burden on Defendant to produce evidence of lack of consent to the search. Under Article I, section 9, of the Oregon Constitution, the scope of a person’s consent “is determined by reference to what a typical, reasonable person would have understood by the exchange between the officer and the suspect in light of the totality of the circumstances surrounding the grant of consent in a particular case.” State v. Delong, 275 Or App 295, 301 (2015), rev den, 359 Or 39 (2016) (quoting State v. Harvey, 194 Or App 102, 106 (2004)). Under Article I, section 9, of the Oregon Constitution, the circumstances demonstrating a defendant’s actual understanding and intent are relevant factors in the analysis of whether a defendant “voluntarily relinquished” his or her privacy interest in a place or thing searched by the government. See, e.g., State v. Stevens, 311 Or 119, 132-38, 806 P2d 92 (1991). The Supreme Court held Defendant’s failure to object did not constitute an unambiguous manifestation of consent to the search of closed containers inside the backpack because the record was unclear that the trial court had made the factual finding the Defendant was aware the bag was being opened until afterward it was searched. The Court also found it relevant that the trial court did not clearly determine whether Defendant actually intended to consent to the search of closed containers inside his backpack. The decision of the Court of Appeals was reversed. The judgment of the circuit court was vacated, and the case was remanded to the circuit court for further proceedings consistent with this decision.