State v. Bonilla

358 Or. 475

366 P.3d 331

STATE of Oregon, Petitioner on Review,

v.Linda Jean BONILLA, Respondent on Review.

CC 11CR2221FE

CA A153808

SC S062962.

Supreme Court of Oregon, En Banc.

Argued and Submitted Sept. 15, 2015.

Decided Dec. 31, 2015.

Paul L. Smith, Assistant Attorney General, Salem, argued the cause. Anna M. Joyce, Solicitor General, filed the brief for petitioner on review. With her on the brief was Ellen F. Rosenblum, Attorney General.

Ernest G. Lannet, Chief Defender, Salem, argued the cause and filed the brief for respondent on review.

BREWER, J.

Police officers entered a residence without a warrant and opened a wooden box that they found in a bedroom, believing that they had lawful consent to take each of those actions. Defendant, who was charged with unlawful possession of a controlled substance based on evidence found in the box, moved to suppress the evidence under Article I, section 9, of the Oregon Constitution, on the ground that the persons who had given consent to the home entry and the search of the box were not authorized to give consent. The trial court denied the motion to suppress. On appeal from her ensuing conviction, defendant asserted that there was no evidence that she had consented to the home entry or the search of the box. The state replied that, for purposes of Article I, section 9, the persons who gave consent to the entry and search had actual authority to do so. The Court of Appeals reversed. Focusing specifically on the search of the box, that court rejected the state's argument that the person who had consented to the search had actual authority to give consent, based on her shared possession and control of the room in which the box was located. State v. Bonilla, 267 Or.App. 337, 344–47, 341 P.3d 751 (2014).

In its merits brief on review before this court, the state abandoned its "actual authority" theory of consent in favor of a revised theory that the warrantless search of the box was justified under Article I, section 9, on the ground that a person with apparent authority—from the perspective of the police officers—had given her consent, and that that was sufficient to qualify the search as a lawful consent search. Finally, at oral argument, the state asserted that, regardless of whether there was lawful consent to the warrantless search of the box, the dispositive issue under Article I, section 9, should be whether the search was reasonable in light of the information available to the police at the time. According to the state, the search of the box was lawful under that standard.

As explained below, we conclude that the warrantless search of the wooden box in this case was not authorized under the consent exception to the warrant requirement.¹ We further conclude that the state's alternative argument—that the search was lawful because it was reasonable—is essentially a request to overturn this court's longstanding construction of Article I, section 9 ; in the absence of a sufficiently developed argument to justify such reconsideration, we decline to consider that argument on its merits. Accordingly, we affirm the decision of the Court of Appeals, reverse the trial court's order denying suppression, and remand to the trial court for further proceedings.

Our summary of the facts is largely based on the trial court's findings, augmented by undisputed evidence in the record. Police officers arrived at the residence of a parolee, Fleshman, to investigate a report that he was involved in drug activity. There, they spoke to Dabbs, who told them that Fleshman and his girlfriend, Crowe, lived in a converted garage behind Dabbs' house, that they were in the process of moving out, and that Fleshman was not home at the time. The officers asked to speak with Crowe. Dabbs led the officers back behind his own house to the converted garage. Access to the dwelling was through an open doorway leading to a storage area, inside of which was a second, interior door. The interior door was closed. The officers followed Dabbs through the open doorway into the storage area and waited there while Dabbs contacted Crowe and explained to her that the officers wanted to talk to her about Fleshman. Crowe told Dabbs that the officers could enter through the interior door. They did so, and found themselves in a living room, where Crowe and defendant were present. Dabbs then left.

Soon after entering the living room, the officers asked Crowe about a strong odor of marijuana inside the residence. Crowe told them that it was probably coming from a back room, where her grandmother was present. One of the officers asked if he could accompany Crowe to the back room and Crowe responded that he could. Crowe and the officer walked down a short hallway to a closed door, which Crowe opened. Inside was a small bedroom that was furnished with a single bed and a recliner. Crowe introduced the officer to her grandmother, Bull, who was sitting in the recliner. Crowe then returned to the living room.

Bull admitted to the officer that she had been smoking marijuana and that she did not have a medical marijuana card; she produced a bag of the drug, which the officer confiscated. The officer then asked Bull if he could "check to make sure" that there were no more drugs, and Bull told him that he could. On a "headboard type thing" next to the bed, the officer saw a wooden box; he opened it and discovered three plastic bags that contained a white crystalline residue. He asked Bull about the substance and she responded that it was not hers and that it must belong to her daughter. It was at that point that the officer first learned that Bull shared the bedroom with her daughter. After ascertaining that Bull's daughter was defendant—the other woman in the living room—the officer returned to the living room. He told defendant what he had found in the box and then asked for her permission to search the bedroom. Defendant gave her consent, and the officer resumed his search of the bedroom, ultimately finding, in addition to the baggies, several "snort tubes" that also contained a white crystalline residue. Defendant was charged with unlawful possession of a controlled substance, ORS 475.894, after tests confirmed that the white residue was methamphetamine.

Before trial, defendant moved to suppress the evidence found in the search of the bedroom, relying primarily on Article I, section 9.² She argued that the evidence was obtained through a series of warrantless searches—including the entry by the police officers into the open storage area of the converted garage, their search of the box, and their second search of the bedroom after defendant's shared occupancy of the bedroom was disclosed. Defendant further argued that, although the officers believed that they had obtained lawful consent for each of those actions, the persons who purportedly had consented to the initial entry and the search of the box—respectively, Dabbs and Bull—had no actual authority to give such consent. As to her own consent to the second search of the bedroom, defendant argued that it was obtained through exploitation of the officers' earlier unlawful searches, and thus did not excuse the failure to obtain a warrant. The trial court, however, accepted the state's contrary arguments that the police officers had obtained lawful consent at every stage. It denied defendant's motion to suppress, and defendant ultimately was convicted of the charged offense. Defendant then appealed, assigning error to the denial of her motion to suppress.

To place the parties' arguments on appeal and review in a more meaningful context, it is helpful to briefly describe several principles that guide our analysis. This court has adopted a categorical view under Article I, section 9, that, subject to certain specifically established and limited exceptions, deems warrantless searches to be per se unreasonable. See State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988) ("Absent consent, law enforcement officials must have a warrant to search a person's premises. Warrantless entries and searches of premises are per se unreasonable unless they fall within one of the few specifically established and carefully delineated exceptions to the warrant requirement."); see also State v. Mazzola, 356 Or. 804, 810, 345 P.3d 424 (2015) (same); State v. Kurokawa–Lasciak, 351 Or. 179, 186, 263 P.3d 336 (2011) (same); State v. Meharry, 342 Or. 173, 177, 149 P.3d 1155 (2006) (same); State v. Connally, 339 Or. 583, 587, 125 P.3d 1254 (2005) (same); State v. Snow, 337 Or. 219, 223, 94 P.3d 872 (2004) (same).

This court has described consent to a search as an "exception" to the warrant requirement under Article I, section 9. See, e.g., State v. Weaver, 319 Or. 212, 219, 874 P.2d 1322 (1994). We have done so, not because we excuse the failure to obtain a warrant for an exceptional reason, but because consent relinquishes a person's privacy interest in property so that there is no unlawful intrusion under Article I, section 9. See, e.g., State v. Brown, 348 Or. 293, 305, 232 P.3d 962 (2010) ("Beal's consent to a search relinquished the remaining privacy interest in the room and its contents."); see also State v. Tanner, 304 Or. 312, 322, 745 P.2d 757 (1987) ("B's section 9 interests will not be violated if A allows the police to enter the house and discover the effects, * * * because A controls access to the house * * *.").

When the state relies on consent, it must prove by a preponderance of the evidence that "someone having the authority to do so" voluntarily gave the police consent to search the defendant's property and that any limitations on the scope of the consent were complied with. Weaver, 319 Or. at 219, 874 P.2d 1322. Where, as in this case, the police rely on consent from someone other than the defendant, it is necessary to establish the basis of the third party's authority. As an example of valid authority, a co-inhabitant with common authority over property, based on joint access or control,...