State v. Bonilla , 358 Or. 475 ( 2015 )

No. 57 December 31, 2015 475
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
LINDA JEAN BONILLA,
Respondent on Review.
(CC 11CR2221FE; CA A153808; SC S062962)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 15, 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.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Landau, J., concurred and filed an opinion, in which
Kistler, J., joins.
______________
*  Appeal from Douglas County Circuit Court Ronald Poole, Judge. 267 Or
App 337, 341 P3d 751 (2014).
476 State v. Bonilla
Case Summary: Police officers entered a residence without a warrant and
opened a wooden box they found in a bedroom, believing that they had lawful
consent to take each of those actions. Defendant, who was charged with a crime
based on evidence found in the box, moved to suppress the evidence on the ground
that the persons whose consent the police had relied on to enter the residence
and open the box were not authorized to give consent. The trial court denied
the motion and defendant was subsequently convicted. The Court of Appeals
reversed, rejecting the state’s argument that the person who had consented to
the search of the box had actual authority to do so, based on her shared pos-
session and control of the room in which the box was located. On review, the
state argued that consent that justifies a search under Article I, section 9, of the
Oregon Constitution, exists if a person with apparent authority has given his or
her consent. Held: A consent search is justified under Article I, section 9, only if
someone who has authority gives their consent; the existence and scope of such
authority is determined from the totality of the circumstances, and not the rea-
sonable understanding of the police.
The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 358 Or 475 (2015) 477
BREWER, J.
Police officers entered a residence without a war-
rant and opened a wooden box that they found in a bed-
room, 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 per-
son 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 P3d 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 perspec-
tive of the police officers—had given her consent, and that
that was sufficient to qualify the search as a lawful con-
sent 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 rea-
sonable 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 war-
rantless search of the wooden box in this case was not
authorized under the consent exception to the warrant
478 State v. Bonilla
requirement.1 We further conclude that the state’s alterna-
tive 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, inte-
rior 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 Fleshman that the officers could enter through
the interior door. They did so, and found themselves in a liv-
ing 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 fur-
nished with a single bed and a recliner. Crowe introduced
1
Like the Court of Appeals, we do not reach the question of whether the offi-
cers had valid consent to enter the home.
Cite as 358 Or 475 (2015) 479
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 smok-
ing marijuana and that she did not have a medical mari-
juana 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 resi-
due. 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 bed-
room, 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 con-
trolled substance, ORS 475.894, after tests confirmed that
the white residue was methamphetamine.
Before trial, defendant moved to suppress the evi-
dence found in the search of the bedroom, relying primar-
ily 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 stor-
age 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 per-
sons who purportedly had consented to the initial entry and
the search of the box—respectively, Dabbs and Bull—had
2
In a memorandum of “Points and Authorities” attached to her suppression
motion, defendant cited both Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution as authority for her
motion. Defendant’s arguments, however, were directed primarily, if not entirely,
at Article I, section 9.
480 State v. Bonilla
no actual authority to give such consent. As to her own con-
sent 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 fail-
ure 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 unrea-
sonable. See State v. Bridewell, 306 Or 231, 235, 759 P2d
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 require-
ment.”); see also State v. Mazzola, 356 Or 804, 810, 345 P3d
424 (2015) (same); State v. Kurokawa-Lasciak, 351 Or 179,
186, 263 P3d 336 (2011) (same); State v. Meharry, 342 Or
173, 177, 149 P3d 1155 (2006) (same); State v. Connally, 339
Or 583, 587, 125 P3d 1254 (2005) (same); State v. Snow, 337
Or 219, 223, 94 P3d 872 (2004) (same).
This court has described consent to a search as an
“exception” to the warrant requirement under Article I, sec-
tion 9. See, e.g., State v. Weaver, 319 Or 212, 219, 874 P2d 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, sec-
tion 9. See, e.g., State v. Brown, 348 Or 293, 305, 232 P3d 962
(2010) (“Beal’s consent to a search relinquished the remain-
ing privacy interest in the room and its contents.”); see also
State v. Tanner, 304 Or 312, 322, 745 P2d 757 (1987) (“B’s
section 9 interests will not be violated if A allows the police
Cite as 358 Or 475 (2015) 481
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. Where, as in this case, the police rely on consent from
someone other than the defendant, it is necessary to estab-
lish 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, generally has
authority to give consent to search the property. State v.
Carsey, 295 Or 32, 41, 664 P2d 1085 (1983).3
Before the Court of Appeals, defendant argued that,
to satisfy the requirements of the consent exception under
Article I, section 9, consent must be given by a person with
actual authority to give it. As pertinent here, defendant
argued that Bull lacked authority to consent to a search of
the wooden box because she did not have common access to
or control over it. In its brief before the Court of Appeals, the
state did not challenge the analytical framework that defen-
dant had advanced. Rather, the state acknowledged that,
under the Court of Appeals’ case law interpreting Article I,
section 9, the existence of valid consent depends on the
consenter’s actual authority. The state also acknowledged
that the existence of such authority depends on whether
the consenting person has joint access to and control over
the property in question. However, the state disagreed with
defendant’s application of those principles to the evidence in
this case. The state insisted that, because no evidence in the
record suggested any limitation on Bull’s authority over the
shared bedroom and its contents, Bull had actual authority
to consent to the search that the officers conducted.
3
In Carsey, this court explained that:
“[C]ommon authority rests on mutual use of property by persons generally
having joint access or control for most purposes so that it is reasonable to
recognize that any of the co-inhabitants has the right to permit inspection
in his own right, and that the others have assumed the risk that one of their
number might permit the common area to be searched.”
Id.482 State v. Bonilla
Focusing on Article I, section 9, the Court of
Appeals hewed to the issue that the parties appeared to
agree was dispositive—whether the consents on which the
state relied had been given by persons with actual author-
ity to consent, as determined by the rights of access to and
control over the property that those persons held. The court
held that, at least with respect to the search of the wooden
box, the evidence did not support a determination that Bull
had actual authority to give consent. The court reasoned
that, although Bull had joint access to and control over the
shared bedroom where the wooden box was located, there
was no evidence that she had joint access to or control over
the box itself, or that defendant had authorized or acqui-
esced in its use by any person other than herself. 267 Or
App at 344-46. Accordingly, the Court of Appeals held that
the warrantless search of the box was unlawful and that
the fruits of that search must be suppressed. It also con-
cluded that defendant’s consent to the further search of the
bedroom, given when she was confronted with the results
of the search of the box, was the “unattenuated product[ ]
of the unlawful search” and that, consequently, the items
found in that further search also must be suppressed. Id. at
346.
When the state sought review of that decision by
this court, it advanced a revised theory as to why there was
lawful consent to the warrantless search of the wooden box
for purposes of Article I, section 9. Abandoning the theory
that Bull had had actual authority to consent to a search
of the box, the state argued that the search was justified
by what it described as “the apparent authority doctrine.”
Under that doctrine, which was adopted by the United
States Supreme Court in Illinois v. Rodriguez, 497 US 177,
188-89, 110 S Ct 2793, 111 L Ed 2d 148 (1990), a police offi-
cer who conducts a search based on consent given by a per-
son that the officer reasonably—but mistakenly—believes
has authority to consent, does not violate the Fourth
Amendment prohibition against unreasonable searches.
The primary question that the state posed on review was
whether that apparent authority doctrine is cognizable
under the consent exception to the warrant requirement
under Article I, section 9.
Cite as 358 Or 475 (2015) 483
A preliminary issue, not raised by the parties, is
whether the state’s failure to advance that theory before
the trial court and the Court of Appeals precludes the state
from relying on it before this court as a basis for upholding
the trial court’s ruling on defendant’s motion to suppress.
We conclude that it does not. Here, the parties’ specific legal
theories pertaining to consent were never clearly laid out in
the trial court. Granted, the state did not advance an appar-
ent authority theory of consent before the Court of Appeals.
However, as articulated in both its petition for review and its
merits brief before this court, the state continued to argue
that the evidence before the trial court satisfied the consent
exception under Article I, section 9. Moreover, it likely would
have been futile for the state to raise a consent-based appar-
ent authority theory before the Court of Appeals, because
that court previously had held that only actual authority can
satisfy the consent exception. See, e.g., State v. Fuller, 158 Or
App 501, 505, 976 P2d 1137 (1999) (holding that consent, for
purposes of Article I, section 9, must be given by a “person
with the actual authority to do so”); State v. Ready, 148 Or
App 149, 152-53, 939 P2d 117, rev den, 326 Or 68, 950 P2d
892 (1997) (same). As a practical matter, the state was in
a poor position to make its consent-based apparent author-
ity argument to any Oregon tribunal other than this court,
which has not directly addressed that issue. Accordingly,
and in the absence of any argument by defendant that she
has been prejudiced by the state’s revised theory of consent,
we choose to exercise our discretion to consider it.
As noted, the apparent authority doctrine that
the state asks us to recognize is closely associated with
Rodriguez, a Fourth Amendment case decided some 25
years ago by the United States Supreme Court. In that case,
a woman who had lived for a time with the defendant in his
apartment, but who had moved out a month earlier, used a
key that she had taken without the defendant’s knowledge
to let police officers into the apartment. After entering the
apartment, the officers observed drugs in plain view. As
a consequence, the defendant was charged with unlawful
possession of a controlled substance. The defendant moved
to suppress the evidence, and the trial court granted the
motion after concluding that the warrantless entry into the
484 State v. Bonilla
apartment violated the Fourth Amendment. Id., 497 US at
179-80. Before the Supreme Court, the state argued that,
because the police officers reasonably believed that they
had entered the apartment with the consent of a co-tenant,4
there had been no Fourth Amendment violation. Id. at 182.
The Court agreed with the state. The Court began
its analysis by noting that the Fourth Amendment is a
guarantee only against “unreasonable” searches and that
a co-tenant’s consent to the search of a residence can make
a warrantless search “reasonable.” Id. at 183-84. The Court
then observed that, in several prior decisions dealing with
other factors that had been found to render a warrant-
less search “reasonable,” it had concluded that the Fourth
Amendment does not demand literal factual accuracy, but
only that any mistake of fact be reasonable in light of the
facts available to the police at the time of the search. Id. at
184-85 (discussing Maryland v. Garrison, 480 US 79, 107 S
Ct 1013, 94 L Ed 2d 72 (1987); Hill v. California, 401 US 797,
91 S Ct 1106, 28 L Ed 2d 484 (1971); and Brinegar v. United
States, 338 US 160, 69 S Ct 1302, 93 L Ed 1879 (1949)). The
Court saw no reason to depart from that “general rule” with
respect to the factual determination of consent:
“As with other factual determinations bearing on search
and seizure, the determination of consent to enter must be
judged against an objective standard: would the facts avail-
able to the officer at the moment warrant a man of rea-
sonable caution in the belief that the consenting party had
authority over the premises. * * * [I]f so, the search is valid.”
Rodriguez, 497 US at 188-89 (internal quotation marks
omitted).5
This court has never specifically decided whether
the Fourth Amendment “apparent authority” doctrine
4
In her conversations with the police, the woman had referred to the apart-
ment as “our apartment.”
5
The dissent in Rodriguez argued that the “reasonableness” balance already
had been struck against warrantless home intrusions, except for exigent circum-
stances, and that “reasonable” factual errors by law enforcement officers could
not validate a search that already was inherently unreasonable. Accordingly, the
dissent concluded, “the reasonableness of a police officer’s mistaken belief that a
third party had authority to consent is irrelevant.” 497 US at 196 (Marshall, J.,
dissenting).
Cite as 358 Or 475 (2015) 485
comports with the consent exception to the warrant require-
ment under Article I, section 9.6 In urging us to conclude that
it does, the state points to the “substantive[ ] similar[ity]”
between Article I, section 9, and the Fourth Amendment
that this court recognized in State v. Fair, 353 Or 588, 602,
302 P3d 417 (2013). Like the federal provision, the state
observes, Article I, section 9, does not protect against every
search or seizure by the government, but only against those
that are arbitrary, oppressive, or otherwise “unreasonable.”
Id. The state contends that a corollary to that focus is evi-
dent in this court’s Article I, section 9, jurisprudence: Not
all factual mistakes by government actors about the cir-
cumstances surrounding a search—but only those that are
unreasonable—render the search unlawful under Article I,
section 9.
That principle was decisive, the state argues, in
State v. Holdorf, 355 Or 812, 333 P3d 982 (2014), where this
court held that, under Article I, section 9, a police officer
lawfully could stop a person based on “reasonable” sus-
picion that the person has committed a crime, as long as
that suspicion was based on specific and articulable “facts”
that had been conveyed to the officer by someone the officer
could reasonably rely on. Similarly, the state notes, in State
v. Baker, 350 Or 641, 260 P3d 476 (2011), this court held
that a police officer’s objectively reasonable belief that an
emergency existed was sufficient to trigger the emergency
aid exception to the warrant requirement, even though no
emergency existed in fact. The state argues for a similar
analysis of warrantless searches under Article I, section 9’s,
consent exception. In the state’s view, the lawfulness of a
consent search should be assessed—similarly to the analy-
sis in Rodriguez—based on the facts available to the police
6
In Carsey, this court held that the consent exception under the Fourth
Amendment, as it was interpreted at that time, did not extend to circumstances
in which the police had a mistaken, but reasonable, belief that a person with
authority had consented to the search. 295 Or at 44-46. Carsey notwithstand-
ing, as discussed above, the Court with the last word on Fourth Amendment
questions adopted the apparent authority doctrine some seven years later, in
Rodriguez. This court also implied in Carsey that actual authority is required to
satisfy the consent exception under Article I, section 9, but it did not specifically
decide that issue. See 295 Or at 34 n 1. See State v. Guggenmos, 350 Or 243, 265
n 4, 253 P3d 1042 (2011) (Kistler, J., dissenting) (so describing import of Carsey).
486 State v. Bonilla
at the time of the search, with the focus on whether a rea-
sonable person, armed with those facts, would have believed
that the consenting person had authority over the property
to be searched.
There are two overlapping problems with that
approach, both of which stem from the fact that the Fourth
Amendment doctrine of apparent authority is based on dif-
ferent principles than those underlying the consent excep-
tion under Article I, section 9. First, as discussed, the federal
doctrine is premised on the Fourth Amendment precept that
a reasonable mistake of fact as to the existence of author-
ity to consent does not render a warrantless search invalid.
See Rodriguez, 497 US at 184-86. Under that conception of
apparent authority, it is immaterial whether the true owner
of property authorized (or even appeared to authorize) a
third party to consent to search the property. That is, the
reasonableness of a factual mistake as to the consenter’s
authority does not depend on any objective manifestation by
the true owner; in fact, the police may not even know of the
existence of the true owner.7
In contrast, because consent under Article I, section
9, involves the relinquishment of a privacy interest, Brown,
348 Or at 305, it must be given by (or lawfully on behalf
of) the person who holds the protected privacy interest. See
Weaver, 319 Or at 219 (consent must be given by someone
“having the authority to do so.”). For that reason, the exis-
tence of valid third-party consent depends either on the
third party’s common authority over the property based on
her or his own property interest, Carsey, 295 Or at 46, or,
alternatively, on the application of agency principles.8
7
Thus, under the Fourth Amendment analysis, “apparent authority”—which
ordinarily is associated with agency law principles—is unrelated to the law of
agency. See, e.g., United States v. Moran, 214 F3d 950, 951 (8th Cir 2000) (declining
to “pursue the intricacies of property and agency law” when the decisive question
under Rodriguez “is whether the search was ‘unreasonable’ within the meaning
of the Fourth Amendment”); State v. Morse, 156 Wash 2d 1, 12 n 3, 123 P3d 832
(2005) (noting that “apparent authority,” as used under Fourth Amendment, “is
quite different than ‘apparent authority’ as used in agency law,” where “apparent
authority stems from the principal’s objective manifestation to a third party”).
8
When this court implied in Carsey that actual authority is required to sat-
isfy the consent exception under Article I, section 9, 295 Or at 34 n 1, it was
considering the sort of actual authority that is based on joint access and control
Cite as 358 Or 475 (2015) 487
Second, and relatedly, the state’s argument fails to
recognize that, under Article I, section 9, consent always
has been treated differently from other recognized justifica-
tions for warrantless searches, including, for example, justi-
fications that are based on an exigency that makes obtain-
ing a warrant infeasible. When an exigency-based exception
applies, the lawfulness of a search depends on what a rea-
sonable person would make of the facts known to the officer
at the time of the search. Unlike a consent search, what the
defendant intended or what authority he or she had is not
part of that inquiry.
When the police rely on an exigency-based excep-
tion to the warrant requirement, they are exercising the
government’s unilateral authority to intrude on a person’s
protected property interests, as they do when executing
warrants.9 Because a cognizable exigency makes obtaining
over property. Id. at 44-45. As the Fourth Circuit has recognized, however, in
theory, “third person authority could be derived from an actual agency relation-
ship.” United States v. Block, 590 F2d 535, 539 n 5 (4th Cir 1978). The court in
Carsey did not discuss agency-based actual authority, nor did it contrast such
authority with the agency-based doctrine of apparent authority, which, unlike
the Fourth Amendment doctrine adopted in Rodriguez, requires the “holding out”
of an apparent agent by a principal. See Eads v. Borman, 351 Or 729, 736, 277
P3d 503 (2012) (endorsing settled common-law agency principle that “[a]pparent
authority to do any particular act can be created only by some conduct of the prin-
cipal which, when reasonably interpreted, causes a third party to believe that
the principal consents to have the apparent agent act for him on that matter”
(emphasis added)). Under agency principles, irrespective of whether the agency
is apparent or actual, the action taken by the agent also must be one that was
within the scope of the agent’s actual or apparent authority. Id. at 736 n 4.
Because the Fourth Amendment doctrine of apparent authority is not
anchored on an agency-based theory of consent, and because the state in this case
does not contend that defendant engaged in any conduct that would have caused
a reasonable person to believe that she had authorized Bull to consent to a search
of the wooden box, we need not reach the issue of whether agency-based apparent
authority would suffice to satisfy the consent exception under Article I, section 9.
9
The quintessentially “reasonable” way to establish the government’s
authority to conduct a nonconsensual search is through issuance of a warrant
from a neutral and detached magistrate, on a showing of “probable cause.” State
v. Anspach, 298 Or 375, 380-81, 692 P2d 602 (1984). Of necessity, the probable
cause showing is based on the facts as the person applying for the warrant—
usually a police officer—understands them at the time of the application. Because
the probable cause decision is predictive, the most that can be expected is that
the decision be reasonable in light of the facts that are known to the government
actor. Therefore, facts that would support a magistrate’s determination of proba-
ble cause must “lead a reasonable person to believe that seizable things will prob-
ably be found in the location to be searched.” Id. Of course, a motion to controvert
488 State v. Bonilla
a warrant infeasible, it is the police officer, not a neutral
magistrate, who initially must decide whether the search
is justified. But the officer’s decision is made and reviewed
under the same standard that would have applied if a mag-
istrate had made it: Based on the facts known to the officer
at the time of the search, would a reasonable person have
believed that (1) seizable things would probably be found; and
(2) circumstances constituting an exigency were present?
See, e.g., State v. Miskell/Sinibaldi, 351 Or 680, 696, 277
P3d 522 (2012) (illustrating point). If so, the officer’s unilat-
eral exercise of authority is lawful, even if, in hindsight, that
assessment turned out to be wrong. As with searches autho-
rized by a warrant, the relevant temporal reference point
for assessing the lawfulness of a warrantless search is when
the search was conducted.10
Thus, in Stevens, this court held that police officers
lawfully had entered and searched the defendant’s residence
under the exigent circumstances exception to the warrant
requirement because they had probable cause to believe that
kidnapped children could be found in the residence and that
those children might be in immediate danger. 311 Or at 129.
Likewise, in Miskell, this court focused on the circumstances
known to police officers when they decided to proceed with
a warrantless recording of suspect statements to determine
whether it was objectively reasonable to believe that swift
action was necessary to prevent the destruction of evidence.
allows a defendant to challenge the “good faith, accuracy and truthfulness of
the affiant.” ORS 133.693(2). However (and subject to the defendant’s ability to
controvert), even if it later turns out that the factual circumstances were not as
the affiant believed them to be, the magistrate’s determination of probable cause
and issuance of a warrant remain valid, and any search performed under the
authority of the warrant is lawful. See State v. Esplin, 314 Or 296, 305, 839 P2d
211 (1992) (relevant time for determining probable cause is when police officer
seeks warrant).
10
As Professor LaFave has explained:
“It is axiomatic that hindsight may not be employed in determining
whether a prior arrest or search was made upon probable cause. If the action
was taken without a warrant, the information to be considered is the ‘totality
of the facts’ available to the officer at the time of the arrest or search; if it was
pursuant to warrant (of which the arresting officer must have been aware),
then the information to be considered is that which was made available to
the issuing magistrate before the warrant was issued, including reasonable
inferences drawn by the affiant.”
William R. La Fave, Search and Seizure § 3.2(d), 57-60 (5th ed 2012 & Supp 2014).
Cite as 358 Or 475 (2015) 489
351 Or at 696-99. Indeed, as the state points out, this court
has used a standard of objective reasonableness, based
on the facts known to police at the time of a search, when
reviewing the lawfulness of warrantless searches based on
the emergency aid exception, Baker, 350 Or at 649; the offi-
cer safety exception, State v. Bates, 304 Or 519, 524, 747 P2d
991 (1987); and the school safety exception, State ex rel Juv.
Dept. v. M. A. D., 348 Or 381, 392-93, 233 P3d 437 (2010); in
addition to the more general “exigent circumstances” excep-
tion at issue in Stevens and Miskell.
In contrast, as discussed, a consent search is justi-
fied only if someone who had authority gave consent, Weaver,
319 Or at 219; the existence and scope of that authority
could depend on facts that were unknown to the police at
the time of the search. Although not directly on point, this
court’s decisions addressing the voluntariness requirement
are consistent with that understanding in requiring consid-
eration of the totality of circumstances, including facts not
known to the police at the time of the search.
For example, in State v. Kennedy, 290 Or 493, 502,
624 P2d 99 (1981), this court stated that
“the proper test for determining the validity of consent to
a search is to examine the totality of the facts and circum-
stances to see whether the consent was given by defendant’s
free will or was the result of coercion, express or implied.”11
(Emphasis added.) In Kennedy, police officers approached the
defendant as he was leaving the Portland airport and told
him that they had information suggesting that he might be
carrying drugs in his luggage (the information, based on a
drug smugglers’ profile, was insufficient, in itself, to provide
probable cause to search the defendant). Id. at 495-96. The
defendant denied that he was carrying drugs and, without
any questions from the officers, asked them if they would
like to search his luggage. The officers searched his bag and
11
The court in Kennedy did not direct its analysis specifically to Article I,
section 9, but noted that the statutory rights that the defendant had invoked
involved “substantially the same * * * analysis” as the analysis under Article I,
section 9 and the Fourth Amendment. 290 Or at 497. However, this court has
since recognized the “totality of the circumstances” analysis in Kennedy as the
correct test for determining the voluntariness of consent under Article I, section
9. See, e.g., State v. Unger, 356 Or 59, 72, 79-80, 333 P3d 1009 (2014).
490 State v. Bonilla
found a vial that was empty inside but which had a small
amount of cocaine residue along its threads. Id. In the defen-
dant’s ensuing prosecution on drug charges, the trial court
suppressed that evidence. On review, the question before
this court was whether the warrantless search of the bag
was justified under the consent exception—more particu-
larly, the question was whether the defendant’s consent to
the search of the bag had been voluntary, rather than the
result of police coercion.
After examining the totality of the factual circum-
stances, this court concluded that the encounter was not
coercive. Notably, among the facts that the court mentioned
was one that would not have been known to the police at
the time of the search—the fact that the only evidence the
police would find in the bag was an empty glass vial that,
when examined closely, revealed a residue of cocaine on its
threads. The court explained that
“[d]efendant may well have invited the search in the belief
that no incriminating evidence would be found. Other
courts have held that circumstances indicating that the
consenting party believed no incriminating evidence would
be found in a search are a proper factor for consideration in
determining whether consent to the search was voluntary.”
Id. at 505-06.
In Stevens, this court also considered the totality
of the circumstances, including facts that were unavail-
able to the police at the time of the search, in reviewing a
trial court’s determination that the defendant’s consent to
a warrantless search of his home had been voluntary. The
defendant in Stevens was arrested on a winter day, standing
by a creek, soaking wet, and wearing only jeans and socks.
Although he initially seemed to be physically and mentally
impaired, he appeared to recover once the police took him
to the county jail and gave him dry clothes, coffee, and
cigarettes. Detectives began to interview the defendant at
around 10:00 a.m. and, according to their testimony, he did
not appear to be under the influence of drugs at that time.
During the interview, the defendant told the detectives that
he had injected methamphetamine three times during the
previous night and that, at 3:00 a.m., he had injected the
Cite as 358 Or 475 (2015) 491
remaining “scraps” of the drug. The detectives sought defen-
dant’s consent to search his home for evidence of the crimes
for which he had been arrested; they explained that he
could refuse and informed him that any evidence discovered
could be used against him. The defendant told the detec-
tives that he understood and signed a consent form. Several
hours later, toward the end of the interview, the defendant
affirmed that he had given his statements “knowingly, vol-
untarily and intelligently,” and he attributed his earlier
impairment to hypothermia. 311 Or at 133-34.
In his ensuing prosecution, the defendant moved
to suppress evidence discovered in the search of his home
on the ground that, due to drug intoxication, his consent
had not been knowing and voluntary. At the hearing on the
motion, among other evidence, the trial court received tes-
timony from a criminologist who had found methamphet-
amine in a sample of the defendant’s urine taken after his
interview, the testimony of a psychiatrist who had reviewed
a tape of the interview and who opined that the defendant
had not been capable of consenting voluntarily at the time,
and the testimony of witnesses who had seen the defendant
in the hours before his arrest. Based on its consideration of
the totality of the circumstances, the trial court determined
that the defendant had voluntarily consented to the search
and therefore denied suppression. Id. at 135-36. In affirm-
ing that decision, this court specifically approved the trial
court’s consideration of all the evidence:
“The trial court’s findings are supported by evidence,
which we have summarized above. * * * The trial court spe-
cifically found after examining the evidence with particu-
lar concern about the issue, that defendant’s drug use did
not impair his capacity to make a knowing, voluntary and
intelligent choice. We hold that the trial court did not err
in concluding from its findings that defendant’s consent to
search * * * w[as] given voluntarily.”
Id. at 136.
Weaver involved the scope of a consent search. In
that case, the owner of a secondhand store consented in
writing to a warrantless search of his store for firearms and
other regulated property. Unbeknownst to the owner, before
492 State v. Bonilla
he signed the consent form, other police officers already
had started to search and seize items from the store. The
owner was charged with crimes based on evidence found
in the search. At trial, he moved to suppress the evidence
seized in the search on the ground that the consent form
that he had signed did not authorize the warrantless search
that occurred before his consent was given. The trial court
granted the motion. 319 Or at 214-17.
On review, this court concluded that the “true”
issue before it was the scope of the defendant’s consent, that
is, whether the defendant retroactively had consented to a
search. Although the state did not propose a police-centric
view of consent such as the one it advocates here, it did pro-
pose a categorical rule that consent should be deemed ret-
roactive as a matter of law. In rejecting that argument, this
court explained:
“The scope of a consent is to be determined by the consent-
ing party. It is possible for a consent to ‘relate back’ to the
beginning of a search or seizure that otherwise would be
unlawful. For a consent to conduct a search retroactively
to validate earlier police activity, however, there must be
evidence that the person giving the consent intended the
consent to be retroactive. In this case, there is no evidence
in the record indicating that [the] defendant intended his
consent to be retroactive.”
Id. at 221-22.
Because they involved the issues of voluntariness
and scope of consent, rather than authority to give consent,
the discussed cases are not directly on point here. However,
they are inconsistent with the premise that the validity of
consent can be controlled by what the police reasonably but
mistakenly believe based on facts available to them when
they decide to search. Instead, in determining whether the
person giving consent both voluntarily consented and—by
parity of reasoning—had authority to do so, the court must
consider the totality of circumstances, including facts that
may not have been available to the police when the decision
to search was made. Because the state adduced no evidence
in this case that Bull had authority to consent to the search
Cite as 358 Or 475 (2015) 493
of defendant’s wooden box, the evidence was insufficient to
satisfy the consent exception under Article I, section 9.
We turn to the state’s final argument, advanced for
the first time in oral argument before this court, that we
should adopt an interpretation of Article I, section 9, that is
“regrounded” in the wording of the provision: “No law shall
violate the right of the people to be secure in their persons,
houses, papers and effects against unreasonable searches
and seizures.” (Emphasis added). Based on the text of the
provision, the state argues that the question of constitu-
tionality reduces to the determination of whether a search
was “unreasonable,” without regard to whether a recognized
exception to the warrant requirement permitted the search.
The state contends that, under that analysis, the searches
at issue in this case were lawful because the police reason-
ably believed that they had permission to search from peo-
ple with authority to consent.
As with the consent-based theory discussed above,
the state did not advance its “reasonableness” theory either
in the trial court or in the Court of Appeals. As discussed,
358 Or at 482-83, that fact, standing alone, would not nec-
essarily and automatically preclude this court from consid-
ering such a theory. This court sometimes has been willing
to consider entirely new proposed interpretations of a con-
stitutional provision that were presented for the first time
on review. See, e.g., State v. Ciancanelli, 339 Or 282, 121
P3d 613 (2005) (considering proposed new interpretation
of Article I, section 8, that was not raised in trial court or
Court of Appeals); Stranahan v. Fred Meyer, Inc., 331 Or 38,
11 P3d 228 (2000) (considering party’s request to overrule
court’s prior interpretation of Article IV, section 1, of Oregon
Constitution raised for first time on review). The circum-
stances here may be distinguishable, however, because in
this case the state raised its theory for the first time at oral
argument, when there was little opportunity for defendant
to formulate a considered response.
We need not decide that question. Even assum-
ing arguendo that it is appropriate to consider the state’s
“reasonableness” theory when it was not raised until oral
argument, we decline to do so, because it is insufficiently
494 State v. Bonilla
developed to justify our reconsideration of longstanding prec-
edent with which it is at odds. In particular, as noted, 358
Or at 480, this court has adopted a categorical view under
Article I, section 9, that deems warrantless searches to be
per se unreasonable (subject to certain well-defined and lim-
ited exceptions). See, e.g., Bridewell, 306 Or at 235. The state
proposes to set aside that categorical approach in favor of
one that asks, instead, whether an officer acted unreason-
ably in conducting a search, in light of the circumstances
known to the officer and without regard to the existence of a
warrant.
This court has expressed its willingness to recon-
sider a prior interpretation of the Oregon Constitution “when-
ever a party presents to us a principled argument suggesting
that, in an earlier decision, this court wrongly considered or
wrongly decided the issue in question.” Stranahan, 331 Or
at 54. But we also have observed that the path to overturn
established constitutional precedent is not an easy one:
“[T]he principle of stare decisis means that the party seek-
ing to change a precedent must assume responsibility for
affirmatively persuading us that we should abandon that
precedent.
“Various considerations may add to that responsibility.
The most common such consideration is time. Many deci-
sions of this court serve as precedent in later decisions.
Thus, disavowing one case may undermine the preceden-
tial significance of several others.
“* * * * *
“[Thus] the state, in order to prevail in this case, must
persuade us, first, that the constitutional rule that it
attacks was not formulated either by means of the appro-
priate paradigm or by some suitable substitute. If the state
accomplishes that task, then it still has before it the more
difficult task of persuading this court that application of
the appropriate paradigm establishes that the challenged
constitutional rule is incorrect. Finally, and assuming that
it is able to convince us of the incorrectness of the chal-
lenged rule, the state must persuade us that, when the pas-
sage of time and the precedential use of the challenged rule
is factored in, overturning the rule will not unduly cloud or
complicate the law.”
Cite as 358 Or 475 (2015) 495
Ciancanelli, 339 Or at 290-91; see also State v. Unger, 356 Or
59, 70, 333 P3d 1009 (2014) (describing same burden).
The state’s argument, which primarily consists of
a general appeal to the wording of Article I, section 9, falls
short of that standard for reconsideration of constitutional
precedent because it does not meaningfully reckon with this
court’s prior jurisprudence discussed above. Under those cir-
cumstances, we decline the state’s invitation to reconsider
our interpretive paradigm under Article I, section 9, in this
case.
To summarize: We reject the state’s argument that
the officers’ warrantless search of the wooden box owned by
defendant was justified under the consent exception to the
warrant requirement of Article I, section 9. In addition, we
decline to consider the state’s alternative argument, raised
for the first time during oral argument on review, that the
searches at issue in this case were lawful because, even
though they were conducted without a warrant and did not
satisfy a recognized exception to the warrant requirement
under Article I, section 9, they nonetheless were reasonable.
It follows that the trial court erred in denying defendant’s
motion to suppress the evidence obtained in the search of
the wooden box, and that the Court of Appeals correctly
reversed that decision.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
LANDAU, J., concurring.
At issue in this case is the lawfulness of a police
officer’s warrantless search based on a reasonable, but
mistaken, belief that consent to search had properly been
granted. Doctrinally, the search could be regarded as law-
ful under any of at least three different theories. First, it
could be that the search qualified under the consent excep-
tion to the warrant requirement of Article I, section 9, of
the Oregon Constitution. Second, this court could recog-
nize a separate exception to the warrant requirement that
applies to the circumstances of this case. Or third, the
court could abandon its preference for warrants altogether
496 State v. Bonilla
and evaluate each police action on a case-by-case basis for
reasonableness.
As I understand it, the state preserved only the
first contention, and the court rejects it. I join in the court’s
opinion. I write separately to emphasize that the other two
arguments have not properly been presented to us, and
the court’s opinion should not be read as if it has implicitly
addressed them. It has not.
The first of those two arguments is that this court
should recognize an exception to the general rule that, to
be reasonable, a search must be supported by a properly
obtained warrant. As I understand it, the state did not make
that argument in this case.
The argument would go something like this. The
text of Article I, section 9, does not guarantee a right to be
free from all searches except those to which a person con-
sents. Rather, it guarantees a right to be free from unrea-
sonable searches. See State v. Guggenmos, 350 Or 243, 257
n 6, 253 P3d 1042 (2011) (the “touchstone” of Article I, sec-
tion 9, is “reasonableness”). We presume that warrantless
searches are unreasonable, but we recognize exceptions to
that general rule. See, e.g., State v. Mazzola, 356 Or 804,
810, 345 P3d 424 (2015) (“[A] search conducted without a
warrant is deemed unreasonable unless it ‘fall[s] within one
of the few specifically established and carefully delineated
exceptions to the warrant requirement.’ ” (Quoting State v.
Bridewell, 306 Or 231, 235, 759 P2d 1054 (1988).)). Each of
those exceptions is based upon the judgment of this court
that, in specified circumstances, proceeding without a war-
rant nevertheless is reasonable.
For example, the officer-safety exception is grounded
in the determination that it is reasonable for officers to
check for weapons in circumstances presenting a threat of
imminent harm. See, e.g., State v. Bates, 304 Or 519, 524-
25, 747 P2d 991 (1987) (“Our inquiry therefore is limited
to whether the precautions taken were reasonable under
the circumstances as they reasonably appeared at the time
that the decision was made.”). Similarly, the emergency-aid
exception is predicated on the court’s determination that in
certain circumstances—those in which it appears that it is
Cite as 358 Or 475 (2015) 497
necessary to render immediate aid or assistance to someone
in imminent threat of serious harm—officers may engage
in conduct that might otherwise violate Article I, section 9,
because it is reasonable to do so. State v. Baker, 350 Or 641,
649, 260 P3d 476 (2011) (“[W]e conclude that an emergency
aid exception to the Article I, section 9 warrant requirement
is justified when police officers have an objectively reasonable
belief, based on articulable facts, that a warrantless entry is
necessary to either render immediate aid to persons, or to
assist persons who have suffered, or who are imminently
threatened with suffering, serious physical injury or harm.”
(Footnotes omitted.)).
When an officer has been given consent to search
by a person with apparent authority to grant it, and the cir-
cumstances present no good reason for the officer to doubt
the authority of the consenting party to do so, it certainly
could be argued that the officer acts reasonably in accept-
ing the consent and proceeding with a search. In fact, the
United States Supreme Court and appellate courts in at
least a dozen states have so held.1 And I confess that I am
hard pressed to understand what makes an officer’s search
under those circumstances unreasonable.
It is not that unusual for the court to recognize
new exceptions to the warrant requirement. We did it a few
short years ago in Baker, in which we expressly recognized
what we had implicitly held in a few earlier cases: namely,
an emergency-aid exception to the warrant requirement of
Article I, section 9. 350 Or at 649. So the fact that there is
no current exception covering the police conduct in this case
is not dispositive.
1
Illinois v. Rodriguez, 497 US 177, 188-89, 110 S Ct 2793, 111 L Ed 2d 148(1990); People v. Hopkins, 870 P2d 478, 483 (Colo 1994); State v. Buie, 129 Conn
App 777, 787, 21 A3d 550, 557 (2011), aff’d, 312 Conn 574, 94 A3d 608 (2014);
State v. McCaughey, 127 Idaho 669, 671-74, 904 P2d 939, 941-44 (1995); People
v. Burton, 409 Ill App 3d 321, 330-33, 947 NE2d 843, 852-54 (2011); Lee v. State,
849 NE2d 602, 610 (Ind 2006); State v. Chilson, 38 Kan App 2d 338, 347, 165
P3d 304, 310 (2007); Commonwealth v. Santos, 465 Mass 689, 694-95, 991 NE2d
1049, 1055-56 (2013); State v. Licari, 659 NW2d 243, 252-54 (Minn 2003); State
v. Reinpold, 284 Neb 950, 956, 824 NW2d 713, 720 (2013); State v. Sawyer, 147
NH 191, 194-96, 784 A2d 1208, 1211-12 (2001); State v. Maristany, 133 NJ 299,
305-08, 627 A2d 1066, 1069-70 (1993); Commonwealth v. Basking, 970 A2d 1181,
1192-1200 (Pa Super Ct 2009); State v. Harding, 282 P3d 31, 39-41 (Utah 2011);
State v. Wantland, 355 Wis 2d 135, 149-56, 848 NW2d 810, 817-20 (2014).
498 State v. Bonilla
Adopting such an exception arguably runs afoul of
this court’s rejection of a more general good-faith exception
to the warrant requirement. The court noted precisely that
in State v. Carsey, 295 Or 32, 44-45, 664 P2d 1085 (1983),
when it rejected the proposed exception as a matter of
Fourth Amendment doctrine, based on then-existing Fourth
Amendment case law. Of course, Fourth Amendment doc-
trine has changed quite a bit since Carsey. Moreover, the
same complaint could be leveled against the recognition of
any number of existing exceptions to the warrant require-
ment, which require only that police officers act reasonably
under the circumstances, not that they are always correct.
The emergency-aid exception, for example, applies “when
police officers have an objectively reasonable belief” that
immediate aid is required, Baker, 350 Or at 649, even if they
turn out to have been mistaken.
My point is not to resolve the matter here. My point
is that the matter—which the parties did not address in this
case—should be fully briefed and argued in an appropriate
case.
The second possible argument is more far-reaching.
It would entail abandoning the warrant-preference-and-
categorical-exception approach to Article I, section 9, in
favor of a post hoc, case-by-case examination of the reason-
ableness of police conduct. This is an argument that the
state did mention, albeit—as the court correctly concludes—
inadequately. At this point, I am skeptical. But it remains
an argument worth carefully considering.
The fact is that the court has never explained very
well the source of the warrant-preference-and-categorical-
exception approach to Article I, section 9. Certainly, the
court has never sought to justify the approach in terms of
the intentions or understanding of the framers of the con-
stitution.2 It is likely that the court’s approach would have
been entirely foreign to the framers of our constitution in
2
Interestingly, the court has applied that interpretive approach to the par-
ticularity clause of Article I, section 9. See State v. Carter, 342 Or 39, 42, 147 P3d
1151 (2006). But, to my knowledge, it has never applied that approach to the
reasonableness guarantee.
Cite as 358 Or 475 (2015) 499
the mid-nineteenth century.3 In fact, for nearly 100 years,
the court abjured any such reading of Article I, section 9,
explicitly holding that the law requires courts to examine
only the reasonableness of an officer’s conduct under the cir-
cumstances of each case, without any particular preference
for warrants. As this court explained in State v. De Ford,
120 Or 444, 452, 250 P 220 (1927), “the possession of the
warrant is not the controlling consideration of whether a
search is reasonable or unreasonable. An officer armed with
a warrant may make an unreasonable search. An officer
without a warrant may make a reasonable search.”4
Only in 1983 did the court adopt its current
approach, but—oddly enough in a state that prides itself as
a vanguard of state constitutionalism—the only support was
a passing citation to a Fourth Amendment decision. State v.
Davis, 295 Or 227, 237, 666 P2d 802 (1983) (citing Katz v.
United States, 389 US 347, 357, 88 S Ct 507, 19 L Ed 2d 576(1967)). In the meantime, the earlier decisions have never
been overruled, at least not explicitly.
As I have explained elsewhere, I do not think that
the framers’ intentions are particularly salient in constru-
ing the reasonableness requirement of Article I, section 9.
3
See, e.g., Rohan v. Sawin, 59 Mass 281, 284-85 (1850) (upholding consta-
ble’s warrantless search of premises because constitutional search and seizure
provision was intended only to be “in restraint of general warrants to make
searches and require[ ] warrants to issue only upon a complaint made under
oath”); Mayo v. Wilson, 1 NH 53, 60 (1817) (constitutional search and seizure
provision “does not seem intended to restrain the legislature from authorizing
arrests without warrant”); Wakely v. Hart, 6 Binn 315, 319 (Pa 1814) (warrantless
seizure upheld because constitutional search and seizure guarantee “was nothing
more than an affirmance of the common law,” which permitted arrests without
warrants). Nineteenth-century treatises likewise tend to emphasize that consti-
tutional search and seizure guarantees were directed at abuses of general war-
rants and made no mention of a warrant requirement. See, e.g., Joseph Story, 2
Commentaries on the Constitution of the United States: With a Preliminary Review
of the Constitutional History of the Colonies and States, Before the Adoption of the
Constitution 678-80 (3d ed 1858) (the Fourth Amendment search and seizure
guarantee “is little more than the affirmance of a great constitutional doctrine of
the common law” requiring warrants to state with particularity the time, place,
and nature of the offense).
4
See also State v. Lee, 120 Or 643, 651, 253 P 533 (1927) (upholding consti-
tutionality of warrantless search). As recently as 1959, this court held that the
reasonableness of a search does not depend on the presence of a warrant, but
on the circumstances of each case. State v. Hoover, 219 Or 288, 299, 347 P2d 69
(1959).
500 State v. Bonilla
See generally State v. Hemenway, 353 Or 129, 158-59, 295
P3d 617 (2013) (Landau, J., concurring). Moreover, I am
inclined to think that there are good reasons for an ex ante
warrant requirement. But, at the very least, this court has
some housekeeping to do.
I write only to emphasize that nothing in the court’s
opinion today addressees either of these doctrinal possibili-
ties. To the contrary, both remain live issues that should be
properly raised and fully briefed so that we may give them
our careful attention in a future case.
Kistler, J., joins this concurring opinion.