State v. Blair , 361 Or. 527 ( 2017 )

No. 31 June 15, 2017 527
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
DANNY LEE BLAIR,
Respondent on Review.
(CC 131055; CA A156756 SC S064262)
On review from the Court of Appeals.*
Argued and submitted March 9, 2017, at the University
of Oregon School of Law, Eugene.
Rolf C. Moan, Assistant Attorney General, Salem, argued
the cause and filed the brief for petitioner on review. Also on
the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Laura E. Coffin, Deputy Public Defender, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, Nakamoto, and Flynn, Justices.**
BREWER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is vacated, and the case is
remanded to the circuit court for further proceedings con-
sistent with this decision.
______________
**  Appeal from Tillamook County Circuit Court, Jonathan R. Hill, Judge.
278 Or App 512, 380 P3d 313 (2016).
**  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case.
528 State v. Blair
Case Summary: Before his trial on charge of possession of a controlled sub-
stance, defendant moved under Article I, section 9, of the Oregon Constitution,
to suppress drug evidence found in a warrantless but purportedly consensual
search of his backpack. The trial court denied the motion and defendant was
convicted. On defendant’s appeal, the Court of Appeals reversed and remanded,
holding that, although defendant had consented without qualification to a police
officer’s general request to search the backpack, his consent did not extend to
unknotting and examining the contents of the opaque grocery bag, inside the
backpack, in which the drugs were found. The state sought review, arguing that,
as a general rule, a person’s unqualified affirmative response to a police officer’s
general request to search some place or property constitutes consent to open and
search any unlocked container discovered within the place or property. Held: The
dispositive inquiry under Article I, section 9 is a factual inquiry into whether
defendant intended to consent to the search of closed containers inside the back-
pack and, given that it is unclear whether the trial court so understood the
inquiry and given that opposing inferences would be permissible on the record
before the court, the case must be remanded to the circuit court to reconsider its
decision under the correct standard.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is vacated, and the case is remanded to the circuit court for further pro-
ceedings consistent with this decision.
Cite as 361 Or 527 (2017) 529
BREWER, J.
Before his trial on a charge of possession of a con-
trolled substance, defendant moved to suppress the state’s
primary evidence—drugs that a police officer found in a war-
rantless but purportedly consensual search of defendant’s
backpack—on the ground that they were obtained in viola-
tion of Article I, section 9, of the Oregon Constitution. The
trial court denied the motion and defendant was convicted.
The Court of Appeals reversed and remanded, concluding
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 the drugs were found.
State v. Blair, 278 Or App 512, 522, 380 P3d 313 (2016).
The state seeks review of that decision, arguing that
defendant’s unqualified consent to the police officer’s gener-
alized request to search the backpack should be deemed on
the record before us to encompass consent to open any closed
but unlocked containers found inside. We conclude that the
state’s argument does not comport with Article I, section 9.
We further conclude that the dispositive inquiry is a factual
one: Did defendant intend to consent to the search of closed
containers inside his backpack? It is unclear whether the
trial court so understood the inquiry before it, and, on the
record before us, we conclude that opposing inferences per-
missibly could have been drawn from the evidence as to that
issue. Accordingly, we reverse the decision of the Court of
Appeals, and we vacate the judgment convicting defendant
and remand to the circuit court to reconsider its suppression
decision under the correct standard.
I.  FACTS AND PROCEDURAL HISTORY
The facts that are relevant to the issue before us are
not extensive. Responding to a report of a man being chased
by armed attackers, members of the Tillamook County
Sheriff’s Office encountered defendant, the supposed vic-
tim. Defendant was agitated, disheveled, and somewhat
incoherent, and the officers were doubtful that he had, in
fact, been attacked. Defendant mentioned to one of the offi-
cers, Sergeant Jackson, that he had left his backpack “up on
the hill” and that he also had lost his sweatshirt. Defendant
530 State v. Blair
seemed reluctant to go in search of his belongings by him-
self, so Jackson went with him.
Defendant located the backpack without difficulty.
Jackson then asked defendant, in a casual way, if he could
search the backpack. Although he did not say so, Jackson
suspected that defendant was under the influence of meth-
amphetamine, and he wanted to see if the backpack con-
tained drugs or weapons. Defendant responded, “Yeah, no
problem. Go ahead.” Inside the backpack, Jackson saw an
opaque, plastic grocery bag that was closed with a knot.
Jackson untied the knot and found inside the grocery bag,
among other items, a Ziploc bag containing psilocybin
mushrooms.
Defendant was charged with unlawful possession
of a Schedule I controlled substance, ORS 475.752(3)(a).
Before trial, he moved to suppress evidence of the mush-
rooms on the ground that their discovery was the product
of an unconstitutional search under Article I, section 9. The
state countered that, because defendant had consented to
the search of his backpack, the search did not implicate his
rights under Article I, section 9. Defendant did not deny
having consented to Jackson’s request to search the back-
pack, but he argued that his consent was not voluntary and
that, even if it was voluntary, it did not extend to a search of
the contents of the knotted grocery bag inside the backpack.
The trial court denied the motion to suppress, hold-
ing that defendant’s consent was voluntary and that open-
ing and searching the grocery bag was within the scope of
that consent.1 Defendant thereafter entered a conditional
no contest plea to the charged offense, and the trial court
entered a judgment convicting him.
On appeal, defendant challenged the denial of his
motion to suppress, asserting the same arguments that he
had raised in the trial court. With respect to the scope of
consent issue, the Court of Appeals held that:
1
With respect to that issue, the trial court stated:
“The sergeant had asked for permission to search the backpack. The other
bag is inside the backpack. [Defendant] is there when it is searched and the
consent wasn’t revoked. I think there was a consensual search of the Fred
Meyer bag as well.”
Cite as 361 Or 527 (2017) 531
“[t]he scope of 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. Thus, consent to search a par-
ticular location or item extends to closed containers found
within that location or inside of that item if, under the
totality of the circumstances, a reasonable person would
have understood that the consent given included those
containers.”
Blair, 278 Or at 516 (citations omitted). The court was
unpersuaded by the state’s argument that, when both a
police officer’s request and an individual’s response are gen-
eral and unqualified, the scope of consent presumptively
includes consent to search closed and unlocked containers
found inside the stated object of the search. Id. at 519. The
court held, instead, that an officer’s generalized request for
consent to search some place or thing does not extend to
closed containers inside the place or thing unless the sur-
rounding circumstances would reasonably convey that the
officers are searching for something that could be hidden in
those containers. Id. at 520. In the absence of such evidence
in the record before it, the court determined that it “[could]
not conclude that a reasonable person viewing the exchange
would have understood that defendant consented to the
search of the knotted grocery bag within his backpack.” Id.
at 522. Because the warrantless search of the knotted bag
could not be justified under the consent exception, the court
concluded, it was unreasonable and, therefore, unlawful,
and the evidence obtained therefrom should have been sup-
pressed.2 Accordingly, the Court of Appeals reversed defen-
dant’s conviction and remanded.
II.  FRAMING THE ISSUE ON REVIEW
This court granted the state’s petition for review
and, on review, the parties reprise their arguments before
2
Insofar as the Court of Appeals agreed with defendant that the search of
the grocery bag was unlawful because it was not within the scope of defendant’s
consent, it had no occasion to address defendant’s alternative argument that
his consent had not been voluntary. Because we vacate the judgment convict-
ing defendant and remand to the circuit court, we likewise do not address that
argument.
532 State v. Blair
the Court of Appeals. The primary issue on review—the
scope of consent to a warrantless search under Article I, sec-
tion 9—has not been a frequent subject of consideration by
this court. The Court of Appeals, however, has articulated
a test for analyzing scope of consent issues under Article I,
section 9, and the parties have couched their arguments in
terms of that test. As the Court of Appeals conceives the
proper test, when consent is asserted as a justification for a
warrantless search, the scope of a person’s consent “is deter-
mined 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 circum-
stances surrounding the grant of consent in a particular
case.” State v. Delong, 275 Or App 295, 301, 365 P3d 591
(2015), rev den, 359 Or 39 (2016) (quoting State v. Harvey,
194 Or App 102, 106, 93 P3d 828 (2004)).
Although the state does not challenge the sub-
stance of the Court of Appeals’ test, it argues for a corol-
lary “default” rule in cases, like the present one, that involve
“nested” closed containers. It argues, specifically, that when
a person manifests apparently unqualified consent to a law
enforcement officer’s generalized request to search a closed
container, that manifestation of consent authorizes the offi-
cer to open all closed, unlocked containers inside the item—
unless other specific circumstances show that the scope of
consent did not extend that far.
The state asserts that the word “search” itself con-
veys the idea of a thorough, rigorous inspection of a closed
container that a reasonable person would understand to
include inspecting the contents of additional closed contain-
ers inside the item. The state also contends that the mere
fact that a request to search comes from a police officer would
indicate to a reasonable person that the officer is looking
for evidence of illegal activity, including drugs and weap-
ons that might be hidden inside closed containers. In other
words, the state reasons, a generalized request by a police
officer to search a closed container would in and of itself
indicate to a reasonable person that the request includes
opening and the inspection of the contents of closed contain-
ers inside the item—and an unqualified affirmative answer
to such a request should be deemed to constitute consent to
Cite as 361 Or 527 (2017) 533
the opening and inspection of the contents of such additional
containers, unless other, specific circumstances indicate a
different understanding and intent.
Defendant replies that the state’s proposed corollary
rule is inconsistent with the “totality of the circumstances”
test that, by the state’s own concession, should apply: That
is so because it gives dispositive significance to two facts
(the use of the word “search” and the requester’s status as
a police officer), while failing to adequately recognize that
the import of those facts may depend on other surround-
ing circumstances. Defendant also argues that the state’s
proposed rule would effectively impose on a defendant the
burden of producing evidence of lack of consent, rather than
placing that burden on the state, where it properly belongs.
Defendant posits, based on the “totality of the circum-
stances” test as applied to the present record, and taking
into account the state’s burden, that defendant would not
have understood the scope of his consent to include consent
to search any closed container that might be found inside
his backpack. Accordingly, defendant argues, the trial court
erred in determining that the officer acted within the scope
of defendant’s consent when he unknotted, opened, and
searched the grocery bag in question.
Although the parties focus their arguments on the
merits of the state’s proposed default rule, we first must con-
sider whether the standard for determining scope of consent
from which the state’s proposed corollary rule purportedly
derives comports with Article I, section 9. That standard was
first announced in State v. Arroyo-Sotelo, 131 Or App 290,
884 P2d 901 (1994), where the Court of Appeals explained
that it was adopting a standard used in Fourth Amendment
cases to decide whether, under Article I, section 9, a police
officer had complied with the scope of a defendant’s consent:
“In making this inquiry, we first note that the standard
for determining the scope of a suspect’s consent under the
Fourth Amendment is that of ‘objective reasonableness’ with
the critical inquiry focusing on what a ‘typical reasonable
person would have understood by the exchange between
the officer and the suspect.’ Florida v. Jimeno, 500 U.S. 248,
251, 111 S. Ct. 1801, 114 L. Ed. 2d 297 (1991). In our decisions
involving the scope of consent under Article I, section 9,
534 State v. Blair
we have never explicitly articulated our standard; however,
we have consistently evaluated the intent of the consent of
the consenting parties objectively, looking at the totality of
the circumstances of the particular case. Similarly, Oregon
courts have recognized that questions involving the propri-
ety of police conduct under Article I, section 9, customarily
are judged on an objectively reasonable basis, requiring an
inquiry into the surrounding circumstances.
“We thus conclude that the ‘objective reasonableness’
standard articulated in Florida v. Jimeno, supra, best com-
ports with the requirements of Article I, section 9. * * *
“Under that standard, we must consider what a rea-
sonable person would have understood by the interchange
between the officer and defendant, the person giving con-
sent. As discussed above, this requires an evaluation of the
surrounding circumstances.”
131 Or App at 295-96 (citations omitted).
Although, as noted, the parties here have purported
to apply the Court of Appeals’ test for determining the scope
of defendant’s consent to the search of his backpack under
Article I, section 9, this court has an independent duty to
consider whether it is, in fact, the correct standard. Cf. Stull
v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) (court has inde-
pendent duty to construe statute correctly without regard to
parties’ arguments). We turn to that task now.
III. ANALYSIS
A. Background
By its terms, Article I, section 9, recognizes a
right to be free of “unreasonable” searches and seizures.
Warrantless searches are per se unreasonable, subject to
certain specifically established and limited exceptions. State
v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015) (subject to
certain specifically established and limited exceptions, war-
rantless searches are deemed to be per se unreasonable);
State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992) (war-
rantless search is “reasonable” only if it falls within recog-
nized exceptions to warrant requirement). The state bears
the burden of showing by a preponderance of the evidence
that an exception to the warrant requirement applies. See
Cite as 361 Or 527 (2017) 535
State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994) (so
stating as to consent exception).
B.  Consent Exception
Most exceptions to the warrant requirement involve
a unilateral exercise of governmental authority to intrude,
without a warrant, into things or places in which an owner
or other person has a cognizable privacy interest, which
nevertheless is justified as reasonable if certain circum-
stances (exigency, officer safety concerns, etc.) are present.
Bonilla, 358 Or at 487-89.
The consent exception is different. It posits that,
by voluntarily granting a governmental actor permission
to search a place or thing, the person relinquishes his or
her privacy interest in the place or thing so that there is no
intrusion by the state into a protected privacy interest that
must be justified. Bonilla, 358 Or at 480; State v. Brown, 348
Or 293, 305, 232 P3d 962 (2010). Of course, that rationale
presumes that a person to whom a privacy interest belongs
actually intends to give consent to the intrusion. We inti-
mated as much in Bonilla, when we rejected the premise
that Article I, section 9, is satisfied if the police conduct a
warrantless search under the mistaken but objectively rea-
sonable belief that the person who gave consent to the search
had authority to do so. 358 Or at 486-93. In a similar vein, we
have indicated that the scope of consent is to be determined
from the standpoint of the consenting person. In Weaver, the
issue was whether the defendant’s consent to a search could
be deemed to extend, retroactively, to a portion of the search
that had occurred before the defendant gave consent. To sup-
port such a conclusion, we held that there must be evidence
that “the person giving consent intended the consent to be
retroactive.” 319 Or at 222 (emphasis added).
This court’s focus on actual consent as a touchstone
of the consent exception under Article I, section 9, is dis-
tinct from the way the consent exception operates under the
Fourth Amendment. Fourth Amendment decisions do not
recognize any analytical difference in perspective between
the consent exception and other recognized exceptions to the
warrant requirement. The United States Supreme Court
536 State v. Blair
has reasoned that, because other exceptions to the warrant
requirement are tested against a standard of objective rea-
sonableness from the point of view of the police, the same
standard should apply to the facts bearing on the application
of the consent exception. Illinois v. Rodriguez, 497 U.S. 177,
186, 110 S. Ct. 2793, 111 L. Ed. 2d 148 (1990). In Rodriguez,
the court concluded that there is no Fourth Amendment vio-
lation when the police perform a warrantless search in the
objectively reasonable, albeit mistaken, belief that they have
obtained consent for the search from a person with author-
ity to give it. Id.
Similarly, federal cases addressing the voluntari-
ness of consent generally have declined to consider the
consenting person’s actual understanding of their options
in a Fourth Amendment analysis. See, e.g., United States
v. Drayton, 536 U.S. 194, 203-05, 122 S. Ct. 2105, 153 L. Ed.
2d 242 (2002) (voluntariness inquiry focused on reasonable-
ness of police conduct, not on subjective reactions of persons
searched); United States v. Garcia, 56 F3d 418, 423 (2d Cir
1995) (stating voluntariness test in terms of whether the
police officer “had a reasonable basis for believing that there
had been consent to the search”); United States v. Zapata,
997 F2d 751, 759 (10th Cir 1993) (casting doubt on whether
person’s subjective characteristics are relevant to voluntari-
ness of person’s consent). Thus, although the determination
of the voluntariness of consent under the Fourth Amendment
applies a “totality of the circumstance” approach, the federal
courts have applied that test in a way that has little if any-
thing to do with the “consenting” party’s actual understand-
ing and intention.3
3
In its seminal decision addressing the voluntariness of consent under the
Fourth Amendment, Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36
L. Ed. 2d 854 (1973), the Supreme Court held that a defendant’s knowledge that
she could refuse to consent is not necessary to a determination that the defen-
dant voluntarily consented to a search. The court explained that the voluntari-
ness determination instead bridges two competing concerns—the government’s
legitimate interest in using an individual’s consent to gain access to places and
things that may contain evidence of criminal activity and “the equally important
requirement of assuring the absence of coercion.” Id. at 227. Ultimately the Court
in Schneckloth concluded that the question as to whether a defendant voluntarily
consented to a search is one of fact, “to be determined from the totality of the
circumstances,” including both objective facts about the police conduct and sub-
jective facts about the defendant’s understanding. Id. at 226-27.
Cite as 361 Or 527 (2017) 537
In contrast, our decisions under Article I, section 9,
indicate that circumstances showing the defendant’s actual
understanding and intent are relevant to the voluntariness
analysis. See, e.g., State v. Stevens, 311 Or 119, 132-38, 806
P2d 92 (1991) (voluntariness of defendant’s consent to search
was assessed by considering facts about defendant’s actual
mental state in addition to facts about police conduct).
C.  Scope of Consent
The nature of the consent exception under Article I,
section 9, thus suggests that a proper inquiry into the scope
of a person’s consent should be concerned with the person’s
actual understanding and intent. But, as this court has dis-
cussed in other cases, such subjective inquiries can be prob-
lematic, if for no other reason than that they do not always
promote consistency by treating like cases alike. See, e.g.,
State v. Ashbaugh, 349 Or 297, 311-16, 244 P3d 360 (2010)
(discussing problems with subjective approach to determin-
ing when a person has been seized for purposes of Article I,
section 9).
In sum, the logic behind the consent exception sup-
ports a focus on the defendant’s actual understanding and
intent with respect to the scope of her consent to a search,
but what a person says is often the best indicator of what the
person intended. In light of those considerations, we think
that the nature of the inquiry should be described in the
following way: In determining whether a particular search
falls within the scope of a defendant’s consent, the trial
court will determine, based on the totality of circumstances,
what the defendant actually intended. That determination
is a factual one.4 It follows that we are bound by any findings
In later decisions, however, the Supreme Court has rejected consideration
of circumstances that speak to the defendant’s subjective understanding and
intentions; instead, the Court has focused on purely objective factors, and most
particularly, on the conduct of the police. See, e.g., Drayton, 536 U.S. at 204-07.
In consequence, as one writer has observed, the test that the federal courts now
employ does not so much determine whether a defendant consented voluntarily
as it determines whether the conduct of the police was appropriate in the circum-
stances. Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for
Understanding the Consent Searches Doctrine, 80 Ind L J 773, 784 (2005).
4
Of course, the factual circumstances relating to the scope of a defendant’s
consent can be disputed, in which event the trial court must determine the facts.
538 State v. Blair
of fact made by the trial court if constitutionally sufficient
evidence supports them. State v. Maciel-Figueroa, 361 Or
163, 165-66, 389 P3d 1121 (2017).
However, where—based on the totality of circum-
stances—the defendant’s intent with respect to the scope of
consent is unambiguously expressed, that manifestation of
intent is controlling. In that way, what a reasonable person
would understand by his or her choice of unambiguous words
or other manifestations of intent will bear its expected weight
in citizen-police interactions.5 Such clarity in expression will
be further promoted when officers requesting consent make
clear to a suspect what the objects of the requested search
are and what level of scrutiny is sought.
D.  State’s Proposed Corollary Rule
With those foundational principles in mind, we turn
to the state’s proposed corollary rule. As discussed, the state
contends that, when asked by a police officer for permission
to “search” an item of personal property, a reasonable per-
son would understand that the officer—a person whose pro-
fessional duties include investigating criminal conduct—is
seeking consent to open and thoroughly inspect any closed
containers within the item that might contain contraband.
Accordingly, the state argues, evidence that a police offi-
cer asked to “search” an item of property and that the per-
son agreed to the request without qualification should be
sufficient, by itself, to establish that the person’s consent
extended to opening virtually any closed but unlocked con-
tainer found inside the item. That rule should apply, the
state argues, unless other, specific evidence shows that the
scope of consent was more limited.
We do not agree. Under the state’s proposed rule,
the constitutional inquiry would be limited to two circum-
stances when a request to search is phrased in general
terms—the requestor’s status as a police officer and the
5
A similar approach to the determination of intent is taken in the con-
struction of contracts, where the question of the parties’ intent is one of fact, but
their unambiguous manifestations of intent are controlling. See, e.g., Computer
Concepts, Inc. v. Brandt, 310 Or 706, 713, 801 P2d 800 (1990) (employing
approach); May v. Chicago Insurance Co., 260 Or 285, 292-94, 490 P2d 150 (1971)
(same).
Cite as 361 Or 527 (2017) 539
use of the word “search.” However, those two factors are not
of such paramount significance that they ordinarily would
trump other surrounding circumstances.
The facts here illustrate the central role that sur-
rounding circumstances can play in the analysis. Even if
the bare facts of a police officer’s general request to search
an outward container, and a defendant’s unqualified affir-
mative response, could properly be considered in isolation,
those facts would not, by themselves, necessarily compel the
inference that the defendant was consenting to the opening
and inspection of the contents of any closed container discov-
ered during the search of the outward container. Although
it is true that a consenting person reasonably might infer
from those facts alone that the officer was asking to conduct
an intensive search that might extend that far, an opposing
inference also would be permissible. The very generality of
the request, i.e., its failure to identify any particular object
and its exclusive reference to the outward container itself,
also could support an inference that the officer intended a
quick and proforma inspection of the outward container,
and no more. In the absence of other evidence bearing on
the scope of consent, the evidence could be deemed to be
in equipoise, resulting in the conclusion that the state had
failed to meet its burden of persuasion. In short, the state’s
proposed default rule would undermine both a full-throated
consideration of the totality of the circumstances bearing
on the scope of the defendant’s consent, and it also would
not provide the certainty and predictability that the state
suggests. Accordingly, we reject that rule as a corollary to
the standard that we have adopted here. To reiterate that
standard, in determining whether a particular search falls
within the scope of a defendant’s consent, the trial court
will determine, based on the totality of circumstances, what
the defendant actually intended. However, where, after con-
sidering those circumstances, the defendant’s intent with
respect to the scope of consent is unambiguously expressed,
that manifestation of intent is controlling.
IV. APPLICATION
We now apply that standard to the record before us.
As in the illustration set out above, competing inferences
540 State v. Blair
could be drawn from both the officer’s generalized request
and defendant’s unqualified response with respect to what
defendant actually understood to be the scope of the offi-
cer’s request and what defendant intended by his responsive
manifestation of consent.
On the one hand, there is evidence in the record
that would support an inference that, at the time of defen-
dant’s interaction with Sergeant Jackson, it was obvious to
Jackson that defendant was under the influence of drugs.
In addition, there is evidence—testimony from a forensic
expert—that suggests that defendant in fact was under the
influence of psilocybin mushrooms at the time.6 It would be
permissible to infer from that evidence that defendant knew
that Jackson believed that he was under the influence of
drugs, resulting in a shared understanding that the officer
was asking for consent to look for drugs and that defendant’s
generalized consent therefore extended to closed containers
inside the backpack that could have held drugs.
On the other hand, it would also be permissible to
infer from Sergeant Jackson’s generalized request to search
defendant’s backpack and other surrounding circumstances
that the officer was not looking for any specific kind of item.
Although defendant apparently understood that Jackson
was a police officer, Jackson had appeared on the scene in
response to defendant’s report of being the possible victim
of a crime. To be sure, the evidence shows that Jackson sus-
pected that defendant was under the influence of drugs and
therefore also may have suspected that defendant had drugs
in his possession. But Jackson did not express either suspi-
cion to defendant. The interaction between the officer and
defendant was friendly and nonconfrontational; Jackson
had even agreed to accompany defendant as he retrieved
his backpack, a gesture that might give the impression that
he was acting primarily as a community caretaker or that
he was investigating a possible crime against defendant.
Although the inference that Jackson was thus acting as
defendant’s ally does not suggest any particular reason why
he would wish to search defendant’s property, or for what, it
6
Although that evidence also was relevant to the voluntariness of defen-
dant’s consent, we consider it here only as it pertains to the scope of that consent.
Cite as 361 Or 527 (2017) 541
nevertheless would permit a further inference that Jackson
was not looking for drugs or other contraband.7 Moreover,
the circumstances of the encounter also could have sug-
gested that Jackson’s request was a pro forma officer safety
exercise or, from defendant’s perspective, that the request
took him by surprise and that he did not have sufficient
time and knowledge to understand and appreciate that
the request could implicate the scope and intensity of the
search. In any event, the inference that the state seeks to
draw from Jackson’s status as a police officer is not the only
permissible inference that could be drawn with respect to
defendant’s intention as to the scope of his consent to search
the backpack.
The state remonstrates that defendant’s consent to
the search of the knotted grocery bag can be unambiguously
inferred from the fact that he did not object when Jackson
began to open it. The state’s assertion is factually flawed: It
relies on an assumption that defendant had an opportunity
to object to Jackson’s unknotting and opening of the bag,
when there is no evidence in the record that supports such
an assumption. As far as the evidence shows, defendant
might not have even realized that Jackson was opening the
bag until after the fact. At least on this record, defendant’s
failure to object did not constitute an unambiguous manifes-
tation of consent to the search of closed containers inside the
backpack.
In this case, it is unclear from the record whether
the trial court found as fact that defendant actually intended
to consent to the search of closed containers inside his back-
pack. Although we ordinarily would presume that a trial
court found facts consistent with its ultimate suppression
decision, State v. Holdorf, 355 Or 812, 814, 333 P3d 982
(2014), it is not apparent that the trial court in this case
understood the scope of consent determination to be the
7
The Court of Appeals suggested that, in light of Jackson’s apparent interest
in helping defendant find his belongings, a person observing the encounter might
reasonably conclude that Jackson wanted to look inside defendant’s backpack to
determine whether defendant’s lost sweatshirt was there. Blair, 278 Or App at
520. However, that inference is not available on this record: According to uncon-
troverted evidence, defendant and Jackson already had found the missing sweat-
shirt at the time Jackson asked to search the backpack.
542 State v. Blair
factual inquiry that we have described. Remand, therefore,
is necessary to give the trial court the opportunity to deter-
mine the scope of defendant’s consent under the correct
standard.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is vacated, and the case is
remanded to the circuit court for further proceedings con-
sistent with this decision.