State v. Solorio

                                      666

  Argued and submitted June 26, 2019, reversed and remanded June 17, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  LUIS ARMANDO SOLORIO,
               aka Luis Solorio, aka Luis A. Solorio,
                      Defendant-Appellant.
                Multnomah County Circuit Court
                      16CR66095; A165679
                                   

    Defendant appeals a judgment of conviction for felon in possession of a firearm, ORS 166.270(1). He assigns error to the trial court’s denial of his motion to
suppress evidence obtained during a warrantless search and subsequent seizure
of his personal effects, from a safe within his vehicle, in violation of Article I,
section 9, of the Oregon Constitution and the Fourth Amendment to the United
States Constitution. The state concedes that the trial court erred in relying on
the search incident to arrest and officer safety exception. However, the state
asserts that the trial court did not err because the police received consent from
a third-party who had actual authority to consent. Held: The trial court erred in
denying defendant’s motion to suppress. The search and subsequent seizure were
unlawful because the third party did not have actual authority to consent to a
search. The Court of Appeals also accepted the state’s concession that the search
incident to arrest and officer safety exception would not apply.
    Reversed and remanded.



    Karin Johana Immergut, Judge.
   Sara F. Werboff, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Aoyagi, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.*
______________
   * Egan, C. J., vice Hadlock, J. pro tempore.
Cite as 

 (2020)   667

  EGAN, C. J.
  Reversed and remanded.
668                                             State v. Solorio

         EGAN, C. J.

         Defendant appeals a judgment of conviction for
felon in possession of a firearm. ORS 166.270(1). On appeal,
defendant argues that the trial court erred in its denial of
his motion to suppress evidence obtained during a search
and subsequent seizure of his personal effects in violation
of Article I, section 9, of the Oregon Constitution and the
Fourth Amendment to the United States Constitution. We
agree with defendant and reverse and remand.

         In reviewing the denial of a motion to suppress, “we
are bound by a trial court’s factual findings, if the record
contains evidence to support them.” State v. Serrano 

, 

 (2009). If the trial court failed to articulate a factual finding on a pertinent issue, we assume that
the trial court decided the facts “in a manner consistent with
the court’s ultimate conclusions, as long as there is evidence
in the record, and inferences that reasonably may be drawn
from that evidence,” that would support its conclusion. State
v. Juarez-Godinez, 

, 

 (1997).

          While defendant was in jail, two police officers,
Thurman and Roberts, responded to a call about a suspicious
van parked in a cul-de-sac near the Springwater Corridor in
Portland. According to Roberts, the location is generally an
“unsafe” area, where there have been drug-related shootings, parties, and overdoses. Thurman viewed the cul-de-sac
itself as “a little dangerous,” because there is only one way in
and out, which eliminates the element of surprise for police
officers.

         Thurman arrived at the location first and approached
a van that had all of its doors open. A male, Siri, was sitting in the driver’s seat, and a female, Seagrest, was in the
back seat. On the floor, beneath the driver’s seat, Thurman
was able to see a syringe. Thurman asked who the vehicle belonged to, and Siri replied, “Dawson.” Siri also stated
that Dawson had just left. Roberts arrived at the scene at
about that time, and Thurman walked away to run Siri and
Seagrest’s names through dispatch.
Cite as 

 (2020)                            669

         Roberts came to the passenger side of the vehicle
and observed a syringe with a brown substance in it, small
plastic bags, and a scale with a brown substance on it. Given
his training and experience, he suspected the brown substance to be heroin. Due to his observations of the syringe
and scale, Roberts read Siri and Seagrest their Miranda
rights, told them they were not free to leave, and began
investigating drug-related offenses. Siri told Roberts that
Dawson “had lost the key to the van” and had asked him to
safeguard the van while she was gone. After that conversation, and because Siri was in the driver’s seat, Roberts
concluded that Siri was “in control of the van.” Roberts
asked Siri for consent to search the van and a small safe
that Roberts observed inside the van. Siri consented to both.
When asked about the safe, Siri told Roberts that, “[i]t’s not
my safe”; however, “[y]ou can go into it.”

         Roberts asked Siri and Seagrest to exit the van,
so that he could search it. They did. Before searching the
van, Roberts searched Siri and Seagrest. At the suppression hearing, Roberts testified that he wanted to take Siri
and Seagrest out of the van to search them for firearms.
However, when Roberts was asked about whether he had
safety concerns, he replied that he “may not” have had
any. He further clarified that “I am always to some degree
concerned when I am dealing with the unknown, because
there were drugs in the car.” But, as to Siri and Seagrest
specifically, “at no point did either one of them make any
kind of a furtive movement or act in such a way that
made me hyper-concerned more so than I already would
be.” Roberts did not find any weapons on either Siri or
Seagrest.

         After searching Siri and Seagrest, Roberts searched
the safe, which was unlocked. Roberts opened it and found
a firearm inside. Roberts did not remove the firearm from
the safe immediately after seeing it. Instead, he continued
searching the vehicle. While Roberts was searching the
vehicle, and Thurman was running names through dispatch,
Dawson arrived.
670                                           State v. Solorio

          As Dawson approached, she called out to the officers “[t]hat’s my van.” Roberts asked if she had left Siri
and Seagrest “in control of the van.” She replied, “yes they
were allowed to be in there” and that “I asked them to
watch the van for me. So[,] they had control of the van.”
Roberts also asked Dawson if he could have her permission to search the vehicle and the safe. She replied, “that’s
fine.” Roberts talked to Dawson about his discussion with
Siri and Seagrest, and he told her that they “gave [him]
permission to go into the safe.” He also told her that he
had “looked inside of the safe” and that he was “concerned
with what [he] saw.” He then asked, do “[y]ou want to tell
me what’s going on with [the firearm]?” Dawson replied,
“The safe is the property of my boyfriend, … there’s a
gun in there, and there’s some fake drugs … in the bottom.” She added that her boyfriend, defendant, had “been
in jail for about a week now in Clackamas County.” Dawson
gave Roberts permission to open the safe to retrieve the
gun. However, the safe had locked automatically after the
first time he had opened it. Dawson claimed she had “the
passcode” to the safe and “attempted several different combinations to get into it and none of those worked.” Because
none of those combinations worked, Roberts “pried it open.”
Inside the safe was a gun, ammunition, heroin, and drug
paraphernalia.

        Roberts later talked to defendant in jail. Defendant
stated that the van was shared with his girlfriend, Dawson,
but that the gun inside the safe was his property. Defendant
was charged with felon in possession of a firearm under
ORS 166.270(1).

         Defendant moved to suppress his statements and
the physical evidence that had been seized. The trial court
denied the motion on three grounds—that the search of
the safe was justified as a search incident to arrest, that
it was justified on officer safety grounds, and that it was a
consent search. As to the first rationale, defendant argued
that, because Siri and Seagrest were not subjected to an
arrest, the search incident to arrest exception did not apply.
The trial court concluded, however, that Siri and Seagrest
Cite as 

 (2020)                                   671

were “effectively arrested” because they were removed from
the van, they were not free to leave, they were given their
Miranda warnings, they were being blocked from leaving
the premises, and “the parties could see that [the officers]
had probable cause to arrest” them.

         Defendant next argued that the officer safety exception did not apply because the officer’s safety concern was
only generalized, and that the officer did not have subjective and objective suspicion of imminent physical injury. The
trial court concluded that the exception applied because it
“was a high crime area, a drug area, drugs and guns …
go hand in hand,” the vehicle was suspicious with “what
appeared to be … drug trafficking” inside, and that there
could be people in that area and that “they didn’t know who
was around[.]”

         Finally, defendant argued that none of the people
who consented to the search of the safe had actual authority to do so. The trial court ruled that Siri, Seagrest, and
Dawson all had actual authority to consent to a search of the
van. For Siri and Seagrest, the court reasoned that, because
the safe was unlocked and because they had control of the
van, given by Dawson or through an “agency theory,” they
had actual authority to consent to a search. As to Dawson,
the court found that defendant “gave complete control over
the van and all [of] its contents” to Dawson. The trial court
reasoned that, because Dawson was

   “familiar with what was in the closed containers, that
   it was within her right as a co-owner of the car and the
   contents of the car under the circumstances of this case,
   [that] there is no expectation of … privacy … [because]
   Dawson had complete control over the car.”

         After the motion was denied, the parties agreed to a
stipulated-facts bench trial. The trial court found defendant
guilty of felon in possession, and this appeal followed.

         To support his sole assignment of error, defendant
challenges the trial court’s three justifications for the denial
of his motion to suppress. On appeal, the state does not defend
672                                                           State v. Solorio

the trial court’s first1 and second2 grounds for denial of his
motion, and we agree that the trial court erred in relying on
the search-incident-to-arrest and officer-safety exceptions
to the warrant requirement. Therefore, we address only the
third justification for the trial court’s ruling. In support of
defendant’s position that the police lacked valid consent,
because no one with actual authority had consented to the
search of the safe, he makes three arguments. First, he
argues that Siri and Seagrest did not have actual authority
to consent to a search of the safe, either given by Dawson
or through an agency theory. Second, he argues that any
lawful searches that might have happened were fruits of an
unlawful search, namely Roberts’ original search of the safe
with consent by Seagrest. Third, he argues that Dawson did
not have actual authority to consent to a search of the safe.
The state argues that Dawson had joint access to the safe
and that she properly delegated her right of access to Siri
and Seagrest by her. For the reasons explained below, we
agree with defendant.
         “We defer to the trial court’s express and implicit
findings of fact, but whether those facts support a conclusion
that the consenting person had authority is a legal question.”
State v. Kurokawa-Lasciak, 

, 

       There is no evidence in the record that either Siri or Seagrest were subject to a “custodial arrest,” as required under the Fourth Amendment to the
United States Constitution to support a search incident to arrest. See Knowles
v. Iowa, 

, 

, 

 (1998) (probable cause
to arrest does not provide ground for a search incident to arrest if no custodial arrest occurs); United State v. Robinson, 

, 

,

 (1973) (requiring a custodial arrest for a search incident to
arrest). The state does not argue on appeal that the trial court was correct in
its conclusion that the search at issue here was justified as a search incident to
arrest. “Because we conclude that defendant’s Fourth Amendment rights were
violated, it is unnecessary for us to consider whether … defendant is entitled
to greater protection under Article I, section 9, of the Oregon Constitution.”
State v. Caster, 

, 225 n 4, 

, rev den, 

(2010).
     2
       The officers testified about, and the trial court found, only generalized
concerns regarding the officers’ safety, which is insufficient under Article I, section 9, to allow a search under the officer safety exception. State v. Powell, 

, 665-66, 

, rev den, 

 (2017) (holding that the
officer’s safety concerns “must be based on facts specific to the particular person
searched, not on intuition or a generalized fear that the person may pose a threat
to the officer’s safety or the safety of others nearby” (internal quotation marks
omitted)).
Cite as 

 (2020)                                                 673

38, rev den, 

 (2012) (citing State v. Beylund, 

, 

, rev den, 

 (1999)).
          Under Article I, section 9,3 a warrantless search is
per se unreasonable unless it falls within one of the limited
exceptions to the warrant requirement.4 State v. Bridewell,

, 

 (1988). Consent is an exception
to the warrant requirement, but consent may be given only
by a person with actual authority to consent. State v. Bonilla,

, 

 (2015) (“[T]o 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.” (Emphasis added.)). In determining whether a
third-party’s consent is valid, we measure the relationship of
the third party to the premises or the things searched. State
v. Lambert, 

, 

 (1995). A third
party must have common authority as shown by that person’s
“joint use or occupancy of the premises” to validly authorize
a search. State v. Jenkins, 

, 

,
rev den, 

 (2002) (internal quotation marks omitted). It is the state’s burden to show that the third party had
actual authority to consent to the search. City of Portland v.
Paulson, 

, 

 (1989).
         We first consider whether Dawson had actual
authority to consent to a search, as any authority that Siri
and Seagrest had would have been derived from Dawson’s
actual authority. Defendant does not dispute the trial
court’s finding that Dawson had actual authority over the
van, and we agree that Dawson was a joint occupant of the
van and had actual authority over it.5 However, even if a

    3
      Article I, section 9, provides:
        “No law shall violate the right of the people to be secure in their persons,
    houses, papers, and effects, against unreasonable search, or seizure; and no
    warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or
    thing to be seized.”
    4
      Because we conclude that defendant’s Article I, section 9 rights were violated, we do not address his arguments made under the Fourth Amendment.
    5
      The following facts support a determination that Dawson had actual
authority to consent to a search of the van. When Dawson approached the van,
she called out to the officers, “[t]hat’s my van.” Siri and Seagrest also both told
Roberts that Dawson was the owner. And, although defendant actually owns the
van, he told Roberts that he “shared [the van] with his girlfriend.”
674                                           State v. Solorio

person is a joint occupant, one party’s ability to authorize a
search of items within a shared vehicle may be limited. See
Kurokawa-Lasciak, 

.
         Because Dawson had actual authority to consent to
a search of the van, we next discuss whether Dawson had
actual authority to consent to the search of the safe that
was inside the van. “Central to search and seizure law is
whether an individual has, in some way, assumed the risk
that a third party may legally consent to a search of that
individual’s property.” State v. Fuller, 

,

 (1999) (citing State v. Rohrbach, 

, 

 (1988)). Therefore, authority to consent to a
search of an area is not necessarily coextensive with authority to consent to a search of personal items within that area.
Fuller, 

; see State v. Edgell, 

, 

 (1998) (holding that the authority to
consent to a search of a vehicle does not automatically permit a search of personal effects within that car); see also
Kurokawa-Lasciak, 

 (opining that whether
the girlfriend of the defendant can consent to a search of the
van depends on whether there was “an understanding” of
common access). As a matter of law, actual authority over a
personal item requires “permission or acquiescence” by the
defendant for the third party to exercise control over that
personal item. Fuller, 

. That is, there must
be evidence that the defendant at least knew that the third
party was exercising control over the defendant’s personal
property and that the defendant did not object to the third
party exercising control over the defendant’s personal property. See 

 (concluding that there was “no evidence that
defendant knew that [defendant’s girlfriend] was getting
into his nightstand, much less that he explicitly authorized
or even implicitly acquiesced in that conduct” (emphasis
added)).
         There is insufficient evidence to support the trial
court’s finding that defendant “gave complete control over”
the safe to Dawson. The court’s reasoning to support its
determination that Dawson had actual authority over the
safe was that (1) she was “familiar with what was in the
closed containers,” (2) defendant had no control over the safe,
because he was in jail, and (3) it was “within [Dawson’s] right
Cite as 

 (2020)                                              675

as a co-owner of the car and the contents.” Furthermore,
there is evidence in the record that Dawson claimed that she
had “the passcode” to the safe. However, when she attempted
to open the safe, she could not. None of that evidence shows
permission or acquiescence by defendant for Dawson to
exercise control over the safe. At best, it allows an inference
that Dawson had accessed the safe. For instance, there is no
evidence that defendant gave Dawson permission to enter
the safe or that Dawson had ever opened it.6 Furthermore,
unlike in Fuller, where the defendant’s girlfriend occasionally used the nightstand, there is no evidence to support a
finding that Dawson ever entered or used the safe before her
unsuccessful attempts to open the safe under the supervision of the officer. That evidence is insufficient to establish
that Dawson had actual authority to consent to a search of
the safe.
         Similarly, the fact that the safe was unlocked does
not create an inference that Dawson had actual authority
to consent to a search of the safe.7 Because the court determined that Siri and Seagrest had actual authority over
the safe, either given by Dawson or through an agency theory, it must have reasoned that that authority came from
Dawson. However, personal property being “unlocked does
not, in and of itself, allow an inference” that a third party
had actually authority to exercise control over the personal
property. Fuller, 

. Instead, there must
be evidence of either “permission or acquiescence” by the
defendant to the third party. 

. As stated before,
there is no evidence in the record to support a finding that
Dawson had permission or acquiescence from defendant to
enter the safe. Therefore, the fact that the safe was unlocked
is insufficient to show that Dawson had actual authority to
exercise control over the safe.
       The evidence that is closest to allowing an inference
that Dawson had permission or acquiescence to exercise

    6
      Evidence that Dawson knew the contents of the safe is not necessarily evidence that she accessed the safe. For instance, Dawson could have seen the contents of the safe when defendant opened it.
    7
      The trial court found, in part, that Siri and Seagrest had actual authority
over the safe because it was unlocked when Roberts first opened it.
676                                              State v. Solorio

control over the safe is that Dawson attempted to open the
safe for the officer. Dawson’s acts of telling the officer that she
had the combination to the safe, and subsequently attempting to open the safe, allows an inference that Dawson at
least once knew the combination to the safe. We assume for
the sake of argument that Dawson did have a combination
to the safe, one that at least had been valid at some point in
time. However, having a means of access, such as a key, in
and of itself, does not show an agreement or understanding
between a defendant and a third party. See Jenkins, 

 (finding that parents did not have actual authority to search a garage that the defendant lived in attached
to their house, even though they had access to an emergency
key). Instead, when evaluating third-party consent, we consider the relationship of the third party to the premises or
the things searched. See Fuller, 

. In determining whether there is a sufficient relationship to create
joint access, it is the state’s burden to show that the third
party has more than mere access. 

 (finding that
occasional access to the nightstand without the defendant’s
knowledge is insufficient to show actual authority); Paulson,

 (holding that an officer’s testimony that
the third party told him that she had lived at the residence
was insufficient to show joint authority). Nothing in the
record here indicates that defendant gave Dawson permission to use the combination, that defendant knew that she
had the combination, or whether it was defendant that had
given her the combination. In essence, there is no evidence
of an agreement or understanding between Dawson and
defendant about access to the safe. For that reason, the evidence was not legally sufficient to show that Dawson had
actual authority to consent to a search of the safe.
        The state argues that, when a joint occupant has
actual authority over an area, they are “presumed to have
completely assumed all risk that the other will consent to
a search” unless there is an agreement otherwise. In making that argument, the state heavily relies on Kurokawa-Lasciak. However, the main principles of that case do not
support the state’s assertion. Instead, the case states that
whether a third party could consent to a search of a particular item hinges on what understanding or agreement the
Cite as 

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people involved had formed. Kurokawa-Lasciak, 

 (holding that the agreement between the defendant and his girlfriend had “strict limitations” and that
the agreement did not extend past “extracting the family
dog, locking the van, and keeping it locked”). As previously
stated, there is no evidence to support that defendant and
Dawson had an understanding or agreement for her to exercise control over the safe.
         To be sure, Kurokawa-Lasciak does discuss a presumption of a “full quantum of authority” given to a third
party. 

. However, in no case has the presumption
extended beyond the understanding or agreement between
the people involved. For instance, in Beylund, the third
party consented to a search of the defendant’s basement
where marijuana plants were growing. 158 Or App at 418.
The court found that the third party had “full access” to
the house, including the basement, because the third party
rented upstairs and was allowed to pay his rent by “tending
defendant’s marijuana plants” that were in the basement. Id.
         In another example, a house sitter was given full
actual authority over a house, including a locked freezer,
because of a note that provided the sitter with “complete
control of [the] household and everything pertaining to it.”
State v. Surface/Hurley, 

, 

(2002) (bracket in original; internal quotation marks omitted; emphasis added). In both of those cases, there was evidence in the record that the understanding or agreement
between the defendant and the third party was that the
third party could have access to the whole house, including the personal property inside. Here, however, there is no
evidence that there was an understanding or agreement
between Dawson and defendant that Dawson could exercise
control over the safe. Similarly, there is no evidence that
they had an understanding or agreement that Dawson had
a “full quantum of authority” to exercise control over all the
contents of the van.8

    8
      Because there was no lawful consent by Siri, Seagrest, or Dawson, we do
not discuss defendant’s second argument, which is that any search of the safe
after either Siri or Seagrest consented to a search, was tainted by the previous
unlawful search.
678                                                            State v. Solorio

         Because Dawson did not have authority to consent to a search, logically, Siri and Seagrest could not have
authority as agents of Dawson. Authority to consent to a
search “must be given by (or lawfully on behalf of) the person who holds the protected privacy interest.” Bonilla, 

. Therefore, Dawson could not give Siri or Seagrest
actual authority to consent to a search of the safe, either
through an agency theory or otherwise, because the agent’s
authority cannot exceed the scope of the actual authority of
the principal.9
         Because Dawson lacked actual authority to consent
to a search of defendant’s safe, the trial court erred in denying defendant’s motion to suppress.
           Reversed and remanded.




    9
       Bonilla keeps open the possibility that there may be some type of commonlaw authority to consent to a search as an agent. 

 nn 7 & 8 (noting
that “third person authority could be derived from an actual agency relationship”
as discussed in a case from the Fourth Circuit Court of Appeals (quoting United
States v. Block, 590 F2d 535, 539 n 5 (4th Cir 1978))). However, the agency principle at issue here is “based on joint access and control over [the] property” Bonilla,

 n 8 (citing State v. Carsey, 

, 

 (1983)),
not any other agency theory.