State v. Tennant

                                        70

       Argued and submitted December 17, 2020, reversed and remanded
                              March 17, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                CHELSEY LEE IRENE TENNANT,
                     Defendant-Appellant.
                   Lane County Circuit Court
                     18CR84219; A171065
                                   

     Defendant appeals judgments of conviction for possession of heroin, ORS
475.854(2)(b), felon in possession of a firearm, ORS 166.270(1), and two counts of
felon in possession of a restricted weapon, ORS 166.270(2), which resulted from a
search of his bedroom while he was on probation. He argues that the search was
unlawful under Article I, section 9, of the Oregon Constitution, because the state
did not establish that he consented to the search, but rather, merely acquiesced
to the show of authority present. The state responds that the “mere acquiescence”
distinction is inapplicable here because it is limited to situations where the defendant is “informed that a search will occur regardless of whether he or she consents or is not given a reasonable opportunity to consent at all.” Held: The state
did not meet its burden in establishing that defendant consented to the search
rather than merely acquiescing to the show of authority present. When the state
claims “consent” as an exception to the constitutional warrant requirement, it
has the burden of proof and persuasion to establish, by a preponderance of the
evidence, among other things, that the defendant voluntarily consented to the
search, rather than simply acquiesced to authority. The situation must be viewed
from the perspective of the defendant, and not the police officer. The state must
also show that a defendant on probation was given “a reasonable opportunity”
to refuse. On this record, the Court of Appeals could not conclude that the state
carried its burden to establish that defendant consented to the search.
    Reversed and remanded.



    Charles D. Carlson, Judge.
   Francis C. Gieringer, 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.
   Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
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  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  JAMES, J.
  Reversed and remanded.
72                                           State v. Tennant

        JAMES, J.
         Defendant was on probation in Lane County when
two parole and probation officers entered his home, not for
him, but to contact Harrelson, defendant’s girlfriend, whom
the officers believed to be at least temporarily at defendant’s
house. Once inside, after learning that defendant too was
on probation, one officer requested to enter defendant’s
bedroom and conduct a search. That search revealed evidence that led to defendant’s conviction for possession of
heroin (ORS 475.854(2)(b)), felon in possession of a firearm
(ORS 166.270(1)), and two counts of felon in possession of a
restricted weapon (ORS 166.270(2)). Defendant appeals that
judgment of conviction, arguing that the search of his bedroom was unlawful under Article I, section 9, of the Oregon
Constitution, because the state did not establish that he
consented to the search, rather than merely acquiesced to
the show of authority present. We agree with defendant and
accordingly reverse and remand.
         We “review the trial court’s denial of defendant’s
motion to suppress for errors of law.” State v. Craig, 

, 

 (2017). “In doing so, we are
bound by the trial court’s findings of historical fact as long
as there is constitutionally sufficient evidence to support
them.” State v. Middleton, 

, 

(2020). “If the trial court does not make findings on all the
material facts and there is evidence from which such facts
could be decided in more than one way, we will presume that
the facts were decided in a manner consistent with the trial
court’s ultimate findings.” State v. Regnier, 

, 

 (2009). We state the facts, which are not
in dispute by the parties, in accord with that standard.
         In December 2018, Lane County Probation Officers
Biel and Barton came to defendant’s home to contact
Harrelson, whom Barton supervised. Neither officer supervised defendant. Biel carried a firearm and wore “an agencyissued polo that has a badge on it” and an “outer external
carrier” that identified him as a parole officer.
       Barton knocked on the front door. Harrelson opened
a peephole and then closed it. Barton announced that they
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were parole and probation officers. Harrelson opened the
door and invited the probation officers inside.
         Both defendant and Harrelson stood in the living room as the officers entered. As Barton spoke with
Harrelson, Biel spoke with defendant and determined that
defendant was on probation, but Biel did not know why.
Biel testified about his understanding of general probation
conditions:
      “[PROSECUTOR]: Okay. Officer Biel, are you aware
   that a condition of probation is to permit a parole and probation officer to visit the probationer at the probationer’s
   work site or residence and to conduct walk throughs of the
   common areas and of the rooms of the residence occupied
   by or under the control of the probationer?
      “[BIEL]: Yes, I am.
       “[PROSECUTOR]: Are you also aware that one of the
   conditions of probation is to consent to the search of a person’s vehicle or premises upon the request of a representative of the supervising officer if the supervising officer has
   reasonable grounds to believe the evidence of a violation
   will be found?
      “[BIEL]: Yes, I am.”
         At some point, defendant started walking towards
a bedroom. Biel “follow[ed] the defendant and asked if [he]
could also come into the room.” Biel testified that, after learning that defendant was on supervision, he “wasn’t going to
let the defendant out of [his] eyesight.” While Biel was in the
bedroom, Barton informed him that she had found “some
bullets.” As Biel testified:
      “[BIEL]: At that point, I asked the defendant for consent to search for a firearm.
      “[PROSECUTOR]: Okay. And what did the—what did
   the defendant respond to you when you asked to search?
      “[BIEL]: That I could, that I could search the residence.
      “[PROSECUTOR]: Okay. And was there anything he
   said that you are not allowed to search? Or is it an open
   ended? How was it phrased?
74                                               State v. Tennant

        “[BIEL]: It was open. I don’t remember the exact
     answer but at no time did they say that I could not search.”
          Biel’s search discovered firearms and ammunition,
a billy club, a stun gun Taser, some fake currency, a butterfly style knife, and then other miscellaneous items like BB
pellet guns and drug paraphernalia like foil and a tar-like
substance that Biel presumed was heroin.
        At trial, defendant moved to suppress the evidence
found in the search arguing, in part, that his consent was
mere acquiescence. The state responded that the “mere acquiescence” distinction was inapplicable here, arguing that it
was limited to situations where the defendant is explicitly
“informed that a search will occur regardless of whether he
or she consents or is not given a reasonable opportunity to
consent at all.” The trial court denied defendant’s motion to
suppress and a stipulated facts trial followed, resulting in
defendant’s conviction.
         Defendant appeals, and the parties largely renew
their arguments from trial. Although the parties each
focus initially on the various statutory basis for probation
supervision, they both ultimately coalesce around the dispositive issue in this case—whether defendant consented.
Defendant argues he did not consent but merely acquiescenced to authority. The state responds that “the record
does not show any implied threat that, if defendant refused
to allow Officer Biel to enter his bedroom or search … he
would face negative consequences.” The case so framed, we
turn to the merits.
         At the outset, it is important to clarify what is not at
issue in this case. First, the state does not assert—correctly
so—that the search conducted here was permitted under the
general conditions of probation that permit home visits. As
we said in State v. Guzman, “the authority to conduct a home
visit under the conditions of probation does not encompass
the authority to conduct a search.” 

, 

 (1999), rev den, 

 (2000). Second, the state
does not contend—again, properly so—that defendant was
required to consent to a search by virtue of his probationary
status. In State v. Hindman, we held that a probation condition requiring submission to a request to search a residence
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“was an agreement to consent to a search and not a prospective consent.” 

, 

 (1993). As
we explained in State v. Davis, general conditions of probation do not constitute a “waiver of the probationer’s Article I,
section 9, rights, the probationer is entitled to refuse to allow
the search, and must be given a reasonable opportunity to do
so.” 

, 

, rev den, 

(1995) (emphasis added). The issue in this case is therefore
one of common variety consent. Finally, the state does not
claim that Harrelson consented to a search of the residence,
or even had the authority to consent. As such, the focus is
entirely on the validity of defendant’s consent.
         A warrantless search violates Article I, section 9,
unless it is justified by an exception to the warrant requirement; consent is such an exception. State v. McMilian, 

, 

 (2003), rev den, 

 (2004).
When the state claims “consent” as an exception to the constitutional warrant requirement, the state has the burden
of proof and persuasion to establish, by a preponderance of
the evidence, four things: (1) that a person with the authority to do so, (2) voluntarily consented to the search, rather
than simply acquiesced to authority.1 Then, the state must
establish (3) the scope of consent given, and finally, (4) that
the search conducted did not exceed the scope of the consent
given. For the purposes of our disposition here, only the second of those is at issue.
         To establish consent, the state first must establish that defendant’s “consent” was, in fact, consent, and
“not mere acquiescence to a thinly veiled demand.” State v.
Brock, 

, 

 (2012). A defendant’s “mere acquiescence” to police authority does not constitute consent. State v. Berg, 

, 

 (2008), adh’d to as modified on recons, 

,

, rev den, 

 (2009). “[A]cquiescence
occurs when an individual is not given a reasonable opportunity to choose to consent” or when circumstances or words
make clear that “a search will occur regardless of whether
    1
      Our decisions in this area sometimes treat acquiescence as distinct from
voluntariness, and other times as a form of, or subset of, involuntary consent.
Whether it is best viewed as a different element or not, it may be useful for courts
and practitioners to approach the issue with some conceptual separation.
76                                           State v. Tennant

consent is given.” Id. In determining whether a particular
police-citizen interaction amounts to consent, versus mere
acquiescence, we look to the totality of the circumstances
present during the encounter. State v. Jepson, 

, 

 (2012).
           The language used by the officer requesting consent is particularly relevant to the totality of circumstances.
State v. Briggs, 

, 

, rev den,

 (2013). However, language is not dispositive.
We place the language in a broader context of a totality of
circumstances. As we have noted in the related context of
a seizure under Article I, section 9, inquiries “framed as a
question” may nevertheless be “confrontational in the context of [the] interaction.” State v. Leiby, 

,

 (2018). “[A] rising tone, or a question mark at
the end of a sentence, is not a talisman that automatically
transmutes a police-citizen interaction into a ‘mere encounter.’ ” 

 So, too, the language requesting consent to search,
even when politely phrased, does not automatically make
the response consent, as opposed to acquiescence.
          Importantly, in assessing consent versus mere
acquiescence, we view the situation from the perspective of
the person being asked for consent, not the police officer asking. As we held in Briggs, “[w]hen those words do not provide
the listener with a reasonable opportunity to choose to consent, or when those words leave the listener with the impression that a search is inevitable, absent strong countervailing factors, we have consistently found acquiescence rather
than consent.” 

. The impression that a
search is inevitable can come from what is said, the manner
in which it is said, the situational context of the encounter,
as well as what is left unsaid. See, e.g., Jepson, 

 (“[the officer’s] statement that ‘we’re going to have
to take the firearms,’ … was not a request to obtain consent, but rather, an unconditional statement, which did not
invite a response other than acquiescence”); State v. Freund,

, 

 (1990) (officer’s statement
“that ‘he was there’ to pick up the marijuana and ‘he wanted’
to do it calmly” was unconditional and communicated to the
defendant that she had “no choice whether a search would
occur”); Briggs, 

 (holding that the state
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met its burden of proving that consent was voluntary where,
despite the officer’s declaratory statement—“I need to talk
to the person that just ran in”—the officer’s words did not
convey to the listener that she had no choice as to whether a
search would occur).
        Finally, in the context of a request for consent by a
probationer, we have held that, to meet its burden, the state
must show that the probationer was given “a reasonable
opportunity” to refuse. Davis, 

. Although
we have never held it to be explicitly required, in assessing
whether the state has met that burden, we have given considerable weight to whether the officer “correctly informed
defendant that he could refuse to consent to a search, while
noting that such a refusal could subject him to arrest for
a probation violation.” State v. Hiner, 

,

 (2010).
          Here, on this record, we cannot conclude that the
state carried its burden to establish that defendant consented to the search. Warrantless searches are per se unreasonable and presumptively unlawful. State v. Baker, 

, 

 (2011). Any claimed exception to the
warrant requirement—including consent—requires proof
by the state as to each element necessary to establish the
exception. See State v. Bonilla, 

, 

 (2015) (discussing consent exception to the warrant
requirement). On appeal, the state argues, in part, that “the
record does not demonstrate that [defendant’s] consent was
the product of implied coercion or ‘mere acquiescence’ to
police authority.” That argument misstates the burden. It
assumes consent, unless mere acquiescence is shown. But
it is not defendant’s burden to prove acquiescence; it is the
state’s burden to prove affirmatively that defendant consented rather than merely acquiesced.
         Here, the state offered little other than defendant’s
agreement to Biel’s request, and the fact that Biel never
pointed his firearm at defendant. More is required for the
state to satisfy its burden. We must view the situation from
the perspective of the listener, i.e., defendant. See Briggs,

. Defendant was presented with two
parole and probation officers who, upon entering his home,
78                                               State v. Tennant

immediately began questioning both himself and his girlfriend. They also immediately observed drug paraphernalia. Defendant was on probation, and there is no dispute
on this record that he believed his consent to search was a
condition of that probation. As the prosecutor elicited from
defendant:
        “[PROSECUTOR]: [Defendant], when you were placed
     on probation, you were—you were told the conditions of
     your probation; is that correct?
       “[DEFENDANT]:        Correct.
        “[PROSECUTOR]:       And       you   understood   those
     conditions?
       “[DEFENDANT]: Mm-hmm.
        “[PROSECUTOR]:       You understood one of them is to
     consent to searches?
        “[DEFENDANT]: If—by who? By my parole officer,
     yeah.”
         Correspondingly, the record shows that Biel both
knew that defendant was on probation and also was operating under the mistaken belief that defendant’s probationary status required him to consent to a search, rather than
just make his refusal to consent grounds for a probation
violation.
          Biel testified that, as defendant left the living room,
Biel “followed” him. By Biel’s own testimony, his request to
enter defendant’s room was formality. Biel testified that he
was not going to let “defendant out of [his] eyesight.” In furtherance of that objective, the record shows that Biel was
not going to allow defendant to enter his bedroom without
Biel also entering the bedroom.
         The state presented little testimony concerning
Barton’s interaction with Harrelson that was occurring
simultaneously to Biel’s interaction with defendant. The
officers had come to the house for Harrelson, who Barton
proceeded to interrogate in the living room, in view of contraband. The record shows, however, that Barton informed
Biel that he had uncovered some bullets from his interaction
with Harrelson.
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         Finally, the state offered no testimony that Biel ever
informed defendant that he could refuse consent or limit
the scope of consent. Ultimately it is the state’s burden, not
defendant’s, to establish that the officer’s words and conduct
did not create “the impression that a search is inevitable.”
State v. Watts, 

, 

 (2017). This
record falls short of that standard.
        Reversed and remanded.