659
Argued and submitted November 21, 2022, reversed and remanded
March 22, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL LEE SOPRYCH,
Defendant-Appellant.
Washington County Circuit Court
19CR54508, 17CR76882;
A176391 (Control), A176392
527 P3d 808
In this consolidated appeal, defendant appeals (1) a judgment of conviction
for one count of unlawful possession of 3, 4-methylenedioxymethamphetamine
(MDMA) in a usable quantity, ORS 475.874(2)(a); and (2) a judgment extending
his probation in an unrelated criminal case based on that possession conviction.
He assigns error to the trial court’s denial of his motion to suppress evidence
on which his conviction was based. That evidence was found during a warrantless search of a locked safe in defendant’s bedroom; the state’s theory was that
defendant consented to the search. The trial court denied the motion to suppress,
agreeing with the state that defendant had consented to the search of the locked
safe. Held: The record did not allow for the nonspeculative inference that defendant intended to consent to the search of the locked safe, as required under State
v. Blair, 361 Or 527,
396 P3d 908 (2017).
Reversed and remanded.
Ricardo J. Menchaca, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellant Section, Office of Public
Defense Services.
Colm Moore, 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 Lagesen, Chief Judge,
and Jacquot, Judge.*
______________
* Jacquot, J., vice James, J. pro tempore.
660 State v. Soprych
LAGESEN, C. J.
Reversed and remanded.
Cite as 324 Or App 659 (2023) 661
LAGESEN, C. J.
In this consolidated appeal, defendant appeals (1) a
judgment of conviction for one count of unlawful possession
of 3, 4-methylenedioxymethamphetamine (MDMA), in a
usable quantity, ORS 475.874(2)(a); and (2) a judgment extending his probation in another criminal case based on the guilty
verdict in the first case. He assigns error to the trial court’s
denial of his motion to suppress evidence of the controlled
substances on which his conviction was based. Those controlled substances were found during a warrantless search
of a locked safe in defendant’s bedroom; the state’s theory
was that defendant consented to the search. The trial court
denied the motion to suppress, agreeing with the state that
defendant had consented to the search of the locked safe in
which the controlled substances were found. We conclude
that the record does not allow for the nonspeculative inference that defendant intended to consent to the search of the
locked safe, as required under State v. Blair, 361 Or 527,
396
P3d 908 (2017). Accordingly, we reverse and remand both
judgments for further proceedings.
We review a trial court’s denial of a motion to suppress by “accepting the trial court’s supported factual findings and determining ‘whether the trial court applied legal
principles correctly to those facts.’ ” State v. Soto-Navarro,
309 Or App 218, 223,
482 P3d 150 (2021) (quoting State v.
Ehly,
317 Or 66, 74-75,
854 P2d 421 (1993)). Absent express
factual findings, we presume the trial court found the facts
in a manner consistent with its ultimate conclusion. State v.
Peek,
310 Or App 587, 589,
485 P3d 292, rev den,
368 Or 597
(2021).
The relevant historical facts are not disputed; we
take most of them from the transcription of the audio from
the body camera recording of defendant’s arrest and the
search of his house; the recording was played into the record
at the hearing on the motion to suppress and thereby made
part of the transcript.
Officers from the Beaverton Police Department went
to defendant’s home after defendant’s roommate reported
that defendant had pistol-whipped him at their residence.
After police called loudly for defendant to come out of his
662 State v. Soprych
house with his “hands in the air,” defendant did so. Officers
immediately handcuffed and Mirandized him. Sergeant
Mastripolito then began to converse with defendant.
Mastripolito first told defendant about the pistolwhipping allegation. Defendant denied it. In response to
Mastripolito’s question whether defendant had “any guns in
the house,” defendant said “no.” After telling defendant that
it was his job “to find the truth,” Mastripolito asked if there
were any weapons in the house. Defendant responded “no.”
Mastripolito asked, “Can we check?” Defendant responded
“yes.” Mastripolito then asked, “You wouldn’t mind if we
checked?” Defendant responded “no.”
Mastripolito then explained to defendant that
checking the house for guns could help police corroborate
defendant’s version of events. He also told defendant that
the purpose of “check[ing]” for a gun was for safety:
“I appreciate that, and I want to talk to you about it.
This is all for everybody’s safety, all right? When people say
the word ‘gun,’ we kind of get a little—it’s okay to go into
your house? And we got to go into your house. Okay.”
Mastripolito stayed with defendant outside, continuing to converse with him, while other officers entered
the house. Mastripolito also was in radio contact with the
officers inside the house. After telling them what bedroom
was defendant’s, he asked defendant, “Does your room have
a key? The lock—you have a padlock on your room?” He then
asked whether officers could “look in there?” Defendant
responded, “Yeah. Do you want me to unlock it?” Mastripolito
declined defendant’s offer to unlock his bedroom door, and
asked defendant which key was the one for the padlock on
the door. Defendant told Mastripolito that the keys were in
the grass. Officers retrieved them and used them to open
the padlock on his bedroom door.
Officers then searched defendant’s bedroom. They
discovered a locked safe in defendant’s closet. They then
used one of defendant’s keys to open the safe; they did not
ask for defendant’s permission first. Inside the safe, they
found MDMA and two guns. Defendant was charged with
unlawful possession of a controlled substance, second-degree
Cite as 324 Or App 659 (2023) 663
assault, unlawful use of a weapon, and menacing. The state
later dismissed the last three charges.
Before trial, defendant moved to suppress evidence of the MDMA found in the safe in his bedroom. He
argued that the state had procured it in an unconstitutional warrantless search, in violation of defendant’s rights
under Article I, section 9, of the Oregon Constitution and
the Fourth Amendment to the United States Constitution.
Although defendant acknowledged that he had said yes
when police asked if they could check his home for firearms,
he contended that, in doing so, he had not authorized police
to open his locked safe. The state responded that by authorizing the officers to enter his home to look for guns, defendant authorized them to look any place where guns might
be located, including the locked safe. The trial court agreed
with the state and denied the motion to suppress. Defendant
waived his right to a jury trial, and the trial court found him
guilty as charged. As mentioned above, a judgment extending defendant’s probation in another case was entered based
on the guilty verdict.
Defendant appealed both judgments. On appeal,
he assigns error to the trial court’s denial of his motion to
suppress and, relatedly, to the probation-violation finding
based on his conviction. He contends that the trial court
erred when it determined that he consented to a search of
the locked safe. For the following reasons, we agree.
It is undisputed that defendant authorized officers
to enter his house to “check” for weapons. The question is
whether, by opening defendant’s locked safe, officers exceeded
the scope of the “check” authorized by defendant. Because
defendant’s grant of authority to officers to check his house
for weapons was ambiguous as to whether it encompassed
opening defendant’s locked safe, the answer to that question hinges on defendant’s actual intent in authorizing officers to check his house for weapons. Blair, 361 Or at 537-38.
In particular, it hinges on whether defendant actually
intended to authorize police to open his locked safe.
Id. That,
the Supreme Court has explained, is a question of fact.
Id. at
537. Accordingly, we review the trial court’s determination
that defendant intended to consent to a search of the safe to
664 State v. Soprych
determine whether there is constitutionally sufficient evidence to support it.
Id. at 537-38; State v. Cross,
316 Or App
506, 512-13,
502 P3d 753 (2021).
In this case, we conclude that the evidence is not
sufficient to allow for a reasonable inference that defendant
intended to authorize officers to open his locked safe in the
course of checking his home for weapons. In so concluding,
we analyze defendant’s interaction with police in two stages.
We look first at whether it is inferable that when defendant
initially authorized police to conduct a weapons check, he
intended to authorize them to open locked containers and, if
it is not, whether it is inferable that he intended to expand
the scope of consent later on by giving his keys to officers.
Starting with the first stage, it cannot reasonably be
inferred that, at the outset of the search, defendant intended
to authorize officers to open the locked safe. That is so for
two reasons. First, officers requested and received consent
to “check” for weapons in the house. Unlike, for example, the
word “search,” the word “check” does not suggest the type
of highly intrusive inspection that would extend to opening
locked containers. Rather, it tends to suggest a more cursory
inspection. See, e.g., Webster’s Third New Int’l Dictionary 381
(unabridged ed 2002) (defining “check” relevantly as “to investigate and make sure about condition and circumstances
: obtain confirmation or substantiation <~ing on her passenger’s safety belts …>”; see also Merriam-Webster’s Collegiate
Dictionary 195 (10th ed 1999) (defining “check” relevantly
as “to inspect, examine, look at appraisingly”); cf. Webster’s
at 2048 (defining “search” relevantly as “to look into or over
carefully or thoroughly in an effort to find something,” and
“to uncover, find, or come to know by diligent persevering inquiry or scrutiny”). In view of the ordinary meaning
of the word “check,” we do not think it reasonable to infer
that defendant, by agreeing that officers could “check” his
house for weapons, intended to consent to an intrusion that
extended to opening locked doors. Second, and more significantly, defendant did not offer his keys to officers when he
consented to a weapons check. That defendant did not give
officers the means to open his locked safe makes it unreasonable to infer that defendant intended to consent to officers
opening the locked safe.
Cite as 324 Or App 659 (2023) 665
We accordingly examine the second stage of defendant’s interaction with officers. The remaining question
is whether the evidence allows the rational inference that
defendant intended to expand the scope of his consent at
that stage, when he pointed officers to his keys in the grass
and allowed them to take them to unlock the padlock on his
bedroom door. We do not think so. When officers asked for
defendant’s keys, they communicated that they were asking for them for the single purpose of unlocking the padlock on defendant’s bedroom door. All that can reasonably
be inferred from that exchange is that defendant intended
to permit officers to enter his bedroom. Absent evidence of
some discussion between defendant and officers about using
the keys to open locked doors or containers other than defendant’s locked bedroom door, the evidence is not legally sufficient that, by giving officers the keys, defendant intended
to expand the scope of the consent he granted in authorizing officers to check for weapons. When one person hands
another their key ring for the purpose of using a specific key
to open a specific lock, it is not reasonable to infer that the
owner of the keys intends to consent broadly to using other
keys on different locks; a person using other keys on the
ring for other purposes would transgress social norms. See,
e.g., State v. Goldberg, 309 Or App 660, 664-68,
483 P3d 671
(2021) (en banc) (examining whether officer’s behavior upon
entering curtilage of property comported with social norms
to determine whether officer conducted search by exceeding
property owner’s implied consent to enter curtilage of the
property). The record supplies no basis to infer that defendant intended to authorize such use of his keys. Accordingly,
the fact that defendant let officers use his keys to open his
bedroom door does not support the rational inference that
he consented to officers opening his locked safe in the course
of their weapons check.
Because it cannot be inferred that defendant consented to the warrantless search of his locked safe, defendant is entitled to suppression of the evidence found in the
locked safe, including the MDMA. We therefore reverse and
remand both judgments on appeal for further proceedings
consistent with this opinion.
Reversed and remanded.
