No. 104 February 12, 2025 825
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA ERIC RYMER,
Defendant-Appellant.
Douglas County Circuit Court
22CR47879, 20CR53588; A181636 (Control), A181637
Ann Marie Simmons, Judge.
Robert B. Johnson, Judge. (Judgment May 5, 2023)
Submitted December 19, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Emily N. Snook, Assistant Attorney
General, filed the brief for respondent.
Before Powers, Presiding Judge, Pagán, Judge, and
Armstrong, Senior Judge.
PAGÁN, J.
Affirmed.
826 State v. Rymer
PAGÁN, J.
Defendant appeals from a judgment revoking his
probation and a judgment of conviction. Following a denial
of defendant’s motion to suppress, defendant’s probation was
revoked in Case No. 20CR53588 for possession of prohibited items (a probation violation) and defendant executed
a conditional guilty plea to one count of unlawful possession of cocaine in Case No. 22CR47879, reserving his right
to appeal the trial court’s denial of his motion to suppress.
Defendant argues, as he did below, that his probation officer did not have reasonable grounds to ask for consent to
search, and that his consent to search was not voluntary. We
affirm.
We review the denial of a motion to suppress for
legal error. State v. Ehly, 317 Or 66, 75,
854 P2d 421 (1993).
We are bound by the trial court’s findings of historical fact
if they are supported by the evidence in the record.
Id. If the
trial court did not make explicit findings, we presume that
the facts were found in a manner consistent with the court’s
ultimate conclusion.
Id. We state the relevant facts in accordance with that standard but we do not provide an in-depth
recitation for this nonprecedential memorandum opinion.
As a condition of defendant’s probation for a prior
conviction, he was required to consent to a search of his
home upon request, if his supervising officer has “reasonable grounds to believe that evidence of a violation will be
found.” ORS 137.540(1)(g). The “reasonable grounds” standard is less stringent than the “probable cause” needed to
justify a search or seizure by government officers, but more
stringent than the “reasonable suspicion” needed to justify
a temporary investigative detention. State v. Gulley, 324
Or 57, 65-66,
921 P2d 396 (1996). “ ‘[R]easonable grounds’
means a quantum of evidence, less than probable cause,
that produces a belief in the probation officer, which belief
is reasonable in the circumstances, that the probationer has
violated a condition of probation and that a search will produce evidence of that violation.”
Id.
During a walk-through of defendant’s residence,
defendant’s supervising officer and the two officers that
Nonprecedential Memo Op: 337 Or App 825 (2025) 827
accompanied her observed two separate probation violations
in different parts of the house: the presence of alcohol and
a knife. The supervising officer testified that as a result of
those observations, she believed that a search would lead
to evidence of additional probation violations. That belief
was objectively reasonable under the circumstances. See id.
at 67 (applying the standard). In light of that evidence, the
trial court’s determination that defendant’s supervising officer had reasonable grounds to request consent to search was
not erroneous.
A probationer nevertheless retains a constitutional
right to refuse consent to search, even when such a refusal
would constitute a probation violation. See State v. Davis,
133 Or App 467, 473,
891 P2d 1373 rev den
321 Or 429
(1995) (explaining that the probation condition requiring a
probationer to submit to a search “does not constitute a selfexecuting, prospective consent by the probationer to a general warrantless search” but represents an agreement by
the probationer to submit to reasonable searches by a probation officer, where refusal could provide grounds for revocation of the probation). As such, a probationer’s consent to a
search must be voluntary and the probationer must be given
a reasonable opportunity to refuse to allow a search. Id. at
474; see State v. Tennant,
310 Or App 70, 75,
483 P3d 1226
(2021) (setting out factors relevant to consent determination
in the totality of the circumstances, including whether those
circumstances give the impression that a search is inevitable, and the language and tone used by the officer making
the request).
The evidence in the record supports the trial court’s
determination that defendant’s consent to search was voluntary. The trial court credited the probation officers’ testimony but not defendant’s or his witnesses. The probation
officers described cordial and relaxed interactions with
defendant that, apart from the presence of the officers in
uniform, did not involve the display of force. The walkthough proceeded from the living room and the kitchen into
defendant’s bedroom. As the probation violations were discovered, the supervising officer communicated about them
with defendant and did not threaten to arrest him for those
828 State v. Rymer
violations. She testified that she took into consideration the
presence of defendant’s small child and defendant’s need
to take care of him, such that defendant was able to move
around the house while the officers were present. At the
time the supervising officer asked defendant for consent to
search, the two of them were in the bedroom, while the two
other officers stood outside the room at a distance. She testified that she explained to defendant that she had reason to
believe additional probation violations would be found and
was requesting his consent to search the house. Defendant
quickly answered “yes.” The trial court found that, under
those circumstances, the officer’s conduct and request to
search was not coercive and that defendant’s consent to
search was voluntary. In light of the credibility determinations made by the trial court and the factual record before
us, that conclusion was not erroneous. Cf. Tennant, 310 Or
App at 77-78 (state did not meet its burden to prove consent
was voluntary when it offered only the defendant’s agreement to probation officer’s request after the officer, who was
operating under mistaken belief that the defendant’s probationary status required him to consent to a search, followed
the defendant into his bedroom, and while another probation officer was questioning the defendant’s girlfriend).
Affirmed.
