State v. Fraser

Court of Appeals of Oregon

State v. Fraser

389 P.3d 412, 283 Or. App. 897, 2017 Ore. App. LEXIS 239

CourtCourt of Appeals of Oregon

DecidedFebruary 23, 2017

Docket15CR0587; A160353

StatusPublished

This text of 389 P.3d 412 (State v. Fraser) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Fraser, 389 P.3d 412, 283 Or. App. 897, 2017 Ore. App. LEXIS 239 (Or. Ct. App. 2017).

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Opinion

PER CURIAM

Defendant appeals his judgment of conviction for driving under the influence of intoxicants, ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress certain evidence, which asserted that the police entry into his bedroom without a warrant was unlawful under Article I, section 9, of the Oregon Constitution. He argues on appeal, as he did below, that the entry was unlawful because his father, who allowed the police to enter the closed room defendant rented from him even though defendant indicated to the police that they did not have his permission to enter, was not authorized to give consent to enter defendant’s bedroom. The state concedes that, although consent is an established exception to the warrant requirement, the trial court erred because the state did not meet its burden of proving that defendant’s father had actual authority to consent to the entry. See, e.g., State v. Bonilla, 356 Or 475, 481, 366 P3d 331 (2015) (“When the state relies on consent, it must prove by a preponderance of the evidence that ‘someone having the authority to do so’ voluntarily gave the police consent to search the defendant’s property and that any limitations on the scope of the consent were complied with.” (Quoting State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994).)). We agree, accept the state’s concession, and reverse and remand.

Reversed and remanded.

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PER CURIAM

Defendant appeals his judgment of conviction for driving under the influence of intoxicants, ORS 813.010. He assigns error to the trial court’s denial of his motion to suppress certain evidence, which asserted that the police entry into his bedroom without a warrant was unlawful under Article I, section 9, of the Oregon Constitution. He argues on appeal, as he did below, that the entry was unlawful because his father, who allowed the police to enter the closed room defendant rented from him even though defendant indicated to the police that they did not have his permission to enter, was not authorized to give consent to enter defendant’s bedroom. The state concedes that, although consent is an established exception to the warrant requirement, the trial court erred because the state did not meet its burden of proving that defendant’s father had actual authority to consent to the entry. See, e.g., State v. Bonilla, 356 Or 475, 481, 366 P3d 331 (2015) (“When the state relies on consent, it must prove by a preponderance of the evidence that ‘someone having the authority to do so’ voluntarily gave the police consent to search the defendant’s property and that any limitations on the scope of the consent were complied with.” (Quoting State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994).)). We agree, accept the state’s concession, and reverse and remand.

Reversed and remanded.

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Bluebook (online)

389 P.3d 412, 283 Or. App. 897, 2017 Ore. App. LEXIS 239, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fraser-orctapp-2017.

Opinion

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