State v. Fuller

976 P.2d 1137, 158 Or. App. 501, 1999 Ore. App. LEXIS 197
CourtCourt of Appeals of Oregon
DecidedFebruary 17, 1999
Docket9602-31291; CA A94645
StatusPublished
Cited by17 cases

This text of 976 P.2d 1137 (State v. Fuller) 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. Fuller, 976 P.2d 1137, 158 Or. App. 501, 1999 Ore. App. LEXIS 197 (Or. Ct. App. 1999).

Opinions

[503]*503WOLLHEJM, J.

Defendant appeals a judgment of conviction for delivery and possession of a controlled substance. ORS 475.992. He assigns error to the trial court’s denial of his motion to suppress evidence and statements obtained during a search and seizure of his personal effects. We review for errors of law, ORS 138.220, and reverse and remand for a new trial.

We state the facts as found by the trial court where there is evidence in the record to support them. Where the trial court failed to expressly articulate a factual finding, we assume that it decided the facts in a manner consistent with its ultimate conclusions, so long as there is evidence in the record to support those conclusions. State v. Juarez-Godinez, 326 Or 1, 7, 942 P2d 772 (1997).

In February 1996, Officer Durbin stopped Jennie Stites for a minor traffic infraction. Defendant was a passenger in Stites’s car. Durbin observed signs of possible drug use by Stites and, on inquiry, Stites admitted to putting some “meth” in her coffee at home the day before. Durbin did not issue a traffic citation but asked Stites and defendant if he could search the vehicle. Both consented, and no contraband was found. Durbin then asked Stites if he could search her home for drugs. Stites, on probation at the time, agreed. After obtaining permission from Durbin to leave, defendant departed on foot. Durbin then accompanied Stites to the house that she and defendant shared. Stites gave Durbin a key to the front door and, after they entered, directed Durbin to a nightstand in one of the bedrooms. Durbin testified that Stites told him that she shared the bedroom with defendant and that there was marijuana in the right nightstand. Women’s clothing hung in the closet, which Durbin assumed belonged to Stites.

After finding marijuana and rolling papers in the right nightstand, Durbin explained to Stites that he could obtain a search warrant to search the rest of the house for drugs but asked that Stites just show him where other drugs were located. Stites pointed to defendant’s nightstand on the left side of the bed and stated that there was “crank,” or [504]*504methamphetamine, in it. Stites told Durbin that defendant had given her methamphetamine out of his nightstand before and that she had taken the drug from the nightstand on her own when it was unlocked. However, she stated that if defendant’s nightstand was locked, she did not have a key and could not open it. According to Durbin, the drawer was unlocked and partially open. In the top drawer, Durbin found several clear bags of methamphetamine, as well as paraphernalia for its use and sale. Shortly after this discovery defendant returned home. Durbin placed defendant under arrest for possession of a controlled substance. Even though Durbin’s police report indicated that Stites was not under arrest, Durbin read both defendant and Stites their Miranda rights. Defendant then allegedly admitted that the methamphetamine was his, that he bought it with the intent to divide and sell it, and that he put some in Stites’s coffee the day before. Durbin took defendant to the police station for processing, but Stites was allowed to remain at the house. An hour or two later, Stites arrived at the police station looking for defendant, and Durbin issued Stites citations for Possession of a Controlled Substance I and II, as well as for possession of less than an ounce of marijuana.

At trial, defendant moved to suppress his statements and the physical evidence seized at the time of his arrest as fruits of an illegal search. State v. Warner, 284 Or 147, 166, 585 P2d 681 (1978). The trial court denied the motion, and the parties agreed to a stipulated-facts trial. Defendant was found guilty, and this appeal followed.

On appeal, defendant presents two arguments to support his assignment that the court erred in denying his motion to suppress. Because we find defendant’s second argument dispositive, we do not address the first. Defendant contends that Stites did not have actual authority to consent to the search of his nightstand. The state argues that Stites did have authority to consent to a search of the bedroom— which included the nightstand — and that, in any event, the evidence was properly seized pursuant to a lawful search incident to arrest. We agree with defendant and reverse.

[505]*5051. Under Article I, section 9, of the Oregon Constitution,1 a warrantless search is per se unreasonable unless it falls within one of the limited exceptions to the warrant requirement. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991) . Consent is an exception to this rule and may be given by a person with the actual authority to do so. State v. Ready, 148 Or App 149, 152-53, 939 P2d 117, rev den 326 Or 68 (1997); State v. Arnold, 115 Or App 258, 262, 838 P2d 74 (1992) , rev den 315 Or 312 (1993). 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, 134 Or App 148, 152, 894 P2d 1189 (1995). A third party must have common authority as shown by that person’s “joint use or occupancy of the premises” before validly authorizing the search. State v. Carsey, 295 Or 32, 44-45, 664 P2d 1085 (1983). It is the state’s burden to show that Stites had actual authority to consent to a search of the bedroom and nightstand. City of Portland v. Paulson, 98 Or App 328, 330, 779 P2d 188 (1989). The trial court ruled that the state presented “sufficient proof to show that there was joint control of the bedroom area.” Because there is evidence in the record to support that finding, we will not disturb it. State v. Carston, 323 Or 75, 86-87, 913 P2d 709 (1996).

The facts support the trial court’s findings that Stites had joint control of the bedroom and gave valid consent for the police to search it. The evidence supporting a conclusion that Stites and defendant shared the bedroom and thus shared “joint control” over the room included: Durbin’s testimony that Stites admitted to sharing the bedroom with defendant; Stites’s knowledge of the room and contents of the nightstands; the women’s clothing in the closet; and the absence of witnesses to rebut the appearance of cohabitation. [506]*506See City of Portland, 98 Or App at 331 (where the only evidence of cohabitation was the officer’s testimony, the evidence was insufficient). These, taken together, support a finding of joint occupancy of the bedroom.

Even with joint occupancy, however, a third party’s ability to authorize a search within the bedroom may be limited. See State v. Wrenn, 150 Or App 96, 103, 945 P2d 608 (1997) (where state did not produce evidence to show that house guest’s actual authority to consent to search of living room also included kitchen, consent was invalid). 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. Rohrbach, 93 Or App 608, 611, 763 P2d 196 (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.

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State v. Fuller
976 P.2d 1137 (Court of Appeals of Oregon, 1999)

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Bluebook (online)
976 P.2d 1137, 158 Or. App. 501, 1999 Ore. App. LEXIS 197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-fuller-orctapp-1999.