State v. Blair

No. 31 June 15, 2017 527

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

DANNY LEE BLAIR,

Respondent on Review.

(CC 131055; CA A156756 SC S064262)

On review from the Court of Appeals.*

Argued and submitted March 9, 2017, at the University

of Oregon School of Law, Eugene.

Rolf C. Moan, Assistant Attorney General, Salem, argued

the cause and filed the brief for petitioner on review. Also on

the brief were Ellen F. Rosenblum, Attorney General, and

Benjamin Gutman, Solicitor General.

Laura E. Coffin, Deputy Public Defender, Salem, argued

the cause and filed the brief for respondent on review. Also

on the brief was Ernest G. Lannet, Chief Defender, Office of

Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters,

Landau, Brewer, Nakamoto, and Flynn, Justices.**

BREWER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is vacated, and the case is

remanded to the circuit court for further proceedings con-

sistent with this decision.

______________

**  Appeal from Tillamook County Circuit Court, Jonathan R. Hill, Judge.

278 Or App 512, 380 P3d 313 (2016).

**  Baldwin, J., retired March 31, 2017, and did not participate in the decision

of this case.

528 State v. Blair

Case Summary: Before his trial on charge of possession of a controlled sub-

stance, defendant moved under Article I, section 9, of the Oregon Constitution,

to suppress drug evidence found in a warrantless but purportedly consensual

search of his backpack. The trial court denied the motion and defendant was

convicted. On defendant’s appeal, the Court of Appeals reversed and remanded,

holding that, although defendant had consented without qualification to a police

officer’s general request to search the backpack, his consent did not extend to

unknotting and examining the contents of the opaque grocery bag, inside the

backpack, in which the drugs were found. The state sought review, arguing that,

as a general rule, a person’s unqualified affirmative response to a police officer’s

general request to search some place or property constitutes consent to open and

search any unlocked container discovered within the place or property. Held: The

dispositive inquiry under Article I, section 9 is a factual inquiry into whether

defendant intended to consent to the search of closed containers inside the back-

pack and, given that it is unclear whether the trial court so understood the

inquiry and given that opposing inferences would be permissible on the record

before the court, the case must be remanded to the circuit court to reconsider its

decision under the correct standard.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is vacated, and the case is remanded to the circuit court for further pro-

ceedings consistent with this decision.

Cite as 361 Or 527 (2017) 529

BREWER, J.

Before his trial on a charge of possession of a con-

trolled substance, defendant moved to suppress the state’s

primary evidence—drugs that a police officer found in a war-

rantless but purportedly consensual search of defendant’s

backpack—on the ground that they were obtained in viola-

tion of Article I, section 9, of the Oregon Constitution. The

trial court denied the motion and defendant was convicted.

The Court of Appeals reversed and remanded, concluding

that defendant’s consent to the search of his backpack did

not extend to untying and looking into an opaque grocery

bag, inside the backpack, in which the drugs were found.

State v. Blair, 278 Or App 512, 522, 380 P3d 313 (2016).

The state seeks review of that decision, arguing that

defendant’s unqualified consent to the police officer’s gener-

alized request to search the backpack should be deemed on

the record before us to encompass consent to open any closed

but unlocked containers found inside. We conclude that the

state’s argument does not comport with Article I, section 9.

We further conclude that the dispositive inquiry is a factual

one: Did defendant intend to consent to the search of closed

containers inside his backpack? It is unclear whether the

trial court so understood the inquiry before it, and, on the

record before us, we conclude that opposing inferences per-

missibly could have been drawn from the evidence as to that

issue. Accordingly, we reverse the decision of the Court of

Appeals, and we vacate the judgment convicting defendant

and remand to the circuit court to reconsider its suppression

decision under the correct standard.

I.  FACTS AND PROCEDURAL HISTORY

The facts that are relevant to the issue before us are

not extensive. Responding to a report of a man being chased

by armed attackers, members of the Tillamook County

Sheriff’s Office encountered defendant, the supposed vic-

tim. Defendant was agitated, disheveled, and somewhat

incoherent, and the officers were doubtful that he had, in

fact, been attacked. Defendant mentioned to one of the offi-

cers, Sergeant Jackson, that he had left his backpack “up on

the hill” and that he also had lost his sweatshirt. Defendant

530 State v. Blair

seemed reluctant to go in search of his belongings by him-

self, so Jackson went with him.

Defendant located the backpack without difficulty.

Jackson then asked defendant, in a casual way, if he could

search the backpack. Although he did not say so, Jackson

suspected that defendant was under the influence of meth-

amphetamine, and he wanted to see if the backpack con-

tained drugs or weapons. Defendant responded, “Yeah, no

problem. Go ahead.” Inside the backpack, Jackson saw an

opaque, plastic grocery bag that was closed with a knot.

Jackson untied the knot and found inside the grocery bag,

among other items, a Ziploc bag containing psilocybin

mushrooms.

Defendant was charged with unlawful possession

of a Schedule I controlled substance, ORS 475.752(3)(a).

Before trial, he moved to suppress evidence of the mush-

rooms on the ground that their discovery was the product

of an unconstitutional search under Article I, section 9. The

state countered that, because defendant had consented to

the search of his backpack, the search did not implicate his

rights under Article I, section 9. Defendant did not deny

having consented to Jackson’s request to search the back-

pack, but he argued that his consent was not voluntary and

that, even if it was voluntary, it did not extend to a search of

the contents of the knotted grocery bag inside the backpack.

The trial court denied the motion to suppress, hold-

ing that defendant’s consent was voluntary and that open-

ing and searching the grocery bag was within the scope of

that consent.1 Defendant thereafter entered a conditional

no contest plea to the charged offense, and the trial court

entered a judgment convicting him.

On appeal, defendant challenged the denial of his

motion to suppress, asserting the same arguments that he

had raised in the trial court. With respect to the scope of

consent issue, the Court of Appeals held that:

1

With respect to that issue, the trial court stated:

“The sergeant had asked for permission to search the backpack. The other

bag is inside the backpack. [Defendant] is there when it is searched and the

consent wasn’t revoked. I think there was a consensual search of the Fred

Meyer bag as well.”

Cite as 361 Or 527 (2017) 531

“[t]he scope of consent is determined by reference to what

a typical, reasonable person would have understood by the

exchange between the officer and the suspect in light of

the totality of the circumstances surrounding the grant of

consent in a particular case. Thus, consent to search a par-

ticular location or item extends to closed containers found

within that location or inside of that item if, under the

totality of the circumstances, a reasonable person would

have understood that the consent given included those

containers.”

Blair, 278 Or at 516 (citations omitted). The court was

unpersuaded by the state’s argument that, when both a

police officer’s request and an individual’s response are gen-

eral and unqualified, the scope of consent presumptively

includes consent to search closed and unlocked containers

found inside the stated object of the search. Id. at 519. The

court held, instead, that an officer’s generalized request for

consent to search some place or thing does not extend to

closed containers inside the place or thing unless the sur-

rounding circumstances would reasonably convey that the

officers are searching for something that could be hidden in

those containers. Id. at 520. In the absence of such evidence

in the record before it, the court determined that it “[could]

not conclude that a reasonable person viewing the exchange

would have understood that defendant consented to the

search of the knotted grocery bag within his backpack.” Id.

at 522. Because the warrantless search of the knotted bag

could not be justified under the consent exception, the court

concluded, it was unreasonable and, therefore, unlawful,

and the evidence obtained therefrom should have been sup-

pressed.2 Accordingly, the Court of Appeals reversed defen-

dant’s conviction and remanded.

II.  FRAMING THE ISSUE ON REVIEW

This court granted the state’s petition for review

and, on review, the parties reprise their arguments before

2

Insofar as the Court of Appeals agreed with defendant that the search of

the grocery bag was unlawful because it was not within the scope of defendant’s

consent, it had no occasion to address defendant’s alternative argument that

his consent had not been voluntary. Because we vacate the judgment convict-

ing defendant and remand to the circuit court, we likewise do not address that

argument.

532 State v. Blair

the Court of Appeals. The primary issue on review—the

scope of consent to a warrantless search under Article I, sec-

tion 9—has not been a frequent subject of consideration by

this court. The Court of Appeals, however, has articulated

a test for analyzing scope of consent issues under Article I,

section 9, and the parties have couched their arguments in

terms of that test. As the Court of Appeals conceives the

proper test, when consent is asserted as a justification for a

warrantless search, the scope of a person’s consent “is deter-

mined by reference to what a typical, reasonable person

would have understood by the exchange between the officer

and the suspect * * * in light of the totality of the circum-

stances surrounding the grant of consent in a particular

case.” State v. Delong, 275 Or App 295, 301, 365 P3d 591

(2015), rev den, 359 Or 39 (2016) (quoting State v. Harvey,

194 Or App 102, 106, 93 P3d 828 (2004)).

Although the state does not challenge the sub-

stance of the Court of Appeals’ test, it argues for a corol-

lary “default” rule in cases, like the present one, that involve

“nested” closed containers. It argues, specifically, that when

a person manifests apparently unqualified consent to a law

enforcement officer’s generalized request to search a closed

container, that manifestation of consent authorizes the offi-

cer to open all closed, unlocked containers inside the item—

unless other specific circumstances show that the scope of

consent did not extend that far.

The state asserts that the word “search” itself con-

veys the idea of a thorough, rigorous inspection of a closed

container that a reasonable person would understand to

include inspecting the contents of additional closed contain-

ers inside the item. The state also contends that the mere

fact that a request to search comes from a police officer would

indicate to a reasonable person that the officer is looking

for evidence of illegal activity, including drugs and weap-

ons that might be hidden inside closed containers. In other

words, the state reasons, a generalized request by a police

officer to search a closed container would in and of itself

indicate to a reasonable person that the request includes

opening and the inspection of the contents of closed contain-

ers inside the item—and an unqualified affirmative answer

to such a request should be deemed to constitute consent to

Cite as 361 Or 527 (2017) 533

the opening and inspection of the contents of such additional

containers, unless other, specific circumstances indicate a

different understanding and intent.

Defendant replies that the state’s proposed corollary

rule is inconsistent with the “totality of the circumstances”

test that, by the state’s own concession, should apply: That

is so because it gives dispositive significance to two facts

(the use of the word “search” and the requester’s status as

a police officer), while failing to adequately recognize that

the import of those facts may depend on other surround-

ing circumstances. Defendant also argues that the state’s

proposed rule would effectively impose on a defendant the

burden of producing evidence of lack of consent, rather than

placing that burden on the state, where it properly belongs.

Defendant posits, based on the “totality of the circum-

stances” test as applied to the present record, and taking

into account the state’s burden, that defendant would not

have understood the scope of his consent to include consent

to search any closed container that might be found inside

his backpack. Accordingly, defendant argues, the trial court

erred in determining that the officer acted within the scope

of defendant’s consent when he unknotted, opened, and

searched the grocery bag in question.

Although the parties focus their arguments on the

merits of the state’s proposed default rule, we first must con-

sider whether the standard for determining scope of consent

from which the state’s proposed corollary rule purportedly

derives comports with Article I, section 9. That standard was

first announced in State v. Arroyo-Sotelo, 131 Or App 290,

884 P2d 901 (1994), where the Court of Appeals explained

that it was adopting a standard used in Fourth Amendment

cases to decide whether, under Article I, section 9, a police

officer had complied with the scope of a defendant’s consent:

“In making this inquiry, we first note that the standard

for determining the scope of a suspect’s consent under the

Fourth Amendment is that of ‘objective reasonableness’ with

the critical inquiry focusing on what a ‘typical reasonable

person would have understood by the exchange between

the officer and the suspect.’ Florida v. Jimeno, 500 US 248,

251, 111 S Ct 1801, 114 L Ed 2d 297 (1991). In our decisions

involving the scope of consent under Article I, section 9,

534 State v. Blair

we have never explicitly articulated our standard; however,

we have consistently evaluated the intent of the consent of

the consenting parties objectively, looking at the totality of

the circumstances of the particular case. Similarly, Oregon

courts have recognized that questions involving the propri-

ety of police conduct under Article I, section 9, customarily

are judged on an objectively reasonable basis, requiring an

inquiry into the surrounding circumstances.

“We thus conclude that the ‘objective reasonableness’

standard articulated in Florida v. Jimeno, supra, best com-

ports with the requirements of Article I, section 9. * * *

“Under that standard, we must consider what a rea-

sonable person would have understood by the interchange

between the officer and defendant, the person giving con-

sent. As discussed above, this requires an evaluation of the

surrounding circumstances.”

131 Or App at 295-96 (citations omitted).

Although, as noted, the parties here have purported

to apply the Court of Appeals’ test for determining the scope

of defendant’s consent to the search of his backpack under

Article I, section 9, this court has an independent duty to

consider whether it is, in fact, the correct standard. Cf. Stull

v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) (court has inde-

pendent duty to construe statute correctly without regard to

parties’ arguments). We turn to that task now.

III. ANALYSIS

A. Background

By its terms, Article I, section 9, recognizes a

right to be free of “unreasonable” searches and seizures.

Warrantless searches are per se unreasonable, subject to

certain specifically established and limited exceptions. State

v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015) (subject to

certain specifically established and limited exceptions, war-

rantless searches are deemed to be per se unreasonable);

State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992) (war-

rantless search is “reasonable” only if it falls within recog-

nized exceptions to warrant requirement). The state bears

the burden of showing by a preponderance of the evidence

that an exception to the warrant requirement applies. See

Cite as 361 Or 527 (2017) 535

State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994) (so

stating as to consent exception).

B.  Consent Exception

Most exceptions to the warrant requirement involve

a unilateral exercise of governmental authority to intrude,

without a warrant, into things or places in which an owner

or other person has a cognizable privacy interest, which

nevertheless is justified as reasonable if certain circum-

stances (exigency, officer safety concerns, etc.) are present.

Bonilla, 358 Or at 487-89.

The consent exception is different. It posits that,

by voluntarily granting a governmental actor permission

to search a place or thing, the person relinquishes his or

her privacy interest in the place or thing so that there is no

intrusion by the state into a protected privacy interest that

must be justified. Bonilla, 358 Or at 480; State v. Brown, 348

Or 293, 305, 232 P3d 962 (2010). Of course, that rationale

presumes that a person to whom a privacy interest belongs

actually intends to give consent to the intrusion. We inti-

mated as much in Bonilla, when we rejected the premise

that Article I, section 9, is satisfied if the police conduct a

warrantless search under the mistaken but objectively rea-

sonable belief that the person who gave consent to the search

had authority to do so. 358 Or at 486-93. In a similar vein, we

have indicated that the scope of consent is to be determined

from the standpoint of the consenting person. In Weaver, the

issue was whether the defendant’s consent to a search could

be deemed to extend, retroactively, to a portion of the search

that had occurred before the defendant gave consent. To sup-

port such a conclusion, we held that there must be evidence

that “the person giving consent intended the consent to be

retroactive.” 319 Or at 222 (emphasis added).

This court’s focus on actual consent as a touchstone

of the consent exception under Article I, section 9, is dis-

tinct from the way the consent exception operates under the

Fourth Amendment. Fourth Amendment decisions do not

recognize any analytical difference in perspective between

the consent exception and other recognized exceptions to the

warrant requirement. The United States Supreme Court

536 State v. Blair

has reasoned that, because other exceptions to the warrant

requirement are tested against a standard of objective rea-

sonableness from the point of view of the police, the same

standard should apply to the facts bearing on the application

of the consent exception. Illinois v. Rodriguez, 497 US 177,

186, 110 S Ct 2793, 111 L Ed 2d 148 (1990). In Rodriguez,

the court concluded that there is no Fourth Amendment vio-

lation when the police perform a warrantless search in the

objectively reasonable, albeit mistaken, belief that they have

obtained consent for the search from a person with author-

ity to give it. Id.

Similarly, federal cases addressing the voluntari-

ness of consent generally have declined to consider the

consenting person’s actual understanding of their options

in a Fourth Amendment analysis. See, e.g., United States

v. Drayton, 536 US 194, 203-05, 122 S Ct 2105, 153 L Ed

2d 242 (2002) (voluntariness inquiry focused on reasonable-

ness of police conduct, not on subjective reactions of persons

searched); United States v. Garcia, 56 F3d 418, 423 (2d Cir

1995) (stating voluntariness test in terms of whether the

police officer “had a reasonable basis for believing that there

had been consent to the search”); United States v. Zapata,

997 F2d 751, 759 (10th Cir 1993) (casting doubt on whether

person’s subjective characteristics are relevant to voluntari-

ness of person’s consent). Thus, although the determination

of the voluntariness of consent under the Fourth Amendment

applies a “totality of the circumstance” approach, the federal

courts have applied that test in a way that has little if any-

thing to do with the “consenting” party’s actual understand-

ing and intention.3

3

In its seminal decision addressing the voluntariness of consent under the

Fourth Amendment, Schneckloth v. Bustamonte, 412 US 218, 93 S Ct 2041, 36

L Ed 2d 854 (1973), the Supreme Court held that a defendant’s knowledge that

she could refuse to consent is not necessary to a determination that the defen-

dant voluntarily consented to a search. The court explained that the voluntari-

ness determination instead bridges two competing concerns—the government’s

legitimate interest in using an individual’s consent to gain access to places and

things that may contain evidence of criminal activity and “the equally important

requirement of assuring the absence of coercion.” Id. at 227. Ultimately the Court

in Schneckloth concluded that the question as to whether a defendant voluntarily

consented to a search is one of fact, “to be determined from the totality of the

circumstances,” including both objective facts about the police conduct and sub-

jective facts about the defendant’s understanding. Id. at 226-27.

Cite as 361 Or 527 (2017) 537

In contrast, our decisions under Article I, section 9,

indicate that circumstances showing the defendant’s actual

understanding and intent are relevant to the voluntariness

analysis. See, e.g., State v. Stevens, 311 Or 119, 132-38, 806

P2d 92 (1991) (voluntariness of defendant’s consent to search

was assessed by considering facts about defendant’s actual

mental state in addition to facts about police conduct).

C.  Scope of Consent

The nature of the consent exception under Article I,

section 9, thus suggests that a proper inquiry into the scope

of a person’s consent should be concerned with the person’s

actual understanding and intent. But, as this court has dis-

cussed in other cases, such subjective inquiries can be prob-

lematic, if for no other reason than that they do not always

promote consistency by treating like cases alike. See, e.g.,

State v. Ashbaugh, 349 Or 297, 311-16, 244 P3d 360 (2010)

(discussing problems with subjective approach to determin-

ing when a person has been seized for purposes of Article I,

section 9).

In sum, the logic behind the consent exception sup-

ports a focus on the defendant’s actual understanding and

intent with respect to the scope of her consent to a search,

but what a person says is often the best indicator of what the

person intended. In light of those considerations, we think

that the nature of the inquiry should be described in the

following way: In determining whether a particular search

falls within the scope of a defendant’s consent, the trial

court will determine, based on the totality of circumstances,

what the defendant actually intended. That determination

is a factual one.4 It follows that we are bound by any findings

In later decisions, however, the Supreme Court has rejected consideration

of circumstances that speak to the defendant’s subjective understanding and

intentions; instead, the Court has focused on purely objective factors, and most

particularly, on the conduct of the police. See, e.g., Drayton, 536 US at 204-07.

In consequence, as one writer has observed, the test that the federal courts now

employ does not so much determine whether a defendant consented voluntarily

as it determines whether the conduct of the police was appropriate in the circum-

stances. Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for

Understanding the Consent Searches Doctrine, 80 Ind L J 773, 784 (2005).

4

Of course, the factual circumstances relating to the scope of a defendant’s

consent can be disputed, in which event the trial court must determine the facts.

538 State v. Blair

of fact made by the trial court if constitutionally sufficient

evidence supports them. State v. Maciel-Figueroa, 361 Or

163, 165-66, 389 P3d 1121 (2017).

However, where—based on the totality of circum-

stances—the defendant’s intent with respect to the scope of

consent is unambiguously expressed, that manifestation of

intent is controlling. In that way, what a reasonable person

would understand by his or her choice of unambiguous words

or other manifestations of intent will bear its expected weight

in citizen-police interactions.5 Such clarity in expression will

be further promoted when officers requesting consent make

clear to a suspect what the objects of the requested search

are and what level of scrutiny is sought.

D.  State’s Proposed Corollary Rule

With those foundational principles in mind, we turn

to the state’s proposed corollary rule. As discussed, the state

contends that, when asked by a police officer for permission

to “search” an item of personal property, a reasonable per-

son would understand that the officer—a person whose pro-

fessional duties include investigating criminal conduct—is

seeking consent to open and thoroughly inspect any closed

containers within the item that might contain contraband.

Accordingly, the state argues, evidence that a police offi-

cer asked to “search” an item of property and that the per-

son agreed to the request without qualification should be

sufficient, by itself, to establish that the person’s consent

extended to opening virtually any closed but unlocked con-

tainer found inside the item. That rule should apply, the

state argues, unless other, specific evidence shows that the

scope of consent was more limited.

We do not agree. Under the state’s proposed rule,

the constitutional inquiry would be limited to two circum-

stances when a request to search is phrased in general

terms—the requestor’s status as a police officer and the

5

A similar approach to the determination of intent is taken in the con-

struction of contracts, where the question of the parties’ intent is one of fact, but

their unambiguous manifestations of intent are controlling. See, e.g., Computer

Concepts, Inc. v. Brandt, 310 Or 706, 713, 801 P2d 800 (1990) (employing

approach); May v. Chicago Insurance Co., 260 Or 285, 292-94, 490 P2d 150 (1971)

(same).

Cite as 361 Or 527 (2017) 539

use of the word “search.” However, those two factors are not

of such paramount significance that they ordinarily would

trump other surrounding circumstances.

The facts here illustrate the central role that sur-

rounding circumstances can play in the analysis. Even if

the bare facts of a police officer’s general request to search

an outward container, and a defendant’s unqualified affir-

mative response, could properly be considered in isolation,

those facts would not, by themselves, necessarily compel the

inference that the defendant was consenting to the opening

and inspection of the contents of any closed container discov-

ered during the search of the outward container. Although

it is true that a consenting person reasonably might infer

from those facts alone that the officer was asking to conduct

an intensive search that might extend that far, an opposing

inference also would be permissible. The very generality of

the request, i.e., its failure to identify any particular object

and its exclusive reference to the outward container itself,

also could support an inference that the officer intended a

quick and proforma inspection of the outward container,

and no more. In the absence of other evidence bearing on

the scope of consent, the evidence could be deemed to be

in equipoise, resulting in the conclusion that the state had

failed to meet its burden of persuasion. In short, the state’s

proposed default rule would undermine both a full-throated

consideration of the totality of the circumstances bearing

on the scope of the defendant’s consent, and it also would

not provide the certainty and predictability that the state

suggests. Accordingly, we reject that rule as a corollary to

the standard that we have adopted here. To reiterate that

standard, in determining whether a particular search falls

within the scope of a defendant’s consent, the trial court

will determine, based on the totality of circumstances, what

the defendant actually intended. However, where, after con-

sidering those circumstances, the defendant’s intent with

respect to the scope of consent is unambiguously expressed,

that manifestation of intent is controlling.

IV. APPLICATION

We now apply that standard to the record before us.

As in the illustration set out above, competing inferences

540 State v. Blair

could be drawn from both the officer’s generalized request

and defendant’s unqualified response with respect to what

defendant actually understood to be the scope of the offi-

cer’s request and what defendant intended by his responsive

manifestation of consent.

On the one hand, there is evidence in the record

that would support an inference that, at the time of defen-

dant’s interaction with Sergeant Jackson, it was obvious to

Jackson that defendant was under the influence of drugs.

In addition, there is evidence—testimony from a forensic

expert—that suggests that defendant in fact was under the

influence of psilocybin mushrooms at the time.6 It would be

permissible to infer from that evidence that defendant knew

that Jackson believed that he was under the influence of

drugs, resulting in a shared understanding that the officer

was asking for consent to look for drugs and that defendant’s

generalized consent therefore extended to closed containers

inside the backpack that could have held drugs.

On the other hand, it would also be permissible to

infer from Sergeant Jackson’s generalized request to search

defendant’s backpack and other surrounding circumstances

that the officer was not looking for any specific kind of item.

Although defendant apparently understood that Jackson

was a police officer, Jackson had appeared on the scene in

response to defendant’s report of being the possible victim

of a crime. To be sure, the evidence shows that Jackson sus-

pected that defendant was under the influence of drugs and

therefore also may have suspected that defendant had drugs

in his possession. But Jackson did not express either suspi-

cion to defendant. The interaction between the officer and

defendant was friendly and nonconfrontational; Jackson

had even agreed to accompany defendant as he retrieved

his backpack, a gesture that might give the impression that

he was acting primarily as a community caretaker or that

he was investigating a possible crime against defendant.

Although the inference that Jackson was thus acting as

defendant’s ally does not suggest any particular reason why

he would wish to search defendant’s property, or for what, it

6

Although that evidence also was relevant to the voluntariness of defen-

dant’s consent, we consider it here only as it pertains to the scope of that consent.

Cite as 361 Or 527 (2017) 541

nevertheless would permit a further inference that Jackson

was not looking for drugs or other contraband.7 Moreover,

the circumstances of the encounter also could have sug-

gested that Jackson’s request was a pro forma officer safety

exercise or, from defendant’s perspective, that the request

took him by surprise and that he did not have sufficient

time and knowledge to understand and appreciate that

the request could implicate the scope and intensity of the

search. In any event, the inference that the state seeks to

draw from Jackson’s status as a police officer is not the only

permissible inference that could be drawn with respect to

defendant’s intention as to the scope of his consent to search

the backpack.

The state remonstrates that defendant’s consent to

the search of the knotted grocery bag can be unambiguously

inferred from the fact that he did not object when Jackson

began to open it. The state’s assertion is factually flawed: It

relies on an assumption that defendant had an opportunity

to object to Jackson’s unknotting and opening of the bag,

when there is no evidence in the record that supports such

an assumption. As far as the evidence shows, defendant

might not have even realized that Jackson was opening the

bag until after the fact. At least on this record, defendant’s

failure to object did not constitute an unambiguous manifes-

tation of consent to the search of closed containers inside the

backpack.

In this case, it is unclear from the record whether

the trial court found as fact that defendant actually intended

to consent to the search of closed containers inside his back-

pack. Although we ordinarily would presume that a trial

court found facts consistent with its ultimate suppression

decision, State v. Holdorf, 355 Or 812, 814, 333 P3d 982

(2014), it is not apparent that the trial court in this case

understood the scope of consent determination to be the

7

The Court of Appeals suggested that, in light of Jackson’s apparent interest

in helping defendant find his belongings, a person observing the encounter might

reasonably conclude that Jackson wanted to look inside defendant’s backpack to

determine whether defendant’s lost sweatshirt was there. Blair, 278 Or App at

520. However, that inference is not available on this record: According to uncon-

troverted evidence, defendant and Jackson already had found the missing sweat-

shirt at the time Jackson asked to search the backpack.

542 State v. Blair

factual inquiry that we have described. Remand, therefore,

is necessary to give the trial court the opportunity to deter-

mine the scope of defendant’s consent under the correct

standard.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is vacated, and the case is

remanded to the circuit court for further proceedings con-

sistent with this decision.