447 P.3d 1212
Or. Ct. App.2019Background
- Petitioner was staying temporarily in homeowner Nisbet’s five-bedroom house and was arrested in the guest bedroom for violating a restraining order and DUII after police located his car outside the home late at night.
- Officers were let into the house by Nisbet’s 18‑year‑old daughter; they woke Nisbet in the master bedroom and asked him to locate and ‘‘go in and get’’ petitioner to avoid confrontation.
- Nisbet entered the guest bedroom, spoke with petitioner for ~3 minutes; an officer then asked from the doorway, “Are we good?” and Nisbet replied something like “yeah.” The officers then entered, arrested petitioner, and requested a breath test, which petitioner refused.
- DMV proposed a three‑year suspension for refusal; an ALJ upheld the suspension finding Nisbet had authority and voluntarily consented to the bedroom entry. The circuit court affirmed; petitioner appealed.
- The court assumed (without deciding) Nisbet had authority to consent but found the state failed to prove voluntary consent under Article I, §9 of the Oregon Constitution because the officers’ words and conduct produced acquiescence, not free choice.
Issues
| Issue | Petitioner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether officers lawfully entered petitioner’s bedroom without a warrant | Entry violated Article I, §9 because Nisbet did not validly consent | Nisbet (homeowner) had actual authority and voluntarily consented; officers’ conduct sought permission | Held for petitioner: state failed to prove voluntary consent; entry unlawful |
| Whether Nisbet’s response “yeah” to “Are we good?” was voluntary consent | The response was acquiescence under pressure and context, not free consent | The phrasing and prior conduct showed officers would not enter without homeowner’s consent; Nisbet gave consent | Held for petitioner: phrase/timing created impression of inevitability; no reasonable opportunity to refuse |
| Whether breath test request (and resulting DMV suspension) was valid given unlawful arrest | Refusal was based on an unlawful arrest; suspension invalid | Suspension valid because entry/consent lawful | Held for petitioner: breath‑test request invalid when arrest unconstitutional; DMV erred in suspending license |
| Standard/governing test for third‑party consent under Oregon law | Consent must be actual authority plus voluntariness under totality of circumstances | State bears burden to prove someone with authority voluntarily consented | Court applied precedent: voluntariness assessed under totality; state failed its burden |
Key Cases Cited
- Brown v. DMV, 157 Or. App. 167, 967 P.2d 919 (case on record-review and deference to agency findings)
- State v. Briggs, 257 Or. App. 738, 307 P.3d 564 (third‑party verbal invitation can be voluntary consent)
- State v. Jepson, 254 Or. App. 290, 292 P.3d 660 (officer statements conveying inevitability are acquiescence, not consent)
- State v. Freund, 102 Or. App. 647, 796 P.2d 656 (words conveying that a search will occur leave only cooperation vs. noncooperation)
- State v. Stanley, 287 Or. App. 399, 404 P.3d 1100 (state bears burden to prove authority and voluntariness of third‑party consent)
- State v. Dunlap, 215 Or. App. 46, 168 P.3d 295 (consent is an exception to the warrant requirement)
- Pooler v. MVD, 88 Or. App. 475, 746 P.2d 716 (administrative suspension invalid if based on an unconstitutional arrest)