Defendant appeals a judgment convicting him, after a trial on stipulated facts, of possession of a controlled substance.
Former
ORS 475.992 (2003),
renumbered as
ORS 475.840 (2005). Defendant asserts that the trial court erred in denying his motion to suppress evidence of the contents of a folded piece of tin foil that a police officer opened after defendant handed it to him. The trial court determined that defendant consented to the search. Defendant contends that the search violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution because it exceeded the scope of his consent. Because the pertinent facts are undisputed, we review that issue as one of law.
State v. Arroyo-Sotelo,
On J anuary 9,2002, Officers Huber and Ray went to the home of James Bowie. Ray was following up on the investigation of a stabbing incident. Ray had received information that a red pickup truck was involved in the incident and that the pickup might be found at Bowie’s residence. Huber was familiar with Bowie’s residence and agreed to accompany Ray.
The officers arrived at Bowie’s residence and knocked on the door, and Bowie answered. Bowie stepped outside to speak with the officers. Huber asked for consent to enter the residence, and Bowie gave consent. Huber went inside while Ray remained outside and talked to Bowie about the truck.
Huber found five people, including defendant, inside the residence. Huber was acquainted with all of them except for defendant. Huber asked everyone present for identification, and each person gave him either an identification card or other identifying information. Huber ran a warrant check on all of the people inside the house and then returned their identification cards.
While inside the house, Huber saw a “hard plastic black carrying case that appeared to be a carrying case for a car stereo.” Because the officers were interested in the red *11 pickup truck and because almost everyone in the residence told Huber that “none of them had driven to the residence,” Huber asked whom the case belonged to. Defendant said that the case was his. Huber asked what the case contained, and defendant answered that a stereo was inside. Huber asked if he could see it, and defendant opened the case, removed the stereo face plate, closed the case, and showed Huber the stereo.
When defendant opened the case, Huber noticed that defendant lifted it in a manner suggesting that he was trying to keep Huber from seeing something. Huber also noticed a silver object in the case. Huber asked defendant what else was inside the case, and defendant opened it and removed the silver object. At that point, Huber could tell that the object was tin foil.
Huber testified that tin foil “is commonly used for the consumption, inhalation, and storage of illegal narcotics.” Huber suspected that the tin foil contained controlled substances based on his previous contacts with “individuals that were in that room.” However, Huber did not believe that he had probable cause to conclude that a controlled substance was inside the tin foil. When defendant removed the tin foil from the case, Huber asked defendant “if I could see it.” Defendant handed the tin foil to Huber. Huber asked defendant what was inside the foil, and defendant said that he did not know. Huber then unfolded the foil and saw what appeared to be burnt residue. Huber asked defendant “what he used the tinfoil for,” and defendant again said that he did not know. Huber then asked defendant to step outside the residence, and defendant complied. Huber then questioned defendant further. Defendant admitted that the tin foil was his and said that he had used it earlier that day to smoke “crank.” 1
Huber asked defendant if he had any more methamphetamine, and defendant said no. Huber asked for consent to search defendant, and defendant consented. Huber did not find any other drugs. Huber asked defendant what he *12 and the other people were doing inside the residence before the officers arrived. When defendant hesitated, Huber told him that he did not have to answer that question, and defendant said that he would rather not answer.
Before trial, defendant moved to suppress evidence of the methamphetamine residue that Huber found inside the tin foil. Among other grounds for suppression, 2 defendant asserted that, by opening the folded tin foil, the officer exceeded the scope of any consent that defendant had manifested by handing the foil to him. The trial court denied the motion. Regarding the scope of consent issue, the court said:
“It is not clear to me if [defendant] consented to the opening of the foil, but he did consent to Officer Huber looking at it. Looking at it, at least in the context of a folded piece of foil, reasonably implies looking in it. If that were not enough, I think Officer Huber’s training and experience suggests that it may contain a controlled substance.
“He does look in the foil and determines that there is a residue of a controlled substance, or a burnt controlled substance inside of the aluminum foil and he makes some further inquiry. He asks if it is methamphetamine and eventually that is admitted. * * *
“* * * Essentially, everything that was obtained was obtained in the course of a mere encounter or was obtained through consent. Therefore, the motion to suppress is denied.”
Evidence that Huber opened the tin foil and found the methamphetamine residue inside, and defendant’s statements after that discovery was made, were admitted in the ensuing stipulated facts trial.
Consent to a search is a recognized exception to the warrant requirement of both the state and federal constitutions.
State v. Weaver,
At the threshold, the state argues that we need not address whether the officer exceeded the scope of defendant’s consent when he unfolded the tin foil. The state asserts that, in any event, the folded tin foil announced its contents and, therefore, the examination of those contents did not constitute a search. 3
In
State v. Owens,
“Some containers, those that by their very nature announce their contents (such as by touch or smell) do not support a cognizable privacy interest under Article I, section 9. Transparent containers (such as clear plastic baggies or pill bottles) announce their contents. The contents of transparent containers are visible virtually to the same extent as if the contents had been discovered in ‘plain view,’ outside the confines of any container. * * * No warrant is required for *14 the opening and seizure of the contents of transparent containers or containers that otherwise announce their contents.”
In
State v. Herbert,
“Some containers of illicit drugs may be so uniquely associated with the storage and transportation of controlled substances that their unique packaging alone might provide, to an officer with training and experience in the area of drug detection, probable cause to believe they contain a controlled substance. Examples of such unique containers might be balloons or tinfoil bindles”
(Emphasis added.) The state relies on
Herbert
and
State v. McCrory,
We disagree with that proposition; it confuses the inquiry whether probable cause to search existed with the issue whether a search occurred at all. “Probable cause” to conduct a warrantless search does not require certainty.
State v. Collicott,
A similar problem was addressed in
State v. Walker,
“First, the state’s premise that probable cause alone can justify a warrantless search contradicts the most fundamental principle of Oregon search and seizure law. A ‘search’ must be supported by probable cause and either a valid warrant or an exception to the warrant requirement. State v. Davis,295 Or 227 , 237,666 P2d 802 (1983) (‘[W]arrantless * * * searches * * * are per se unreasonable unless falling within one of the few “specifically established and well-delineated exceptions” to the warrant requirement.’). Thus, police can lawfully open an opaque container without a warrant in only two circumstances: (1) The container so ‘announces its contents’ that opening it does not invade a protected privacy interest and, thus, does not constitute a search. See, e.g., Owens,302 Or at 206 ; [State v.] English, 164 Or App [580,] 583[,994 P2d 165 (1999), rev den,331 Or 244 (2000)]; or (2) the opening is supported by probable cause and some exception to the warrant requirement, e.g., officer safety or the automobile exception.
“Second, Herbert and McCrory did not establish that probable cause alone is sufficient to justify a warrantless search of a closed container. Rather, both cases involved exceptions to the warrant requirement. In Herbert, exigent circumstances, particularly including the defendant’s furtive efforts to distract the arresting officer as defendant attempted to dispose of the paperfold, justified the warrant-less opening of the paperfold.302 Or at 242 ; see [State v.] Kruchek, 156 Or App [617,] 622 n 2[,969 P2d 386 (1998), aff'd by an equally divided court,331 Or 664 ,20 P3d 180 (2001)]. In McCrory, police seized the paperfold during a ‘booking in’ inventory at a county jail, which we treated as a search incident to arrest.84 Or App at 392 . Here, in contrast, no exception to the warrant requirement applies.”
*16
Walker,
When a request to search contains no limitations, and the defendant likewise places no limitations on the consent, the scope of that consent may be broad.
Allen,
In
Allen,
the officer pulled the defendant’s vehicle over for a traffic infraction. After giving the defendant a warning and telling him that he was free to leave, the officer asked the defendant if he had any “weapons, narcotics, or large sums of money” in the vehicle.
In reaching our conclusion in that case, we closely examined the particular circumstances. We noted that an important factor in determining the scope of a consent to search is the substance of the interchange between the officer and the defendant. We were particularly persuaded in Allen by the fact that, when the officer asked for consent, he mentioned that he was looking for particular items, thereby giving the defendant some indication where the officer would be looking. We were also persuaded by the fact that the *18 searched suitcase was the type of container that might hold the types of items that the officer mentioned. Finally, we were influenced by the fact that the defendant stood by the officer as he conducted the search, but did not withdraw his consent or place any limitations on the search when it became apparent that the officer was going to open his suitcase. Based on those facts, we ultimately concluded that, in that case, the officer did not exceed the scope of the defendant’s consent.
We reached a different conclusion in
Arroyo-Sotelo.
In that case, the officer stopped the defendant’s vehicle for a traffic infraction. After giving the defendant a warning and telling him that he was free to leave, the officer asked him if there were “narcotics, cocaine, marijuana, heroin or large amounts of currency” in the car.
In so ruling, we explained that the standard for determining the scope of a person’s consent to search under both Article I, section 9, and the Fourth Amendment is one of objective reasonableness. Id. at 295. We stated that, under that standard, we must determine whether an objectively reasonable person would have understood the particular consent given to include a search of the area at issue. Id. As in Allen, we emphasized that our ultimate conclusion was dependent on all of the particular circumstances. Again, we noted that the interchange between the officer and the defendant was important; in particular, the substance of the officer’s request was significant. In Arroyo-Sotelo, the officer asked to search for specific items that could be found in containers and the defendant did not expressly limit his consent. We therefore concluded that the officer’s authority to search *19 was “quite broad.” Id. at 297. Nonetheless, we held that a reasonable person would not have understood the consent to search under those circumstances to allow the officer to search the space between the door panel and sidewall:
“Absent specific facts to suggest otherwise, a general consent to search a car does not authorize an officer to search areas of a car that are not designed to be routinely opened or accessed. The fact that [the officer] had to remove two screws and pry a panel away from the sidewall to access the area of the search supports our conclusion that that area was not within the scope of defendant’s general consent to a search.”
Id.
at 297-98. We also specifically noted that, unlike the defendant in
Allen,
the defendant in
Arroyo-Sotelo
was not in a position to “voice an objection” to the officer’s act of removing the side panel.
In
Jacobsen,
an officer asked the defendant in the course of “casual * * * conversation” if he could “look” inside the cab of the defendant’s truck.
In
State v. Harvey,
The circumstances of this case are similar in some respects to those found in each of the foregoing cases and, not unexpectedly, they differ in other respects from each of them. This case resembles some of the cases in which a search was upheld, in that defendant placed no express restriction on what the officer could do with the tin foil after defendant handed it to him, and defendant did not object when the officer unfolded it to examine its contents. On the other hand, significant differences exist between those cases and the present case. To place those differences in proper context, we initially note that it was only after defendant said that he did not know what was inside the tin foil that Huber opened the fold and looked inside. The state does not argue, nor do we see how it could be, that defendant’s professed ignorance about the contents constituted consent to opening the tin foil. Nothing about that answer bespoke an invitation to look inside. Thus, the critical issue is whether defendant consented to the search of the tin foil’s contents when he handed it to Huber. Accordingly, we focus on the facts relating to that act.
As discussed, Huber suspected that the tin foil contained controlled substances based on his previous contacts with “individuals that were in that room.” However, there was no evidence that Huber mentioned that suspicion to anyone. In particular, the officer did not tell defendant why he wanted to examine the tin foil. Consistently with that lack of overt investigative focus, the officer never asked defendant for permission to “search”; rather, he asked if he could “see” the tin foil. Again, consistently, defendant did not expressly tell Huber that he could look inside the tin foil; he merely handed it to him.
*21 In that casual, conversational context, Huber himself did not appear to believe that defendant had consented to the opening of the tin foil merely by handing it to him. Instead, after defendant did so, Huber asked him what was inside the foil. If Huber had believed that he had permission to open the fold, he would have had no reason to ask defendant what was inside. Although asking the question most prominently suggested that Huber did not subjectively believe that defendant had consented to the search of the tin foil’s contents — which is not relevant here — it also is some evidence that a reasonable person would not have understood that handing over the tin foil in response to the officer’s request to “see” it included consent to opening it to examine its contents.
Here, each verbal exchange between defendant and Huber was discrete. Significantly, in none of those exchanges did Huber ask defendant if he could look inside anything. Nor did defendant’s nonverbal conduct, just seconds earlier, in opening and closing the black carrying case to show Huber the stereo, indicate anything but a very limited desire to cooperate on the part of defendant. By contrast, in Allen, the search of a metal container within a purse was preceded by a request to look inside the purse; the defendant agreed. As a consequence, it was logical to infer that her consent encompassed the opening of other closed containers found within the purse. The same was true in Charlesworth/Parks (search of closed container in car preceded by unrestricted consent to request to search car) and Harvey (same). We find no similar implicit manifestation of consent to open anything in this case. It is true that, as in Allen, defendant here did not object when Huber opened the tin foil. However, there is no evidence that he had a meaningful opportunity to object or, for that matter, that it would have availed him to do so. In the totality of circumstances, we conclude that a reasonable person would have understood that, by handing the folded tin foil to the officer in response to a request to “see” it, defendant was consenting to an examination of the tin foil itself, not to its opening and the examination of its contents. It follows that the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.
Notes
A crime lab report later showed that the residue inside the tin foil tested positive for methamphetamine.
Defendant does not renew any of the other grounds for suppression that he asserted before the trial court, and we do not address them.
It is not clear whether the state adequately raised and developed this argument before the trial court. However, defendant has not asserted on appeal that he lacked an opportunity to fairly meet the argument before the trial court and that, as a consequence, we should not consider it.
See Outdoor Media Dimensions Inc. v. State of Oregon,
In
English,
stipulated testimony established that the officer had “seen other such containers and that, without exception, they always contained marijuana, methamphetamine, or some other controlled substance.”
For example, the state does not argue that Huber could have opened the tin foil as a search incident to the constructive arrest of defendant for possession of a controlled substance. See Owens (explaining constructive arrest based on observation of container that announces its contents).