Defendant appeals a judgment of conviction for violating ORS 166.270 by being a felon in possession of a firearm. He contends that the trial court erred in denying his
We state the facts consistently with the trial court’s findings, which are supported by evidence in the record. State v. Hall,
During the conversation, at some point while defendant was present, Garcia asked if there were any other guns in the house. Fletcher indicated that there were two: a shotgun and a handgun. Garcia told defendant and Fletcher that she knew that they were felons and were not supposed to possess firearms. Fletcher explained that she thought she was allowed to have the guns because she used them in her business, a mobile slaughter service. Defendant stated that he thought he was allowed to possess the guns because eight years had passed since his felony conviction. Garcia told defendant and Fletcher that, because she was not sure about the law, she would check and return if there was a problem.
About an hour later, Garcia returned to the residence with Deputy Prock. When Garcia and Prock arrived, defendant was again on the porch, and Garcia told him that she had checked and had learned that he could not possess the guns. When Garcia started to read defendant his Miranda rights, defendant went into the house to advise Fletcher of the situation. Fletcher and defendant returned to the porch, and Garcia finished reading them their Miranda rights. Both defendant and Fletcher indicated that they understood and that they were willing to answer questions. They again explained why they thought that they could lawfully possess the guns. Garcia then said, “[W]e’re going to have to take the firearms.” Prock asked Fletcher where the guns were located, and Fletcher gave detailed directions to the guns’ location in the bedroom. Prock then entered the house and retrieved the firearms while Garcia, defendant, and Fletcher remained on the porch. Neither Garcia nor Prock explicitly asked for permission to retrieve the guns from inside the house, and neither Fletcher nor defendant voiced any objection to Prock entering the house and taking the weapons.
Defendant was subsequently charged with two counts of felon in possession of a firearm, ORS 166.270. He filed a motion to suppress the evidence obtained as a result of the warrantless search of his residence.
On appeal, defendant does not challenge the trial court’s conclusion that the encounter was not a seizure or its conclusion that he was not unlawfully questioned. Rather, he argues that the search was unlawful because it was not authorized by a warrant and it did not fit within any exception to the warrant
A warrantless search violates Article I, section 9, of the Oregon Constitution unless justified by an exception to the warrant requirement; consent is one such exception. State v. Dunlap,
Here, defendant does not argue that any consent he gave was involuntary; rather, he claims that he did not consent to Prock entering or searching the house at all. We have held that consent may be manifested by conduct, see State v. Martin,
Defendant argues that this case is analogous to State v. Freund,
“The officer stated that “he was there’ to pick up the marijuana and ‘he wanted’ to do it calmly. The words used in the first phrase are unconditional; they do not invite a response other than acquiescence. In contrast, the words in the second phrase are supplicatory and do invite a response. Read together, the officer’s statement told defendant that she had no choice whether a search would occur; her only option was whether the search and seizure was to be ‘calm and efficient.’ Defendant merely chose the option favoring calmness and efficiency * *
Id. at 652. We further held that the “defendant’s acquiescence in [the officer’s] request that she show them where the plants were did not constitute a voluntary consent, given the events that proceeded it. [The officer] did not ask, ‘May we search?’ but Will you show us?”’ Id.
In contrast, in State v. Ry / Guinto,
In the present case, we agree with defendant that Garcia’s statement that “we’re going to have to take the firearms,” like the officer’s statement in Freund that he “was there to pick up the marijuana,” was not a request to obtain consent, but rather, an unconditional statement, which did not invite a response other than acquiescence. Similarly, Prock asking “where the guns were,” in light of the preceding statement, was not a question expressing a desire to seek consent, but an additional statement of the officers’ intent to seize the guns. Unlike the officer’s phrasing in Ry/Guinto, here, the officers’ statements did not express an understanding that they would not, and could not, search without defendant’s and Fletcher’s consent. Thus, we cannot conclude that Fletcher’s and defendant’s response, giving directions to the guns’ location and standing by without objection, while Prock entered the house and seized the guns, constituted voluntary consent, given the events that proceeded it. Because the state did not meet its burden of proving that defendant’s response amounted to anything more than passive acquiescence to Prock’s entry into the home, we conclude there was no consent for the search.
However, the state argues (in a footnote) that “[i]t is not clear that defendant — in contrast to Fletcher— can assert a constitutional challenge to the seizure of the guns because he disclaimed any possessory or privacy interest in them.” In support of this theory, the state cites State v. Brown,
“Q [by prosecutor]: Mr. Jepson, those — You didn’t have an ownership interest in those guns, correct?
“A [by defendant]: Correct.
“Q: You didn’t care if the cops took them or not?
“A: Well—
“Q: That day?
“A: No, not really.”
Second, and more fundamentally, the state’s theory that the search was lawful because of defendant’s disclaimer was never advanced at the suppression hearing. The state’s sole theory of the case was that the search fell within the consent exception to the warrant requirement because it was voluntary and it was unrelated to any unlawful seizure. Defendant, for his part, argued that the encounter was a stop, that his passive acquiescence was not consent, and that, if it was consent, it was the involuntary product of coercive circumstances. The issue of disclaimer never arose. If it had, the record would certainly have developed differently, because whether a person’s disclaimer rises to the level of a waiver of his rights under Article I, section 9, of the Oregon Constitution is a heavily fact-intensive inquiry. See State v. Brown,
Reversed and remanded.
Notes
Fletcher was apparently also charged with felon in possession of a firearm and her motion to suppress was considered at the same hearing as defendant’s motion, but she is not a party to this appeal.
Because the issue was not adequately raised below or developed on appeal, we express no opinion on whether a defendant’s disclaimer of ownership of items seized during an unlawful search of a defendant’s property can or cannot justify suppression of the items when the disclaimer occurs only at a subsequent suppression hearing or trial.