Criminal Law – Case Law Update – Voluntary Consent

free-vector-scales-of-justice_099380_Scales_of_justiceOn May 25, 2016, the Oregon Court of Appeals issued an opinion regarding the scope of voluntary consent for police to search personal items.  In State v. Blair, 278 Or App 512 (2016), Defendant appealed his conviction for possession of hallucinogenic mushrooms, a violation of ORS 475.752(3)(a).  The officers in the underlying case responded to reports of armed suspects chasing a man in a park.  Upon their arrival, the officers found Defendant, the alleged victim of the attack, who appeared unkempt, dirty, and scratched.  The officers observed some signs of intoxication in Defendant.  Defendant retrieved a nearby backpack and one of the officers asked if he could search it.  Defendant responded “yeah, go ahead.”  Inside the backpack, the officer found a knotted, opaque grocery bag.  Inside the grocery bag, the officer found a ziploc bag containing hallucinogenic mushrooms.  Defendant was charged with and convicted of possession of a controlled substance.

Defendant appealed, arguing that he did not give consent for the officer to search the grocery bag within his backpack.  The Court of Appeals agreed.  The Court found that, because the officer did not say anything that would lead a reasonable person to believe that he was looking for controlled substances or weapons, Defendant did not give consent to search the grocery bag.  The Court contrasted the facts of this case with a case in which officers searched a car for controlled substances because the car smelled of marijuana and another officer had found drug paraphernalia in that defendant’s home.  In that case, a reasonable person in the defendant’s position would have understood the request to consent to a search to be for the purposes of discovering drugs or drug paraphernalia; however, in Blair, the context of the officers’ interactions with Defendant did not suggest they would be looking for drugs or weapons.  The trial court’s decision to allow the controlled substances into evidence was reversed.