State v. Bowen

904 P.2d 1076 (1995)

137 Or. App. 327

STATE of Oregon, Respondent, v. William R. BOWEN, Appellant.

94-01-30403; CA A84335.

Court of Appeals of Oregon.

Argued and Submitted July 21, 1995.

Decided October 18, 1995.

*1077 Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

David Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendant appeals from convictions for manufacture, delivery and possession of a controlled substance. ORS 475.992. He assigns as error the denial of his motion to suppress, contending that the warrantless search of his home was unlawful. We affirm.

We recite the evidence consistently with the findings of the trial court. We are bound by the trial court's findings if supported by evidence in the record. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). On the afternoon of January 7, 1994, Officer Cordell arrested defendant on a Portland street pursuant to an outstanding DUII warrant. Three more officers then arrived. After handcuffing defendant and giving him Miranda warnings, Cordell told defendant that he was suspected of growing marijuana in his home and asked for consent to seize the plants. Defendant told Cordell to get a warrant. Cordell said he could either get defendant's consent or get a search warrant.[1] Defendant refused to consent, and the officers drove him in a patrol car to his house two blocks away.

While defendant remained in the car, Cordell and another officer entered defendant's living room at the invitation of Stitzel, defendant's housemate. The plants and grow materials were out of view in a back bedroom. Cordell told Stitzel that defendant was suspected of growing marijuana somewhere in the house, and asked for permission to seize the plants. Stitzel said the officers would need a warrant. As with defendant, Cordell told Stitzel that he could either consent or they would post an officer outside and get a search warrant. Stitzel insisted on a warrant, and the officers went outside to their patrol cars.

*1078 Before he was driven to jail, defendant said, "He can get the plants." When Cordell asked what he meant, defendant asked to speak with Stitzel. One of the officers told Stitzel that defendant had consented and wished to speak to him. After talking to defendant, Stitzel said he would get the plants. When Officer Ober asked, "Can I go with you," Stitzel said "yes," and guided him to the plants and other paraphernalia in the back bedroom.

The trial court denied defendant's motion to suppress, ruling that, under the totality of the circumstances, Stitzel voluntarily consented because the police neither coerced nor deceived him. On appeal, defendant challenges the validity of both his and Stitzel's purported consents under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court did not rule on defendant's consent. Because we agree that Stitzel validly consented, we also do not address the validity of defendant's consent.

Defendant contends that Stitzel's consent was involuntary under the totality of circumstances, because after Stitzel initially refused consent, Cordell gave Stitzel Miranda warnings and threatened to post an officer outside while he got a warrant. Defendant argues that, because there was insufficient probable cause to issue a warrant,[2] the officer threatened to do something the law would not allow. See State v. Douglas, 260 Or. 60, 81, 488 P.2d 1366, cert. den. 406 U.S. 974, 92 S. Ct. 2420, 32 L. Ed. 2d 674 (1971) (O'Connell, C.J., dissenting). Additionally, defendant argues that Stitzel was deceived because the other officer told him that defendant had consented when he had not. Citing Bumper v. North Carolina, 391 U.S. 543, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968), defendant argues that, because Stitzel relied on this misrepresentation, he did not consent but merely acquiesced to a false claim of authority.

Warrantless searches are valid under Article I, section 9, and the Fourth Amendment if they fall under a recognized exception to the warrant requirement, such as consent. State v. Paulson, 313 Or. 346, 351, 833 P.2d 1278 (1992); State v. Bea, 318 Or. 220, 231, 864 P.2d 854 (1993). When the state seeks to justify a search based on consent, it must show that someone with authority to consent voluntarily did so. Paulson, 313 Or. at 352, 833 P.2d 1278; Bea, 318 Or. at 231, 864 P.2d 854. Under Article I, section 9, we are not bound by the trial court's legal conclusion of voluntariness, and instead "assess anew whether the facts suffice to meet constitutional standards." State v. Stevens, 311 Or. 119, 135, 806 P.2d 92 (1991); see also State v. Warner, 284 Or. 147, 156-58, 585 P.2d 681 (1978). Under the Fourth Amendment, voluntariness of consent is a question of fact, and we will not disturb the trial court's finding unless it is unsupported by the record or clearly erroneous. Schneckloth v. Bustamonte, 412 U.S. 218, 227, 248, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973); Bea, 318 Or. at 231, 864 P.2d 854.

Under state law, consent is not involuntary simply because police threaten "`to do what the law permits them to do.'" State v. Williamson, 307 Or. 621, 627, 772 P.2d 404 (1989) (Carson, J, concurring, quoting Douglas, 260 Or. at 81, 488 P.2d 1366) (officer's threat to "detain" defendant's truck unless defendant consented rendered consent invalid because the officer could not lawfully detain the truck). An officer's threat to obtain a warrant, however, is but one factor in determining whether a person voluntarily consented. State v. Greason, 106 Or.App. 529, 535, 809 P.2d 695, rev. den. 311 Or. 643, 815 P.2d 1273 (1991). Voluntariness of consent under Douglas does not turn on the officer's actual ability to obtain a warrant, but rather is determined under the totality of circumstances. Greason, 106 Or.App. at 535, 809 P.2d 695; State v. Roy, 28 Or.App. 861, 864 n. 3, 562 P.2d 213 (1977).

In Douglas, the police told the defendant that they would "apply for" a warrant if he refused to consent. Douglas, 260 Or. at 78, 488 P.2d 1366. Although the court doubted *1079 that an ordinary person could distinguish "get a warrant" from "apply for a warrant," the threat was not controlling because the defendant's brother-in-law, not the police, ultimately caused the defendant to consent. Id. at 79, 488 P.2d 1366.

The situation here is analogous to that in Douglas. Stitzel testified that he allowed the police inside because he was "under the impression that defendant had consented." Therefore, under the totality of the circumstances, Cordell's threat to obtain a warrant is not controlling because, as in Douglas, the record reveals that Stitzel consented for reasons independent of that threat. Cordell's threat to get a warrant, lawful or not, did not affect Stitzel's decision.

Defendant nonetheless contends that, because the other officer falsely stated that defendant had consented, the officer effectively told Stitzel that he had no choice whether a search would occur. The record, however, does not support defendant's claim.

After defendant said, "He can get the plants," Stitzel talked with defendant at the patrol car. Stitzel then said that he would bring the plants out, and guided Ober inside. Both defendant and Stitzel testified that they did not discuss defendant's change of mind at the car. The trial court, however, found that testimony "not worthy of belief" and refused to accept that "there was no mention of [defendant consenting] during the discussion."

The trial court also found that, immediately after their conversation, Stitzel believed that defendant had consented, but the court did not make findings as to why Stitzel believed that. When the court fails to make material findings, we presume that the facts were decided in a manner consistent with the ultimate conclusion, if supported by the record. Ball, 250 Or. at 487, 443 P.2d 621. Based on the above findings and credibility assessments, we conclude that the trial court implicitly found as fact that Stitzel believed defendant had consented because of his conversation with defendant, and not because of what the officer said.

The trial court correctly concluded that Stitzel's consent was voluntary because, under the totality of the circumstances, nothing the police did materially affected his decision. We therefore hold under Article I, section 9, that Stitzel validly consented to Ober's entry. Because voluntariness of consent is a question of fact under the federal constitution, and the record supports the trial court's finding of voluntariness, we hold that Stitzel also validly consented under the Fourth Amendment.[3]

Affirmed.

[1] Defendant testified at the suppression hearing that Cordell said he could get a warrant, while Cordell testified that he said he could apply for one. The trial court found:

"I think it's more likely that the officers said they would get a search warrant than they would apply for one, but I don't find any great distinction in that."

We believe that the trial court found that Cordell said he could "get" a warrant. Because the record supports this finding, it is binding. Ball, 250 Or. at 487, 443 P.2d 621.

[2] Defendant argues that his high electric bills alone do not provide probable cause and that the state offered no evidence of the reliability, quality or basis of informant accusations. We do not address whether there was probable cause because our analysis does not turn on whether the officers could have obtained a warrant.

[3] Bea, 318 Or. at 231, 864 P.2d 854.