Submitted July 30, 2014.
Douglas County Circuit Court. 11CR2221FE. Ronald Poole, Judge.
Peter Gartlan, Chief Defender, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Lagesen, Judge.
[267 Or.App. 338] HASELTON, C. J.
After a jury trial, defendant was convicted of unlawful possession of methamphetamine, ORS 475.894. On appeal, she contends that the trial court erred in denying her motion to suppress evidence found as the result of a warrantless search of a bedroom that she shared with her mother. Specifically, defendant argues that (1) her brother lacked actual authority to allow officers access to the door of the apartment that defendant shared with others; and (2) her mother lacked actual authority to consent to the search of certain items in their shared bedroom, including a wooden box that contained the methamphetamine. As explained below, we need not address defendant's first argument because, even assuming without deciding that her brother had actual authority to
give the police access to the door of the apartment, defendant's mother lacked actual authority to consent to a search of the wooden box. Consequently, the trial court erred in denying defendant's motion to suppress the methamphetamine and derivative evidence. We reverse and remand.
The material facts are uncontroverted. In September 2011, Parole and Probation Officer Sparks and Douglas County Sheriff's Deputy Scriven went to the listed address of a parolee, Fleshman, to perform a home visit after receiving a report of drug activity. The listed property consisted of two separate buildings: a main single-family home and a free-standing garage in the back, a part of which had been converted into a second living area. Defendant's brother, Dabbs, lived in the main house. Fleshman and his girlfriend, Crowe (who is defendant's niece), lived in the converted garage with defendant and defendant's mother, Bull. Dabbs, Bull, and Dabbs's father-in-law were buying the entire property, which consisted of both the main house and the converted garage.
Once at the property, the officers went to the front door of the main home, and Dabbs informed them that Fleshman lived in the back in a converted garage but that he was not currently there because he was in the process of moving. The officers asked if Crowe (Fleshman's live-in girlfriend) was there, and Dabbs took the officers to the converted garage to speak to her.
[267 Or.App. 339] When Dabbs and the officers reached the converted garage, the exterior door was open, and " there was just kind of an open entryway where there was some tools and stuff stored and then there was an interior door that was closed." Scriven asked Dabbs if the officers could enter through that first door into the storage area, and Dabbs responded, " Yes." The officers then followed Dabbs into the storage area, and, once inside, Dabbs knocked on a second door, which was located a few feet from the first door. Crowe opened the second door, and Dabbs entered, leaving the door open behind him. From where the officers were standing--on the storage area side of the threshold--they saw Crowe inside a living room and detected an " overwhelming odor of marijuana." Dabbs told Crowe that the officers were looking for Fleshman. Crowe then told the officers that they could come in, and Dabbs left.
Once inside the living room, the officers spoke with Crowe, while defendant, who was also in the room, remained seated in a recliner. Crowe told the officers that she and Fleshman were in the process of moving to another residence. When asked about the odor of marijuana, Crowe responded that it was probably associated with her 88-year-old grandmother, Bull, who was in a bedroom at the back of the apartment. Scriven asked Crowe for consent to go to the bedroom, and Crowe agreed, ...