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In re A.S.

Court of Appeals of Oregon

March 20, 2019

In the Matter of A. S., a Youth.
v.
A. S., Appellant. STATE OF OREGON, Respondent,

          Argued and submitted April 26, 2018.

          Multnomah County Circuit Court 16JU08126; Petition Number 161004186; Katherine E. Tennyson, Judge.

          Adrian T. Smith argued the cause and fled the reply brief for appellant. On the opening brief was Kevin J. Ellis.

          Robert W. Wilsey, Assistant Attorney General, argued the cause for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Linder, Senior Judge.

         Affirmed.

         Case Summary: Youth appeals a judgment fnding him within the jurisdiction of the juvenile court for acts that, if committed by an adult, would constitute one count of unlawful possession of a frearm. Youth assigns error to the trial court's denial of his motion to suppress evidence of a gun that police found in his room when they searched it based on consent given by youth's grandmother, arguing that the consent was invalid because youth was physically there and expressly objected to the search.

         Held: The juvenile court's determination that grandmother gave offcers valid consent to search youth's room was supported by the evidence in the record. Grandmother's access to the items in youth's room and control over its contents, coupled with grandmother's status as family elder and homeowner, led the Court of Appeals to conclude that the juvenile court did [296 Or. 723] not err when it determined that grandmother had actual authority to consent to a search of the items in youth's room.

         Affirmed. [296 Or. 724]

          LINDER, S. J.

         In this juvenile delinquency case, the juvenile court found youth to be in the court's jurisdiction based on youth's unlawful possession of a firearm. ORS 166.250. On appeal, youth challenges the juvenile court's denial of his motion to suppress evidence of a gun that police found in youth's bedroom when they searched it based on consent given by youth's grandmother, who owned the home where youth was living. Youth argues that his grandmother could not authorize the search as against him because he was present at the time and objected to it. As we will explain, we conclude that the grandmother's consent was valid and, as a result, the search was lawful. We therefore affirm.

         Although the parties disagree on the legal significance of the facts in the record, the facts themselves are not disputed. In all events, we state the facts and all reasonable inferences that the record supports in the light most favorable to the juvenile court's denial of the motion to suppress. State v. Beylund, 158 Or.App. 410, 416-17, 976 P.2d 1141, rev den, 328 Or. 594 (1999) (We defer to the trial court's express and implicit findings of fact, but whether those facts establish authority to consent to search is a legal question.).

         At the time of the events involved in this case, youth was 16 years old and was living with his grandmother in a home that she owned. Youth, who had his own bedroom in the home, had lived there for two and one-half years. Youth helped with chores by "taking out the garbage, cleaning his own room," and otherwise doing "those kind of things." Youth paid no rent of any kind, however, and his grandmother required him to follow the rules that she set. Youth resisted the idea that his grandmother could go into his room at will, stating "emphatically" in conversations with her that it was his room. But his grandmother, just as emphatically, told him that "it's my house. If I want to go in there, I will go in there." And she did. The door was never locked. Youth's grandmother did not need his permission to enter his bedroom. She regularly went into youth's room to, among other things, wake him up for school, make sure windows were closed, clean, and to pick up. Throughout the time that youth lived there, his grandmother's position was: [296 Or. 725] "[I]f there's reasons for me to go in [youth's bedroom], I will go in. He's still in our home and still 16 and I will go in if I need to." Even so, she tried to "respect his space" by, for example, knocking on the door if it was shut before entering and not cleaning or picking up in the room right after waking youth if it disturbed him at that time. On those occasions, she would come back later, at which point she would clean and pick up things in the room as she chose.

         The search in this case occurred after Officer Culp, a police officer who is also a high school resource officer, received a report that youth and one of his friends (Cameron, a 19-year-old former student) showed up with handguns the day before at an off-campus fight. Culp and two other officers went to youth's home to investigate. The grandmother allowed the officers into the house. Then she walked directly back to youth's room and entered, permitting the officers to enter the bedroom with her. At the time, youth, Cameron, and a third friend (a 16 year old) were all asleep in youth's room.[1] Culp remained in the bedroom with youth, while the two other officers talked to his friends in other parts of the house. Culp asked youth for permission to search the room, but youth said he did not want the officer to search. Culp then said he would ask youth's grandmother for permission. Youth responded that if he told his grandmother not to allow the officer search, she would refuse. Before the officer could "get the words out" to ask the grandmother for her consent, she walked into the room and, having heard the officer ask for permission to search, said, "Go, look through whatever you want." The grandmother believed that she had the right to permit the search, explaining at the suppression hearing that "[i]t was my home and apparently there was something going on that shouldn't have been going on in my home and I wanted it resolved." Culp found a firearm in youth's room on an open shelf of an entertainment center, beneath a towel.

         Youth was charged with committing acts that, if committed by an adult, would constitute unlawful possession [296 Or. 726] of a weapon under ORS 166.250. At trial, relying on both state and federal constitutional grounds, youth moved to suppress the evidence of the firearm seized in the search. In support of his motion, youth argued that his grandmother's consent to search was invalid as against him, because youth was physically present and expressly objected to the search. In response, the state argued that youth's grandmother, throughout the time that youth lived there, made it clear that it was "her house, her rules." As a result, the state contended, youth's ...


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