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In re Suspension of Driving Privileges of Nelson

Court of Appeals of Oregon

August 14, 2019

In the Matter of the Suspension of the Driving Privileges of Joseph Andrew Nelson.
v.
DRIVER AND MOTOR VEHICLE SERVICES (DMV), a Division of the Department of Transportation, Respondent-Respondent. Joseph Andrew NELSON, Petitioner-Appellant,

          Submitted November 29, 2018

          Deschutes County Circuit Court 17CV33044 Walter Randolph Miller, Jr., Judge.

          Thaddeus Betz fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Petitioner was arrested for driving under the influence of intoxicants and violating a restraining order. The arrest took place in petitioner's bedroom in another person's house where petitioner was temporarily residing. After arresting him, the police asked petitioner to consent to a breath test, which he refused. As a result of that refusal and after a hearing, the Driver and Motor Vehicle Services Division of the Department of Transportation (DMV) ordered a three-year suspension of petitioner's driving privileges. The circuit court affirmed. In his sole assignment of error on appeal, petitioner argues that Article I, section 9, of the Oregon Constitution was violated when the police entered his bedroom without a warrant or valid consent and that, therefore, the suspension is invalid. In particular, petitioner argues that the homeowner did not have actual authority to consent to the police entering into petitioner's bedroom or, alternatively, that, even if he did have actual authority, the homeowner did not voluntarily consent to the entry. Held: The DMV erred in ordering the suspension. Even assuming that the homeowner had actual authority to consent to the entry into petitioner's bedroom, the state failed to establish that the [299 Or.App.63] homeowner voluntarily consented to the entry, rather than merely acquiescing to police authority.

         Reversed.

          [299 Or.App.64] AOYAGI, J.

         Petitioner was arrested for driving under the influence of intoxicants (DUII) and violating a restraining order. The arrest took place in petitioner's bedroom in a house where he was temporarily residing. After arresting him, the police asked petitioner to consent to a breath test, which he refused. As a result of that refusal, the Driver and Motor Vehicle Services Division of the Department of Transportation (DMV) proposed to suspend petitioner's driving privileges for three years. Petitioner requested a hearing before an administrative law judge (ALJ). After the hearing, the DMV ordered the proposed suspension. The circuit court affirmed the DMVs order. On appeal, petitioner raises a single assignment of error. As he did below, petitioner argues that the police violated his rights under Article I, section 9, of the Oregon Constitution by entering his bedroom without a warrant and without valid consent and that, therefore, the suspension is invalid.[1] The state counters that the police had valid consent from the homeowner. For the following reasons, we reverse.

         FACTS

         We summarize the relevant historical facts consistently with the unchallenged findings in the final order. Brown v. DMV, 157 Or.App. 167, 169, 967 P.2d 919 (1998).

         On a June night, the police received reports that petitioner had visited his wife's home in violation of a restraining order and that he was visibly intoxicated and driving. Around 1:00 a.m., Officer Voll located petitioner's parked car outside the home of Nisbet. Nisbet lived in the two-story, five-bedroom house with his wife and four children, and petitioner was living there temporarily. Voll and a cover officer, Officer Emile, approached the house together. [299 Or.App.65] After about 15 minutes, the officers made contact with Nisbet's 18-year-old daughter, who let them into the house.[2]

         After entering the house, Voll asked to talk to Nisbet. In Voll's words, he wanted Nisbet to be "aware, number one, that we were in the home, so that we continued to essentially have that consent from the homeowner" and also wanted "to help make that transition in making contact with [petitioner] a little bit easier." The daughter, accompanied by the officers, went upstairs and knocked on the closed door of the master bedroom. Nisbet woke up, opened the door, and found his daughter and two police officers with flashlights in the hallway. Voll recalled that another young girl also came out of one of the bedrooms.

         Voll wanted Nisbet's consent to remain in the house but did not affirmatively request consent; rather, he "oper-ate[d] on the assumption" that, once Nisbet was awake and aware of the officers' presence, "by not kicking [them] out he was consenting [for them to be] in the residence." The officers explained to Nisbet that they "needed to speak to know where [petitioner] was located." In response, Nisbet pointed to the guest bedroom, which was located next to the master bedroom. As the ALJ found, the officers then "asked [Nisbet] to go in and get [petitioner], probably to avoid confrontation and keep things peaceful." According to Voll, the officers expressed concern to Nisbet about petitioner's "level of hostility" and "asked [Nisbet] to kind of let [petitioner] know to keep cool and hopefully kind of ease things-ease that transition between talking to [Nisbet] to talking to [the police]."

         Nisbet walked into the guest bedroom, woke up petitioner, and spoke with him. After about three minutes, Voll "popped [his] head" into the room and asked Nisbet, "Are we good?" Nisbet ...


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