Oregon refuses to follow Illinois v. Rodriguez on apparent authority finding it doctrinally different than how it has interpreted the state constitution since the 1970s. State v. Bonilla, 358 Ore. 475, 2015 Ore. LEXIS 955 (Dec. 31, 2015):
This court has never specifically decided whether the Fourth Amendment “apparent authority” doctrine comports with the consent exception to the warrant requirement under Article I, section 9. In urging us to conclude that it does, the state points to the “substantive[ ] similar[ity]” between Article I, section 9, and the Fourth Amendment that this court recognized in State v. Fair, 353 Ore. 588, 602, 302 P3d 417 (2013). Like the federal provision, the state observes, Article I, section 9, does not protect against every search or seizure by the government, but only against those that are arbitrary, oppressive, or otherwise “unreasonable.” Id. The state contends that a corollary to that focus is evident in this court’s Article I, section 9, jurisprudence: Not all factual mistakes by government actors about the circumstances surrounding a search—but only those that are unreasonable—render the search unlawful under Article I, section 9.
That principle was decisive, the state argues, in State v. Holdorf, 355 Ore. 812, 333 P3d 982 (2014), where this court held that, under Article I, section 9, a police officer lawfully could stop a person based on “reasonable” suspicion that the person has committed a crime, as long [*17] as that suspicion was based on specific and articulable “facts” that had been conveyed to the officer by someone the officer could reasonably rely on. Similarly, the state notes, in State v. Baker, 350 Ore. 641, 260 P3d 476 (2011), this court held that a police officer’s objectively reasonable belief that an emergency existed was sufficient to trigger the emergency aid exception to the warrant requirement, even though no emergency existed in fact. The state argues for a similar analysis of warrantless searches under Article I, section 9’s, consent exception. In the state’s view, the lawfulness of a consent search should be assessed—similarly to the analysis in Rodriguez—based on the facts available to the police at the time of the search, with the focus on whether a reasonable person, armed with those facts, would have believed that the consenting person had authority over the property to be searched.
There are two overlapping problems with that approach, both of which stem from the fact that the Fourth Amendment doctrine of apparent authority is based on different principles than those underlying the consent exception under Article I, section 9. First, as discussed, the federal doctrine is premised on the Fourth Amendment precept that a reasonable mistake of fact as to the existence of authority to consent does not render a warrantless search invalid. See Rodriguez, 497 U.S. at 184-86. Under that conception of apparent authority, it is immaterial whether the true owner of property authorized (or even appeared to authorize) a third party to consent to search the property. That is, the reasonableness of a factual mistake as to the consenter’s authority does not depend on any objective manifestation by the true owner; in fact, the police may not even know of the existence of the true owner.
In contrast, because consent under Article I, section 9, involves the relinquishment of a privacy interest, Brown, 348 Ore. at 305, it must be given by (or lawfully on behalf of) the person who holds the protected privacy interest. See Weaver, 319 Ore. at 219 (consent must be given by someone “having the authority to do so.”). For that reason, the existence of valid third-party consent depends either on the third party’s common authority over the property based on her or his own property interest, Carsey, 295 Ore. at 46, or, alternatively, on the application of agency principles.
Because the Fourth Amendment doctrine of apparent authority is not anchored on an agency-based theory of consent, and because the state in this case does not contend that defendant engaged in any conduct that would have caused a reasonable person to believe that she had authorized Bull to consent to a search of the wooden box, we need not reach the issue of whether agency-based apparent authority would suffice to satisfy the consent exception under Article I, section 9.
Second, and relatedly, the state’s argument fails to recognize that, under Article I, section 9, consent always has been treated differently from other recognized justifications for warrantless searches, including, for example, justifications that are based on an exigency that makes obtaining a warrant infeasible. When an exigency-based exception applies, the lawfulness of a search depends on what a reasonable person would make of the facts known to the officer at the time of the search. Unlike a consent search, what the defendant intended or what authority he or she had is not part of that inquiry.
When the police rely on an exigency-based exception to the warrant requirement, they are exercising the government’s unilateral authority to intrude on a person’s protected property interests, as they do when executing warrants. Because a cognizable exigency makes obtaining a warrant infeasible, it is the police officer, not a neutral magistrate, who initially must decide whether the search is justified. But the officer’s decision is made and reviewed under the same standard that would have applied if a magistrate had made it: Based on the facts known to the officer at the time of the search, would a reasonable person have believed that (1) seizable things would probably be found; and (2) circumstances constituting an exigency were present? See, e.g., State v. Miskell/Sinibaldi, 351 Ore. 680, 696, 277 P3d 522 (2012) (illustrating point). If so, the officer’s unilateral exercise of authority is lawful, even if, in hindsight, that assessment turned out to be wrong. As with searches authorized by a warrant, the relevant temporal reference point for assessing the lawfulness of a warrantless search is when the search was conducted.
