OR: Grandmother of juvenile living with her has authority to consent to search of his room despite his objection

In the search of a juvenile’s room in his grandmother’s house she has the authority to consent over his objection. State v. A.S., 296 Ore. App. 722 (Mar. 22, 2019):

Thus, in the context of family members sharing a common household, competing considerations come into play, particularly where minor and dependent family members are concerned. The shared use of most of the premises provides a basis to presume common authority for any family member to consent to a search, while the rights and responsibilities of the adults, either as property owners or parents or both, give rise to superior authority vís-á-vís minors residing in the household. The analysis of authority to consent in family households that include adults and minors therefore does not lend itself to per se rules. See, e.g., Carsey, 295 Ore. at 42 (no per se rule that parents and grandparents have authority to consent to search of areas of home occupied by minor or dependent family members); State v. Will, 131 Ore. App. 498, 505, 885 P2d 715 (1994) (no per se rule that minors have common authority to permit police to enter the shared family home). Instead, the analysis is necessarily fact specific and depends significantly on the extent to which the adults in a family home, expressly or through some mutual understanding, have agreed to a minor’s exercise of common or exclusive control over areas of the shared household. See, e.g., Carsey, 295 Ore. at 36, 42 (grandparents had no authority to consent where they had an “unspoken agreement” that grandson could exercise exclusive control over his room); State v. Jenkins, 179 Ore. App. 92, 101-02, 39 P3d 868, rev den, 334 Ore. 632, 54 P.3d 1042 (2002) (parents had no authority to consent where they had agreed that 18-year-old son had control over garage and they did not access it without son’s permission); Will, 131 Ore. App. at 505-06 (eight-year-old daughter could not consent to police entry where parents had never given daughter authority to permit others to enter residence).

Those legal precepts bring us to this case and its particular facts. As we described earlier, the juvenile court expressly found that youth’s grandmother was “the owner of the property” and that she and youth were not in a landlord-tenant relationship; instead, youth’s grandmother was permissively “letting her grandson live in her home.” The juvenile court further expressly found that the grandmother had “always” asserted her authority over the room that youth occupied, including her authority “to go in and out freely.” Those findings are amply supported by the record, including the grandmother’s specific testimony that she was emphatic in asserting her authority over youth’s room, because it was “her house”; that she in fact regularly went into youth’s room, without his permission or the need for it; and that she exercised control over the room and its contents as she chose. Although youth’s grandmother was respectful of youth’s privacy, she did not, at any time, give up her right to control the premises that youth occupied with her permission. As the prosecutor argued to the juvenile court at the hearing, youth’s grandmother consistently maintained, in effect, that it was “her house, her rules.” The juvenile court effectively so found, and youth does not challenge those findings.

The question remains, however, whether those facts support the legal conclusion that youth’s grandmother had actual authority to consent to the search. See Beylund, 158 Ore. App. at 416-17 (authority to consent to search is legal question). Under the common authority rule announced in Matlock, followed in Carsey, and later adopted by our court under Article I, section 9, the analysis of youth’s grandmother’s authority to consent to the search is straightforward. As we have described, the presumptive rule is that, when co-occupants have joint access to and use of most of the premises, each of the co-occupants has actual authority to consent to a search of the areas that they share. The facts of this case fall readily within that general rule and its rationale. …