No. 31 June 15, 2017 527

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

DANNY LEE BLAIR,

Respondent on Review.

(CC 131055; CA A156756 SC S064262)

On review from the Court of Appeals.*

Argued and submitted March 9, 2017, at the University 

of Oregon School of Law, Eugene.

Rolf C. Moan, Assistant Attorney General, Salem, argued 

the cause and filed the brief for petitioner on review. Also on 

the brief were Ellen F. Rosenblum, Attorney General, and 

Benjamin Gutman, Solicitor General.

Laura E. Coffin, Deputy Public Defender, Salem, argued 

the cause and filed the brief for respondent on review. Also 

on the brief was Ernest G. Lannet, Chief Defender, Office of 

Public Defense Services.

Before Balmer, Chief Justice, and Kistler, Walters, 

Landau, Brewer, Nakamoto, and Flynn, Justices.**

BREWER, J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is vacated, and the case is 

remanded to the circuit court for further proceedings consistent with this decision.

______________

** Appeal from Tillamook County Circuit Court, Jonathan R. Hill, Judge. 

278 Or App 512, 380 P3d 313 (2016).

** Baldwin, J., retired March 31, 2017, and did not participate in the decision 

of this case.
528 State v. Blair

Case Summary: Before his trial on charge of possession of a controlled substance, defendant moved under Article I, section 9, of the Oregon Constitution, 

to suppress drug evidence found in a warrantless but purportedly consensual 

search of his backpack. The trial court denied the motion and defendant was 

convicted. On defendant’s appeal, the Court of Appeals reversed and remanded, 

holding that, although defendant had consented without qualification to a police 

officer’s general request to search the backpack, his consent did not extend to 

unknotting and examining the contents of the opaque grocery bag, inside the 

backpack, in which the drugs were found. The state sought review, arguing that, 

as a general rule, a person’s unqualified affirmative response to a police officer’s 

general request to search some place or property constitutes consent to open and 

search any unlocked container discovered within the place or property. Held: The 

dispositive inquiry under Article I, section 9 is a factual inquiry into whether 

defendant intended to consent to the search of closed containers inside the backpack and, given that it is unclear whether the trial court so understood the 

inquiry and given that opposing inferences would be permissible on the record 

before the court, the case must be remanded to the circuit court to reconsider its 

decision under the correct standard.

The decision of the Court of Appeals is reversed. The judgment of the circuit 

court is vacated, and the case is remanded to the circuit court for further proceedings consistent with this decision.
Cite as 361 Or 527 (2017) 529

BREWER, J.

Before his trial on a charge of possession of a controlled substance, defendant moved to suppress the state’s 

primary evidence—drugs that a police officer found in a warrantless but purportedly consensual search of defendant’s 

backpack—on the ground that they were obtained in violation of Article I, section 9, of the Oregon Constitution. The 

trial court denied the motion and defendant was convicted. 

The Court of Appeals reversed and remanded, concluding 

that defendant’s consent to the search of his backpack did 

not extend to untying and looking into an opaque grocery 

bag, inside the backpack, in which the drugs were found. 

State v. Blair, 278 Or App 512, 522, 380 P3d 313 (2016).

The state seeks review of that decision, arguing that 

defendant’s unqualified consent to the police officer’s generalized request to search the backpack should be deemed on 

the record before us to encompass consent to open any closed 

but unlocked containers found inside. We conclude that the 

state’s argument does not comport with Article I, section 9. 

We further conclude that the dispositive inquiry is a factual 

one: Did defendant intend to consent to the search of closed 

containers inside his backpack? It is unclear whether the 

trial court so understood the inquiry before it, and, on the 

record before us, we conclude that opposing inferences permissibly could have been drawn from the evidence as to that 

issue. Accordingly, we reverse the decision of the Court of 

Appeals, and we vacate the judgment convicting defendant 

and remand to the circuit court to reconsider its suppression 

decision under the correct standard.

I. FACTS AND PROCEDURAL HISTORY

The facts that are relevant to the issue before us are 

not extensive. Responding to a report of a man being chased 

by armed attackers, members of the Tillamook County 

Sheriff’s Office encountered defendant, the supposed victim. Defendant was agitated, disheveled, and somewhat 

incoherent, and the officers were doubtful that he had, in 

fact, been attacked. Defendant mentioned to one of the officers, Sergeant Jackson, that he had left his backpack “up on 

the hill” and that he also had lost his sweatshirt. Defendant 
530 State v. Blair

seemed reluctant to go in search of his belongings by himself, so Jackson went with him.

Defendant located the backpack without difficulty. 

Jackson then asked defendant, in a casual way, if he could 

search the backpack. Although he did not say so, Jackson 

suspected that defendant was under the influence of methamphetamine, and he wanted to see if the backpack contained drugs or weapons. Defendant responded, “Yeah, no 

problem. Go ahead.” Inside the backpack, Jackson saw an 

opaque, plastic grocery bag that was closed with a knot. 

Jackson untied the knot and found inside the grocery bag, 

among other items, a Ziploc bag containing psilocybin 

mushrooms.

Defendant was charged with unlawful possession 

of a Schedule I controlled substance, ORS 475.752(3)(a). 

Before trial, he moved to suppress evidence of the mushrooms on the ground that their discovery was the product 

of an unconstitutional search under Article I, section 9. The 

state countered that, because defendant had consented to 

the search of his backpack, the search did not implicate his 

rights under Article I, section 9. Defendant did not deny 

having consented to Jackson’s request to search the backpack, but he argued that his consent was not voluntary and 

that, even if it was voluntary, it did not extend to a search of 

the contents of the knotted grocery bag inside the backpack.

The trial court denied the motion to suppress, holding that defendant’s consent was voluntary and that opening and searching the grocery bag was within the scope of 

that consent.1

 Defendant thereafter entered a conditional 

no contest plea to the charged offense, and the trial court 

entered a judgment convicting him.

On appeal, defendant challenged the denial of his 

motion to suppress, asserting the same arguments that he 

had raised in the trial court. With respect to the scope of 

consent issue, the Court of Appeals held that:

1 With respect to that issue, the trial court stated:

“The sergeant had asked for permission to search the backpack. The other 

bag is inside the backpack. [Defendant] is there when it is searched and the 

consent wasn’t revoked. I think there was a consensual search of the Fred 

Meyer bag as well.”
Cite as 361 Or 527 (2017) 531

“[t]he scope of consent is determined by reference to what 

a typical, reasonable person would have understood by the 

exchange between the officer and the suspect in light of 

the totality of the circumstances surrounding the grant of 

consent in a particular case. Thus, consent to search a particular location or item extends to closed containers found 

within that location or inside of that item if, under the 

totality of the circumstances, a reasonable person would 

have understood that the consent given included those 

containers.”

Blair, 278 Or App at 516 (citations omitted). The court 

was unpersuaded by the state’s argument that, when both 

a police officer’s request and an individual’s response are 

general and unqualified, the scope of consent presumptively 

includes consent to search closed and unlocked containers 

found inside the stated object of the search. Id. at 519. The 

court held, instead, that an officer’s generalized request for 

consent to search some place or thing does not extend to 

closed containers inside the place or thing unless the surrounding circumstances would reasonably convey that the 

officers are searching for something that could be hidden in 

those containers. Id. at 520. In the absence of such evidence 

in the record before it, the court determined that it “[could] 

not conclude that a reasonable person viewing the exchange 

would have understood that defendant consented to the 

search of the knotted grocery bag within his backpack.” Id.

at 522. Because the warrantless search of the knotted bag 

could not be justified under the consent exception, the court 

concluded, it was unreasonable and, therefore, unlawful, 

and the evidence obtained therefrom should have been suppressed.2

 Accordingly, the Court of Appeals reversed defendant’s conviction and remanded.

II. FRAMING THE ISSUE ON REVIEW

This court granted the state’s petition for review 

and, on review, the parties reprise their arguments before 

2 Insofar as the Court of Appeals agreed with defendant that the search of 

the grocery bag was unlawful because it was not within the scope of defendant’s 

consent, it had no occasion to address defendant’s alternative argument that 

his consent had not been voluntary. Because we vacate the judgment convicting defendant and remand to the circuit court, we likewise do not address that 

argument.
532 State v. Blair

the Court of Appeals. The primary issue on review—the 

scope of consent to a warrantless search under Article I, section 9—has not been a frequent subject of consideration by 

this court. The Court of Appeals, however, has articulated 

a test for analyzing scope of consent issues under Article I, 

section 9, and the parties have couched their arguments in 

terms of that test. As the Court of Appeals conceives the 

proper test, when consent is asserted as a justification for a 

warrantless search, the scope of a person’s consent “is determined by reference to what a typical, reasonable person 

would have understood by the exchange between the officer 

and the suspect * * * in light of the totality of the circumstances surrounding the grant of consent in a particular 

case.” State v. Delong, 275 Or App 295, 301, 365 P3d 591 

(2015), rev den, 359 Or 39 (2016) (quoting State v. Harvey, 

194 Or App 102, 106, 93 P3d 828 (2004)).

Although the state does not challenge the substance of the Court of Appeals’ test, it argues for a corollary “default” rule in cases, like the present one, that involve 

“nested” closed containers. It argues, specifically, that when 

a person manifests apparently unqualified consent to a law 

enforcement officer’s generalized request to search a closed 

container, that manifestation of consent authorizes the officer to open all closed, unlocked containers inside the item—

unless other specific circumstances show that the scope of 

consent did not extend that far.

The state asserts that the word “search” itself conveys the idea of a thorough, rigorous inspection of a closed 

container that a reasonable person would understand to 

include inspecting the contents of additional closed containers inside the item. The state also contends that the mere 

fact that a request to search comes from a police officer would 

indicate to a reasonable person that the officer is looking 

for evidence of illegal activity, including drugs and weapons that might be hidden inside closed containers. In other 

words, the state reasons, a generalized request by a police 

officer to search a closed container would in and of itself 

indicate to a reasonable person that the request includes 

opening and the inspection of the contents of closed containers inside the item—and an unqualified affirmative answer 

to such a request should be deemed to constitute consent to 
Cite as 361 Or 527 (2017) 533

the opening and inspection of the contents of such additional 

containers, unless other, specific circumstances indicate a 

different understanding and intent.

Defendant replies that the state’s proposed corollary 

rule is inconsistent with the “totality of the circumstances” 

test that, by the state’s own concession, should apply: That 

is so because it gives dispositive significance to two facts 

(the use of the word “search” and the requester’s status as 

a police officer), while failing to adequately recognize that 

the import of those facts may depend on other surrounding circumstances. Defendant also argues that the state’s 

proposed rule would effectively impose on a defendant the 

burden of producing evidence of lack of consent, rather than 

placing that burden on the state, where it properly belongs. 

Defendant posits, based on the “totality of the circumstances” test as applied to the present record, and taking 

into account the state’s burden, that defendant would not 

have understood the scope of his consent to include consent 

to search any closed container that might be found inside 

his backpack. Accordingly, defendant argues, the trial court 

erred in determining that the officer acted within the scope 

of defendant’s consent when he unknotted, opened, and 

searched the grocery bag in question.

Although the parties focus their arguments on the 

merits of the state’s proposed default rule, we first must consider whether the standard for determining scope of consent 

from which the state’s proposed corollary rule purportedly 

derives comports with Article I, section 9. That standard was 

first announced in State v. Arroyo-Sotelo, 131 Or App 290, 

884 P2d 901 (1994), where the Court of Appeals explained 

that it was adopting a standard used in Fourth Amendment 

cases to decide whether, under Article I, section 9, a police 

officer had complied with the scope of a defendant’s consent:

“In making this inquiry, we first note that the standard 

for determining the scope of a suspect’s consent under the 

Fourth Amendment is that of ‘objective reasonableness’ with 

the critical inquiry focusing on what a ‘typical reasonable 

person would have understood by the exchange between 

the officer and the suspect.’ Florida v. Jimeno, 500 US 248, 

251, 111 S Ct 1801, 114 L Ed 2d 297 (1991). In our decisions 

involving the scope of consent under Article I, section 9, 
534 State v. Blair

we have never explicitly articulated our standard; however, 

we have consistently evaluated the intent of the consent of 

the consenting parties objectively, looking at the totality of 

the circumstances of the particular case. Similarly, Oregon 

courts have recognized that questions involving the propriety of police conduct under Article I, section 9, customarily 

are judged on an objectively reasonable basis, requiring an 

inquiry into the surrounding circumstances.

“We thus conclude that the ‘objective reasonableness’ 

standard articulated in Florida v. Jimeno, supra, best comports with the requirements of Article I, section 9. * **

“Under that standard, we must consider what a reasonable person would have understood by the interchange 

between the officer and defendant, the person giving consent. As discussed above, this requires an evaluation of the 

surrounding circumstances.”

131 Or App at 295-96 (citations omitted).

Although, as noted, the parties here have purported 

to apply the Court of Appeals’ test for determining the scope 

of defendant’s consent to the search of his backpack under 

Article I, section 9, this court has an independent duty to 

consider whether it is, in fact, the correct standard. Cf. Stull 

v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997) (court has independent duty to construe statute correctly without regard to 

parties’ arguments). We turn to that task now.

III. ANALYSIS

A. Background

By its terms, Article I, section 9, recognizes a 

right to be free of “unreasonable” searches and seizures. 

Warrantless searches are per se unreasonable, subject to 

certain specifically established and limited exceptions. State 

v. Bonilla, 358 Or 475, 480, 366 P3d 331 (2015) (subject to 

certain specifically established and limited exceptions, warrantless searches are deemed to be per se unreasonable); 

State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992) (warrantless search is “reasonable” only if it falls within recognized exceptions to warrant requirement). The state bears 

the burden of showing by a preponderance of the evidence 

that an exception to the warrant requirement applies. See
Cite as 361 Or 527 (2017) 535

State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994) (so 

stating as to consent exception).

B. Consent Exception

Most exceptions to the warrant requirement involve 

a unilateral exercise of governmental authority to intrude, 

without a warrant, into things or places in which an owner 

or other person has a cognizable privacy interest, which 

nevertheless is justified as reasonable if certain circumstances (exigency, officer safety concerns, etc.) are present. 

Bonilla, 358 Or at 487-89.

The consent exception is different. It posits that, 

by voluntarily granting a governmental actor permission 

to search a place or thing, the person relinquishes his or 

her privacy interest in the place or thing so that there is no 

intrusion by the state into a protected privacy interest that 

must be justified. Bonilla, 358 Or at 480; State v. Brown, 348 

Or 293, 305, 232 P3d 962 (2010). Of course, that rationale 

presumes that a person to whom a privacy interest belongs 

actually intends to give consent to the intrusion. We intimated as much in Bonilla, when we rejected the premise 

that Article I, section 9, is satisfied if the police conduct a 

warrantless search under the mistaken but objectively reasonable belief that the person who gave consent to the search 

had authority to do so. 358 Or at 486-93. In a similar vein, we 

have indicated that the scope of consent is to be determined 

from the standpoint of the consenting person. In Weaver, the 

issue was whether the defendant’s consent to a search could 

be deemed to extend, retroactively, to a portion of the search 

that had occurred before the defendant gave consent. To support such a conclusion, we held that there must be evidence 

that “the person giving consent intended the consent to be 

retroactive.” 319 Or at 222 (emphasis added).

This court’s focus on actual consent as a touchstone 

of the consent exception under Article I, section 9, is distinct from the way the consent exception operates under the 

Fourth Amendment. Fourth Amendment decisions do not 

recognize any analytical difference in perspective between 

the consent exception and other recognized exceptions to the 

warrant requirement. The United States Supreme Court 
536 State v. Blair

has reasoned that, because other exceptions to the warrant 

requirement are tested against a standard of objective reasonableness from the point of view of the police, the same 

standard should apply to the facts bearing on the application 

of the consent exception. Illinois v. Rodriguez, 497 US 177, 

186, 110 S Ct 2793, 111 L Ed 2d 148 (1990). In Rodriguez, 

the court concluded that there is no Fourth Amendment violation when the police perform a warrantless search in the 

objectively reasonable, albeit mistaken, belief that they have 

obtained consent for the search from a person with authority to give it. Id.

Similarly, federal cases addressing the voluntariness of consent generally have declined to consider the 

consenting person’s actual understanding of their options 

in a Fourth Amendment analysis. See, e.g., United States 

v. Drayton, 536 US 194, 203-05, 122 S Ct 2105, 153 L Ed 

2d 242 (2002) (voluntariness inquiry focused on reasonableness of police conduct, not on subjective reactions of persons 

searched); United States v. Garcia, 56 F3d 418, 423 (2d Cir 

1995) (stating voluntariness test in terms of whether the 

police officer “had a reasonable basis for believing that there 

had been consent to the search”); United States v. Zapata, 

997 F2d 751, 759 (10th Cir 1993) (casting doubt on whether 

person’s subjective characteristics are relevant to voluntariness of person’s consent). Thus, although the determination 

of the voluntariness of consent under the Fourth Amendment 

applies a “totality of the circumstance” approach, the federal 

courts have applied that test in a way that has little if anything to do with the “consenting” party’s actual understanding and intention.3

3 In its seminal decision addressing the voluntariness of consent under the 

Fourth Amendment, Schneckloth v. Bustamonte, 412 US 218, 93 S Ct 2041, 36 

L Ed 2d 854 (1973), the Supreme Court held that a defendant’s knowledge that 

she could refuse to consent is not necessary to a determination that the defendant voluntarily consented to a search. The court explained that the voluntariness determination instead bridges two competing concerns—the government’s 

legitimate interest in using an individual’s consent to gain access to places and 

things that may contain evidence of criminal activity and “the equally important 

requirement of assuring the absence of coercion.” Id. at 227. Ultimately the Court 

in Schneckloth concluded that the question as to whether a defendant voluntarily 

consented to a search is one of fact, “to be determined from the totality of the 

circumstances,” including both objective facts about the police conduct and subjective facts about the defendant’s understanding. Id. at 226-27.
Cite as 361 Or 527 (2017) 537

In contrast, our decisions under Article I, section 9, 

indicate that circumstances showing the defendant’s actual 

understanding and intent are relevant to the voluntariness 

analysis. See, e.g., State v. Stevens, 311 Or 119, 132-38, 806 

P2d 92 (1991) (voluntariness of defendant’s consent to search 

was assessed by considering facts about defendant’s actual 

mental state in addition to facts about police conduct).

C. Scope of Consent

The nature of the consent exception under Article I, 

section 9, thus suggests that a proper inquiry into the scope 

of a person’s consent should be concerned with the person’s 

actual understanding and intent. But, as this court has discussed in other cases, such subjective inquiries can be problematic, if for no other reason than that they do not always 

promote consistency by treating like cases alike. See, e.g., 

State v. Ashbaugh, 349 Or 297, 311-16, 244 P3d 360 (2010) 

(discussing problems with subjective approach to determining when a person has been seized for purposes of Article I, 

section 9).

In sum, the logic behind the consent exception supports a focus on the defendant’s actual understanding and 

intent with respect to the scope of her consent to a search, 

but what a person says is often the best indicator of what the 

person intended. In light of those considerations, we think 

that the nature of the inquiry should be described in the 

following way: In determining whether a particular search 

falls within the scope of a defendant’s consent, the trial 

court will determine, based on the totality of circumstances, 

what the defendant actually intended. That determination 

is a factual one.4

 It follows that we are bound by any findings 

In later decisions, however, the Supreme Court has rejected consideration 

of circumstances that speak to the defendant’s subjective understanding and 

intentions; instead, the Court has focused on purely objective factors, and most 

particularly, on the conduct of the police. See, e.g., Drayton, 536 US at 204-07. 

In consequence, as one writer has observed, the test that the federal courts now 

employ does not so much determine whether a defendant consented voluntarily 

as it determines whether the conduct of the police was appropriate in the circumstances. Ric Simmons, Not “Voluntary” but Still Reasonable: A New Paradigm for 

Understanding the Consent Searches Doctrine, 80 Ind L J 773, 784 (2005).

4 Of course, the factual circumstances relating to the scope of a defendant’s 

consent can be disputed, in which event the trial court must determine the facts.
538 State v. Blair

of fact made by the trial court if constitutionally sufficient 

evidence supports them. State v. Maciel-Figueroa, 361 Or 

163, 165-66, 389 P3d 1121 (2017).

However, where—based on the totality of circumstances—the defendant’s intent with respect to the scope of 

consent is unambiguously expressed, that manifestation of 

intent is controlling. In that way, what a reasonable person 

would understand by his or her choice of unambiguous words 

or other manifestations of intent will bear its expected weight 

in citizen-police interactions.5 Such clarity in expression will 

be further promoted when officers requesting consent make 

clear to a suspect what the objects of the requested search 

are and what level of scrutiny is sought.

D. State’s Proposed Corollary Rule

With those foundational principles in mind, we turn 

to the state’s proposed corollary rule. As discussed, the state 

contends that, when asked by a police officer for permission 

to “search” an item of personal property, a reasonable person would understand that the officer—a person whose professional duties include investigating criminal conduct—is 

seeking consent to open and thoroughly inspect any closed 

containers within the item that might contain contraband. 

Accordingly, the state argues, evidence that a police officer asked to “search” an item of property and that the person agreed to the request without qualification should be 

sufficient, by itself, to establish that the person’s consent 

extended to opening virtually any closed but unlocked container found inside the item. That rule should apply, the 

state argues, unless other, specific evidence shows that the 

scope of consent was more limited.

We do not agree. Under the state’s proposed rule, 

the constitutional inquiry would be limited to two circumstances when a request to search is phrased in general 

terms—the requestor’s status as a police officer and the 

5 A similar approach to the determination of intent is taken in the construction of contracts, where the question of the parties’ intent is one of fact, but 

their unambiguous manifestations of intent are controlling. See, e.g., Computer 

Concepts, Inc. v. Brandt, 310 Or 706, 713, 801 P2d 800 (1990) (employing 

approach); May v. Chicago Insurance Co., 260 Or 285, 292-94, 490 P2d 150 (1971) 

(same).
Cite as 361 Or 527 (2017) 539

use of the word “search.” However, those two factors are not 

of such paramount significance that they ordinarily would 

trump other surrounding circumstances.

The facts here illustrate the central role that surrounding circumstances can play in the analysis. Even if 

the bare facts of a police officer’s general request to search 

an outward container, and a defendant’s unqualified affirmative response, could properly be considered in isolation, 

those facts would not, by themselves, necessarily compel the 

inference that the defendant was consenting to the opening 

and inspection of the contents of any closed container discovered during the search of the outward container. Although 

it is true that a consenting person reasonably might infer 

from those facts alone that the officer was asking to conduct 

an intensive search that might extend that far, an opposing 

inference also would be permissible. The very generality of 

the request, i.e., its failure to identify any particular object 

and its exclusive reference to the outward container itself, 

also could support an inference that the officer intended a 

quick and proforma inspection of the outward container, 

and no more. In the absence of other evidence bearing on 

the scope of consent, the evidence could be deemed to be 

in equipoise, resulting in the conclusion that the state had 

failed to meet its burden of persuasion. In short, the state’s 

proposed default rule would undermine both a full-throated 

consideration of the totality of the circumstances bearing 

on the scope of the defendant’s consent, and it also would 

not provide the certainty and predictability that the state 

suggests. Accordingly, we reject that rule as a corollary to 

the standard that we have adopted here. To reiterate that 

standard, in determining whether a particular search falls 

within the scope of a defendant’s consent, the trial court 

will determine, based on the totality of circumstances, what 

the defendant actually intended. However, where, after considering those circumstances, the defendant’s intent with 

respect to the scope of consent is unambiguously expressed, 

that manifestation of intent is controlling.

IV. APPLICATION

We now apply that standard to the record before us. 

As in the illustration set out above, competing inferences 
540 State v. Blair

could be drawn from both the officer’s generalized request 

and defendant’s unqualified response with respect to what 

defendant actually understood to be the scope of the officer’s request and what defendant intended by his responsive 

manifestation of consent.

On the one hand, there is evidence in the record 

that would support an inference that, at the time of defendant’s interaction with Sergeant Jackson, it was obvious to 

Jackson that defendant was under the influence of drugs. 

In addition, there is evidence—testimony from a forensic 

expert—that suggests that defendant in fact was under the 

influence of psilocybin mushrooms at the time.6

 It would be 

permissible to infer from that evidence that defendant knew 

that Jackson believed that he was under the influence of 

drugs, resulting in a shared understanding that the officer 

was asking for consent to look for drugs and that defendant’s 

generalized consent therefore extended to closed containers 

inside the backpack that could have held drugs.

On the other hand, it would also be permissible to 

infer from Sergeant Jackson’s generalized request to search 

defendant’s backpack and other surrounding circumstances 

that the officer was not looking for any specific kind of item. 

Although defendant apparently understood that Jackson 

was a police officer, Jackson had appeared on the scene in 

response to defendant’s report of being the possible victim 

of a crime. To be sure, the evidence shows that Jackson suspected that defendant was under the influence of drugs and 

therefore also may have suspected that defendant had drugs 

in his possession. But Jackson did not express either suspicion to defendant. The interaction between the officer and 

defendant was friendly and nonconfrontational; Jackson 

had even agreed to accompany defendant as he retrieved 

his backpack, a gesture that might give the impression that 

he was acting primarily as a community caretaker or that 

he was investigating a possible crime against defendant. 

Although the inference that Jackson was thus acting as 

defendant’s ally does not suggest any particular reason why 

he would wish to search defendant’s property, or for what, it 

6 Although that evidence also was relevant to the voluntariness of defendant’s consent, we consider it here only as it pertains to the scope of that consent.
Cite as 361 Or 527 (2017) 541

nevertheless would permit a further inference that Jackson 

was not looking for drugs or other contraband.7

 Moreover, 

the circumstances of the encounter also could have suggested that Jackson’s request was a pro forma officer safety 

exercise or, from defendant’s perspective, that the request 

took him by surprise and that he did not have sufficient 

time and knowledge to understand and appreciate that 

the request could implicate the scope and intensity of the 

search. In any event, the inference that the state seeks to 

draw from Jackson’s status as a police officer is not the only 

permissible inference that could be drawn with respect to 

defendant’s intention as to the scope of his consent to search 

the backpack.

The state remonstrates that defendant’s consent to 

the search of the knotted grocery bag can be unambiguously 

inferred from the fact that he did not object when Jackson 

began to open it. The state’s assertion is factually flawed: It 

relies on an assumption that defendant had an opportunity

to object to Jackson’s unknotting and opening of the bag, 

when there is no evidence in the record that supports such 

an assumption. As far as the evidence shows, defendant 

might not have even realized that Jackson was opening the 

bag until after the fact. At least on this record, defendant’s 

failure to object did not constitute an unambiguous manifestation of consent to the search of closed containers inside the 

backpack.

In this case, it is unclear from the record whether 

the trial court found as fact that defendant actually intended 

to consent to the search of closed containers inside his backpack. Although we ordinarily would presume that a trial 

court found facts consistent with its ultimate suppression 

decision, State v. Holdorf, 355 Or 812, 814, 333 P3d 982 

(2014), it is not apparent that the trial court in this case 

understood the scope of consent determination to be the 

7 The Court of Appeals suggested that, in light of Jackson’s apparent interest 

in helping defendant find his belongings, a person observing the encounter might 

reasonably conclude that Jackson wanted to look inside defendant’s backpack to 

determine whether defendant’s lost sweatshirt was there. Blair, 278 Or App at 

520. However, that inference is not available on this record: According to uncontroverted evidence, defendant and Jackson already had found the missing sweatshirt at the time Jackson asked to search the backpack.
542 State v. Blair

factual inquiry that we have described. Remand, therefore, 

is necessary to give the trial court the opportunity to determine the scope of defendant’s consent under the correct 

standard.

The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is vacated, and the case is 

remanded to the circuit court for further proceedings consistent with this decision.