No. 57 December 31, 2015 475

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

LINDA JEAN BONILLA,

Respondent on Review.

(CC 11CR2221FE; CA A153808; SC S062962)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 15, 2015.

Paul L. Smith, Assistant Attorney General, Salem, 

argued the cause. Anna M. Joyce, Solicitor General, filed 

the brief for petitioner on review. With her on the brief was 

Ellen F. Rosenblum, Attorney General.

Ernest G. Lannet, Chief Defender, Salem, argued the 

cause and filed the brief for respondent on review.

BREWER, J.

The decision of the Court of Appeals is affirmed. The 

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

remanded to the circuit court for further proceedings.

Landau, J., concurred and filed an opinion, in which 

Kistler, J., joins.

______________

* Appeal from Douglas County Circuit Court Ronald Poole, Judge. 267 Or 

App 337, 341 P3d 751 (2014).
476 State v. Bonilla

Case Summary: Police officers entered a residence without a warrant and 

opened a wooden box they found in a bedroom, believing that they had lawful 

consent to take each of those actions. Defendant, who was charged with a crime 

based on evidence found in the box, moved to suppress the evidence on the ground 

that the persons whose consent the police had relied on to enter the residence 

and open the box were not authorized to give consent. The trial court denied 

the motion and defendant was subsequently convicted. The Court of Appeals 

reversed, rejecting the state’s argument that the person who had consented to 

the search of the box had actual authority to do so, based on her shared possession and control of the room in which the box was located. On review, the 

state argued that consent that justifies a search under Article I, section 9, of the 

Oregon Constitution, exists if a person with apparent authority has given his or 

her consent. Held: A consent search is justified under Article I, section 9, only if 

someone who has authority gives their consent; the existence and scope of such 

authority is determined from the totality of the circumstances, and not the reasonable understanding of the police.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further 

proceedings.
Cite as 358 Or 475 (2015) 477

BREWER, J.

Police officers entered a residence without a warrant and opened a wooden box that they found in a bedroom, believing that they had lawful consent to take each of 

those actions. Defendant, who was charged with unlawful 

possession of a controlled substance based on evidence found 

in the box, moved to suppress the evidence under Article I, 

section 9, of the Oregon Constitution, on the ground that 

the persons who had given consent to the home entry and 

the search of the box were not authorized to give consent. 

The trial court denied the motion to suppress. On appeal 

from her ensuing conviction, defendant asserted that there 

was no evidence that she had consented to the home entry 

or the search of the box. The state replied that, for purposes 

of Article I, section 9, the persons who gave consent to the 

entry and search had actual authority to do so. The Court of 

Appeals reversed. Focusing specifically on the search of the 

box, that court rejected the state’s argument that the person who had consented to the search had actual authority to 

give consent, based on her shared possession and control of 

the room in which the box was located. State v. Bonilla, 267 

Or App 337, 344-47, 341 P3d 751 (2014).

In its merits brief on review before this court, the 

state abandoned its “actual authority” theory of consent in 

favor of a revised theory that the warrantless search of the 

box was justified under Article I, section 9, on the ground 

that a person with apparent authority—from the perspective of the police officers—had given her consent, and that 

that was sufficient to qualify the search as a lawful consent search. Finally, at oral argument, the state asserted 

that, regardless of whether there was lawful consent to the 

warrantless search of the box, the dispositive issue under 

Article I, section 9, should be whether the search was reasonable in light of the information available to the police at 

the time. According to the state, the search of the box was 

lawful under that standard.

As explained below, we conclude that the warrantless search of the wooden box in this case was not 

authorized under the consent exception to the warrant
478 State v. Bonilla

requirement.1

 We further conclude that the state’s alternative argument—that the search was lawful because it was 

reasonable—is essentially a request to overturn this court’s 

longstanding construction of Article I, section 9; in the 

absence of a sufficiently developed argument to justify such 

reconsideration, we decline to consider that argument on its 

merits. Accordingly, we affirm the decision of the Court of 

Appeals, reverse the trial court’s order denying suppression, 

and remand to the trial court for further proceedings.

Our summary of the facts is largely based on the 

trial court’s findings, augmented by undisputed evidence 

in the record. Police officers arrived at the residence of a 

parolee, Fleshman, to investigate a report that he was 

involved in drug activity. There, they spoke to Dabbs, who 

told them that Fleshman and his girlfriend, Crowe, lived in 

a converted garage behind Dabbs’ house, that they were in 

the process of moving out, and that Fleshman was not home 

at the time. The officers asked to speak with Crowe. Dabbs 

led the officers back behind his own house to the converted 

garage. Access to the dwelling was through an open doorway 

leading to a storage area, inside of which was a second, interior door. The interior door was closed. The officers followed 

Dabbs through the open doorway into the storage area and 

waited there while Dabbs contacted Crowe and explained to 

her that the officers wanted to talk to her about Fleshman. 

Crowe told Fleshman that the officers could enter through 

the interior door. They did so, and found themselves in a living room, where Crowe and defendant were present. Dabbs 

then left.

Soon after entering the living room, the officers 

asked Crowe about a strong odor of marijuana inside the 

residence. Crowe told them that it was probably coming from 

a back room, where her grandmother was present. One of 

the officers asked if he could accompany Crowe to the back 

room and Crowe responded that he could. Crowe and the 

officer walked down a short hallway to a closed door, which 

Crowe opened. Inside was a small bedroom that was furnished with a single bed and a recliner. Crowe introduced 

1 Like the Court of Appeals, we do not reach the question of whether the officers had valid consent to enter the home.
Cite as 358 Or 475 (2015) 479

the officer to her grandmother, Bull, who was sitting in the 

recliner. Crowe then returned to the living room.

Bull admitted to the officer that she had been smoking marijuana and that she did not have a medical marijuana card; she produced a bag of the drug, which the officer 

confiscated. The officer then asked Bull if he could “check to 

make sure” that there were no more drugs, and Bull told him 

that he could. On a “headboard type thing” next to the bed, 

the officer saw a wooden box; he opened it and discovered 

three plastic bags that contained a white crystalline residue. He asked Bull about the substance and she responded 

that it was not hers and that it must belong to her daughter. 

It was at that point that the officer first learned that Bull 

shared the bedroom with her daughter. After ascertaining 

that Bull’s daughter was defendant—the other woman in 

the living room—the officer returned to the living room. He 

told defendant what he had found in the box and then asked 

for her permission to search the bedroom. Defendant gave 

her consent, and the officer resumed his search of the bedroom, ultimately finding, in addition to the baggies, several 

“snort tubes” that also contained a white crystalline residue. 

Defendant was charged with unlawful possession of a controlled substance, ORS 475.894, after tests confirmed that 

the white residue was methamphetamine.

Before trial, defendant moved to suppress the evidence found in the search of the bedroom, relying primarily on Article I, section 9.2

 She argued that the evidence 

was obtained through a series of warrantless searches—

including the entry by the police officers into the open storage area of the converted garage, their search of the box, and 

their second search of the bedroom after defendant’s shared 

occupancy of the bedroom was disclosed. Defendant further 

argued that, although the officers believed that they had 

obtained lawful consent for each of those actions, the persons who purportedly had consented to the initial entry and 

the search of the box—respectively, Dabbs and Bull—had 

2 In a memorandum of “Points and Authorities” attached to her suppression 

motion, defendant cited both Article I, section 9, of the Oregon Constitution and 

the Fourth Amendment to the United States Constitution as authority for her 

motion. Defendant’s arguments, however, were directed primarily, if not entirely, 

at Article I, section 9.
480 State v. Bonilla

no actual authority to give such consent. As to her own consent to the second search of the bedroom, defendant argued 

that it was obtained through exploitation of the officers’ 

earlier unlawful searches, and thus did not excuse the failure to obtain a warrant. The trial court, however, accepted 

the state’s contrary arguments that the police officers had 

obtained lawful consent at every stage. It denied defendant’s 

motion to suppress, and defendant ultimately was convicted 

of the charged offense. Defendant then appealed, assigning 

error to the denial of her motion to suppress.

To place the parties’ arguments on appeal and 

review in a more meaningful context, it is helpful to briefly 

describe several principles that guide our analysis. This 

court has adopted a categorical view under Article I, section 

9, that, subject to certain specifically established and limited 

exceptions, deems warrantless searches to be per se unreasonable. See State v. Bridewell, 306 Or 231, 235, 759 P2d 

1054 (1988) (“Absent consent, law enforcement officials must 

have a warrant to search a person’s premises. Warrantless 

entries and searches of premises are per se unreasonable 

unless they fall within one of the few specifically established 

and carefully delineated exceptions to the warrant requirement.”); see also State v. Mazzola, 356 Or 804, 810, 345 P3d 

424 (2015) (same); State v. Kurokawa-Lasciak, 351 Or 179, 

186, 263 P3d 336 (2011) (same); State v. Meharry, 342 Or 

173, 177, 149 P3d 1155 (2006) (same); State v. Connally, 339 

Or 583, 587, 125 P3d 1254 (2005) (same); State v. Snow, 337 

Or 219, 223, 94 P3d 872 (2004) (same).

This court has described consent to a search as an 

“exception” to the warrant requirement under Article I, section 9. See, e.g., State v. Weaver, 319 Or 212, 219, 874 P2d 1322 

(1994). We have done so, not because we excuse the failure 

to obtain a warrant for an exceptional reason, but because 

consent relinquishes a person’s privacy interest in property 

so that there is no unlawful intrusion under Article I, section 9. See, e.g., State v. Brown, 348 Or 293, 305, 232 P3d 962 

(2010) (“Beal’s consent to a search relinquished the remaining privacy interest in the room and its contents.”); see also 

State v. Tanner, 304 Or 312, 322, 745 P2d 757 (1987) (“B’s 

section 9 interests will not be violated if A allows the police 
Cite as 358 Or 475 (2015) 481

to enter the house and discover the effects, ** * because A 

controls access to the house ***.”).

When the state relies on consent, it must prove by 

a preponderance of the evidence that “someone having the 

authority to do so” voluntarily gave the police consent to 

search the defendant’s property and that any limitations on 

the scope of the consent were complied with. Weaver, 319 Or 

at 219. Where, as in this case, the police rely on consent from 

someone other than the defendant, it is necessary to establish the basis of the third party’s authority. As an example 

of valid authority, a co-inhabitant with common authority 

over property, based on joint access or control, generally has 

authority to give consent to search the property. State v. 

Carsey, 295 Or 32, 41, 664 P2d 1085 (1983).3

Before the Court of Appeals, defendant argued that, 

to satisfy the requirements of the consent exception under 

Article I, section 9, consent must be given by a person with 

actual authority to give it. As pertinent here, defendant 

argued that Bull lacked authority to consent to a search of 

the wooden box because she did not have common access to 

or control over it. In its brief before the Court of Appeals, the 

state did not challenge the analytical framework that defendant had advanced. Rather, the state acknowledged that, 

under the Court of Appeals’ case law interpreting Article I, 

section 9, the existence of valid consent depends on the 

consenter’s actual authority. The state also acknowledged 

that the existence of such authority depends on whether 

the consenting person has joint access to and control over 

the property in question. However, the state disagreed with 

defendant’s application of those principles to the evidence in 

this case. The state insisted that, because no evidence in the 

record suggested any limitation on Bull’s authority over the 

shared bedroom and its contents, Bull had actual authority 

to consent to the search that the officers conducted.

3 In Carsey, this court explained that:

“[C]ommon authority rests on mutual use of property by persons generally 

having joint access or control for most purposes so that it is reasonable to 

recognize that any of the co-inhabitants has the right to permit inspection 

in his own right, and that the others have assumed the risk that one of their 

number might permit the common area to be searched.”

Id.
482 State v. Bonilla

Focusing on Article I, section 9, the Court of 

Appeals hewed to the issue that the parties appeared to 

agree was dispositive—whether the consents on which the 

state relied had been given by persons with actual authority to consent, as determined by the rights of access to and 

control over the property that those persons held. The court 

held that, at least with respect to the search of the wooden 

box, the evidence did not support a determination that Bull 

had actual authority to give consent. The court reasoned 

that, although Bull had joint access to and control over the 

shared bedroom where the wooden box was located, there 

was no evidence that she had joint access to or control over 

the box itself, or that defendant had authorized or acquiesced in its use by any person other than herself. 267 Or 

App at 344-46. Accordingly, the Court of Appeals held that 

the warrantless search of the box was unlawful and that 

the fruits of that search must be suppressed. It also concluded that defendant’s consent to the further search of the 

bedroom, given when she was confronted with the results 

of the search of the box, was the “unattenuated product[] 

of the unlawful search” and that, consequently, the items 

found in that further search also must be suppressed. Id. at 

346.

When the state sought review of that decision by 

this court, it advanced a revised theory as to why there was 

lawful consent to the warrantless search of the wooden box 

for purposes of Article I, section 9. Abandoning the theory 

that Bull had had actual authority to consent to a search 

of the box, the state argued that the search was justified 

by what it described as “the apparent authority doctrine.” 

Under that doctrine, which was adopted by the United 

States Supreme Court in Illinois v. Rodriguez, 497 US 177, 

188-89, 110 S Ct 2793, 111 L Ed 2d 148 (1990), a police officer who conducts a search based on consent given by a person that the officer reasonably—but mistakenly—believes 

has authority to consent, does not violate the Fourth 

Amendment prohibition against unreasonable searches. 

The primary question that the state posed on review was 

whether that apparent authority doctrine is cognizable 

under the consent exception to the warrant requirement 

under Article I, section 9.
Cite as 358 Or 475 (2015) 483

A preliminary issue, not raised by the parties, is 

whether the state’s failure to advance that theory before 

the trial court and the Court of Appeals precludes the state 

from relying on it before this court as a basis for upholding 

the trial court’s ruling on defendant’s motion to suppress. 

We conclude that it does not. Here, the parties’ specific legal 

theories pertaining to consent were never clearly laid out in 

the trial court. Granted, the state did not advance an apparent authority theory of consent before the Court of Appeals. 

However, as articulated in both its petition for review and its 

merits brief before this court, the state continued to argue 

that the evidence before the trial court satisfied the consent 

exception under Article I, section 9. Moreover, it likely would 

have been futile for the state to raise a consent-based apparent authority theory before the Court of Appeals, because 

that court previously had held that only actual authority can 

satisfy the consent exception. See, e.g., State v. Fuller, 158 Or 

App 501, 505, 976 P2d 1137 (1999) (holding that consent, for 

purposes of Article I, section 9, must be given by a “person 

with the actual authority to do so”); State v. Ready, 148 Or 

App 149, 152-53, 939 P2d 117, rev den, 326 Or 68, 950 P2d 

892 (1997) (same). As a practical matter, the state was in 

a poor position to make its consent-based apparent authority argument to any Oregon tribunal other than this court, 

which has not directly addressed that issue. Accordingly, 

and in the absence of any argument by defendant that she 

has been prejudiced by the state’s revised theory of consent, 

we choose to exercise our discretion to consider it.

As noted, the apparent authority doctrine that 

the state asks us to recognize is closely associated with 

Rodriguez, a Fourth Amendment case decided some 25 

years ago by the United States Supreme Court. In that case, 

a woman who had lived for a time with the defendant in his 

apartment, but who had moved out a month earlier, used a 

key that she had taken without the defendant’s knowledge 

to let police officers into the apartment. After entering the 

apartment, the officers observed drugs in plain view. As 

a consequence, the defendant was charged with unlawful 

possession of a controlled substance. The defendant moved 

to suppress the evidence, and the trial court granted the 

motion after concluding that the warrantless entry into the 
484 State v. Bonilla

apartment violated the Fourth Amendment. Id., 497 US at 

179-80. Before the Supreme Court, the state argued that, 

because the police officers reasonably believed that they 

had entered the apartment with the consent of a co-tenant,4

there had been no Fourth Amendment violation. Id. at 182.

The Court agreed with the state. The Court began 

its analysis by noting that the Fourth Amendment is a 

guarantee only against “unreasonable” searches and that 

a co-tenant’s consent to the search of a residence can make 

a warrantless search “reasonable.” Id. at 183-84. The Court 

then observed that, in several prior decisions dealing with 

other factors that had been found to render a warrantless search “reasonable,” it had concluded that the Fourth 

Amendment does not demand literal factual accuracy, but 

only that any mistake of fact be reasonable in light of the 

facts available to the police at the time of the search. Id. at 

184-85 (discussing Maryland v. Garrison, 480 US 79, 107 S 

Ct 1013, 94 L Ed 2d 72 (1987); Hill v. California, 401 US 797, 

91 S Ct 1106, 28 L Ed 2d 484 (1971); and Brinegar v. United 

States, 338 US 160, 69 S Ct 1302, 93 L Ed 1879 (1949)). The 

Court saw no reason to depart from that “general rule” with 

respect to the factual determination of consent:

“As with other factual determinations bearing on search 

and seizure, the determination of consent to enter must be 

judged against an objective standard: would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had 

authority over the premises. * ** [I]f so, the search is valid.”

Rodriguez, 497 US at 188-89 (internal quotation marks 

omitted).5

This court has never specifically decided whether 

the Fourth Amendment “apparent authority” doctrine 

4 In her conversations with the police, the woman had referred to the apartment as “our apartment.”

5 The dissent in Rodriguez argued that the “reasonableness” balance already 

had been struck against warrantless home intrusions, except for exigent circumstances, and that “reasonable” factual errors by law enforcement officers could 

not validate a search that already was inherently unreasonable. Accordingly, the 

dissent concluded, “the reasonableness of a police officer’s mistaken belief that a 

third party had authority to consent is irrelevant.” 497 US at 196 (Marshall, J., 

dissenting).
Cite as 358 Or 475 (2015) 485

comports with the consent exception to the warrant requirement under Article I, section 9.6

 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 Or 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 Or 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 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 Or 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 

6 In Carsey, this court held that the consent exception under the Fourth 

Amendment, as it was interpreted at that time, did not extend to circumstances 

in which the police had a mistaken, but reasonable, belief that a person with 

authority had consented to the search. 295 Or at 44-46. Carsey notwithstanding, as discussed above, the Court with the last word on Fourth Amendment 

questions adopted the apparent authority doctrine some seven years later, in 

Rodriguez. This court also implied in Carsey that actual authority is required to 

satisfy the consent exception under Article I, section 9, but it did not specifically 

decide that issue. See 295 Or at 34 n 1. See State v. Guggenmos, 350 Or 243, 265 

n 4, 253 P3d 1042 (2011) (Kistler, J., dissenting) (so describing import of Carsey).
486 State v. Bonilla

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 US 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.7

In contrast, because consent under Article I, section 

9, involves the relinquishment of a privacy interest, Brown, 

348 Or at 305, it must be given by (or lawfully on behalf 

of) the person who holds the protected privacy interest. See 

Weaver, 319 Or 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 Or at 46, or, 

alternatively, on the application of agency principles.8

7 Thus, under the Fourth Amendment analysis, “apparent authority”—which 

ordinarily is associated with agency law principles—is unrelated to the law of 

agency. See, e.g., United States v. Moran, 214 F3d 950, 951 (8th Cir 2000) (declining 

to “pursue the intricacies of property and agency law” when the decisive question 

under Rodriguez “is whether the search was ‘unreasonable’ within the meaning 

of the Fourth Amendment”); State v. Morse, 156 Wash 2d 1, 12 n 3, 123 P3d 832 

(2005) (noting that “apparent authority,” as used under Fourth Amendment, “is 

quite different than ‘apparent authority’ as used in agency law,” where “apparent 

authority stems from the principal’s objective manifestation to a third party”).

8 When this court implied in Carsey that actual authority is required to satisfy the consent exception under Article I, section 9, 295 Or at 34 n 1, it was 

considering the sort of actual authority that is based on joint access and control 
Cite as 358 Or 475 (2015) 487

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.9

 Because a cognizable exigency makes obtaining 

over property. Id. at 44-45. As the Fourth Circuit has recognized, however, in 

theory, “third person authority could be derived from an actual agency relationship.” United States v. Block, 590 F2d 535, 539 n 5 (4th Cir 1978). The court in 

Carsey did not discuss agency-based actual authority, nor did it contrast such 

authority with the agency-based doctrine of apparent authority, which, unlike 

the Fourth Amendment doctrine adopted in Rodriguez, requires the “holding out” 

of an apparent agent by a principal. See Eads v. Borman, 351 Or 729, 736, 277 

P3d 503 (2012) (endorsing settled common-law agency principle that “[a]pparent 

authority to do any particular act can be created only by some conduct of the principal which, when reasonably interpreted, causes a third party to believe that 

the principal consents to have the apparent agent act for him on that matter” 

(emphasis added)). Under agency principles, irrespective of whether the agency 

is apparent or actual, the action taken by the agent also must be one that was 

within the scope of the agent’s actual or apparent authority. Id. at 736 n 4.

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.

9 The quintessentially “reasonable” way to establish the government’s 

authority to conduct a nonconsensual search is through issuance of a warrant 

from a neutral and detached magistrate, on a showing of “probable cause.” State 

v. Anspach, 298 Or 375, 380-81, 692 P2d 602 (1984). Of necessity, the probable 

cause showing is based on the facts as the person applying for the warrant—

usually a police officer—understands them at the time of the application. Because 

the probable cause decision is predictive, the most that can be expected is that 

the decision be reasonable in light of the facts that are known to the government 

actor. Therefore, facts that would support a magistrate’s determination of probable cause must “lead a reasonable person to believe that seizable things will probably be found in the location to be searched.” Id. Of course, a motion to controvert 
488 State v. Bonilla

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 Or 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.10

Thus, in Stevens, this court held that police officers 

lawfully had entered and searched the defendant’s residence 

under the exigent circumstances exception to the warrant 

requirement because they had probable cause to believe that 

kidnapped children could be found in the residence and that 

those children might be in immediate danger. 311 Or at 129. 

Likewise, in Miskell, this court focused on the circumstances 

known to police officers when they decided to proceed with 

a warrantless recording of suspect statements to determine 

whether it was objectively reasonable to believe that swift 

action was necessary to prevent the destruction of evidence. 

allows a defendant to challenge the “good faith, accuracy and truthfulness of 

the affiant.” ORS 133.693(2). However (and subject to the defendant’s ability to 

controvert), even if it later turns out that the factual circumstances were not as 

the affiant believed them to be, the magistrate’s determination of probable cause 

and issuance of a warrant remain valid, and any search performed under the 

authority of the warrant is lawful. See State v. Esplin, 314 Or 296, 305, 839 P2d 

211 (1992) (relevant time for determining probable cause is when police officer 

seeks warrant).

10 As Professor LaFave has explained:

“It is axiomatic that hindsight may not be employed in determining 

whether a prior arrest or search was made upon probable cause. If the action 

was taken without a warrant, the information to be considered is the ‘totality 

of the facts’ available to the officer at the time of the arrest or search; if it was 

pursuant to warrant (of which the arresting officer must have been aware), 

then the information to be considered is that which was made available to 

the issuing magistrate before the warrant was issued, including reasonable 

inferences drawn by the affiant.”

William R. La Fave, Search and Seizure § 3.2(d), 57-60 (5th ed 2012 & Supp 2014).
Cite as 358 Or 475 (2015) 489

351 Or at 696-99. Indeed, as the state points out, this court 

has used a standard of objective reasonableness, based 

on the facts known to police at the time of a search, when 

reviewing the lawfulness of warrantless searches based on 

the emergency aid exception, Baker, 350 Or at 649; the officer safety exception, State v. Bates, 304 Or 519, 524, 747 P2d 

991 (1987); and the school safety exception, State ex rel Juv. 

Dept. v. M. A. D., 348 Or 381, 392-93, 233 P3d 437 (2010); in 

addition to the more general “exigent circumstances” exception at issue in Stevens and Miskell.

In contrast, as discussed, a consent search is justified only if someone who had authority gave consent, Weaver, 

319 Or at 219; the existence and scope of that authority 

could depend on facts that were unknown to the police at 

the time of the search. Although not directly on point, this 

court’s decisions addressing the voluntariness requirement 

are consistent with that understanding in requiring consideration of the totality of circumstances, including facts not 

known to the police at the time of the search.

For example, in State v. Kennedy, 290 Or 493, 502, 

624 P2d 99 (1981), this court stated that

“the proper test for determining the validity of consent to 

a search is to examine the totality of the facts and circumstances to see whether the consent was given by defendant’s 

free will or was the result of coercion, express or implied.”11

(Emphasis added.) In Kennedy, police officers approached the 

defendant as he was leaving the Portland airport and told 

him that they had information suggesting that he might be 

carrying drugs in his luggage (the information, based on a 

drug smugglers’ profile, was insufficient, in itself, to provide 

probable cause to search the defendant). Id. at 495-96. The 

defendant denied that he was carrying drugs and, without 

any questions from the officers, asked them if they would 

like to search his luggage. The officers searched his bag and 

11 The court in Kennedy did not direct its analysis specifically to Article I, 

section 9, but noted that the statutory rights that the defendant had invoked 

involved “substantially the same *** analysis” as the analysis under Article I, 

section 9 and the Fourth Amendment. 290 Or at 497. However, this court has 

since recognized the “totality of the circumstances” analysis in Kennedy as the 

correct test for determining the voluntariness of consent under Article I, section 

9. See, e.g., State v. Unger, 356 Or 59, 72, 79-80, 333 P3d 1009 (2014).
490 State v. Bonilla

found a vial that was empty inside but which had a small 

amount of cocaine residue along its threads. Id. In the defendant’s ensuing prosecution on drug charges, the trial court 

suppressed that evidence. On review, the question before 

this court was whether the warrantless search of the bag 

was justified under the consent exception—more particularly, the question was whether the defendant’s consent to 

the search of the bag had been voluntary, rather than the 

result of police coercion.

After examining the totality of the factual circumstances, this court concluded that the encounter was not 

coercive. Notably, among the facts that the court mentioned 

was one that would not have been known to the police at 

the time of the search—the fact that the only evidence the 

police would find in the bag was an empty glass vial that, 

when examined closely, revealed a residue of cocaine on its 

threads. The court explained that

“[d]efendant may well have invited the search in the belief 

that no incriminating evidence would be found. Other 

courts have held that circumstances indicating that the 

consenting party believed no incriminating evidence would 

be found in a search are a proper factor for consideration in 

determining whether consent to the search was voluntary.”

Id. at 505-06.

In Stevens, this court also considered the totality 

of the circumstances, including facts that were unavailable to the police at the time of the search, in reviewing a 

trial court’s determination that the defendant’s consent to 

a warrantless search of his home had been voluntary. The 

defendant in Stevens was arrested on a winter day, standing 

by a creek, soaking wet, and wearing only jeans and socks. 

Although he initially seemed to be physically and mentally 

impaired, he appeared to recover once the police took him 

to the county jail and gave him dry clothes, coffee, and 

cigarettes. Detectives began to interview the defendant at 

around 10:00 a.m. and, according to their testimony, he did 

not appear to be under the influence of drugs at that time. 

During the interview, the defendant told the detectives that 

he had injected methamphetamine three times during the 

previous night and that, at 3:00 a.m., he had injected the 
Cite as 358 Or 475 (2015) 491

remaining “scraps” of the drug. The detectives sought defendant’s consent to search his home for evidence of the crimes 

for which he had been arrested; they explained that he 

could refuse and informed him that any evidence discovered 

could be used against him. The defendant told the detectives that he understood and signed a consent form. Several 

hours later, toward the end of the interview, the defendant 

affirmed that he had given his statements “knowingly, voluntarily and intelligently,” and he attributed his earlier 

impairment to hypothermia. 311 Or at 133-34.

In his ensuing prosecution, the defendant moved 

to suppress evidence discovered in the search of his home 

on the ground that, due to drug intoxication, his consent 

had not been knowing and voluntary. At the hearing on the 

motion, among other evidence, the trial court received testimony from a criminologist who had found methamphetamine in a sample of the defendant’s urine taken after his 

interview, the testimony of a psychiatrist who had reviewed 

a tape of the interview and who opined that the defendant 

had not been capable of consenting voluntarily at the time, 

and the testimony of witnesses who had seen the defendant 

in the hours before his arrest. Based on its consideration of 

the totality of the circumstances, the trial court determined 

that the defendant had voluntarily consented to the search 

and therefore denied suppression. Id. at 135-36. In affirming that decision, this court specifically approved the trial 

court’s consideration of all the evidence:

“The trial court’s findings are supported by evidence, 

which we have summarized above. * ** The trial court specifically found after examining the evidence with particular concern about the issue, that defendant’s drug use did 

not impair his capacity to make a knowing, voluntary and 

intelligent choice. We hold that the trial court did not err 

in concluding from its findings that defendant’s consent to 

search * * * w[as] given voluntarily.”

Id. at 136.

Weaver involved the scope of a consent search. In 

that case, the owner of a secondhand store consented in 

writing to a warrantless search of his store for firearms and 

other regulated property. Unbeknownst to the owner, before 
492 State v. Bonilla

he signed the consent form, other police officers already 

had started to search and seize items from the store. The 

owner was charged with crimes based on evidence found 

in the search. At trial, he moved to suppress the evidence 

seized in the search on the ground that the consent form 

that he had signed did not authorize the warrantless search 

that occurred before his consent was given. The trial court 

granted the motion. 319 Or at 214-17.

On review, this court concluded that the “true” 

issue before it was the scope of the defendant’s consent, that 

is, whether the defendant retroactively had consented to a 

search. Although the state did not propose a police-centric 

view of consent such as the one it advocates here, it did propose a categorical rule that consent should be deemed retroactive as a matter of law. In rejecting that argument, this 

court explained:

“The scope of a consent is to be determined by the consenting party. It is possible for a consent to ‘relate back’ to the 

beginning of a search or seizure that otherwise would be 

unlawful. For a consent to conduct a search retroactively 

to validate earlier police activity, however, there must be 

evidence that the person giving the consent intended the 

consent to be retroactive. In this case, there is no evidence 

in the record indicating that [the] defendant intended his 

consent to be retroactive.”

Id. at 221-22.

Because they involved the issues of voluntariness 

and scope of consent, rather than authority to give consent, 

the discussed cases are not directly on point here. However, 

they are inconsistent with the premise that the validity of 

consent can be controlled by what the police reasonably but 

mistakenly believe based on facts available to them when 

they decide to search. Instead, in determining whether the 

person giving consent both voluntarily consented and—by 

parity of reasoning—had authority to do so, the court must 

consider the totality of circumstances, including facts that 

may not have been available to the police when the decision 

to search was made. Because the state adduced no evidence 

in this case that Bull had authority to consent to the search 
Cite as 358 Or 475 (2015) 493

of defendant’s wooden box, the evidence was insufficient to 

satisfy the consent exception under Article I, section 9.

We turn to the state’s final argument, advanced for 

the first time in oral argument before this court, that we 

should adopt an interpretation of Article I, section 9, that is 

“regrounded” in the wording of the provision: “No law shall 

violate the right of the people to be secure in their persons, 

houses, papers and effects against unreasonable searches 

and seizures.” (Emphasis added). Based on the text of the 

provision, the state argues that the question of constitutionality reduces to the determination of whether a search 

was “unreasonable,” without regard to whether a recognized 

exception to the warrant requirement permitted the search. 

The state contends that, under that analysis, the searches 

at issue in this case were lawful because the police reasonably believed that they had permission to search from people with authority to consent.

As with the consent-based theory discussed above, 

the state did not advance its “reasonableness” theory either 

in the trial court or in the Court of Appeals. As discussed, 

358 Or at 482-83, that fact, standing alone, would not necessarily and automatically preclude this court from considering such a theory. This court sometimes has been willing 

to consider entirely new proposed interpretations of a constitutional provision that were presented for the first time 

on review. See, e.g., State v. Ciancanelli, 339 Or 282, 121 

P3d 613 (2005) (considering proposed new interpretation 

of Article I, section 8, that was not raised in trial court or 

Court of Appeals); Stranahan v. Fred Meyer, Inc., 331 Or 38, 

11 P3d 228 (2000) (considering party’s request to overrule 

court’s prior interpretation of Article IV, section 1, of Oregon 

Constitution raised for first time on review). The circumstances here may be distinguishable, however, because in 

this case the state raised its theory for the first time at oral 

argument, when there was little opportunity for defendant 

to formulate a considered response.

We need not decide that question. Even assuming arguendo that it is appropriate to consider the state’s 

“reasonableness” theory when it was not raised until oral 

argument, we decline to do so, because it is insufficiently 
494 State v. Bonilla

developed to justify our reconsideration of longstanding precedent with which it is at odds. In particular, as noted, 358 

Or at 480, this court has adopted a categorical view under 

Article I, section 9, that deems warrantless searches to be 

per se unreasonable (subject to certain well-defined and limited exceptions). See, e.g., Bridewell, 306 Or at 235. The state 

proposes to set aside that categorical approach in favor of 

one that asks, instead, whether an officer acted unreasonably in conducting a search, in light of the circumstances 

known to the officer and without regard to the existence of a 

warrant.

This court has expressed its willingness to reconsider a prior interpretation of the Oregon Constitution “whenever a party presents to us a principled argument suggesting 

that, in an earlier decision, this court wrongly considered or 

wrongly decided the issue in question.” Stranahan, 331 Or 

at 54. But we also have observed that the path to overturn 

established constitutional precedent is not an easy one:

“[T]he principle of stare decisis means that the party seeking to change a precedent must assume responsibility for 

affirmatively persuading us that we should abandon that 

precedent.

“Various considerations may add to that responsibility. 

The most common such consideration is time. Many decisions of this court serve as precedent in later decisions. 

Thus, disavowing one case may undermine the precedential significance of several others.

“*****

“[Thus] the state, in order to prevail in this case, must 

persuade us, first, that the constitutional rule that it 

attacks was not formulated either by means of the appropriate paradigm or by some suitable substitute. If the state 

accomplishes that task, then it still has before it the more 

difficult task of persuading this court that application of 

the appropriate paradigm establishes that the challenged 

constitutional rule is incorrect. Finally, and assuming that 

it is able to convince us of the incorrectness of the challenged rule, the state must persuade us that, when the passage of time and the precedential use of the challenged rule 

is factored in, overturning the rule will not unduly cloud or 

complicate the law.”
Cite as 358 Or 475 (2015) 495

Ciancanelli, 339 Or at 290-91; see also State v. Unger, 356 Or 

59, 70, 333 P3d 1009 (2014) (describing same burden).

The state’s argument, which primarily consists of 

a general appeal to the wording of Article I, section 9, falls 

short of that standard for reconsideration of constitutional 

precedent because it does not meaningfully reckon with this 

court’s prior jurisprudence discussed above. Under those circumstances, we decline the state’s invitation to reconsider 

our interpretive paradigm under Article I, section 9, in this 

case.

To summarize: We reject the state’s argument that 

the officers’ warrantless search of the wooden box owned by 

defendant was justified under the consent exception to the 

warrant requirement of Article I, section 9. In addition, we 

decline to consider the state’s alternative argument, raised 

for the first time during oral argument on review, that the 

searches at issue in this case were lawful because, even 

though they were conducted without a warrant and did not 

satisfy a recognized exception to the warrant requirement 

under Article I, section 9, they nonetheless were reasonable. 

It follows that the trial court erred in denying defendant’s 

motion to suppress the evidence obtained in the search of 

the wooden box, and that the Court of Appeals correctly 

reversed that decision.

The decision of the Court of Appeals is affirmed. 

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

is remanded to the circuit court for further proceedings.

LANDAU, J., concurring.

At issue in this case is the lawfulness of a police 

officer’s warrantless search based on a reasonable, but 

mistaken, belief that consent to search had properly been 

granted. Doctrinally, the search could be regarded as lawful under any of at least three different theories. First, it 

could be that the search qualified under the consent exception to the warrant requirement of Article I, section 9, of 

the Oregon Constitution. Second, this court could recognize a separate exception to the warrant requirement that 

applies to the circumstances of this case. Or third, the 

court could abandon its preference for warrants altogether 
496 State v. Bonilla

and evaluate each police action on a case-by-case basis for 

reasonableness.

As I understand it, the state preserved only the 

first contention, and the court rejects it. I join in the court’s 

opinion. I write separately to emphasize that the other two 

arguments have not properly been presented to us, and 

the court’s opinion should not be read as if it has implicitly 

addressed them. It has not.

The first of those two arguments is that this court 

should recognize an exception to the general rule that, to 

be reasonable, a search must be supported by a properly 

obtained warrant. As I understand it, the state did not make 

that argument in this case.

The argument would go something like this. The 

text of Article I, section 9, does not guarantee a right to be 

free from all searches except those to which a person consents. Rather, it guarantees a right to be free from unreasonable searches. See State v. Guggenmos, 350 Or 243, 257 

n 6, 253 P3d 1042 (2011) (the “touchstone” of Article I, section 9, is “reasonableness”). We presume that warrantless 

searches are unreasonable, but we recognize exceptions to 

that general rule. See, e.g., State v. Mazzola, 356 Or 804, 

810, 345 P3d 424 (2015) (“[A] search conducted without a 

warrant is deemed unreasonable unless it ‘fall[s] within one 

of the few specifically established and carefully delineated 

exceptions to the warrant requirement.’” (Quoting State v. 

Bridewell, 306 Or 231, 235, 759 P2d 1054 (1988).)). Each of 

those exceptions is based upon the judgment of this court 

that, in specified circumstances, proceeding without a warrant nevertheless is reasonable.

For example, the officer-safety exception is grounded 

in the determination that it is reasonable for officers to 

check for weapons in circumstances presenting a threat of 

imminent harm. See, e.g., State v. Bates, 304 Or 519, 524-

25, 747 P2d 991 (1987) (“Our inquiry therefore is limited 

to whether the precautions taken were reasonable under 

the circumstances as they reasonably appeared at the time 

that the decision was made.”). Similarly, the emergency-aid 

exception is predicated on the court’s determination that in 

certain circumstances—those in which it appears that it is 
Cite as 358 Or 475 (2015) 497

necessary to render immediate aid or assistance to someone 

in imminent threat of serious harm—officers may engage 

in conduct that might otherwise violate Article I, section 9, 

because it is reasonable to do so. State v. Baker, 350 Or 641, 

649, 260 P3d 476 (2011) (“[W]e conclude that an emergency 

aid exception to the Article I, section 9 warrant requirement 

is justified when police officers have an objectively reasonable 

belief, based on articulable facts, that a warrantless entry is 

necessary to either render immediate aid to persons, or to 

assist persons who have suffered, or who are imminently 

threatened with suffering, serious physical injury or harm.” 

(Footnotes omitted.)).

When an officer has been given consent to search 

by a person with apparent authority to grant it, and the circumstances present no good reason for the officer to doubt 

the authority of the consenting party to do so, it certainly 

could be argued that the officer acts reasonably in accepting the consent and proceeding with a search. In fact, the 

United States Supreme Court and appellate courts in at 

least a dozen states have so held.1

 And I confess that I am 

hard pressed to understand what makes an officer’s search 

under those circumstances unreasonable.

It is not that unusual for the court to recognize 

new exceptions to the warrant requirement. We did it a few 

short years ago in Baker, in which we expressly recognized 

what we had implicitly held in a few earlier cases: namely, 

an emergency-aid exception to the warrant requirement of 

Article I, section 9. 350 Or at 649. So the fact that there is 

no current exception covering the police conduct in this case 

is not dispositive.

1 Illinois v. Rodriguez, 497 US 177, 188-89, 110 S Ct 2793, 111 L Ed 2d 148 

(1990); People v. Hopkins, 870 P2d 478, 483 (Colo 1994); State v. Buie, 129 Conn 

App 777, 787, 21 A3d 550, 557 (2011), aff’d, 312 Conn 574, 94 A3d 608 (2014); 

State v. McCaughey, 127 Idaho 669, 671-74, 904 P2d 939, 941-44 (1995); People 

v. Burton, 409 Ill App 3d 321, 330-33, 947 NE2d 843, 852-54 (2011); Lee v. State, 

849 NE2d 602, 610 (Ind 2006); State v. Chilson, 38 Kan App 2d 338, 347, 165 

P3d 304, 310 (2007); Commonwealth v. Santos, 465 Mass 689, 694-95, 991 NE2d 

1049, 1055-56 (2013); State v. Licari, 659 NW2d 243, 252-54 (Minn 2003); State 

v. Reinpold, 284 Neb 950, 956, 824 NW2d 713, 720 (2013); State v. Sawyer, 147 

NH 191, 194-96, 784 A2d 1208, 1211-12 (2001); State v. Maristany, 133 NJ 299, 

305-08, 627 A2d 1066, 1069-70 (1993); Commonwealth v. Basking, 970 A2d 1181, 

1192-1200 (Pa Super Ct 2009); State v. Harding, 282 P3d 31, 39-41 (Utah 2011); 

State v. Wantland, 355 Wis 2d 135, 149-56, 848 NW2d 810, 817-20 (2014). 
498 State v. Bonilla

Adopting such an exception arguably runs afoul of 

this court’s rejection of a more general good-faith exception 

to the warrant requirement. The court noted precisely that 

in State v. Carsey, 295 Or 32, 44-45, 664 P2d 1085 (1983), 

when it rejected the proposed exception as a matter of 

Fourth Amendment doctrine, based on then-existing Fourth 

Amendment case law. Of course, Fourth Amendment doctrine has changed quite a bit since Carsey. Moreover, the 

same complaint could be leveled against the recognition of 

any number of existing exceptions to the warrant requirement, which require only that police officers act reasonably 

under the circumstances, not that they are always correct. 

The emergency-aid exception, for example, applies “when 

police officers have an objectively reasonable belief” that 

immediate aid is required, Baker, 350 Or at 649, even if they 

turn out to have been mistaken.

My point is not to resolve the matter here. My point 

is that the matter—which the parties did not address in this 

case—should be fully briefed and argued in an appropriate 

case.

The second possible argument is more far-reaching. 

It would entail abandoning the warrant-preference-andcategorical-exception approach to Article I, section 9, in 

favor of a post hoc, case-by-case examination of the reasonableness of police conduct. This is an argument that the 

state did mention, albeit—as the court correctly concludes—

inadequately. At this point, I am skeptical. But it remains 

an argument worth carefully considering.

The fact is that the court has never explained very 

well the source of the warrant-preference-and-categoricalexception approach to Article I, section 9. Certainly, the 

court has never sought to justify the approach in terms of 

the intentions or understanding of the framers of the constitution.2

 It is likely that the court’s approach would have 

been entirely foreign to the framers of our constitution in 

2 Interestingly, the court has applied that interpretive approach to the particularity clause of Article I, section 9. See State v. Carter, 342 Or 39, 42, 147 P3d 

1151 (2006). But, to my knowledge, it has never applied that approach to the 

reasonableness guarantee.
Cite as 358 Or 475 (2015) 499

the mid-nineteenth century.3

 In fact, for nearly 100 years, 

the court abjured any such reading of Article I, section 9, 

explicitly holding that the law requires courts to examine 

only the reasonableness of an officer’s conduct under the circumstances of each case, without any particular preference 

for warrants. As this court explained in State v. De Ford, 

120 Or 444, 452, 250 P 220 (1927), “the possession of the 

warrant is not the controlling consideration of whether a 

search is reasonable or unreasonable. An officer armed with 

a warrant may make an unreasonable search. An officer 

without a warrant may make a reasonable search.”4

Only in 1983 did the court adopt its current 

approach, but—oddly enough in a state that prides itself as 

a vanguard of state constitutionalism—the only support was 

a passing citation to a Fourth Amendment decision. State v. 

Davis, 295 Or 227, 237, 666 P2d 802 (1983) (citing Katz v. 

United States, 389 US 347, 357, 88 S Ct 507, 19 L Ed 2d 576 

(1967)). In the meantime, the earlier decisions have never 

been overruled, at least not explicitly.

As I have explained elsewhere, I do not think that 

the framers’ intentions are particularly salient in construing the reasonableness requirement of Article I, section 9. 

3 See, e.g., Rohan v. Sawin, 59 Mass 281, 284-85 (1850) (upholding constable’s warrantless search of premises because constitutional search and seizure 

provision was intended only to be “in restraint of general warrants to make 

searches and require[] warrants to issue only upon a complaint made under 

oath”); Mayo v. Wilson, 1 NH 53, 60 (1817) (constitutional search and seizure 

provision “does not seem intended to restrain the legislature from authorizing 

arrests without warrant”); Wakely v. Hart, 6 Binn 315, 319 (Pa 1814) (warrantless 

seizure upheld because constitutional search and seizure guarantee “was nothing 

more than an affirmance of the common law,” which permitted arrests without 

warrants). Nineteenth-century treatises likewise tend to emphasize that constitutional search and seizure guarantees were directed at abuses of general warrants and made no mention of a warrant requirement. See, e.g., Joseph Story, 2 

Commentaries on the Constitution of the United States: With a Preliminary Review 

of the Constitutional History of the Colonies and States, Before the Adoption of the 

Constitution 678-80 (3d ed 1858) (the Fourth Amendment search and seizure 

guarantee “is little more than the affirmance of a great constitutional doctrine of 

the common law” requiring warrants to state with particularity the time, place, 

and nature of the offense).

4 See also State v. Lee, 120 Or 643, 651, 253 P 533 (1927) (upholding constitutionality of warrantless search). As recently as 1959, this court held that the 

reasonableness of a search does not depend on the presence of a warrant, but 

on the circumstances of each case. State v. Hoover, 219 Or 288, 299, 347 P2d 69 

(1959).
500 State v. Bonilla

See generally State v. Hemenway, 353 Or 129, 158-59, 295 

P3d 617 (2013) (Landau, J., concurring). Moreover, I am 

inclined to think that there are good reasons for an ex ante

warrant requirement. But, at the very least, this court has 

some housekeeping to do.

I write only to emphasize that nothing in the court’s 

opinion today addressees either of these doctrinal possibilities. To the contrary, both remain live issues that should be 

properly raised and fully briefed so that we may give them 

our careful attention in a future case.

Kistler, J., joins this concurring opinion.