Consent can never legitimize a search when it is obtained under the pressure of police action that became available only through unauthorized conduct. State v. Freund, 102 Or. App. 647, 653, 796 P.2d 656 (1990). In Freund, a police officer informed defendant that "he was there to pick up the marijuana and 'he wanted' to do it calmly."
Id .Similarly, in State v. Freund , 102 Or. App. 647, 649, 796 P.2d 656 (1990), the sheriff’s office got an anonymous tip about the defendant growing marijuana. When officers arrived at the house, one of them told the defendant that he "was there to pick up the marijuana plants that she was growing."
In assessing whether defendant has voluntarily consented or merely acquiesced to police authority, we consider the officer's words to determine whether those words provided the defendant with an opportunity to choose to consent, or whether those words left defendant with the impression that a search was inevitable. Id . at 295-96, 292 P.3d 660 ; State v. Freund , 102 Or. App. 647, 652, 796 P.2d 656 (1990). A defendant's response to an officer's request to search also bears on whether the consent was voluntary.
In reviewing the denial of a motion to suppress evidence, we review the facts on which the denial was based for any evidence, and the trial court's ruling based on those facts for legal error. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993) ; see also State v. Freund , 102 Or.App. 647, 651, 796 P.2d 656 (1990) ("We are not bound by the trial court's conclusions, if the historical facts do not meet the constitutional standards for a valid consent to search."). Where findings of fact are not made on all issues and there is evidence from which such facts could be decided more than one way, we presume that the facts were decided in a manner consistent with the trial court's ultimate conclusion.
When deciding whether a particular interaction amounts to consent, courts distinguish between voluntary consent and mere passive acquiescence to the search. State v. Freund, 102 Or.App. 647, 652, 796 P.2d 656 (1990). Consent may be manifested by conduct as well as words.
It is unclear from defendant's brief whether he is also arguing that his initial consent to the home visit (while at the probation class) was involuntary; rather, the focus of defendant's assignment of error is that his subsequent consent to search the house (after the police had entered the house) was involuntary.Defendant argues that this case is analogous to State v. Freund, 102 Or.App. 647, 652, 796 P.2d 656 (1990), where we held that a defendant's consent was not voluntary. In that case, a police officer told the defendant that he was at her residence “to pick up the marijuana plants that she was growing” and that he “wanted to do it as calmly [and] efficiently as possible.”
We have held that consent may be manifested by conduct, see State v. Martin, 222 Or.App. 138, 142, 193 P.3d 993 (2008), rev. den.,345 Or. 690, 201 P.3d 910 (2009) (so stating), but that a defendant's “mere acquiescence” to police authority does not constitute consent, see, e.g., id. at 140–41, 143–44, 193 P.3d 993 (state did not meet its burden of proving that the defendant's actions amounted to anything more than passive acquiescence to the officers' entry into her home where the defendant, who was nude, “flung open” the front door, turned, and ran into a back bedroom); Berg, 223 Or.App. at 392, 196 P.3d 547 (stating principle). “Such acquiescence occurs when an individual is not given a reasonable opportunity to choose to consent or when he or she is informed that a search will occur regardless of whether consent is given.” Berg, 223 Or.App. at 392, 196 P.3d 547. Defendant argues that this case is analogous to State v. Freund, 102 Or.App. 647, 652, 796 P.2d 656 (1990), where we held that the state failed to prove that the defendant consented to the search and seizure of marijuana plants on her property. In that case, a police officer told the defendant that he “was there to pick up the marijuana plants that she was growing” and that he “wanted to do it as calmly [and] efficiently as possible.”
Rather, under the controlling standard of review, the record shows only that Bennett repeatedly sought consent to search the car for weapons, despite the driver's, Guinto's, repeated statements that there were no weapons in the car. Defendants primarily invoke State v. Freund, 102 Or App 647, 796 P2d 656 (1990), for the proposition that, in the totality of the circumstances, Bennett's persistent efforts to obtain consent to search were impermissibly coercive. In Freund, police officers, who had received an anonymous tip that the defendant was growing marijuana, approached the defendant, who was standing outside of her home.
Mere acquiescence to a police order, however, does not constitute voluntary consent. State v. Ching, 107 Or. App. 631, 634, 813 P.2d 1081 (1991) (officer's request "was in the nature of a command"); State v. Freund, 102 Or. App. 647, 652, 796 P.2d 656 (1990) ("[The officer's] statement cannot be characterized as a request for consent. The officer stated that ‘he was there’ to pick up the marijuana and ‘he wanted’ to do it calmly. * * * Read together, the officer's statement told defendant that she had no choice whether a search would occur.").
Mere acquiescence in a police order or demand, however, is not voluntary consent. State v. Ching, 107 Or. App. 631, 634, 813 P.2d 1081 (1991) (officer's request was in the nature of a "command"); State v. Freund, 102 Or. App. 647, 652, 796 P.2d 656 (1990) (officer's words were unconditional: he stated that he "was there" to pick up marijuana). In determining whether an officer's statement is a request or an order, it is important to consider the officer's tone of voice, see State v. Sosa-Alvarez, 122 Or. App. 350, 353-54, 857 P.2d 883 (1993), and whether the statement itself invites a response or mere acquiescence.