dissenting.
In this case, it is undisputed that defendant consented to turn around so that the officer could see if defendant had a wallet. The majority concludes that, after defendant turned around, the officer exceeded the scope of defendant’s consent by lifting his shirt. I disagree.
The scope of consent is determined based on the objective standard of what a reasonable person would have understood the scope of the consent to be, given the stated objective of the search. As we said in State v. Arroyo-Sotelo, 131 Or App 290, 296, 884 P2d 901 (1994),
“[to determine the scope of consent], we must consider what a reasonable person would have understood by the interchange between the officer and defendant, the person giving the consent. As discussed above, this requires an evaluation of the factual circumstances. One of the best indicators of the intended scope of a search authorized by consent is the content of the request for consent.”
At trial, the officer testified:
“Q. Did you ask any thing of [defendant] at that point?
“A. Yeah. In the past I have had people tell me they didn’t have any I.D., they didn’t have a wallet, lo and behold, in their back pocket there is one. So I just asked him. I asked if he would mind turning around so I could look to check his back pockets to see if in fact [he] did have a wallet in it.
“Q. Now, * * * do you see [defendant] in court here today?
“A. Yes, he is seated here at the end of the table.
“Q. Do you recall how [defendant] was dressed at that time?
“A. I believe he was wearing a pair of jeans, like blue jeans, and he had on a long flannel type shirt and it actually was, I guess I would say, it was untucked, so it was hanging over his pants, over his pockets.
“Q. Okay. And you asked — you asked him to turn around, is that correct?
“A. Yes, I did.
*76“Q. Did you demand that or can you indicate to the court the tone of voice that you used at time?
“A. We were just strictly having casual conversation at that point. I mean I had no reason to detain him or to you know, order him to do anything. I didn’t know if that was [Ivan] and I didn’t have any real additional reason to believe that it was at the time. So we were just having casual conversation. And I just said, hey, you know, would you mind turning around so I can just check your pockets ?
“Q. What — How did he respond to that?
“A. He said — I—don’t know his exact words. But you can read from my report, he agreed to do so, and then he actually turned. I didn’t force him or I didn’t step behind him. He then tinned around, so now his rear pockets were facing me.
“Q. At any time up until this point had you touched or laid hands on [defendant]?
“A. No.
“Q. So at this point he is turned around and his back is towards you, is that correct?
“A. Correct.
“Q. What happened next?”
(Emphasis added.)
The officer testified further,
“A. Well, I couldn’t really see his pockets because of the shirt hanging down. So I just kind of reached down and pulled the shirt up a little bit. I could see his pockets. And in his — one of the back pockets I could see kind of a bulge. And I leaned forward. There was a couple of lottery tickets sticking out of the pocket. And I leaned forward. And when I leaned forward to look into the pocket, I could see a handgun in there.
“Q. Did you have to open the pocket or touch him in order to see into the pocket?
“A. I lifted up the — the bottom portion of his shirt because it was covering the pockets.
“Q. Right. Other than that?
*77“A. No. I didn’t stick my hand into the pocket or anything. I just leaned forward and it was sticking out far enough that I could see into the pocket.
“Q. Okay. And what did you see in that pocket?
“A. I saw the lottery ticket and also the butt of a small handgun.”
(Emphasis added.)
Here, the stated objective of the search was to check defendant’s back pockets to ascertain whether he had a wallet. That objective could not be accomplished if the pockets were obscured by defendant’s shirt. Defendant’s untucked flannel shirt hung over his back pockets so that the officer could not see them. A reasonable person, having been asked for consent "to check his back pockets to see if, in fact, he did have a wallet in [them]” and knowing that the pockets were obscured by his shirt, would have anticipated that, if he consented, his shirt would have to be lifted so the pockets could be viewed.
After the officer lifted defendant’s shirt, he leaned forward to look into the pocket after seeing a bulge and a couple of lottery tickets sticking out of it. He did not touch or open the pocket or stick his hand into it. Rather, the butt of handgun was in plain view from the officer’s vantage point after he lifted defendant’s shirt. Because defendant implicitly consented to the lifting of his shirt, he waived any privacy interest in contents of his pocket that were in plain view. Consequently, the trial court erred in suppressing the evidence of the handgun that was seized as the result of what the officer saw.
The majority disagrees. It reasons,
“ [T]here was no testimony as to what defendant knew when he acquiesced in [the officer’s] request, and the trial court’s findings are silent on that point. The trial court could have inferred that defendant knew that his shirt would obscure [the officer’s view] when he turned around, but it also could have inferred that defendant was not aware of that fact until [the officer] reached out and lifted up his shirt. Because the trial court ruled in defendant’s favor, we are *78required to assume that it drew the latter not the former inference.”
185 Or App at 74. The majority's analysis misinterprets the trial court’s findings, and it applies an incorrect standard of review. The officer’s testimony, as quoted above, is uncontroverted. He was the only witness to testify at the suppression hearing about what occurred when defendant consented to the search. The trial court expressly found the officer’s testimony credible. The court said orally at the hearing, “I adopt the officer’s testimony as candid and believable and fully explanative of the situation here.”
When a trial court makes findings of fact pursuant to a ruling on a motion to suppress, and there is evidence to support them, we are bound by those findings. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Here, the trial court expressly found that what the officer testified to is what occurred. “[Office the facts have been decided [regarding whether the breadth of the consent has been exceeded], their legal effect is question of law.” Arroyo-Sotelo, 131 Or App at 294. We are not bound by the trial court’s legal conclusion regarding the officer’s testimony. Rather, we make our own determination about whether the facts as found by the trial court suffice to meet constitutional standards. State v. Stevens, 311 Or 119, 135, 806 P2d 92 (1991).
Consent to a request to search can be verbal or nonverbal. In this case, it was both. Defendant consented orally and turned his body toward the officer so that the officer could see if he had a wallet after being asked by officer if he could check defendant’s pockets. The only true issue in this case is whether the officer’s actions pursuant to defendant’s consent exceeded the scope of the consent as it would have been intended and understood by a reasonable person. That issue presents a question of law that does not depend on whether the trial court found that defendant was aware that his shirt obscured his wallet in his pants pocket. Rather, it depends on what a reasonable person would have understood as the scope of consent. Common sense tells us that a reasonable person wearing a untucked, long, flannel type of shirt banging over his pants and his pockets would have understood that a consent to “check his pockets” included consent *79to lift his shirt high enough to view the pockets. Article I, section 9, of the Oregon Constitution prohibits only “unreasonable searches],” not all searches. The uncontroverted facts in this case as found by the trial court demonstrate that the scope of the officer’s search was not unreasonable in light of defendant’s verbal and nonverbal consent.
The majority reasons otherwise. First, it points to the findings made by the trial court in its written order after the hearing. The court stated, in relevant part,
“5) The officer told defendant that he was looking for someone and asked defendant if he had any identification of his person. The defendant replied that he had none.
“6) The officer then asks the defendant to turn around so he can see if the defendant has a wallet. The defendant acquiesced to this request.”
In light of the trial court’s earlier finding that the officer’s testimony was completely credible and explanatory, the only plausible understanding of the written findings is that they constitute an attempt to characterize the officer’s testimony. Apparently, however, the majority views the written findings as conflicting with the officer’s testimony, despite the trial court’s express finding to the contrary. Based on that premise, the majority then turns to another principle from Ball v. Gladden. When a trial court has failed to make express findings on all pertinent facts and there is conflicting evidence in the record as to those facts, a reviewing court will presume that the trial court found facts consistent with its ultimate conclusion. Ball v. Gladden, 250 Or at 487. Based on its premise that the trial court did not accept the officer’s testimony, the majority applies the above principle to arrive at its conclusion that the trial court implicitly found that defendant was not aware that his shirt obscured his pants pocket.
The majority makes two errors in its analysis. First, there is no conflicting evidence in the record, so the application of the above rule is inappropriate. Second, the standard to be applied is an objective one: whether a reasonable person would have believed that his consent encompassed the lifting of his shirt. Regardless of what defendant subjectively *80believed, he is held to an objective standard of reasonableness.
For all of the above reasons, I dissent.