341 P.3d 810
Or. Ct. App.2014Background
- Deputy Tillett stopped a car on I-5 for traffic violations; defendant was a front-seat passenger, his wife was the driver, and three children were in the back.
- Tillett recognized defendant from a prior narcotics stop of the same car and noted both adults appeared nervous.
- Dispatch advised the driver’s license was suspended; Tillett asked the driver to exit and then questioned her about drugs and weapons.
- The driver consented to a vehicle search; Tillett told defendant the driver had consented and said defendant was "free to leave," but defendant stayed because of his family.
- During the search officers found a backpack in the trunk; defendant identified it as his and consented to search it, revealing syringes and residue that tested positive for methamphetamine.
- Trial court found the stop was unlawfully extended as to the driver but ruled defendant (the passenger) was not seized under Oregon Constitution Article I, §9; defendant was convicted and appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was seized under Article I, §9 | State: passenger was not seized because officer told him he was free to leave and there was no coercive show of authority | Ortega: passenger was seized because stop was unlawfully extended and circumstances (location, no transport, family in car) made a reasonable person feel not free to leave | Court: Not seized under Article I, §9 — no show of authority towards passenger; trial court correctly denied suppression on state-constitutional ground |
| Whether defendant was seized under the Fourth Amendment | State: seizure ended when officer said defendant was free to leave; no ongoing Fourth Amendment seizure at time of consent | Ortega: traffic stop seizure includes passengers and unlawful extension of stop seized passenger under Fourth Amendment | Court: Seized under Fourth Amendment — for duration of traffic stop everyone in vehicle is seized; unlawful extension made the seizure illegal |
| Whether evidence was admissible despite unlawful seizure (attenuation) | State: consent and the officer’s statement that defendant was free to leave attenuated the taint | Ortega: consent was given while illegality was ongoing and cannot purge the taint | Court: Evidence suppressed — Brown factors favor suppression (temporal proximity, lack of meaningful intervening circumstances, and purposeful/flagrant police conduct) |
| Whether defendant’s consent to search backpack cured illegality | State: voluntariness of consent justifies search | Ortega: consent occurred after and during unlawful detention, so tainted | Court: Consent did not purge the taint; search/resulting evidence inadmissible |
Key Cases Cited
- State v. Bailey, 356 Or. 486 (discusses Brown attenuation factors in traffic-stop context) (Oregon Supreme Court)
- Brendlin v. California, 551 U.S. 249 (passengers are seized for duration of a traffic stop)
- Brown v. Illinois, 422 U.S. 590 (factors for attenuation of taint from illegality)
- Wong Sun v. United States, 371 U.S. 471 (fruits of the poisonous tree and purging taint principle)
- State v. Backstrand, 354 Or. 392 (show-of-authority test under Article I, §9)
- State v. Ashbaugh, 349 Or. 297 (consent requests alone do not constitute a seizure under Article I, §9)
- State v. Ehly, 317 Or. 66 (appellate review of suppression factual findings and legal application)
- United States v. Washington, 490 F.3d 765 (consent given after unlawful seizure does not sufficiently attenuate taint)
- United States v. Johnson, 427 F.3d 1053 (consent during ongoing unlawful seizure insufficient to purge taint)
- United States v. Beauchamp, 659 F.3d 560 (similar holding on consent taint)