State v. DeJong, 469 P.3d 253

Informant (Williams) told police she had recently bought meth from DeJong and arranged a buy-by-text at DeJong’s home.
Officer Pelayo and six officers went to DeJong’s house (~6:00 p.m.); DeJong was arrested and officers then secured the residence without a warrant for about five hours.
Officers found roommate Penrod in the basement, interviewed her, and obtained detailed statements implicating DeJong in drug sales.
Pelayo applied for a search warrant (after securing the house); a warrant issued and at ~11:00 p.m. officers searched the home and seized meth, paraphernalia, scales, syringes, and a phone.
Trial court ruled the pre-warrant securing of the house was unlawful and suppressed Penrod’s statements, but excised those statements from the warrant affidavit and concluded the remaining affidavit supported probable cause; physical evidence seized under the warrant was admitted.
DeJong entered a conditional guilty plea to unlawful delivery of meth and appealed the denial of suppression of the physical evidence, arguing the later warrant search was tainted by the unlawful seizure.

Issue	Plaintiff's Argument (State)	Defendant's Argument (DeJong)	Held
Whether physical evidence seized under a warrant was tainted by the earlier unlawful pre-warrant seizure	State: No nexus — officers would have discovered the evidence pursuant to the valid warrant even without the prior seizure; burden not shifted to state	DeJong: Pre-warrant seizure produced Penrod’s statements and gave police exclusive control of the premises, so there is a factual nexus that shifts burden to the state	Court: No factual nexus shown as to the physical evidence; defendant failed to meet the initial burden, so suppression of physical evidence not required
Whether excising Penrod’s unlawfully obtained statements left probable cause for the warrant	State: The remaining affidavit (without Penrod) established probable cause	DeJong: Penrod’s statements contributed to issuing the warrant; excision cannot cure taint	Court: After excising Penrod’s statements, the affidavit still supported probable cause; only Penrod’s statements were suppressed

State v. Johnson, 335 Or 511 (2003) (defendant must show a factual nexus between prior illegal conduct and later warrant seizure to shift burden to the state)
State v. Unger, 356 Or 59 (2014) (distinguishes warrantless-search contexts; clarifies exploitation and burden issues)
State v. Smith, 327 Or 366 (1998) (suppress only evidence actually obtained from illegal search; securing property may be irrelevant absent proof it contributed to discovery)
State v. Dimmick, 248 Or App 167 (2012) (illegal seizure that provided information necessary for a warrant establishes nexus requiring suppression)
State v. Hall, 339 Or 7 (2005) (discusses exploitation analysis and factual-nexus concept)
State v. Gardner, 263 Or App 309 (2014) (remedy for tainted affidavit: excise tainted information and test remaining facts for probable cause)
State v. James, 339 Or 476 (2005) (in warrant-taint claims, defendant bears initial burden of production; state bears ultimate persuasion)