State v. Mitchell, 360 P.3d 525

Boltjes, a TriMet fare inspector, approached defendant for fare and attempted to identify him; Bowen, a Transit Police officer, assisted in verifying identity and checking for accuracy.
defendant provided a name and birth date; Bowen doubted accuracy based on age and physical descriptors; Bowen and Boltjes compared information and photos which suggested a mismatch.
Defendant confessed his true name and birth date after being warned of potential consequences and the officer’s suspicion of deception; Bowen learned of an outstanding arrest warrant.
Defendant was arrested on the warrant and, during a search incident to arrest, methamphetamine was discovered and later tested positive.
Defendant moved to suppress the evidence arguing an unlawful seizure and that the warrant discovery did not purge the taint; trial court found unlawful seizure but denied suppression based on attenuation.
The trial court conducted a bench trial without a written jury waiver; the state conceded the error; appellate court remanded for proper handling of the waiver.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the unlawful seizure taint was purged by the warrant discovery	State argues attenuation under Bailey; warrant discovery breaks causal chain	Defendant argues attenuation insufficient due to purposeful, flagrant conduct	Attenuation found; taint purged; suppression denied
Whether the Third Amendment/Article I, section 9 claim was preserved and decided	State contends only Fourth Amendment analysis applies due to concessions	Defendant preserved state claim but conceded preservation; not necessary to decide	Court declines to consider state claim; relies on Fourth Amendment analysis
Whether the bench trial without a written jury waiver was plain error	State concedes error; waiver required in writing	Defendant did not contend otherwise; preservation not necessary for the issue	Plain error; bench trial reversed and remanded

State v. Bailey, 356 Or 486 (2014) (adopts three-factor attenuation test for purging taint from unlawful seizure)
Brown v. Illinois, 422 U.S. 590 (1975) (origin of attenuation factors for taint analysis)
Dempster, 248 Or 404 (1967) (per se attenuation rule later disavowed; longstanding approach)
State v. Clemons, 267 Or App 695 (2014) (discusses fishing expeditions and unlawfulness of stops in attenuation)
State v. Ehly, 317 Or 66 (1993) (establishes standard for reviewing trial court findings of fact)
State v. Benning, 273 Or App 183 (2015) (attenuation under Article I, section 9 considerations in some contexts)
State v. Barber, 343 Or 525 (2007) (written jury waiver requirement; no waiver without writing)
State v. Velykoretskykh, 268 Or App 706 (2015) (discusses preservation and attenuation context in state claims)
Kennedy, 295 Or 260 (1983) (first-things-first doctrine precedence in state constitutional claims)
Bailey, 356 Or 486 (2014) (disavows Dempster and adopts Brown-based three-factor test)