343 P.3d 277
Or. Ct. App.2015Background
- Officer Monico encountered a disabled car on Baseline in Cornelius at night; it was in traffic while being pushed aside.
- Monico drew his gun and ordered driver and three passengers to keep heads up, during a safety-focused detention.
- An overwhelming odor of unburned marijuana emerged from the car; passengers were questioned about marijuana location.
- Backseat occupants, including defendant, glanced at a backpack on the floor; officer removed the backpack and placed it on the trunk.
- Backpack owner(s) consented to a search after the backpack was seized; 12 bags of marijuana were found.
- Defendant was Mirandized, gave incriminating statements, and was later charged; defendant moved to suppress the backpack search.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the initial stop/seizure lawful? | State: officer safety justified commands; lawful contact under care-taking and traffic-stop statutes. | Garrett would say seizure exceeded permissible scope and violated rights without basis. | Unlawful seizure of defendant; initial contact not properly justified. |
| Was the backpack seizure warrantless and unlawful? | State: possible probable cause to search; safety considerations supported seizure. | Backpack seized without warrant; no exception justified warrantless search. | Backpack seizure without a warrant was unlawful. |
| Does consent to search cure taint under Unger framework? | State: consent not tainted by seizure; Hall minimization argument irrelevant post-Unger. | Consent derived from unlawful seizure; cannot be voluntary under Unger totality of circumstances. | Consent tainted; search not valid under Unger. |
| If unlawful conduct occurred, did Unger apply and suppress evidence? | State: should show consent not product of exploitation; otherwise admissible. | Unger requires suppression where taint shown; here taint established. | Unger applies; suppression warranted. |
Key Cases Cited
- State v. Unger, 356 Or 59 (2014) (revised approach: voluntariness and non-exploitation of illegal conduct required for consent.)
- State v. Juarez-Godinez, 326 Or 1 (1997) (definition of seizure for Article I, section 9 and need for warrant/exception.)
- State v. Kosta, 304 Or 549 (1987) (seizure and warrant requirements with limited exceptions.)
- State v. Hall, 339 Or 7 (2005) (original minimal factual nexus test for consent following unlawful stop/search.)
- State v. Miglavs, 186 Or App 420 (2003) (officer safety exception to warrant requirement concept.)