Lead Opinion
Defendant appeals his conviction for delivery of cocaine, ORS 475.880, possession of cocaine, ORS 475.884, and tampering with physical evidence, ORS 162.295, and assigns error to the trial court’s denial of his suppression motion. He contends that the police violated Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution by unlawfully seizing him during a traffic stop. He further contends that the trial court erred in denying his motion to suppress evidence that the police discovered when they conducted a search incident to arrest after they arrested defendant on a warrant, the existence of which they had discovered during their unlawful detention of him. We affirm.
We review the denial of a suppression motion for legal error. ORS 138.220. The trial court’s findings of fact are binding on appeal if there is constitutionally sufficient evidence in the record to support them. State v. Ehly,
In the fall of 2010, Portland was experiencing what one police officer termed a “tremendous amount of gang violence” in the city. As part of efforts to forestall more violence, police officers set up surveillance at a funeral that was attended by several gang members. After the funeral, officers followеd one of the attendees to a house in Northeast Portland, at which several gang members were seen by officers to be congregating. The officers were concerned that the gang members at the house were contemplating violence or that they would be the target of violence perpetrated by members of other gangs. The police continued to monitor the house, with both unmarked patrol cars on the ground and a Portland Police Bureau aircraft overhead. An officer in the aircraft saw four people leave the house and enter what he thought was a “Dodge Charger, Magnum-type vehicle.” One
Concerned that the car’s occupants were on their way to commit a crime, the officer in the aircraft followed the car as it left the house and asked a patrol unit to stop it. After the car’s driver failed to signal for the legally required 100 feet before making a turn, ORS 811.375(l)(b), the police stopped the car. There were two backseat passengers in the car, one of whom was defendant. When the driver could not produce valid proof of insurance, an officer attempted to contact the driver’s insurance company by phone to determine whether the driver was, in fact, insured.
Two backup officers arrived several minutes after the initiation of the stop. One of those officers, Stradley, recognized defendant to be a gang associate but could not remember his name. Various officers made repeated efforts to discern the identities of the two backseat passengers, but the passengers refused to identify themselves to the police. While the first officer on the scene was trying to contact the driver’s insurance company, Stradley called Officer Burley to the scene to try to identify defendant and the other backseat passenger.
Thirty minutes after the initiation of the stop, and some time after the officers had concluded their investigation into the status of the driver’s insurance, Burley arrived. Burley looked inside the vehicle and was immediately able to identify defendant by name. After Burley recognized defendant, Stradley ran defendant’s name for warrants and discovered thаt there was an outstanding felony warrant for defendant’s arrest. While in the process of arresting defendant on the warrant, Burley noticed that defendant was having trouble speaking. He asked defendant to open his mouth, where Burley saw a plastic bag containing a white substance under defendant’s tongue. Subsequent testing revealed that the bag contained cocaine. The police also searched the backseat area where defendant had been sitting; that search revealed approximately $700 in cash, which the officers attributed to defendant.
On appeal, defendant contends that the police unlawfully seized him in violation of both Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. He argues that the officers’ discovery of his outstanding arrest warrant did not “attenuate” the discovery of the disputed evidence from the initial unlawful seizure and that suppression of the evidence was therefore required. In response, the state does not challenge defendant’s сontention that he was unlawfully seized; rather, the state argues that, under the principle announced in State v. Dempster,
Oregon has lоng recognized that the discovery of an outstanding warrant for a defendant’s arrest purges the taint of prior unlawful police conduct that might otherwise require suppression of evidence obtained as a result of an arrest on the warrant. The Oregon Supreme Court first
The defendant contended in the Supreme Court that he had been unlawfully detained when he got into the police car and that the subsequently obtained evidence was tainted by his unlawful seizure and should have been suppressed. The court assumed without deciding that the defendant’s initial detention was an unlawful seizure but affirmed the denial of the defendant’s suppression motion because the subsequent “lawful arrest on the bench warrant purged the search incident thereto of the taint of any illegality in the detention of defendant prior to that time.” Id. at 408. In support of that conclusion, the court cited two United States Supreme Court cases, Nardone v. United States,
We considered a similar factual scenario in Snyder. There, the defendant was picked up by an officer and driven to the police station. At the station, the defendant volunteered that there might be a warrant in another county for his arrest, and a computer records check confirmed that that was indeed the case. The officer arrested the defendant. As officers were booking the defendant, they discovered a box of cigarettes that tended to connect him to a burglary; the defendant also made several inculpatory admissions.
On appeal, as pertinent here, the defendant reiterated arguments rejected by the trial court: that the police had unlawfully stopped him without reasonable suspicion and that the subsequently discovered evidence was “fruit of the poisonous tree” and should therefore have been suppressed.
“Under [Dempster], [the officers’] discovery of the arrest warrant and [the] arrest of defendant under the warrant’s authority purged the evidence from the taint of the prior illegality. The Supreme Court in Dempster assumed that the police may have unlawfully taken the defendant to the police station. While the defendant was there, an officer discovered a bench warrant for his arrest. The officer then conducted a search incident to the arrest and found narcotics and related paraphernalia on the defendant’s person. The court held that the intervening discovery of the bench warrant dissipated the taint of the illegal detention because ‘when the sergeant found the warrant he was bound to obey its command and arrest defendant.’”
Snyder,
Some 20 years after Snyder, the Oregon Supreme Court decided State v. Hall,
“Although the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if ‘the government’s officers had stayed within the law,’ this court has rejected the notion that evidence is rendered inadmissible under Article I, section 9, simply because it was obtained after unlawful police conduct оr because it would not have been obtained ‘but for’ unlawful police conduct. Instead, as this court recently explained in State v. Johnson,335 Or 511 , 520-21,73 P3d 282 (2003), after a defendant establishes the existence of a minimal factual nexus — that is, at minimum, the existence of a ‘but for’ relationship — between the evidence sought to be suppressed and prior unlawful police conduct, the state nevertheless may establish that the disputed evidence is admissible under Article I, section 9, by proving that the evidence did not derive from*24 the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant’s rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant’s rights under Article I, section 9; or (3) the preceding violation of the defendant’s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence.”
Id. at 24-25 (some citations omitted).
Accordingly, the purpose of the Oregon exclusionary rule is to “vindicate” a defendant’s personal rights by restoring the defendant to the same position as if “the government’s officers had stayed within the law.” Id. (internal quotation marks omitted). Once the defendant has shown a minimal factual nexus between the unlawful police conduct and the evidence sought to be suppressed, the state may seek to establish that the unlawful police сonduct was “independent of or tenuously related to” the event giving the police authority to search. Assessing whether the state has met “that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection.” Id. at 35.
“Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances— such as, for example, a police officer informing the defendant of the right to refuse consent — that mitigated the effect of the unlawful police conduct.”
Id. Under Hall’s suppression analysis, then, the question whether the discovery of evidence was attenuated from prior unlawful police conduct is a fact-driven analysis into the “totality of the circumstances,” including intervening circumstances.
In essence, defendant would have us conclude that we should overrule Snyder because Snyder is inconsistent with Hall. However, if Snyder was inextricably derived from Dempster, then it is for the Supreme Court, not us, to decide whether to revisit the question whether an intervening arrest warrant always purges subsequently discovered evidence of the taint of prior unlawful police conduct. And even if Snyder was not directly derived from Dempster, then defendant must demonstrate that Snyder is plainly wrong. See Newell v. Weston,
We disagree with defendant that Hall implicitly overruled the principle expressed in Dempster and Snyder or that that principle is incompatible with the analysis outlined
In Langston, police officers saw the defendant driving a van that was having engine trouble. After the defendant parked the van, the officers pulled alongside it. One of the officers then asked for and obtained the defendant’s name and date of birth. A warrant check revealed the existence of a warrant for the defendant’s arrest. The officers arrested the defendant and inventoried the van in preparation for having it towed; that inventory revealed a backpack containing items suggesting that the defendant was involved in identity theft.
The defendant argued that he had been unlawfully seized when the officers asked him for his name and date of birth and that evidence derived from that seizure should have been suppressed under Hall. The state responded that, among other things, even if the defendant had initially been unlawfully seized, the subsequent discovery of the arrest warrant purged any taint from the unlawful seizure. We agreed with the state on that point, concluding that “the discovery of the outstanding arrest warrant and its subsequent execution interrupted any causal connection between any purported unlawful stop and the seized evidence and provided an independent and alternative basis for the search of the automobile and defendant’s backpack.”
In Allen, we expressly applied the Hall analysis and integrated the Dempster principle into it. We began by noting that the defendant had “established the required minimum factual nexus between the evidence sought to be suppressed * * * and the prior unlawful police conduct.” Id. at 78. We then considered whether the state had “carried its burden under Hall to prove that the preceding violation of defendant’s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be viewed properly as the source of that evidence.” Id. Immediately after that statement, we proceeded to discuss the Dempster principle. We then stated that “[b]ased on the above circumstances, we conclude, as we did in Snyder, that the intervening and independent event of the discovery of the outstanding arrest warrants operated to attenuate the taint of the prior unlawful arrest.” Id. at 79 (emphasis added).
Defendant argues that, because Langston and Allen conflict with Hall, they were wrongly decided. We disagree with defendant that those cases necessarily conflict with Hall and, consequently, that Snyder and those cases are plainly wrong. Instead, those cases establish the reverse: that Snyder can be understood to be consistent with Hall and, accordingly, is not plainly wrong. Both Langston and Allen confirm that Snyder can be applied within the Hall framework, viz., at the second step of the Hall analysis, that is, in assessing whether the state has met its burden of showing that “the police obtained the disputed evidence independently of the violation of the defendant’s rights under
We further note that Snyder is not inconsistent with the general purpose of the exclusionary rule as explained in Hall: to restore the defendant to the same position that the defendant would have enjoyed had the police acted lawfully. Once the officers discovered the warrant for defendant’s arrest, they were “bound to obey its command and arrest defendant.” Dempster,
Defendant next contends that suppression was required under the Fourth Amendment. Defendant cites decisions of the United States Courts of Appeal for the
As noted, for its conclusion that the discovery оf an arrest warrant attenuates the taint of an unlawful stop, Dempster cited two United States Supreme Court cases, Nardone and Wong Sun. While subsequent decisions of this court have made clear that Dempster is a rule of Oregon law, Dempster itself relied only on federal law for its conclusion on suppression. On questions of federal law, we are bound by decisions of the United States Supreme Court and of the Oregon Supreme Court. Fox v. Collins,
Despite defendant’s arguments otherwise, the rule of Dempster — that the discovery of an arrest warrant is an intervening circumstance that severs the causal connection between an unlawful stop and a subsequent search — continues to be the rule under Article I, section 9, for suppression analysis. The Oregon Supreme Court’s decision in Dempster controls our analysis for purposes of the Fourth Amendment as well. The trial court did not err in denying defendant’s suppression motion.
Affirmed.
Notes
Of course, the state may also discharge that burden by showing that the evidence would inevitably have been discovered by lawful police procedures or that the discovery of the evidence had such a tenuous fаctual link with the unlawful police conduct that the latter cannot be said to be the source of the former. See Hall,
Dissenting Opinion
dissenting.
I agree with the majority’s reasoning with respect to its suppression analysis under Article I, section 9, of the Oregon Constitution. Because I do not agree, however, that the Oregon Supreme Court’s decision in State v. Dempster,
Although I rely on the facts as provided in the majority’s opinion, I must note at the outset what I believe to be the critical fact of this case. The record before us leaves no room to conclude other than that the officers were unlawfully detaining defendant for the purpose of identifying him and running a warrant check on his name. With that, I proceed to my analysis.
Dempster was decided in 1967 and cited two United States Supreme Court cases to support its conclusion that the discovery of an arrest warrant attenuated an illegal seizure from the subsequent discovery of evidence. Id. One of those cases was Wong Sun v. United States,
“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegаlity, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).”
Id. at 487-88.
Brown was decided in 1975 and since then no Oregon case has squarely addressed the proper attenuation analysis under the Fourth Amendment when an arrest warrant is discovered during an unlawful detention. The Oregon Supreme Court has not addressed the matter since Dempster, which was decided eight years before Brown. In State v. Langston,
We did not explicitly state in Snyder whether we were analyzing attenuation under federal or state law. Instead, we merely cited Dempster to support our conclusion that the defendant was not entitled to suppression of the evidence. Dempster, however, differed from Snyder in a crucial respect. In Dempster, the police already knew the identity of the defendant before they detained him.
I would so conclude because it cannot be said, as a matter of federal law, that evidence discovered during a search incident to arrest is automatically attenuated from a prior unlawful sеizure by the discovery of an outstanding warrant where the unlawful seizure was carried out for the purpose of identifying the person detained. First, Wong Sun, the case on which Dempster relied, did not itself purport to create any per se rule. To the contrary, Wong Sun framed the proper inquiry as whether “the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.”
Second, the federal exclusionary rule’s purpose is to deter police misconduct. See, e.g., Elkins v. United States,
Third, while it is true that Brown was decided in a slightly different context from the present one, the overwhelming majority of jurisdictions have concluded that the Brown factors apply to analyze suppression cases involving a search that was carried out pursuant to an arrest warrant that was discovered during an unlawful seizure. See State v. Mazuca,
In sum, although we are, of course, bound by the Oregon Supreme Court’s decision in Dempster, that case did not cover the situation at issue here, viz., where defendant was seized for the purpose of identifying him. Although that issue was addressed by this court in Snyder, that case does not, as demonstrated, accurately reflect the proper Fourth Amendment analysis. For the reasons above, I would conclude that the suppression analysis articulated in Brown is the proper analytical framework under which to examine this case. Consequently, I would proceed to apply the Brown factors to the present case.
The first Brown factor is temporal proximity between the unlawful detention and the discovery of the evidence sought to be suppressed. The trial court did not make explicit findings concerning how much time had expired between the unlawful detention and the discovery of the evidence; however, it is clear from the record that those two events
The next factor is the presence, vel non, of intervening circumstances. Courts have reached widely varying conclusions about whether the discovery of an arrest warrant constitutes an intervening circumstance that attenuates the taint of the unlawful detention. Compare Simpson,
The last Brown factor is the purpose and flagrancy of the police conduct. That factor weighs very heavily in the analysis because it goes to the heart of the federal exclusionary rule’s purpose, which is to “deter — to compel respect
As a starting point, there is no question in this case that the police validly stopped the car for the driver’s failure to properly signal a turn.
In discussing the purposefulness of an unlawful seizure, the Brown court stated that “[t]he arrest, both in design and in execution, was investigatory. The detectives embarked upon this expedition for evidence in the hope that something might turn up.” Brown,
“To hold otherwise would create a rule that potentially allows for a new form of police investigation, whereby an officer patrolling a high crime area may, without consequence, illegally stop a group of residents where he has a ‘police hunch’ that the residents may: 1) have outstanding warrants; оr 2) be engaged in some activity that does not rise to a level of reasonable suspicion. Despite a lack of reasonable suspicion, a well-established constitutional requirement, the officer may then seize those individuals, ask for their identifying information (which the individuals will feel coerced into giving as they will have been seized and will not feel free to leave or end the encounter), run their names through a warrant database, and then proceed to arrest and search those individuals for whom a warrant appears. Under this scenario, an officer need no longer have reasonable suspicion [or] probable cause, the very crux of our Fourth Amendment jurisprudence.”
Gross,
The federal exclusionary rule exists to deter police misconduct. The police misconduct in this case produced exactly the result that the officers hoped to obtain when they engaged in it. The per se approach applied by the majority does not accurately reflect the correct approach to analyzing suppression under the federal exclusionary rule. The 45-year-old case of Dempster did not address the situation that we are confronted with here, and thus, does not compel the result reached by the majority. Our decision in Snyder
I respectfully dissent.
The other was Nardone v. United States, a case which did not involve the Fourth Amendment.
In considering the purpose and flagrancy of police misconduct, I think it of no importance that the stop was pretextual, i.e., that the officers were motivated to conduct the stop for reasons other than the improper signaling of a turn. The Fourth Amendment renders an officer’s subjective intentions irrelevant, so long as the stop is supported by objective probable cause or reasonable suspicion. Whren v. United States,