State v. BenningState v. Benning
Thе state appeals a pretrial order granting defendant’s motion to suppress evidence and dismissing a one-count indictment against defendant for possession of methamphetamine. ORS 138.060(l)(c). The evidence was obtained after the police observed defendant and a companion, Jacobs, “bent over a bag” in front of a restaurant; initiated contact with them; implicitly denied defendant’s request to go to the bathroom; asked defendant and Jacobs for identification; said “hang on there, or hang on a second”; ran a records check that revealed an outstanding warrant for defendant’s arrest; arrested defendant on the warrant; and searched defendant incident to that arrest. We conclude that the evidence was obtained after defendant was unlawfully seized in violation of his rights under Article I, section 9, of the Oregon Constitution, and that the state failed to prove attenuation — that is, the state failed to prove, under the totality of the circumstances, that the violation of defendant’s rights under Article I, section 9, had such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence. Accordingly, we affirm.
We are bound by the trial court’s findings of fact as long as there is constitutionally sufficient evidence to support them. State v. Ehly,
Officer Lemons, who worked for the East Precinct street crimes unit, was on daytime patrol in Portland when he saw defendant and Jacobs, “bent over a bag” in front of a restaurant. Lemons was “not real sure what was going on there,” so he “[c]ircled back around” in his patrol vehicle, “intend [ing] to contact the two.”
As soon as defendant and Jacobs saw Lemons circling back around, “thеy started walking away.” In Lemons’s experience, when people see the police and “avoid police contact, something is * * * usually up.” Thus, Lemons’s suspicion was raised — he wondered, “why leave the area just because of me?” However, at that point, Lemons did not believe that he had “reasonable suspicion to actually stop [defendant] for a crime.” In fact, Lemons “definitely [did not] think [he had] a crime.” Rather, he had a “hunch,” and he wanted “to know who these folks [were] and why they [were] wanting to leave the area because [Lemons was] there.”
Lemons parked his patrol vehicle, got out of the vehicle, and began walking toward defendant and Jacobs. During his approach, Lemons said something to the effect of, “‘Hey, what’s going on, guys?”’ As Lemons continued to walk toward defendant and Jacobs, defendant and Jacobs came back toward Lemons. Lemons then asked the men “what they were up to” and “asked what was in the bag.” The men responded that the bag contained cans, and, although Lemons did not open the bag, he had “no reason to doubt” that the bag contained cans. Defendant then told Lemons that “he ha[d] to go to the bathroom.”
Lemons did not directly respond to defendant’s request to go to the bathroom; instead, Lemons asked defendant and Jacobs for identification. Defendant, who did not have an identification card, told Lemons his name and date of birth, and Lemons apparently wrote that information down in a notebook. Jacobs handed Lemons an identification card, which Lemons retained. Lemons then told defendant and Jacobs to “hang on there, or hang on a second.” Lemons returned to his patrol vehicle to run a records check. While Lemons was at his patrol vehicle
The records check revealed an outstanding warrant for defendant’s arrest. Lemons did nоt know about the warrant before he ran the records check, and he did not later recall what the warrant was for. If Lemons had not discovered the outstanding warrant, he would have “let [defendant] go on his way” — that is, he “would have let him know that he was free to leave” because he “had no reason to arrest him.” Instead, Slyder informed defendant that he would be taken into custody.
Defendant was asked whether there was anything on him that Lemons was going to find, and defendant said that he “might have” marijuana or “crystal” on him. Lemons advised defendant of his Miranda rights, searched a “coin pocket” on defendant’s jeans, and found a folded piece of paper containing a substance that later tested positive for methamphetamine. Defendant was subsequently charged with unlawful possession of methamphetamine, in violation of ORS 475.894(1).
As the case proceeded to trial, defendant moved to suppress the “evidence discovered subsequent to the illegal detention [,]” arguing that the evidence was obtained in violation of his rights under Article I, section 9, and the Fourth Amendment to the United States Constitution. Specifically, defendant argued that he was unlawfully seized when Lemons conducted a records check on him and that the discovery of the outstanding warrant did not “ ‘purge the taint’ ” of the unlawful seizure.
At a hearing on the matter, the state responded that defendant was not seized and alternatively argued that, even if defendant was seized, suppression was not warranted because the discovery of the outstanding warrant “create [d] an attenuation.” To support its attenuation argument, the state relied upon State v. Dempster,
Relating to seizure, the trial court ruled:
“[U]nder these facts and circumstances, the officer did not have a reasonable suspicion or probable cause. And I would find that walking up to these gentlemen, making this inquiry, taking identification, going back to the car leads me to a reasonable assumption with him saying hang on there, or hang on a second that he is being stopped and he is not free to leave.
“There’s other officers showing up. No reasonable person, I would find under the totality of circumstances, would feel free to leave. And, in fact, I don’t think he was free to leave because had he started walking off, I’ll bet you the officer would have grabbed him.
“So I’m comfortable this was an unlawful stop by the police officers and he was stopped.”
The trial court then reviewed both state and federal case law, commenting on both state and federal constitutional theories of suppression. The court stated:
“Nothing stops a police officer from having contact with citizens and talking to them and asking questions. It only becomes an issue when the police use some illegality by requiring a person to do something that they have a lawful right not to do. And then when they intend to use that evidence as — as a result of exploitation.
“So the question for me is do I think that the Courts are moving towards excluding tainted evidence or moving towards allowing more tainted evidence in so that people that have warrants out or commit a crime should be punished for what they did?”
After noting that the “trend of the law is moving towards excluding this evidence [,]” the court ruled:
“And I would find that, based on the evidence and circumstances that I’ve heard, that the State has not met its burden and convinced me that this evidence is not tainted and I think because of theillegality, they exploited an illegal stop of the defendant and I am going to suppress the evidence.”
The state now appeals.
On appeal, the state essentially reprises its arguments under both Article I, section 9, and the Fourth Amendment. Thus, we must first determine whether defendant was seized in violation of his constitutional rights. If we conclude that a constitutional violation occurred, we must then consider whether the state proved attenuation — that is, whether the state proved that the violation of defendant’s rights had such a tenuous factual link to the disputed еvidence that the unlawful police conduct cannot be properly viewed as the source of that evidence. We consider questions of state law first. See State v. Kennedy,
Article I, section 9, provides that the people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]” When construing Article I, section 9, the Oregon Supreme Court “has identified three categories of encounters along the continuum of meetings between law enforcement officers and citizens!.]” State v. Holmes,
“(1) a mere conversation or noncoercive encounter that involves no restraint of liberty and, therefore, is not a seizure that requires any justification; (2) a stop, which is a type of seizure that occurs when an officer temporarily restrains a person’s liberty or freedom of movement, that must be justified by reasonable suspicion of criminal activity; and (3) an arrest, which also is a type of seizure, that must be justified by probable cause to believe that the person arrested has committed a crime.”
State v. Toevs,
The Oregon Supreme Court has also acknowledged that, “in practice, the line between a mere encounter and something that rises to the level of a seizure does not lend itself to easy demarcation.” State v. Backstrand,
On the other hand, a seizure occurs only if the officer’s conduct would be “reasonably perceived as coercive in the sense that it would cause [a] citizen to reasonably believe that the officer is intentionally restraining the citizen’s liberty or freedom of movement in a significant way — that is, in a way that exceeds the bounds of ordinary social encounters between private citizens.” Id. In a “show of authority” that gives rise to a seizure in the constitutional sense, a person must have “a reasonable perception that [the] officer is exercising his or her official authority to restrain” — that is, a seizure occurs when an officer conveys, either explicitly or implicitly, “to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs.” Id. at 401 (internal quotation marks omitted). The test is an objectivе one, and is determined under the totality of the circumstances: “Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.” Id. at 399.
In State v. Hall,
The Oregon Supreme Court determined that the meeting at issue in Hall began as a noncoercive encounter between the defendant and the officer but then evolved into a seizure. Id. at 19. As the court explained, the officer’s “initial actions of stopping his vehicle next to defendant and then gesturing for defendant to approach him did not intrude upon defendant’s liberty of movement, because, even if [the officer] inconvenienced defendant, his actions did not constitute a show of authority involving conduct significantly beyond that accepted in ordinary social intercourse.” Id. (internal quotation marks omitted). But the court concluded that “the consensual nature of that encounter dissipated” when the officer took the defendant’s identification card and radioed for a warrant check. Id. The court acknowledged that the officer promрtly returned the defendant’s identification card, but maintained that, at that point, the defendant was aware that he was the subject of a pending warrant check and, because of that fact, it was “difficult to posit” that a reasonable person would have felt free to leave “when that person is the investigatory subject of a pending warrant check.” Id.
The court in Hall further observed that the officer “did nothing to dispel what would have been an objectively reasonable belief that defendant was restrained from leaving until [the officer] had received the results of the warrant check.” Id. When later commenting on its seizure analysis in Hall, the court stated that “none of the officer’s actions (hailing defendant, asking for identification, checking that identification, asking about weapons and drugs, asking for consent) individually was sufficient to amount to a stop. In combination, however, *** those actions crossed over the line and transformed what began as a mere encounter into a stop.” State v. Highley,
In Backstrand, a deputy was monitoring a “ ‘triple-X’ ” store that sold adult sexual materials while the defendant and his girlfriend were inside shopping.
The Oregon Supreme Court determined that the encounter at issue in Backstrand was not a seizure. Id. at 413-16. Regarding a request for identification, the court stated that “[a]sking a citizen to identify himself or herself and to show police a formal piece of identification is a form of cooperation and involves the kind of information that, as a general proposition, police are free to request.” Id. at 412. However, the court noted that “when the
Applying those principles to the circumstances presented in Backstrand, the court stated that asking a person his or her age in an age-restricted store “would not cause a reasonable person to believe that the officer had significantly restricted his or her liberty.” Id. at 414 (emphasis in original). The court then stated that “there was nothing distinctive about the content of [the deputy’s] questions” or the manner of his request that caused his mere inquiries to amount to a seizure. Id. at 415-16. The court further stated that there was nothing in the record “to suggest that [the deputy] was overbearing, intimidating, or coercive in his demeanor or behavior” and that the deputy “merely asked for, and defendant complied with, his request for identification.” Id. at 416.
With the circumstances of those cases in mind, we return to the facts of this case. Under the principles articulated in Backstrand, the mere fact that Lemons requested defendant’s identification does not, by itself, indicate that defendant was seized, nor does the fact that Lemons ran a records check. However, that conclusion does not end our analysis; under Backstrand, we must analyze whether “the content of the questions, the manner of asking them, or other actions that police [took] (along with the circumstances in which they [took] them) would convey to a reasonable person that the police [were] exercising their authority to coercively detain the citizen [.]” Id. at 412.
When analyzing the circumstances in this case, we first note that Lemons’s initial conduct — approaching defendant and Jacobs while saying something to the effect of, “Hey, what’s going on, guys?” and then asking “what they were up to” and “what was in the bag” — did not effectuate a seizure because, even if Lemons inconvenienced defendant by changing his direction of travel, Lemons’s initial conduct would not cause a citizen to reasonably believe that Lemons was exercising his authority to coercively detain the citizen or intentionally restrain the citizen’s liberty or freedom of movement in a significant way — that is, in a way that exceeded the bounds of ordinary social encounters between private citizens. See Hall,
However, under all the circumstances surrounding the encounter as it developed in this case, we conclude that defendant was unlawfully seized by the time that Lemons told defendant and Jacobs to “hаng on there, or hang on a second.” Arguably, the trial court reasonably could infer that the encounter had lost its consensual nature even before then — that is, when Lemons requested defendant’s identification. That is so because, by that point, defendant had sent Lemons a signal that he did not wish to have a police encounter by walking away from Lemons; returned and complied with Lemons’s request for information about contents of the bag; and then sent Lemons a more explicit signal that he wanted to leave by stating, directly, that he needed to go to the bathroom. Because Lemons did not address defendant’s
We need not determine whether defendant was unlawfully seized when Lemons requested defendant’s identification, however, because — even if he was not — the trial court reasonably could infer that the encounter evolved into a seizure when Lemons took additional actions that culminated in a communication that the trial court described as “hang on there, or hang on a second.” As we understand the trial court’s finding, it is that Lemons conveyed, through his words and actions, that defendant and Jacobs should remain until Lemons could return after checking the identification. By that point in time, the police conduct (approaching defendant and Jacobs while they were walking away from Lemons in an attempt to avoid police contact; asking for information about the contents of the bag; after receiving information about the contents of the bag, implicitly denying defendant’s request to go to the bathroom; asking defendant for identification after defendant had communicated a need to go to the bathroom; recording defendant’s identifying information in a notebook and retaining a companion’s identification card; telling defendant and Jacobs to “hang on there, or hang on a second”; and running a records check while as many as two additional patrol vehicles and four additional police officers were arriving on the scene) would have communicated to a reasonable person that the person was not free to terminate the encounter or decline when Lemons communicated that the person should “hang on there, or hang on a second.” In other words, we conclude that a reasonable person in defendant’s position would not feel free to leave and that defendant was seized in violation of his rights under Article I, section 9, because the actions of the police, when viewed in light of the trial court’s findings, “crossed over the line and transformed what began as a mere encounter into a stop.” Highley,
When the state has obtained evidence following the violation of a defendant’s rights under Article I, section 9, we presume “that the evidеnce was tainted by the violation and must be suppressed.” State v. Jackson,
At the suppression hearing, when arguing that the evidence need not be suppressed, the state relied upon the per se rule of attenuation set forth in Dempster,
However, after the trial court granted defendant’s motion to suppress in this case, the Oregon Supreme Court disavowed its holding in Dempster, stating that “Dempster’s per se rule is incоnsistent with the subsequent development of the Fourth Amendment attenuation exception set out in Brown v. Illinois,
To resolve this case under Article I, section 9, we must first decide whether our holding in Snyder can still be considered good law. In Snyder, the defendant appealed the trial court’s denial of his motion to suppress evidence that was obtained after the defendant was taken to the police station and arrested on an outstanding warrant.
“Under State v. Dempster,248 Or 404 ,434 P2d 746 (1967), [the officer’s] discovery of the arrest warrant and his arrest of defendant under the warrant’s authority purged the evidence from the taint of 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.’”
Id. at 364 (quoting Dempster,
Our review of Snyder demonstrates that in Snyder we did not consider or evaluate Dempster’s animating principles, and we did not separately analyze whether Dempster’s per se attenuation rule should be applied in the context of Article I, section 9. Rаther, we merely cited Dempster and, without stating whether we were conducting a state or federal constitutional analysis, agreed with the trial court’s conclusion, under Dempster, that the discovery of an outstanding “warrant purged the evidence of taint from prior illegality, if any.” Id. at 363-64. Accordingly, Snyder does not rely on its own analysis, but relies solely on Dempster, which has now been disavowed. Because our holding in Snyder cannot stand without Dempster, its decisional precedent, we conclude that our holding in Snyder can no longer be considered good law.
Having concluded that our holding in Snyder can no longer be considered good law, we must now address the parties’ arguments as to whether it is appropriate to apply Bailey or Unger in the context of Article I,
First, as the Oregon Supreme Court has explained, “the overarching inquiry” in Unger was “whether the evidence that the state [sought] to introduce must be suppressed because that evidence was obtained in violation of the defendant’s constitutional rights.” Id. at 85. Thus, although Unger involved the question whether evidence must be suppressed following a defendant’s consent to search, rather than the question whether evidence must be suppressed following the discovery and execution of an outstanding arrest warrant, the overarching inquiry in Unger is the same as the overarching inquiry in this case.
Second, the totality of the circumstances test, as expressed in Hall, has long served as the legal foundation for determining whether the discovery of an outstanding warrant operates to attenuate the taint of the prior illegality under Article I, section 9, and the Dempster!Snyder rule has been applied within its framework. Allen is exemplary. In Allen, “[t]he state appeal [ed] the trial court’s pretrial order under Article I, section 9, * * * granting defendant’s motion to suppress all evidence obtained by the police resulting from a contact with defendant that ended with his arrest on outstanding arrest warrants, including items seized after the search of his jacket.”
Although the test that we apply in this case must be modified to reflect recent changes in the law, including Unger’s partial disavowal and modification of Hall and our conclusion that our holding in Snyder can no longer be considered good law, as well as the specific context of this case, we see no reason to deviate from our established analytical framework, which was developed under Article I, section 9, and designed to serve its
We thus apply the exploitation analysis portion of the Unger test to determine whether the state proved, under the totality of the circumstances, that the violation of defendant’s rights under Article I, section 9, had such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence.
We first consider temporal proximity. See id. at 86 (identifying temporal proximity as a consideration in the exploitation analysis). In this case, although the state presented no direct evidence as to how much time elapsed between the unlawful seizure of defendant and the discovery of the challenged evidence, it appears that those two events occurred in close proximity to one another. After Lemons unlawfully conveyed, through his words and actions, that defendant and Jacobs should remain until Lemons could return, Lemons walked back to his patrol vehicle, ran the records check, and returned with Slyder, who placed defendant under arrest. Thus, the first consideration — temporal proximity — suggests that there was no extended temporal break that may have served to attenuate the factual link between the unlawful seizure and the discovery of the evidence, and the first consideration weighs in favor of suppression. See State v. Clemons,
We next consider the existence of any mitigating circumstances. See Unger,
We next consider the existence of any intervening circumstances. See Unger,
When considering how to view the strength of the causal connection between an unlawful seizure and the challenged evidence in the context of Article I, section 9, we apply the reasoning of the Oregon Supreme Court, in the context of the Fourth Amendment, that “the weight assigned to the discovery of the arrest warrant depends on the degree to which it was the direct consequence or objective of the unlawful detention.” Bailey,
We next consider the purpose and flagrancy of the unlawful police conduct. See Unger,
In this case, the trial court made no express factual finding as to the purpose of the unlawful police conduct. However, while the prosecutor was arguing that defendant had not been seized, the trial court and the prosecutor engaged in the following exchange:
“[PROSECUTOR]: And then the next question is whether or not the officer’s request that he stay there, would that convert this to a stop. And I don’t believe that, as the officer has termed this, that would amount to a significant enough show of authority that a reasonable person would feel that they were stopped.
“THE COURT: What other purpose would there be to
getting his name and address and going back to his car? If you can think of one, I’d appreciate it.
“ [PROSECUTOR]: I don’t know — I think I’d be speculating. I don’t know. I’d have to ask the officer. We could call him back if you’d like to hear more about that issue.
“THE COURT: No, no. I was just thinking maybe you thought there was another reason he might do that. The only reason I can think of is that he was going to run a records check and that’s what thedefendant probably thought. I’m just assuming that.”
(Emphases added.) Thus, the trial court inferred that the purpose of the unlawful police conduct was to run a records check — a process that is, by nature, investigatory. That inference is reasonable in this case, because Lemons told defendant and Jacobs to “hang on there, or hang on a second,” conveying, through his words and actions, that defendant and Jacobs should remain until Lemons could return after checking the identification. We therefore conclude that the purpose of the unlawful seizure was investigatory — that is, it was a “‘shot in the dark’” to see what might turn up. See State v. Musser,
Further, Lemons’s unlawful seizure of defendant may be characterized as flagrant, in the sense that it was a fishing expedition that occurred after defendant had communicated a need to go to the bathroom and while Lemons felt, as he later affirmed, that there was no basis “to investigate an actual crime.” Lemons’s conduct here is analogous to the conduct of the officer in Clemons, who “was engaged in a purposeful and flagrant fishing expedition” in violation of the defendant’s rights under the Fourth Amendment, when he unlawfully extended a traffic stop without probable cause or reasonable suspicion to believe that a crime had been committed.
Finally, we consider the nature, extent, and severity of the constitutional violation. See Unger,
“In both Unger and Lorenzo, the court concluded that the police misconduct was limited rather than severe. In Unger, four officers, who were investigating a complaint about drug activity, unlawfully trespassed on the defendant’s property when they followed a path around to the defendant’s back door, where the defendant eventually consented to their entry. The court reasoned that, although the officers had conducted an unlawful ‘search’ to reach the back door, they had interacted with the defendant ‘just as they would have at the front door,’ their conduct ‘did not rise to the level of an unlawful arrest or stop,’ and they ‘did not unlawfully enter [the] defendant’s home or ignore any gаtes or no trespassing signs.’ Unger,356 Or at 89, 92 . In Lorenzo, an officer, who was concerned for the defendant’s safety, opened the defendant’s apartment door and reached in to knock on a bedroom door in order to contact the defendant, who later consented to the officer’s entry. The officer’s unlawful search, the court explained, ‘was limited in time and severity’ — it ended before the officer requested consent to enter the apartment — and ‘did not demonstrate any effort to control or direct [the] defendant.’ Lorenzo,356 Or at 143-44 .
“The court contrasted those minimal intrusions with more severe police misconduct in Musser. There, an officer saw the defendant walking at night in a high-crime area behind a shopping center, and the officer, without reasonable suspicion, called out to her, stopped her, and later requested to search her purse during the stop.The court observed that, in Musser, ‘the police order to [the] defendant to return and talk to the police, rather than to continue in the direction she was heading, clearly indicаted to [the] defendant that she had no choice but to respond to the order, bringing her significantly under the control of the police.’ Musser, 356 Or at 157 . That unlawful stop ‘was a more severe violation of [the] defendant’s rights than the violation in Unger, which was a daytime trespass onto the defendant’s property that allowed the police to contact the defendant at his back door, or the similar conduct in Lorenzo, where the officer reached into the defendant’s apartment to knock on the defendant’s bedroom door in an effort to contact him because of concern for his safety.’ Id. at 156.”
Based on our analysis of Unger, Lorenzo, and Musser in Kuschnick, we believe that the unlawful police conduct in this case is more accurately characterized as intrusive or severe, rather than limited. A court, when analyzing the nature of unlawful police conduct preceding a defendant’s consent to search, may consider whether that conduct was merely incidental to the later consent, as in Unger, where the unlawful trespass to the defendant’s back door “allowed the police to interact with the defendant and request consent in the same way they would have if they acted lawfully by using the front door[.]” Id. at 215. Furthermore, a court may consider whether the unlawful police conduct may have occurred because the officer “was concerned for the defendant’s safety”; whether that conduct “did not demonstrate any effort to control or direct [the] defendant”; and whether that conduct had ended before the request for consent. Id. at 214 (analyzing those considerations when discussing the nature, extent, and severity of the constitutional violation in Lorenzo (internal quotation marks omitted)).
None of those considerations are present in this case. First, the unlawful police conduct was not incidental to the subsequent discovery and execution of the warrant, but rather the cause of it. Further, there is no evidence that Lemons or another officer was concerned for defendant’s safety; the unlawful police conduct demonstrated an effort to exercise control over defendаnt’s physical person by directing defendant’s movements; and that conduct had not ended by the time that the evidence was discovered. Indeed, the police control over defendant was increasing as the encounter developed; as the trial court found, other officers were “showing up” as Lemons was running the records check— that is, as many as two additional patrol vehicles and four additional police officers were arriving on the scene. Rather, the unlawful police conduct in this case is more akin to the more severe conduct in Musser, where the officers’ actions reasonably conveyed to the defendant “that she had no choice but to respond to the order, bringing her significantly under the control of the police.” Musser,
To conclude our analysis, we briefly review the totality of the circumstances presented by this case. As noted, Lemons approached defendant and Jacobs after they had started walking away from Lemons in an apparent attempt to “avoid police contact.” After defendant and Jacobs returned to answer Lemons’s question about the contents of the. bag, defendant told Lemons that “he ha[d] to go to the bathroom.” Lemons did not respond to defendant’s request to go to the bathroom; rather, he asked defendant and Jacobs for identification, which they provided. Lemons then told defendant and Jacobs to “hang on there, or hang on a second,” conveying, through his words and actions, that defendant and Jacobs should remain until Lemons could return after checking the identification. While Lemons was running the records check that revealed the outstanding warrant, as many as two additional patrol vehicles and four additional police officers were arriving on the scene. Defendant was then arrested on the warrant, and the search incident to arrest yielded evidence of methamphetamine.
When analyzing those circumstances, we note that Lemons unlawfully seized defendant
Based on the foregoing, we conclude that the state failed to prove attenuation — that is, the state failed to prove, under the totality of the circumstances, that the violation of defendant’s rights under Article I, section 9, had such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence. Rather, the totality of the circumstances demonstrates that the police “‘exploited’ or ‘took advantage of or ‘traded on’ their unlawful conduct” to obtain the challenged evidence. Unger,
Affirmed.
Notes
In Unger, the Oregon Supreme Court explained that, when unlawful police conduct “preceded a consent to search,” a court’s “inquiry has two prongs.”
During oral argument, the state noted that Lemons had already obtained defendant’s identifying information by the time that he told defendant and Jacobs to “hang on there, or hang on a second,” and suggested that Lemons could have discovered the warrant even if defendant had walked away at that point. However, the state did not argue to the trial court that, because Lemons obtained defendant’s identification part way through the encounter that became a seizure, the court should consider only the circumstances that existed when Lemons obtained defendant’s identification to evaluate whether the discovery of the relevant evidence — the methamphetamine in defendant’s pocket — was attenuated from the unlawful seizure. Accordingly, any such argument is unpreserved, and we do not address that possibility.