STATE OF OREGON, Petitioner on Review, v. DAVID CLYDE HALL, Respondent on Review.
(CC 9701546CR; CA A109813; SC S49825)
Supreme Court of Oregon
July 15, 2005
115 P.3d 908 | 339 Or. 7
Argued and submitted November 4, 2003, decision of Court of Appeals affirmed; judgment of circuit court reversed July 15, 2005
Before Carson, Chief Justice, and Gillette, Durham, Riggs, De Muniz, and Balmer, Justices.**
CARSON, C. J.
Durham, J., concurred in part and dissented in part, and filed an opinion in which Gillette, J., joined.
In this criminal case, we decide two questions. First, under the circumstances at issue here, did the police encounter with defendant constitute an unlawful “stop” under
The state charged defendant with possession of amphetamine,
Our review of the trial court‘s denial of defendant‘s pretrial suppression motion is limited to issues of law. We are bound by the trial court‘s findings of historical fact if constitutionally sufficient evidence in the record supports those findings. State v. Boone, 327 Or 307, 309, 959 P2d 76 (1998). If the trial court did not make express findings respecting all pertinent historical facts, and the record contains conflicting evidence, then we presume that the trial court found facts that were consistent with its ultimate conclusion. State v. Stevens, 311 Or 119, 126-27, 806 P2d 92 (1991). With those precepts in mind, we take the following facts from the trial court‘s written findings and from the record.
At approximately 4:00 p.m. on January 8, 1997, Klamath Falls Police Officer Deese saw defendant walking along Washington Street near Tenth Street in Klamath Falls. Deese was in uniform and was driving a marked police vehicle. As Deese drove past defendant, he noticed defendant twice glance towards him and then quickly look away. After he had passed defendant, Deese observed in his rear-view mirror that defendant had turned around to look at him several more times.
Based upon those observations, Deese turned his vehicle around and drove back towards defendant. Without activating his overhead lights or blocking defendant‘s way, Deese stopped his vehicle next to defendant and then motioned with two fingers for defendant to approach him. When defendant neared, Deese got out of his vehicle and asked defendant if he had any personal identification. Defendant handed Deese an identification card, which Deese used to radio the police dispatch for a warrant check relating to defendant.
After he had radioed the police dispatch, but before he had received back any information, Deese returned the identification card to defendant. Deese noticed that defendant appeared to be carrying something inside his jacket and asked defendant if he was carrying any weapons, knives, or illegal drugs. Defendant replied that he was not. Deese asked defendant if he minded if Deese searched him, and defendant
Before trial, relying upon
Defendant appealed. Before the Court of Appeals, defendant did not challenge the trial court‘s ruling that his consent to the search had been voluntary. Instead, he argued only that the state‘s evidence was inadmissible because it had derived from an unlawful police stop.5
Sitting en banc, a majority of the Court of Appeals reversed. Contrary to the trial court, the Court of Appeals unanimously concluded that Deese unlawfully had stopped defendant without reasonable suspicion of criminal activity. Hall, 183 Or App at 56, 62. In considering the effect of that illegality upon the admissibility of the evidence from the consent search that followed, that court also unanimously agreed that, notwithstanding the voluntariness of defendant‘s consent,
According to the majority opinion, whether evidence from a consent search derives from exploitation of prior unlawful police conduct6 depends upon whether the police gained information from that illegality that provided the impetus for the police to seek the defendant‘s consent. Id. at 58 n 8, 59. Specifically, reaffirming the test articulated in
The dissent disagreed, taking issue both with the majority opinion‘s explanation of the nature of the court‘s inquiry in determining “exploitation” and with its application of that analysis to the facts of this case. In the dissent‘s view, whether evidence derives from police exploitation of a prior illegality is a fact-specific inquiry that depends upon the nature of the causal connection between the unlawful police conduct and the evidence sought to be suppressed. Id. at 67 (Deits, C. J., dissenting). By contrast to the majority opinion‘s focus upon whether the illegality affected the officer‘s actions, the dissent asserted that an exploitation analysis concerns whether a prior illegality affected the defendant‘s decision to consent. Id. at 72 (Deits, C. J., dissenting). Although stressing that no “bright-line” rule exists, the dissent identified a number of factors that it considered relevant to that determination, including (1) a “but-for” causal connection between the unlawful police conduct and the evidence sought to be suppressed; (2) whether the police had obtained information only by virtue of unlawful conduct, and whether
The state petitioned this court for review, and we allowed that petition. On review, the state first argues that Deese‘s encounter with defendant did not amount to an unlawful stop. Secondly, the state argues that, even if Deese unlawfully had stopped defendant, the challenged evidence was not subject to suppression under
For the reasons that follow, we conclude that Deese‘s encounter with defendant constituted an unlawful stop under
As noted above, defendant‘s pretrial suppression motion relied upon
A. Applicable Oregon Law
In Oregon, both statutory and constitutional law limit the authority of police to detain citizens.
Unless a defendant‘s constitutional claims could result in more complete relief, this court generally begins its analysis by first considering a defendant‘s statutory claims. See State v. Harberts, 331 Or 72, 81, 11 P3d 641 (2000) (so stating); see also, e.g., State v. Jacobus, 318 Or 234, 864 P2d 861 (1993) (considering whether police encounter was lawful under statutory law before considering state constitutional claims). Previously, as with constitutional limits on police authority, this court has given effect to statutes defining police authority to seize or search a person by denying the state the use of any evidence that it obtained in violation of such provisions. See State v. Davis, 295 Or 227, 236-37, 666 P2d 802 (1983) (so stating); see also, e.g., State v. Toevs, 327 Or 525, 964 P2d 1007 (1998) (suppressing evidence obtained in violation of
B. Lawfulness of Police Encounter with Defendant under Oregon Law
Because defendant challenged the admissibility of the state‘s evidence upon the ground that it derived from an unlawful police stop, we begin our analysis by considering the lawfulness of Deese‘s encounter with defendant. This court has identified three general categories of encounters between police officers and citizens. See State v. Holmes, 311 Or 400, 407, 813 P2d 28 (1991) (so stating). The first category, “mere conversation” encounters, encompasses consensual interactions between police officers and citizens that
As noted above, 339 Or at 11-12 n 4, the trial court concluded that Deese‘s encounter with defendant had been a consensual interaction that had not restrained defendant‘s liberty in a manner that implicated
In Holmes, 311 Or at 409-10, this court held that a “seizure” of a person under
This court‘s prior case law provides useful guidance as to whether Deese‘s encounter with defendant constituted a stop. In State v. Warner, 284 Or 147, 585 P2d 681 (1978), a police officer approached the defendant as he was leaving a tavern and asked the defendant if he would return inside. Id. at 150-51. The defendant complied with the officer‘s request, and, once inside the tavern, the officer asked the defendant to place his identification card on a table. Id. at 151-52. After the defendant did so, the officer explained to the defendant that the officer was investigating a robbery, and he advised the defendant that “[the defendant] would be on [his] way” as soon as the officer was satisfied that the defendant had no involvement in that crime. Id. at 152. On review, this court held that, at the moment that the officer told the defendant to place his identification card on the table and advised the defendant that he was the subject of a criminal investigation, the officer had seized the defendant by a show of authority for purposes of
In State v. Painter, 296 Or 422, 676 P2d 309 (1984), a police officer approached the defendant on the street and requested to see the defendant‘s identification. The defendant responded to the officer‘s request by handing the officer both an expired driver license and several credit cards. While still retaining those items, the officer ran a warrant check and questioned the defendant about the location of his vehicle. Id. at 424. On review, this court held that the officer had
Under the facts of this case, we similarly conclude that Deese‘s encounter with defendant here constituted a “stop” under
Under those circumstances, we conclude that the trial court erred by ruling that Deese‘s encounter with defendant did not restrain defendant‘s liberty so as to constitute a “stop” under
Having concluded that Deese‘s encounter with defendant was unlawful, we now must consider the effect of that illegality upon the admissibility of the state‘s evidence from the consent search that followed. In doing so, we first clarify the two related, but distinct, ways that a violation of a defendant‘s rights under
First, illegal police conduct violating a defendant‘s rights under
Although unlawful police conduct does not alter the state‘s burden in establishing the voluntariness of a defendant‘s consent, the effect of that unlawful conduct upon the
In addition to affecting the voluntariness of a defendant‘s consent, this court also has recognized a related, but independent, reason why police conduct violating a defendant‘s rights under
The state contends that, in the context of a consent search, an “exploitation” inquiry serves only two functions—that is, to ensure that a defendant‘s consent is truly voluntary and to deter unlawful police conduct. Based upon that premise, the state asserts that, because the exclusionary rule for violations of
To explain our disagreement with the state‘s contention that an “exploitation” inquiry in the context of an otherwise valid consent search is incompatible with the Oregon exclusionary rule, we begin by describing the objective—and consequently also the operation—of that rule. See State ex rel Juv. Dept. v. Rogers, 314 Or 114, 118-19, 836 P2d 127 (1992) (applicability of Oregon exclusionary rule determined in light of reasons for that rule). In doing so, we think it helpful first to contrast that rule with the Fourth Amendment exclusionary rule.13
Although its earlier decisions sometimes suggested other considerations at work, the United States Supreme Court for many years consistently has identified deterrence of unlawful police conduct as the primary purpose underlying the exclusionary rule for violations of the Fourth Amendment. See United States v. Leon, 468 US 897, 905-06, 104 S Ct 3405, 82 L Ed 2d 677 (1984) (identifying deterrence function as basis of Fourth Amendment exclusionary rule, but acknowledging that Court‘s prior decisions sometimes implied that exclusionary rule was necessary corollary of Fourth Amendment). In so holding, the Supreme Court has characterized the Fourth Amendment exclusionary rule as a judicially created remedial device that applies to only those circumstances in which its remedial objectives most efficaciously will be served. See United States v. Calandra, 414 US 338, 348, 94 S Ct 613, 38 L Ed 2d 561 (1974) (so stating). Based upon that theory, the Supreme Court has defined the breadth of the Fourth Amendment exclusionary rule by assessing whether the deterrence benefits in applying that rule outweigh the costs of excluding otherwise admissible evidence. See Leon, 468 US at 909-10 (noting that analytical approach).
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,” Davis, 295 Or at 234, this court has rejected the notion that evidence is rendered inadmissible under
In each of those above-described circumstances, the admission of the challenged evidence does not offend
As noted above, in the present case, the state contends that a defendant‘s voluntary act of consenting necessarily severs the causal link between evidence that the state obtains from a search based upon that consent and any antecedent violation of the defendant‘s rights under
On the surface, the state finds some support for that position in this court‘s decision in State v. Quinn, 290 Or 383, 623 P2d 630 (1981), as well as its decisions in Kennedy, 290 Or 493, and Rodriguez, 317 Or 27. In each of those cases, this court concluded that the preceding violation of the defendant‘s rights under
In Quinn, 290 Or 383, the police discovered evidence that implicated the defendant in a murder solely as the result of an unlawful search of the defendant‘s vehicle. Id. at 387. Without informing the defendant of that discovery, the police sought and obtained the defendant‘s consent to search the vehicle a second time. Id. at 388. The police seized the previously discovered evidence pursuant to that second search, and, after being confronted with that evidence, the defendant eventually confessed to the murder. Id. at 388-89.
On review before this court, the defendant challenged the admissibility of evidence from the consent search under
In his concurring opinion in Weaver, 319 Or at 222-24, Justice Gillette cautioned that this court‘s conclusion in Quinn “approach[ed] being (and it may in fact be) unsupportable.” Specifically, in light of the fact that the police had sought the defendant‘s consent in Quinn only because of the discovery of inculpatory evidence during the preceding unlawful search, Justice Gillette opined that “[a] more direct exploitation of illegal government activity would be difficult to posit.” Id. at 224. For the reasons explained below, we agree with that view and take this opportunity to overrule expressly that part of this court‘s decision in Quinn.
This court repeatedly has recognized that, even when a defendant‘s consent is voluntary—that is, when the defendant‘s free will has not been overcome by police coercion—that consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of the defendant‘s rights under
Although a showing of voluntariness alone is insufficient to establish the admissibility of evidence from a consent search following a violation of the defendant‘s rights under
This court‘s decision in State v. Carston, 323 Or 75, 913 P2d 709 (1996), illustrates the application of that consideration.17 In Carston, an informant had advised the police about a scheduled drug sale after he illegally intercepted a cordless telephone conversation between the codefendants. Id. at 78. The informant reported that a man had made arrangements to buy $300 of “really good stuff” and had informed the seller that he would be driving a four-door Suzuki. Id. Based upon that information, the police went to the residence where the drug transaction was scheduled to take place and then followed a four-door Suzuki as it drove away from that residence. Id. The police subsequently stopped that vehicle for a traffic violation and, during that stop, asked one of the defendants for his consent to search the vehicle. Id. at 79. The defendant granted his consent, and the police discovered drugs and drug paraphernalia in a closed container in the vehicle. Id. Based in part upon that evidence, the state charged the defendants with manufacture and delivery of a controlled substance,
Before trial, among other things, the defendants moved to suppress the evidence from the consent search. The trial court first determined that the initial stop of the vehicle had been lawful and that officer safety concerns had justified both a patdown search of the defendants and a limited search of the passenger compartment of the vehicle for weapons. Id. at 86. The trial court then went on to rule, however, that the evidence derived from the consent search nevertheless was inadmissible because, after assuring their safety, the officers had questioned the defendants about illicit drugs and had sought the defendant‘s consent to search solely based upon information illegally obtained by the informant. Id. On review, this court agreed with the trial court that, in light of that causal link between the defendant‘s consent and the prior unlawful search, suppression of the evidence was required. Id. at 86-87.
Having clarified why Quinn does not assist the state here, we now turn to this court‘s decisions in Kennedy and Rodriguez. By contrast to the facts at issue in Quinn, the governmental officers in Kennedy and Rodriguez did not seek the defendant‘s consent only as a result of knowledge of inculpatory evidence gained from a prior unlawful search. Instead, each case involved the more difficult question of the validity of a defendant‘s consent given during a purportedly unlawful seizure. As discussed below, contrary to other of its precedents, this court concluded in both cases that the violation of the defendant‘s rights under
In Kennedy, 290 Or 493, two police officers approached the defendant as he was preparing to exit the Portland airport and informed him that they had information that he might be in possession of illegal drugs. The defendant denied that allegation and then, without any prompting, asked the officers if they wished to search his luggage. Id. at 496. The officers accepted his invitation and subsequently
On review, after assuming that the police interaction with defendant had been unlawful, this court determined that the evidence of the vial nevertheless was admissible based upon “the absence of any coercive circumstances surrounding [the] defendant‘s consent, and [the] defendant‘s volunteering of consent, with no request by the police.” Id. at 506. In reaching that conclusion, this court stated that the validity of the defendant‘s consent in such circumstances hinged upon only a determination of voluntariness, but added that the state faced a higher burden in establishing voluntariness when the defendant‘s consent followed unlawful police conduct. Id. at 502. Although we reject that formulation, see 339 Or at 20-21, we do not quarrel with the underlying concern that it expresses—namely, that
In Rodriguez, 317 Or 27, after presenting the defendant with an arrest warrant that may have been unlawful, the governmental agent warned the defendant of his rights to remain silent and to have counsel, and then asked the defendant whether he had any drugs or guns in his apartment. The defendant responded to that question by stating “No, go ahead and look.” Id. at 30. When the agent questioned the defendant whether he had intended to authorize a search, the defendant repeated his willingness to allow the officers to search his apartment, and the agents subsequently discovered two guns. Id.
On review, after again assuming that the defendant‘s arrest had been unlawful, this court concluded that suppression of the guns nevertheless was not required under
Even if rejecting the state‘s view that voluntariness alone is sufficient to establish the admissibility of evidence from a consent search following an unlawful seizure, the above-described conclusion in Rodriguez, like the conclusion in Kennedy, could be viewed as supporting the state‘s position that suppression is not required in this case. Similarly to both Kennedy and Rodriguez, there is no evidence that Deese observed any sign of criminal conduct during his illegal detention of defendant that led to his request for defendant‘s consent to a search.18 This court‘s decisions in Kennedy and Rodriguez, however, do not stand for the proposition that suppression is required only if the unlawful police conduct had allowed the discovery of inculpatory evidence that led to a request for consent. Instead, this court‘s case law both before and after Rodriguez makes clear that
Although it was based upon Fourth Amendment precedents, this court‘s decision in State v. Olson, 287 Or 157, 598 P2d 670 (1979), is on point. In that case, the defendant made inculpatory statements to the police after officers had
This court reached a similar conclusion in Dominguez-Martinez, 321 Or 206.19 After lawfully stopping the defendant for making unsignaled lane changes, the officer tested the turn signals on the defendant‘s vehicle and discovered that one of them was defective. Id. at 208. Rather than issue a citation, the officer instructed the defendant to repair the signal and then advised the defendant that he was free to go. Id. After making that statement, however, the officer continued to stand with his arm on the door of the defendant‘s vehicle and then asked for the defendant‘s consent to search the vehicle. Id. at 208-09. The defendant agreed, and the officer subsequently discovered illegal drugs in the vehicle. Id. at 209. On review, after finding that the officer had exceeded his statutory authority to detain the defendant, this court rejected the state‘s argument that, under the facts of that case, the defendant‘s voluntary consent nevertheless established the admissibility of the evidence from the search. Id. at 214.
This court‘s decision in Toevs, 327 Or 525, offers a final example.20 In that case, the officers stopped the defendant for driving at night without the use of headlights. After running a records check and instructing the defendant to turn on his lights, the officer advised the defendant that he was free to go. Id. at 529. After making that statement, however, the officer then immediately asked the defendant for his consent to search the vehicle and questioned the defendant about whether he was carrying any illegal drugs. Id. The defendant initially withheld his consent to a search, but, after further questioning, he admitted to the officers that he
As the above-described cases illustrate, this court‘s conclusions in Kennedy and Rodriguez that suppression was not required to vindicate those defendants’ rights must be understood in light of the specific facts of each of those cases—particularly, the facts that those defendants both had volunteered to allow a search without any police prompting and, in Rodriguez, that the police had provided the defendant with Miranda warnings before questioning him about drugs or weapons. In the absence of such intervening circumstances—or other circumstances mitigating the effect of the unlawful police conduct—this court has required suppression under facts similar to those at issue in Kennedy and Rodriguez. See, e.g., State v. Amaya, 336 Or 616, 627, 89 P3d 1163 (2004) (explaining necessity of considering legality of stop in deciding admissibility of defendant‘s presumably voluntary statements by stating that, “if [the officer] had seized [the] defendant in violation of her Article I, section 9, rights before he questioned her about the bag, then his questions about the bag also were unlawful, and the evidence that the state obtained as a result of those questions must be suppressed“); State v. Morton, 326 Or 466, 470, 953 P2d 374 (1998) (when defendant dropped container only after police had begun taking defendant into custody, “the state cannot separate the act of arrest from the dropping of the container; the seizure [of the container] can be proper only if the arrest itself was authorized by a valid warrant“); compare with Douglas, 260 Or 60 (regardless of legality of police conduct, no suppression is required when defendant granted his consent in response to prompting by his brother-in-law, rather than police actions).
With that background in mind, we return to this case. In doing so, we first summarize our preceding discussion: After a defendant shows a minimal factual nexus
III. CONCLUSION
In sum, we conclude that, under the facts of this case, Deese‘s encounter with defendant constituted an unlawful stop under
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed.
DURHAM, J., concurring in part and dissenting in part.
I agree with the majority‘s conclusion that the police unlawfully stopped defendant under
The larger question in this case, however, concerns defendant‘s claim that the trial court erred in refusing to suppress the evidence that Officer Deese searched for and seized from defendant‘s pocket during the unlawful stop. According to the record, Deese stopped defendant, saw bulges under his jacket, and asked for permission to search defendant‘s person. In response, defendant gave his voluntary consent to the requested search.1
In this court, defendant acknowledges that his consent was voluntary, but argues that the court should disregard his voluntary consent because Deese exploited the prior
Reduced to its essence, defendant‘s argument asserts that he is entitled to the suppression of the evidence that Deese obtained from defendant‘s pocket notwithstanding defendant‘s voluntary consent to the exact search that Deese performed. The majority accepts that argument and requires suppression of the evidence on the theory that defendant‘s consent was the “product” of the unlawful initial stop and that the state did not show that the consent was “independent of,” or was “only tenuously related to,” the unlawful stop. 339 Or at 36-37.
If Officer Deese had unilaterally searched defendant‘s pocket without consent, or coerced defendant such that he overcame defendant‘s free will, then the majority‘s answer would be correct. But the fact that defendant voluntarily consented to the search makes (or should make) the crucial difference in the legal analysis of the reasonableness of the resulting search.
Instead of focusing correctly on the voluntariness of defendant‘s consent, as our cases require, the majority‘s analysis turns on facts that simply are inapposite, such as the fact that defendant‘s consent (even though voluntary) was “not spontaneous” because Deese requested consent to search. Id. at 44. Similarly, the majority emphasizes that Deese‘s request occurred immediately after Deese had questioned defendant about whether he was carrying any weapons or illegal drugs and while he was waiting for the results of a warrant check. Id. at 44-45. Those facts lead the majority to conclude that the state has failed to prove “that defendant‘s decision to consent, even if voluntary, was not the product of the preceding violation of defendant‘s rights under
The majority‘s approach is erroneous because it accords no analytical weight to the key fact of defendant‘s voluntary consent to the search. Instead, the majority‘s analysis turns on whether the fact that allowed the search to occur—defendant‘s voluntary consent—was the “product” of (that is,
The majority‘s reasoning represents a significant departure from the principles that have guided this court in previous consent search cases. First and foremost, this court has approved of the suppression of evidence only where the police conduct that brings the disputed evidence to light constitutes an unreasonable invasion of privacy. Here, Officer Deese‘s stop of defendant unquestionably was an unreasonable seizure, but the act of stopping defendant did not expose the disputed evidence to Officer Deese. The discovery of the disputed evidence occurred only after defendant gave his voluntary consent to a search of his person. That is the legally dispositive fact. Defendant‘s voluntary consent to the search demonstrates that the disputed evidence came to light as the result of a reasonable, not unreasonable, search.
The majority‘s approach effectively cancels the legal significance of defendant‘s voluntary consent and treats the officer‘s simple act of asking for permission to search as if it were an invasion of privacy. Heretofore, police officers properly have understood that there is no harm in asking for voluntary consent to conduct a search. After today, that understanding is in jeopardy. As the following discussion demonstrates, the majority‘s analysis results in a suppression of evidence without the necessary predicate that our cases require: an unreasonable invasion of privacy. Accordingly, I respectfully dissent from that aspect of the majority‘s opinion.
Because defendant‘s motion seeks suppression of evidence that Deese searched for and seized without a warrant, the state bears the burden to demonstrate that Deese‘s search and seizure actions were reasonable and, therefore, lawful. Despite the absence of a warrant, a search or seizure is reasonable under
The state relies here on the exception for searches and seizures conducted pursuant to a legally valid consent. The consent exception to the warrant requirement applies if the state demonstrates that someone with authority to do so voluntarily gave the police consent to search the defendant‘s person or property and that the police complied with any limitations on the scope of the consent. State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994).
A violation by police of a defendant‘s rights under
Police assertion of authority or control over an individual, either through an arrest or a lesser seizure, bears distinctively on the question of voluntariness whether or not the police conduct is lawful. That is so because an officer‘s assertion of control over a person‘s liberty implies the further authority to maintain that control and, incident to that control, to search the person and seize any contraband. See LaFave, 4 Search and Seizure § 8.2(d) at 79-80 (discussing principle and citing authorities). If a defendant consents in acquiescence to a claim of lawful police authority, the trial court properly should conclude that the lawfulness of the assertion of police authority determines the voluntariness of the resulting consent. See, e.g., State v. Williamson, 307 Or 621, 626-27, 772 P2d 404 (1989) (Carson, J., concurring). By contrast, unlawful police conduct can affect a defendant‘s capacity to exercise his or her free will and, thus, may undermine the voluntariness of a consent to search for purposes of
In this case, as noted above, defendant asserts no challenge to the trial court‘s implicit conclusion that defendant voluntarily consented to Deese‘s request to search his
Defendant rests that argument on an application of the “fruit of the poisonous tree” doctrine that this court‘s cases have discussed. Although I ultimately reject defendant‘s argument, I note that not all our cases have discussed that doctrine in a consistent manner. For that reason, I discuss in detail why the contents of defendant‘s pocket are not subject to suppression under the “fruit of the poisonous tree” doctrine.
Under the “fruit of the poisonous tree” doctrine, this court examines the nature of the connection between unlawful police conduct and the evidence that the defendant seeks to suppress. In State v. Kennedy, 290 Or 493, 624 P2d
“The United States Supreme Court has held that the existence of a police illegality does not automatically require suppression of evidence discovered subsequent to that illegality. In Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 LEd 2d 441 (1963), the Court rejected a ‘but for’ test which would require that evidence must be suppressed if it would not have been discovered ‘but for’ the illegal police actions. Instead, the Court said:
” ‘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 illegality, 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.’ 371 US at 487-88.”
Id. at 500.
The determinative issue under that doctrine is whether, assuming an initial police illegality, the police have obtained (“come at“) the challenged evidence by an exploitation of that illegality or, instead, have obtained it by means sufficiently distinguishable to be purged of the taint of the initial police illegality. When applying that doctrine, we always must keep in mind two distinct policy justifications that bear on the answer to that issue.
The first is that the predicate for Oregon‘s exclusionary rule is the court‘s responsibility to vindicate the invasion by the police of a defendant‘s personal rights under
The second is that, when determining whether the facts require the exclusion of evidence, this court seeks to restore a defendant to the same position as if “the government‘s officers had stayed within the law.” Davis, 295 Or at 234. Thus, the fact that evidence comes to police attention following, or due only to “but for” causation by, police misconduct is insufficient to require a suppression remedy. Instead, the police misconduct, rather than some other independent agency, must be the source that causes the police to obtain the disputed evidence. For example, a showing that the observance of lawful procedures inevitably would have brought the evidence to light would obviate the need for suppression. See State v. Johnson, 335 Or 511, 526, 73 P3d 282 (2003) (discussing inevitable discovery of evidence).
Relying on the above-cited authorities, defendant argues that Deese exploited the unlawful stop, because he was in a position to observe the bulges in defendant‘s coat solely by reason of the unlawful stop. Defendant claims that the bulges in the coat, in turn, motivated Deese to request consent to engage in a search of defendant‘s person and that that request led immediately to the discovery of the disputed evidence. According to defendant, nothing attenuated the taint of the unlawful stop and its close factual connection to the discovery of the contents of defendant‘s pocket.
Defendant‘s arguments fail because they do not acknowledge the role of defendant‘s voluntary consent in Deese‘s discovery of the disputed evidence. In explaining that conclusion below, I demonstrate why several cases on which defendant relies in reality lend him only superficial support.
“The nature of the causal relationship between unlawful police action and subsequently obtained evidence, which triggers the exclusionary rule, was considered in the leading case of Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963), in which the United States Supreme Court elaborated on * * * ‘fruit of the poisonous tree’ doctrine. Under Wong Sun, the influence of the illegality on defendant‘s exercise of will, rather than the source of police knowledge, determines whether there is taint. The facts of the case illustrate this principle. Two statements were involved in Wong Sun: one by Toy and one by Wong Sun. Government agents unlawfully entered and searched Toy‘s home. Toy then and there confessed that he had obtained narcotics from one Yee. The agents then went to Yee who surrendered heroin to them. Yee said he obtained it from Toy and Wong Sun. The latter two were arrested and released on recognizance. Several days later, Wong Sun visited the agents. Upon being advised of his rights, Wong Sun made a statement. The United States Supreme Court required suppression of Toy‘s confession because it was a direct result of the agents’ unlawful entry. Wong Sun‘s statement, however, was held admissible because it was the product of intervening events and not the product of the unlawful entry even though the police had learned of Wong Sun‘s involvement in a chain of events which began with the unlawful arrest.
“In so holding, the court rejected what might be called the ‘but for’ test under which evidence must be excluded if any link in the chain of circumstances leading to the evidence involves unlawful police action. Were that the rule, Wong Sun‘s confession would have been suppressed. Rather, the dispositive consideration was whether Wong Sun‘s decision to make a statement was a result of the illegality or due to other factors.”
Id. at 395-96 (footnote omitted; emphasis added).
Another aspect of the analysis stated in Quinn deserves further comment. Quinn involved an unlawful search of the defendant‘s vehicle during which the police discovered a pair of women‘s underwear that linked the defendant to a murder. Without informing the defendant of their discovery, the police sought and obtained the defendant‘s consent to search the vehicle. The police searched the vehicle again, seized the underwear, confronted the defendant with that evidence, and obtained the defendant‘s confession to the murder.
On review before this court, the defendant challenged the admissibility of the underwear under
The Quinn court‘s reliance on the defendant‘s lack of knowledge of the first vehicle search may have been an error, although a determination of that issue, strictly speaking, is not essential to the correct resolution of this case. The first vehicle search was itself an unconstitutional invasion of the
Here defendant contends that, despite the voluntariness of his consent, the illegal stop disadvantaged him by affording the officer the opportunity to see the bulges in his jacket, thus creating the motivation to seek consent to search. Defendant argues that suppression is necessary to restore him to the position that he would have occupied had the officer not stopped him illegally.
My previous discussion of Quinn undermines defendant‘s premise that a police illegality that precedes a consent to search may require suppression of evidence because, apart from its impact on the voluntariness of consent, it affords the police information that motivates them to seek consent to search. Despite that problem, defendant purports to find support for his position in Rodriguez and Kennedy. For the reasons discussed below, I disagree.
In Rodriguez, a governmental agent arrested the defendant at his apartment and asked whether the defendant had any drugs or guns in the apartment. The defendant responded by saying, “No, go ahead and look.” The agent questioned whether the defendant meant to authorize a search, and the defendant again stated his willingness to permit a search. The governmental agents searched the apartment and discovered two guns. 317 Or at 29-30.
On review, this court assumed that the arrest was unlawful but rejected the claim that
The Rodriguez court provided two examples in which the facts would justify suppression. The first involved unlawful police conduct that undermined the voluntariness of consent. Id. at 38. The second involved an unlawful search or seizure that preceded a consent search:
“Where, as here, the question of the voluntariness of the consent has not been raised, or where the court has determined that the consent was voluntary, unlawful police conduct occurring before a consent search still may affect the admissibility of evidence seized during that search. This is so because that unlawful conduct—either an unreasonable search or an unreasonable seizure—occurring before the consent search was a violation of the defendant‘s rights, even if the consent search by itself was not. Put differently: There may be cases in which suppression of evidence obtained during a consent search may be necessary to vindicate a defendant‘s rights that were violated by earlier, unlawful police conduct.”
I note that the Rodriguez court‘s second example, quoted above, reflects precisely the facts in Quinn, i.e., an illegal search that preceded a voluntary consent to conduct roughly the same search. Consistently with my preceding discussion of Quinn, I conclude that, if those facts require suppression, it is not because the police have exploited an illegality to obtain consent, but because the initial unconstitutional invasion of the defendant‘s privacy by the police brought the challenged evidence to light notwithstanding the defendant‘s subsequent consent. Properly understood, the court‘s second example entailed the ordinary remedy—suppression for an unlawful search, not an instance of the exploitation of a prior illegality that taints the voluntariness of a later consent.
Relying on its example of a purported “exploitation” of a police illegality, the Rodriguez court explained:
“We think that evidence obtained during such a search should be suppressed only in those cases where the police have exploited their prior unlawful conduct to obtain that consent. Only where such exploitation occurs can it be said that the evidence discovered subsequently was ‘obtained in violation’ of a defendant‘s rights under
Article I, section 9 .”
I conclude that that attempted statement of the pertinent issue comes up short.3 As the passage from Quinn quoted above demonstrates, 339 Or at 45-46, the initial question under Wong Sun is whether the police have come at the disputed evidence, not merely the facts that motivate the police to seek the defendant‘s consent, by exploiting a primary police illegality. Additionally, Wong Sun requires a determination whether, notwithstanding the prior illegality, the police have acquired the evidence by means sufficiently distinguishable to be purged of the primary taint. A defendant‘s voluntary choice to consent to a search, notwithstanding a prior police illegality, can affect significantly the answer to each issue that Wong Sun describes. Finally, Rodriguez, failed to focus on the pivotal principle from Quinn, i.e., that the factor that determines whether a prior police illegality “taints” a discovery of evidence in a consent search is the influence of the illegality on the defendant‘s exercise of will, not whether the illegality is a source of police knowledge.
Although the Rodriguez decision cited the Quinn case, it failed to follow correctly the “fruit of the poisonous tree” analysis that Quinn prescribed. The Rodriguez court should have determined, in accordance with Quinn, that, following the police illegality, the defendant had voluntarily consented to the search that produced the disputed evidence, the defendant did not challenge the voluntariness of his consent to the search, and, consequently, the police had not
There was no reason for the Rodriguez court instead to have suggested, in contravention of the legal principle described in Quinn, that a defendant also might obtain a suppression of evidence by demonstrating that facts that had come to light by reason of the prior police illegality motivated the police to seek consent for a search. That suggestion adopts the wrong focus. The critical inquiry under Quinn, in the context of a consent search, is the voluntariness of the consent, not the source of police knowledge that may have triggered the request for consent. Rodriguez incorrectly placed the emphasis on the state of mind of the police, rather than the voluntariness of the defendant‘s consent. That approach simply avoids answering the important analytical questions whether the police have obtained the evidence in violation of the defendant‘s constitutional rights, and whether the initial police illegality bears more than a “but for” causal relationship to the evidence that the consent search produced.
I turn next to Kennedy. In that case, two police officers approached the defendant as he was leaving the Portland airport, asked if they could speak with defendant, and identified themselves as officers. The officers informed defendant that they had information that he might be carrying illegal narcotics on his person or in his luggage. The defendant denied that allegation. Without any prompting from the officers, defendant asked them if they wanted to search his luggage. The officers accepted, searched defendant‘s bag, and subsequently discovered a small vial, which contained cocaine residue. Kennedy, 290 Or at 495-96.
On review, this court assumed that the police encounter with defendant had been unlawful. It determined, however, that the evidence was admissible due to “the absence of any coercive circumstances surrounding [the] defendant‘s consent, and [the] defendant‘s volunteering of consent, with no request by the police.” Id. at 506. Relying on Wong Sun, the court stated that “the evidence is to be suppressed only if it is found that the consent was gained by exploitation of the illegality or that defendant‘s free will was
I am not unmindful of defendant‘s concern that an unlawful stop or arrest, and the varying sorts of pressure and anxiety that often surround the lawful or unlawful assertion of police authority over a citizen, easily can create a coercive atmosphere in which citizens do not give a genuinely voluntary consent to a search. But a trial court is well able to examine, and must examine, all of those concerns in the course of determining the voluntariness issue. That analytical inquiry fully vindicates the rights of the defendant. That approach is preferable to creating an entitlement to a suppression remedy for unlawful police conduct that merely precedes, but does not taint, a later valid consent to a search that brings disputed evidence to light. Recognizing a right to suppression of evidence, notwithstanding the voluntariness of the defendant‘s consent to the search, might be consistent with the deterrence rationale that the federal courts employ in resolving search and seizure disputes. However, I see no justification for doing so pursuant to the rights-based approach that this court follows under
The legal principles discussed above lead to a straightforward answer on the facts of this case. The state obtained the evidence that defendant seeks to suppress by way of a search of defendant‘s pocket. Before the search, defendant told Deese that he consented to that search. After examining all the pertinent circumstances, the trial court necessarily concluded that defendant‘s consent was voluntary, and defendant makes no challenge to that determination in this court.
Finally, defendant advances in this court an argument that the stop and subsequent search and seizure violated the requirements of the
Because the trial court correctly refused to suppress the evidence seized from defendant‘s pocket, I respectfully dissent from the majority‘s contrary determination.
Gillette, J., joins this opinion.
Notes
The 1997 Legislative Assembly amended that statute to provide that an officer also may stop a person to make a reasonable inquiry if the officer reasonably suspects that that person “is about to commit a crime[.]” Or Laws 1997, ch 866, § 1. That amendment does not apply to this proceeding.“A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.”
The trial court made the following express findings:“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
“10) The officer asked if he could search the Defendant‘s person. The Defendant indicated okay. The officer then did a quick pat-down and felt no weapons.
“11) The officer reached in the Defendant‘s jacket and felt and removed a [vial]. Based upon his training and experience, the officer believed the [vial] contained controlled substance.
“This case is similar to State ex rel [Juv.] Dept. v[.] Fikes, 116 Or App 618[, 842 P2d 807] (1992). For the reasons set forth therein, Defendant‘s Motion to Suppress is denied.”
In Fikes, 116 Or App 618, the Court of Appeals rejected a child‘s claim that his consent to a search by a police officer was involuntary. The court concluded that “child‘s consent was not the product of police coercion, but was voluntarily and knowingly given.” Id. at 625.
In this case, the trial court made no express determination that defendant‘s consent to the search was voluntary. However, the trial court‘s express findings, quoted above, the court‘s citation of Fikes as “similar” to this case, the absence of any findings that Officer Deese coerced defendant to consent, and the trial court‘s denial of defendant‘s motion to suppress all confirm that, in the trial court‘s view, defendant‘s consent to the search was voluntary.
The“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
“We now specifically hold that an appellate court is not bound by a trial judge‘s finding of voluntariness of consent to a search or seizure if the appellate court finds the historical facts upon which the trial judge made his finding are insufficient to meet constitutional standards of due process. It follows, therefore, that neither the Court of Appeals nor this court is bound by the implicit conclusion of the trial judge in this case that defendant‘s compliance with Myers’ ‘request for identification’ was voluntary.”
(Footnote omitted.) To the same effect, see State v. Kennedy, 290 Or 493, 502, 624 P2d 99 (1981), citing Warner and Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). Because defendant does not challenge the trial court‘s implicit voluntariness determination in this case, I accept that determination.
Trial courts provide valuable assistance to our appellate courts when they make express findings of fact and conclusions of law on critical issues, such as the voluntariness of a defendant‘s consent to a search.
In Fikes, 116 Or App at 623-24, the Court of Appeals held that a youth had not been “stopped” under“This case is similar to State ex rel [Juv.] Dept. v. Fikes, 116 Or App 618, 842 P2d 807 (1992). For the reasons set forth therein, Defendant‘s Motion to Suppress is denied.”
371 US at 487-88 (quoting Maguire, Evidence of Guilt, 221 (1959)). Although Wong Sun concerned the admissibility of inculpatory statements that two defendants had made after illegal arrests, the Supreme Court appears to have applied that same reasoning in deciding the admissibility of evidence from a consent search following a violation of the defendant‘s rights under the“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 illegality, 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.‘”