Lead Opinion
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 ORS 131.615(1) (1995) and, consequently, also an unlawful “seizure” under Article I, section 9, of the Oregon Constitution?
The state charged defendant with possession of amphetamine, ORS 475.992(4)(b), based upon evidence that a police officer had seized during a consent search of defendant’s person. The trial court denied defendant’s pretrial motion to suppress the state’s evidence, and a jury later convicted defendant of the charged offense. On defendant’s subsequent appeal, a majority of the Court of Appeals, sitting en banc, reversed. It held that, notwithstanding the voluntariness of defendant’s consent to the search, Article I, section 9, required exclusion of the challenged evidence because the police officer had stopped defendant unlawfully and then had “exploited” that unlawful stop to obtain defendant’s consent. State v. Hall,
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,
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 ORS 131.615(1) (1995), Article I, section 9, and the Fourth Amendment to the United States Constitution,
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.
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,
According to the majority opinion, whether evidence from a consent search derives from exploitation of prior unlawful police conduct
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 Article I, section 9, because defendant voluntarily had consented to the search and defendant’s voluntary act of consenting — not the unlawful stop — had been the source of the evidence from that search. In making that second argument, the state asks that we reconsider this court’s prior case law holding that a violation of a defendant’s rights under Article I, section 9, may affect the admissibility of evidence from a consent search even when the voluntariness of the defendant’s consent is not at issue. See, e.g., State v. Rodriguez,
For the reasons that follow, we conclude that Deese’s encounter with defendant constituted an unlawful stop under ORS 131.615(1) (1995) and, consequently, also an unlawful “seizure” under Article I, section 9. We further decline the state’s invitation to depart from this court’s precedents and, instead, reaffirm that a violation of a defendant’s rights under Article I, section 9, may vitiate a defendant’s otherwise voluntary consent to a search. Finally, under the facts of this case, we conclude that the state failed to satisfy its burden in showing that defendant’s consent was sufficiently independent of the preceding unlawful stop. Based upon those conclusions, we affirm the decision of the Court of Appeals and reverse the judgment of the trial court.
As noted above, defendant’s pretrial suppression motion relied upon ORS 131.615(1) (1995), Article I, section 9, and the Fourth Amendment. Because we resolve this case on state law grounds, we do not reach defendant’s federal constitutional claim. See State v. Kennedy,
A. Applicable Oregon Law
In Oregon, both statutory and constitutional law limit the authority of police to detain citizens. ORS 131.615(1) (1995), the statutory provision at issue here, provided that a police officer temporarily may restrain, or “stop,”
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,
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,
As noted above,
In Holmes,
This court’s prior case law provides useful guidance as to whether Deese’s encounter with defendant constituted a stop. In State v. Warner,
In State v. Painter,
Under the facts of this case, we similarly conclude that Deese’s encounter with defendant here constituted a “stop” under ORS 131.615(1) (1995). In this case, Deese’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 Deese inconvenienced defendant, his actions did not constitute a show of authority involving conduct “significantly beyond that accepted in ordinary social intercourse.” Holmes,
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 ORS 131.615(1) (1995). Because that restraint was not justified by a reasonable suspicion of criminal activity, we further conclude that that encounter violated both ORS 131.615(1) (1995) and Article I, section 9.
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 Article I, section 9, may affect the validity of a defendant’s subsequent consent to a search. See generally State v. Weaver,
First, illegal police conduct violating a defendant’s rights under Article I, section 9, may negate a defendant’s consent to a search upon the ground that that police conduct rendered the defendant’s consent involuntary. Id. Although this court previously has stated that “the burden [of persuasion] on the police to show voluntariness when consent occurs after illegal police conduct is greater than when no illegality has occurred[,]” State v. Kennedy,
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 Article I, section 9, may vitiate a defendant’s subsequent consent to a search. Specifically, similarly to the United States Supreme Court’s holding in Wong Sun v. United States,
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 Article I, section 9 (hereafter “Oregon exclusionary rule”) is not predicated upon the same deterrence rationale as the Fourth Amendment exclusionary rule, this court has erred in concluding that evidence obtained as a result of a defendant’s voluntary act — such as a defendant’s voluntary grant of consent to a search — similarly may be rendered inadmissible under the Oregon exclusionary rule by a prior violation of the defendant’s rights under Article I, section 9. According to the state, unless unlawful police conduct caused the defendant’s consent to be involuntary, such conduct does not affect the admissibility of evidence from a consent search under the Oregon exclusionary rule, because a
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,
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,
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
In each of those above-described circumstances, the admission of the challenged evidence does not offend Article I, section 9, because the defendant has not been disadvantaged as a result of the unlawful police conduct or, stated differently, because the defendant is not placed in a worse position than if the governmental officers had acted within the bounds of the law. In short, suppression of evidence in such circumstances would not serve to vindicate the defendant’s rights under Article I, section 9, because the evidence sought to be suppressed did not result from a violation of the defendant’s rights under Article I, section 9. See State v. Sargent,
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 Article I, section 9. Starting from that premise, the state argues that the Oregon exclusionary rule does not require exclusion of evidence from a consent search whenever the defendant’s consent is voluntary because the exclusion of evidence in such circumstances would not serve to vindicate the defendant’s rights under Article I, section 9.
On the surface, the state finds some support for that position in this court’s decision in State v. Quinn,
In Quinn,
On review before this court, the defendant challenged the admissibility of evidence from the consent search under Article I, section 9. Purporting to embrace the analysis articulated in Wong Sun,
In his concurring opinion in Weaver,
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 Article I, section 9. See, e.g., Rodriguez,
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 Article I, section 9, this court also has rejected the notion that any consent obtained after unlawful police conduct is invalid per se, no matter how tenuously related to that unlawful conduct. See id. at 39-40 (noting same). Instead, as discussed generally above, see
This court’s decision in State v. Carston,
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 Article I, section 9, had not destroyed the efficacy of the defendant’s consent to the search that produced the disputed evidence. We examine the basis of each of those holdings in more detail below.
In Kennedy,
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
In Rodriguez,
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 Article I, section 9. After clarifying that the voluntariness of the defendant’s consent was not in question, this court explained that the issue, instead, was whether the defendant’s consent had derived from — or, in the words of
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.
Although it was based upon Fourth Amendment precedents, this court’s decision in State v. Olson,
This court reached a similar conclusion in Dominguez-Martinez,
This court’s decision in Toevs,
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,
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 ORS 131.615(1) (1995) and, consequently, also an unlawful “seizure” under Article I, section 9. We also reaffirm that, to vindicate a violation of a defendant’s rights under Article I, section 9, evidence from a search following an otherwise valid consent is subject to suppression under the Oregon exclusionary rule if the defendant’s consent is the product of preceding unlawful police conduct. Finally, under the facts of this case, we conclude that the state failed to satisfy its burden of proving that defendant’s consent was independent of, or only tenuously related to, the
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed.
Notes
ORS 131.615(1) (1995), amended by Oregon Laws 1997, chapter 866, section 1, provided, in part:
“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 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.
Article I, section 9, of the Oregon Constitution provides:
“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.”
The text of both ORS 131.615(1) (1995) and Article I, section 9, is set out at
“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.”
The Fourth Amendment is applicable to the states through the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio,
Defendant originally was indicted in case number 97-0081-CR, and, following a hearing, the trial court denied defendant’s pretrial suppression motion in that case. Subsequently, on the state’s motion, the court dismissed that indictment without prejudice, because the indictment erroneously had charged defendant with possession of methamphetamine, rather than amphetamine. The state then charged defendant with possession of amphetamine in case number 97-1546-CR. Because the trial court already had heard and denied defendant’s suppression motion relating to the vial in case number 97-0081-CR, the trial court in case number 97-1546-CR declined to rehear that motion and, instead, adhered to the same ruling after taking judicial notice of the record from the first suppression hearing.
Specifically, in its letter ruling, the trial court stated:
“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,
Before the Court of Appeals, defendant also assigned error to the trial court’s denial of his motion to dismiss for lack of a speedy trial under OBS 135.747 and Article I, section 10, of the Oregon Constitution. The Court of Appeals rejected that assignment of error without discussion, Hall,
In State v. Rodriguez,
Judge Brewer joined the majority opinion in holding that Article I, section 9, required the exclusion of the state’s evidence. He, however, authored a separate concurring opinion to state his agreement with the dissent that a defendant’s reasons for consenting also may be relevant to the determination whether evidence procured during an otherwise valid consent search is inadmissible because of police exploitation of a prior illegality. Hall,
ORS 131.605(5) defines the meaning of the term “stop,” contained in ORS 131.615(1) (1995), as “a temporary restraint of a person’s liberty by a peace officer lawfully present in any place.”
In 1997, the legislature passed Senate Bill (SB) 936 (1997), which contained a provision, now codified at ORS 136.432, that limits the exclusion of evidence as
We acknowledge that, by requiring the police to have a reasonable suspicion that the person “has committed a crime!,]” ORS 131.615(1) (1995) imposed greater restrictions upon police authority to stop a person than does Article I, section 9. See State v. Cloman,
ORS 131.605 defines the term “reasonably suspects” as “a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts * *
In Wong Sun, the Supreme Court refined the “fruit of the poisonous tree” doctrine that is applicable under the Fourth Amendment exclusionary rule, stating:
*22 “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.’ ”
For an overview of the history of the exclusionary rule under the Fourth Amendment and under Article I, section 9, see generally Ronald W. Messerly, Development of the Right to Exclude Illegally Seized Evidence in Oregon under Article I, section 9 of the Oregon Constitution, 25 Willamette L Rev 697 (1989).
Before the Supreme Court held in Mapp,
A number of commentators have challenged the correctness of such a reading of Wong Sun. See, e.g., Wayne R. LaPave, Search and Seizure: A Treatise on the Fourth Amendment, IV-88, § 8.2(d) (4th ed 2004) (arguing that, -under Wong Sun, if “ [a] prior illegal search provides a significant lead in terms of indicating what other evidence [the police] ought to seek or where they ought to seek it, * * * then a consent obtained by exploitation of that information would constitute a fruit of the earlier illegal search. This would be true * * * even if the consenting party were unaware of the earlier search.”); Joseph G. Casaccio, Illegally Acquired Information, Consent Searches, and Tainted Fruit, 87 Colum L Rev 842 (1987) (stating same).
To the extent that the above-quoted statement from Rodriguez may be understood to suggest that a police officer’s state of mind is relevant under Article I, section 9, we do not endorse it. See State v. Ainsworth,
Although Carston concerned a statutory violation, the reasoning in that opinion is equally applicable in this context.
As discussed previously,
Although Dominguez-Martinez concerned a statutory violation, the reasoning in that opinion is equally applicable in this context.
Toevs also concerned a statutory violation, but the reasoning in that opinion is equally applicable in this context.
As noted previously, the dissenting opinion from the Court of Appeals identified some of those same considerations. See Hall,
Concurrence Opinion
concurring in part and dissenting in part.
I agree with the majority’s conclusion that the police unlawfully stopped defendant under ORS 131.615(1) (1995) and, thus, unlawfully seized him under Article I, section 9, of the Oregon Constitution.
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.
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.
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 Article I, section 9, [ ] ” and, consequently, the unlawful stop vitiates defendant’s consent. Id. at 45.
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 majoritys 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 majoritys 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 majoritys 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 Article I, section 9, if the police comply with the requirements of one or another of the recognized exceptions to the warrant requirement. See State v. Paulson,
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,
A violation by police of a defendant’s rights under Article I, section 9, may affect the validity of a subsequent search to which the defendant apparently has consented because the police conduct renders the defendant’s consent involuntary. See id. at 219. The state has the burden of proving voluntariness by a preponderance of the evidence. State v. Stevens,
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 vohmtariness of the resulting consent. See, e.g., State v. Williamson,
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,
“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 Article I, section 9, in obtaining evidence. This court has held that an individual’s personal right to be free from unreasonable searches and seizures under that provision also embraces a right to deny the state any ability to use evidence obtained in violation of that right to convict the individual of a crime. See
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,
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 Article I, section 9. Purporting to apply the rule in Wong Sun, this court rejected the defendant’s assertion that the initial unlawful vehicle search had tainted his decision to consent to the second search. The court reasoned that the defendant had no knowledge of the illegal first search of the vehicle and, therefore, that illegality could not “taint” his voluntary consent to the second search.
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 mqy 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.
On review, this court assumed that the arrest was unlawful but rejected the claim that Article I, section 9, required suppression of the guns. The court noted at the outset that the case presented no challenge to the trial court’s determination that the defendant had consented voluntarily to the search of his apartment. Id. at 38. Despite certain shortcomings that I note below, Rodriguez properly determined that the conduct of the governmental agents did not undermine the legitimacy of the defendant’s consent to a
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.”
Id. at 39.
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:
*49 “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.”
Id. at 40.
I conclude that that attempted statement of the pertinent issue comes up short.
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,
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 Article I, section 9.
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 Fourth Amendment to the United States Constitution. My examination of the record satisfies me that, in the Court of Appeals, defendant did not preserve his federal law claim for review by this court. Accordingly, I do not address that claim.
Because the trial court correctly refused to suppress the evidence seized from defendant’s pocket, I respectfully dissent from the majority’s contrary determination.
The trial court made the following express findings:
“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,
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.
In State v. Warner,
“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,
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.
Rodriguez purported to draw support for its approach to exploitation from a vehicle search case, State v. Williamson,