Defendant has petitioned for reconsideration of our decision in State v. Lambert,
The relevant facts are taken from our opinion in Lambert,
The first break-in occurred in August 2011. A hole, which was large enough to drive a car through, was cut into the perimeter fence. Police discovered a “‘4x4’ decal, which appeared to have become detached from a vehicle, lying on the ground near the hole in the fence.” Id. at 686. During the August break-in, numerous items were taken from the property, including a “pH pen,” which is a small handheld device used to measure the pH of water. Id. at 686 n 1.
The second break-in occurred on the night of October 14, 2011. During that break-in,
“PWB security observed a vehicle parked just outside the PWB site, on the adjacent public property, near the perimeter fence. They also observed an unknown person moving inside one of the tents. Portland police responded to*745 the scene. The vehicle, a Jeep Grand Cherokee, appeared to have been driven through the parking lot for the boat launch and onto a grassy area so that it was concealed behind a row of trees. Police also found that the lock on the PWB facility gate had been cut. Police observed defendant walk into one of the tents and eventually approach the fence. Defendant was arrested.”
Id. at 686-87. After the arrest, defendant’s vehicle was towed to the police impound lot, “a secure facility where police send cars ‘as a matter of course.’” Id. at 687. Police “put a ‘hold’ on the vehicle, which served the purpose of notifying the police bureau’s burglary task force so that they would ‘eventually look at the vehicle.’” Id. at 687-88 (brackets in original).
Four days after defendant’s vehicle was towed, Officer Lobaugh, a member of the burglary task force, “took the 4x4 decal to the vehicle impound lot. Upon examining the exterior of defendant’s Jeep, Lobaugh discovered that it appeared to be missing a decal, and that the decal from the scene of the August break-in ‘fit [the Jeep] like a puzzle.’ ” Id. at 688.
Lobaugh applied for a warrant to search the interior of defendant’s Jeep. In his affidavit in support of the search warrant, Lobaugh stated:
“ [P] olice at the scene of the August break-in had discovered a hole in the fence ‘large enough to allow a vehicle to drive through’; that forensic specialists identified ‘indistinct tire tracks visible on the ground, leading from a perimeter path through the hole in the fence’; and that police found ‘a plastic 4x4 vehicle decal that had possibly been scraped off the side of a vehicle.’”
Id. at 688. With respect to the October break-in, Lobaugh averred:
“[Defendant had been driving a ‘Jeep Cherokee’ and had ‘made entry into the property by cutting though the fence’; that police observed blankets in the rear of defendant’s vehicle that were ‘clearly’ concealing something from view; and that when Lobaugh compared the 4x4 decal that had been recovered in August with the spot on defendant’s vehicle that appeared to be missing a decal, ‘[t]he glue to where the decal had been was still obvious and the decal seemed to fit exactly to that spot.’”
Before trial, defendant filed two motions to suppress. The first asked the trial court “for an Order suppressing evidence arising out of the search, pursuant to a search warrant, of [defendant’s] 1992 green Jeep Cherokee ***.” The second asked the trial court to suppress “all evidence discovered pursuant to the warrantless and unlawful ‘seizure’” of his vehicle. The trial court denied both motions. As relevant here, the trial court denied the second motion on the basis that the tow of defendant’s vehicle was a lawful “administrative seizure” because it was authorized by a section of the Portland City Code.
We held that the trial court erred in relying solely on the Portland City Code to conclude that the warrantless tow was lawful. To invoke the administrative seizure exception to the warrant requirement, the state must show not only that the seizure was authorized by law but that “suspicions of criminal activity play[ed] no part in the officer’s decision to seize the property.” Id. at 695 (internal quotation marks omitted). That showing was not made in this case. Id. at 697.
The state argued that, regardless of the seizure’s legality, defendant’s motion to suppress had been properly denied because the evidence at issue was admissible through an independent source — the search warrant that Lobaugh obtained. We disagreed, rejecting the state’s analogy to State v. Smith,
Our treatment of the state’s “independent source” argument, admittedly, was confusing. Although we rejected the state’s analogy to Smith, we went on to note that the trial court, because of its ruling that the seizure was lawful, had not addressed “whether the pH pen and the evidence of the match of the 4x4 decal, like the evidence in Smith, ‘would have been obtained even in the absence of the unlawful police conduct.’” Lambert,
On reconsideration, we conclude that it was error to remand in order for the trial court to consider whether the evidence would have been inevitably discovered. A remand in this situation is appropriate only if the record contains potentially conflicting evidence that needs to be resolved. State v. Grover,
Marshall is instructive. In that case, we held that the trial court had improperly denied a motion to suppress because, contrary to the trial court’s conclusion, the defendant had not voluntarily consented to a search. Id. at 433. We next considered the state’s argument, presented for the first time on appeal, that police would have inevitably discovered the disputed evidence by obtaining a search warrant. Conceding that it had not made that argument to the trial court, the state urged us to reverse and remand to allow the trial court to consider the matter. Id. at 434. We declined to do so because the record was “silent as to whether officers would have inevitably obtained a warrant and searched the RV in the absence of the defendant’s consent.” Id. We further explained that
“[t]he state, as the proponent of the evidence obtained from a warrantless search, had the opportunity — indeed, the obligation — to develop a record sufficient to substantiate any and all grounds on which it might seek to justify the admission of that evidence. To hold otherwise would invite piecemeal presentation and seriatim appeals of suppression disputes.”
Id.
Here, we agree with defendant that, as in Grover, there is no “potentially conflicting evidence” on any fact that is critical to an assessment of an inevitable discovery or independent source argument. The undisputed evidence in the record shows that, soon after defendant’s arrest, his vehicle was towed to the impound lot and the burglary task force was notified of its arrival. Four days later, a member of the burglary task force went to the impound lot and found that the 4x4 decal discovered after the August break-in likely came from defendant’s vehicle. That discovery connected defendant’s vehicle to the earlier August break-in
In light of Grover and Marshall, the only conclusion to be drawn from this record is that, by unlawfully towing defendant’s vehicle, police gained access to evidence — the 4x4 decal match — that otherwise would not have been available to them. That evidence must be suppressed. Without that evidence, the affidavit in support of the warrant would not have established probable cause to believe that the specified items would be in defendant’s vehicle, because the 4x4 decal match was the only concrete evidence linking defendant, and his vehicle, to the theft of the items listed in the search warrant. See State v. Clapper,
We note that, in response to defendant’s petition, the state does not take the position that there is sufficient evidence in the record to conclude that the items subject to the motion to suppress would have been inevitably discovered without the unlawful seizure. Instead, the state’s argument is entirely about preservation. The state contends that, in the trial court, defendant challenged the seizure but never expressly connected the seizure to the items that defendant sought to suppress. That is, defendant did not expressly argue to the trial court that the seizure led to the inspection at the impound lot, which led to the affidavit, which led to
We disagree with the state’s preservation argument, for reasons discussed in our original opinion. As we noted in Lambert, defendant’s argument on appeal was based on his second motion to suppress. Id. at 698. That motion was directed, not at the warranted search of his vehicle, but at the warrantless seizure when police towed it to the impound lot. Id. When police obtain evidence of a crime after having violated a defendant’s rights under Article I, section 9, of the Oregon Constitution, it is presumed that that evidence is tainted and must be suppressed. See State v. Unger,
Defendant moved to suppress “all evidence” arising from the unlawful seizure of his Jeep. Because the seizure was unlawful, the burden shifted to the state to show that the evidence was nevertheless admissible. The state points us to no authority for the proposition that defendant, having challenged the admission of evidence resulting from the unlawful seizure, was required to separately, affirmatively demonstrate that the warranted search was also flawed because it flowed from the unlawful seizure. In fact, our case law is to the contrary. See State v. Lovaina-Burmudez,
For the foregoing reasons, we conclude that the trial court erred by denying defendant’s motion to suppress. We therefore reverse and remand defendant’s convictions on Counts 2 and 3. Our resolution of Counts 4 and 5 is unaffected. See Lambert,
Petition for reconsideration allowed; former disposition withdrawn; convictions on Counts 2 and 3 reversed and remanded; otherwise affirmed.