*1 31, 1995, Jаnuary Argued and remanded for trial and submitted reversed new 690) (323 23, 1996 July petition March for review allowed OREGON, OF STATE Respondent, v. STANLEY,
SCOTT ERIC Appellant. A81472)
(10-93-01272; CA P2d *2 Mary Reese, Defender, M. Deputy argued Public Avera, cause for on the appellant. Sally With her brief was L. Public Defender. Kistler, Attorney General,
Rives Assistant argued cause for On the respondent. brief were Theodore R. Kulongoski, Attorney General, Linder, Virginia L. Solicitor General, Atkinson, and Robert M. Attorney Assistant General.
527-a Presiding Judge,
Before Deits, and De Muniz and Hasel- Judges. ton, MUNIZ,
De J. concurring part; dissenting part. Deits, J.,P.
527-b *4 De J. MUNIZ, charged possession
Defendant was with unlawful of 475.992(4)(b). He appeals a controlled substance. ORS suppress his evidence trial denial of motion to of court’s reverse. methamphetamine. We Kemper January officer Springfield regarding call activities respоnded dispatch suspicious a clerks had at Glenwood Market. One store men, two to the that she was concerned about reported something,” who had “very high whom as on she described an the men had been for about hour. One of premises on asked her where the were entered the store and The clerk they came store. located and how often to rob the store and planning believed that the men were safety. concern for her expressed two men arrived, standing she saw at Kemper When men, McCoy, entrance. One pay a near store phone other, defendant, was standing and the using phone, was Kemper noticed that defendant a briefcase. nearby holding holding spiral nоte- wearing pager open was a and was long of first and book, was fist names on which written training on and numbers. Based her phone corresponding these “were consis- she testified that activities experience, controlled substances.” selling tent persons buying with conversation, McCoy’s but Kemper interrupt phone did not doing at the store. She charac- what he was asked defendant testified that “very Kemper behavior extreme.” terized his as extremely they dilated and that were were eyes he agitated, She said that was “blinking bouncing.” still, speech rapid and that was so he could not stand he saying. not what She described she understand could as extreme case of stimulant intoxica- the “most McCoy similar displаyed I ever encountered.” tion that have training experience, Kemper on her symptoms. Based under the stimu- men were influence believed both and that lant, necessary as it was methamphetamine, such to “detox” them. custody to take them into market, arrived Shortly Kemper after officer, Maloney, time, arrived. At Kemper another *5 to talk a stepped McCoy. Kemper aside with When observed jacket left large square” object McCoy’s “roundish in front a pocket, gun she that he was carrying became concerned a knife. asked him if him down for pat She she could he weapons, patted object and nodded his As she the assent. in the in charac- pocket, McCoy grabbed her hand whаt she terized then “aggressive, very as an move.” She negative him him for incident to arrested harassment and searched search, that During weapon arrest. that she did not find a but, instead, found and an unused marijuana a pipe syringe. Kemper talking McCoy, Maloney
While was with approached immediately patted defendant and down for him weapons. Maloney testified that he concerned for his was safety, he possible robbery because was call responding to because, and in person his robberies “the experience with either simulates or pat-down, Maloney is armed.” the During felt a metal container that did not like a He did weapon. feel not container, defendant, seize you the but asked ‘Would be willing to show me Defendant opened [the container]?” Maloney container and pills. revealed three did prescription not seize pills the container or the allowed defendant to and place in pocket. them back his shirt car,
After Kemper placed McCoy patrol she joined Maloney Maloney and asked if defendant. defendant he would show Defendant Kemper pills the container. agreed to do so and opened jacket get his to container. As defendant opened jacket, they his both officers testified that recognized strong Kemper said methamphetamine. odor of that nose, the odor her strong enough was to bum she concluded that in cоntact just defendant had not been with methamphetamine, but of presently possession was experience substance. She testified that it had been her “100 percent of the time” that encountered odor when she of meth- strong, person actually possession was amphetamine. then under arrest Kemper placed defendant for of a and him possession controlled substance searched meth- marijuana incident to She arrest. found amphetamine. of smell
Defendant
evidence
suppress
moved to
as
as
of the metham-
methamphetamine,
well
evidence
motion,
trial
phetamine
itself. The
court denied the
argues
He
that his
assigns
ruling.
defendant
error
I,
stop
frisk
in violation of Article
and initial
were
the evidence
section
Constitution1 and that
Oregon
must be
sup-
obtained after
arrest
as “the fruit of the
search.”
pressed
Defendant
the frisk of defendant
argues
officers
first
that because both
argues
unlawful.2
state
take
necessary
had concluded that
it would be
426.460,3 it
custody
into
for detoxification under ORS
civil
*6
cursory
a
hand
open
was
for them to conduct
permissible
may
for
for
The state
be
pat-down
weapons
safety purposes.
whenever a
pat-down
justified
correct that
a limited
is
such
Hoskinson,
v.
Or
See State
custody.
into
320
person is taken
Owens,
v.
83,
196, 200,
State
87,
(1994);
3 1995, 430.399. the statute was renumbered ORS 4 defendant, McCoy Kemper she that her contact with and testified after first However, custody is quickly there no to take them into for detoxification. decided Maloney Kemper in the this information to indication record that communicated Instead, Maloney thing he that the first did frisked testified before he defendant. weapons. to defendant for when arrived on the scene was frisk he
531
“immediate threat.” State v.
Lumpkin,
265, 269,
App
rev den
The remaining facts support suspicion that a that posed defendant an immediate threat are Maloney’s general cоncerns for to a safety responding robbery call knowledge and his that inquired one of the men had about the of whereabouts the We are not unmindful of police. the legitimacy of an generalized safety officer’s concerns for circumstances, such enough justify but that alone is not to a 131.625(1) frisk. ORS that there be requires particularized facts to the a giving suspicion suspect poses rise an Matthys, here. See immediate Such are lacking threat. facts 282. Thus, at we conclude that the initial frisk of defendant was unlawful.
532 argues
Nonetheless, that the evidence of the state suppressed, methamphetamine not be because the should during methamphetamine a the the odor of responds that the evidencе consent search. Defendant valid methamphetamine, and the of the odor of itself, illegal suppressed as the tainted fruit of the must be argues particular, of meth In defendant odor frisk. amphetamine, which was discovered the second con Maloney suppressed search, be obtained sent must 5 by exploitation frisk. to that search his consent agree. We may validity affect the of
Unlawful conduct6 may ways. subsequent two It render a consent in one of involuntary illegality when the has “effect on affecting giving person consent, whether mind of the state of person’s voluntary a act of that free will.”State the consent is v. (1993). Rodriguez, 38, 27, P2d 399 Official 854 voluntary may an otherwise con also invalidate misconduct prior exploited their unlawful conduct sent if have “the Rodriguez, at the court consent.” Id. 39-40. obtain that agent’s allegedly illegal exploitation of an INS found no obtaining the defendant’s consent to search arrest residence, because agent apparent not on the INS did trade or “it is otherwise consentto advantage defendant’s take ofthe arrest to obtain absolutelynothing Indeed, is there search. agent can and defendantthat be the encounterbetween purportedly exploitation of unlawful as construed agent that, arrest, fact for the but arrest. mere standing doorway of have in the defendant’s not been
would drugs position apartment, in ask about a defendant guns, in the not rendеr the evidencediscovered subse- does quent Id. at 41. inadmissible.” consent search * ** between
“The distinction
voluntariness
important
However,
Id.
38.
it is
is an
one.”
asserts,
elaboration,
Although
“[t]he
without
frisk
defendant
subsequent consent,”
involuntary
grounds his
rendered
defendant’s
Maloney’s
argument
alleged
of
on
invalid consent
Thus,
consent is
defendant’s
not at issue.
frisk.
voluntariness
government entity
conduct” means “an act
its
“Unlawful
rights
I,
9,
Oregon
agent
under Article
section
that violates
(1993).
v.
n
State
Constitution.”
*8
difficult
test
posit
proper “exploitation”
to
because cases
have
decided under either
theory
that could
been
do not
Rodriguez
is
For
clarify
applied.
example,
which
court
Williamson,
v.
described State
621,
307 Or
In State v.
(1981),8
“defendant was unaware at the time he consent that any the underwear had been found. That fact did way not give affect defendant’s decision to or withhold his consent. issue, therefore, The next police activity is whether unlawful police search, which leads the to seek defendant’s consent to consent, but giving does not influence the defendant in consеnt[.] taints the police search,
“[W]hen the
sought defendant’s consent to
they
by exploitation
did not do so
illegal discovery.
of that
Rather,
sought
by
the consent
given
defendant for
entirely
primary illegality.”
reasons
distinct from that
Id. at
394, 396.
By assessing the effect of the illegality on the defendant’s
decision,
Quinn
grafted
court
analysis
voluntariness
onto an exploitation inquiry.9 It
Rodriguez,
is clear
from
7 Williamson,
In
the defendant consented to a search of his truck after
marijuana
they
smelled
warrant. 307
and threatened to
the truck
detain
while
obtained a
involuntary
at 623.
The consent was
because the
“were
trading
they
only
roadblock,”
on evidence that
had
virtue of the unlawful
causing
ing
weigh
consequences
thereby
the defendаnt “to
of consent” and
affect
Rodriguez
his decision to consent. Id. at 626. The
court also found
“only by taking
Williamson because the
were able to obtain consent
advantage
by telling
they
of the unlawful roadblock and
the defendant that
would
detain his vehicle.”
atOr
41.
8 Quinn,
asking
consent, police
before
illegally
for the defendant’s
underwear, which,
turn,
searched his car and discovered women’s
led to the
defendant’s confession to murder.
however,
analysis
germane
that such an
is
to voluntariness
Furthermore,
necessarily
exploitation.
not
there is
but
Quinn
to the
validity
doubt as
continued
considerable
*9
Weaver,
Stаte v.
concurring
In
319
opinion
approach.
212,
(1994),
rejected
“The
seems to me to
conclusion
(and
be)
being
may
unsupportable.
in fact
the
it
So far as
demonstrates,
Quinn opinion
the officers would never have
car,
permission
the
for
to search the
had it
asked
defendant
the car
been that their attention was directed
him and
not
earlier,
illegal
the
search. A more direct
the result of
activity
illegal government
be difficult
exploitation of
would
(emphasis supplied).
224
posit.”
Id. at
inquiry
the
is whether
the
proper
We
that
agree
police
focused
attention on defendant and
unlawful conduct
consent,
to seek his
of his
regardless
the officers
prompted
search
illegal
subsequent discovery
awareness
analysis,
evidence. Unlike a “voluntariness”
incriminating
of
consent,
dispositive
person giving
focuses on the
which
“exploitation” inquiry
in the
is the
ille
consideration
not
for”
police.
effect on the
This is
the “but
test
gality’s
Rodriguez,
give police
illegality
because the
must
rejected
opportunity
consent;
it must also
more than the
to seek
11
a reason for
doing
so.
provide
holdings
This
is consistent with the
analysis
Williamson,
Martin,
v.
and State
124 Or App
Rodriguez,
(1993),
it with the
459,
entangling
search because the fact more bag drugs] contained the defendant’s [if illegally had that the officer words, In other at 467.
the earlier search.” tin the officer to ask prompted a Dristan illegally opening to the defendant’s consent. leading questions analysis, we conclude that Based on the above reveals when unlawful occurs attention on the defendant focuses information *10 either to seek the defendant’s consent and them prompts leading to consent. questions to ask case, defendant’s consent on Maloney sought In this Maloney when asked defen- The first occurred two occasions. him it in feeling the metal container after dant to show com- illegal frisk. Defendant pocket defendant’s revealing prescrip- the container and “three plied, opening he that Maloney testified that knew tion-type pills.” that defen- are controlled substances and prescription drugs pills of those could have constituted possession dant’s in his placed then the container back crime. Defendant request Maloney occurred when asked The second pocket. pills Kemper. to defеndant to show Maloney that his “exploited”
We conclude obtaining in the first consent because asking “a direct connection” between defendant there is 12 predisposed agent apparently questions to ask before the these The arrest, regional drug organized considering that seven members of a crime and apartment. Rodriguez, accompanied him to at task force 29. 13 Martin, illegally opened an officer a Dristan tin from the defen taken bag dant, paper inside and asked the if a defendant drugs.” App “more it in car contained Or at 461-62. said found did, Defendant bag. Id. consented to a search at 462.
produce Maloney container and the fact that had con- ducted illegal Mаrtin, an frisk. See Or at 467. App Based above, on the record and the set out we analysis conclude — frisk revealed information the container’s — presence in defendant’s focused pocket Maloney’s attention on defendant and him to consent prompted request to search.14 We also conclude that the second consent was by “exploitation” obtained of the first: initial unlawful information, possession revealed of prescription defendant pills, Maloney pills that caused ask to show the to Kemper.15 exploitation only
The dissent would find where the unlawfully obtained information indicates “a defendant’s possible App involvement activities.” 139 Or at 539. here “revealed only Beсause the frisk innocuous metal container,” the would find no in obtain- dissent ing the first consent. 139 543.16 We the information discovered must disagree implicate possible “illegal the defendant’s involvement Granted, some cases have involved activities.” Maloney suppression hearing, At the testified on him and he showed me what was in it he “had a metal container had prescription pills. some something you your pat-down Is that had found search? “Q weapon. “A I it it didn’t feel like a had felt but you So didn’t seize it from him? “Q “A No. you him about it? Did ask
“Q “A I him to see what was it. asked you you asked him? Do remember what “Q was, you way willing I him “Would be “A The asked to show me?’ «;}: sjs sf: * * *11 said, me,’ you you willing “Would be to show what did he do? When
“Q pills.” “A showed me the He 15Maloney further testified * * * Kemper I [defеndant] came over Officer asked to show her “When put pills pocket he showed me because he had them back in get pills.” opened his coat to he 16Although implicating second consent revealed information (unlawful activity possession substances), illegal possible of
in
controlled
securing
consent,
apparently
in
no
it
dissent
finds
because
initial consent was lawful.
that the
believes
Williamson,
The dissent’s dissatisfaction as to how uncertainty it as “the perceives from what gained the information whether determine the reason for the officer’s provided unlawful conduct (emphasis at 540 App to search.” 139 request for we inquiry concern is unfounded. in That original). resolution elements whose legal includes factual and frame than, from, difficult different or more qualitatively is not routinely that we review. questions other such that, by ignoring The dissent nonetheless contends revealed, is no analysis our the nature of information Rodriquez, rejected different from the “but for” test because “all consents given after at 540 App 139 Or product exploitation.” of
could be
original).
That is not true.
(еmphasis
Land,
did
Rodriguez
official misconduct
both
because
consents
subsequently
not invalidate the
obtained
independent
for reasons
requested
consent was
(INS agent
unlawful conduct. See
We conclude from the record that prompted produce open frisk him to ask defendant to and analysis, metal container. See note 13. Under the above exploitation. prescription pills constitutes Because the dis- Máloney covered as a result caused ask to show Kemper, container to see note the second consent was through exploitation obtained of the first. Because defen- compliance Maloney’s request necessarily dant’s with second opening jacket, involved his the odor of through was obtained an invalid consent. We hold that the methamphetamine discovered as a result should have been denying excluded and in that the trial court erred defen- suppress. dant’s motion to
Reversed and remanded for new trial. concurring part; dissenting part. DEITS, J.,P. in agree majority’s I with the Mal- conclusion that oney’s However, frisk of I defendant was unlawful. Maloney exploit prior believe that did not unlawful his con- obtaining duct in search, I defendant’s consent would affirm the trial court’s denial of defendant’s motion to suppress. majority job has done an excellent of formulat
ing proper exploitation analysis existing under the case agree majority’s precise. law, which is less than I with the exploitation formulation to the that it extent concludes that policе, through conduct, occurs when the unlawful obtain information that on focuses their attention the defendant My prompts them to seek consent to a search. difference majority understanding with the “prompting” in is our ofwhat constitutes my majority’s view,
under
In
the test.
under
standing
term eliminates the distinction set forth
(1993),
27, 854
State v.
P2d 399
between a
exploitation. Thus,
mere “but
for” causal connection
majority’s position
rule,
threatens to eliminate the
embodied
(1981),
Kennedy,
automatically
conduct does not
render inad
any
subsequent
missible
sent search.
evidence discovered
con
view,
my
proper application
nature of the informa-
test must take into consideration the
I
the officer’s unlawful conduct.
believe
gained during
tion
when,
only
can conclude that
exists
that we
case, the informa-
under the
circumstances of the
particular
implicates
tion disclosed
the unlawful
in illegal
way
possible
some
the defendant’s
involvement
Maloney dur-
gained by
activities. Because the information
did not
innocent and
ing
unjustified
completely
frisk was
*13
activities,
I would
way
in
in
implicate
any
exploitation.
of
product
hold that his consent was not the
Rodriguez,
the distinction
explained
the court
mere causal
and “exploitation”:
between a
connection
suppression
required
any
is
in
such case will
“Whether
* * *
the
depend on the nature of the connection between
sup-
police
sought
unlawful
conduct and the evidence
to be
subject
pressed.
previously,
As we have noted
evidence is
to
suppression
prosecution
in a
if
in
criminal
it was ‘obtained
I,
rights
9]’
violation of a
[Article
under
section
Davis, supra,
(emphasis supplied).
State v.
“In
police
what
does unlawful
con-
duct render evidence obtained
a later consent search
inadmissible,
voluntary?
where the consent to the search is
We think that evidence obtained
such
search
suppressed only should be
those cases where the
exploited
their
unlawful
have
conduct to
obtain
Only
exploitation
consent.
where such
can
occurs
it be said
subsequently
the evidence
‘obtained
rights
I,
violation’of a defendant’s
under Article section9.”
(emрhasissupplied).
As mentioned I think that understanding exploitation analysis away of the does with exploita- the difference between mere for” causation and “but majority attempts explain tion. The to the difference * * * stating “give[s] that “but for” causation opportunity prompting, part consent,” to seek as of the while exploitation doing Stanley, “provide[s] test, a reason for so.” explanation (emphasis original). at 534 That unsatisfactory, however, is little more than because it does question question. left answer the with another We are still uncertainty with as to how determine whether the infor- gained during provided mation request the reason for the for consent to search. officer’s Unfortunately, majority’s application inquiry test to the facts here how that is fails to demonstrate majority’s application to be made. The test provides guidance permissible no for” causa- as to when “but exploitative “prompting.” tion becomes just guidance than That lack of threatens to do more produce bar; confusion for the bench and it also threatens *14 Kennedy, rule, eviscerate the in that unlaw- embodied police automatically ful conduct does not render inadmiss- any during subsequent ible evidence majority search. The states: — illegal “[W]e conclude revealed that frisk information — presence pocket the container’s in defendant’s Maloney’s prompted defendant and
focused attention on Stanley, request App him to consent to search.” 139 Or at 536. majority clearly implies
The that a consent to search will be exploitation anytime the result of that it follows unlawful police yielded any However, conduct has information. imagine police it is difficult to an encounter between a yield officer and a defendant that will not some information eye. By ignoring analyze to the officer’strained the need to likely the nature of that information and played it role that search, in the officer’s decision to seek consent to a
541 situation, where all consents given creates a majority exploi- product unlawful conduct could be the police after Kennedy. tation, undermining thus completely view, determination as to my to make a principled during unlawful gained whether information consent, analysis the officer’s for “prompted” request information. the nature of the must take into consideration unlawful consistently when the has been found Exploitation that, the circum- information under conduct disclosed police stances,1 possible a defendant’s implicated any way activities.2 When an officer’s illegal involvement readily con- information, may a court conduct discloses such con- the officer to seek discovery prompted clude that and, exploitation consequently, sent to a search occurred. Martin,
State v.
459,
124
P2d 1276
App
Or
863
(1993),
case,
In that
аn officer noticed
is illustrative.
car in a convenience
lot. The defen-
parked
parking
store
wheel,
engine
but the
slumped
steering
dant was
over the
concern for the
running
lights
and the
were on. Out of
safety,
the officer
the car
approached
defendant’s
knocked on the
the defendant
did not
window. When
1
Quinn
majority points
exploitation
should have
The
as a case which
found,
during
police
the unlawful
been
but asserts that the evidence discovered
—
—
activity
“by
illegal activity.” 139
women’s underwear
itself does not indicate
However,
App
my approach,
to whether or
Or
at 537.
under
the determination as
any
possible
certainly
not there is
the
underwear in the defendant’s car under the
indicatiоn of
must consider
criminal activities
discovery
of women’s
circumstances which
information is found.
Quinn clearly impli
circumstances
activities, i.e.,
cated the
involvement in criminal
residential bur
glaries
elderly
Thus,
majority’s
and Justice
even murder of
woman.
(see
(1994) (Gillette, J.,
Weaver,
212,
Gillette’s
State v.
319 Or
The trial court and we that the officer’s tin opening of the Dristan was unlawful. then the evidence of the argued methamphetamine found must be because the officer it bag suppressed, obtained her unlawful conduct. We by exploiting prior agreed: case, methamphetamine “In this the officer had discovered dining the search incident to arrest. Defendant was handcuffed, placed patrol in the back of a car and had been questions asked several about the contents of the Dristan him paper bag tin. The officer then confronted with the drugs. if it more There asked contained is a direct connec- asking question tion and the between fact that illegally mеthamphetamine officer had in the earlier search. We conclude that the bag suppressed, scales discovered must be by trading obtained them on they evidence that only had as a result of the search incident to arrest.” (emphasis original). Id. at 467 Martin, officer’s of her apparent. unlawful conduct was Before asking the defen- dant to search paper for it bag and whether drugs,” contained “more the officer had illegally seized *16 methamphetamine. couldWe the defendant evidence of from — finding easily evidence conclude that implicated activ- the defendant’s involvement — ity prompted to an consent the defendant’s her to seek materially Maloney’s here cоnduct additional search. only an innoc- revealed different, in that unlawful frisk his any other a crime or container, not evidence of uous metal reasonably indicate that that would information feeling Indeed, after was involved activities. respect, object, Maloney oney’s Mal- In that it. did not even seize the officers from that of conduct was no different Rodriguez, conduct, not who, would but for their unlawful apartment. standing in the door of the have been simply suppression case, is not mandated As in that prior conduct, unlawful that, fact “but for” his of the mere position Maloney defen- to ask for not have been in a would dant’s consent to a search.3
Analyzing nature the information principled provides during thе officer’s unlawful conduct way have information could to determine whether that inquiry, request “prompted” Such the officer’s for consent. preserves conclusory approach, majority’s broad, unlike the Kennedy does the rule of any automatically discov- evidence not render inadmissible preserves subsequent It also search. ered mere “but distinction, formulated in between the for” causation and Maloney’s exploitation. I believe discovery “prompted” request for consent here was not my view, Thus, the court of an innocuous metal container. Accordingly, suppress. properly denied defendant’s motion to I dissent. holding agree majority Jeffers, in State v. I with the that our (1994) case, obtained, through questionable. is In that conduct, precipitated their information of criminal activities that
their unlawful seeking the defendant’s consent a search.