*1 No. 58 August 28, 2014
IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Petitioner on Review, v.
MARK LAWRENCE UNGER, Respondent on Review.
(CC 09C42443; CA A144192; SC S060888) En Banc
On review from the Court of Appeals.* Argued and submitted September 17, 2013.
Rolf Moan, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Jason E. Thompson, Ferder Casebeer French & Thompson, LLP, Salem, argued the cause and filed the brief for respon- dent on review.
BALMER, C. J.
The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.
Landau, J., concurred and filed an opinion.
Walters, J., dissented and filed an opinion, in which Baldwin, J., joined.
Brewer, J., dissented and filed an opinion.
Baldwin, J., dissented and filed an opinion, in which Walters, J., joined.
______________ * Appeal from Marion Court Circuit Court, Thomas M. Hart, Judge. 252 Or
App 478,
BALMER, C. J.
In this criminal case, we again consider when evi-
dence discovered following a person’s voluntary consent to
search must be suppressed on the theory that the police
exploited a prior illegality to obtain the consent. Last year,
we addressed that issue in
State v. Hemenway
,
The state charged defendant with manufacture of
cocaine and endangering the welfare of a minor, among other
things. Before trial, defendant moved to suppress physical
*3
evidence and statements obtained by detectives after they
knocked on the back door of defendant’s house and obtained
defendant’s consent to enter and then to search the house.
Defendant argued both that his consent had not been vol-
untary and that the detectives had exploited their unlawful
conduct to obtain his consent in violation of Article I, sec-
tion 9, of the Oregon Constitution.
[1]
The trial court denied
the motion, and a jury convicted defendant on four of the
counts charged. The Court of Appeals reversed, reasoning
that, under the
Hall
exploitation analysis, the detectives’
unlawful entry into defendant’s backyard to reach his back
door had “tainted [defendant’s] subsequent consent.”
State
v. Unger
,
houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirma- tion, and particularly describing the place to be searched, and the person or thing to be seized.” of Appeals. In doing so, we modify part of the exploitation analysis announced in .
I. FACTS AND PROCEEDINGS BELOW The Marion County Sheriff’s Office received a com- plaint about drug activity at defendant’s house, and an informant had reported that young children were staying there and had access to drugs and guns. In response, three detectives from the sheriff’s office and one detective from the Canby Police Department went to the house around 10:00 a.m. to conduct a “knock-and-talk.” One detective knocked on the front door, but received no response. Another detective then knocked on a basement door on the lower level of the front of the house, but he also received no response. Despite the lack of responses, several cars were in the drive- way, and the detectives thought that someone likely was home.
One detective, Roberts, eventually followed a path around the lower level of the house, which led up to a wrap- around porch in back, where there was a sliding glass door that was partially covered with drapes. Roberts knocked on the sliding glass door, and, when defendant came to the door, it appeared that defendant had just woken up. Roberts introduced himself as “Kevin [Roberts] with the sheriff’s office,” and he explained that there had been a complaint about the house. Defendant asked to put on a robe and then gave the detectives permission to enter the house. At some point during the initial interaction between defendant and Roberts, at least two of the other detectives joined Roberts at the sliding glass door.
The sliding glass door opened into a bedroom, and defendant led the detectives through the bedroom, where a woman was in bed, to the kitchen. In the kitchen, the detec- tives introduced themselves and again explained why they were there. The detectives then asked if defendant would *4 show them around the house, and defendant agreed. that [defendant] allowed [the detectives] consensual entry into the house and three out of the four of [the detectives] came through the back door * * *.” The trial court did not address whether or how the fourth detective had entered the house. In ruling on defendant’s motion to suppress, the trial court stated, “I find [2]
Defendant took the detectives on a tour of the house, and throughout that tour, defendant was “coopera- tive.” When defendant showed the detectives the lower level of the house, Roberts noticed a torn piece of a bag that was coated with a white powder and contained some small crys- tals. Roberts told Detective Cypert what he had found, and Cypert passed that information along to defendant. Cypert then read defendant a “consent to search” card, which included a warning that defendant did not have to consent, but defendant refused to sign the card without first consult- ing his attorney. Cypert testified that defendant had given the detectives “verbal consent to continue to look through the house,” and defendant called his attorney. Meanwhile, one of the detectives performed a field test on the torn piece of bag.
After defendant spoke to his attorney, he told the detectives that his attorney wanted the detectives to leave the house. According to Cypert, Cypert told defendant that “it was ultimately up to [defendant] to make that decision if he wanted [the detectives] out of the house,” and defendant said he wanted to speak to his attorney again. After speak- ing to his attorney a second time, defendant told the detec- tives that he wanted everybody out of the house. By that point, however, the bag that Roberts had found had tested positive for methamphetamine, and the detectives placed defendant under arrest. The detectives obtained a search warrant based on the evidence found during their initial interactions with defendant, and they discovered additional incriminating evidence when executing the warrant.
Before trial, defendant moved to suppress all evi- dence and statements obtained as a result of the detectives’ “unlawful entry into the home and subsequent search, sei- zure, interrogation and arrest.” Defendant argued both that his consent had not been voluntary and that the detectives had exploited their unlawful entry into his backyard to obtain his consent in violation of Article I, section 9, of the Oregon Constitution. [3] The trial court denied the motion, Constitution in his motion to suppress, but he does not make any argument under the Fourth Amendment before this court. [3] Defendant also cited the Fourth Amendment to the United States *5 finding that defendant had “allowed [the detectives] con- sensual entry into the house” and that “the consent [had been] freely and voluntarily made.” The trial court did not expressly address whether the detectives’ position in the backyard at the sliding glass door had been unlawful, and, if so, whether the detectives had exploited that illegality to obtain defendant’s consent. In a subsequent jury trial, defen- dant was convicted on four of the counts charged. Defendant appealed the trial court’s denial of his motion to suppress.
The Court of Appeals reversed and remanded. The court first determined that the detectives had trespassed in violation of Article I, section 9, when they entered defendant’s backyard and knocked on his back door. Unger , 252 Or App at 483. Because, on appeal, defendant did not argue that his consent had been involuntarily given, the court went on to apply the exploitation analysis set forth in Hall to deter- mine “whether the [detectives’] illegal entry into defendant’s backyard invalidated defendant’s consent to the [detectives’] entry into and search of his home.” [4] Id. at 483-84.
In Hall , this court described a two-step analysis to determine whether evidence obtained pursuant to volun- tary consent must nonetheless be suppressed. Under Hall , a defendant must establish a “minimal factual nexus” between the evidence that the defendant seeks to suppress and the prior unlawful police conduct. If the defendant makes that showing, then the state must show that (1) the police inevi- tably would have obtained the evidence through lawful pro- cedures; (2) the police obtained the evidence independently of the illegal conduct; or, as relevant here, (3) the illegal con- duct was “independent of, or only tenuously related to” the disputed evidence. Hall , 339 Or at 25, 35. In determining whether the illegal police conduct was “independent of, or only tenuously related to,” the disputed evidence, Hall noted that “[a] causal connection requiring suppression may exist because the police sought the defendant’s consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct.” Id. at 35. The court went on to state that a causal connection requiring suppression also Hemenway modifying the issued its decision in Hall analysis. Unger The Court of Appeals issued its decision in before this court had [4] may exist if the illegality “significantly affected” the defen- dant’s decision to consent. Id. identified several con- siderations relevant to “determining the existence of such a causal connection”:
“(1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances—such as, for example, a police officer informing the defendant of the right to refuse consent— that mitigated the effect of the unlawful police conduct.” *6 Id.
In this case, the Court of Appeals determined that defendant had established a minimal factual nexus because “[t]he trespass gave the [detectives] the opportunity to obtain defendant’s consent” and “the trespass was ongoing when the [detectives] obtained defendant’s consent to enter his house.” Unger , 252 Or App at 486. The court went on to note that “[t]he state [did] not argue that defendant’s consent was independent of or only tenuously related to the [detectives’] trespass” and rejected the state’s argument that no exploitation had occurred because the detectives had not sought consent based on anything that they saw during the trespass. [5] Id. at 486-87. Thus, the court concluded that the detectives’ illegal entry into defendant’s backyard had tainted his consent, and the court reversed and remanded.
The state petitioned for review. On review, the state argues that this court should overrule Hall by elim- inating the exploitation analysis and instead holding that evidence obtained during a voluntary consent search nec- essarily is admissible despite prior unlawful police con- duct. Alternatively, the state argues that this court should adhere to two modifications to Hall that were announced in Hemenway : According to the state, Hemenway clarified that Hall had undervalued the constitutional significance argument before that court. The state notes that it did argue that the consent request consent. That connection, argued the state, would establish only “but for” it argued that, at most, the illegality gave the detectives the opportunity to was insufficiently related to the illegal conduct to justify suppression because causation, which would not demonstrate that the detectives had exploited their illegal conduct to obtain defendant’s consent. On review, the state disputes the Court of Appeals’ characterization of its [5] of voluntary consent and overvalued the constitutional sig- nificance of the temporal proximity between the police ille- gality and the defendant’s consent. See Hemenway , 353 Or at 144 (“We agree that the exploitation test announced in Hall does not account sufficiently for the importance of a defendant’s voluntary consent to search.”); id. at 150 (“[T]he focus on ‘temporal proximity’ too easily leads to the conclu- sion that any consent search that occurs when a person is unlawfully stopped is invalid, when the better-framed ques- tion is whether police exploited the unlawful stop to obtain the consent.” (Emphasis in original.)). In this case, the state argues that Article I, section 9, does not require that the evidence be suppressed because defendant voluntarily had consented to the detectives’ entry into and search of his house. Alternatively, the state argues that suppression is not required because there is no indication that any illegal- ity significantly affected defendant’s decision to voluntarily consent, particularly because the illegality was of short duration and the detectives’ conduct was not aggressive or intimidating.
Defendant responds that this court should retain the exploitation analysis set forth in because voluntary consent alone is insufficient to overcome police illegality that preceded a defendant’s decision to consent. Moreover, defen- dant asserts that this court in Hall tailored the exploita- *7 tion analysis to the rationale that underlies Oregon’s exclu- sionary rule: the vindication of an individual’s right to be free from unreasonable searches and seizures. According to defendant, accounting for the nature of the detectives’ misconduct—brief and not aggressive or intimidating—in the exploitation analysis, as the state proposes, would be inconsistent with that rationale. Here, applying the Hall analysis, defendant argues that Article I, section 9, requires that the evidence be suppressed because, although defen- dant’s consent was voluntary, the detectives exploited their illegal entry into defendant’s backyard to place themselves in a position to contact defendant and request his consent. Defendant also notes that no intervening or other circum- stances mitigated the effect of the unlawful police conduct. Thus, defendant argues, this court should affirm the Court of Appeals.
II. THE HALL EXPLOITATION ANALYSIS We begin with a summary of the relevant parts of . In that case, the defendant voluntarily consented to a search after being stopped by police, and the police discov- ered drugs. The defendant moved to suppress, arguing that the stop had been illegal and that that illegality required suppression of the evidence despite his voluntary consent to the search. The trial court denied the motion, but the Court of Appeals reversed and ordered the evidence suppressed. 339 Or at 10-12. The state petitioned for review, arguing, among other things, that the defendant’s voluntary consent had sev- ered the causal link between the illegal police conduct and the evidence. Thus, in the state’s view, the exclusionary rule did not bar the evidence, because the illegal conduct did not bring the evidence to light. Id. at 14. On review, a majority of this court first examined the nature of the police interaction with the defendant, concluding that the officer unlawfully had stopped the defendant in violation of Article I, section 9. Id. at 19. As discussed below, the majority then addressed the proper framework for determining whether the evidence gleaned from the consent search nevertheless had to be sup- pressed because of the illegal stop.
The majority in
Hall
began by outlining the his-
tory of the exclusionary rule in Oregon and analyzing this
court’s past treatment of consent searches. The exclusionary
rule is constitutionally mandated and serves to vindicate
a defendant’s personal right to be free from unreasonable
searches and seizures.
Id.
at 24. The federal exclusionary
rule, by contrast, is premised on deterring police miscon-
duct.
Id.
at 23. The goal of the exclusionary rule in Oregon is
to “restore a defendant to the same position as if ‘the govern-
ment’s officers had stayed within the law’ ” by suppressing
evidence obtained in violation of the defendant’s rights.
Id.
at 24 (quoting
State v. Davis
,
The majority noted that illegal police conduct may negate a defendant’s consent to search and require suppres- sion of evidence in two ways. First, the consent itself may be “involuntary” if the illegal police conduct overcame the *8 defendant’s free will and the consent instead resulted from “police coercion.” Id. at 20. Second, evidence gained through a voluntary consent search still may require suppression if the defendant’s consent to search “derived from” the prior illegal police conduct. Id. at 21. The majority rejected the state’s argument that only the voluntariness inquiry was necessary, stating that, even when a defendant voluntarily consents,
“this court’s case law * * * makes clear that Article I, section 9, also requires the consideration of the effect of the unlaw- ful police conduct upon the defendant’s decision to consent, even if that conduct did not rise to the level of overcoming the defendant’s free will.”
Id.
at 32. In particular, the majority relied on
State v.
Rodriguez
, 317 Or 27, 854 P2d 399 (1993), and
State v.
Kennedy
,
The majority in Hall summarized its conclusions as follows:
“After a defendant shows a minimal factual nexus between
unlawful police conduct and the defendant’s consent, then
Quinn
’s questionable application of
Wong Sun
, but
federal exclusionary rules and
Quinn
was based on the difference between the state and
rejection of the result in . The court’s
383,
the state has the burden to prove that the defendant’s con- *9 sent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police con- duct and the defendant’s consent. A causal connection requiring suppression may exist because the police sought the defendant’s consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police con- duct. A causal connection requiring suppression also may exist because the unlawful police conduct, even if not over- coming the defendant’s free will, significantly affected the defendant’s decision to consent. Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances—such as, for example, a police officer informing the defendant of the right to refuse consent— that mitigated the effect of the unlawful police conduct.” Id. at 34-35.
Justice Durham filed a separate opinion, joined by Justice Gillette, concurring in part and dissenting in part. The dissent agreed that the defendant had been illegally stopped, but disagreed that that prior illegality should result in the suppression of the evidence gained through the consent search. The dissent asserted that the defendant’s “voluntary consent to the search demonstrate[d] that the disputed evidence came to light as the result of a reason- able, not unreasonable, search.” Id. at 39 (Durham, J., con- curring in part and dissenting in part). The dissent took issue with the majority’s reliance on Rodriguez , which the dissent characterized as incorrectly focusing on the police decision to seek consent, “rather than the voluntariness of the defendant’s consent.” Id. at 50. In the dissent’s view, the inquiry into the voluntariness of a defendant’s consent takes into account any prior illegal conduct by the police. Id. at 46. And, a voluntary consent to search fully vindicates the defendant’s rights under Article I, section 9, because the evidence was gained as a result of that consent and not by way of the prior illegality. Id. at 51.
III. CLARIFICATION AND MODIFICATION OF HALL
As it did in
Hemenway
, the state argues that we
should overrule our 2005 decision in
Hall
and instead hold
that evidence found during a voluntary consent search nec-
essarily is admissible under Article I, section 9, despite
any prior police illegality. “[T]he principle of
stare decisis
means that the party seeking to change a precedent must
assume responsibility for affirmatively persuading us that
we should abandon that precedent.”
State v. Ciancanelli
, 339
Or 282, 290,
Although we reject the state’s assertion that Hall articulated an impermissible construction of Article I, sec- tion 9, we agree that Hall ’s test for exploitation is flawed in some respects and bears refinement. As it did in Hemenway , the state argues that internal contradictions mar both steps of Hall ’s exploitation test and make the test difficult in appli- cation and uncertain in result. The state is correct that, in practice, the test has caused some confusion. Parties and the courts have struggled to determine when a defen- dant has met his or her burden of establishing a “minimal factual nexus” and whether the police exploited their illegal conduct to obtain a defendant’s consent to search. We turn to those issues.
We begin with a review of the relevant legal princi- ples. In the context of Hall and in this case, the inquiry into whether evidence obtained pursuant to a consent search must be suppressed involves three overlapping issues: (1) whether the initial stop or search was lawful; (2) whether the defendant’s consent to the subsequent search was volun- tary; and (3) assuming that the initial stop or search was unlawful and the consent to the subsequent search was vol- untary, whether the police exploited the illegality to obtain the disputed evidence.
The first issue is the lawfulness of the police-citizen
encounter. If the defendant argues that the initial encounter
was an unlawful seizure, then the court must examine the
nature of that encounter.
See Hall
,
Alternatively, the initial encounter may take the
form of a search. A search occurs when “the government
invades a protected privacy interest,”
State v. Meredith
, 337
Or 299, 303, 96 P3d 342 (2004), and a protected privacy
interest may be tied to a particular space.
See State v. Smith
,
The specific focus of
Hall
and of this case is the
third part of the inquiry: If the police-citizen encounter was
unlawful, but the consent to search was voluntary, the issue
becomes whether the police exploited their illegal conduct
to obtain the consent to search and, by that means, the evi-
dence in question. In
Wong Sun
, the United States Supreme
Court described exploitation as “whether, granting estab-
lishment of the primary illegality, the evidence to which
instant objection is made has been come at by exploita-
tion of that illegality or instead by means sufficiently dis-
tinguishable to be purged of the primary taint.” 371 US
at 488 (internal quotation marks omitted). Since at least
Kennedy
, this court has referred to and used the exploitation
analysis announced in
Wong Sun
in the context of determin-
ing whether evidence obtained through voluntary consent
searches should be suppressed.
See Kennedy
,
The relationship between the voluntariness of con- sent and exploitation, of course, is a close one. Often, when the circumstances support the determination that consent was voluntary, they also will support the conclusion that there was no exploitation of any prior police misconduct, and the converse also is true. Yet it is important to emphasize that the tests are not identical and that they address sepa- rate concerns. As Professor LaFave notes,
“While there is a sufficient overlap of the voluntariness and [exploitation] tests that often a proper result may be reached by using either one independently, it is extremely important to understand that (i) the two tests are not iden- tical, and (ii) consequently the evidence obtained by the purported consent should be held admissible only if it is determined that the consent was both voluntary and not an exploitation of the prior illegality.” Wayne R. LaFave, 4 Search and Seizure § 8.2(d), 101 (5th ed 2012) (emphasis in original; footnote omitted).
We agree. Applying both the test for voluntariness
of consent and the test for exploitation is necessary to vindi-
cate a defendant’s right to be free from unreasonable search
and seizure. When, for example, the police stop an individ-
ual without reasonable suspicion, the individual’s liberty is
restrained in violation of Article I, section 9. Because the
person stopped is unable to terminate the interaction with
police, he or she is subject to police authority in excess of con-
stitutional bounds and is thereby placed at a disadvantage
relative to the constitutional position that he or she would
have occupied in the absence of the illegal police interfer-
ence. Similarly, when the police invade a person’s protected
privacy interest without a warrant (or an exception to the
warrant requirement), the person is subject to governmen-
tal scrutiny in excess of what the constitution permits.
Exploitation analysis recognizes that police conduct that
constitutes an illegal stop or an illegal search may fall short
of coercing a defendant to consent to a subsequent request to
search, but nevertheless may require suppression because
*13
the police took advantage of information gained from their
illegal conduct or some other aspect of that conduct to obtain
consent—an advantage that they would not have had had
the police stayed within the bounds of the law.
Hall
, 339 Or
at 27-28. It is that exploitation of the prior police illegality
that must be remedied to vindicate an individual’s rights.
See State v. Sargent
,
With that background, we turn to the exploitation
test articulated in
Hall
. As noted,
Hall
announced a two-
part test for determining whether evidence acquired from
a voluntary consent search must be suppressed because the
consent was derived from an illegal seizure. First, the defen-
dant must establish a “minimal factual nexus—that is, at
minimum, the existence of a ‘but for’ relationship—between
the evidence sought to be suppressed and prior unlawful
police conduct.”
A. “Minimal Factual Nexus” Test
For the reasons that follow, we disavow the “mini- mal factual nexus” part of the Hall test. That test was drawn from a case that arose in a significantly different procedural context from Hall , and it did not take into account a relevant statute. Moreover, since this court issued , the test has been unevenly applied and, apparently, has proved confus- ing to lawyers and judges. Instead, we hold that, when a defendant has established that an illegal stop or an illegal search occurred and challenges the validity of his or her subsequent consent to a search, the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search.
Hall
adopted the “minimal factual nexus” compo-
nent of its test from
State v. Johnson
,
This court’s reliance in
Hall
on
Johnson
was mis-
placed. By statute, whenever a defendant challenges evi-
dence seized following a warrantless search, the state bears
the burden of proving “by a preponderance of the evidence
the validity of the search.” ORS 133.693(4);
State v. Tucker
,
Moreover, under the Hall test, parties were required to first focus on whether or not a “minimal factual nexus” existed before examining the more central issues of (1) whether the police had acted unlawfully in making the initial stop or search; and (2) whether the later consent to search and subsequently discovered evidence were obtained through exploitation of the unlawful police conduct. However, exploitation analysis already considers the existence of a “minimal factual nexus,” because determining whether the police exploited their unlawful conduct to gain the disputed evidence necessarily requires an examination of the causal connection between the police conduct and the defendant’s consent. Accordingly, the “minimal factual nexus” test is not analytically significant in determining whether the con- sent to search was the product of the illegal police conduct, such that evidence obtained pursuant to that search must be suppressed.
Because the “minimal factual nexus” test adopted in Hall does not have firm grounding in our case law and is inconsistent with ORS 133.693(4)—and because the appli- cation of the test has been unclear in our cases since Hall and has proved confusing to litigants and the courts—we disavow that part of the Hall analysis.
B. Exploitation Test
We now turn to the remaining—and more central—
part of the
Hall
exploitation test. That test requires the state
to prove “that the defendant’s consent was independent of,
or only tenuously related to, the unlawful police conduct.”
“A causal connection requiring suppression may exist because the police sought the defendant’s consent solely as the result of knowledge of inculpatory evidence obtained *15 from unlawful police conduct. A causal connection requir- ing suppression also may exist because the unlawful police conduct, even if not overcoming the defendant’s free will, significantly affected the defendant’s decision to consent.” Id. Hall identified several considerations relevant to deter- mining whether the “causal connection” between the unlawful police conduct and the defendant’s decision to consent is suf- ficiently strong that the police can be said to have “exploited” their unlawful conduct to gain the consent, thus requiring suppression of the evidence obtained:
“(1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances—such as, for example, a police officer informing the defendant of the right to refuse consent— that mitigated the effect of the unlawful police conduct.” Id.
The state asserts that the
Hall
test does not afford
sufficient weight to a defendant’s decision to voluntarily
relinquish his or her Article I, section 9, right to be free from
unreasonable governmental searches and seizures because,
under
Hall
, suppression almost always will be required when
consent is granted in close temporal proximity to an illegal
stop. In
Hall
itself, the court required suppression, “[g]iven
the close temporal proximity between the illegal detention
and [the] defendant’s consent, and the absence of any inter-
vening circumstances or other circumstances mitigating the
effect of that unlawful police conduct.”
Id.
at 36. This court’s
cases following
Hall
have reached similar results.
See, e.g.
,
State v. Ayles
,
We agree that the exploitation test announced in
Hall
does not account sufficiently for the importance of a
defendant’s voluntary consent to search. Our cases demon-
strate that, in some situations, a defendant’s voluntary con-
sent itself may be sufficient to demonstrate that the unlaw-
ful conduct did not affect or had only a tenuous connection
*16
to the evidence produced.
See Rodriguez
, 317 Or at 41-42;
Williamson
,
The court in
Hall
asserted that the unprompted
grant of consent in
Kennedy
and a similar volunteering of
consent in
Rodriguez
were intervening circumstances that
indicated that there was, at most, a tenuous causal connec-
tion between the consent and the prior illegal police conduct.
See Hall
,
We agree with the state that such a per se rule is untenable. A consent to search that is unprompted or uni- lateral is relevant evidence of the voluntariness of the con- sent; as recognized in Kennedy and Rodriguez , unprompted or volunteered consent is less likely to be a product of illegal police conduct. However, the fact that an officer requested consent does not demonstrate that the officer necessarily exploited the prior illegal conduct to gain consent. Rodriguez , for example, involved a voluntary consent following an ille- gal arrest. The officer did not directly ask the defendant for consent to search, but he did ask the defendant if he had any drugs or guns in his apartment. Rodriguez , 317 Or at 41. In response to that question, the defendant said, “No, go ahead and look.” Id. So, even if the defendant’s consent in Rodriguez was “volunteered,” that consent was, in fact, prompted by the officer’s question about drugs and guns. Rodriguez concluded, nevertheless, that the officer “did not *17 trade on or otherwise take advantage of the arrest to obtain defendant’s consent” in light of the factual circumstances, including the manner in which the defendant had given con- sent. Id.
Properly considered, then, a voluntary consent to search that is prompted by an officer’s request can be sufficient to demonstrate that the consent is unrelated or only tenuously related to the prior illegal police conduct. Whether the voluntary consent is sufficient—or whether the police exploited their illegal conduct to obtain consent—will depend on the totality of the circumstances. We reject the state’s position that voluntary consent during an unlawful stop or search always breaks the causal chain and makes the evidence admissible, as we likewise reject defendant’s argument that such consent, standing alone, will rarely, if ever, break the causal chain. Voluntary consent, while important, is not dispositive and does not relieve courts of undertaking the fact-specific exploitation analysis.
We also conclude that
Hall
erred in focusing exclu-
sively on “temporal proximity” and the presence of mitigat-
ing or intervening circumstances in determining whether
the police exploited unlawful conduct to obtain consent to
search.
[7]
The court in
Hall
correctly stated that determining
evidence “inevitably” would have been discovered through lawful procedures or
that the police obtained the disputed evidence “independently” of the violation of
unlawful police conduct also will be admissible if the state can prove that the
Hall
in unlawful conduct and the defendant’s consent requires suppression, and neither
of the more focused inquiry as to whether the causal connection between the
the defendant’s rights.
As discussed, our task is to determine whether
police “exploited” or “took advantage of” or “traded on” their
unlawful conduct to obtain consent, or—examined from
the perspective of the consent—whether the consent was
“tainted” because it was “derived from” or was a “product
of” the unlawful conduct.
[8]
In making that determination, it
at 501 (noting that prior cases have held that “statements given during a period
, 460 US
Royer
gality” and concluding that consent given during unlawful extension of traffic
stop was the product of that unlawful seizure (emphases added)); ,
not “the product of” an unlawful stop (emphasis in original));
Rodgers/Kirkeby derived
An overlapping but distinct concern relevant to
whether a defendant’s consent resulted from exploitation
of police misconduct is the “purpose and flagrancy” of the
misconduct. The “purpose and flagrancy” inquiry comes
from
Brown v. Illinois
,
“purpose and flagrancy” is not compatible with the “rights- based” approach. On reflection, we think that it is. [9]
Particularly flagrant conduct—such as excessive
use of force in unlawfully arresting a defendant, the unlaw-
ful forcible entry into a home by multiple officers wielding
automatic weapons, or unlawful and lengthy in-custody
interrogation—is more likely to affect the defendant’s deci-
sion to consent than more restrained behavior.
See Brown
,
422 US at 593-94, 604-05 (where officers broke into the
defendant’s apartment, searched it, and arrested him at
gunpoint without probable cause, the defendant’s subse-
quent statements were tainted by flagrant police miscon-
duct);
State v. Olson
,
Similarly, the “purpose” of the police misconduct
may be a relevant consideration in the exploitation analysis
turn in rejecting deterrence as one rationale for excluding evidence because
address that issue, interesting as it is, because we reach the same result based on
“rights-based” rationale.
Our point here is that, while Hall correctly stated that the exploitation inquiry involved consideration of the “totality of the circumstances,” that decision’s focus on tem- poral proximity and intervening and mitigating circum- stances was too narrow, because, at least by implication, it excluded other relevant considerations. The nature, extent, and severity of police misconduct—and, relatedly, the pur- pose and flagrancy of that misconduct—can vary dramat- ically, and ignoring the very different effects that police conduct may have on an individual’s consent to a search is neither reasonable nor constitutionally required.
The dissenting opinions make some thoughtful,
although ultimately unpersuasive, arguments concern-
ing our exploitation analysis. Most of those arguments are
addressed directly or indirectly elsewhere in this opinion, but
several deserve brief additional responses. Justice Baldwin
and Justice Walters suggest that we have modified the
Hall
analysis to remove the presumption that a consent search
following unlawful police conduct is “tainted” or is invalid.
On the contrary, the first part of this opinion in fact elim-
inates the requirement in
Hall
that the
defendant
show a
“minimal factual nexus” between unlawful police conduct
and the defendant’s consent before any burden shifts to the
state.
See
Justice Walters and Justice Brewer raise concerns about considering the degree or severity of different con- stitutional violations as part of the exploitation test. We acknowledge the difficult weighing that may be involved in some circumstances. Yet those challenges cannot be avoided when, as here, the relevant constitutional text prohibits only “unreasonable” searches and seizures; our cases, including Hall , admonish us to make that determination based on the “totality of the circumstances”; and the considerations that we have identified as relevant to that determination cut both ways. In our view, to treat a police trespass onto a defendant’s property to reach and knock on a back door no differently in terms of its causal effect on defendant’s vol- untary consent than if the police had broken down all the doors simultaneously, entered the home with guns drawn, and arrested defendant—simply because both scenarios involve violations of Article I, section 9—is to ignore reality. A per se rule—either the rule advocated by the state, that voluntary consent (almost always) trumps prior unlawful police conduct, or its opposite, that unlawful police conduct (almost always) trumps later voluntary consent—fails to account for the myriad variety of circumstances in police- citizen interactions. Moreover, it is not even clear that a per se rule would have the benefit of predictability, as the threshold issue of whether police acted unlawfully can, in some circumstances, involve close factual questions and is, of course, subject to the general “reasonableness” test of Article I, section 9.
Relatedly, Justice Brewer and Justice Baldwin
express concern that the principles that we apply here would
countenance constitutional violations as long as the police
are polite or courteous. We do recognize, in contrast to
Hall
,
that the purpose and flagrancy of any prior illegality may
be relevant to the determination of whether later voluntary
consent was the product of the police misconduct. However,
we do not hold that polite police misconduct necessarily
means that the subsequent consent is valid. Indeed, in
State
v. Musser
,
C. Summary
In an effort to clarify this complicated area of law,
we again review the basic principles at issue. As noted,
the overarching inquiry is whether the evidence that the
state seeks to introduce must be suppressed because that
evidence was obtained in violation of the defendant’s con-
stitutional rights. In the context of , where an illegal
stop preceded a consent to search, or in the context of this
case, where unlawful entry onto defendant’s property pre-
ceded the consent to search, that inquiry has two prongs.
First, the court must assess whether the consent was vol-
*22
untary. If the consent to search was not voluntary, then the
evidence must be suppressed, because only a voluntary con-
sent to search provides an exception in this context to the
warrant requirement of Article I, section 9.
See, e.g.
,
State
v. Guggenmos
,
Second, even if the consent is voluntary, the court must address whether the police exploited their prior illegal conduct to obtain the evidence. Exploitation may be found if, for example, the police illegally stop a vehicle, allowing them to view contraband that otherwise would not have been visi- ble, and then request the driver’s consent to search the vehi- cle as a result of what they saw. In that example, there may be a direct causal connection between the prior illegal stop and the consent because the request for consent itself (and the evidence gathered) resulted from police knowledge of the presence of that evidence, which they had only because they had observed it during the illegal stop. See Hall , 339 Or at 35 (“A causal connection requiring suppression may exist because the police sought the defendant’s consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct.”). We articulated those prin- ciples in Hall and other cases, and we adhere to them.
Hall also held that evidence may be subject to sup- pression if the police obtained the consent to search through less direct exploitation of their illegal conduct. Id. We adhere to that principle as well. As discussed previously, stated that the exploitation analysis required consideration of the totality of the circumstances to determine whether the state had carried its burden of proving that the con- sent was independent of, or only tenuously related to, the unlawful police conduct. However, the only considerations that that case mentioned in analyzing whether the police had exploited their illegal conduct to obtain consent were the temporal proximity between the illegal police conduct and the consent and the presence of any intervening or mit- igating circumstances. Id. at 35, 35 n 21. In this opinion, we have identified additional considerations that are relevant to that inquiry, including an assessment of the actual police misconduct. We have explained that the nature, extent, and severity of the constitutional violation are relevant, as are the purpose and flagrancy of the misconduct. Depending on the circumstances of the particular case, other consider- ations may be relevant to the exploitation inquiry. Professor LaFave, summarizing state and federal cases, writes:
“In determining whether the consent was, as the Court put it in Brown, ‘obtained by exploitation of an illegal arrest,’ account must be taken of the proximity of the consent to the arrest, whether the seizure brought about police obser- vation of the particular object which they sought consent to search, whether the illegal seizure was ‘flagrant police mis- conduct,’ whether the consent was volunteered rather than requested by the detaining officers, whether the arrestee was made fully aware of the fact that he could decline to consent and thus prevent an immediate search of the car or residence, whether there has been a significant intervening event such as presentation of the arrestee to a judicial offi- cer, and whether the police purpose underlying the illegal- ity was to obtain the consent.” LaFave, 4 Search and Seizure § 8.2(d) at 109-12 (footnotes omitted).
Article I, section 9, prohibits “unreasonable” searches and seizures, and exploitation analysis is necessarily nuanced. As the preceding discussion demonstrates, the test for whether a consent search conducted following an illegal search or stop comports with Article I, section 9, cannot be reduced to a simple formula.
IV. APPLICATION
In applying the principles discussed above to the present case, we begin by clarifying what is not at issue—the unlawfulness of the detectives’ conduct and the voluntari- ness of defendant’s consent. As to the first issue, the Court of Appeals determined that “the [detectives] trespassed when they entered defendant’s backyard and knocked on his back door, and the trespass violated defendant’s Article I, section 9, rights.” Unger , 252 Or App at 483. On review, the state accepts that the detectives were unlawfully in defendant’s backyard when they obtained his consent to enter his house. As to the second issue, the trial court determined that defen- dant’s consent was “freely and voluntarily made,” and defen- dant does not challenge that ruling on review. Thus, the only issue on review is whether the detectives exploited the unlawful entry into defendant’s backyard to obtain his con- sent. And that issue, in this case, is a narrow one, because there is no indication that the detectives learned of incul- patory evidence as a result of their unlawful conduct and therefore sought consent to search. Compare Hall , 339 Or at 35. Rather, the unlawful conduct simply put the detectives in a place where they could initiate contact with the occu- pants of the house. Thus, the question reduces to whether the police exploited the unlawful conduct to obtain defen- *24 dant’s consent to search.
To determine whether the state has met its burden of showing that defendant’s consent was not the product of the unlawful police conduct, we consider the totality of the circumstances, including the temporal proximity between that misconduct and the consent, and the existence of any intervening or mitigating circumstances. We also consider the nature, purpose, and flagrancy of the misconduct. Because the analysis is a fact-intensive inquiry, we return to the facts.
In response to a complaint about drug activity at defendant’s house, as well as information from an informant about the presence of children and concerns that the drugs and guns were accessible to the children, four detectives went to the house around 10:00 a.m. to conduct a “knock- and-talk.” The detectives had been told that the children “had actually gotten their hands on the cocaine” and “that there were so many guns in the residence that the children at some point had to walk over the guns.” Detectives knocked at two separate doors at the front of the house and received no response. One detective, Roberts, followed a path around the lower level of the house to a wraparound porch at the back of the house and knocked on a sliding glass door. When defendant came to the door, Roberts introduced himself as “Kevin with the sheriff’s office” and advised defendant of the drug complaint. The detectives obtained defendant’s vol- untary consent to enter the house. At least two of the other detectives joined Roberts at the sliding glass door sometime during the initial interaction.
Defendant led the detectives through what turned out to be a bedroom and into the kitchen where the detec- tives introduced themselves, and Roberts explained to defen- dant that when a drug complaint is received and “when kids are involved,” the detectives “talk to the homeowner and ask for permission and if [the homeowner] would show [them] 89 around the house.” Defendant was “cooperative” and agreed to show the detectives around the house. It was during that tour of the house that Roberts discovered the sandwich bag with methamphetamine residue that provided the basis for defendant’s arrest and the subsequent search warrant.
In framing the exploitation inquiry, we first note
that the detectives were on defendant’s property without his
permission, which constituted trespass. The state concedes
that, at least after the detectives left the front door and fol-
lowed a path to the sliding glass door in back, that tres-
pass was a “search” of defendant’s property without probable
cause, in violation of Article I, section 9. As we discuss in
greater detail below in connection with the purpose and fla-
grancy of the detectives’ conduct, however, that unlawful con-
duct simply brought the detectives, during daylight hours, to
a door of the house, which defendant opened. A conversation
ensued, and defendant voluntarily consented to the detec-
tives entering the house. The detectives’ conduct did not rise
to the level of an unlawful arrest or stop. The detectives did
*25
not unlawfully enter defendant’s home or ignore any gates
or “no trespassing” signs. Within the universe of possible
unlawful police activity, the trespass here was limited in
“extent, nature, and severity.”
Ayles
,
We also consider in the exploitation analysis the
temporal proximity between the misconduct and the defen-
dant’s consent. The detectives were trespassing on defen-
dant’s property when they obtained his consent to enter his
home. Moreover, there is no indication that any significant
amount of time elapsed between the detectives’ initial entry
onto defendant’s property and defendant’s subsequent con-
sent to show the detectives around the home. Both of defen-
dant’s consents occurred during or shortly after the detec-
tives’ unlawful conduct.
See Hall
,
The state does not identify any intervening or miti- gating circumstances, such as providing Miranda warnings or admonitions to defendant that he could refuse to consent to a search. [12] As discussed above, however, we emphasize that the focus should remain on whether the totality of the circumstances indicates that the detectives exploited their unlawful conduct to obtain consent. Temporal proximity and intervening or mitigating circumstances are not the only considerations.
We next consider the “purpose and flagrancy” of the detectives’ actions, which involves a closer look at the nature and extent of the unlawful police conduct. We do not inquire into the subjective intent or motivations of the detectives, but rather examine statements made by the detectives and the undisputed facts surrounding the contact with defen- dant. Here, the detectives were following up on information sent to search). or warnings not required, but may be significant in determining validity of con- conduct”). See also at 35 (describing “police officer informing the defendant of the right to refuse consent” as a circumstance that may mitigate “the effect of the unlawful police Search and Seizure LaFave, 4 § 8.2(i) at 152-55 (admonitions refuse to consent to their entry at the time that they entered the house. Such , See Hall 339 Or admonitions, although not required, may be helpful when the state seeks to show *26 could refuse consent to search. They did not, however, tell him that he could that it did not exploit any police misconduct to obtain consent. [12] As noted earlier, the officers told defendant, once in the house, that he about drug activity at defendant’s home, including informa- tion that there were children in the home who had been exposed to both drugs and a large volume of guns. The detectives permissibly knocked on the front door of defen - dant’s home. Although there was no response, several cars were in the driveway, and the detectives thought that some- one likely was home, so they followed a path around the house to another door and knocked on it. Their purpose— both in knocking on the front door and later on the sliding glass door—was to contact the homeowner to ask for per- mission to search the house, not to search for incriminat- ing evidence near the back door. See Perea-Rey , 680 F3d at 1187-88 (under Fourth Amendment, officers are permitted to “approach a home to contact the inhabitants” and “need not approach only a specific door”). Moreover, there is no indication that the purpose of going to the back door was that defendant would be more likely to consent at the back door, rather than the front door.
In contrast, when police observe contraband because they have unlawfully stopped someone or unlawfully entered a home—and then ask for consent to search, their “purpose” is more likely to be to seize the contraband that they already have seen as a result of their misconduct. In those circumstances, the police have “taken advantage of” or “exploited” their unlawful conduct to the defendant’s det- riment, and that tainted “purpose” suggests that the defen- dant’s consent, even if voluntary, also may be tainted. So, too, may be a consent that follows a random stop or seizure that lacks probable cause or reasonable suspicion that a crime has been committed and that is nothing more than a fishing expedition for incriminating evidence. LaFave, 4 Search and Seizure § 8.2(d) at 111-12, 112 n 154. This case presents none of those scenarios.
Moreover, the detectives’ conduct in walking around
defendant’s house to knock on his door was not flagrant or
egregious. The detectives followed a path around the side of
the house to the back door, which defendant could have cho-
sen not to open. The detectives did not have to cross any bar-
riers or use force to reach that door; they did not force or even
open the door themselves; and there is no indication that
defendant had made any effort to keep that space private.
*27
Compare U.S. v. Robeles-Ortega
,
Defendant, for his part, does not argue that any-
thing about the nature of the trespass or his interactions with
the detectives significantly affected his consent. Rather, he
contends that, if the detectives had not unlawfully entered
his backyard, they never would have been able to make con-
tact with him and obtain his consent. In other words, defen-
dant argues, “the illegal trespass placed the [detectives] in
a position to request defendant’s consent,” and, “but for” that
illegal conduct, “the [detectives] would not have been in a
position to obtain defendant’s consent.” However, this court
in
Hall—
the case on which defendant relies—rejected that
formulation of the attenuation analysis.
Hall
,
V. CONCLUSION
Encounters between the police and citizens can
take many different forms. Although unlawful police con-
duct undoubtedly has an effect on citizens and on how they
interact with police officers in certain circumstances, our
cases reject the notion that unlawful police conduct neces-
sarily requires suppression of evidence discovered follow-
ing such conduct.
See Hall
,
For the reasons stated above, we disavow the min- imal factual nexus test described in Hall . We adhere to the view expressed in Hall that a defendant’s voluntary consent to search, following unlawful police conduct, may never- theless require suppression of evidence obtained during the search, if the police exploited their unlawful conduct to gain that consent. However, we modify the exploitation analysis in Hall, which considered only the temporal prox- imity between the unlawful police conduct and the con- sent and mitigating or intervening circumstances. Rather, courts must consider the totality of the circumstances, as described above, including the nature of the illegal conduct and its purpose and flagrancy, without unduly emphasizing any single consideration.
We share the dissenters’ concerns about stability in our case law and protecting Article I, section 9, rights. This case does not damage either. Although we have clarified and modified in part the analysis set out in , the narrow issue on which we focus here, as Justice Brewer correctly notes, is a “vexing cranny” of our search and seizure law. 356 Or at 118 (Brewer, J., dissenting). Professor LaFave reminds us that there is “overlap” in the voluntariness and exploitation tests. LaFave, 4 Search and Seizure § 8.2(d) at 101. If unlawful police conduct leads to consent to search, the consent may be “involuntary” and also the “product” of the unlawful conduct. Conversely, the same facts that demonstrate that a particular consent was voluntary also may support a conclusion that the consent was not the result of exploitation of unlawful conduct—or that the police con- duct was not unlawful in the first place. The less common (although not rare) situation presented in this case is that the state no longer argues that the police conduct was lawful and defendant no longer argues that his consent was invol- untary. That procedural posture means that those critical issues are not before us, and we are instead presented with the narrow and specific exploitation issue that we have con- sidered in detail above.
Moreover, we expect that law enforcement officers will act within constitutional limitations in their inter- actions with Oregon citizens. Civil litigation, tort claims, and training and education—as well as the exclusion- ary rule—help protect Article I, section 9, rights. We also expect that trial courts will carefully consider claims of unlawful police conduct, disputes over the voluntariness of consent, and whether consent, even if voluntary, was the product of unlawful police conduct—and will make findings of fact when appropriate. An appropriate record will help the appellate courts in our ongoing effort to develop princi- pled and meaningful applications of the fundamental pro- hibition on unreasonable searches and seizures in Article I, section 9.
The decision of the Court of Appeals is reversed, *29 and the case is remanded to the Court of Appeals for further proceedings. [13]
LANDAU, J.,
concurring.
As the majority correctly observes, this court’s
cases hold that the sole rationale for the exclusion of evi-
dence obtained as a result of police misconduct is the vindi-
cation of the defendant’s constitutional rights. The purpose
of excluding evidence unlawfully obtained, the court has
explained, is “to restore a defendant to the same position as
assignments of error before the Court of Appeals. Although the court rejected
defendant’s other two assignments of error because it was unnecessary given
two of those assignments of error without discussion, the court declined to reach
the court’s disposition in the case.
See Unger
,
The problem is that the personal rights rationale for Oregon’s exclusionary rule is incomplete. It fails to sup- ply an explanation for the exclusion of evidence that, although obtained as a product of prior police misconduct, was obtained with the defendant’s consent. If a defendant has, in fact, voluntarily consented to the search, why should the courts not vindicate that decision? See Hall , 339 Or at 40-41 (Durham, J., concurring in part and dissenting in part) (consent to search that is “the product of an authentic voluntary choice and not mere resignation to the authority of the police or to the exigencies of the stop or arrest” is suf- ficient to justify warrantless search).
To answer that question, this court has invoked the idea of “tainted consent.” The police misconduct may be of a particular character that it deprives subsequent consent of its force. But the court has had a devil of a time explaining why that is so and precisely how we can identify such a taint. Moreover, the factors that it has identified for determining the existence of such a taint usually have nothing to do with whether the prior police misconduct actually affected a defendant’s decision to consent. The idea of a tainted con- sent, then, is something of a fiction.
In my view, there is a straightforward explanation for why, notwithstanding a defendant’s consent, certain unlaw- fully obtained evidence should be excluded: deterrence of future police misconduct. There are some forms of police misconduct that the courts simply should not countenance. Sometimes, regardless of whether a defendant consented, the court should exclude evidence otherwise unlawfully obtained to prevent police from reaping the benefits of their misconduct.
That is not to say that this court has erred in invok- *30 ing the vindication of personal rights as the rationale for this state’s exclusionary rule. It is to say that the court has erred in adhering to the notion that it is the sole rationale for that rule. Of course, correcting that error would require reevaluating a number of this court’s prior cases.
For years, this court explained its exclusionary
rule in terms of deterrence, following existing federal court
interpretation of the Fourth Amendment. In
State v. Nettles
,
In 1981, however, the court began to shift its focus away from deterrence as a rationale for the exclusionary rule. Writing for the court in State v. McMurphy , 291 Or 782, 785, 635 P2d 372 (1981), Justice Linde commented that “the deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself.” Justice Linde’s comment was obiter dictum , but it was to lay the groundwork for a rethinking of the rationale for the state’s exclusionary rule in subsequent cases.
Two years later, in
State v. Davis
,
In
State v. Tanner
,
Justice Jones, joined by Justice Peterson, dissented, complaining that “[t]he whole theory that Oregon’s exclu- sionary rule is somehow predicated on a personal right of a defendant simply falls for lack of any foundation.” Id . at 341. Justice Jones challenged the majority’s reliance on McMurphy , which he said was “predicated on pure dictum ,” id . at 330, as well as Davis , which he asserted was based on a misreading of prior case law, id . at 331-33.
Justice Gillette concurred, but he expressly disasso- ciated himself “from the ‘personal right’ vs. ‘deterrent’ struggle into which this case has developed.” Id . at 324-25. He commented that, although Justice Jones made “some good points” in questioning the majority’s description of the court’s own prior cases, in his view, the result in that case would be the same under either rationale, so it was unneces- sary for him to weigh in on the debate between the dissent and the majority. Id .
In
State ex rel. Juv. Dept. v. Rogers
, 314 Or 114,
117-18,
It is perhaps worth noting that this court, in stak-
ing out the position that deterrence has no role in deter-
mining whether evidence must be excluded, stands almost
alone. Nearly all the state courts that have adopted an
exclusionary rule under their state constitutions recognize
*32
that deterrence is, at the very least, a relevant consideration
in determining whether to exclude evidence.
[1]
The Supreme
Court of Alaska, for example, has explained that its state
constitutional exclusionary rule “has twin rationales. One
of these rationales is deterrence of unconstitutional meth-
ods of law enforcement. The other rationale is the impera-
tive of judicial integrity.”
State v. Sears
,
In that light, it strikes me as odd that this court, in
recognizing the importance of vindicating personal rights
as a justification for this state’s exclusionary rule, has con-
cluded that it is necessary to abandon the justification of
deterrence. In fact, although the court expended a great
deal of effort attempting to justify the personal rights justi-
fication in
Davis
, it has never expended much of any effort
at explaining why deterrence did not continue to be a valid
justification for exclusion as well. The court appears to
have predicated its decision on the assumption that it was
purposefully violate the constitution to obtain evidence to use at trial, ‘the suc-
cess of the lawless venture depends entirely on the court’s lending its aid by
allowing’ the use of the evidence. If the law does not permit the gathering of the
evidence, the court should not ‘have a hand in such dirty business’ by allowing its
use. Further, it would be a ‘pernicious doctrine’ to declare that the government
should ‘commit crimes’ in order to secure the conviction of criminals.”);
Watson
v. State
, 302 Ga App 619, 624,
In the course of the last 30 years of case law, this
court has offered some hints as to the source of its discom-
fort with deterrence. I find none of them particularly persua-
sive, though. First, in
McMurphy
, Justice Linde suggested in
dictum
that, although deterrence may be “a desired conse-
quence,” nevertheless it “is not the constitutional basis for
respecting the rights of a defendant against whom the state
proposes to use evidence already seized.”
McMurphy
, 291 Or
at 785. Justice Linde, however, never explained precisely
why deterrence lacks a constitutional basis. And, indeed,
although this court frequently has repeated the conclusion,
to my knowledge, the court has never explained it. The court
appears to assume that deterrence is merely a judicially cre-
ated prophylactic that cannot be rooted in the constitution
itself. Even assuming that to be the case, however, I find it
useful to note that the court has felt no such hesitation in
requiring
Miranda
-type warnings under Article I, section
12, of the Oregon Constitution, even though nothing in the
constitution itself requires it.
State v. Moore/Coen
, 349 Or
371, 382,
Second, it has been suggested that adopting a deter-
rence rationale would open the door for defendants to chal-
lenge the admissibility of evidence that was admitted in vio-
lation of someone else’s constitutional rights. That concern, in
fact, appears to be the principal underpinning of the court’s
rejection of deterrence in
Tanner
. 304 Or at 315-16 (“the
search or seizure must violate the defendant’s [Article I,]
*34
section 9[,] rights before evidence obtained thereby will be
suppressed; a defendant’s section 9 rights are not violated
merely by admitting evidence obtained in violation of sec-
tion 9”). Justice Linde likewise voiced the same concern in
McMurphy
, in which he noted that “it should make no dif-
ference whose rights were invaded” if deterrence is the jus-
tification for exclusion.
Third, it also has been suggested that adopting a deterrence rationale for the state’s exclusionary rule leads to the recognition of a malleable “good faith exception” that would apply when police officers may violate a defendant’s Article I, section 9, rights, but do so in good faith. See, e.g. , Tanner , 304 Or at 325 (Gillette, J., concurring) (“The vac- illation and retraction in recent years in the United States Supreme Court’s Fourth Amendment jurisprudence, leading to its inexplicable ‘good faith’ exception to the exclusionary rule * * * satisfies me that the ‘deterrence’ rationale does not vindicate adequately the interests to which Article I, section 9, speaks.”). But a good faith exception does not necessar- ily follow from consideration of deterrence as a justification for an exclusionary rule. In any event, the purpose and fla- grancy of an officer’s conduct already is routinely taken into account, and that strikes me as pretty much the same thing as inquiring into the officer’s good faith.
As I noted at the outset, one problem with the court’s exclusive focus on personal rights as the basis for its exclu- sionary rule arises when a defendant consents to a warrant- less search or seizure that is in some way causally connected to prior police misconduct. In my view, the personal rights explanation for exclusion fails to explain why a defendant’s voluntary consent does not suffice to justify the search.
The court’s usual explanation is that the prior ille-
gality can “taint” the otherwise perfectly voluntary consent.
But the test for the existence of such a taint has nothing to
do with whether the police misconduct actually affected the
consent in any way. In , for example, a majority of this
court declared that, even in a case in which the defendant
voluntarily consents to a search, prior police misconduct
will require the exclusion of evidence obtained from that
search if that misconduct “significantly affected” the defen-
dant’s consent.
Part of the problem, I think, is that the court has
borrowed its analysis for excluding otherwise voluntary con-
fessions from Fourth Amendment cases such as
Brown v.
Illinois
,
Indeed, the factors that Brown mentioned, and that this court has borrowed—temporal proximity, the presence of intervening circumstances, and the purpose and fla- grancy of police misconduct—make much better sense in the context of a policy of deterrence. Each goes to the char- acter of the police actions, regardless of their actual effect on a defendant’s decision to consent to a search. Small wonder, then, that this court has struggled to explain its decisions when it is attempting to apply the federal analysis while, at the same, rejecting the rationale for it.
If this court wishes to better explain the exclu- sion of evidence procured from consent searches based on prior police misconduct, it seems to me that it will have to reconsider its categorical abjuration of deterrence as a justification for its exclusionary rule and include deterrence as an additional justification for the rule. I suggest that, in an appropriate case, the court should do that. Until then, I join the majority, which gives greater attention to the role of a defendant’s consent to a warrantless search.
WALTERS, J., dissenting.
This case begins with a conceded violation of the Oregon Constitution and ends without legal consequence. That is wrong, and, respectfully, I dissent.
Until today, like courts throughout this nation,
[1]
this court recognized that, when a police officer violates the
constitution and then, while the constitutional violation is
ongoing, obtains a defendant’s voluntary consent to search,
the constitutional violation has a causal connection to the
consent and the resulting evidence must be suppressed
unless the state proves other intervening or mitigating
facts.
State v. Ayles
,
I concede that the majority does not acknowledge
those fundamental shifts.
State v. Unger
, 356 Or 59, ___
obtained immediately after illegal seizure, without any “appreciable interven-
ing evidence from voluntary consent obtained during illegal extension of traffic
United States v. Lopez-Arias
stop); ,
It is when the majority applies the principles that it articulates that the majority reveals the extent to which it “refines” prior law. In describing the officers’ unconstitutional conduct in this case, the majority writes that “nothing about the limited nature of the unlawful conduct, or the purpose or flagrancy of the conduct, suggests that it caused defen- dant to consent to the search.” 356 Or at 92. If the major- ity had presumed that the officers’ illegality and defendant’s consent to search were causally connected, the majority— like courts throughout the nation and like the Oregon courts that decided the cases cited above—would have been required to move to the next step in the analysis and con- sider whether the state had proved intervening or mitigating facts that would permit the admission of the evidence. And, had the majority moved to that step, it would have been com- pelled to concede that the state had not proved such facts.
In its application of the principles that it articu- lates, the majority neither presumes a causal connection between the police illegality and defendant’s consent to search nor rests its decision on the state’s proof of interven- ing or mitigating facts. Rather, the majority dispenses with the presumption by declaring that “mere but-for causation is insufficient to justify suppression of the evidence, even in the absence of intervening or mitigating circumstances.” Id . In so declaring, the majority not only disregards the advan- *37 tage that an officer commands when engaged in a continu- ing constitutional violation, the majority also ignores this court’s holding in Ayles that there is nothing “mere” about the motivating effect of such an advantage:
“[A] defendant establishes a more substantial connection than merely one thing occurring after another when that
defendant establishes that he or she consented to a search
during
an unlawful detention. In such a circumstance, the
fact that the defendant is not legally free to leave because
of the illegal police activity cannot be discounted in moti-
vating the defendant’s consent, and therefore, such illegal
police conduct normally will be at least minimally con-
nected to the defendant’s decision to consent.”
Moreover, by ignoring the causal connection that
exists when officers use unconstitutional means to seek and
obtain consent to search, the majority effectively shifts the
burden of proof to the defendant. Instead of requiring the
state to prove that the evidence that the officers obtained
did not derive from their unconstitutional acts by prov-
ing intervening or mitigating circumstances, the majority
requires the defendant to prove facts in addition to the police
illegality to demonstrate the necessary causal connection.
Thus, the majority relies on the fact that defendant “does
not argue that anything about the nature of the trespass
or his interactions with the detectives significantly affected
his consent.”
Why the unacknowledged change in the presump-
tion and the burden? The majority does not dispute that,
when an individual is “subject to police authority in excess
of constitutional bounds,” the individual is “placed at a dis-
advantage relative to the constitutional position that he or
she would have occupied in the absence of the illegal police
interference.” 356 Or at 73. The majority concedes that
“every police illegality places an individual in a worse posi-
tion than if no illegality had occurred[.]”
As the reason for the changes that it implements,
the majority states that “the exploitation test announced in
Hall
does not account sufficiently for the importance of a
defendant’s voluntary consent to search.”
The majority acknowledges as much when it states
that “
Hall
could be read as effectively having
created
a
per se
rule that evidence gained from a requested consent search
always must be suppressed if that request occurs in close
temporal proximity to the illegal stop and no intervening
or mitigating circumstances exist.” 356 Or at 78 (empha-
sis added). The majority is correct in that understanding
of
Hall
. The majority is wrong when, later in its opinion, it
cites
Hall
for the proposition that “mere but-for causation is
insufficient to justify suppression of the evidence[.]” 356 Or
their illegality. The evidence was not admitted: “[T]he officers * * * were trading
on evidence that they had only by virtue of the unlawful roadblock. That is a far
in which police officers had traded on evidence that they had only by virtue of
. at 626.
Id
.”
Kennedy
cry from
[2]
The majority also cites
State v. Williamson
,
The majority is correct that, in , the court stated that
“this court has rejected the notion that evidence is rendered inadmissible under Article I, section 9, simply because it was obtained after unlawful police conduct or because *39 it would not have been obtained ‘but for’ unlawful police conduct.”
“[A]fter a defendant establishes the existence of a mini-
mal factual nexus—that is, at minimum,
the existence of
a ‘but for’ relationship—
between the evidence sought to be
suppressed and prior unlawful police conduct, the state
nevertheless may establish that the disputed evidence
is admissible under Article I, section 9, by proving that
the evidence did not derive from the preceding illegality.
To make that showing, the state must prove that either
(1) the police inevitably would have obtained the disputed
evidence through lawful procedures even without the vio-
lation of the defendant’s rights under Article I, section 9,
see, e.g.
,
Johnson
,
In
Hall
, the court cited
State v. Jones
,
“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.”
Hall and this court’s decisions since Hall make clear that, when the police engage in unconstitutional con- duct that gives them an advantage and thereby obtain con- *40 sent to search, the resulting evidence must be suppressed to restore the defendant to the position the defendant would have occupied had the police acted within the bounds of the law. As is evident from those cases, the defendant’s consent results from the unconstitutional act—it is a continuation of that act and not a break in the causal chain. The court explained why that is so in Ayles :
“A defendant gains nothing from having a constitutional right not to be seized if the police can seize him and—by definition—use the circumstance of that seizure as a guar- antee of an opportunity to ask him to further surrender his liberty.”
348 Or at 631. Thus, in Ayles , Rodgers/Kirkeby , and Hall , once the defendants established that officers had used the advantage afforded by their unconstitutional acts to obtain consent to search, the evidence that the officers obtained as a result was suppressed.
In reaching a contrary result in this case, the major-
ity does far more than merely “refine” the
Hall
analysis
and add factors for a court’s consideration: It changes its
focus completely. The majority notes, unremarkably, that,
if an officer’s conduct is “intrusive, extended, or severe, it
is more likely to influence improperly a defendant’s consent
to search.” 356 Or at 81. The majority then reasons from
the dissent in
Ayles
that, “where the nature and severity of
the violation is limited, so too may be the extent to which
the defendant’s consent is ‘tainted’ ” and that “the degree
of attenuation necessary to purge the taint is correspond-
ingly reduced.”
Id
. (citing
Ayles
, 348 Or at 654 (Kistler, J.,
dissenting)). The majority also engrafts federal consider-
ations of “purpose” and “flagrancy” into the Oregon consti-
tutional analysis. The majority reasons that particularly
flagrant conduct is “more likely to affect the defendant’s
decision to consent than more restrained behavior[,]” 356
Or at 82, and that purposeful police conduct may be “rel-
evant both to understanding the nature of the misconduct
and, ultimately, to deciding whether the police exploited
that misconduct to obtain consent to search.”
Certainly more intrusive, extended, severe, fla- grant, or purposeful unconstitutional conduct may have a greater effect on a defendant’s decision to consent, but that does not mean that other unconstitutional conduct has none. What the majority refuses to confront openly is that, until today, the state was required to prove some intervening or mitigating circumstance other than a tainted consent to obtain admission of illegally obtained evidence.
To reach its conclusion that a court need not sup- press the evidence that officers gain when they engage in unconstitutional conduct and simultaneously seek and obtain consent to search, the majority must overrule one of two holdings: (1) the holdings in , Rodgers/Kirkeby , and Ayles that an ongoing constitutional violation significantly affects and is causally related to a defendant’s simultaneous consent to search; or (2) the holdings in those cases that, when such a causal connection exists, the constitutional *41 violation—whatever its nature or severity—requires sup- pression. If it overrules the former, then the majority disregards the advantage that officers obtain when they seek consent during the course of a constitutional violation. If it overrules the latter, then the majority determines by the attachment of adjectives which constitutional violations will be vindicated and which will not.
The fact that the majority explicitly overrules nei- ther is itself troubling. In Farmers Ins. Co. v. Mowry , 350 Or 686, 261 P3d 1 (2011), the court decided not to overrule a prior decision because
“[w]e assume that fully considered prior cases were cor-
rectly decided, and defendant raises no argument that was
not rejected by the majority in [the prior decision]. As such,
there is no principled reason for this court to overrule [that
decision] on the ground that the majority was wrong. * * *
[J]udicial fashion or personal policy preference are not suf-
ficient grounds to reverse well established precedent.”
Mowry
,
It may seem “reasonable,” in a constitutional sense,
to permit officers to enter the backyard of a home, knock at
a bedroom door, and seek consent to enter when the officers
suspect drug activity and are concerned about the welfare
of children inside the home. Courts with that view have rea-
soned that the officers do not violate the constitution when,
pursuing a lawful objective, they walk to the back door of a
residence after receiving no response at the front.
See, e.g.
,
United States v. Perea-Rey
,
But that is not what the majority decides here. The majority accepts the state’s concession that the officers acted unreasonably and violated defendant’s Article I, section 9, rights when they moved beyond his front door and entered his property. The majority then holds that it will impose no consequence for that violation. The majority refuses to restore defendant to the position that he would have occupied if “the government’s officers had stayed within the law.” Davis , 295 Or at 234. What that means is that officers may violate the constitution without consequence in this and other circum- stances in the future and, consequently, that the state may benefit from the officers’ constitutional violations. The only apparent restriction imposed by the majority is that a court may decide, after the fact, that the conduct of the officers was so severe, purposeful, or flagrant that, in the court’s opinion, suppression must follow. But how can the police or the public know before the fact which adjective a court will attach? And, more importantly, by what measure will this court determine the “degree” of the constitutional violation?
If an officer’s acts are “reasonable,” then, perhaps,
they do not violate the constitution. But if the officer’s acts
do violate the constitution, they cannot be deemed “reason-
able” in any sense of that word.
[3]
Courts, understandably,
“which gives greater attention to the role of a defendant’s consent to a warrant-
less search.”
Id
. at 103.
dissent in , Justice Landau asks: “If a defendant has, in fact, voluntarily con-
, and joins the majority
duct may “deprive[ ] subsequent consent of its force[,]”
id.
at 95 (Landau, J., concurring). He expresses doubt about whether police miscon-
sented to the search, why should the courts not vindicate that decision?” 356 Or
[3]
With respect, the concurrence mistakes the focus of the inquiry. Citing the
The issue that we confront is not whether a defendant’s consent obviates the
need for a warrant, is valid, or has “force.” If officers obtain voluntary consent
wish to hold criminals accountable for their crimes. But the
majority’s new rule removes a solid brick from the constitu-
tional wall that prohibits the state from benefitting from its
illegality.
See Davis
,
to search, the consent is valid and effective in the sense that the officers do not
violate the constitution when they search pursuant to the consent and without
a warrant. In that sense, the ensuing search is reasonable and constitutional.
But that does not answer the question of the consequence that flows from the
preceding
unconstitutional and admittedly unreasonable act—in this case, the
*43
illegal entry.
We know from the majority opinion in this case, adhering to prior cases,
that, when officers illegally stop a car, see contraband that they would not have
seen had they acted within constitutional bounds, and seek and obtain the
defendant’s voluntary consent to search, the officers exploit their illegal seizure
and the evidence must be suppressed. 356 Or at 86. That is so, even though
the consent was valid and of force in the sense that the officers did not violate
the constitution when they searched pursuant to the consent and without a
warrant. The evidence is suppressed not because the officers searched without
valid consent; rather, it is suppressed because the officers stopped and seized
the defendant illegally. That illegal seizure gave the officers an advantage—the
vantage that allowed them to see the contraband—and they used that advan-
tage to seek consent to search. Suppression is required to restore the defen-
dant to the position that the defendant would have held had the officers acted
constitutionally.
My point is that it is not the validity of a defendant’s consent that is an issue
in an exploitation analysis. Instead, the issue is the consequence that a court will
impose when officers obtain, by unconstitutional acts, an advantage that they
would not have held had they remained within the law.
“the idea” of tainted consent to be “something of a fiction.”
This case illustrates the significance of the change that the majority has engineered. In this case, as the state concedes, the court must adhere to a century of jurispru- dence and acknowledge that the officers violated defendant’s Article I, section 9, rights when they entered his backyard. But under the majority’s rule, the court need not engage in the analysis necessary to overrule that precedent; rather, it may describe the violation as “limited” and thereby permit it.
This court has an obligation to demonstrate to the people of Oregon that our constitution is enduring: That it is made of sterner stuff than four votes represent; that it can withstand the forces of the day that call, always call, for understanding and flexibility to permit the government to act. Surely government must act; but when it violates the constitution in doing so, it should not benefit.
I respectfully dissent.
Baldwin, J., joins in this opinion.
BREWER, J., dissenting.
Article I, section 9, of the Oregon Constitution
protects the personal right to be secure against unlawful
searches and seizures.
State v. Davis
,
Questions frequently have arisen concerning the
causal connection between a person’s consent to search
and a preceding violation of his or her right to be free from
an unlawful search or seizure. The argument that, where
consent is voluntary, there is no constitutional right to be
restored to the person has persistently been made.
See, e.g.
,
State v. Rodgers/Kirkeby
,
As the majority notes, the state has the burden to
prove by a preponderance of the evidence that a warrantless
search is valid.
State v. Tucker
,
The considerations that this court identified in
Hall
are “relevant to” the determination whether unlawful police
conduct significantly affected the giving of consent.
Id.
Those
considerations are (1) the “temporal proximity” between
the unlawful police conduct and the defendant’s consent;
(2) the existence of any intervening circumstances; and
(3) the presence of any other circumstances, such as
Miranda
warnings or other admonitions, that would have informed
the defendant of his or her right to refuse consent and would
have mitigated the effect of the illegal police conduct.
Hall
,
Because the factors of purpose and flagrancy that the
majority introduces derive from Fourth Amendment juris-
prudence, it is useful to consider the historical similarities
“In
Brown v. Illinois
,
To characterize unlawful police conduct as “pur-
poseful” means that the misconduct was investigatory in
design and purpose and executed “in the hope that some-
thing might turn up.”
Brown
,
understand why a deterrence-based rationale for suppression should not supple-
ment the rights-based focus of Article I, section 9. This court came close to—but
fell short of—saying as much in
State v. McMurphy
,
“[T]he deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself.” The court’s reticence was understandable, in that it probably foresaw the unfortunate consequences of an analysis that either supplants a rights-based focus with a deterrence rationale or uses lower deterrence value as a counter- weight to the protection of personal rights where the court perceives a constitu- tional violation to be “minor.” For that reason, I would insist on describing deter- rence as a supplemental—not alternative or collateral—rationale for suppression where consent to search is not fully informed.
A related problem exists with respect to applying the
factor of flagrancy. Misconduct is “flagrant” when its “impro-
priety * * * was obvious or the officer knew, at the time, that
his conduct was likely unconstitutional but engaged in it
nevertheless.”
Green
,
On the other hand, police conduct whose unlaw- fulness is obvious to a suspect can affect the giving of con- sent, even when it does not literally overcome the free will of the suspect. The question is how such manifest flagrancy should be weighed or balanced, if at all, in the attenuation analysis. Under the majority’s conception, it would appear that politely executed police misconduct—although obvi- ously illegal—may not unlawfully taint consent even when it is given in close temporal proximity to the misconduct, no intervening circumstances operate to break the causal connection between the two, and the suspect is not advised of his or her right to refuse consent.
In my view, it is in this vexing cranny of Oregon’s search and seizure jurisprudence that there is a special— albeit supplemental—space for deterrence, even though the primary focus of Article I, section 9, is to protect per- sonal rights. If unlawful police conduct is flagrant in a way that is pertinent to the attenuation analysis in consent cases—that is, its unlawfulness is obvious to the officer and *48 suspect alike—then it has no business occurring, even if delivered in an inoffensive wrapper. Flagrant misconduct, however committed, should weigh heavily in favor of sup- pression both to protect personal rights and so that officers are not tempted to think that they can engage in unlawful evidence-generating acts with impunity as long as they do so courteously.
But, where police misconduct is not flagrant in the constitutional sense, that is, where the officer does not know or likely know that he or she has engaged in unlawful con- duct, and if there is no reason for the suspect to know that the conduct is unlawful either, there still remains a risk that the unlawful conduct will significantly affect the giving of consent when the latter follows the former in brief sequence and the suspect is not advised that he or she is free to refuse consent. In other words, the fact that police conduct was not obviously unlawful does not necessarily make it less likely that the misconduct affected the giving of consent. Thus, subject to the caveat discussed below, there is little room in a rights-focused conception of Article I, section 9, for a lack of flagrancy in unlawful police conduct to weigh in favor of attenuation in the context of a consent search where other factors point in the direction of suppression.
That said, as this court stated in
Hall
, the issue
is what “effect” unlawful police conduct had on a suspect’s
decision to give consent to search. , 339 Or at 32. For
that reason, it is tempting to agree—at least in principle—
with the logic of the following statement by Justice Kistler
in his dissenting opinion in
State v. Ayles
,
“The degree of attenuation necessary to purge the taint var- ies with the extent of the taint, and where * * * any taint is minimal, the required degree of attenuation is correspond- ingly reduced. The point has nothing to do with deterrence. Rather, under a rights-based suppression analysis, the degree of attenuation necessary to purge the taint (and thus restore the defendant to the position he or she would have been in had no constitutional violation occurred) var- ies with the extent, nature, and severity of any illegality. Any other rationale would give a constitutional violation that had only minimal effect far greater reach than either the constitution requires or good sense warrants.” I cannot rule out the possibility that nonflagrant but unlawful police conduct that is relatively brief in dura- tion and “minor” in its nature and degree of severity might not significantly affect a suspect’s decision to give consent yet still qualify as an unreasonable search or seizure for constitutional purposes. Such a bare constitutional violation *49 120
arguably could be a mere “but for” cause of obtaining dis-
puted evidence, and thus not require suppression.
[7]
See Hall
,
As noted, the state had the burden of showing by a preponderance of the evidence that the warrantless entry into and ensuing search of defendant’s residence was valid. Tucker , 330 Or at 90-91. Thus, the state was required to prove that the police trespass in this case did not signifi- cantly affect defendant’s consent for the police to enter and search his residence. , 339 Or at 34-35. The evidence showed that the police officers here had knocked for a signif- icant period of time at doors of defendant’s residence where they lawfully could be present. After receiving no response for “two to three minutes,” they then unlawfully entered the backyard of the residence and, knocking at a sliding glass door to defendant’s bedroom, roused him out of bed. Without advising defendant that he did not have to allow them further entry, one of the officers told defendant that the police had received complaints of drug activity at his residence and asked defendant if he could enter. Defendant asked to put on a robe and then allowed the four officers to enter.
always sufficient that the result would not have happened in the absence of the Handbook on Criminal Law would not have occurred.” W. La Fave & A. Scott, conduct; or, putting it another way, that ‘but for’ the antecedent conduct the result (1972). “In order that conduct be the actual cause of a particular result it is almost [7]
Defendant led the officers from his bedroom, where his girlfriend was still in bed, into his kitchen. An officer repeated that they were investigating complaints about drug activity and asked defendant if he would show them around the house. Although the officers were polite and the tone of the encounter was conversational, few people sub- jected to it would regard such an intrusive, focused, and determined police presence at their backyard bedroom door as a minor or insignificant factor in deciding whether to give *50 consent to search their residence. Unsurprisingly, defendant did give consent. Only after locating incriminating evidence inside the residence did an officer read defendant a prepared “consent to search” card. At that point, defendant exercised his right to counsel, refused to sign the card, and, again, predictably—but too late—asked the officers to leave.
Here, the unlawful trespass violated defendant’s right to be secure against unreasonable searches of his personal residence, because it closely preceded the initial giving of consent, no cognizable intervening circumstance broke the causal connection between the officers’ unlawful presence at defendant’s bedroom door and the giving of con- sent (or the ensuing discovery of the challenged evidence), and the advice of rights came too late to make a practical difference in defendant’s initial decision to give consent. To punctuate matters, once defendant understood his rights, he belatedly asked the officers to leave. Finally, and moreover, even if the flagrancy of the police misconduct in this case were relevant to the attenuation analysis, there was no evi- dence that the officers mistakenly but reasonably believed that they had acted lawfully in entering defendant’s back- yard and knocking on his bedroom door, much less that any such belief affected defendant’s decision whether to give con- sent to the ensuing entry into and search of his residence.
Accordingly, I would conclude that the state failed to meet its burden to show by a preponderance of the evi- dence that the police trespass did not significantly affect defendant’s consent to the entry into and search of his res- idence. Suppression was required in those circumstances, even though defendant voluntarily consented to the entry and initial search of his residence. In my view, to so con- clude does not undervalue the effect of defendant’s consent; rather, it accords that consent the reduced weight to which it is properly entitled in the attenuation analysis, where the police engaged in unlawful conduct in an effort to obtain the consent and there is no indication that, in giving it, the defendant was aware either of the unlawfulness of the police conduct or of his right to refuse. I therefore respectfully dissent.
BALDWIN, J., dissenting.
In this case, several officers deliberately violated defendant’s privacy rights protected by Article I, section 9, of the Oregon Constitution. After two of the officers entered defendant’s backyard, they approached a sliding glass door connected to defendant’s bedroom. Detective Roberts knocked on the glass door, looked through it. and observed defendant. Awakened by the intrusion, defendant opened the door. Roberts asked to enter the residence to look around, and defendant allowed him and the other officers to do so. The officers then discovered illegal drugs in defendant’s resi- dence. Today, by declining to suppress the evidence obtained as a result of that deliberate violation of defendant’s privacy rights, the majority departs from longstanding precedents of this court protecting the privacy rights of citizens in their homes from warrantless governmental intrusions.
Without a search warrant, the officers went to defen- dant’s residence early on a Sunday morning to investigate suspected drug activity. To be sure, the officers’ conduct in knocking on the front door of the residence accessible to the public was appropriate and necessary based on the infor- mation that they had received. However, rather than stay- ing within the constitutional bounds of a proper investiga- tion, the officers chose to pursue an illegal course of action. Freelancing, the officers entered defendant’s backyard and approached a private entrance to defendant’s bedroom. Detective Scharmota testified that, when defendant came to the door, “[h]e had just gotten out of bed. He complained of some back pain, he was pretty sore.” The trial court found that defendant “awoke to the knock on the slider door in the back and the [detectives] allowed him to put a robe on” and that “it was obvious that the girlfriend was still in the bed” when the detectives entered defendant’s bedroom.
On review of the trial court’s denial of defendant’s motion to suppress, the Court of Appeals rejected the state’s argument “that the officers’ trespass did not taint the defen- dant’s consent.” State v. Unger , 252 Or App 478, 487, 287 P3d 196 (2012). Betraying incredulity, the unanimous panel opined that, “if the state’s argument were correct, officers could break into an individual’s home, sit inside and wait for the defendant to return home, and then ask the defendant for consent to search the home.” Id . at 487-88. The court concluded,
“In sum, the officers violated defendant’s constitutional rights by trespassing on his property, and that violation tainted his subsequent consent to the officers’ entry into and search of his house. As a result, all evidence obtained as a result of the entry and search should have been suppressed.”
Id. at 488.
According to the rule now adopted by the majority,
police officers may deliberately violate the privacy rights
of citizens in their homes when, as here, they knock on a
private back door, startle an occupant, ask to search the
occupant’s home, and then exploit the fiction of a consen-
sual search if evidence of a crime is found in the home. If no
evidence of a crime is found, the occupants will simply be
required to endure the unreasonable governmental intru-
sion without a legal remedy. Article I, section 9, now pro-
vides no protection against such a warrantless search if the
officers are well-mannered and courteous as they violate the
constitutional rights of the occupants.
The Court of Appeals properly followed
State v.
Hall
,
priate resolution of this case. Under Hall , where, as here, a defendant’s consent is tainted by illegal police conduct,
“the state must prove that the defendant’s consent was independent of, or only tenuously related to, the illegal police conduct. As * * * explained in , *52 “ ‘consent is insufficient to establish the admissibility of evidence from a warrantless search if the state can- not 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. Unless the
state is able to make that showing, then the defendant’s
consent cannot operate to validate a warrantless search
because the defendant’s consent
itself
derived from
a violation of the defendant’s rights under that state
constitutional provision. To not require suppression
in such circumstances would be inconsistent with the
previously described rationale underlying the Oregon
exclusionary rule, that is, to place a defendant in the
same position as if the governmental officers had acted
within the bounds of the law.’ ”
Unger
,
Here, the state could not demonstrate that defen- dant’s consent was independent of or only tenuously related to the officers’ unreasonable intrusion:
“The trespass gave the officers the opportunity to obtain defendant’s consent. In addition, the trespass was ongoing when the officers obtained defendant’s consent to enter his house; the officers were standing, illegally, at the back of defendant’s house when they obtained his consent to enter. That is, they were violating his rights when they asked if he would waive them. Indeed, he was facing a trespass by the very persons he would call to report a trespass.” Id. at 486.
Remarkably, under circumstances that include a startled and shaky consent to search a private residence, the majority decides to diminish the constitutional protection of Article I, section 9, because “the exploitation test announced in does not account sufficiently for the importance of a defendant’s voluntary consent.” State v. Unger , 356 Or 59, ___ P3d ___. In my view, the majority has not adequately explained why the constitutional protection of Article I, section 9, should be relaxed when police officers unreason- ably intrude into a private area of a home for the purpose of obtaining a consent to search the home.
The majority’s analysis appears to be based on a premise that the illegal conduct of the police had dissipated by the time that the officers made a specific request to search defendant’s home. It had not. As recognized by the Court of *53 Appeals, the officers continued to violate defendant’s right to privacy: “[W]hen the officers obtained defendant’s con- sent to enter his house * * * they were violating his rights when they asked if he would waive them.” Unger , 252 Or App at 486. Although the majority appears to still require that the state prove that the defendant’s consent was suffi- cient to attenuate the taint of the illegal police conduct, the state has not demonstrated such attenuation in this case. The state is unable to do so, in part, because the illegality was ongoing at the time that the officers made the request to search defendant’s home.
The majority cites no evidence produced by the
state—no facts—tending to prove that the ongoing illegal
police conduct was only a minor or remote cause of defen-
dant’s consent.
See
,
e.g.
,
State v. Rodriguez
,
Thus, while the majority purports to retain the
requirement that the state has the burden of proving that the
taint from illegal police conduct has been attenuated, that
requirement is dispensed within this case. Even though the
state has failed to meet its burden of proving attenuation,
the majority now holds that the “purpose and flagrancy” of
the illegal police conduct is “relevant to whether a defen-
dant’s consent resulted from exploitation of police miscon-
duct.”
Unger
,
I also take exception to the majority’s reliance on
*54
dictum
in
United States v. Perea-Ray
,
Further, I dissent because the majority opinion, in addition to effectively overruling , also seriously under- mines the stability of other Article I, section 9, cases decided by this court.
Contrary to prior case law, the majority appears to
view the conduct of the officers here as no more than a sim-
ple trespass. A neighbor or stranger may trespass. But this
court has held that the warrantless intrusion by a police
officer into the protected area of a home is a constitutional
violation of the privacy rights of a citizen by the government.
In my view, the rule fashioned by the majority today permits
a deliberate governmental intrusion into the privacy inter-
ests of citizens in their homes.
See State v. Tanner
, 304 Or
312, 321 n 7,
The majority errs by not recognizing the importance of the privacy interests at stake in this case. More than 50 years ago, Justice Kenneth O’Connell emphasized the critical importance of this court recognizing the full con- *55 stitutional dimensions of its search and seizure decisions under Article I, section 9:
“The fundamental fallacy in the position taken by the majority is in viewing the law of search and seizure as if it had no constitutional content. The majority puts the problem in terms of weighing the interest of efficient law enforcement against the interest of the citizen to be free from an inordinate invasion of his privacy. The problem is treated as if it involved nothing more than a tort principle comparable to that which extends a privilege of entry upon private property to a fireman or policeman in carrying out a governmental function. In search and seizure cases the interest which is our principal concern is the citizen’s
interest in being free from surveillance by executive officers of the government. The interest may be evaluated in terms of the danger which prompted the adoption of the Fourth Amendment. The amendment was adopted not simply to protect the citizenry from the inconvenience and embar- rassment attending the entry of officers into their homes, but to put a check on executive action which might endan- ger political freedom. The amendment was drafted by those who had a fresh recollection of the abuses which had been exercised in the course of subjugating citizens to the will of despotic leaders. The danger of such abuses is still present. As Mr. Justice Frankfurter said in his dissent in United States v. Rabinowitz ,339 US at 82 ,70 S Ct at 442 , 91 L Ed at 669:
“ ‘The progress is too easy from police action unscru- tinized by judicial authorization to the police state.’ “* * * * *
“Article I, § 9, Oregon Constitution, and the Fourth Amendment should be construed in light of these dangers, ‘so as to prevent stealthy encroachment upon or “gradual depreciation” of the rights secured by them, by imper- ceptible practice of courts or by well-intentioned but mis- takenly overzealous executive officers.’ Gouled v. United States ,255 US 298 , 304,41 S Ct 261 , 263,65 L Ed 647 , 650 (1921).”
State v. Chinn , 231 Or 259, 295-96, 373 P2d 392 (1962) (O’Connell, J., dissenting) (footnote omitted).
Here, the majority has undervalued defendant’s
privacy interest in a private entrance to his bedroom. The
sliding glass door was not a public entrance to the resi-
dence. The door was accessible only from a private backyard
porch, and the porch was not accessible to the public. Under
Article I, section 9, defendant has a right to be protected
from a governmental intrusion into this private area of his
home.
See Dixon/Digby
,
Further, by failing to enforce the exclusionary rule
in this case, the majority undermines this court’s Article I,
section 9, jurisprudence. The origins of this court’s com-
mitment to a rule excluding from criminal prosecutions
evidence obtained as a result of an illegal search or seizure
is nearly a century old.
See State v. Laundy
, 103 Or 443,
493-94,
In
Davis
, this court suppressed evidence obtained
during a warrantless entry and search of the defendant’s
motel room and the search of his person after arrest. The
search and seizure was not supported by probable cause, and
reasonable suspicion alone was held insufficient to legalize
police entry into the defendant’s motel room. The court in
Davis
undertook to “review the basis upon which unlawfully
seized evidence has been held inadmissible in this state.”
Id.
at 231. After an exhaustive review of Oregon cases and
United States Supreme Court cases, the court rejected a
deterrence rationale for an exclusionary rule in favor of an
approach that vindicates the personal rights of the person
whose rights have been violated. In rejecting a deterrence
rationale for the exclusion of evidence, the court quoted from
the then recent case of
State v. McMurphy
,
“[T]he deterrent effect on future practices against others, though a desired consequence, is not the constitutional basis for respecting the rights of a defendant against whom the state proposes to use evidence already seized. In demanding a trial without such evidence, the defendant invokes rights personal to himself.” Id. at 235.
The court in Davis further explained the rationale for a vindication of rights approach to the exclusionary rule:
“Thus this court has looked, rather, to the character *57 of the rule violated in the course of securing the evidence when deciding whether the rule implied a right not to be prosecuted upon evidence so secured. From the beginning this consequence has been most obvious to courts when officers purporting to execute a judicial warrant seized evi- dence not covered by warrant * * * or when the warrant was wrongfully obtained * * *. But the principle is the same in warrantless seizures, because an officer can seize nothing without a warrant that could not properly be seized with a warrant if a magistrate had been at the officer’s elbow.” “* * * * *
“In summary, although not without some diversity of
expression, the court since
State v. Laundy
,
supra
, has held
to a principled view of the effect of an unlawful seizure of
evidence. It has maintained the principle that those rules
of law designed to protect citizens against unauthorized or
illegal searches or seizures of their persons, property, or
private effects are to be given effect by denying the state the
use of evidence secured in violation of those rules against
the persons whose rights were violated, or, in effect, by
restoring the parties to their position as if the state’s offi-
cers had remained within the limits of their authority.”
Davis
,
Notably, this court in Davis rejected the state’s invi- tation “to stretch” exceptions to the warrant requirement to justify the police officers’ actions in unlawfully entering defendant’s motel room. Id . at 243. In declining that invita- tion, the court emphasized the vital function of the judicial branch in protecting the privacy interests of citizens in their homes:
“The very purpose of our constitutional provision was to protect a person’s home from governmental intrusions. State v. Chinn , supra . This right against intrusion should be stringently protected by the courts. See[,] e.g. , Warden v. Hayden ,387 US 294 , 304,87 S Ct 1642 , 1648, 18 L Ed 2d 782 (1967), construing the similar provision of the fed- eral constitution. As such, any exceptions to the warrant requirement should be narrowly and carefully drawn. See
Jones v. United States ,357 US 493 , 499,78 S Ct 1253 , 1257,2 L Ed 2d 1514 (1958).”
Davis
,
In a later Davis case, this court announced an unambiguous exclusionary rule with respect to evidence illegally obtained from outside the state:
“This focus on individual protection under the exclusion-
ary rule, a rule that operates to vindicate a constitutional
right in the courts, supports the constitutional rule that we
announce here: If the government seeks to rely on evidence
in an Oregon criminal prosecution, that evidence must
have been obtained in a manner that comports with the
protections given to the individual by Article I, section 9,
of the Oregon Constitution. It does not matter
where
that
evidence was obtained (in-state or out-of-state), or
what
governmental entity (local, state, federal, or out-of-state)
obtained it; the constitutionally significant fact is that the
Oregon government seeks to use the evidence in an Oregon
*58
criminal prosecution. Where that is true, the Oregon con-
stitutional protections apply.”
State v. Davis
,
The court anchored the exclusionary rule in Article I, section 9, cases in that provision’s guarantee that citizens be held secure against unreasonable searches and seizures. Thus, this court has recognized that privacy rights are not effectively secured unless the exclusionary rule precludes the government from obtaining a criminal conviction based on evidence that results from a violation of a defendant’s Article I, section 9, rights:
“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 * * *.’ “* * * The right guaranteed by Article I, section 9, is the right to be ‘secure * * * against unreasonable search, or seizure.’ If that constitutional right to be ‘secure’ against impermissible government conduct is to be effective, it must mean that the government cannot obtain a criminal convic- tion through the use of evidence obtained in violation of a
defendant’s rights under that provision . State v. Davis , 295 Or 227,666 P2d 802 (1983); see also State v. Isom , 306 Or 587, 595,761 P2d 524 (1988) (‘[T]he state may not prove, over objection, any crime with unconstitutionally obtained evidence.’).”
Davis , 313 Or at 253 (emphasis added). Here, contrary to Davis , the government has been allowed to obtain a crimi- nal conviction based on evidence that is a product of a viola- tion of defendant’s Article I, section 9, rights.
As previously noted, this court has repeatedly affirmed that the protection of a person’s home from unrea- sonable governmental intrusions is at the core of the privacy interests guaranteed by Article I, section 9. Just last year, we said that the privacy interests of citizens in their homes were “inviolate”:
“An ultimate objective of the constitutional protections,
both state and federal, against unreasonable searches
and seizures is ‘to protect the individual in the sanctity
of his [or her] home[.]’
State v. Duffy et al.
, 135 Or 290,
297,
This court has observed that the “undeniable impor-
tance of stability in legal rules and decisions * * * applies
with particular force in the arena of constitutional rights
and responsibilities, because the Oregon Constitution is the
fundamental document of this state and, as such, should
be stable and reliable.”
Stranahan v. Fred Meyer, Inc.
, 331
Or 38, 53,
By not enforcing the exclusionary rule in this case,
the majority has failed to secure defendant’s right to pri-
vacy in his home as guaranteed by Article I, section 9, of the
Oregon Constitution. Without justification, the majority’s
decision today diminishes the privacy rights of citizens pre-
viously protected by this court and sharply departs from
“the principled view of the effect of an unlawful seizure of
evidence” faithfully adhered to by this court for decades.
State v. Davis
,
Walters, J., joins in this opinion.