State v. Pichardo ( 2017 )

754 January 20, 2017 No. 1
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
VICTOR JAVIER PICHARDO,
Respondent on Review.
(CC 110833156; CA A150488; SC S063885)
En Banc
On review from the Court of Appeals.*
Argued and submitted September 22, 2016.
Leigh A. Salmon, Assistant Attorney General, Salem,
argued and the cause and filed the brief for petitioner on
review. Also on the brief were Ellen F. Rosenblum Attorney
General, and Benjamin Gutman, Solicitor General.
Jed Peterson, O’Connor Weber LLC, Portland, argued
the cause and filed the brief for respondent on review.
KISTLER, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Case Summary: Defendant moved to suppress evidence resulting from a
criminal investigatory stop. The state responded that the officer’s request for
consent was reasonably related to the reason for the stop and thus did not extend
the stop in violation of Article I, section 9, of the Oregon Constitution. The trial
court agreed, but the Court of Appeals reversed. Held: (1) The officer’s request
to search defendant for drugs was not reasonably related to the purpose of the
stop—to investigate whether defendant was helping an individual evade the
police—and thus the request extended the stop in violation of Article I, section
9, of the Oregon Constitution; (2) defendant’s consent to the officer’s request to
search did not attenuate the illegality.
The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
______________
*  Appeal from the Multnomah County Circuit Court, Christopher J. Marshall,
Judge. 275 Or App 49, 364 P3d 1 (2015)
Cite as 360 Or 754 (2017) 755
KISTLER, J.
An officer stopped defendant to investigate whether
he was helping another person evade the police. During the
stop, the officer asked defendant for consent to a search for
drugs. The primary question in this case is whether the offi-
cer’s request for consent was reasonably related to the reason
for the stop and thus did not extend it in violation of Article I,
section 9, of the Oregon Constitution. The trial court ruled
that the officer’s request for consent did not unreasonably
extend the stop. The Court of Appeals reversed. It held that
an unrelated request for consent extended the stop in vio-
lation of Article I, section 9, and that defendant’s consent
had not attenuated that illegality. State v. Pichardo, 263
Or App 1, 326 P3d 624 (2014). We allowed the state’s peti-
tion for review, vacated the Court of Appeals decision, and
remanded the case to the Court of Appeals, which adhered
on remand to its decision. See State v. Pichardo, 356 Or 574,
342 P3d 87 (2014) (allowing, vacating, and remanding);
State v. Pichardo, 275 Or App 49, 364 P3d 1 (2015) (adhering
to initial decision). We allowed the state’s petition for review
from the decision on remand and now affirm the Court of
Appeals decision.
On August 2, 2011, Officer Long and his partner
were on patrol in Gresham.1 They received a report from
the dispatcher that other officers had tried to execute an
arrest warrant on a person named Hamilton, who had fled.
The dispatcher described Hamilton and said that he had
last been seen jumping a fence at 18837 SE Yamhill Street
and running west. The dispatcher added that Hamilton had
discarded a backpack as he fled.
Long and his partner drove to the area near SE
188th Avenue and Yamhill Street. While Long’s patrol
car was traveling eastbound on Yamhill Street, he noticed
defendant’s car stopped in the middle of a traffic lane on
SE 187th Avenue, approximately one block from the area
where Hamilton had fled. Long saw a person who matched
Hamilton’s description (and who turned out to be Hamilton)
running towards defendant’s car. Hamilton opened the
1
We take the facts from the evidence at the hearing on defendant’s motion to
suppress and state them consistently with the trial court’s ruling.
756 State v. Pichardo
front passenger door of defendant’s car, jumped into the
passenger’s seat, and leaned the seat back. Based on what
he saw, Long was “concerned that [defendant] was assist-
ing [Hamilton] to get out of the area with officers chasing
him” and that Hamilton could have passed contraband to
defendant.
Long and his partner turned on their patrol car’s
overhead lights and, within 10 seconds of seeing Hamilton
get into defendant’s car, pulled their patrol car in front of
defendant’s car, blocking it from going forward. Other offi-
cers arrived with their patrol car’s overhead lights acti-
vated and parked their car behind defendant’s car, blocking
it from backing up. Three officers removed Hamilton from
defendant’s car at gunpoint.
Long went to the driver’s side of defendant’s car. He
told defendant “just to keep his hands where we could see
them.” Defendant put his hands on the steering wheel, and
Long “covered” defendant while the other officers were tak-
ing Hamilton into custody. Long asked defendant to step out
of the car, which he did. Long then asked defendant if he had
a driver’s license or insurance. Defendant replied that he had
insurance but no driver’s license. Long later testified that,
“[a]t that point, I asked [defendant] if I could have consent
to search him for any drugs,” to which defendant replied,
“Yes, you can.” As Long began to pat defendant down, defen-
dant told Long that he had heroin in his left pants pocket.
After pulling a small plastic bag of heroin out of defendant’s
pocket, Long placed defendant under arrest for possession of
a controlled substance.
The state charged defendant with possession of her-
oin. Before trial, defendant moved to suppress the evidence
resulting from the stop. At the hearing on that motion, Long
testified that he stopped defendant for impeding traffic in
violation of ORS 811.130. Later, he added that he “was con-
cerned that [defendant] was assisting the other person to
get out of the area with officers chasing him.” The trial court
found that the stop of defendant’s car was supported by rea-
sonable suspicion, and it rejected defendant’s argument that
Long unreasonably extended the stop by asking for consent
to search defendant for drugs. After the trial court denied
Cite as 360 Or 754 (2017) 757
defendant’s suppression motion, defendant entered a condi-
tional guilty plea, which preserved his right to appeal the
trial court’s pretrial ruling. See ORS 135.335 (authorizing
conditional pleas).
On appeal, the state argued that the stop was jus-
tified because the officers reasonably suspected that defen-
dant was attempting to help Hamilton evade the police in
violation of ORS 162.325 or ORS 162.247.2 Relying on Court
of Appeals cases, the state argued that “ ‘no authority sup-
ports the proposition that an officer cannot, during the
course of a [criminal] stop that is supported by reasonable
suspicion * * *, inquire whether the stopped person is carry-
ing weapons or contraband.’ ” (Quoting State v. Lamb, 249
Or App 335, 342, 277 P3d 581 (2012)).
The Court of Appeals disagreed. Pichardo, 263 Or
App at 8. It explained that asking an unrelated question
that prolongs a stop beyond the time ordinarily required to
complete it violates Article I, section 9, unless the officer has
independent reasonable suspicion to justify the additional
detention. Id. at 5-6. The court concluded that, in this case,
Officer Long’s request for consent had extended the stop and
that he did not have reasonable suspicion to believe that
defendant possessed drugs. Id.3 Accordingly, it held that
Long’s request violated Article I, section 9. Relying on State
v. Hall, 339 Or 7, 115 P3d 908 (2005), the court also held
that defendant’s consent did not attenuate that illegality. Id.
at 8.
The state petitioned for review, arguing that Long’s
request for consent had not impermissibly extended the
stop. It reasoned that the range of permissible questions
in a criminal stop is greater than in a traffic stop, and it
argued that, in the context of this case, Long’s request for
consent was constitutionally reasonable. The state also
argued that defendant’s consent was sufficient to attenuate
2
ORS 162.325 makes it a crime to hinder prosecution, while ORS 162.247
makes it a crime to interfere with a police officer in the performance of his or her
official duties.
3
The state did not argue in the Court of Appeals that Long’s request for con-
sent was reasonably related to the stop, and the Court of Appeals did not address
that issue explicitly. Rather, it appears to have assumed that the request was not
reasonably related.
758 State v. Pichardo
the taint of any illegality. This court allowed the state’s peti-
tion for review, vacated the Court of Appeals decision, and
remanded for further consideration in light of recent cases
clarifying the attenuation analysis in Hall. Pichardo, 356
Or 574. On remand, the Court of Appeals adhered to its ini-
tial conclusion that defendant’s consent had not attenuated
the illegality. Pichardo, 275 Or App at 58.
On review, the state raises two issues. It argues
initially that Long’s request for consent did not unlawfully
extend the stop because the request was reasonably related
to the stop. Alternatively, it argues that, if Long’s request
did unlawfully extend the stop, defendant’s consent was suf-
ficient, in the context of this case, to attenuate that illegal-
ity. We begin with the first issue that the state raises.
The state’s argument on that issue is narrow. The
state does not dispute that, as a factual matter, Long’s
request for consent extended the stop. Cf. State v. Rodgers,
219 Or App 366, 372, 182 P3d 209 (2008) (recognizing that
“an officer is free to question a motorist about matters unre-
lated to the traffic infraction during an unavoidable lull in
the investigation”), aff’d sub nom State v. Rodgers/Kirkeby,
347 Or 610, 227 P3d 695 (2010).4 The state also does not
argue that Long developed a reasonable suspicion, during
the course of the stop, that defendant possessed drugs, which
would justify his request for consent even if the request
were unrelated to the initial reasons for which he stopped
defendant. Rather, the state’s first argument focuses on one
issue—whether Long’s request was reasonably related to
the stop.
On that issue, the state starts from the proposition
that most of our cases addressing that issue have arisen
in the context of traffic stops. The state reasons that traf-
fic stops usually present discrete, narrowly focused issues
while criminal stops can entail a far broader range of issues.
It follows, the state contends, that a correspondingly broader
range of inquiries will be reasonably related to criminal
4
Because the state does not dispute that Long’s request extended the stop,
this case does not present the question whether unrelated questions that occur
during an unavoidable lull are permissible under Article I, section 9, and we
express no opinion on that issue.
Cite as 360 Or 754 (2017) 759
stops than traffic stops. In the state’s view, “in the context of
a criminal investigatory stop, where the very purpose is to
ferret out potential criminal activity, a request for consent
to search, without more, will rarely run afoul of Article I,
section 9.” Building on that proposition, the state notes that
“Long was concerned that Hamilton may have passed drugs
or contraband to defendant when he got into the car.” It fol-
lows, the state concludes, that
“while Officer Long may not have had independent reason-
able suspicion of drug activity, the request for consent was
nonetheless reasonably related to the overall purpose of the
investigative detention: exploring the relationship between
defendant and Hamilton and determining whether defen-
dant had committed a crime.”
We note, as an initial matter, that the premise of
the state’s argument is correct. If Long’s request for con-
sent was “reasonably related” to the purpose of the deten-
tion, then the request did not extend the stop in violation
of Article I, section 9. State v. Watson, 353 Or 768, 779, 305
P3d 94 (2013) (describing the reasoning in State v. Fair, 353
Or 588, 302 P3d 417 (2013)). Moreover, as the court clarified
in State v. Jimenez, 357 Or 417, 427-29, 353 P3d 1227 (2015),
a question may be reasonably related to a stop even though
the question is not supported by reasonable suspicion; that
is, Long did not have to have a reasonable suspicion that
defendant possessed drugs for his request for consent to be
reasonably related to the purpose of the stop. There must,
however, be a “reasonable, circumstance-specific” relation-
ship between the question and the purpose of the stop. See
id. at 429.
As the state also notes, this court has not had occa-
sion to consider when an officer’s inquiries will be “reason-
ably related” to a criminal investigatory stop. Rather, the
question whether an officer’s inquiry was reasonably related
to a stop has arisen, for the most part, in the context of
traffic stops. See Jimenez, 357 Or at 419-20 (traffic offense);
Watson, 353 Or at 769 (same); but cf. Fair, 353 Or at 605
(considering issue in the context of a stop “to question [a] cit-
izen as a potential witness to or victim of a crime”). In this
case, Long reasonably suspected that defendant was helping
760 State v. Pichardo
Hamilton evade the police in violation of ORS 162.247.5 That
statute prohibits intentionally “prevent[ing] or attempt[ing]
to preven[t] a peace officer * * * from performing the lawful
duties of the officer with regards to another person.” ORS
162.247.
We agree with the state that an investigation to
determine whether criminal activity has occurred or is
occurring—in this case, whether defendant intentionally
attempted to prevent law enforcement officers from perform-
ing their duties—can entail a broader range of questions
than an investigation to determine whether a defendant
has committed a traffic violation, such as failing to signal a
lane change. However, we do not agree with the state that
“a request for consent to search, without more, will rarely
run afoul of Article I, section 9.” As Jimenez establishes, the
state must be able to point to a “reasonable, circumstance-
specific” relationship between the inquiry and the purpose
of the detention, even though the circumstance-specific rela-
tionship need not rise to the level of reasonable suspicion of
other criminal activity. Jimenez, 357 Or at 429.
Perhaps to demonstrate a reasonable, circumstance-
specific relationship, the state notes that Hamilton had
dropped a backpack, which could have contained drugs, as
he fled the police, and it argues that Hamilton also could
have passed drugs to defendant once he got in defendant’s
car. It follows, the state contends, that Long’s request for
consent was reasonably related to “exploring the relation-
ship between defendant and Hamilton.”
The relationship that the state perceives between
Long’s request for consent to search for drugs and the rea-
son for the stop—to investigate whether defendant was
helping Hamilton evade the police—seems tenuous for four
cumulative reasons. First, the state’s argument depends on
the assumption that Hamilton fled from the police because
5
The Court of Appeals noted that Long reasonably suspected that defen-
dant also was violating ORS 162.325, which prohibits persons from committing
certain acts “with intent to hinder the apprehension * * * of a person who has
committed a crime punishable as a felony.” The record, however, does not reflect
that Hamilton had committed a felony. We accordingly limit our discussion to
ORS 162.247.
Cite as 360 Or 754 (2017) 761
he possessed drugs—an assumption that the state bases on
the fact that Hamilton discarded his backpack as he fled.
However, if Hamilton discarded his backpack to get rid
of his drugs, then he would have had no drugs to give to
defendant once he got in the car. For the factual predicate
of state’s argument to be valid, it is necessary to assume
that Hamilton did not discard all his drugs as he fled but
kept some drugs on his person, which he gave to defendant.
Without any evidence explaining why Hamilton would have
discarded some but not all his drugs as he fled, the factual
premise on which the state’s argument rests seems suspect.
Second, Long testified that approximately 10 sec-
onds passed between the time that he saw Hamilton get
into defendant’s car and the time that Long and his part-
ner arrived at the car. During that time, Long did not see
Hamilton throw anything into the car or hand anything to
defendant.6 Rather, he saw Hamilton get into the car and
lower the passenger seat, presumably to avoid detection.
Other than the abstract possibility that Hamilton could
have given something to defendant, Long had no perceived
basis for thinking that any transfer had occurred. Moreover,
if Long were correct that Hamilton had passed drugs to
defendant, the transfer would had to have occurred within
10 seconds and without being observed by the officers. While
possible, the occurrence of those events in such a brief span
of time seems unlikely.
Third, Long’s request for consent to search defen-
dant for drugs seems an odd way of “exploring the relation-
ship between defendant and Hamilton,” which is the reason
the state advances for saying that Long’s request for consent
was reasonably related to investigating whether defendant
was helping Hamilton escape. A search of defendant’s per-
son for drugs would reveal, at most, that he had drugs on
him. It would say nothing about where or when he got them.
Indeed, Long testified that both the area and the “street in
particular” where he came upon defendant’s car was known
for “[h]igh drug activity, * * * [b]oth use and dealing.” In light
of that testimony, there may have been a good chance that
6
Because Long was a passenger in the patrol car, he could focus on the inter-
action between defendant and Hamilton.
762 State v. Pichardo
defendant would have drugs on him, but it was not because
Hamilton had passed them to him.
Finally, we note that, until the state filed its brief
on the merits in this court, the state had not argued that
Long’s request for consent was related to the stop, much
less that the two events were related for the reason that the
state now identifies. Indeed, in its initial brief in the Court of
Appeals, the state suggested that, because the stop was for
criminal purposes, Long’s request need not be related to the
reason for the stop. It may be that the state did not appreci-
ate the need to establish a reasonable relationship between
the request and the stop until this court issued its decisions
in Walton and Jimenez, but the absence of any suggestion
that the request was related to the stop until the state filed
its brief on the merits in this court calls into question the
validity of the rationale that the state now advances.
The reasonable relationship test that the court
articulated in Fair, Watson, and Jimenez is not a demanding
one. For example, the officers in Fair reasonably stopped the
victim of a potential domestic assault to verify her identity.
See 353 Or at 613 (upholding the officer’s authority to stop
the victim as a material witness). In doing so, the officers
checked law enforcement records and asked the victim about
previous arrests to see if her answers corresponded with the
information on file for a person with the victim’s maiden
name. Id. at 614. The court explained that, in the particular
circumstances of that case, those questions “were reason-
ably related * * * to the reasons for temporarily detaining
[the victim]”; that is, they permitted the officers to verify
her identity and also to determine whether she was likely to
have initiated the domestic abuse. Id. Given that relation-
ship, the court concluded that, in making those inquiries,
the officers had not unconstitutionally extended the stop. Id.
In this case, by contrast, the link between Long’s request
for consent to search defendant for drugs and the reason
for the stop—to investigate whether defendant was helping
Hamilton evade the police—is too tenuous to establish that
the request was reasonably related to the reason for the
stop. We accordingly agree with the Court of Appeals that
Long’s request for consent extended the stop in violation of
Article I, section 9.
Cite as 360 Or 754 (2017) 763
The state argues alternatively that, even if Long’s
request unconstitutionally extended the stop, defendant’s
consent attenuated the illegality. Before turning to the
state’s argument, it is helpful to put it in context. Hamilton
got into defendant’s car on a residential cross-street in
Gresham. Within 10 seconds, one police car had pulled in
front of defendant’s car with its overhead lights flashing,
effectively blocking defendant from going forward. And
a second police car, also with its overhead lights flashing,
pulled up behind defendant’s car, effectively blocking him
from backing up. Three officers got out of the patrol cars,
went to the passenger’s side of defendant’s car, and took
Hamilton out of defendant’s car at gunpoint. A fourth officer
(Long) went to the driver’s side of the car and told defendant
to put his hands on the steering wheel where Long could see
them.
Once the three officers had taken Hamilton into
custody, Long asked defendant to step out of the car. When
defendant did so, Long asked if defendant had insurance or
a license. Defendant said he had insurance but no license,
and Long “asked him if [he] could have consent to search
him for any drugs.” Defendant replied, “Yes, you can.”
In holding that defendant’s consent was not suffi-
cient to attenuate the illegality, the Court of Appeals noted
the temporal proximity between the illegality and the
request for consent and the absence of any intervening cir-
cumstances. Pichardo, 275 Or App at 54-55. It also noted
that, although the police did not engage in threatening
behavior, their conduct was “moderately flagrant” because
it was well established that unrelated questions that occur
outside of an unavoidable lull violate Article I, section 9. Id.
at 55. Finally, the Court of Appeals found it “decisive” that
“[p]rocuring defendant’s consent to an exploratory search
for drugs and obtaining drug-related evidence w[ere], nec-
essarily, the purpose and intended consequence of the police
misconduct in this case.” Id. at 56. Given those consider-
ations, the court concluded that defendant’s consent did not
attenuate the taint of the illegality. Id. at 58.
Although we agree with the Court of Appeals that
defendant’s consent did not attenuate the illegality, we
764 State v. Pichardo
analyze that issue differently than the Court of Appeals did.
In State v. Unger, 356 Or 59, 333 P3d 1009 (2014), this court
clarified its earlier attenuation analysis in Hall. The court
rejected the proposition that consent that follows closely on
an illegality without any intervening circumstances invari-
ably will be a product of the illegality. Id. at 78. The court
also disagreed with Hall that the question whether a defen-
dant’s consent will attenuate the illegality turns on whether
the officer asked for consent or whether the defendant vol-
unteered it.7 Id. at 78-79. The court explained that the ques-
tion turns instead on a fact-specific analysis of whether the
defendant’s consent is “unrelated or only tenuously related
to the prior illegal police conduct.” Id. at 79.
The court noted that the following factors may bear
on that analysis: the temporal proximity between the ille-
gality and the consent; the presence of any intervening cir-
cumstances, such as Miranda warnings; the purpose and
flagrancy of the police conduct; and the nature of the illegal
conduct—i.e., whether it is intrusive, extended, or severe. Id.
at 80-83. As the court explained in Unger, “ignoring the very
different effects that police conduct may have on an individ-
ual’s consent to a search is neither reasonable nor constitu-
tionally required.” Id. at 83.
In this case, defendant’s consent followed immedi-
ately on Long’s request, which unlawfully extended the stop.
Moreover, there were no intervening circumstances, such as
Miranda or other warnings. However, as we held in Unger
and State v. Musser, 356 Or 148, 335 P3d 814 (2014), the
fact that consent follows closely on the illegality does not
necessarily mean that the consent is the product of the ille-
gality. Unger, 356 Or at 77; Musser, 356 Or at 155. Rather,
the nature of the police conduct matters, as does whether
the police traded on information that they obtained as a
result of the illegality to seek or obtain the defendant’s con-
sent. Musser, 356 Or at 155-57 (discussing “nonexclusive
7
After noting the temporal proximity and absence of intervening circum-
stances, the Court of Appeals found it “decisive” that Long had asked for and
received defendant’s consent to search. Pichardo, 275 Or App at 58. That reason-
ing is difficult to square with Unger, which held that the fact that an officer asks
for consent to search does not necessarily mean that the defendant’s consent was
insufficient to attenuate the taint of the illegality. See Unger, 356 Or at 78-79.
Cite as 360 Or 754 (2017) 765
considerations * * * in reviewing the totality of the circum-
stances to determine whether the police ‘exploited’ or ‘took
advantage’ of their unlawful conduct”).
In our view, the dispositive factor in this case is the
nature of the officers’ conduct during the stop. This was not
a case like Unger where the officer went to the back of the
defendant’s house, knocked on the door, identified himself
as “Kevin * * * with the sheriff’s office,” and explained that
there had been a complaint about the house, which he was
investigating. 356 Or at 62. Nor is it a case like State v.
Lorenzo, 356 Or 134, 335 P3d 821 (2014), where the officer
went to the defendant’s apartment to check on the defen-
dant’s welfare, knocked on the defendant’s bedroom door,
and said, “Police, Jeff, are you okay?”8 Id. at 137. Instead, in
this case, within 10 seconds after Hamilton got into defen-
dant’s car, two police cars with their overhead lights flash-
ing surrounded defendant’s car and blocked it from moving.
Three officers took Hamilton out of defendant’s car at gun-
point, while the fourth officer (Long) approached defendant
and directed him to remain in the car with his hands on the
wheel until Hamilton had been placed under arrest. Long’s
request for consent both extended the stop unconstitution-
ally and followed immediately on the officers’ show of force.
Given that show of force, we are not persuaded that
defendant’s consent, while voluntary, was sufficient to atten-
uate the taint of the illegal extension of the stop. Cf. Unger,
356 Or at 73 (distinguishing exploitation from voluntari-
ness). As we explained in Musser,
“Police obviously need reasonable leeway to investigate and
prevent crimes, and monitoring locations where criminal
activity frequently occurs * * * is part of good police work.
But police are not authorized to detain and question cit-
izens merely to ‘make sure they are not doing anything
wrong.’ ”
356 Or at 158-59. What occurred here was not substantially
different. In this case, Long extended the stop, not to ask
a question that was reasonably related to the stop but to
8
In Lorenzo, the officer opened the apartment door, put his arm inside the
apartment and knocked on the defendant’s closed bedroom door, but did not
otherwise enter the apartment. 356 Or at 137.
766 State v. Pichardo
ask an unrelated question about other criminal conduct for
which he had no reasonable suspicion. Given that act and
the officers’ show of force, we conclude, as we did in Musser,
that defendant’s consent was not sufficient to attenuate the
taint of the illegality.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.