State v. Suppah ( 2016 )

No. 3 February 19, 2016 565
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
ROMAN LANCE SUPPAH,
Respondent on Review.
(CC 100016CT; CA A149412; SC S062648)
On appeal from the Court of Appeals.*
Argued and submitted May 8, 2015.
David B. Thompson, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With him on the brief was Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
Joshua B. Crowther, Deputy Public Defender, Salem,
argued the cause and filed the brief for respondent on review.
With on the brief was Ernest G. Lannet, Chief Defender,
Office of Public Defense Services.
Robert M. Atkinson, Portland, filed an amicus curiae
brief on his own behalf.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Brewer, Baldwin, Justices, and Linder, Senior
Justice.**
KISTLER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
______________
**  Appeal from Sherman County Circuit Court, Donald Hull, Judge. 264 Or
App 510, 334 P3d 463 (2014).
**  Nakamoto, J., did not participate in the consideration or decision of this
case.
566 State v. Suppah
Case Summary: After being unlawfully stopped for a traffic violation, defen-
dant gave the deputy a false name and date of birth, which led the state to charge
defendant with giving false information to a police officer in violation of ORS
807.620. The trial court denied defendant’s motion to suppress the false state-
ments he made to the deputy on the ground that they were the product of the
unlawful stop. Considering those statements, the court found him guilty of vio-
lating ORS 807.620. The Court of Appeals reversed. It recognized that defendant
had committed a new crime following the unlawful stop, but held that only new
crimes that threaten officer safety will attenuate the taint of an unlawful stop.
Held: (1) The deputy was “enforcing the motor vehicle laws” under ORS 807.620,
even though the stop was not lawful; (2) because the deputy was “enforcing the
motor vehicle laws,” defendant’s decision to give the deputy a false name and date
of birth constituted a crime; (3) because defendant’s decision to commit a new
crime following the unlawful stop attenuated the taint of the stop, the trial court
correctly denied his motion to suppress his false statements to the deputy.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
Cite as 358 Or 565 (2016) 567
KISTLER, J.
The state charged defendant with giving false
information to a deputy sheriff who had stopped him for a
traffic violation. Later, at a hearing on defendant’s motion to
suppress, the deputy could not remember the specific traf-
fic violation that had led him to stop defendant. The trial
court found that the state’s inability to establish the reason
for the stop rendered it unlawful, but it denied defendant’s
motion to suppress the statements that defendant had made
following the stop. Focusing on defendant’s reasons for giv-
ing the deputy false information, the trial court found that
defendant’s decision to do so was independent of the illegal-
ity. The en banc Court of Appeals reversed. State v. Suppah,
264 Or App 510, 334 P3d 463 (2014) (en banc). We allowed
the state’s petition for review and now reverse the Court of
Appeals decision and affirm the trial court’s judgment.
I. FACTS
In July 2010, defendant Roman Suppah was driv-
ing his girlfriend’s car in Sherman County on Interstate
84.1 Deputy Sheriff Hulke stopped defendant for a traffic
violation. After being stopped, defendant “told [the deputy
that] his name was Harold Pennington, born in 7/21/64.”
Defendant said that he lived in Warm Springs but that he
did not “have a physical address or a mailing address.” The
deputy contacted the dispatcher to check the name and date
of birth that defendant had given him. The dispatcher told
him that “Pennington was driving while suspended,” and
defendant did not offer any proof of insurance.
The deputy cited defendant (as Pennington) for
driving while suspended and driving without insurance.
The deputy did not cite defendant for the traffic violation
that had led him to stop defendant in the first place, nor did
he make a written record of the reason why he had stopped
defendant. As the deputy later explained, the traffic viola-
tion that had led him to stop defendant was one for which he
normally gives drivers a warning but no citation.
1
In the Court of Appeals, defendant assigned error to the trial court’s ruling
denying his motion to suppress. We take the facts from the evidence submitted
at the hearing on that motion and state those facts consistently with the trial
court’s explicit and implicit findings.
568 State v. Suppah
A month later, in August, defendant called the
Sherman County District Attorney’s office and told them
that his name was not Harold Pennington and that he, not
Pennington, was the person whom the deputy had stopped
on Interstate 84 in July. Defendant explained that he had
been driving his girlfriend’s car when the deputy stopped
him, that he thought that Pennington had a valid driver’s
license, and that he had given the deputy Pennington’s name
because he did not want his girlfriend’s car towed since
he (defendant) did not have a driver’s license. Defendant
explained that he was coming forward with that informa-
tion because he did not want to get his friend Pennington
into trouble. Defendant later told the same information to
two other law enforcement agencies.
Given defendant’s statements in August, the state
dismissed the charges against Pennington. However, it
charged defendant with two misdemeanors: driving while
suspended, ORS 811.182, and giving false information to a
police officer, ORS 807.620. Before trial, defendant moved
to suppress the false statements that he had made to the
deputy in July and the true statements that he had made to
the law enforcement agencies in August. He argued that the
deputy had no basis for stopping him in July and that his
statements in both July and August were the product of that
illegality. At the hearing on defendant’s motion, the deputy
testified he had stopped defendant in July “for a traffic vio-
lation.” However, the deputy could not remember “what that
violation was.” As noted, the deputy had not made a record
of that violation but instead had cited defendant for driving
while suspended and driving without insurance based on
his understanding that defendant was Pennington.
Given the deputy’s inability to remember the spe-
cific traffic violation that had led him to stop defendant, the
state conceded that the stop was unlawful because it could
not show any justification for the stop.2 The state argued,
however, that defendant’s statements were attenuated from
2
Constitutionally, an officer needs reasonable suspicion to stop a defendant.
See State v. Musser, 356 Or 148, 158, 335 P3d 814 (2014) (reasonable suspicion
required for investigatory stop). Statutorily, an officer must have “probable cause
to believe” that a traffic violation has occurred when the officer stops a driver
Cite as 358 Or 565 (2016) 569
the unlawful stop. For the most part, the state’s attenuation
argument focused on the statements that defendant had
made in August, while defendant’s counterargument focused
on the statements that he had made in July. The trial court
found that, although the stop was unlawful, defendant had
given the deputy a false name and date of birth in July “to
keep * * * [from] having the car towed” and that he had come
forward with truthful information in August “to keep his
friend [Pennington] out of trouble.” Given those findings,
the trial court concluded that defendant’s decision to give
the deputy a false name in July and his decision to come
forward with truthful information in August were not the
product of the unlawful stop. The trial court accordingly
denied defendant’s motion to suppress.
Approximately six months later, the parties agreed
to try the two charges to the court, primarily on the record
created at the suppression hearing. Defendant moved for
a judgment of acquittal on both charges. Regarding the
charge of driving while suspended, he argued (and the state
did not dispute) that the record failed to show whether his
driver’s license was suspended when the officer stopped him
in July. Regarding the charge of giving false information to
a police officer, defendant argued that there was no evidence
to prove an element of that offense—that the deputy “[wa]s
enforcing [the] motor vehicle laws” when defendant told him
that he was Harold Pennington. See ORS 807.620(1).3 The
state responded that, because the deputy had testified that
he stopped defendant “for a traffic violation,” his testimony
proved that he had been “enforcing [the] motor vehicle laws”
when he stopped defendant. In the state’s view, the deputy’s
lack of memory bore only on the constitutionality of the stop.
After considering the evidence, the trial court found defen-
dant guilty of giving false information to a police officer but
not guilty of driving while suspended.
“based on a description of the vehicle or other information received from [another]
police officer who observed the traffic violation.” ORS 810.410(2)(b).
3
ORS 807.620(1) provides:
“A person commits the offense of giving false information to a police offi-
cer if the person knowingly uses or gives a false or fictitious name, address or
date of birth to any police officer who is enforcing motor vehicle laws.”
570 State v. Suppah
On appeal, defendant assigned error to the trial
court’s ruling denying his motion to suppress.4 The Court
of Appeals agreed with defendant that the trial court had
erred and reversed the trial court’s judgment. Relying on
State v. Hall, 339 Or 7, 115 P3d 908 (2005), the majority held
that there was a casual connection between the stop and
defendant’s July statements and that the state had failed
to establish attenuation. Suppah, 264 Or App at 518-28. In
particular, the majority observed that there was no tempo-
ral break between the stop and those statements, that defen-
dant reasonably believed that he had to answer the deputy’s
questions, and that no circumstances intervened to break
the causal connection. Id. at 528. The majority explained
that it was immaterial whether defendant made a conscious
decision to lie to the deputy or to respond truthfully to his
question. Id. at 530. Additionally, although the majority rec-
ognized that defendant’s misrepresentation constituted a
new crime, it held that only new crimes that threaten an
officer’s safety will attenuate the taint of an unlawful stop.
Id. at 530-31.
The majority reached a different conclusion regard-
ing the statements that defendant had made in August. It
held that those statement were not a product of the unlaw-
ful stop. Although those statements were properly admitted,
the majority concluded that their admission did not render
the erroneous admission of the July statements harmless.
Specifically, the majority accepted defendant’s argument
that the statements that he made in August were confes-
sions, that uncorroborated confessions are insufficient to
prove a crime, and that, without the July statements, noth-
ing corroborated his August confessions. Id. at 531. The
court accordingly concluded that the erroneous admission
of defendant’s July statements prejudiced him and required
that his conviction for giving false information to a police
officer be reversed.5
4
Defendant did not assign error to the trial court’s ruling on his motion for
judgment of acquittal.
5
The state has not disputed that defendant’s August statements were confes-
sions that required corroboration, nor has the state identified any corroborating
evidence other than the July statements. Rather, the state has acquiesced in this
aspect of the Court of Appeals reasoning.
Cite as 358 Or 565 (2016) 571
Judge Hadlock dissented. The dissent recognized
that, “but for” the unlawful stop, defendant would not have
given the deputy a false name and date of birth. Id. at
535-36 (Hadlock, J., dissenting). The dissent reasoned, how-
ever, that “but for” causation does not require suppression
and that defendant had made an independent decision to
give the deputy a false name to avoid having his girlfriend’s
car towed. Id. It was important to the dissent’s analysis
that the state had not sought to exploit the stop by asking
defendant questions that were intended or likely to reveal
any further criminal activity. Rather, the deputy had asked
for defendant’s name in the ordinary course of enforcing
the motor vehicle code. Id. at 538-39. Finally, the dissent
found it significant that, in committing a new crime, defen-
dant made a decision that went beyond what the officer had
asked. Id. at 536. The dissent would have held that, because
defendant’s choice attenuated the taint of the unlawful traf-
fic stop, his July statements were not the product of the ille-
gality. Id. at 536.
II. ISSUES
On review, the state argues primarily that defen-
dant’s decision to commit a new crime attenuated the taint
of the stop. Defendant responds initially that the state’s
new-crime argument rests on a false premise. Defendant
reasons that, because the deputy was not “enforcing [the]
motor vehicle laws,” defendant’s false statements to the
deputy could not have violated ORS 807.620 and thus did
not constitute a new crime. Alternatively, defendant argues
that, even if his misrepresentations constituted a new crime,
labeling conduct as a new crime does not answer whether
that conduct derived from the illegality. The state, for its
part, replies that defendant failed to preserve the argument
that his conduct did not constitute a new crime.
We first explain why we conclude that defendant’s
initial argument—that his conduct did not constitute a new
crime—is properly before us. We then explain why we con-
clude that defendant’s conduct did constitute a new crime.
Finally, we explain why defendant’s decision to commit a
new crime in response to the unlawful stop was sufficient to
attenuate the taint of that stop.
572 State v. Suppah
A.  Preservation
To put the state’s preservation argument in per-
spective, it is helpful to recount how the parties litigated
this issue in the trial court and the Court of Appeals. In the
hearing on defendant’s suppression motion, the state did not
argue that defendant’s statements were attenuated from the
stop because his conduct constituted a new crime. Rather,
the state’s attenuation argument focused on the statements
that defendant had made in August. It was not until the
state filed its respondent’s brief in the Court of Appeals
that the state argued that defendant’s July statements were
attenuated from the unlawful stop because defendant had
committed a new crime by giving the deputy a false name
and address.
Although the state did not make its new-crime
argument at the suppression hearing, the trial court ruled
in the state’s favor on defendant’s suppression motion. Under
the “right for the wrong reason” doctrine, the state was free
to argue for the first time in the Court of Appeals that the
trial court’s ruling on the suppression motion was correct
because the commission of a new crime attenuated the taint
of the unlawful stop. See Outdoor Media Dimensions Inc. v.
State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001) (dis-
cussing “right for the wrong reason” doctrine).6
Defendant, for his part, did not respond to the state’s
new-crime argument in the Court of Appeals. The Court of
Appeals, however, ruled in defendant’s favor on his motion
to suppress, and defendant was free to challenge the state’s
new-crime argument in this court for the same reason that
the state was free to raise that argument for the first time
in the Court of Appeals; that is, defendant can assert in this
court that the Court of Appeals was “right for the wrong
reason” just as the state could assert that the trial court
was “right for the wrong reason” in the Court of Appeals.7
6
Neither party argues that the facts would have been developed differently
if the new-crime argument had been raised in the trial court. See Outdoor Media
Dimensions Inc., 331 Or at 660 (discussing that prerequisite for “right for the
wrong reason” doctrine).
7
The state’s reply brief suggests that defendant’s failure to assign error to
the trial court’s ruling on his motion for judgment of acquittal precludes him from
Cite as 358 Or 565 (2016) 573
Thus, defendant’s no-new-crime argument is properly before
us. Because it is, we turn to the question whether defendant
violated ORS 807.620(1) when he gave the deputy a false
name and date of birth.
B.  ORS 807.620
Defendant argues that the state’s new-crime argu-
ment is incorrect because his conduct did not violate ORS
807.620. As we understand defendant’s argument, it runs as
follows: ORS 807.620(1) makes it a crime to give an officer
a false name and date of birth only if the officer “is enforc-
ing motor vehicle laws.” In this case, the deputy could not
remember the specific traffic violation that had led him to
stop defendant, and defendant concludes from that fact that
the stop was both unlawful and arbitrary. Defendant rea-
sons that stopping drivers unlawfully and arbitrarily does
not constitute “enforcing motor vehicle laws” within the
meaning of ORS 807.620(1). It follows, he contends, that
ORS 807.620(1) did not apply, and he was free to give the
deputy a false name and date of birth.
Defendant’s argument rests on two different premises—
that the deputy was acting unlawfully and that he was act-
ing arbitrarily. Whether either unlawful stops or arbitrary
stops constitute “enforcing motor vehicle laws” presents
related but separate questions. We begin with the question
whether the fact that the stop was unlawful means that the
deputy was not “enforcing [the] motor vehicle laws” within
the meaning of ORS 807.620(1).
As noted, ORS 807.620(1) makes it a misdemeanor
to “knowingly us[e] or giv[e] a false or fictitious name,
address or date of birth to any police officer who is enforc-
ing motor vehicle laws.” The dependent clause in that sub-
section—“who is enforcing motor vehicle laws”—modifies
arguing, in defense of the Court of Appeals’ ruling on his motion to suppress, that
the deputy was not enforcing the motor vehicle laws. The state, however, does not
argue that issue preclusion applies, and we recently rejected an argument that
the law-of-the-case doctrine bars a party from challenging a trial court ruling on
direct appeal. See Kennedy v. Wheeler, 356 Or 518, 530-31, 341 P3d 728 (2014). As
we explained in Kennedy, the question is whether the issue that a party raises on
review was preserved. Id. For the reasons discussed above, the issue that defen-
dant raises is properly before us.
574 State v. Suppah
and limits the phrase “any police officer.” It defines a class
of officers who are engaged in an activity (enforcing motor
vehicle laws), and it recognizes legislatively what this court
has recognized constitutionally—that, when an officer is
enforcing the motor vehicle laws, it is both reasonable and
necessary for the officer to determine the driver’s identity
and address. See State v. Watson, 353 Or 768, 782, 305 P3d
94 (2013) (holding that, under Article I, section 9, verifying
driver’s identity is reasonably related to traffic stop).
The text of the statute does not include the adverb—
lawfully—that defendant would add. ORS 807.620(1) does
not say that a driver’s obligation to tell his or her true
name to the officer applies only when an officer “lawfully”
has stopped the driver in the course of enforcing the motor
vehicle laws. Rather, the statute places an obligation on
drivers to give their true names and dates of birth when-
ever an officer is enforcing the motor vehicle laws. To accept
defendant’s interpretation of the statute, we would have to
add what the legislature omitted, a task that we may not
undertake. See US West Communications v. City of Eugene,
336 Or 181, 188, 81 P3d 702 (2003) (stating interpretative
principle).
The context is also at odds with defendant’s inter-
pretation. When the legislature has intended to require
compliance only with a lawful order, it has said so explicitly.
ORS 162.247(a), for example, prohibits a person from inter-
fering with “the lawful duties” of an officer. Similarly, ORS
811.535 prohibits a person from refusing or failing to com-
ply with “any lawful order.” In the same vein, ORS 807.570
makes it a crime to fail to “present and deliver” a license to
a police officer when requested by the police officer “* * * [u]
pon being lawfully stopped or detained when driving a vehi-
cle.” ORS 807.570(1)(b)(A) (emphasis added). In those stat-
utes, the legislature used the word “lawful” or “lawfully” to
narrow the range of police encounters in which each statute
will apply. When the legislature has chosen to narrow sim-
ilar statutes but not this one, we hesitate to add what the
legislature has omitted. See ORS 174.010; Pollin v. Dept. of
Rev., 326 Or 427, 431, 952 P2d 537, cert den, 524 US 954(1998).
Cite as 358 Or 565 (2016) 575
The legislative history of ORS 807.620(1) is consis-
tent with the statute’s text and context. In 1977, the special
courts committee of the judicial conference submitted a bill to
add a subsection, which is now codified as ORS 807.620(1), to
the traffic code. Minutes, House Committee on the Judiciary,
HB 3238, Apr 21, 1977.8 Testifying on behalf of the special
courts committee, Judge Abraham explained that the bill
was intended to “meet a growing problem in metropolitan
areas,” namely, “giving a false name in a traffic violation.”
Id. He said that “[a]t present there is no recourse for this
situation” and that making it a misdemeanor to give officers
a false name or address during a traffic violation would “at
least provid[e] a tool for law enforcement agencies” to deal
with the problem. Id. He acknowledged, however, that the
only way to enforce the new law would be to have an inves-
tigative body follow up on the false name, “which sometimes
can be done through the motor vehicle license number which
also appears on citations.” Id.As that legislative history reveals, the 1977 leg-
islature sought to provide a disincentive against giving a
false name and address to police officers enforcing the motor
vehicle laws. Nothing in the legislative history suggests that
the legislature intended that that disincentive would apply
only if the officer lawfully had stopped a driver for a traf-
fic violation. Rather, the legislature sought to ensure that
a person charged with violating the traffic laws could not
avoid enforcement of those laws by giving the officer a false
name or address. The history of ORS 807.620(1) is thus con-
sistent with its text and context. It does not suggest that
8
The 1977 amendment initially was codified as section 6 of former ORS
482.610 (1977), which prohibited false or fraudulent practices in applying for and
displaying driver’s licenses. In 1983, the legislature reorganized and recodified
the motor vehicle laws. See Or Laws 1983, ch 338. In doing so, it codified the 1977
amendment as a separate statute and modified its wording slightly. As initially
enacted, former ORS 482.610(6) (1977) prohibited giving certain false informa-
tion “to any police officer for any violation of the motor vehicle laws.” As revised
in 1983, ORS 807.620 (1983) prohibited giving a false name, date of birth, or
address to “any police officer who is enforcing the motor vehicle code.” A staff
analysis explained that, in reorganizing and recodifying the motor vehicle laws,
the 1983 legislature made “no substantive changes” to those laws. Staff Measure
Analysis, Senate Transportation and Tourism Committee, HB 2031 (May 23,
1983). In 1985, the legislature changed the phrase “the motor vehicle code” to
“motor vehicle laws.” Or Laws 1985, ch 16, § 160; Or Laws 1985, ch 597, § 22.
576 State v. Suppah
the legislature intended that drivers would have to provide
truthful information only when the stop was lawful. It leads
to precisely the opposite conclusion.
As noted, defendant raises a second issue. He con-
tends that, because the deputy could not remember the spe-
cific traffic violation for which he had stopped defendant, the
stop was arbitrary. It follows, he reasons, that an officer who
arbitrarily stops drivers is not “enforcing motor vehicle laws.”
We assume that stopping drivers arbitrarily—namely, for no
reason or any reason—does not constitute “enforcing [the]
motor vehicle laws” within the meaning of ORS 807.620(1).
However, the stop in this case was not “arbitrary” in that
sense. The only testimony in the record is that the deputy
stopped defendant “for a traffic violation” for which the dep-
uty usually issued warnings. The trial court reasonably
could conclude from that testimony, as it later did in finding
that defendant had violated ORS 807.620(1), that the deputy
was “enforcing [the] motor vehicle laws” when he stopped
defendant for a traffic violation.
To be sure, the state has conceded that the deputy’s
inability to remember the specific violation that led him to
stop defendant precluded the state from showing a sufficient
justification for the stop. The state accordingly has acknowl-
edged that the deputy’s lack of memory rendered the stop
“unlawful.” However, the deputy’s lack of memory did not
render the stop “arbitrary,” as defendant uses that term, nor
did it mean that the deputy was not enforcing the motor
vehicle laws when he stopped defendant. We accordingly
agree with the trial court and the Court of Appeals that the
deputy was “enforcing [the] motor vehicle laws.”
C.  Attenuation
The remaining question is whether defendant’s deci-
sion to give the deputy a false name and address in violation
of ORS 807.620(1) attenuated the taint of the unlawful stop.
On that issue, the state and federal courts consistently have
held that a defendant’s decision to commit a new crime in
response to an unlawful seizure ordinarily will attenuate
the taint of the seizure. See Wayne R. LaFave, 6 Search and
Seizure § 11.4(j) at 483-91 (5th ed 2012) (discussing cases).
That is true whether the new crime consists of assaulting
Cite as 358 Or 565 (2016) 577
the arresting officer, attempting to bribe the officer, or mak-
ing a “criminal misrepresentation in an effort to bring the
incident to a close.” Id. at 483-84 (footnote omitted). The
only exceptions that courts have recognized to that rule
have been where the officer’s manner of stopping the defen-
dant justified the defendant’s response or where the officer
exploited the illegality. See id. at 489-90.
In this case, defendant made a “criminal misrep-
resentation in an effort to bring the case to a close.” See id.
at 484. There is nothing in the manner in which the deputy
carried out the stop that justified defendant’s misrepresen-
tation, nor did the deputy seek to exploit the stop. Rather,
the deputy merely sought to determine the driver’s identity
so that he could issue an accurate citation or warning. If we
were to follow the other state and federal courts that have
considered this issue, we would conclude that defendant’s
decision to misrepresent his identity attenuated the taint of
the unlawful stop, with the result that the statements that
defendant subsequently made to the deputy were admissible
in his trial for violating ORS 807.620(1).9 Oregon, of course,
analyzes issues under our constitution independently, and
the fact that other jurisdictions would hold that defendant’s
criminal act attenuated the taint of the unlawful stop does
not necessarily mean that we would reach the same conclu-
sion under Article I, section 9. We turn to that question of
Oregon law.
This court has not previously considered whether
a defendant’s decision to commit a new crime after being
unlawfully seized will attenuate the taint of the seizure.
However, this court has long recognized that a defendant
may not resist arrest merely because the arrest was unlaw-
ful. See State v. Wright, 310 Or 430, 433, 799 P2d 642 (1990)
(unlawful arrest provides no defense to charge of resisting
arrest as long as “officer was acting under color of official
authority”); State v. Allen, 152 Or 422, 53 P2d 1054 (1936)
(same). Implicit in those cases is the proposition that a defen-
dant’s decision to resist arrest attenuates the taint of the
9
On review, defendant does not challenge the Court of Appeals’ holding that
his August statements were not the product of the July stop. Accordingly, we
focus only on the statements that defendant made after being stopped in July.
578 State v. Suppah
unlawful arrest. This court, however, has never explained
why that is so. We accordingly consider the premises on
which those cases implicitly rest.
An unlawful arrest necessarily will be the “but for”
cause of a defendant’s decision to resist the arrest: But for
the arrest, the defendant would not have resisted. However,
this court has long recognized that “but for” causation is
insufficient, standing alone, to establish that subsequently
obtained evidence is the product of an illegality. State v.
Crandall, 340 Or 645, 652, 136 P3d 30 (2006); Hall, 339 Or
at 25. Rather, in determining whether evidence is the prod-
uct of an illegal seizure, the court has considered the tempo-
ral proximity between the police conduct and the discovery
of the evidence, the existence of intervening circumstances,
and the presence of other circumstances—such as admoni-
tions of constitutional rights—that bear on attenuation. See
State v. Unger, 356 Or 59, 77, 333 P3d 1009 (2014) (taking
those factors from Hall). The court also has considered the
“nature, extent, and severity of the constitutional violation,”
as well as “the purpose and flagrancy of the misconduct.” Id.
at 86.
The court explained in Unger that close temporal
proximity between the illegality and the discovery of evi-
dence does not necessarily establish that the evidence is the
product of the illegality. Id. at 77-78. Rather, depending on
the other factors noted above, a defendant’s voluntary deci-
sion “may be sufficient to demonstrate that the unlawful
conduct did not affect or had only a tenuous connection to
the evidence produced.” See id. (discussing evidence discov-
ered as result of consent to search that immediately followed
unlawful search).
Considering those factors, we note that a defen-
dant’s decision to resist an unlawful seizure or to commit
some other crime usually will follow closely on the seizure.
Moreover, there ordinarily will be few, if any, intervening
circumstances. Typically, what attenuates the act of resist-
ing arrest (or other criminal conduct) from the unlawful sei-
zure that preceded it is the defendant’s decision to engage
in an act that goes beyond the consequences that ordinarily
flow from the illegality. See Crandall, 340 Or at 652-53
Cite as 358 Or 565 (2016) 579
(defendant’s act of hiding drugs under parked car after offi-
cers unlawfully had directed him to come over and talk to
them attenuated taint of unlawful stop); State v. Kennedy,
290 Or 493, 624 P2d 99 (1981) (defendant’s unsolicited invi-
tation to search his luggage after officers unlawfully had
stopped him attenuated taint of unlawful stop). A decision
to strike an officer in response to an unlawful arrest or to
offer a bribe does not normally follow from the illegality, and
the formation of the mental state necessary to give rise to
those criminal acts provides further assurance that those
acts are independent of the illegality that preceded them. In
those respects, the commission of a new crime in response
to an illegality forms a relatively sui generis class of attenu-
ating circumstances.
Those considerations guide our decision here.
Ordinarily, a person stopped for a traffic violation will iden-
tify him or herself accurately. In choosing to misrepresent
who he was and when he was born, defendant’s response
to the deputy’s question went beyond what ordinarily would
occur in much the same way that a defendant’s decisions to
resist arrest or to offer a bribe go beyond the consequences
that ordinarily flow from an arrest. Moreover, in giving
the deputy a false name and address in violation of ORS
807.620(1), defendant knowingly chose to do something other
than what the deputy had asked. Finally, as the trial court
found in denying defendant’s motion to suppress, defendant
gave the deputy a false name and address in July to prevent
his girlfriend’s car from being towed. The reason for defen-
dant’s misrepresentation was unconnected, other than in a
“but for” sense, from the unlawful stop that preceded it.
We note, additionally, that the illegality in this case
cannot be described as “intrusive, extended, or severe.” See
Unger, 356 Or at 81 (discussing that consideration). Rather,
the trial court reasonably could have found that the stop
was a brief, routine traffic stop that lasted no longer than
necessary for the deputy to ask for and confirm defendant’s
name and date of birth. Nor can the illegality be described as
flagrant. See id. at 82-83 (recognizing that purpose and fla-
grancy of illegality can affect attenuation analysis). Were it
not for the deputy’s inability to remember the specific traffic
580 State v. Suppah
violation that led him to stop defendant in the first place,
there may have been no illegality at all. Put differently, from
a temporal perspective, the illegality did not become appar-
ent until months later at the suppression hearing when the
officer could not remember which traffic violation had led
him to stop defendant.
The trial court correctly concluded that the stop
had no appreciable effect on defendant’s decision to give the
deputy a false name and date of birth. Because that decision
attenuated the taint of the unlawful stop, the trial court
correctly denied defendant’s motion to suppress his state-
ments. We accordingly affirm the trial court’s judgment and
reverse the Court of Appeals decision.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.