State v. Unger ( 2014 )

No. 58 August 28, 2014 59
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, 287 P3d 1196 (2012).
60 State v. Unger
Defendant moved to suppress evidence obtained pursuant to a voluntary con-
sent search, arguing that his consent was the product of a prior unlawful search,
and, therefore, that the evidence was inadmissible under Article I, section 9, of
the Oregon Constitution. The trial court denied defendant’s motion, and a jury
convicted defendant on four of the counts charged. The Court of Appeals reversed
and remanded. Held: (1) The court disavowed the “minimal factual nexus” part
of the exploitation analysis announced in State v. Hall, 339 Or 7, 115 P3d 908
(2005); (2) instead, when a defendant has established that an illegal stop or an
illegal search occurred and challenges the validity of his or her subsequent con-
sent to a search, the state bears the burden of demonstrating both that the con-
sent was voluntary and that it was not the product of police exploitation of the
illegal stop or search; (3) whether police exploited unlawful conduct to obtain
a defendant’s consent to search depends on the totality of the circumstances,
including the temporal proximity between the unlawful conduct and the consent,
any intervening or mitigating circumstances, the nature, extent, and severity of
the constitutional violation, and the purpose and flagrancy of the misconduct;
and (4) in this case, the state met its burden of showing that, under the totality
of the circumstances, detectives did not exploit their unlawful entry into defen-
dant’s backyard to obtain his consent to enter his house or to obtain his consent
to show the detectives around his house.
The decision of the Court of Appeals is reversed, and the case is remanded to
the Court of Appeals for further proceedings.
Cite as 356 Or 59 (2014) 61
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, 353 Or 129,
295 P3d 617 (2013), and modified part of this court’s exploita-
tion analysis previously described in State v. Hall, 339 Or 7,
34-35, 115 P3d 908 (2005). Shortly after issuing Hemenway,
this court learned that the defendant in that case had died
before the court had issued its opinion. Accordingly, we
vacated our decision as moot. State v. Hemenway, 353 Or
498, 506, 302 P3d 413 (2013). In this case, as in Hemenway,
the state asks this court to revisit the exploitation analysis
in Hall and either overrule it or modify it as the court did in
Hemenway. Defendant, on the other hand, asks this court to
reaffirm Hall.
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
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, 252 Or App 478, 487-88, 287 P3d 1196 (2012). For
the reasons that follow, we reverse the decision of the Court
1
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; 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.”
62 State v. Unger
of Appeals. In doing so, we modify part of the exploitation
analysis announced in Hall.
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.2
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
show them around the house, and defendant agreed.
2
In ruling on defendant’s motion to suppress, the trial court stated, “I find
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.
Cite as 356 Or 59 (2014) 63
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,
3
Defendant also cited the Fourth Amendment to the United States
Constitution in his motion to suppress, but he does not make any argument under
the Fourth Amendment before this court.
64 State v. Unger
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
4
The Court of Appeals issued its decision in Unger before this court had
issued its decision in Hemenway modifying the Hall analysis.
Cite as 356 Or 59 (2014) 65
may exist if the illegality “significantly affected” the defen-
dant’s decision to consent. Id. Hall 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.”
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
5
On review, the state disputes the Court of Appeals’ characterization of its
argument before that court. The state notes that it did argue that the consent
was insufficiently related to the illegal conduct to justify suppression because
it argued that, at most, the illegality gave the detectives the opportunity to
request consent. That connection, argued the state, would establish only “but for”
causation, which would not demonstrate that the detectives had exploited their
illegal conduct to obtain defendant’s consent.
66 State v. Unger
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 Hall 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-
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.
Cite as 356 Or 59 (2014) 67
II. THE HALL EXPLOITATION ANALYSIS
We begin with a summary of the relevant parts of
Hall. 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, 295 Or 227, 234, 666 P2d 802
(1983)).
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
defendant’s free will and the consent instead resulted from
68 State v. Unger
“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, 290 Or 493, 624 P2d 99 (1981), noting that those
cases had borrowed from the exploitation analysis that the
United States Supreme Court had announced in Wong Sun
v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441(1963), to analyze whether Article I, section 9, required sup-
pression of evidence obtained through voluntary consent
searches.6 Although neither Rodriguez nor Kennedy required
suppression on the facts of those cases, the majority in Hall
noted that both cases had analyzed the issue as whether
the defendant’s voluntary consent “derived from” the prior
illegal seizures. 339 Or at 30-32. The majority determined
that “consent is insufficient to establish the admissibility
of evidence from a warrantless search if the state cannot
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.” Id. at 27 (citing Rodriguez, 317
Or at 41-42).
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
6
The majority also discussed and disavowed parts of State v. Quinn, 290 Or
383, 623 P2d 630 (1981), which had relied extensively on Wong Sun. The court’s
rejection of the result in Quinn was based on the difference between the state and
federal exclusionary rules and Quinn’s questionable application of Wong Sun, but
Hall did not reject Quinn’s endorsement of the Wong Sun exploitation analysis.
Hall, 339 Or at 26-30.
Cite as 356 Or 59 (2014) 69
the state has the burden to prove that the defendant’s con-
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
70 State v. Unger
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, 121 P3d 613 (2005). The state thus has the bur-
den of demonstrating that we should reconsider and reject
the rule announced in Hall. Similarly to the state’s argu-
ments in Hemenway, the state argues, among other things,
that Hall failed to apply this court’s “usual paradigm” for
analyzing constitutional provisions; that the decision failed
to construe the text or discuss the history of Article I, sec-
tion 9; and that it departed from earlier case law. We have
considered—and we reject—the state’s argument that Hall
suffers from the deficiencies that the state asserts. We also
note that, in seeking to overrule Hall, the state relies in sub-
stantial part on arguments that were, in fact, raised by the
Hall dissent and considered and rejected by the majority.
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 Hall 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
Cite as 356 Or 59 (2014) 71
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, 339 Or at 19 (examining
nature of encounter between police officer and the defendant
before engaging in exploitation analysis). There is nothing
constitutionally suspect under Article I, section 9, about
police engaging a citizen in conversation and then request-
ing that citizen’s consent to search. State v. Ashbaugh,
349 Or 297, 308-09, 317, 244 P3d 360 (2010). In contrast
to “mere conversation,” which does not implicate Article I,
section 9, an officer “stops” an individual—raising potential
constitutional issues—when the officer “intentionally and
significantly restricts, interferes with, or otherwise deprives
an individual of that individual’s liberty or freedom of move-
ment.” Id. at 308, 316; see also State v. Backstrand, 354 Or
392, 399-402, 412-13, 313 P3d 1084 (2013) (outlining prin-
ciples that guide analysis of what constitutes a seizure for
purposes of Article I, section 9). Article I, section 9, requires
the police, before stopping an individual, to have reasonable
suspicion that the individual is involved in criminal activity.
In the absence of reasonable suspicion (or some other per-
missible concern, such as officer safety), the individual has
the right to be free from police interference and may termi-
nate an encounter with police at will. See Ashbaugh, 349 Or
at 308-09.
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,
327 Or 366, 373, 963 P2d 642 (1998) (“[T]he privacy inter-
ests that are protected by Article I, section 9, commonly are
circumscribed by the space in which they exist and, more
72 State v. Unger
particularly, by the barriers to public entry (physical and
sensory) that define that private space.”). A search is “per se
unreasonable,” in violation of Article I, section 9, in the
absence of a warrant or an exception to the warrant require-
ment. State v. Baker, 350 Or 641, 647, 260 P3d 476 (2011).
The second issue is whether the consent to search
was voluntary. The proper test for voluntariness of consent
“is to examine the totality of the facts and circumstances to
see whether the consent was given by defendant’s free will
or was the result of coercion, express or implied.” Kennedy,
290 Or at 502 (citing Schneckloth v. Bustamonte, 412 US
218, 226-27, 93 S Ct 2041, 36 L Ed 2d 854 (1973)). To prove
the voluntariness of a consent to search in the context of an
illegal stop or an illegal search, the state must prove that the
defendant’s consent was the product of his or her own free
will, rather than the result of coercion. State v. Wolfe, 295 Or
567, 572, 669 P2d 320 (1983); see also State v. Stevens, 311
Or 119, 136, 806 P2d 92 (1991) (consent to search voluntary
when no evidence that “the police intimidated or coerced
defendant in any way”); Kennedy, 290 Or at 504, 506 (con-
sent to search voluntary in light of “an almost total absence
of coercive factors”).
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, 290 Or at 501(“[E]vidence [gained from a consent search during or after
alleged police illegality] is to be suppressed only if it is found
that the consent was gained by exploitation of the illegality
Cite as 356 Or 59 (2014) 73
or that defendant’s free will was tainted by the illegal police
conduct.” (Citing other state and federal jurisdictions that
apply Wong Sun to consent searches.)). The United States
Supreme Court also has used exploitation analysis in the
context of consent searches, even when the consent was
“voluntary,” in the sense that it was not coerced. See, e.g.,
Florida v. Royer, 460 US 491, 501, 507-08, 103 S Ct 1319, 75
L Ed 2d 229 (1983) (voluntary consent to search tainted by
illegal detention by police).
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
74 State v. Unger
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
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, 323 Or 455, 462-63, 918 P2d 819 (1996)
(suppression of evidence required only when the evidence is
a product of the constitutional violation); State v. Williamson,
307 Or 621, 626, 772 P2d 404 (1989) (search not valid when
consent is “obtained under the pressure of police action that
became available to police only by the prior unauthorized
conduct”).
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.” 339 Or at 25. Once the defendant establishes
that causal link, the burden shifts to the state to prove that
the evidence nevertheless is admissible because “the defen-
dant’s consent was independent of, or only tenuously related
to, the unlawful police conduct.” Id. at 34-35.
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 Hall, the test has
been unevenly applied and, apparently, has proved confus-
ing to lawyers and judges. Instead, we hold that, when a
Cite as 356 Or 59 (2014) 75
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, 335 Or 511, 73 P3d 282
(2003). In that case, the defendant sought to suppress evi-
dence that had been seized illegally but then later “reseized”
pursuant to a warrant. The state asserted that the war-
rant was “entirely independent of, and was not obtained by
exploitation of, the previous illegality.” Id. at 519. Ordinarily,
a search performed under authority of a warrant is subject
to a presumption of regularity, and the party challenging
the evidence bears the burden to prove the unlawfulness of
the search or seizure. Id. at 520-21. Before addressing the
state’s exploitation argument, the court addressed which
party bore the burden with regard to proving exploitation or
its absence. Because of the presumption of regularity when
the police act under authority of a warrant, the court con-
cluded that the defendant had an initial burden to estab-
lish a “factual nexus” between prior illegal police conduct
and the evidence gained pursuant to an independently valid
warrant. Id. Once a defendant demonstrates that nexus, the
court in Johnson wrote, “the presumption of regularity [of
the warrant] is undermined and the burden of proof fairly
may be shifted to the government to show that the evidence
is not tainted by the misconduct.” Id. at 521.
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,
330 Or 85, 87, 997 P2d 182 (2000). When the police perform
a search and seize evidence without a warrant, as in Hall
and in this case, there is no presumption of regularity to
overcome, because there was no warrant and, thus, there
is no need for a threshold showing by the defendant to shift
the burden to the state. The state already has the burden to
prove that the warrantless search was valid.
76 State v. Unger
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.”
339 Or at 35. Hall posited two scenarios that may require
suppression:
“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. 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
Cite as 356 Or 59 (2014) 77
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, 348 Or 622, 636-39, 237 P3d 805 (2010) (evi-
dence suppressed under Hall when statements were made in
response to officer questions in close temporal proximity to
police illegality and Miranda warnings alone were not suf-
ficient to “ensure that the unlawful police conduct did not
affect, or had only a tenuous connection to, [the] defendant’s
responses”); State v. Rodgers/Kirkeby, 347 Or 610, 630,
227 P3d 695 (2010) (evidence suppressed under Hall when
consent granted in close temporal proximity to illegal stop
and state failed to demonstrate intervening or mitigating
circumstances).
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
78 State v. Unger
to the evidence produced. See Rodriguez, 317 Or at 41-42;
Williamson, 307 Or at 626 (both rejecting proposition that
consent “can never legitimize” a search following illegal
police conduct). That legal determination—whether, in the
circumstances of a particular case, consent has so attenu-
ated the connection between the prior illegal conduct and
the evidence obtained in the consent search—requires
a court to consider the illegal conduct that comprised the
stop or search, the character of the consent, and the causal
relationship between the two. In Kennedy, for example, the
defendant’s consent was not “tainted” by the illegal police
conduct when there was an “absence of any coercive cir-
cumstances surrounding [the] defendant’s consent” and the
defendant had volunteered consent without prompting from
the officers. 290 Or at 504, 506.
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, 339 Or at 34. Hall, however, suggested that, had
the police asked for (and obtained) the defendant’s consent in
Rodriguez—rather than the defendant having volunteered
to be searched—suppression would have been required. Id.By asserting that an unprompted consent is an intervening
circumstance sufficient to mitigate the causal impact of the
prior illegality, while positing that a requested consent on
the same facts would demonstrate the necessary causal con-
nection, 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 interven-
ing or mitigating circumstances exist.
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
Cite as 356 Or 59 (2014) 79
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
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
7
The court in Hall correctly recognized that evidence obtained following
unlawful police conduct also will be admissible if the state can prove that the
evidence “inevitably” would have been discovered through lawful procedures or
that the police obtained the disputed evidence “independently” of the violation of
the defendant’s rights. 339 Or at 25. However, those considerations are not part
of the more focused inquiry as to whether the causal connection between the
unlawful conduct and the defendant’s consent requires suppression, and neither
in Hall nor in this case did the state argue “inevitable discovery” or “independent
source” as grounds of admissibility of the disputed evidence.
80 State v. Unger
whether the defendant’s voluntary consent derived from
unlawful police conduct involved a “fact-specific inquiry into
the totality of the circumstances to determine the nature of
the causal connection.” 339 Or at 35. But the only “consider-
ations” that the court mentioned as relevant to that inquiry
were the temporal proximity between the illegal police con-
duct and the voluntary consent; the existence of interven-
ing circumstances; and the presence of circumstances that
might mitigate the effect of the police misconduct, such as
Miranda warnings or the police advising the defendant of
his right to refuse consent. Id. at 35, 35 n 21. Subsequent
cases have understandably focused on the considerations
highlighted in Hall. Those considerations are appropriate,
of course; however, in our view, determining based on the
totality of the circumstances whether the police exploited the
prior unlawful conduct to obtain consent often will involve
additional considerations, as this case illustrates.
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
8
This court and the federal courts have used a variety of verbal formulations
in an effort to capture one general concept: that some voluntary and otherwise
valid consents to search are nevertheless influenced by prior unlawful police con-
duct to the extent that evidence obtained from the search should be suppressed
under the applicable constitutional standard. See Hall, 339 Or at 22 (examining
whether evidence must be excluded, despite voluntary consent, because that con-
sent “derived from—or, stated differently, was obtained by ‘exploitation’ of—the
unlawful stop” (emphases added)); Wong Sun, 371 US at 488 (explaining that
courts must examine whether evidence “has been come at by exploitation” of a
prior illegality (internal quotation marks omitted; emphasis added)); Brown v.
Illinois, 422 US 590, 600, 604, 95 S Ct 2254, 45 L Ed 2d 416 (1975) (applying
Wong Sun to determine whether the defendant’s statements were obtained by
“exploitation of the illegality of his arrest”); Rodriguez, 317 Or at 41 (concluding
that INS agent “did not trade on or otherwise take advantage of ” unlawful arrest
to obtain the defendant’s consent to search (emphases added)); Ashbaugh, 349 Or
at 307, 318 (examining whether consent search of the defendant’s purse “in some
sense derived from” prior unlawful police stop and concluding that consent was
not “the product of” an unlawful stop (emphasis in original)); Rodgers/Kirkeby,
347 Or at 628-30 (explaining that evidence may be excluded where “a defendant’s
[voluntary] consent was derived from, or was the product of, the prior police ille-
gality” and concluding that consent given during unlawful extension of traffic
stop was the product of that unlawful seizure (emphases added)); Royer, 460 US
at 501 (noting that prior cases have held that “statements given during a period
Cite as 356 Or 59 (2014) 81
seems obvious that, in many cases, the nature of the illegal
conduct will be a relevant consideration. Unlawful police
conduct can take many forms, from a daytime trespass by
following a path around the lower level of the defendant’s
house from a front door to a back door, as in this case, to
an unlawful arrest followed by lengthy interrogation at
a police station. If the conduct is intrusive, extended, or
severe, it is more likely to influence improperly a defen-
dant’s consent to search. In contrast, 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 where
the taint is limited, the degree of attenuation necessary to
purge the taint is correspondingly reduced. See Ayles, 348
Or at 654 (Kistler, J., dissenting). Thus, voluntary consent
to a search in those circumstances is more likely to be suffi-
cient to demonstrate that the consent was “independent of,
or only tenuously related to, the unlawful police conduct.”
Hall, 339 Or at 35.
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, 422 US 590, 603-04, 95 S Ct 2254,
45 L Ed 2d 416 (1975), where the United States Supreme
Court described the “purpose and flagrancy of the official
misconduct” as relevant to exploitation analysis under the
Fourth Amendment. In Wolfe, this court explained that
the Brown exploitation factors, including “purpose and fla-
grancy,” were relevant in determining the effect of police
misconduct on the voluntariness of a defendant’s consent to
search. 295 Or at 572. In Hall, however, the court asserted
that “purpose and flagrancy” “relates to only the deterrence
rationale of the Fourth Amendment exclusionary rule and
has no applicability to the exclusionary rule under Article I,
section 9.” 339 Or at 35 n 21. Although the court in Hall
reiterated the “rights-based” rationale of Article I, section
9, and contrasted it with the “deterrence” rationale of the
Fourth Amendment, see id. at 22-25, it did not explain why
of illegal detention are inadmissible even though voluntarily given if they are the
product of the illegal detention and not the result of an independent act of free
will” (emphasis added)).
82 State v. Unger
“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, 287 Or 157, 159-60, 166, 598 P2d 670
(1979) (where officers entered the defendant’s home at night
without consent and arrested him, the defendant’s subse-
quent statements were tainted by police misconduct).10 By
seeking consent after engaging in such flagrant violation
of the defendant’s constitutional rights, the police improp-
erly exploit their misconduct, because they have placed the
defendant “in a worse position than if the governmental offi-
cers had acted within the bounds of the law.” See Hall, 339
Or at 25. Although every police illegality places an individ-
ual in a worse position than if no illegality had occurred, it
is a matter of degree. Officers who engage in particularly
egregious or intimidating misconduct place the individual
in a more disadvantaged position, making it easier and
more likely for the officer to exploit that illegality to obtain
consent. Excluding the subsequently discovered evidence
vindicates the defendant’s rights and thus is consistent with
the rights-based rationale underlying Article I, section 9.
Similarly, the “purpose” of the police misconduct
may be a relevant consideration in the exploitation analysis
9
Justice Landau’s concurring opinion argues that this court took a wrong
turn in rejecting deterrence as one rationale for excluding evidence because
it was obtained in violation of Article I, section 9, and relying exclusively on a
“rights-based” rationale. 356 Or at 94-103 (Landau, J., concurring). We need not
address that issue, interesting as it is, because we reach the same result based on
this court’s existing rights-based approach.
10
Conversely, the absence of flagrant or egregious police conduct, even in a
situation where the defendant’s Article I, section 9, rights have been violated, can
be relevant considerations in determining whether police exploited their miscon-
duct to obtain consent.
Cite as 356 Or 59 (2014) 83
in some circumstances. Our cases have rejected constitu-
tional principles that would involve the court in unstruc-
tured analysis of a person’s subjective understandings,
whether that person is a police officer or a defendant. See
Ashbaugh, 349 Or at 309-16 (reconsidering and rejecting
as component of test for “seizure” under Article I, section 9,
whether person had “subjective belief” that they had been
seized); Hall, 339 Or at 28 n 16 (rejecting notion that “a police
officer’s state of mind is relevant under Article I, section 9”).
Instead, this court has focused on objective circumstances,
behavior, and verbal comments. See Ashbaugh, 349 Or at
316 (focus is on “objective” circumstances of police conduct
and what a reasonable person would believe based on the
circumstances). However, in some cases, those objective cir-
cumstances may indicate the police purpose in engaging in
conduct later determined to be unlawful. So, too, may state-
ments that police make at the time or in a later court pro-
ceeding. Whether expressed through conduct or comments,
the “purpose” of what is later determined to be unlawful
police conduct could well be relevant both to understanding
the nature of the misconduct and, ultimately, to deciding
whether the police exploited that misconduct to obtain con-
sent to search. Again, while Hall dismissed the relevance of
police “purpose” in a footnote, in our view, that purpose may
be an appropriate consideration in the rights-based analysis
under Article I, section 9, at least in some circumstances.
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
84 State v. Unger
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 356 Or at 74 (discussing Hall, 339 Or at 34-35).
Instead, we view that requirement, which placed an initial
burden on the defendant, as being encompassed in the gen-
eral exploitation analysis. As to that analysis, we adhere to
Hall in requiring the state to prove that the consent was
independent of, or only tenuously related to, the illegal police
conduct. 356 Or at 74-75; Hall, 339 Or at 35.
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,
Cite as 356 Or 59 (2014) 85
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, 356 Or 148, ___ P3d___ (2014), also decided today,
after reviewing all the facts related to the unlawful police
conduct and the defendant’s subsequent consent to a search,
we concluded that the officer had exploited his unlawful con-
duct to obtain the consent. We therefore suppressed the evi-
dence in that case, notwithstanding the fact that the police
conduct was restrained and courteous.
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 Hall, 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-
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, 350 Or 243, 261-62, 262 n 8, 253 P3d 1042
(2011) (finding no reason to determine whether exploita-
tion analysis would require suppression of evidence because
determination that consent was not voluntary required sup-
pression); Williamson, 307 Or at 626-27 (Carson, J., concur-
ring) (“The validity of [the defendant’s] consent determines
the outcome of this case. If the consent were involuntary
86 State v. Unger
and, thus, invalid, the subsequent search and resulting sei-
zure, arrest, and conviction likewise were invalid.”).
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, Hall
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:
Cite as 356 Or 59 (2014) 87
“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
88 State v. Unger
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-
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]
Cite as 356 Or 59 (2014) 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.11
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
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, 348 Or at 654 (Kistler, J.,
dissenting) (degree of attenuation required to purge taint
of unlawful police conduct varies with “extent, nature, and
severity of any illegality”); see also U.S. v. Perea-Rey, 680
F3d 1179, 1188 (9th Cir 2012) (for Fourth Amendment pur-
poses, the “constitutionality of * * * entries into the curtilage
hinges on whether the officer’s actions are consistent with
an attempt to initiate consensual contact with the occu-
pants of the home. Officers conducting a knock and talk * * *
need not approach only a specific door if there are multiple
doors accessible to the public.”). Nothing in the record sug-
gests that the interaction between the detectives and defen-
dant, including his voluntary consent to the search, was any
11
It is not clear from the motion to suppress or from the briefing whether
defendant argues that the detectives exploited their unlawful entry into defen-
dant’s backyard to obtain (1) defendant’s consent to enter the house; (2) defen-
dant’s consent to take the detectives on a tour of the house; or (3) both. For pur-
poses of this opinion, we assume that defendant is arguing that both the entry
and the search of the house violated his Article I, section 9, rights.
90 State v. Unger
different than it would have been if he had answered the
initial knock at his front door.
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, 339 Or at 36 (noting close
temporal proximity between consent and unlawful stop of
the defendant). Temporal proximity weighs in defendant’s
favor.
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
12
As noted earlier, the officers told defendant, once in the house, that he
could refuse consent to search. They did not, however, tell him that he could
refuse to consent to their entry at the time that they entered the house. Such
admonitions, although not required, may be helpful when the state seeks to show
that it did not exploit any police misconduct to obtain consent. See Hall, 339 Or
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
conduct”). See also LaFave, 4 Search and Seizure § 8.2(i) at 152-55 (admonitions
or warnings not required, but may be significant in determining validity of con-
sent to search).
Cite as 356 Or 59 (2014) 91
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.
92 State v. Unger
Compare U.S. v. Robeles-Ortega, 348 F3d 679, 680-81, 684
(7th Cir 2003) (concluding that evidence was tainted where
consent to search was given after “the officers literally broke
down the door, without exigent circumstances and without a
warrant, and at least five agents rushed into the apartment
with guns”). When defendant opened the door, the detec-
tives introduced themselves, explained why they were there,
and asked for consent, just as they would have at the front
door. Thus, although the detectives’ conduct allowed them to
contact defendant, the unlawful conduct in which the detec-
tives engaged was not flagrant. In short, nothing about the
limited nature of the unlawful conduct, or the purpose or
flagrancy of the conduct, suggests that it caused defendant
to consent to the search.
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, 339 Or at 25(“[T]his court has rejected the notion that evidence is ren-
dered inadmissible under Article I, section 9, simply because
it was obtained after unlawful police conduct or because it
would not have been obtained ‘but for’ unlawful police con-
duct.”). That part of Hall, along with other parts that we
reaffirm, remains sound. Where a defendant has consented
voluntarily to a search following police misconduct, we con-
sistently have held that mere but-for causation is insufficient
to justify suppression of the evidence, even in the absence
of intervening or mitigating circumstances. Here, the state
has met its burden of showing that, under the totality of
the circumstances, the detectives in this case did not exploit
their unlawful entry into defendant’s backyard to obtain his
consent to enter the house or to obtain his consent to show
the detectives around his house.
Cite as 356 Or 59 (2014) 93
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, 339 Or at 25 (“[T]his 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 it would not have
been obtained ‘but for’ unlawful police conduct.”).
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 Hall, 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
94 State v. Unger
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,
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
13
In addition to the issue raised before this court, defendant raised four other
assignments of error before the Court of Appeals. Although the court rejected
two of those assignments of error without discussion, the court declined to reach
defendant’s other two assignments of error because it was unnecessary given
the court’s disposition in the case. See Unger, 252 Or App at 479 n 2. Because we
reverse the Court of Appeals, we remand for the Court of Appeals to consider the
remaining two assignments of error.
Cite as 356 Or 59 (2014) 95
if the government’s officers had stayed within the law.” State
v. Hall, 339 Or 7, 24, 115 P3d 908 (2005). In adopting that
rationale, the court has categorically rejected deterrence as
an explanation for this state’s exclusionary rule. In so doing,
the court has painted itself into something of a doctrinal
corner.
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-
ing the vindication of personal rights as the rationale for
this state’s exclusionary rule. It is to say that the court has
96 State v. Unger
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,
287 Or 131, 136, 597 P2d 1243 (1979), for example, the court
explicitly endorsed the federal court view that the exclusion-
ary rule is “a judicially created remedy designed to deter
future unlawful police conduct and that the rule [is] not for
the purpose of compensating for the unlawful invasion of
a person’s privacy.” See also State v. Holt, 291 Or 343, 351,
630 P2d 854 (1981) (“The purpose of exclusion is to deter
unlawful police conduct by excluding evidence unlawfully
obtained from the person against whom it is to be used.”);
State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981) (refer-
ring to the “protective and prophylactic purposes” of the
deterrence-based exclusionary rule).
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, 295 Or 227, 237,
666 P2d 802 (1983), the court went so far as to suggest
that, historically, the purpose of Oregon’s exclusionary rule
was to vindicate the personal rights of the defendant “by
denying the state the use of evidence secured in violation
of those rules against the persons whose rights were vio-
lated, or, in effect, by restoring the parties to their position
as if the state’s officers had remained within the limits of
their authority.” The court nevertheless acknowledged some
Cite as 356 Or 59 (2014) 97
“diversity of expression” as to the rationale for the exclusion-
ary rule, which included in a number of cases the deterrence
of future police misconduct. Id.In State v. Tanner, 304 Or 312, 745 P2d 757 (1987),
however, a deeply divided court (there were five separate
opinions) stated categorically that Oregon’s exclusionary
rule was not predicated on deterrence of police miscon-
duct. Citing Davis and McMurphy, the court declared that,
“[u]nlike the Fourth Amendment exclusionary rule, which
has been predicated in recent years on deterrence of police
misconduct * * * the exclusionary rule of [Article I,] section 9[,]
is predicated on the personal right of a criminal defendant
to be free from an ‘unreasonable search, or seizure.’ ” Id. at
315.
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, 836 P2d 127 (1992), this court expressly disavowed
Nettles, explaining that its prior decision had relied too
much on federal Fourth Amendment analysis in recogniz-
ing deterrence as a rationale for the state’s exclusionary
rule. Since then, the court fairly consistently has reiterated
the position that the sole purpose of, and rationale for, the
state’s exclusionary rule is the vindication of the personal
98 State v. Unger
right to be free from unreasonable searches and seizures.
See, e.g., State v. Smith, 327 Or 366, 379, 963 P2d 642 (1998)
(“This court *  * clearly has rejected that deterrence ratio-
*
nale as foreign to the Oregon search and seizure provision,
holding, instead, that the Oregon exclusionary rule exists to
vindicate a personal right to be free from unlawful searches
and seizures.”); State v. Sargent, 323 Or 455, 462 n 4, 918
P2d 819 (1996) (“Oregon does not follow the rationale that
suppression is granted to deter unlawful police conduct.”).
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
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, 553 P2d 907, 911-12
(Alaska 1976). The Hawaii Supreme Court, for another
example, recognizes that its state exclusionary rule serves
three purposes: “(1) judicial integrity, (2) the protection of
individual privacy, and (3) deterrence of illegal police mis-
conduct.” State v. McKnight, 131 Hawai’i 379, 398, 319 P3d
298 (2013). The Idaho Supreme Court likewise has devel-
oped its state constitutional exclusionary rule “as a constitu-
tionally mandated remedy for illegal searches and seizures
* * * [and] a deterrent for police misconduct.” State v. Koivu,
152 Idaho 511, 519, 272 P3d 483 (2012).2
1
I am aware of only two states—New Mexico and Pennsylvania—that have
rejected deterrence as a justification for a state exclusionary rule. See State v.
Gutierrez, 116 NM 431, 446, 863 P2d 1052 (1993) (objective of the exclusionary
rule is not to deter police misconduct but “to effectuate in the pending case the
constitutional right of the accused to be free from unreasonable search and sei-
zure”); Com. v. Valentin, 2000 PA Super 63, 748 A2d 711, 713, appeal denied, 564
Pa 731, 766 A2d 1247 (2000) (“While the sole purpose of the exclusionary rule
under the Fourth Amendment is to deter police misconduct, Article I, section 8,
[of the Pennsylvania Constitution] is meant to embody a strong, abiding, and
distinctive notion of privacy.”).
2
See also State v. Bolt, 142 Ariz 260, 266 n 7, 689 P2d 519 (1984) (“There
are other reasons justifying the existence of the exclusionary rule. When officers
Cite as 356 Or 59 (2014) 99
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, 691 SE2d 378 (2010) (“The rationale behind the
exclusionary rule is to prevent the State from capitalizing on police misconduct
to put the prosecution in a better position than it would have been if no illegality
had occurred.”); People v. McGee, 268 IllApp3d 32, 43, 644 NE2d 439 (1994) (“In
vindicating individual rights, the exclusionary rule encourages compliance by the
legislative and executive branches and induces scrutiny and guidance from the
judicial branch * * *. It encourages the legislature to enact constitutional laws and
prevents legislative ‘grace’ periods during which large classes of constitutional
violations may freely take place. It encourages the executive branch to uphold
its oath to support the Illinois Constitution while carrying out the duties of the
particular office. It permits courts to honor the Constitution other than merely
to note its breach.”); State v. Coleman, 466 So 2d 68, 72 (LaApp2 Cir 1985), writ
denied, 467 So2d 542 (La 1985) (“The primary purpose of the exclusionary rule
* * * is to deter official misconduct by government agencies in the administration
of the criminal law. *  * Another recognized purpose of the exclusionary rule is
*
that judicial integrity will be best served by denying the State the use of evidence
unconstitutionally obtained or seized from a citizen or from his home.” (Emphasis
in original.)); Com. v. Brown, 456 Mass 708, 715, 925 NE2d 845 (2010) (“One of
the purposes * * * is the deterrence of police [mis]conduct * * *. Another is the pro-
tection of judicial integrity through the dissociation of the courts from unlawful
conduct.”); State v. Panarello, 157 NH 204, 207, 949 A2d 732 (2008) (“The purpose
of the exclusionary rule is three-fold. * * * It serves to: (1) deter police misconduct;
(2) redress the injury to the privacy of the victim of the unlawful police conduct;
and (3) safeguard compliance with State constitutional protections.”); State v.
Harris, 211 NJ 566, 590, 50 A3d 15 (2012) (“The purpose of the rule is two-fold:
1) to assure that the law does not provide an incentive for police misconduct and
2) to protect judicial integrity.”); Miles v. State, 1987 OK CR 179, 742 P2d 1150,
1152 (1987) (“The purpose of the exclusionary rule is to deter police misconduct
and to provide an effective remedy for unreasonable searches and seizures.”);
State v. Patton, 898 SW2d 732, 734 (Tenn Crim App 1994) (“The dual purposes
of the exclusionary rule are to protect fundamental individual liberties and to
deter improper police conduct.”); State v. Felix, 339 Wis2d 670, 695, 811 NW2d
775 (“The purposes of the exclusionary rule are to deter police misconduct and
ensure judicial integrity by refusing to rely on evidence obtained through police
misconduct * * *, but the primary purpose is deterrence.”).
100 State v. Unger
required to choose one justification or the other. The case
law that I have just noted casts some doubt on the validity of
that assumption, however. In my view, there seems to be no
good reason why deterrence cannot also inform our evalua-
tion of whether evidence must be excluded.
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, 245 P3d 101 (2010) (“Under, Article I, section 12,
the police must give a defendant who is in custody Miranda-
like warnings prior to questioning.”). Indeed, the court has
candidly explained that requiring such warnings is not,
strictly speaking, required by the text of the constitution;
rather, the requirement is a judicially created prophylactic
that “may be adapted or replaced from time to time by deci-
sions of this court or by legislation in the light of experience
or changing circumstances.” State v. Mains, 295 Or 640,
645, 669 P2d 1112 (1983).
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,]
Cite as 356 Or 59 (2014) 101
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. 291 Or at 785. But it strikes me that
that is valid only if it assumed that deterrence is the sole
justification for the state’s exclusionary rule.
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 Hall, 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
102 State v. Unger
will require the exclusion of evidence obtained from that
search if that misconduct “significantly affected” the defen-
dant’s consent. 339 Or at 34-35. But the three factors that
the court listed as an aid to determining whether the mis-
conduct “significantly affected” the defendant’s consent—
temporal proximity, intervening circumstances, and other
circumstances that mitigate the misconduct—need not have
anything whatsoever to do with whether the misconduct
actually affected the defendant’s consent at all, much less
substantially so.
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, 422 US 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975),
and Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9
L Ed 2d 441 (1963). See, e.g., Hall, 339 Or at 21 (relying on
Wong Sun); State v. Painter, 296 Or 422, 425, 676 P2d 309
(1984) (relying on Brown and Wong Sun); State v. Wolfe, 295
Or 567, 572, 669 P2d 320 (1983) (relying on Brown). The fed-
eral “fruit of the poisonous tree” cases, however, have been
predicated expressly on the importance of deterrence as a
justification for disregarding an otherwise voluntary con-
sent. Brown, for example, went to some lengths to empha-
size that its exclusion of evidence in cases such as Wong Sun
was intended to effectuate “the broad deterrent purpose” of
the exclusionary rule. 422 US at 599-600.
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
Cite as 356 Or 59 (2014) 103
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, 348 Or 622, 636, 237 P3d 805 (2010);
State v. Rodgers/Kirkeby, 347 Or 610, 628-29, 227 P3d 695
(2010); State v. Hall, 339 Or 7, 27, 115 P3d 908 (2005); State
v. Olson, 287 Or 157, 166, 598 P2d 670 (1979). From today,
when a police officer violates the Oregon Constitution,
a court no longer must presume that the officer gains an
advantage, and the state no longer has the burden to prove
that the evidence that the officer obtains by pressing that
advantage should be admitted.
I concede that the majority does not acknowledge
those fundamental shifts. State v. Unger, 356 Or 59, ___
1
See, e.g., United States v. Macias, 658 F3d 509, 524 (5th Cir 2011) (suppress-
ing evidence from voluntary consent obtained during illegal extension of traffic
stop); United States v. Washington, 490 F3d 765, 777 (9th Cir 2007) (where consent
obtained immediately after illegal seizure, without any “appreciable interven-
ing circumstances,” evidence must be suppressed); United States v. Lopez-Arias,
344 F3d 623, 630 (6th Cir 2003) (suppressing evidence obtained during consent
search when consent obtained during illegal arrest); United States v. Vasquez,
638 F2d 507, 527-29 (2d Cir 1980), cert den, 450 US 970 (1981) (consequence of
“an illegal entry is to make unlawful any ensuing interrogations or searches,”
and “suppression is required * * * unless the taint of the initial entry has been dis-
sipated before the ‘consents’ to search were given”); Commonwealth v. Swanson,
56 Mass App Ct 459, 463-64, 778 NE2d 958 (2002) (“evidence [obtained after the
illegal entry] must be disregarded in assessing the lawfulness of the search”); In
re Ashley W., 284 Neb 424, 444, 821 NW2d 706 (2012) (ordering suppression of
evidence derived from consent search made during unlawful stop).
104 State v. Unger
P3d ___ (2014). In fact, the majority specifically disavows
them when it disputes the dissents’ suggestion that “we
have modified the Hall analysis to remove the presumption
that a consent search following unlawful police conduct is
‘tainted,’ ” 356 Or at 84, and insists that the burden of estab-
lishing the admissibility of evidence produced as a result of
such a consent search remains with the state. 356 Or at 88.
But if the presumption held and the burden stayed put, the
majority could not decide this case the way that it does.
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-
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
Cite as 356 Or 59 (2014) 105
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.”
348 Or at 634 (emphasis in original).
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.” 356 Or at 92. If the burden remained with the
state, then the majority would have identified the evidence
that the state had adduced to demonstrate that defendant’s
consent to search was unrelated to the fact that uniformed
officers had come onto his property, into his backyard and
up to his sliding glass bedroom door, woken him from sleep,
and, pressing that unconstitutional advantage, requested
his consent to search.
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[.]” 356 Or at 82. And,
the majority recognizes that the purpose of the exclusionary
rule is to restore defendants to the same position that they
would have occupied if “the government’s officers had stayed
106 State v. Unger
within the law.” Hall, 339 Or at 24; State v. Davis, 295 Or
227, 234, 666 P2d 802 (1983).
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.” 356 Or at 77. The
reason, the majority explains, is that “[o]ur 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
to the evidence produced.” 356 Or at 77-78. True enough,
but the cited cases—State v. Rodriguez, 317 Or 27, 854 P2d
399 (1993), and State v. Kennedy, 290 Or 493, 624 P2d 99
(1981) 2 —are the same cases that the state relied on in Hall
and that the court found unconvincing. The court explained
in Hall that, in Rodriguez and Kennedy, the officers did not
engage in illegal conduct and then, pressing their advan-
tage, politely ask for consent to search. There were interven-
ing, mitigating facts: In those cases, before the police sought
consent to search, the defendants had “volunteered to allow
the search without any police prompting,” and, in Kennedy,
the police also provided the defendant with Miranda warn-
ings. Hall, 339 Or at 34. Thus, under Hall, Rodriguez, and
Kennedy, the state was required to prove intervening or mit-
igating facts, other than tainted consent, to establish the
admissibility of the evidence that the officers discovered.
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
2
  The majority also cites State v. Williamson, 307 Or 621, 772 P2d 404 (1989),
in which police officers had traded on evidence that they had only by virtue of
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
cry from Kennedy.” Id. at 626.
Cite as 356 Or 59 (2014) 107
at 92. Both interpretations of Hall cannot be correct, and
only the former justifies the result that the court reached in
Hall and applied thereafter.
The majority is correct that, in Hall, 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
it would not have been obtained ‘but for’ unlawful police
conduct.”
339 Or at 25. However, the majority fails to point out that
the court then went on to explain what it meant by that
statement: that, although a defendant establishes a causal
connection sufficient to result in suppression when the
defendant establishes a but-for relationship between an
unconstitutional act and the evidence to be suppressed, the
state may prove to the contrary:
“[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, 335 Or at 522-26 (discussing principle);
(2) the police obtained the disputed evidence independently
of the violation of the defendant’s rights under Article I, sec-
tion 9; see, e.g., Smith, 327 Or at 379-80 (discussing princi-
ple); or (3) the preceding violation of the defendant’s rights
under Article I, section 9, has such a tenuous factual link
to the disputed evidence that that unlawful police conduct
cannot be viewed properly as the source of that evidence,
see, e.g., State v. Jones, 248 Or 428, 433-34, 435 P2d 317
(1967) (discussing principle).”
Id. (emphasis added). It is the third means by which the
state may fulfill its burden to demonstrate that the evidence
did not derive from the preceding illegality on which the
108 State v. Unger
majority hangs its hat—that the violation “has such a tenu-
ous factual link to the disputed evidence that that unlawful
police conduct cannot be viewed properly as the source of
that evidence.” Id. But, again, the majority makes more of
that hook than it can hold.
In Hall, the court cited State v. Jones, 248 Or 428,
435 P2d 317 (1967), as discussing the principle on which
the majority relies. In Jones, the court had observed that a
causal link between an unconstitutional act and resulting
evidence may be too tenuous to require suppression when
intervening events or circumstances—such as a legal arrest
or the passage of time—break the causal chain. Id. at 434.
In Hall, the court reasoned that, when such a break occurs,
the admission of the challenged evidence
“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.”
339 Or at 25.
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-
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.
Cite as 356 Or 59 (2014) 109
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.” 356 Or at 83.
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 Hall, 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
violation—whatever its nature or severity—requires sup-
pression. If it overrules the former, then the majority
110 State v. Unger
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, 350 Or at 700 (citations omitted). Similarly here, the
state raises no argument that was not rejected by the major-
ity in Hall, Rodgers/Kirkeby, and Ayles. I see no principled
reason for this court to overrule those cases or to decide,
without explicitly overruling them, that the new rule that it
articulates is an improvement on the old. And I do not see
the new rule as an improvement. The rule that a continu-
ing unconstitutional act creates an advantage that requires
suppression absent proof of intervening or mitigating facts
was clear and workable, and the majority does not mount a
case to the contrary.
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, 680 F3d 1179, 1187-88 (9th Cir
2012) (“[I]t remains permissible for officers to approach a
home to contact the inhabitants. The constitutionality of
such entries into the curtilage hinges on whether the officer’s
actions are consistent with an attempt to initiate consensual
Cite as 356 Or 59 (2014) 111
contact with the occupants of the home. Officers conducting
a knock and talk also need not approach only a specific door
if there are multiple doors accessible to the public.”); United
States v. Raines, 243 F3d 419, 421 (8th Cir 2001) (“[L]aw
enforcement officers must sometimes move away from the
front door when attempting to contact the occupants of a
residence.”). Under those courts’ precedents, therefore, the
actions in which the officers engaged in this case would not
violate the constitution, and thus evidence obtained by those
actions would be admissible.
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,
3
With respect, the concurrence mistakes the focus of the inquiry. Citing the
dissent in Hall, Justice Landau asks: “If a defendant has, in fact, voluntarily con-
sented to the search, why should the courts not vindicate that decision?” 356 Or
at 95 (Landau, J., concurring). He expresses doubt about whether police miscon-
duct may “deprive[ ] subsequent consent of its force[,]” id., and joins the majority
“which gives greater attention to the role of a defendant’s consent to a warrant-
less search.” Id. at 103.
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
112 State v. Unger
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, 295 Or at 233-34 (“The object of deny-
ing the government the fruits of its transgression against
the person whose rights it has invaded is not to preserve the
self-regard of judges but to preserve that person’s rights to
the same extent as if the government’s officers had stayed
within the law.”).4
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
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.
4
I do not see Justice Landau as arguing that that brick should remain in
place and be supported by a second brick of deterrence. Justice Landau considers
“the idea” of tainted consent to be “something of a fiction.” 356 Or at 95 (Landau, J.,
concurring). The reason, I think, is that he is not convinced that, when officers
engage in unconstitutional acts, those acts have an “actual” effect on a defen-
dant’s decision to respond affirmatively when the officers ask for consent to
search. But it is not only the concern that an unconstitutional act may serve as a
motivating force that underlies this court’s “personal rights” jurisprudence. Until
today, this court has recognized that, when officers engage in unconstitutional
acts, those acts place them at an advantage and enable them to seek consent
that they otherwise could not obtain. Consequently, the evidence that the officers
obtain must be suppressed unless the state can show that the officers inevitably
or independently would have obtained or did obtain the same evidence or that
intervening or mitigating circumstances demonstrate that the illegality was not
the source of the evidence. That “personal rights” rule is simply a rule that the
state may not retain the benefit of its illegal conduct and that the defendant must
be returned to the status quo ante. Justice Landau does not expressly reject that
Cite as 356 Or 59 (2014) 113
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, 313 Or 246, 253-54,
834 P2d 1008 (1992); State v. Kosta, 304 Or 549, 553, 748
P2d 72 (1987); State v. Tanner, 304 Or 312, 315-16 n 2, 745
P2d 757 (1987). When the government violates that right by
conducting an unreasonable search or seizure in obtaining
evidence, the right is protected “through the sanction of [the]
suppression of evidence.” Davis, 313 Or at 253. Suppression
view. However, because Justice Landau votes with the majority, I do not think
that he endorses it.
If what Justice Landau suggests by arguing for deterrence as a rationale for
the exclusionary rule is that there are some continuing constitutional violations
that require suppression and some that do not, based on whether deterrence is
warranted, I disagree. How we draw such lines, other than purely subjectively,
is a mystery to me. For instance, as I point out in note 3, when officers violate
the constitution, see evidence, and then seek consent to search, we suppress the
evidence that they obtain in their search, but when the officers violate the consti-
tution and do not see evidence until after they obtain consent to search, we do not.
I do not see how adding a deterrence rationale will allow us to better articulate a
constitutional basis for that distinction or better “vindicate a defendant’s right to
be free from unreasonable search and seizure”—our goal as the majority states
it. 356 Or at 73.
114 State v. Unger
is justified by the rationale that it is necessary to place the
person subjected to the violation in the same position as if no
violation had occurred. Id. at 254.
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, 347 Or 610, 642-43, 227 P3d 695
(2010) (Durham, J, dissenting). Although the majority does
not subscribe to that argument, to properly resolve cases
like this one, it is nevertheless important to understand why
that argument is mistaken. When a person consents to a
warrantless search of his or her person or property and the
person’s capacity for self-determination has not been over-
borne or critically impaired, the consent is voluntary. State
v. Stevens, 311 Or 119, 133-38, 806 P2d 92 (1991). However,
that does not necessarily mean that the person has know-
ingly relinquished his or her right under Article I, section 9,
to be free from unreasonable searches and seizures. That is
because consent to search can be voluntary but not amount
to a knowing waiver of the person’s constitutional rights. In
particular, the person may not know that the conduct that
placed the officer in a position to seek consent was unlawful
or that the person has a right under Article I, section 9, to
refuse consent. That is, even though the person’s free will
has not been overborne or critically impaired in the sense
required to make the consent to search involuntary, he or
she still may be missing vital information that the officer
has not disclosed which, if known, would have affected the
decision to give consent. For that reason, there remains a
constitutional right to safeguard under Article I, section 9,
where unlawful police conduct preceded the giving of volun-
tary consent to a search. State v. Hall, 339 Or 7, 34-35, 115
P3d 908 (2005).
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, 330 Or 85, 90–91, 997 P2d
182 (2000); ORS 133.693(4). To satisfy that burden where
unlawful police conduct preceded the giving of voluntary
Cite as 356 Or 59 (2014) 115
consent to search, the state must prove that evidence that
the police obtained as a result of the search did not derive
from the unlawful conduct. Hall, 339 Or at 24. To do so, the
state must show that (1) the police inevitably would have
discovered the evidence through lawful procedures in the
absence of the illegality; (2) the state obtained the evidence
independently of the violation of the defendant’s rights; or
(3) the factual link between the violation and the evidence
is so “tenuous” that the violation cannot be viewed as the
source of the evidence. Id. at 25. Where, as here, the state
relies on the third path, that is, attenuation, the state must
show that the unlawful conduct did not “significantly affect”
the defendant’s decision to give consent, even if the consent
itself was voluntary. Id. at 32, 35.
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,
339 Or at 35.5 The primary question in this case is whether
other factors, including the purpose and flagrancy of police
misconduct leading to the giving of consent, should be bal-
anced against the considerations identified in 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
5
The court in Hall stated that “determining the existence of such a causal
connection requires examination of the specific facts at issue in a particular case.”
339 Or at 35. Interestingly, each of the considerations that the court identified is
an objective indicator of the strength of a causal connection between police mis-
conduct and consent or the evidentiary fruits of an ensuing search. That is, none
of those considerations necessarily indicates whether police misconduct actually
affected the giving of consent in a particular case. Because the state has the
burden of proving that a warrantless search is valid, and the defendant cannot
be compelled to testify, it is perhaps unsurprising that objective considerations
would bear primary emphasis in determining what might otherwise appear, in
the terms that the court framed it, to be a subjective inquiry.
116 State v. Unger
and differences between federal and Oregon attenuation
analyses involving consent searches. As this court noted in
Hall,
“In Brown v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed
2d 416 (1975), the United States Supreme Court also iden-
tified some of these considerations as relevant to deciding
the admissibility of a defendant’s voluntary statements fol-
lowing a Fourth Amendment violation. See id. at 603-04(in deciding whether Fourth Amendment exclusionary rule
requires suppression of defendant’s voluntary statements
following unlawful arrest, court should consider whether
police provided defendant with Miranda warnings, along
with ‘[t]he temporal proximity of the arrest and the confes-
sion, the presence of intervening circumstances, and, par-
ticularly, the purpose and flagrancy of the official miscon-
duct’). * * * [T]he Brown factor of ‘purpose and flagrancy
of the official misconduct’ relates to only the deterrence
rationale of the Fourth Amendment exclusionary rule
and has no applicability to the exclusionary rule under
Article I, section 9. The other considerations that the
Supreme Court identified in Brown—namely, whether the
police had provided the defendant with Miranda warnings
(or, in the case of a consent search, with a warning that
the defendant had the right to refuse consent), the tempo-
ral proximity between the illegality and the defendant’s
confession or consent, and the presence of intervening cir-
cumstances—relate to the causal connection between the
preceding illegality and the defendant’s confession or con-
sent, and, for that reason, also are relevant to the decision
whether exclusion is required to vindicate a defendant’s
rights under Article I, section 9.”
Hall, 339 Or at 35 n 21. In short, the attenuation analyses for
consent searches under the federal and state constitutions
generally employ similar factors, but the federal analysis
includes additional factors—purpose and flagrancy of police
misconduct—that the court in Hall rejected based on dif-
ferences in the underlying natures of the two constitutional
provisions: The Fourth Amendment aims at deterring police
misconduct, whereas, Article I, section 9, focuses on the pro-
tection of personal rights.6 Although the majority in this case
6
Whether there are constitutionally grounded reasons for that “either-or”
distinction is a different matter. Because the most effective way to uphold a con-
stitutional right is to eliminate the incentive to knowingly violate it, I fail to
Cite as 356 Or 59 (2014) 117
notes those differences in constitutional focus, it disagrees
with the fundamental premise of Hall that the factors of
purpose and flagrancy are immaterial to a rights-based
analysis under Article I, section 9. As explained below, I do
not share that view.
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, 422 US at 605; United States
v. Simpson, 439 F3d 490, 496 (8th Cir 2006). Because the
relevant inquiry under Article I, section 9, is whether a per-
son’s consent was significantly affected by preceding police
misconduct, the purpose of the misconduct is immaterial to
the analysis unless that purpose was apparent to the sus-
pect. However, even where a suspect knows the purpose of
police conduct, determining the effect of such knowledge on
the decision to give consent does not necessarily get at the
problem. The facts of this case illustrate the point. Here,
defendant knew from the outset of his encounter with the
officers that the purpose of their presence was investiga-
tory, and he may well have inferred from their request for
consent to enter his residence that they were hoping to find
contraband. However, there is no evidence that defendant
knew that the officers’ presence at his bedroom door was
unlawful. As discussed below, knowing that fact when the
officers requested consent might well have made a differ-
ence in defendant’s decision.
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, 291 Or 782, 785, 635 P2d 372
(1981):
“[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.
118 State v. Unger
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, 439 F3d at 496 (citing Brown, 422 US
at 605). That is, flagrancy refers to the officer’s knowledge,
or likely awareness, of the illegality of his or her conduct. Of
course, conduct that is obviously unlawful in the eyes of a
trained and experienced police officer may be carried out in
such a way that an uninformed suspect would not know that
it is unlawful. In that circumstance, the flagrancy of the
misconduct would not affect the suspect’s giving of consent,
and it therefore would not be relevant to the analysis under
Article I, section 9.
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
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.
Cite as 356 Or 59 (2014) 119
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. Hall, 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, 348 Or 622, 654,
237 P3d 805 (2010):
“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
120 State v. Unger
arguably could be a mere “but for” cause of obtaining dis-
puted evidence, and thus not require suppression.7 See Hall,
339 Or at 25 (“[T]his court has rejected the notion that evi-
dence is rendered inadmissible under Article I, section 9,
simply because it was obtained after unlawful police conduct
or because it would not have been obtained ‘but for’ unlawful
police conduct.”). It is difficult, however, to conceive of obvi-
ous examples of a “minor” constitutional violation that likely
would have had only a minimal effect on consent without
resorting to fine distinctions such as “unreasonable but just
barely so.” It is unsurprising that this court in Hall did not
undertake or endorse such a hairsplitting analysis. Judging
degrees of relative severity in determining the effect of a
constitutional violation on a defendant’s consent does not
readily lend itself to principled and predictable decision
making, and it is therefore best avoided except in the most
obvious case. This, in my view, is not such a case.
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. Hall, 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.
7
“In order that conduct be the actual cause of a particular result it is almost
always sufficient that the result would not have happened in the absence of the
conduct; or, putting it another way, that ‘but for’ the antecedent conduct the result
would not have occurred.” W. La Fave & A. Scott, Handbook on Criminal Law 249
(1972).
Cite as 356 Or 59 (2014) 121
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
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;
122 State v. Unger
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.
Cite as 356 Or 59 (2014) 123
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, 339 Or 7, 115 P3d 908 (2005), to determine the appro-
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 Hall,
“
‘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
124 State v. Unger
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, 252 Or App at 485 (emphasis in original).
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 Hall 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
Cite as 356 Or 59 (2014) 125
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, 317 Or 27, 41, 854
P2d 399 (1993) (where officer “did not trade on or otherwise
take advantage of the [unlawful] arrest to obtain defendant’s
consent to the search,” evidence did not require suppression).
The majority then concludes that the officers’ intrusion into
a private area of defendant’s home did not substantially
affect the consent that he gave moments after the officers
awoke him in his bedroom with his girlfriend. To state that
conclusion is to refute it. Defendant, abruptly awakened and
visibly experiencing back pain, was undressed at the time
that the officers knocked at his bedroom door; he asked to be
allowed to put on a robe. To be blunt, the “consent” obtained
in this case is a fiction. Moreover, on these facts, to conclude
that the state has met its burden of demonstrating that the
illegal conduct of the officers did not substantially affect
defendant’s “consent” is likewise a fiction.
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, 356 Or at 81 (citing Brown v. Illinois, 433 US
590, 603-04, 95 S Ct 2254, 45 L Ed 3d 416 (1975)). Now, if
126 State v. Unger
the illegal conduct by the police does not offend the majori-
ty’s sensibilities under the ambiguous standard of purpose
and flagrancy, the privacy rights of a citizen may be violated
without consequence. In effect, the majority has shifted the
burden to citizens to prove that the purpose or flagrancy of
the illegal conduct in some way merits enforcement of their
constitutional right to privacy. If a citizen does not meet that
burden, the constitutional rights of the citizen do not merit
enforcement. That represents a sharp departure from the
“principled view of the effect of an unlawful seizure of evi-
dence” adhered to by this court for decades. State v. Davis,
295 Or 227, 237, 666 P2d 802 (1983).
I also take exception to the majority’s reliance on
dictum in United States v. Perea-Ray, 680 F3d 1179 (9th Cir
2012), as permitting the type of governmental intrusion
that occurred here under the Fourth Amendment. In Perea-
Ray, Border Patrol agents violated the defendant’s Fourth
Amendment rights when they entered his carport and
searched the area without a warrant. The court suppressed
evidence of a crime because an agent “intrude[d] into an area
of the curtilage [the carport] where uninvited visitors would
not be expected to appear * * * [t]herefore, by trespassing on
the curtilage and detaining Perea-Ray, [the agent] violated
Perea-Ray’s Fourth Amendment rights.” Id. at 1188-89.
Notably, in distinguishing other proffered authority, the
Ninth Circuit emphasized that the police encounter with the
defendant in a private area of his property “was neither con-
sensual nor in a public area of motel or apartment building.”
Id. at 1189 n 5.
Further, I dissent because the majority opinion, in
addition to effectively overruling Hall, 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
Cite as 356 Or 59 (2014) 127
a deliberate governmental intrusion into the privacy inter-
ests of citizens in their homes. See State v. Tanner, 304 Or
312, 321 n 7, 745 P2d 757 (1987) (“Rights under section 9 are
defined not by privacy one expects but the privacy one has
a right to expect from the government.” (Emphasis in origi-
nal.)). By viewing the police intrusion here as a simple tres-
pass, the majority has forgotten the protection that this court
has historically afforded citizens against unreasonable gov-
ernmental intrusions into their privacy interests. See State
v. Campbell, 306 Or 157, 170-71, 759 P2d 1040 (1988) (“[B]oth
laws and social conventions have long recognized the right
to exclude others from certain places deemed to be private.
If the government were able to enter such places without
constitutional restraint, ‘the people’s’ freedom from scrutiny
would be substantially impaired.”). See also Tanner, 304 Or
at 321 (“Residence in a house is uniformly deemed to be a suf-
ficient basis for concluding that the violation of the privacy
of the house violated the residents’ privacy interests * * *.”);
State v. Dixson/Digby, 307 Or 195, 211, 766 P2d 1015 (1988)
(“Allowing the police to intrude into private land, regardless
of the steps taken by its occupant to keep it private, would
be a significant limitation on the occupant’s freedom from
governmental scrutiny. Article I, section 9, does not permit
such freewheeling official conduct.”).
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-
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
128 State v. Unger
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, 307 Or at 211-12; Campbell, 306 Or
at 170; Tanner, 304 Or at 320-21. See also United States v.
Struckman, 603 F3d 731, 746 (9th Cir 2010) (defendant’s
backyard was curtilage subject to Fourth Amendment pro-
tections); Quintana v. Com., 276 SW3d 753, 760 (Ky 2008)
(“A back yard is not normally an area that the general public
would perceive as public access. While the back yard may
Cite as 356 Or 59 (2014) 129
not always enjoy the protection of the curtilage, it is a rare
one that does not.”); State v. Lewis, 675 NW2d 516, 523 (Iowa
2004) (area of backyard and porch “intimately associated
with domestic life and the privacies of [defendant’s] home”
considered protected curtilage).
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, 204 P 958 (1922) (expressing approval of rationale
for exclusionary rule adopted in Weeks v. United States, 232
US 383, 34 S Ct 341, 58 L Ed 652 (1914)). For decades,
Oregon courts have protected the privacy rights of its cit-
izens by faithful adherence to the seminal case of Davis,
295 Or 227.
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, 291 Or 782, 785,
635 P2d 372 (1981):
“[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.
130 State v. Unger
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
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, 295 Or at 235, 237 (internal citations omitted).
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
Cite as 356 Or 59 (2014) 131
Jones v. United States, 357 US 493, 499, 78 S Ct 1253, 1257,
2 L Ed 2d 1514 (1958).”
Davis, 295 Or at 243.
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
criminal prosecution. Where that is true, the Oregon con-
stitutional protections apply.”
State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992) (empha-
ses in original).
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
132 State v. Unger
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, 295 P 953 (1931); see generally State v. McDaniel, 115
Or 187, 204-05, 231 P 965 (1925) (discussing constitutional
protections against unreasonable searches and seizures
as rooted in common law protection for sanctity of home).
The degree to which law enforcement conduct intrudes on
a citizen’s protected interest in privacy and liberty is sig-
nificantly affected by where the conduct occurs, such as
in the home, in an automobile, or on a public street. See
State v. Tourtillott, 289 Or 845, 865, 618 P2d 423 (1980)
(so observing under Fourth Amendment to United States
Constitution). A government intrusion into the home is at
the extreme end of the spectrum: ‘Nothing is as personal or
private. Nothing is more inviolate.’ Id.”
State v. Fair, 353 Or 588, 600, 302 P3d 417 (2013) (emphasis
added). But today, by declining to suppress the evidence in
this case, the majority concludes that the privacy interests of
citizens in their homes are not secure and may be violated.
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
Cite as 356 Or 59 (2014) 133
be stable and reliable.” Stranahan v. Fred Meyer, Inc., 331
Or 38, 53, 11 P3d 228 (2000). Although we have recognized
that the court must remain willing to reconsider prior deci-
sions based on principled arguments, the majority has not
explained how it reaches any principled arguments advanced
by the state in this case, when the state has not met its bur-
den of proving that the officers did not exploit their illegal
conduct to obtain defendant’s consent. Thus, the majority is
not justified in modifying the constitutional rule adopted in
Hall and in undermining the stability of other Article I, sec-
tion 9, decisions. See also State v. Ciancanelli, 339 Or 282,
290-91, 121 P3d 613 (2005) (applying Stranahan and declin-
ing to overturn 20-year-old constitutional precedent).
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, 295 Or at 237. In my view, this judicial fail-
ure may well have the general effect of permitting deliberate
warrantless intrusions by the government into the privacy
rights of other citizens in their homes. I therefore respect-
fully dissent.
Walters, J., joins in this opinion.