State v. Lorenzo ( 2014 )

134 August 28, 2014 No. 59
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JEFFERY LORENZO,
Respondent on Review.
(CC C100238CR; CA A145826; SC S060969)
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.
Peter Gartlan, Chief Defender, Salem, argued the cause
and filed the brief for respondent on review.
Before Balmer, Chief Justice, Kistler, Walters, Linder,
Landau, and Baldwin, Justices.**
BALMER, C. J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
Walters, J., dissented and filed an opinion, in which
Baldwin, J., joined.
Baldwin, J., dissented and filed an opinion.
______________
**  Appeal from Washington County Circuit Court, Steven L. Price, Judge.
252 Or App 263, 287 P3d 1133 (2012).
**  Brewer, J., did not participate in the consideration or decision of this case.
Cite as 356 Or 134 (2014) 135
Defendant moved to suppress evidence obtained pursuant to a voluntary con-
sent search, arguing that a police officer had exploited his unlawful entry into
defendant’s apartment to obtain his consent to search his bedroom. The trial
court denied the motion, and defendant was convicted of multiple crimes. The
Court of Appeals reversed and remanded. Held: (1) The court adhered to its hold-
ing in State v. Unger, 356 Or 59, __ P3d __ (2014) (decided this date), modifying
part of the exploitation analysis first described in State v. Hall, 339 Or 7, 115
P3d 908 (2005); (2) applying that modified analysis, based on the totality of the
circumstances, the state had shown that defendant’s consent was not the result
of police exploitation of their unlawful conduct.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
136 State v. Lorenzo
BALMER, C. J.
This is the third of three cases that we decide today
in which we consider when evidence obtained during a vol-
untary consent search must nonetheless be suppressed on
the theory that the consent was the product of a prior police
illegality. This court previously addressed that question in
State v. Hall, 339 Or 7, 115 P3d 908 (2005), and today we
modified part of the Hall exploitation analysis in State v.
Unger, 356 Or 59, ___ P3d ___ (2014). We disavowed the
requirement in Hall that a defendant make a threshold
showing of a minimal factual nexus between the police ille-
gality and the disputed evidence, and we instead held that,
when a defendant challenges the validity of his or her con-
sent based on prior police misconduct, the state bears the
burden of demonstrating that the consent was voluntary
and was not the product of that misconduct. Id. at 74-75.
We reaffirmed that the exploitation analysis must be based
on the totality of the circumstances. See Hall, 339 Or at 35.
We modified Hall, however, by clarifying the importance of
an individual’s voluntary consent and by noting that the
exploitation analysis should include not only the Hall con-
siderations of the temporal proximity between the unlawful
conduct and the consent and any intervening or mitigating
circumstances, but also the nature of the unlawful conduct,
including its purpose and flagrancy. Unger, 356 Or at 93.
In this case, defendant challenged the trial court’s
denial of his motion to suppress evidence obtained during
a voluntary consent search, which had followed an officer
reaching into defendant’s apartment to knock on his bed-
room door. The trial court concluded that the officer’s entry
into defendant’s apartment had been lawful and that there
was no basis for suppression. Defendant was convicted at a
bench trial. The Court of Appeals reversed, holding that the
officer’s conduct constituted an unlawful search and that
the state had not proved that the subsequent consent was
independent of or only tenuously related to that prior ille-
gality. State v. Lorenzo, 252 Or App 263, 268, 271, 287 P3d
1133 (2012). For the reasons described below, we reverse the
decision of the Court of Appeals.
Cite as 356 Or 134 (2014) 137
Officers responded to an early morning 9-1-1
call from a woman who reported that her ex-fiancé, Kyle,
was outside her apartment with a noose around his neck,
threatening to hang himself. When the officers arrived,
they quickly detained Kyle and removed the noose from his
neck. In the course of talking to Kyle and his ex-fiancée,
the officers learned that Kyle lived in an apartment com-
plex directly across from the apartment complex where Kyle
had threatened to hang himself, that Kyle owned a gun, and
that Kyle had a roommate named Jeff (defendant).
When Officer Wujcik arrived on the scene, after Kyle
had been detained, he went to Kyle and defendant’s apart-
ment to check on defendant’s welfare. Wujcik was concerned
about defendant because, as he later explained, “when we get
called to suicidals *  * sometimes they’re suicidal because
*
they have hurt somebody or killed somebody or something
else is going on.” Initially, Wujcik knocked on the outer door
of defendant’s apartment and called out, “Beaverton Police
Department, Jeff, are you okay?” Defendant did not respond,
and other officers on the scene asked Kyle’s ex-fiancée to call
defendant to see if he was unharmed. Those calls also failed
to elicit any response.
As the officers continued to talk to Kyle and his
ex-fiancée, they learned that defendant’s bedroom door was
just inside the exterior door to the apartment. Based on that
information, Wujcik reached inside the exterior apartment
door and knocked on defendant’s bedroom door, which he
was able to do without stepping inside the apartment.1 As
he was knocking on the bedroom door, Wujcik again said,
“Police, Jeff, are you okay?” About ten seconds later, defen-
dant came out of his bedroom into an area where Wujcik
could see him from the front door. At that point, Wujcik was
fully outside defendant’s apartment. Wujcik again asked
defendant if he was okay, and defendant responded, “Yeah.”
Wujcik then asked defendant, “Can I come in and talk?” and
defendant replied, “Yes.”
1
Although Wujcik testified that the exterior door to the apartment already
was open when he reached inside, Kyle’s ex-fiancée testified that defendant’s
apartment door was closed when officers arrived. In ruling on the motion to sup-
press, the trial court stated that it would “assume for the sake of argument” that
Wujcik had opened the exterior apartment door to reach inside and knock on
defendant’s bedroom door.
138 State v. Lorenzo
When he entered the apartment, Wujcik smelled a
strong odor of marijuana coming from defendant’s room, and
he asked defendant for his identification. As defendant went
back into his bedroom to retrieve his identification, Wujcik
saw a plastic bag containing what appeared to be marijuana
on the bedroom floor. Wujcik ran defendant’s identification
and proceeded to question defendant about the incident with
his roommate. Wujcik then told defendant that he knew that
there was marijuana in his bedroom, and he asked defendant
if he was selling the drug. Defendant responded that he was
not. Wujcik then asked if he could make sure that defendant
was not selling marijuana by searching defendant’s room.
According to Wujcik’s testimony, defendant said “yes” and
“motioned towards the door and stepped away.” During his
search of the bedroom, Wujcik found drugs, drug parapher-
nalia, and a firearm.
The state charged defendant with unlawful man-
ufacture of marijuana, unlawful delivery of marijuana for
consideration, and felon in possession of a firearm. Before
trial, defendant moved to suppress the evidence found in his
bedroom, arguing that the police had entered defendant’s
apartment unlawfully, that they had exploited that entry
to obtain defendant’s consent to search his room, and that
defendant’s consent had not been voluntary.2 The trial court
denied defendant’s motion, concluding that Wujcik’s initial
warrantless entry into defendant’s apartment had been jus-
tified under the emergency aid doctrine. Although the trial
court found that, in response to Wujcik’s request to enter
the apartment, defendant had said, “Yes,” and that “by
2
In his memorandum in support of the motion to suppress, defendant also
argued that he had been stopped unlawfully, although he did not explain at what
point the stop had occurred. At the hearing on the motion to suppress, however,
defense counsel focused on the officer’s unlawful search of the apartment when
he had reached in and knocked on defendant’s bedroom door. Defense counsel did
argue that the officer had stopped defendant unlawfully when he had asked for
his identification, but did not argue that defendant had been stopped before that
point.
On review, defendant does not renew the argument that the officer had
stopped him when he asked to see his identification, but he does argue that the
officer had stopped him when the officer reached in and knocked on defendant’s
bedroom door. At oral argument before this court, however, defense counsel con-
ceded that the stop argument presented on review was not made sufficiently
before the trial court. Given that concession, we do not address whether the offi-
cer’s knock on defendant’s bedroom door was an unlawful stop.
Cite as 356 Or 134 (2014) 139
consent [Wujcik had gotten] himself into a position where he
smell[ed] and [saw] the marijuana,” the trial court did not
expressly address whether defendant’s consent had been vol-
untary. Moreover, the trial court declined the state’s request
for an alternative ruling on exploitation. Following his con-
viction at a bench trial, defendant appealed.
The Court of Appeals reversed. The court first con-
cluded that the emergency aid exception to the warrant
requirement did not apply. As a result, the court reasoned
that the police had entered defendant’s apartment unlaw-
fully. Lorenzo, 252 Or App at 268. Applying Hall, the court
went on to conclude that the evidence from the subsequent
search should have been suppressed because “the state did
not demonstrate that defendant’s consent was independent
of the illegality or that the link between the two was so ten-
uous that suppression should not be required.” Id. at 271. In
particular, the court noted that the officers had been unable
to contact defendant through lawful means, “[t]he events
leading up to defendant’s consent to the search of his bed-
room flowed quickly and directly from the officer’s entry into
the apartment,” and the officer had not informed defendant
that he could refuse the officer’s entry into or search of the
apartment. Id. at 270-71.
The state petitioned for review. On review, the state
does not contest the Court of Appeals’ determination that the
emergency aid exception did not justify the officer’s warrant-
less entry into defendant’s apartment. The state concedes
that the officer violated Article I, section 9, when he reached
inside defendant’s apartment to knock on his bedroom door.
Despite that unlawful police conduct, the state argues that
the evidence that the officer obtained should not be sup-
pressed because defendant voluntarily consented to the
searches that produced the evidence. According to the state,
evidence found during a voluntary consent search necessar-
ily is admissible, despite prior police illegality. Even if volun-
tary consent is not dispositive, however, the state asserts that
the evidence in this case should not be suppressed because
the police illegality did not significantly affect defendant’s
decision to consent. In particular, the state notes that the
illegal entry into defendant’s apartment was short in dura-
tion and had terminated by the time that defendant emerged
140 State v. Lorenzo
from his bedroom, the illegal entry did not reveal anything
incriminating, defendant was not physically restrained, and
the illegal entry was not aggressive or intimidating.
Defendant responds by using this court’s decision in
State v. Hemenway, 353 Or 129, 295 P3d 617, vac’d as moot,
353 Or 498, 302 P3d 413 (2013), which modified the exploita-
tion analysis set forth in Hall, to frame his arguments.
Defendant asserts that Hemenway correctly concluded that
a court reviewing a consent search must examine both the
voluntariness of the consent and whether the police had
exploited a prior illegality to obtain that consent. Defendant
also agrees with the court’s decision in Hemenway to dis-
avow the minimal factual nexus analysis required by Hall.
Defendant argues that the other part of the Hall exploita-
tion analysis should be retained, however, because the court
in Hemenway undervalued the effect of police illegality on a
person’s decision to consent and moved away from Oregon’s
focus on vindication of personal rights by incorporating
the factor of “purpose and flagrancy” into the exploitation
analysis.
Despite the differences between Hall and Hemenway,
defendant argues that the evidence in this case should be
suppressed under either analysis. Defendant notes that the
officer’s unlawful entry into defendant’s apartment was close
in time to defendant’s decision to consent, the officer did not
advise defendant that he could refuse consent, and there
was no significant intervening event. In addition, defendant
notes that the purpose and flagrancy factor weighs in his
favor because the officer’s unlawful entry denied defendant
the opportunity that he should have had to ignore the officer
by not answering the door. Moreover, defendant argues, he
was groggy and surprised at having been awakened by an
officer knocking on his bedroom door in the early morning
hours. Thus, defendant asserts, all four exploitation factors
favor suppression.
We apply the exploitation analysis set out in Unger
to determine whether the police exploited their unlawful
conduct to obtain defendant’s consent to enter his apartment.
We undertake that inquiry because, as noted above, the
state concedes that the officer acted unlawfully in opening
Cite as 356 Or 134 (2014) 141
defendant’s exterior apartment door, reaching his hand in,
and knocking on defendant’s bedroom door. Moreover, on
review, defendant does not dispute that he voluntarily con-
sented to the officer’s entry into the apartment.
In Unger, today we rejected the state’s view that vol-
untary consent generally cures any taint that might have
arisen from prior police misconduct. But we also rejected
defendant’s view that voluntary consent that follows unlaw-
ful police conduct generally is the product of exploitation
and must lead to suppression, in the absence of interven-
ing or mitigating circumstances, such as Miranda warn-
ings or an admonition that consent need not be granted.
Instead, we described the considerations relevant to deter-
mining whether the police improperly “took advantage of”
or “exploited” their unlawful conduct (here, an entry into
defendant’s apartment) to gain the defendant’s consent to
search, such that the evidence obtained as a result of that
consent should be suppressed. We noted that voluntary con-
sent was an important, but not dispositive consideration, and
we examined the nature of the unlawful conduct, including
its purpose and flagrancy, the temporal proximity between
the unlawful conduct and consent, and the presence of inter-
vening or mitigating circumstances. We also recognized, as
we had in Hall, that, if the evidence in question inevitably
would have been discovered by the police or if the police dis-
covered it through a source independent of defendant’s con-
sent, then the evidence should not be excluded on exploita-
tion grounds. See Unger, 356 Or at 64.
We applied those considerations in Unger and con-
cluded that the evidence in that case did not have to be sup-
pressed. There, four detectives went to the defendant’s house
in response to a complaint about drug activity and informa-
tion from an informant that there were children at the house
with access to drugs and guns. When knocking on two front
doors failed to elicit any response, detectives trespassed
onto the defendant’s property by following a path around to
the back of the house, where they knocked on a sliding glass
door. Defendant came to the door, and, after the detectives
explained why they were there, defendant consented to the
detectives entering the home, then agreed to show the detec-
tives around the house. While walking through the house,
142 State v. Lorenzo
one detective discovered a bag with methamphetamine res-
idue. There, we concluded that the misconduct was limited
in extent, nature, and severity because the officers had fol-
lowed a path around the house without crossing any bar-
riers and the detectives had interacted with the defendant
just as they would have at the front door. Id. at 89, 91. The
detectives’ purpose in going to the back door was to contact
the defendant, not to make the defendant more likely to
consent. Id. at 91. Although the consent had been given in
close temporal proximity to the illegality, and there were no
intervening or mitigating circumstances, under the totality
of the circumstances, the state met its burden of showing
that the detectives’ minimal intrusion did not require sup-
pression. Id. at 92.
In contrast, in State v. Musser, 356 Or 148, ___ P3d
___ (2014), which we also decided today, we determined that
evidence obtained pursuant to a consent search following an
unlawful stop must be suppressed. There, an officer saw the
defendant and her male companion around 10:00 p.m. in a
high-crime area behind a shopping center, and the officer
decided to contact them “basically, to make sure they were
not doing anything wrong” and because he believed that they
might be trespassing. Id. at 150, 151. When the officer called
out to the defendant, “Hey, I need to talk to you,” she walked
in the other direction and returned only after he called out
to her again. The officer requested the defendant’s identifi-
cation, and while she looked for it in her purse, the officer
saw two Crown Royal pouches in the purse. Based on the
defendant’s nervous and fidgety demeanor, the officer sus-
pected that she likely had drugs in her purse and asked for
her consent to search the pouches, where he thought drugs
might be located. When he found drug paraphernalia in one
of the pouches, he sought and obtained the defendant’s con-
sent to search the rest of her purse. The interaction lasted
about an hour. Id. at 152.
Applying the Unger analysis in Musser, we noted
that the stop was a more severe violation of the defendant’s
rights than the trespass in Unger because the officer had
ordered the defendant to come and speak to him rather than
continuing in the direction she was going, indicating that
she had no choice but to respond to the officer. The stop was
Cite as 356 Or 134 (2014) 143
ongoing when the officer requested the defendant’s consent,
and there were no intervening or mitigating circumstances.
In addition, the purpose of the stop was an investigative
one—“to make sure they were not doing anything wrong”—
which was plainly unlawful in the absence of reasonable
suspicion that the defendant was committing a crime.
Moreover, the officer’s conduct revealed the presence of the
pouches in the defendant’s purse, which, in part, led the offi-
cer to seek her consent. Under the totality of the circum-
stances, the court concluded that the police had exploited
their unlawful stop to obtain consent and therefore that the
evidence should have been suppressed. Id. at 159.
Here, the consent to the officer’s entry into the
apartment came very shortly after he unlawfully had
reached into the apartment and knocked on defendant’s
bedroom door. The state makes the point that the unlaw-
ful conduct itself was very brief and had ended by the time
that the officer and defendant were talking and the officer
had asked if he could come in. Defendant responds that the
search was close in time to the request. In contrast to cases
where the request for consent occurs days after the unlaw-
ful conduct, which (other things being equal) suggests that
the taint may have dissipated, defendant is correct that the
events here were compressed in time. However, the officer’s
“search,” by opening the exterior apartment door and knock-
ing on defendant’s bedroom door, had ended. Moreover, the
officer was not standing inside the apartment or exercis-
ing control over defendant. The facts thus differ from the
officer’s ongoing unlawful stop of the defendant in Musser.
Nonetheless, there was temporal proximity between the
unlawful police conduct in this case and the consent, which
is a consideration suggesting exploitation, but other aspects
of the interaction cut in the opposite direction.
Again, the contrast with Musser is instructive.
Here, although the officer had knocked on the door and twice
asked whether defendant was “okay,” his actions during the
initial “search” were limited and did not demonstrate any
effort to control or direct defendant. In Musser, the officer
essentially ordered the defendant to come to him, and when
she did not respond, he ordered her again. The officer uncon-
stitutionally stopped the defendant and exercised control
144 State v. Lorenzo
over her for an hour, during which time he asked for consent
to search her purse. In terms of the nature of the police con-
tact, this case has more in common with Unger, where the
police engaged in an unconstitutional search by trespassing
onto the defendant’s property to reach a door, where they
knocked, and the defendant responded by opening the door.
Here, of course, the officer opened the apartment door and
reached in to knock on defendant’s bedroom door, but that
unlawful search was limited in time and severity, which
suggests that its illegality was unlikely to have had a signif-
icant effect on defendant’s consent.
The state concedes that there were no mitigating
or intervening circumstances—other than defendant’s vol-
untary consent itself—that might have clearly “purged”
the taint of the unlawful conduct. As we did in Unger, we
observe that police would be well served by giving Miranda
warnings or advising individuals that they need not consent
to a request to search or enter. Such warnings would make
it easier for reviewing courts to determine that, notwith-
standing any prior illegality, the individual knew that he or
she had a constitutional right to refuse consent—and that,
if the individual gave consent, it was voluntary and not the
product of exploitation.
Another significant circumstance in the exploita-
tion analysis here is that the officer did not gain any infor-
mation about potentially criminal activity as a direct result
of his unlawful search. His knocking on the interior door
and asking if defendant was “okay” simply brought defen-
dant to the door of defendant’s bedroom, and defendant then
agreed to let the officer enter the apartment. It was only
after defendant had consented to the entry that the offi-
cer smelled the marijuana coming from defendant’s room,
asked for defendant’s identification, and noticed the baggie
on the floor that looked like it contained marijuana. Thus,
in contrast to Musser—and similarly to Unger—the officer’s
unlawful conduct did not put him in a position to see contra-
band or evidence of wrongdoing. Therefore, that conduct did
not give police the sort of advantage over defendant in gain-
ing consent that the exclusionary rule of Article I, section 9,
is intended to advance.
Cite as 356 Or 134 (2014) 145
We also consider the “purpose and flagrancy” of the
police misconduct. As noted, the Court of Appeals rejected
the state’s argument that the officer’s warrantless entry
into defendant’s apartment by knocking on the inner door
was justified by the emergency aid exception, Lorenzo, 252
Or App at 266-68, and the state does not challenge that
conclusion on review. That does not mean, however, that
the purpose of the police in seeking to contact defendant
is irrelevant to the exploitation analysis. Here, there is no
dispute that the officer sought to contact defendant because
he was the roommate of a person who had just attempted to
commit suicide and the officer was concerned about defen-
dant’s safety. That concern was reasonable. There was no
suggestion that the officer was pursuing a drug or other
criminal investigation when he knocked on defendant’s
apartment door or when he opened that door and knocked
on defendant’s bedroom door. Nor was there any suggestion
that the police were conducting random searches looking
for evidence of criminal behavior. The facts here stand in
contrast to Musser, where the officer stopped the defendant
and a companion, without reasonable suspicion, to make
sure that “they were not doing anything wrong.” 356 Or at
151. We held that the purpose for the unlawful stop in that
case was a consideration supporting the defendant’s claim
that her later consent was the product of exploitation. Id.
at 159. This case is more similar (although not identical) to
Unger, where detectives contacted the defendant because of
information that they had received about drugs, children,
and guns in his home. Indeed, the purpose of the police con-
duct here is even more benign than in Unger, because the
police did not go to defendant’s apartment intending to ask
for consent to search the apartment.
As to flagrancy, the officer did open the door to
defendant’s apartment, although his feet apparently
remained outside, and knocked on defendant’s bedroom
door. While any police intrusion into a residence, absent jus-
tification not present here, is unlawful, the restrained inter-
action between police and defendant and the absence of any
threats or intimidation do not present the kind of flagrant
circumstances that likely would have affected defendant’s
146 State v. Lorenzo
voluntary consent in a way that would constitute exploita-
tion of the unlawful conduct.
For the reasons set out above, we conclude that,
based on the totality of the circumstances, the state has
shown that defendant’s consent was not the result of police
exploitation of their unlawful conduct. Accordingly, we agree
with the trial court that the evidence obtained from the con-
sent search should not be excluded.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
WALTERS, J., dissenting.
I respectfully dissent. I accept, as does the majority,
that the officer’s opening of defendant’s apartment door and
his knock on defendant’s bedroom door violated Article I,
section 9, of the Oregon Constitution. I do not agree, how-
ever, with the majority’s conclusion that that constitutional
violation did not give the officer an advantage in gaining
defendant’s consent to search. State v. Lorenzo, 356 Or 134,
144, ___ P3d ___ (2014). Instead, I agree with the Court of
Appeals that “the events leading up to defendant’s consent to
the search of his bedroom flowed quickly and directly from
the officer’s entry into the apartment” and that “the state did
not demonstrate that defendant’s consent was independent
of the illegality.” State v. Lorenzo, 252 Or App 263, 270-71,
287 P3d 1133 (2012). Therefore, for the reasons stated in my
dissenting opinion in State v. Unger, 356 Or 59, 108, ___ P3d
___ (2014) (Walters, J., dissenting), I think that the evidence
that the officer obtained as a result must be suppressed.
If the officer’s entry were justified by an exception
to the warrant requirement, I would not hesitate to uphold
admission of the inculpatory evidence that the officer dis-
covered. But I cannot join in an opinion that countenances
an unconstitutional intrusion into a private residence and
that urges—rather than requires—intervening or mitigat-
ing facts, such as Miranda warnings or warnings that the
resident need not admit the officers. 356 Or at 144.
I respectfully dissent.
Baldwin, J., joins in this opinion.
Cite as 356 Or 134 (2014) 147
BALDWIN, J., dissenting.
I dissent from the judgment of the court for the rea-
sons I explained in my dissenting opinion in State v. Unger,
356 Or 59, 133, ___ P3d ___ (2014) (Baldwin, J., dissenting).