State v. Hemenway ( 2013 )

No. 1 January 10, 2013 129
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
LELAND JAY HEMENWAY,
Petitioner on Review.
(CC 071107; CA A136981; SC S059085 (Control))
STATE OF OREGON,
Petitioner on Review,
v.
LELAND JAY HEMENWAY,
Respondent on Review.
(S059392)
(Consolidated)
On review from the Court of Appeals.*
Argued and submitted November 14, 2011, at Reynolds
High School, Troutdale, Oregon.
Rolf Moan, Assistant Attorney General, Salem, argued
the cause and filed the brief for State of Oregon, respondent
on review/petitioner on review. With him on the brief were
John R. Kroger, Attorney General, and Mary H. Williams,
Solicitor General.
Peter Gartlan, Chief Defender, Office of Public Defense
Services, Salem, argued the cause and filed the brief for
Leland Jay Hemenway, petitioner on review/respondent on
review.
Before Balmer, Chief Justice, Kistler, Walters, Linder,
and Landau, Justices, and Durham and De Muniz, Senior
Judges, Justices pro tempore.**
_______________
** Appeal from Tillamook County Circuit Court, Rick W. Roll, Judge. 232 Or
App 407, 222 P3d 1103 (2009).
** Brewer and Baldwin, JJ., did not participate in the consideration or
decision of this case.
130 State v. Hemenway
BALMER, C. J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
Landau, J., concurred and filed an opinion.
Walters, J., dissented and filed an opinion, in which
De Muniz, Senior Judge, Justice pro tempore, joined.
Defendant moved to suppress evidence obtained by the police after defendant
voluntarily consented to a search, arguing that his consent to search was the prod-
uct of an illegal seizure and, therefore, that the evidence was inadmissible under
Article I, section 9, of the Oregon Constitution. The trial court denied defendant’s
motion, and defendant entered a conditional guilty plea, reserving his right to
appeal the denial of his motion to suppress. The Court of Appeals reversed. Held:
(1) The Court disavowed the “minimal factual nexus” part of the two-part test
announced in State v. Hall, 339 Or 7, 115 P3d 908 (2005), for determining whether
evidence acquired from a voluntary consent search must be suppressed because
the consent was derived from an illegal seizure; (2) when a defendant has estab-
lished that an illegal stop occurred and challenges the validity of his subsequent
consent to a search, the state bears the burden of demonstrating that the consent
was voluntary, and that the consent, even if voluntary, was not the product of po-
lice exploitation of the illegal stop; (3) the purpose and egregiousness of the illegal
police conduct are factors in the totality of the circumstances that are relevant
to whether the police exploited that conduct to obtain the defendant’s consent to
search; and (4) in this case, defendant’s consent to three different searches was not
a product of or tainted by the illegal stop, so defendant’s Article I, section 9, right
to be free from unreasonable seizure would not be vindicated by suppressing the
evidence the police obtained.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
Cite as 353 Or 129 (2013) 131
BALMER, C. J.
This case requires us to consider once again the
circumstances in which a person’s voluntary consent
to a search is the result of exploitation of prior illegal
police conduct—leading to the exclusion of the evidence
obtained—and when it is not. The state charged defendant
with possession of methamphetamine. Before trial,
defendant filed a motion to suppress evidence seized by the
police, arguing that his consent to search was the product
of an illegal seizure and, therefore, that the evidence was
inadmissible under Article I, section 9, of the Oregon
Constitution.1 The trial court denied the motion. Defendant
entered a conditional guilty plea, reserving his right to
appeal the denial of his motion to suppress. The Court of
Appeals reversed, relying in part on our decision in State
v. Hall, 339 Or 7, 115 P3d 908 (2005), and holding that, if
the stop was unlawful, the evidence from the search was
presumptively obtained through exploitation of the earlier
unlawful conduct. State v. Hemenway, 232 Or App 407, 222
P3d 1103 (2009). For the reasons that follow, we reverse the
decision of the Court of Appeals. In doing so, we modify the
exploitation analysis announced in Hall.
BACKGROUND
We take the facts from the Court of Appeals opinion.
“In April 2007, deputies Orella and Russell responded to a
call from Taylor, defendant’s girlfriend, regarding Taylor
residence’s electric power and the whereabouts of Taylor’s
son. The deputies, in separate cars, arrived at Taylor’s
residence just before midnight. Both deputies parked
in the driveway behind defendant’s truck, blocking the
truck’s exit route. The deputies were in uniform, carrying
guns, and driving marked sheriff’s vehicles. Defendant
and Taylor were both outside the house when the deputies
arrived. Deputy Orella approached Taylor and instructed
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 affirmation,
and particularly describing the place to be searched, and the person or thing to
be seized.”
132 State v. Hemenway
defendant to go talk to Deputy Russell. Orella then informed
Russell that he had observed a rifle in defendant’s truck.
“Defendant met Russell near the back of the truck and
voluntarily explained that he was in the process of moving
out of the house and many of his belongings were in the
truck, including the rifle and a handgun. Russell asked
defendant if he was a felon; defendant responded that
he was not. In order to verify defendant’s assertion that
he was not a felon, Russell asked for defendant’s name
and date of birth. Defendant provided the information to
Russell. Defendant asked Russell’s permission to have a
cigarette. Russell said that he could, but that he wanted
to search defendant to ‘ease his mind.’ Defendant agreed
to that search. Russell found a breath mint tin in one of
defendant’s pockets. The trial court found that Russell first
asked if he could open the tin, and, after defendant agreed,
Russell discovered a methamphetamine pipe and a baggie
that Russell suspected contained methamphetamine
residue. Russell placed defendant under arrest and advised
him of his Miranda rights.
“Russell then asked defendant if he had more drugs in
the house. Defendant admitted that there might be and
consented to Russell retrieving the drug-related items
from the house. Defendant accompanied Russell into
the house and pointed out where the methamphetamine
paraphernalia was, which Russell then located and seized.
“Before trial, defendant moved to suppress all evidence
obtained from the warrantless search of his person and
residence and his inculpatory statements made to the
deputies. Defendant argued that the deputies’ conduct
before his grants of consent and statements constituted
an unlawful stop under Article I, section 9, of the Oregon
Constitution and that Russell exploited the unlawful stop
when he obtained defendant’s consents and statements.
The trial court determined that defendant was not ‘seized’
by Russell and that defendant’s consents were voluntary.
Defendant entered a conditional plea of guilty, reserving
the right to appeal the trial court’s denial of his motion to
suppress.”
Id. at 409-10.
On appeal, defendant argued that the trial court
erred by holding that defendant had not been seized;
defendant did not challenge the trial court’s finding that
Cite as 353 Or 129 (2013) 133
he voluntarily had consented to the searches. The Court
of Appeals determined that (1) the officers did not have
reasonable suspicion that defendant had engaged in
criminal activity; and (2) a reasonable person in defendant’s
position would have believed that he had been stopped,
“[g]iven that defendant was physically blocked from exiting
in his truck by the deputies’ cars, that he was told to speak
to Russell and had to alter his course to do so, and that
Russell asked if defendant was a felon and subsequently
asked for his verifying information.” Id. at 415. The court
nevertheless remanded defendant’s case for the trial court
to determine whether defendant subjectively had believed
that he had been stopped. Id. Under this court’s case law
at the time of the Court of Appeals decision, a seizure
for purposes of Article I, section 9, occurred whenever an
individual subjectively “believe[d]” that a law enforcement
officer had restrained that individual’s liberty or freedom
of movement and such belief was objectively reasonable.
See State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991),
overruled in part by State v. Ashbaugh, 349 Or 297, 316, 244
P3d 360 (2010).
Turning to the question whether, if defendant had
been unlawfully stopped, the evidence from the consent
searches should have been suppressed, the Court of Appeals
held that it should. Hemenway, 232 Or at 416-18. Applying
Hall, the court held that the state had failed to show that
defendant’s voluntary consents were attenuated from the
potentially illegal stop. For that reason, if the stop was
unlawful, the evidence was obtained through exploitation
and should have been suppressed.
Defendant and the state each requested an
extension of time to file their respective petitions for review
pending this court’s decision in Ashbaugh. In that case,
we modified the test for whether the police have seized a
person for purposes of Article I, section 9, eliminating the
subjective component of the test. Ashbaugh, 349 Or at 316.
After the opinion in Ashbaugh issued, defendant and the
state both petitioned for review in these cases. Defendant
argued that, under Ashbaugh, this court should reverse
the part of the Court of Appeals opinion that remanded his
case to the trial court for an investigation into his subjective
134 State v. Hemenway
belief regarding whether he had been stopped and should
order the suppression of the drug evidence under Hall.
The state conceded that defendant had been stopped under
Article I, section 9, as explained in Ashbaugh, but asserted
that Hall was incorrectly decided and should be overruled.
We consolidated the petitions and allowed review.
On review, the state argues that Hall—discussed
further below—was incorrectly decided because a voluntary
consent search is necessarily “reasonable” under Article
I, section 9, of the Oregon Constitution and, thus, any
evidence seized pursuant to a voluntary consent search is
admissible regardless of any prior illegal conduct by law
enforcement. Defendant responds that Hall was correctly
decided and that, under Hall, the evidence seized pursuant
to defendant’s consent must be suppressed because the
evidence was derived from the illegal stop.
We begin with a summary of the relevant parts of
Hall. In that case, as here, the defendant consented to a
search voluntarily after being stopped by police, and the
police discovered 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 severed 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, the majority of this court first determined that
the stop was illegal under 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 must be suppressed
because of the illegal stop.
The majority in Hall began by outlining the
history of the exclusionary rule in Oregon and analyzing
this court’s past treatment of consent searches. The
exclusionary rule is constitutionally mandated and serves
Cite as 353 Or 129 (2013) 135
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 misconduct. Id. at 23. The goal of the exclusionary
rule in Oregon is to “restore a defendant to the same
position as if ‘the government’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
suppression 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 “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 unlawful 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.
Kennedy, 290 Or 493, 624 P2d 99 (1981), and State v.
Rodriguez, 317 Or 27, 854 P2d 399 (1993), noting that
those cases borrowed from the exploitation analysis that
the United States Supreme Court 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
suppression of evidence obtained through valid consent
searches.2 Although neither Kennedy nor Rodriguez required
suppression on the facts of those cases, the majority in
2
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 Hall
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 use of the Wong Sun exploitation analysis.
Hall, 339 Or at 26-30.
136 State v. Hemenway
Hall noted that both cases 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
the state has the burden to prove that the defendant’s
consent 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
conduct 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
conduct. A causal connection requiring 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. 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
Cite as 353 Or 129 (2013) 137
consent search. The dissent asserted that the defendant’s
“voluntary consent to the search demonstrates that the
disputed evidence came to light as the result of a reasonable,
not unreasonable, search.” Id. at 39 (Durham, J., concurring
in part and dissenting in part). The dissent took issue with
the majority’s reliance on Rodriguez, 317 Or 27, which the
dissent characterized as incorrectly focusing on the police
decision to seek consent, “rather than the voluntariness of
the defendant’s consent.” Id. at 50. In the dissent’s view,
the inquiry into the voluntariness of a defendant’s consent
takes into account any prior illegal conduct by the police. Id.
at 46. And, a voluntary consent to search fully vindicates
the defendant’s rights under Article I, section 9, because the
evidence was gained as a result of that consent and not by
way of the prior illegality. Id. at 51.
CLARIFICATION OF HALL
The state argues that we should overrule our 2005
decision in Hall, 339 Or 7. “[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 burden of demonstrating that we should reconsider and
reject the rule announced in Hall. The state argues, among
other things, that Hall failed to apply this court’s “usual
paradigm” for analyzing constitution provisions; that the
decision erroneously construed the text of Article I, section
9; and that it departed from earlier case law. We have
considered—and we reject—the state’s argument that Hall
suffers from all of the deficiencies that the state asserts. We
also note that, in seeking to overrule Hall, the state relies
in substantial 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,
section 9, we agree that Hall’s test for exploitation is flawed
in some respects and bears refinement. The state argues that
internal contradictions mar both steps of Hall’s exploitation
test and make the test difficult in application and uncertain
138 State v. Hemenway
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 defendant 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
principles. In the context of Hall and in this case, the inquiry
into whether evidence obtained pursuant to a consent
search must be suppressed involves three overlapping
issues: (1) whether the initial stop was lawful; (2) whether
the defendant’s consent to the search was voluntary; and
(3) assuming that the stop was unlawful and the consent
voluntary, whether the police exploited the illegal stop to
obtain the disputed evidence.
The first issue is the lawfulness of the police-citizen
encounter. There is nothing constitutionally suspect under
Article I, section 9, about police engaging a citizen in conver-
sation and then requesting that citizen’s consent to search.
Ashbaugh, 349 Or at 308-09. In contrast to “mere conversa-
tion,” which does not implicate Article I, section 9, an offi-
cer “stops” an individual—raising potential constitutional
issues—when the officer “intentionally and significantly
restricts, interferes with, or otherwise deprives an individ-
ual of that individual’s liberty or freedom of movement.”
Id. at 308-09, 316. Before stopping an individual, Article I,
section 9, requires the police to have reasonable suspicion
that the individual is involved in criminal activity. In the
absence of reasonable suspicion (or some other permissible
concern, such as officer safety), the individual has the right
to be free from police interference and may terminate an
encounter with police at will. See id. at 308-09.
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
Cite as 353 Or 129 (2013) 139
an illegal stop, the state must prove that the defendant’s
consent was the product of his 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 (consent 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 evidence in question. In Wong Sun, the United
States Supreme Court described exploitation as “whether,
granting establishment of the primary illegality, the
evidence to which instant objection is made has been come
at by exploitation of that illegality or instead by means
sufficiently distinguishable to be purged of the primary
taint.” 371 US at 488 (internal quotation marks and citation
omitted). Since at least Kennedy, this court has referred to
and used the exploitation analysis announced in Wong Sun
in the context of determining 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 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 employed 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, 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
consent 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
140 State v. Hemenway
there was no exploitation of any prior police misconduct, and
the converse is also true. Yet it is important to emphasize
that the tests are not identical and that they address
separate 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
identical, 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), 76 (4th
ed 2004) (emphasis in original; footnote omitted). We agree.
Applying both the tests for voluntariness of consent and for
exploitation is necessary to vindicate a defendant’s right to
be free from unreasonable search and seizure. When the
police stop an individual 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 constitutional bounds and is thereby
placed at a disadvantage relative to the constitutional
position that he or she would have occupied absent the illegal
police interference. Exploitation analysis recognizes that
police conduct that constitutes an illegal stop 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 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 (or vindicated).
See State v. Sargent, 323 Or 455, 462-63, 918 P2d 819 (1996)
(suppression of evidence required only when the evidence is
tainted by 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 in mind, we turn to the
exploitation test articulated in Hall. As noted, Hall
Cite as 353 Or 129 (2013) 141
announced a two-part test for determining whether evi-
dence acquired from a voluntary consent search must be
suppressed because the consent was derived from an illegal
seizure. First, the defendant must establish a “minimal fac-
tual 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 admissi-
ble because “the defendant’s consent was independent of, or
only tenuously related to, the unlawful police conduct.” Id.
at 34-35.
For the reasons that follow, we disavow the
“minimal factual nexus” part of the Hall test and instead
hold that, when a defendant has established that an illegal
stop 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 consent, even if voluntary, was not the product of
police exploitation of the illegal stop. In deciding whether
the voluntary consent was a product of police exploitation of
the illegal stop, the court must evaluate whether the police
took advantage of the illegal aspects of the earlier police
behavior to obtain consent or whether other circumstances
were sufficient to purge the taint of the prior illegality on
the evidence that the police ultimately obtained. As noted
in Hall, 339 Or at 44, the state also may prove that the
evidence is admissible by showing that the evidence was
gained through an independent, lawful source or that the
evidence inevitably would have been discovered by the
police using lawful procedures.
As discussed further below, we disavow the “minimal
factual nexus” part of the Hall test because it was drawn
from a case that arose in a significantly different procedural
context, 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 confusing to
lawyers and judges.
Hall adopted the “minimal factual nexus”
component of its test from State v. Johnson, 335 Or 511,
73 P3d 282 (2003). In that case, the defendant sought to
142 State v. Hemenway
suppress evidence that had been seized illegally but then
later “reseized” pursuant to a warrant. The state asserted
that the warrant 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 concluded that the
defendant had an initial burden to establish a “factual
nexus” between prior illegal police conduct and the evidence
gained pursuant to an independently valid warrant. Id. at
521. 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.This court’s reliance in Hall on Johnson was
misplaced. By statute, whenever a defendant challenges
evidence 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
conduct 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.
Moreover, under the Hall test, parties were required
to first focus on whether or not a “minimal factual nexus”
was present, rather than examining the more central issues
of (1) whether the police had acted unlawfully in making the
initial stop, 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
Cite as 353 Or 129 (2013) 143
“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 consent was the product of the illegal police conduct,
such that evidence obtained pursuant to that search must
be suppressed. Additionally, it is unnecessary to shift the
burden of proving lack of exploitation to the state because,
as noted, the state already bears the burden of proving that
evidence obtained from a warrantless search is valid.
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
application 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.
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 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 requiring
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 three factors for assessing whether the
causal connection “significantly affected” the defendant’s
decision to consent and thus requires suppression:
“(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.144 State v. Hemenway
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 defendant’s consent, and the absence of
any intervening 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. 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); State v. Ayles, 348 Or 622, 637-39, 237 P3d
805 (2010) (same).
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
demonstrate that, in some situations, a defendant’s voluntary
consent itself may be sufficient to demonstrate that the
search was reasonable and permitted, notwithstanding the
prior illegality. 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 consent has so
attenuated 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,
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 circumstances
surrounding [the] defendant’s consent” and the defendant
volunteered consent without prompting from the officers.
290 Or at 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 cut off
Cite as 353 Or 129 (2013) 145
the causal connection between the consent and the prior
illegal conduct. 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 taint
of the prior illegality but positing that a requested consent
on the same facts would not purge the taint, Hall, in effect,
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 the
state cannot demonstrate some breach in the causal chain.
The fact that a consent to search was unprompted
or unilateral is relevant evidence of the voluntariness
of the consent; as recognized in Kennedy and Rodriguez,
unprompted or unilateral consent is less likely to be a
product of illegal police conduct. However, the fact that
an officer requested consent does not demonstrate that
the officer necessarily exploited the prior illegal conduct to
gain consent. Rodriguez, for example, involved a voluntary
consent following an illegal 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 granted consent. Id.Properly considered, then, a voluntary consent
to search that is prompted by an officer’s request can be
sufficient to purge the taint of illegal police conduct. Whether
the voluntary consent is sufficient to purge the taint—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
146 State v. Hemenway
an unlawful stop necessarily breaks the causal chain
and makes the evidence admissible, as we do defendant’s
argument that such consent will rarely, if ever, break the
causal chain.
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 constitutional
rights. In the context of Hall and this case, where an illegal
stop preceded a consent to search, that inquiry has two
prongs. First, the court must assess whether the consent was
voluntary. If the consent to search was not voluntary, then
the evidence must be suppressed, because only a voluntary
consent to search provides an exception in this context to
the warrant requirement of Article I, section 9. Second,
even if the consent was voluntary, the court must address
whether the police exploited their prior illegal conduct to
obtain the evidence. Evidence may be tainted directly by the
illegal police conduct, if, for example, the police illegally stop
a vehicle, allowing them to view contraband that otherwise
would not have been visible, and then request the driver’s
consent to search the vehicle as a result of what they saw.
The consent in that example does not “purge the taint” of the
prior illegal stop, because the evidence has a direct causal
connection to the illegal conduct.
Evidence also may be tainted if the police obtained
the consent to search through less direct exploitation of
their illegal conduct. As noted, Hall identified several
factors for analyzing whether the police exploited their
illegal conduct to obtain consent. Those factors include
the temporal proximity between the illegal police conduct
and the consent and the presence of any intervening or
mitigating circumstances, such as Miranda warnings or
other admonitions. Hall, 339 Or at 35, 35 n 21. Additionally,
the purpose and egregiousness of the illegal police conduct
is relevant to whether the police exploited that conduct
to obtain the defendant’s consent to search. See Brown v.
Illinois, 422 US 590, 603-04, 95 S Ct 2254, 45 L Ed 2d 416(1975) (identifying “the purpose and flagrancy of the official
misconduct” as relevant to exploitation analysis under
Cite as 353 Or 129 (2013) 147
the Fourth Amendment); see also Wolfe, 295 Or at 572(explaining that the Brown exploitation factors, including
“the purpose and flagrancy of the official misconduct,”
were relevant to determine the effect of police misconduct
on the voluntariness of a defendant’s consent to search).
Hall asserted, without discussion, that “the 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.” 339 Or at 35
n 21. Although Hall was correct that the Oregon exclusionary
rule, unlike the federal one, does not balance the value of
deterrence against the costs of exclusion in determining
whether evidence should be suppressed, id. at 23-24, we
clarify here that the “purpose and flagrancy” of police
misconduct nonetheless may play a role in exploitation
analysis. For example, police misconduct that is intended
to gain a defendant’s consent may well be more likely to
substantially affect that defendant’s decision to consent.
Likewise, particularly egregious police misconduct—such as
excessive use of force in unlawfully seizing a defendant—is
more likely to affect the defendant’s decision to consent than
more restrained police behavior. The verbal and nonverbal
interactions between a defendant and the police leading up
to the consent itself are relevant to whether or not the police
gained consent through exploitation.
Stated in terms of the state’s burden, the state must
prove that the defendant’s consent was sufficient to attenuate
the taint of the illegal police conduct. We emphasize that the
state is not required to prove that there was no causal link
whatsoever between the illegal conduct and consent; rather,
the state must prove that the illegal police conduct was a
minor or remote cause. See Rodriguez, 317 Or at 40 (“Mere
physical presence as a result of prior unlawful conduct does
not constitute exploitation of that conduct. Exploitation
occurs when the police take advantage of the circumstances
of their unlawful conduct to obtain the consent to search.”).
As this court often has stated, but-for causation—that, as
a factual matter, the illegal police conduct was a necessary
link in the sequence of events that led to the consent search
and the evidence—is insufficient to require suppression.
148 State v. Hemenway
Kennedy, 290 Or at 500-01. If the defendant shows that he
or she was stopped illegally and challenges the validity of
his or her consent to search, then the state is required to
prove that the police did not exploit their illegal conduct
to obtain consent. If the state fails to make that showing,
the evidence will be suppressed. However, if the state can
show that the illegal conduct did not “significantly affect[ ]”
the consent that the police obtained, then the state has
established that the police did not exploit that conduct, and
suppression is not required. Hall, 339 Or at 35.
In analyzing exploitation, it must be remembered
that Article I, section 9, prohibits “unreasonable” searches
and seizures. As the preceding discussion demonstrates,
the test for whether a consent search conducted following
an illegal stop comports with Article I, section 9, cannot
be reduced to a simple formula. On the contrary, like all
reasonableness determinations, whether a particular search
or seizure is unreasonable necessarily depends on the facts
of each case.
We again emphasize that, in addition to analyzing
possible exploitation of prior police misconduct—the issue
in this case—the trial court must consider whether the
defendant’s consent was voluntary. If the defendant’s
consent was not voluntary, the evidence obtained as a result
of that search must be suppressed, regardless of whether any
exploitation occurred. See, e.g., State v. Guggenmos, 350 Or
243, 261-62, 262 n 8, 253 P3d 1042 (2011) (finding no reason
to determine whether exploitation analysis would require
suppression of evidence because determination that consent
was not voluntary required suppression); Williamson, 307
Or at 626-27 (Carson, J., concurring) (“The validity of
[the defendant’s] consent determines the outcome of this
case. If the consent were involuntary and, thus, invalid,
the subsequent search and resulting seizure, arrest, and
conviction likewise were invalid.”). Because the tests for
exploitation and voluntariness, while overlapping, are not
identical, it is important that the trial court consider both
tests in deciding whether to suppress evidence obtained in a
consent search that follows an illegal stop.
We turn to several issues that the dissent raises.
The dissent argues, among other things, that we have
Cite as 353 Or 129 (2013) 149
overruled Hall and other cases sub silentio; abandoned an
“objective” and “logical” test for one that is “more intrusive
and less clear”; and failed to “grapple sufficiently with
whether defendant’s consent was * * * a product of the
officer’s unlawful stop and detention.” 353 Or at 163-64
(Walters, J., dissenting). The dissent is wrong on each count.
In this case, we clarify the rule announced in Hall. The
state asked us to overrule Hall, arguing that, if a defendant
who is unlawfully stopped by police voluntarily consents
to a search, then that consent always makes the search
reasonable and the evidence seized in the search admissible.
We expressly reject that argument. Instead, we adhere
to Hall in holding that evidence obtained from a consent
search must be suppressed if the consent was obtained
through exploitation of the unlawful police conduct. Under
Hall—and under our decision today—the state must prove
that “the defendant’s consent was independent of, or only
tenuously related to, the unlawful police conduct.” Hall, 339
Or at 35. That analysis is consistent with our reliance in
Hall on long-standing exploitation analysis derived from the
United States Supreme Court’s decision in Wong Sun and
this court’s cases following Wong Sun, including Kennedy
and Rodriguez. In this case, as discussed above, 353 Or at
143-47, we modify the exploitation test announced in Hall,
because we conclude that it did not give sufficient weight
to a defendant’s voluntary consent to a search, as well as to
other factors such as the purpose and egregiousness of the
police misconduct.3
We also disagree that Hall established a logical,
easily applied test that we have now abandoned for
one that is more intrusive and less clear. Hall, as noted,
followed the exploitation analysis of Wong Sun and
required consideration of “the effect of the unlawful police
conduct upon the defendant’s decision to consent.” 339
Or at 32. That determination “requires examination of
3
The dissent argues that we have “reverse[d]” and “effectively overrul[ed]”
Hall and Rodgers/Kirkeby, suggesting that the results in those cases would
have been different under the test that we adopt here. Whether the outcome in
Hall and Rodgers/Kirkeby would have been different under the analysis set out
here is speculative. The issue whether a defendant’s consent was the “product”
of unlawful police conduct or, put differently, whether police “exploited” their
unlawful conduct to obtain consent, is necessarily dependent on the facts of the
particular case and on the record developed in the trial court.
150 State v. Hemenway
the specific facts at issue in a particular case,” including
“temporal proximity” between the unlawful police conduct
and the defendant’s consent, “intervening circumstances,”
and other circumstances that “mitigated the effect of the
unlawful police conduct.” Id. at 35. In this case, we point
out that the focus on “temporal proximity” too easily leads
to the conclusion that any consent search that occurs when
a person is unlawfully stopped is invalid, when the better-
framed question is whether police exploited the unlawful
stop to obtain the consent. It is true that that test requires
consideration of the totality of the circumstances of the stop
and the police-citizen encounter, but that is often the case
in deciding search and seizure cases.
Finally, the dissent’s claim that we fail to “grapple
sufficiently” with the question whether the consent given
in this case was the “product” of the unlawful stop seems
to contradict its argument in favor of a simpler test. As our
application below of the test that we have articulated to the
facts of this case demonstrates, the test is more nuanced
than that announced in Hall and takes into account
the totality of the circumstances of the encounter. As we
describe below, that test provides a more careful and more
full consideration of the facts that lead to a determination
as to whether the consent was the “product” of the unlawful
police conduct than did the test in Hall.
APPLICATION
We return to the issue in this case. The Court of
Appeals concluded that defendant had been stopped “when
the movement of his truck was physically constrained, he
was directed to move to a location to speak with a deputy,
his identification was obtained, and he was questioned
by the deputy.” Hemenway, 232 Or App at 411. The court
also determined that the stop was unlawful because the
police had lacked reasonable suspicion that defendant was
engaged in criminal conduct. Id. The state does not challenge
the Court of Appeals’ determination that defendant was
illegally stopped, and we therefore do not consider that
issue further.
After being stopped, defendant then consented to
three searches. Defendant agrees that his consent to search
Cite as 353 Or 129 (2013) 151
was “voluntary” in the sense used in our cases—that is, that
the consent was not coerced. The only question, then, is
whether defendant’s consent was gained through exploitation
of the illegal stop. The Court of Appeals concluded that it
was, stating that, because defendant’s consent had occurred
“contemporaneously with the stop, with no intervening or
mitigating factors[,] [i]t was therefore dependent on the
unlawful stop and was not attenuated” under Hall. Id. at
416.
Because exploitation is a fact-intensive inquiry,
we review the facts in some detail. Defendant’s girlfriend,
Taylor, called 9-1-1 regarding the whereabouts of her son,
who was overdue from a visit to a friend’s house, and an
unspecified problem with electrical power at the house.
Close to midnight and several hours after Taylor had
placed the call, two officers arrived at Taylor’s residence in
separate vehicles. Defendant was in the process of moving
out, and his truck, filled with his belongings, was parked
in the driveway. The officers parked in the driveway,
behind defendant’s truck. Both Taylor and defendant were
outside the residence when the officers arrived. Deputy
Orella observed a rifle in defendant’s truck and told Deputy
Russell. Orella approached Taylor and directed defendant
to speak with Russell.
Defendant stated that he was moving out and that
he had a handgun and another firearm in the truck, in
addition to the rifle. Russell asked if defendant was a felon
and requested defendant’s name and date of birth, which
defendant provided. Russell and defendant engaged in
what the trial court described as “chit-chat of an innocuous
nature,” and, according to Russell:
“[Defendant] asked if he could have a cigarette, and I said
that’s no problem. Asked him if he’d have a problem with
me searching him just to put me at ease and then he could
have his hands wherever he wanted and we wouldn’t have
to worry about, you know, knowing if there [were] weapons
or anything else on him he shouldn’t have.”
The trial court found that Russell was “concerned because
the [d]efendant had his hands in his pockets which were
bulky, had weapons in the vehicle and it was very dark at
their location.” Defendant consented to that search. Russell
152 State v. Hemenway
found a small tin in defendant’s pocket and asked if he
could open it. Defendant again consented, and the deputy
found drug paraphernalia and residue. The officer arrested
defendant and gave him Miranda warnings. Defendant
then consented to a search of the residence. The trial court
found that the tone of the interactions between defendant
and Russell had been “normal” prior to the arrest and that
defendant had been “cooperative and forthcoming.”
In this court, as noted, the state does not challenge
the Court of Appeals’ determination that, at the time of
defendant’s consents to the searches, he had just been
unlawfully stopped. Accordingly, the temporal proximity
factor weighs in defendant’s favor. See Ayles, 348 Or at 637.
On the other hand, there is no evidence that the
police conduct in this case was egregious; indeed, the trial
court described the interaction between Russell and defendant
as “amicable and casual,” and the record amply supports
that conclusion. Regarding the purpose of the police actions,
the stop occurred around midnight during a welfare check
initiated by defendant’s girlfriend, who was concerned about
the whereabouts of her son. Although the officers parked
their cars in the driveway behind defendant’s truck, there
was no indication that they did so for the purpose of blocking
him from leaving. Moreover, the police had observed a rifle
in defendant’s truck when they first arrived, before any stop
occurred. Defendant then had volunteered that he was moving
his possessions out of the house and that he also had a handgun
and another firearm in the truck. The officers’ interactions
with defendant, then, were—at least initially—for the lawful
purpose of investigating Taylor’s call to the police. There is no
indication that, when the officers stopped defendant, they did
so with the purpose of searching for evidence, in contrast to
Williamson, 307 Or at 623, 623-24 n 1.
We turn to defendant’s three consents to search.
As to each consent, the trial court found that there was no
evidence of police coercion, either express or implied, and
that each consent had been voluntary. On review, defendant
does not dispute that conclusion. He argues, instead, that
the police exploited their illegal stop to obtain his consent
to the searches that led to the evidence upon which he was
Cite as 353 Or 129 (2013) 153
convicted and that, under Hall, the evidence therefore must
be suppressed. The trial court found that the police made no
verbal or physical threats and did not approach defendant
with weapons drawn. The trial court described defendant as
“cooperative” throughout the entire encounter.
As to defendant’s first consent, the trial court found
that, when Russell had asked to search defendant to “ease
his mind,” defendant “readily agreed.” Defendant testified
at the suppression hearing that he consented to the first
search to show that “I wasn’t any kind of a threat to him.”
The evidence supports the trial court’s conclusion that
defendant had consented to “ease [Russell’s] mind.” The
cause of the consent, then, does not appear to be the illegal
conduct by the police. Rather, the setting of the interaction—
the welfare check, the darkness, defendant’s acknowledged
possession of firearms in his truck, and defendant’s desire
to have a cigarette while the police conducted the welfare
check—and the testimony of defendant and the officers
indicates that defendant’s consent was not the product of
the unlawful stop. Aside from the close temporal proximity
to the stop, there is no evidence that Russell exploited
any aspect of the stop to obtain defendant’s first consent.
Accordingly, we hold that defendant’s first consent was not
a product of the illegal stop.
During the first search, Russell discovered a small
tin and requested consent to open it. Defendant responded,
according to Russell, in a “low mopey voice” that he could,
and Russell discovered a methamphetamine pipe and
methamphetamine residue. Russell did not threaten or
cajole defendant regarding the tin; he simply requested
consent to open it. There is no evidence that Russell took
advantage of the fact that defendant was unable to terminate
the encounter to gain defendant’s consent to open the tin.
Given that the first search, which led to the discovery of the
tin, was valid and that there is no indication in the record
that Russell exploited the stop to gain defendant’s consent
to open the tin, the evidence in the tin was not tainted by the
prior illegal conduct. Because the drug evidence from the tin
was not tainted by the unlawful stop, defendant’s Article I,
section 9, right to be free from unreasonable seizure would
not be vindicated by suppressing that evidence.
154 State v. Hemenway
After discovering the contraband, Russell arrested
defendant and gave him Miranda warnings. Defendant
acknowledged that there might be more drugs in the house
and consented to a search of the house. Defendant then led
Russell to more contraband. As noted, defendant’s prior
consents were valid, and, therefore, the evidence gained
from those searches was not tainted by the illegal stop.
Discovery of that drug evidence gave Russell probable
cause to arrest defendant. Moreover, defendant had been
given Miranda warnings before Russell requested consent
to search the house. Accordingly, defendant’s arrest was
lawful, and defendant’s voluntary consent to search the
house following his arrest did not violate Article I, section 9,
of the Oregon Constitution.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
LANDAU, J., concurring.
I agree with the majority’s disposition and reasoning
on the merits in this case. I write separately to address
the state’s argument that we should reexamine the search
and seizure guarantee of Article I, section 9, in accordance
with this court’s “usual paradigm” for constitutional
interpretation. The majority summarily rejects the state’s
argument. State v. Hemenway, 353 Or 129, 137-38, ___ P3d
___ (2013). I agree with the majority’s ultimate conclusion,
but I think that it is important to set out some of the reasons
why that conclusion is correct.
The state’s argument is predicated on Stranahan
v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000), in which
this court observed that “it long has been the practice of
this court to ascertain and give effect to the intent of the
framers” of a disputed provision of the state constitution. Id.
at 54 (internal quotation marks omitted). The court invited
litigants to present arguments that we should reconsider
prior case law because of a “failure on the part of this
court at the time of the earlier decision to follow its usual
paradigm for considering and construing the meaning of the
provision in question.” Id. In light of what this court said in
Stranahan, I do not fault the state for making the argument
that it advances in this case. I do, however, take issue with
Cite as 353 Or 129 (2013) 155
Stranahan and its stated commitment to a jurisprudence of
original intent.
At the outset, I question the accuracy of Stranahan’s
observation that such has been the longstanding practice
of the court. If the court meant that there are some very
old cases in which the court applied that interpretive
approach, I suppose the observation is true enough.1 But
I take Stranahan to assert that originalism2 is a well-
established methodology that this court has consistently
applied for a long time. In that regard, Stranahan is
incorrect. Sometimes the court has applied that interpretive
approach, and sometimes it has not. See, e.g., Dodd v. Hood
River County, 317 Or 172, 180-82, 855 P2d 608 (1993) (state
constitutional takings clause interpreted without reference
to framers’ intentions); State v. Mai, 294 Or 269, 272, 656
P2d 315 (1982) (state constitutional compulsory process
clause is construed “in the same way as the [United States]
Supreme Court construed the virtually identical federal
counterpart” and without reference to the intention of its
Oregon framers).
That said, there certainly are a number of cases
in which the court determined the meaning of the state
constitution by reference to the “framers’ intentions.” In
fact, in more than a few cases, the court has effectively
limited the scope and meaning of a provision of the state
constitution to whatever its framers would have understood
it to mean in 1857. At the very least, there is language in
a number of those opinions that has understandably led
parties—such as the state in this case—to argue that our
state’s constitution means no more than what it meant to
its framers at the time of its adoption.
1
The court in Stranahan cited Jones v. Hoss, 132 Or 175, 178, 285 P 205(1930). There are actually older cases, such as Noland v. Costello, 2 Or 57, 58-59
(1863), that refer to the intentions of the framers of the state constitution.
2
I use the term somewhat loosely to refer to the mode of constitutional
interpretation that regards the meaning of a provision as frozen in time in
accordance with the intentions of those who adopted the constitution or with the
meaning of the constitution as it would have been understood at that time. I
understand that, among scholars, there is a difference between original intent and
original public meaning, see, e.g., Keith E. Whittington, The New Originalism, 2
Geo J L & Pub Pol’y 599 (2004) (describing transition among originalist scholars
from emphasizing original intent to original public meaning), but that is a
distinction that this court’s prior cases have not consistently recognized.
156 State v. Hemenway
In Lakin v. Senco Products, Inc., 329 Or 62, 72, 987
P2d 463 (1999), for instance, this court sweepingly declared
of the right to a jury trial guaranteed in Article I, section 17,
that “whatever the right to ‘Trial by Jury’ meant in 1857,
it means precisely the same thing today.” In Smothers v.
Gresham Transfer, Inc., 332 Or 83, 118, 23 P3d 333 (2001), to
pick another example, the court announced that the purpose
of the remedy clause of Article I, section 10, “is to protect
absolute common-law rights respecting person, property,
and reputation, as those rights existed when the Oregon
Constitution was drafted in 1857.” And in State v. Delgado,
298 Or 395, 401, 692 P2d 610 (1984), to pick still another, the
court held that the question whether the state constitutional
right to bear arms applies to the possession of a switch-blade
knife depends on “whether the drafters would have intended
the word ‘arms’ to include the switch-blade knife[.]”
In my view, the idea that the original state consti-
tution means no more than what it meant to its framers in
1857 is untenable. To begin with, all too often, the state of
the historical record is such that we simply cannot know
what the framers had in mind.3 We do not even know with
any certainty that the framers intended that their intentions
or understandings should count in future constitutional
interpretation.4 But even when the historical record does
3
When faced with such circumstances, this court in some cases has attributed
to the framers of the Oregon Constitution knowledge of information that there
is no evidence they actually possessed. See, e.g., State v. Cookman, 324 Or 19,
28-31, 920 P2d 1086 (1996) (attributing to the framers of the Oregon Constitution
an intention to follow an 1822 Indiana Supreme Court decision interpreting the
1816 version of the Indiana Constitution that was the predecessor to the 1851
Indiana Constitution that is presumed to be the basis for Oregon’s ex post facto
clause, because the decision was, at least in a temporal sense, “available” to the
Oregon framers). The effect is to reconstruct a presumed intention that we have
no way of knowing accords with reality.
4
That the delegates to the Oregon Constitutional Convention expressly
declined to create any official record of their debates would seem to suggest that
they did not care one way or the other. One of the arguments in favor of keeping
a record of the convention was precisely to preserve a record of the intentions of
the framers for future reference. Charles H. Carey ed., The Oregon Constitution
and Proceedings and Debates of the Constitutional Convention of 1857 140 (1926).
But the argument failed to carry the day. Moreover, any suggestion that the
prevailing interpretive conventions of the day presumed that the intentions or
understandings of the framers would control is at least debatable. See, e.g., John
P. Figura, Against the Creation Myth of Textualism: Theories of Constitutional
Interpretation in the Nineteenth Century, 80 Miss LJ 587 (2010) (summarizing
various interpretive approaches reflected in nineteenth-century treatises).
Cite as 353 Or 129 (2013) 157
permit some inferences and conclusions about the original
intentions and understandings of the framers, the idea that
those intentions and understandings are controlling makes
the state’s highest law little more than a historical artifact
of an era that few in this century actually would choose as a
determinant of individual rights and government authority—
an era, it should be remembered, when women possessed few
political and civil rights, when the common law recognized
no protections for workers, and when the people decreed
that a “negro” or “mulatto” who did not already reside in the
state when the constitution was adopted was not permitted
to reside in Oregon. Or Const, Art I, § 35, repealed 1926.
That is not to say that the historical context for
the adoption of a constitutional provision is irrelevant. All
provisions of a state constitution were adopted at a specific
point in history. That history—including the intentions or
understandings of the framers (or perhaps more precisely,
the voters)5—is always relevant. State constitutions, after all,
are commands designed to instruct citizens and government
officials about the powers of government and the limitations
on the exercise of those powers. As such, those commands
invite consideration of their intended purposes.6
A number of constitutional provisions are of relatively
recent vintage, adopted with comprehensive records as to the
intentions or understandings of their makers, and prepared
with the obvious expectation that those records be taken
into account in determining the meaning of the provisions.
In such cases, it makes much sense to heed carefully the
available evidence of their intended purposes.7
5
It is common to refer to the intentions of the “framers,” but, given that the
constitution derives its force from ratification by the people, it is actually the vot-
ers, not the framers in the constitutional convention, whose intentions or under-
standings count. See Monaghan v. School District No. 1, 211 Or 360, 367, 315
P2d 797 (1957) (“The constitution derives its force and effect from the people who
ratified it and not from the proceedings of the convention where it was framed[.]”).
6
Thus, Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), appropriately
requires an examination of “the historical circumstances” that led to the adoption
of a provision of the original constitution. Priest, however, does not require, as
some of this court’s later cases have suggested, that those historical circumstances
determine the meaning of the provision at issue.
7
Accordingly, the approach to constitutional interpretation of amendments
adopted by initiative set out in Ecumenical Ministries v. Oregon State Lottery
Comm., 318 Or 551, 559-60, 871 P2d 106 (1994), with its focus on ascertaining the
intentions of the people who adopted the amendments, seems correct to me.
158 State v. Hemenway
But much of the original constitution consists of
vaguely worded clauses adopted a century and a half in the
past, with little or no record of their meanings or purposes.
In such cases, it is difficult to speak with any precision about
the intentions of the framers. Moreover, whatever we do
know of the specific intentions of the framers of the Oregon
Constitution is difficult to apply to modern circumstances that
were hardly in the contemplation of persons who lived in the
middle of the nineteenth century. At best, the historical record
will offer, in very general terms, an idea of some underlying
principles that may have animated the original provisions,
which principles may be applied to modern circumstances.8
The search and seizure clause of Article I, section
9, that is at issue in this appeal is an excellent case in
point. The clause requires that searches and seizures
not be “unreasonable.” Beyond the fact that the provision
was obviously based on the Fourth Amendment, there is
a complete absence of direct historical evidence of what
the framers intended or what the voters understood about
the provision. It was adopted without discussion in the
constitutional convention, and there is no record of public
debate about it during ratification. See generally Claudia
Burton & Andrew Grade, A Legislative History of the Oregon
Constitution of 1857—Part I (Articles I & II), 37 Willamette
L Rev 469, 515 (2001) (search and seizure provisions were
passed with “no reported comment or debate”). Any attempt to
reconstruct what the framers or voters might have intended
in adopting Article I, section 9, will yield only speculation.
There is no real consensus among historians about what
people thought about search and seizure guarantees in
the late-eighteenth century. There is an especially fierce
debate among scholars about the original understanding
of the Fourth Amendment.9 There is perhaps slightly less
8
Some of this court’s more recent cases properly reflect that interpretive
approach. See, e.g., State v. Davis, 350 Or 440, 446, 256 P3d 1075 (2011) (“[The
purpose of historical analysis] is not to freeze the meaning of the state constitution
in the mid-nineteenth century. Rather it is to identify, in light of the meaning
understood by the framers, relevant underlying principles that may inform our
application of the constitutional text to modern circumstances.”)
9
The crux of the debate concerns whether the framers of the Fourth Amendment
understood or intended that searches and seizures generally require warrants.
Strictly speaking, the Fourth Amendment says only that searches and seizures be
reasonable and that warrants should not issue except on probable cause. Some
Cite as 353 Or 129 (2013) 159
controversy about the general understanding of state search
and seizure clauses in the early- to mid-nineteenth century;
it appears that most courts at that time interpreted them
merely to require that searches and seizures be “reasonable”
under the circumstances in which the actions occurred.10
A particularly significant problem with trying to
apply Article I, section 9, as it would have been understood
back in 1857 is the fact that its very wording invites analysis
that is not historically bound. The requirement that searches
and seizures be “reasonable” seems to me to necessitate
constant reassessment in light of changing circumstances.
Trying to determine what is reasonable today by looking
solely to nineteenth-century history seems to me akin to
trying to drive a vehicle on an interstate highway by looking
only in the rearview mirror.
In short, the majority is correct in rejecting the
state’s contention that we should interpret the search and
seizure clause of Article I, section 9, to reflect only the
intentions or understandings of its framers in 1857. My point
in writing separately is to explain my view that there are
important underlying reasons why we should not interpret
the search and seizure clause that way—reasons that
scholars, however, argue that the framers understood the amendment implicitly
to require warrants. See, e.g., William J. Cuddihy, The Fourth Amendment:
Origins and Original Meaning 1602-1791 (2009). Others argue that the Fourth
Amendment merely requires that searches and seizures not be unreasonable. See,
e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757
(1994). Still others contend that the “reasonableness clause” of the amendment
was intended only as a preamble and that the sole purpose of operative provision
was to limit the issuance of warrants. See, e.g., Thomas Y. Davies, Recovering the
Original Fourth Amendment, 98 Mich L Rev 547 (1999). And yet others argue that
the Fourth Amendment was originally intended only to regulate the issuance of
warrants to search houses. See, e.g., David E. Steinberg, The Uses and Misuses of
Fourth Amendment History, 10 U Pa J Const L 581 (2008).
10
See, e.g., Rohan v. Sawin, 59 Mass 281, 284-85 (1850) (purpose of state and
federal search and seizure guarantee was solely to require that warrants issue on
sworn complaint establishing probable cause); Wakely v. Hart, 6 Binn 315, 318 (Pa
1814) (state constitution does not prohibit warrantless searches and requires only
that warrants issue on probable cause); Mayo v. Wilson, 1 NH 53, 60 (1817) (state
constitution “does not seem intended to restrain the legislature from authorizing
arrests without warrant, but to guard against the abuse of warrants issued by
magistrates”). In fact, as late as 1927, this court held that “the possession of
[a] warrant is not the controlling consideration of whether a search is reasonable
or unreasonable. An officer armed with a warrant may make an unreasonable
search. An officer without a warrant may make a reasonable search.” State v.
De Ford, 120 Or 444, 452, 250 P 220 (1927).
160 State v. Hemenway
counsel the exercise of caution and skepticism in assessing
the significance of such nineteenth-century intentions and
understandings as we interpret other provisions of the
original constitution, as well.
WALTERS, J., dissenting.
The majority is bold, and it is deft. The majority
begins by affirming the rule of stare decisis, declaring that
“the party seeking to change a precedent must assume
responsibility for affirmatively persuading us that we
should abandon that precedent” and deciding that the state
did not meet its burden of persuasion in this case. 353 Or
at 137. Then, by sleight of hand, the majority reverses its
holdings in State v. Hall, 339 Or 7, 115 P3d 908 (2005), and
State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010),
a case that this court decided just three years ago.
In Hall, police officers unlawfully and unconstitu-
tionally stopped the defendant without reasonable suspicion
of criminal activity. During the illegal stop, the officers
asked for and the defendant gave his consent to search.
The officers were polite and did not threaten or cajole the
defendant. There was no evidence that the officers had acted
egregiously. The court nevertheless held that the evidence
that the officers obtained as a result of the consent search
was not admissible because the state had not proved “that
defendant’s decision to consent, even if voluntary, was not
the product of the preceding violation of defendant’s rights
under Article I, section 9.” 339 Or at 29 (emphasis added).
In this case, the police also unlawfully and unconsti-
tutionally stopped defendant without reasonable suspicion
of criminal activity and asked him for his consent to
search. The majority holds that the evidence that the police
obtained when defendant first consented to the search was
admissible because it was not the product of the preceding
violation. 353 Or at 154. Yet the majority does not overrule
its holding in Hall, nor does it distinguish it.
In 2010, this court reaffirmed its holding in Hall in
State v. Rodgers/Kirkeby, 347 Or 610. In Rodgers/Kirkeby,
the court held that the defendants’ consents to search were
Cite as 353 Or 129 (2013) 161
the products of unlawful detention and must be suppressed.
The court explained:
“It was during the period of unlawful detention that the
officers requested that each defendant consent to a search.
Here, as in Hall, neither defendant spontaneously granted
the officers consent to search; instead, each defendant gave
his consent in response to the officers’ requests. The state
does not advance any argument to this court to satisfy
its burden under Hall that intervening circumstances
or factors severed the connection between the unlawful
seizures and defendants’ consent. Thus, as in Hall, given
the temporal proximity between the illegal detention
and each defendant’s consent, and in the absence of any
other intervening circumstances, or other circumstances
mitigating the effect of the unlawful seizures of each
defendant, we conclude that each defendant’s consent,
even if voluntary, was the product of police conduct that
violated Article I, section 9. Because the consent to search
in each case was a product of the unlawful seizure, the
evidence obtained during the search, in both cases, must
be suppressed.”
Id. at 630. The officers in Rodgers/Kirkeby did not threaten
or cajole the defendants. There was no evidence that the
officers acted in an egregious manner. If the holding in
Rodgers/Kirkeby is no longer good law, why does the
majority not overrule it? If Rodgers/Kirkeby is still good
law, why does the majority not distinguish it?
The majority also fails to contend with other cases
that should carry precedential weight. In Hall, the court
carefully considered those cases and said:
“In our view, the circumstances at issue here more
closely resemble the circumstances at issue in Dominguez-
Martinez and Toevs, rather than the circumstances at issue
in Kennedy and Rodriguez. Similarly to the defendants in
Dominguez-Martinez and Toevs, defendant here consented
to the search during an unlawful stop. Unlike the
defendants in Rodriguez and Kennedy, defendant’s grant of
consent was not spontaneous but, instead, was made only
in response to [the officer’s] request that defendant allow a
search. [The officer] made that request immediately after
he had questioned defendant about whether defendant was
carrying any weapons or illegal drugs and while he was
waiting for the results of defendant’s warrant check. Given
162 State v. Hemenway
the close temporal proximity between the illegal detention
and defendant’s consent, and the absence of any intervening
circumstances or other circumstances mitigating the effect
of that unlawful police conduct, we cannot say that the
state has proved that defendant’s decision to consent, even
if voluntary, was not the product of the preceding violation
of defendant’s rights under Article I, section 9. We
therefore conclude that the unlawful seizure of defendant
vitiated his consent to the search and, for that reason, the
evidence from that search is inadmissible under Article I,
section 9.”
339 Or at 36. In this case, the majority relies heavily on
Rodriguez, a case that the court considered and distinguished
in Hall, but says nothing about Dominguez-Martinez
and Toevs, the cases that the court cited in support of its
decision in Hall. Are those cases no longer good law, or are
they distinguishable? The majority does not say.
The majority justifies its failure to grapple with the
need for stability and predictability that the rule of stare
decisis fosters by claiming that it has merely “clarified” Hall
while continuing to adhere to the precept that a court must
suppress evidence obtained from a consent search if the
consent was obtained “through exploitation of the unlawful
police conduct.” 353 Or at 137.1 Hall and Rodgers/Kirkeby
undoubtedly stand for that precept, but they do not stand for
that precept alone. They also stand for the rule that evidence
is obtained through exploitation when the police unlawfully
stop citizens and, while continuing to detain them without
legal authority to do so, request that they submit to search.
Under Hall and Rodgers/Kirkeby, the law has been that,
in the absence of intervening or mitigating circumstances,
the evidence that the police obtain must be suppressed even
when the citizens’ consents to search are voluntary. This
court may distinguish or even reverse those holdings, but
it should do so openly and in accordance with the rule of
stare decisis. Because the majority does otherwise, I ask the
question that all citizens have the right to ask: What force
1
In 2011, this court reiterated that “[f]ew legal principles are so central to our
tradition as the concept that courts should ‘[t]reat like cases alike,’ * * * and stare
decisis is one means of advancing that goal.” Farmers Ins. Co. v. Mowry, 350 Or
686, 698, 261 P3d 1 (2011) (second alteration in original; citation omitted).
Cite as 353 Or 129 (2013) 163
does the rule of law have if a court can avoid it by refusing
to call it by its right name?
I press my point because, in effectively overruling
Hall and Rodgers/Kirkeby, the majority changes the
exclusionary rule as Oregon has known it and, in my view,
does so to the detriment of Oregonians. The majority defends
its decision by saying that Hall’s exploitation test “failed to
give sufficient weight to a defendant’s voluntary consent to
a search * * *.” 353 Or at 149. But as the majority so aptly
explains, whether a defendant’s consent was voluntary is a
question that is distinct from the question of whether the
evidence that the police obtained was a product of their
illegal conduct. Id. at 12.
The aim of the Oregon exclusionary rule is to restore
a defendant to the same position as if “the government’s
officers had stayed within the law.” State v. Davis, 295
Or 227, 234, 666 P2d 802 (1983). Before today, this court
had “rejected the view that the Oregon exclusionary rule
is predicated upon a deterrence rationale” and instead
had adopted a rule “that serves to vindicate a defendant’s
personal rights. In other words, the right to be free from
unreasonable searches and seizures under Article I, section
9, also encompasses the right to be free from the use of
evidence obtained in violation of that state constitutional
provision.” Hall, 339 Or at 24 (citing State v. Davis, 313 Or
246, 249, 834 P2d 1008 (1992)).
The majority’s new test focuses not on whether the
police violated a defendant’s constitutional right against
unreasonable seizure and obtained evidence as a result, but
on whether the police also engaged in purposeful or additional
misconduct that may have affected the defendant’s decision
to consent. The majority justifies consideration of those
factors by explaining that
“police misconduct that is intended to gain a defendant’s
consent may well be more likely to substantially affect
that defendant’s decision to consent. Likewise, particularly
egregious police misconduct—such as excessive use of force
in unlawfully seizing a defendant—is more likely to affect
the defendant’s decision to consent than more restrained
police behavior.”
164 State v. Hemenway
353 Or at 147. I do not quarrel with that reasoning; I
question its role in the exploitation analysis.
When the police unconstitutionally stop or detain
a defendant and act with an illegal purpose or engage in
egregious misconduct, a court must consider whether the
defendant’s subsequent consent to search is voluntary. Police
actions that deprive a defendant of constitutional rights or
exert unconstitutional coercion may render a defendant’s
consent involuntary. See State v. Kennedy, 290 Or 493, 624
P2d 99 (1981). But, as the majority acknowledges, even
when a defendant’s consent is voluntary, evidence that is the
product of illegal police misconduct is subject to suppression.
353 Or at 140. In this case, the majority’s decision that the
evidence that the police obtained was admissible because
the police actions, although illegal, were not egregious and
may not have affected defendant’s decision to consent may
reflect an accurate assessment that defendant’s consent
was voluntary in the sense that it was an act of free will.
However, the majority fails to grapple sufficiently with
whether defendant’s consent was, nevertheless, a product of
the officer’s unlawful stop and detention. Hall and Rodgers/
Kirkeby recognize the reality of the power imbalance that
exists when the police use their authority to unlawfully stop
and detain a person and then, while continuing to exert that
authority, seek consent to search. The majority conflates the
voluntariness and exploitation prongs of the analysis and
wrongly fails to give sufficient effect to the constitutional
mandate of the exclusionary rule in Oregon—that courts
apply it to vindicate a defendant’s personal right against
unconstitutional seizure. Hall, 339 Or at 24; Davis, 313 Or
at 249.
The majority’s new test also upends the Oregon
exclusionary rule in other ways. Before today, the inquiry
that the court used to decide whether police had exploited
an illegality and obtained evidence that must be suppressed
was an objective, logical one that did not require analysis
of the subjective motivation of the police in seeking a
defendant’s consent to search or of the subjective effect that
the police misconduct had on a defendant’s decision to give
consent. By adopting an exploitation test that now permits
or even requires both, the majority shifts away from the
Cite as 353 Or 129 (2013) 165
objectivity and logic of the exploitation prong of the analysis
and imposes a test that is both more intrusive and less clear.
It may seem right to instruct courts and officers to consider
“the totality of the circumstances,” but police officers and
trial courts endeavor to make decisions that this court will
uphold and are entitled to more guidance than the majority
gives. If the facts unfold as they did in Hall and Rodgers/
Kirkeby, must the trial court suppress the evidence as this
court required in those cases, or, considering the fact that
the police were polite, must the trial court now admit the
evidence?
Until today, certain consequences followed when
the police illegally and unconstitutionally stopped citizens
without probable cause or reasonable suspicion and,
while continuing to unlawfully detain them, asked for and
obtained their consent to search. Today, the majority has
eliminated, or at least substantially altered, the certainty
that the violation of a defendant’s constitutional rights
will be vindicated. If the majority had acknowledged and
attempted to justify its abandonment of precedent, I might
be more satisfied as a judge, but I do not know that I would
be more comfortable as a citizen.
The majority is bold, and it is deft. In my view, the
majority is also wrong. I respectfully dissent.
De Muniz, Senior Judge, Justice pro tempore, joins
in this dissent.