Oregon Supreme Court - January 10, 2013

by: Jwestover and Abassos • January 10, 2013 • no comments

Consent to Search During an Illegal Stop - New Exploitation Test Supplants State v Hall

Where a defendant consents to a search during an illegal stop, the evidence discovered during the search is no longer presumptively excluded. Evidence may only be excluded if officers used the illegal stop to obtain consent either by:

• Coercion, thereby making the consent involuntary; or

• Exploitation such that the consent is directly tainted by the illegal stop

State v Hall (2005) held that where consent occurs during an illegal stop, the evidence from the consent search was presumptively obtained through the illegal conduct. The burden then shifted to the state to establish that the consent was independent of, or attenuated from, the unlawful police conduct. In a 5-2 opinion, the court “modifies” Hall and articulates a state-friendly test for exploitation that ostensibly puts the burden on the state to “prove that the defendant's consent was sufficient to attenuate the taint of the illegal police conduct”:

“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.”

Here, defendant’s consent occurred during a stop that lacked reasonable suspicion. However, other than temporal proximity, there was no indication that officers exploited any aspect of the stop in order to obtain consent. For example, officers neither threatened nor cajoled. The defendant was cooperative. And the cause of the consent seemed to be unrelated to the stop itself. Thus, the state met its burden of showing that defendant’s consent was not tainted by the illegal stop. State v Hemenway J. Landau writes a concurrence to explicitly (rather than summarily) reject the state’s original intent argument that Article I, section 9 should be interpreted no broader than the 4th Amendment. J. Walters dissents, joined by J. De Muniz, pointing out that, by sleight of hand, the court has reversed its holdings in both Hall and Rodgers/Kirkeby. Except that the majority explicitly says it's not overruling Hall. And it neither over rules nor distinguishes many of the other important cases in this area, including Rodgers/Kirkeby, Dominguez-Martinez and Toevs. The dissent also points out how unclear the new test is, now that the subjective intent of the police officers plays so heavily in the analysis: “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?” State v Hemenway

There were also two additional cases, State v Davis and State v Lumpkins, in which the Court of Appeals was affirmed by a 3-3 split with no opinion.