The Supreme Court's New Approach to State Law Exploitation Analysis
by: • December 11, 2014 • no comments
The Oregon Supreme Court has been very active in the area of search and seizure law over the past two years. The court has 1) explained that a police request for identification, without more, is not a stop but a request for cooperation (State v. Backstrand, 354 Or 392, State v. Anderson, 354 Or 440, and State v. Highley, 353 Or 459 (2013)); 2) recognized a new exception to the warrant requirement that allows police to detain an apparent material witness to a serious crime (State v. Fair, 353 Or 588, 302 P3d 417 (2013)); and 3) approved a new application of the probable cause plus exigent circumstances exception to the warrant requirement—namely, when animals that are the apparent “victims” of crime are in extreme distress (State v. Fessenden, 355 Or 759, ___ P3d ___ (2014)).
Most significantly, the court has redefined the “exploitation” doctrine that applies when a person who has already suffered an unlawful search or seizure voluntarily consents to a search that produces incriminating evidence (called “indirect evidence” because the illegal search or seizure does not immediately or directly reveal the evidence). For the past nine years, that analysis has been grounded in the court’s opinion in State v. Hall, 339 Or 7, 35, 115 P3d 908 (2005).
The Hall court used three factors to determine whether the state proved that the individual’s consent was both voluntary and unaffected by the prior illegality: (1) the temporal proximity of consent to the illegality, (2) whether police administered warnings prior to consent, and (3) the presence of significant intervening events between the illegality and the consent. Hall dropped the “purpose and flagrancy” factor used in the federal analysis because it reasoned the factor relates to the officer’s subjective intent and the egregiousness of the violation, which the Hall court saw as relevant for a deterrence analysis under the Fourth Amendment but irrelevant for a personal rights analysis under Article I, section 9.1
Enter Unger, Lore
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nzo, and Musser
In State v. Unger, 356 Or 59, __ P3d __ (2014), the court expressly introduced a new consideration to the attenuation analysis (the “nature, extent, and severity of the constitutional violation”) and restored the “purpose and flagrancy” factors Hall jettisoned, though it uses them differently from federal law.
If the court hearing the motion to suppress determines that an Article I, section 9, violation occurred and the defendant subsequently gave consent to a search, the court’s task in the attenuation analysis is to view the totality of the circumstances to determine whether the defendant’s consent was both voluntary and unaffected by the prior illegality. The court now considers the following factors (new factors in italics) to make the “unaffected by” assessment:
(1) The “nature, extent, and severity” of the constitutional violation (2) The temporal proximity of the consent to the illegality (3) Whether warnings were administered prior to consent (4) The presence of significant intervening events, and (5) The “purpose” of the constitutional violation, and (6) The “flagrancy” of the constitutional violation.2
The Unger opinion does not give precise definitions for “the nature, extent, and severity” factor, nor does it directly define “purpose and flagrancy.” Though the court did not explicitly define the factors, the opinion appears to suggest the following definitions: The “nature, extent, and severity” factor requires a trial court to assess “the degree or severity of different constitutional violations as part of the exploitation test.”3 The court recognized the “difficult weighing that may be involved in some circumstances.”4 The court believed that the trespass in Unger “simply brought the detectives, during daylight hours, to a door of the house, which defendant opened.”5 In the court’s view, “[w]ithin the universe of possible unlawful police activity, the trespass here was limited in ‘extent, nature, and severity.’”6 Similarly, the court reasoned in Lorenzo that the “unlawful search was limited in time and severity, which suggests that its illegality was unlikely to have had a significant effect on defendant’s consent.”7 “Purpose” appears to mean the apparent or objective reason or motivation for the police conduct that leads to the constitutional violation. Illegal police conduct that is investigatory in nature apparently has more impact on the individual’s decision to consent than conduct that is remedial, that is, related to community caretaking or a welfare check.8 “Flagrancy” appears to refer to the show of force that accompanies the constitutional violation: “Particularly flagrant conduct—such as excessive use of force in unlawfully arresting a defendant, the unlawful entry into a home by multiple officers wielding automatic weapons, or unlawful and lengthy interrogation—is more likely to affect the defendant’s decision to consent than more restrained behavior.”9
Application of the new exploitation test to the facts in Unger, Lorenzo, and Musser Facts in Unger. In Unger, several police officers went to defendant’s house to do a “knock and talk” concerning reports of drug activity at the house. When they received no answer at two doors on the front of the house, one officer trespassed into the back yard and knocked on a glass door to defendant’s ground-level bedroom, where defendant and his girlfriend were asleep in bed. Defendant came to the door, and the officer told him the police were there to investigate complaints they had received and asked if they could enter. Defendant asked to put on a robe and then returned to allow the original officer and three other officers to enter. He led them through the bedroom to the kitchen, where an officer repeated the reason they were there and asked if defendant would show them around the house. Defendant verbally consented but refused to sign a consent card without speaking with his attorney. Defendant called his attorney who advised him to retract consent. Defendant did so, but the police had already seen incriminating information, which they used to obtain a search warrant for the house. Reasoning and Holding in Unger. The Oregon Supreme Court first reasoned that the unconstitutional trespass “simply brought the detectives, during daylight hours, to a door of the house, which defendant opened.”10 Consequently, “[w]ithin the universe of possible unlawful police activity, the trespass here was limited in ‘extent, nature, and severity.”11 The next three factors (the Hall factors of temporal proximity, administration of warnings, and presence of significant intervening events) all pointed toward exclusion. However, the court determined that the police “purpose” in going to the back (to contact defendant “to ask for permission to search the house, not to search for incriminating evidence near the back door”) and the lack of “flagrant” police misconduct (police followed a path to the back door and did not “cross any barriers or use force to reach the door”) led the court to conclude that the constitutional violation did not affect the defendant’s decision to consent.12 Facts in Lorenzo. In State v. Lorenzo, 356 Or 134, __ P3d __ (2014), police received a report early one morning that a man was walking around an apartment complex with a noose around his neck. Police responded and took the man into custody. They tried to contact the man’s roommate (defendant) who lived in the same complex. They received no answer at the apartment’s front door or to calls to his cell phone. An officer finally pushed open the front door, reached into the apartment, knocked on the door to defendant’s bedroom (located just inside the front door) and called out, “Jeff, Beaverton Police. Are you okay?” Defendant awoke, came to his bedroom door, opened it, and saw the officer standing immediately outside the now-open front door. The officer asked for consent to enter and defendant agreed. From the hallway, the officer saw marijuana in defendant’s room, which led to questioning and, ultimately, defendant’s arrest. Reasoning and Holding in Lorenzo. The court reasoned that the “unlawful search was limited in time and severity, which suggests that its illegality was unlikely to have had a significant effect on defendant’s consent.”13 The court also observed that: the purpose of the police conduct was out of concern for defendant’s welfare; the police did not gain any information from the illegal search; and the “restrained interaction between police and defendant and the absence of any threats or intimidation did not present the kind of flagrant circumstances that would likely have affected” defendant’s consent such as to constitute “exploitation of the unlawful conduct.”14 Facts in Musser. In State v. Musser, 356 Or 148, __ P3d __ (2014), an officer stopped defendant and a friend because he mistakenly believed they were trespassing in an area of a shopping center. He asked for identification and defendant handed him a credit card containing her photo. The officer noticed a Costco card under a different name in defendant’s purse and requested to see the card, suspecting possible identity theft. He relayed that name to dispatch, which reported nothing suspicious about the name. The officer also noticed two Crown Royal bags in defendant’s purse, requested and obtained consent to see them, and found evidence of drug possession in one of the bags. Reasoning and Holding in Musser. The court reasoned that “the stop here was a more severe violation of defendant’s rights than the violation in Unger” apparently because the police order “clearly indicated to defendant that she had no choice but to respond to the order, bringing her significantly under the control of the police.”15 The three Hall factors favored evidence exclusion. Using the additional Unger factors, the court reasoned that (1) the “purpose” for the intrusion was a “shot in the dark” check for criminal activity and (2) the officer “continued to detain defendant while inquiring about various other crimes,” which was an example of the state “taking advantage of that misconduct in a way that likely had an effect on defendant’s decision to consent.”16 Accordingly, the court held that under these circumstances, “the police improperly exploited their unlawful stop of defendant to gain her consent to the search.”17
Silver Linings in Unger Although the Hall framework provided a cleaner analysis and Unger provides the prosecution with hope that police illegalities will not necessarily result in suppression of evidence, there are important reminders and a few silver linings in Unger, Lorenzo, and Musser: Incriminating evidence that police directly observe or learn as a result of the illegal search or seizure is suppressed.18 The court rejected the state’s proposition that voluntary consent alone will always remove the taint or attenuate the illegality from the evidence.
No “fishing expeditions” permitted. Under the “purpose” factor, the court appears to indicate that (1) police request for consent based on observations made as a result of the unconstitutional conduct qualifies as exploitation, and (2) consent is tainted when it follows a random stop or seizure “that is nothing more than a fishing expedition for incriminating evidence.”19 Seizures appear to have greater effect on consent. The stop in Musser was a “more severe violation of defendant’s rights that the violation in Unger.”20 The court continued to recognize that an unlawfully stopped person is unlawfully disadvantaged, which can affect consent: “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 in the absence of the illegal police interference.”21 Though the role of the Oregon Supreme Court is to announce new law, the ultimate application of the law resides in the Court of Appeals and the trial courts. The next year or so will be crucial with respect to the interpretation and application of the Supreme Court decisions articulating the new exploitation analysis.
Endnotes 1 State v. Hall, 339 Or 7, 35, 115 P3d 908 (2005), (citing, Brown v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed2d 416 (1975)). 2 Id. at 86-87. 3 Id. at 84. 4 Id. at 84. 5 Id. at 89. 6 Id. at 89. 7 Lorenzo, 356 Or at 144. 8 Id. at 83. 9 Id. at 82. 10 Id. at 89. 11 Id. at 89. 12 Id. at 91-92. 13 Lorenzo, 356 Or at 144. 14 Id. at 145-46. 15 Id. at 156-57. 16 Id. at 159. 17 Id. at 159. 18 Unger, at 64 (citing Hall, at 35). 19 Unger at 91. 20 Musser at 156.
21 Unger, at 73.