State v. Hemenway

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 con-

duct—leading to the exclusion of the evidence obtained—

and when it is not. The state charged defendant with pos-

session of methamphetamine. Before trial, defendant filed

a motion to suppress evidence seized by the police, argu-

ing 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 condi-

tional 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 the

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, carry-

ing 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 mov-

ing 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 defen-

dant’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 res-

idue. 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 parapherna-

lia 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 dep-

uties. Defendant argued that the deputies’ conduct before

his grants of consent and statements constituted an unlaw-

ful stop under Article I, section 9, of the Oregon Constitu-

tion 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 crim-

inal 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 pur-

poses of Article I, section 9, occurred whenever an individ-

ual subjectively “believe[d]” that a law enforcement officer

had restrained that individual’s liberty or freedom of move-

ment 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. Apply-

ing 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 exten-

sion of time to file their respective petitions for review pend-

ing this court’s decision in Ashbaugh. In that case, we mod-

ified the test for whether the police have seized a person

for purposes of Article I, section 9, eliminating the subjec-

tive 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 belief

134 State v. Hemenway

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 consol-

idated the petitions and allowed review.

On review, the state argues that Hall—discussed

further below—was incorrectly decided because a volun-

tary consent search is necessarily “reasonable” under Arti-

cle 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 evi-

dence 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 ille-

gality required suppression of the evidence despite his vol-

untary 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 his-

tory of the exclusionary rule in Oregon and analyzing this

court’s past treatment of consent searches. The exclusionary

rule is constitutionally mandated and serves to vindicate

Cite as 353 Or 129 (2013) 135

a defendant’s personal right to be free from unreasonable

searches and seizures. Id. at 24. The federal exclusionary

rule, by contrast, is premised on deterring police miscon-

duct. Id. at 23. The goal of the exclusionary rule in Oregon is

to “restore a defendant to the same position as if ‘the govern-

ment’s officers had stayed within the law’  by suppressing

”

evidence obtained in violation of the defendant’s rights. Id.

at 24 (quoting State v. Davis, 295 Or 227, 234, 666 P2d 802

(1983)).

The majority noted that illegal police conduct may

negate a defendant’s consent to search and require suppres-

sion of evidence in two ways. First, the consent itself may

be “involuntary” if the illegal police conduct overcame the

defendant’s free will, and the consent instead resulted from

“police coercion.” Id. at 20. Second, evidence gained through

a voluntary consent search still may require suppression if

the defendant’s consent to search “derived from” the prior

illegal police conduct. Id. at 21. The majority rejected the

state’s argument that only the voluntariness inquiry was

necessary, stating that, even when a defendant voluntarily

consents,

“this court’s case law * * * makes clear that Article I, section

9, also requires the consideration of the effect of the unlaw-

ful police conduct upon the defendant’s decision to consent,

even if that conduct did not rise to the level of overcoming

the defendant’s free will.”

Id. at 32. In particular, the majority relied on State v. Kennedy,

290 Or 493, 624 P2d 99 (1981), and State v. Rodriguez, 317

Or 27, 854 P2d 399 (1993), noting that those cases bor-

rowed 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 Hall noted that both cases

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

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 warrant-

less 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 con-

sent was independent of, or only tenuously related to, the

unlawful police conduct. Deciding whether the state has

satisfied that burden requires a fact-specific inquiry into

the totality of the circumstances to determine the nature

of the causal connection between the unlawful police con-

duct and the defendant’s consent. A causal connection

requiring suppression may exist because the police sought

the defendant’s consent solely as the result of knowledge

of inculpatory evidence obtained from unlawful police con-

duct. A causal connection requiring suppression also may

exist because the unlawful police conduct, even if not over-

coming the defendant’s free will, significantly affected the

defendant’s decision to consent. Although determining the

existence of such a causal connection requires examination

of the specific facts at issue in a particular case, we view

several considerations to be relevant to that determination,

including (1) the temporal proximity between the unlawful

police conduct and the defendant’s consent, (2) the existence

of any intervening circumstances, and (3) the presence of

any circumstances—such as, for example, a police officer

informing the defendant of the right to refuse consent—

that mitigated the effect of the unlawful police conduct.”

Id. at 34-35.

Justice Durham filed a separate opinion, joined by

Justice Gillette, concurring in part and dissenting in part.

The dissent agreed that the defendant had been illegally

stopped, but disagreed that that prior illegality should

result in the suppression of the evidence gained through the

Cite as 353 Or 129 (2013) 137

consent search. The dissent asserted that the defendant’s

“voluntary consent to the search demonstrates that the dis-

puted 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, sec-

tion 9; and that it departed from earlier case law. We have

considered—and we reject—the state’s argument that Hall

suffers from 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, sec-

tion 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 princi-

ples. 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 defen-

dant’s consent to the search was voluntary; and (3) assum-

ing 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 evi-

dence 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 evi-

dence in question. In Wong Sun, the United States Supreme

Court described exploitation as “whether, granting estab-

lishment of the primary illegality, the evidence to which

instant objection is made has been come at by exploitation of

that illegality or instead by means sufficiently distinguish-

able to be purged of the primary taint.” 371 US at 488 (inter-

nal 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 determin-

ing whether evidence obtained through voluntary consent

searches should be suppressed. See Kennedy, 290 Or at 501

(“[E]vidence [gained from a consent search during or after

alleged police illegality] is to be suppressed only if it is found

that the consent was gained by exploitation of the illegality

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 deten-

tion by police).

The relationship between the voluntariness of con-

sent and exploitation, of course, is a close one: often, when

the circumstances support the determination that consent

was voluntary, they also will support the conclusion that

140 State v. Hemenway

there was no exploitation of any prior police misconduct,

and the converse is also true. Yet it is important to empha-

size 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 iden-

tical, and (ii) consequently the evidence obtained by the

purported consent should be held admissible only if it is

determined that the consent was both voluntary and not an

exploitation of the prior illegality.”

Wayne R. LaFave, 4 Search and Seizure § 8.2(d), 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 termi-

nate 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 posi-

tion 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 exploi-

tation test articulated in Hall. As noted, Hall announced

Cite as 353 Or 129 (2013) 141

a two-part test for determining whether evidence acquired

from a voluntary consent search must be suppressed because

the consent was derived from an illegal seizure. First, the

defendant must establish a “minimal factual nexus—that

is, at minimum, the existence of a ‘but for’ relationship—

between the evidence sought to be suppressed and prior

unlawful police conduct.” 339 Or at 25. Once the defendant

establishes that causal link, the burden shifts to the state to

prove that the evidence nevertheless is admissible because

“the defendant’s consent was independent of, or only tenu-

ously related to, the unlawful police conduct.” Id. at 34-35.

For the reasons that follow, we disavow the “min-

imal 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 sub-

sequent 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 evi-

dence 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 “min-

imal factual nexus” part of the Hall test because it was

drawn from a case that arose in a significantly different pro-

cedural 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 confus-

ing 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 suppress evidence that

142 State v. Hemenway

had been seized illegally but then later “reseized” pursu-

ant to a warrant. The state asserted that the warrant was

“entirely independent of, and was not obtained by exploita-

tion 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 estab-

lish 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 reg-

ularity [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 mis-

placed. By statute, whenever a defendant challenges evi-

dence seized following a warrantless search, the state bears

the burden of proving “by a preponderance of the evidence

the validity of the search.” ORS 133.693(4); State v. Tucker,

330 Or 85, 87, 997 P2d 182 (2000). When the police 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, exploi-

tation analysis already considers the existence of a “minimal

Cite as 353 Or 129 (2013) 143

factual nexus,” because determining whether the police

exploited their unlawful conduct to gain the disputed evi-

dence 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 evi-

dence 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 appli-

cation of the test has been unclear in our cases since Hall

and has proved confusing to litigants and the courts—we

disavow that part of the Hall analysis.

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 indepen-

dent of, or only tenuously related to, the unlawful police con-

duct.” 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 requir-

ing suppression also may exist because the unlawful police

conduct, even if not overcoming the defendant’s free will,

significantly affected the defendant’s decision to consent.”

Id. Hall identified 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 mitigat-

ing 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 con-

sent granted in close temporal proximity to illegal stop and

state failed to demonstrate intervening or mitigating cir-

cumstances); 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 demon-

strate that, in some situations, a defendant’s voluntary con-

sent 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 attenu-

ated the connection between the prior illegal conduct and

the evidence obtained in the consent search—requires a

court to consider the illegal conduct that comprised the stop,

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 sur-

rounding [the] defendant’s consent” and the defendant vol-

unteered 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

Cite as 353 Or 129 (2013) 145

cut off 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 defen-

dant 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 con-

sent; 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 ille-

gal arrest. The officer did not directly ask the defendant for

consent to search, but he did ask the defendant if he had

any drugs or guns in his apartment. Rodriguez, 317 Or at

41. In response to that question, the defendant said, “No,

go ahead and look.” Id. So, even if the defendant’s consent

in Rodriguez was “volunteered,” that consent was, in fact,

prompted by the officer’s question about drugs and guns.

Rodriguez concluded, nevertheless, that the officer “did not

trade on or otherwise take advantage of the arrest to obtain

defendant’s consent” in light of the factual circumstances,

including the manner in which the defendant had granted

consent. Id.

Properly considered, then, a voluntary consent to

search that is prompted by an officer’s request can be suf-

ficient 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 argu-

ment 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 evi-

dence was obtained in violation of the defendant’s consti-

tutional 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 vol-

untary, 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 con-

duct to obtain the evidence. Evidence may be tainted directly

by the illegal police conduct, if, for example, the police ille-

gally 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 prox-

imity 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 egregious-

ness of the illegal police conduct is relevant to whether the

police exploited that conduct to obtain the defendant’s con-

sent to search. See Brown v. Illinois, 422 US 590, 603-04,

95 S Ct 2254, 45 L Ed 2d 416 (1975) (identifying “the pur-

pose and flagrancy of the official misconduct” as relevant to

exploitation analysis under the Fourth Amendment); see also

Cite as 353 Or 129 (2013) 147

Wolfe, 295 Or at 572 (explaining that the Brown exploita-

tion factors, including “the purpose and flagrancy of the offi-

cial misconduct,” were relevant to determine the effect of

police misconduct on the voluntariness of a defendant’s con-

sent to search). Hall asserted, without discussion, that “the

Brown factor of ‘purpose and flagrancy of the official miscon-

duct’ 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 exclusion-

ary 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 mis-

conduct nonetheless may play a role in exploitation analy-

sis. For example, police misconduct that is intended to gain

a defendant’s consent may well be more likely to substan-

tially affect that defendant’s decision to consent. Likewise,

particularly egregious police misconduct—such as exces-

sive 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 empha-

size 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 unlaw-

ful conduct does not constitute exploitation of that con-

duct. 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 con-

duct was a necessary link in the sequence of events that

led to the consent search and the evidence—is insufficient

to require suppression. Kennedy, 290 Or at 500-01. If the

148 State v. Hemenway

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. How-

ever, 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 rea-

sonableness 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 con-

sent 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 subse-

quent 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 intru-

sive 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 reason-

able 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 tenu-

ously 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 consider-

ation of “the effect of the unlawful police conduct upon the

defendant’s decision to consent.” 339 Or at 32. That determi-

nation “requires examination of the specific facts at issue in

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

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 con-

sent 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 encoun-

ter, 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 con-

tradict its argument in favor of a simpler test. As our appli-

cation 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 consider-

ation 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 chal-

lenge 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 exploita-

tion 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 inter-

vening 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 sepa-

rate 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 defen-

dant’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 addi-

tion to the rifle. Russell asked if defendant was a felon and

requested defendant’s name and date of birth, which defen-

dant 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 defen-

dant and gave him Miranda warnings. Defendant then con-

sented 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 chal-

lenge 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 con-

clusion. 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 where-

abouts of her son. Although the officers parked their cars in

the driveway behind defendant’s truck, there was no indica-

tion that they did so for the purpose of blocking him from leav-

ing. Moreover, the police had observed a rifle in defendant’s

truck when they first arrived, before any stop occurred. Defen-

dant 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 inves-

tigating Taylor’s call to the police. There is no indication that,

when the officers stopped defendant, they did so with the pur-

pose 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 evi-

dence 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 wel-

fare check, the darkness, defendant’s acknowledged posses-

sion 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 unlaw-

ful 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 ille-

gal 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 metham-

phetamine residue. Russell did not threaten or cajole defen-

dant 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 encoun-

ter 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 con-

sents 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 defen-

dant’s voluntary consent to search the house following his

arrest did not violate Article I, section 9, of the Oregon Con-

stitution.

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 reason-

ing 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 inter-

pretation. The majority summarily rejects the state’s argu-

ment. State v. Hemenway, 353 Or 129, 137-38, 295 P3d 617

(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 par-

adigm 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.14But I take Stranahan

to assert that originalism25 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 con-

stitutional compulsory process clause is construed “in the

same way as the [United States] Supreme Court construed

the virtually identical federal counterpart” and without ref-

erence 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 consti-

tution 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 constitu-

tion means no more than what it meant to its framers at the

time of its adoption.

14

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.

25

I use the term somewhat loosely to refer to the mode of constitutional inter-

pretation 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 Consti-

tution 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.36We do not even know with any

certainty that the framers intended that their intentions or

understandings should count in future constitutional inter-

pretation.47But even when the historical record does permit

36

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.

47

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

some inferences and conclusions about the original inten-

tions 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 deter-

minant 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)58—is always relevant. State constitutions, after

all, are commands designed to instruct citizens and gov-

ernment 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.69

A number of constitutional provisions are of rela-

tively 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 provi-

sions. In such cases, it makes much sense to heed carefully

the available evidence of their intended purposes.710

58

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 voters,

not the framers in the constitutional convention, whose intentions or understand-

ings 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[.]”).

69

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.

710

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.811

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 obvi-

ously 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 provi-

sion. 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 schol-

ars about the original understanding of the Fourth Amend-

ment.912There is perhaps slightly less controversy about the

811

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.”)

912

The crux of the debate concerns whether the framers of the Fourth Amend-

ment 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

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 circum-

stances in which the actions occurred.1013

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 analy-

sis that is not historically bound. The requirement that

searches and seizures be “reasonable” seems to me to neces-

sitate constant reassessment in light of changing circum-

stances. 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 inten-

tions 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 inter-

pret 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).

1013

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 orig-

inal 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 defen-

dant. 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 admissi-

ble, because it was not the product of the preceding viola-

tion. 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 fac-

tors severed the connection between the unlawful seizures

and defendants’ consent. Thus, as in Hall, given the tempo-

ral proximity between the illegal detention and each defen-

dant’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 major-

ity 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 defen-

dants in Rodriguez and Kennedy, defendant’s grant of con-

sent 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 interven-

ing 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 vio-

lation 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 dis-

tinguishable? 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 137.114Hall 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 ques-

tion that all citizens have the right to ask: What force does

114

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

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 exclu-

sionary 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 ille-

gal conduct. Id. at 12.

The aim of the Oregon exclusionary rule is to

restore a defendant to the same position as if “the govern-

ment’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 per-

sonal rights. In other words, the right to be free from unrea-

sonable 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 addi-

tional 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 ques-

tion its role in the exploitation analysis.

When the police unconstitutionally stop or detain a

defendant and act with an illegal purpose or engage in egre-

gious misconduct, a court must consider whether the defen-

dant’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 sup-

pression. 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 egre-

gious and may not have affected defendant’s decision to con-

sent 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 defen-

dant’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 with-

out probable cause or reasonable suspicion and, while con-

tinuing 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 viola-

tion 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.