State v. Unger

No. 58 August 28, 2014 59

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

MARK LAWRENCE UNGER,

Respondent on Review.

(CC 09C42443; CA A144192; SC S060888)

En Banc

On review from the Court of Appeals.*

Argued and submitted September 17, 2013.

Rolf Moan, Assistant Attorney General, Salem, argued

the cause for petitioner on review. With him on the briefs

were Ellen F. Rosenblum, Attorney General, and Anna M.

Joyce, Solicitor General.

Jason E. Thompson, Ferder Casebeer French &

Thompson, LP, Salem, argued the cause and filed the brief

for respondent on review.

BALMER, C. J.

The decision of the Court of Appeals is reversed, and

the case is remanded to the Court of Appeals for further

proceedings.

Landau, J., concurred and filed an opinion.

Walters, J., dissented and filed an opinion, in which

Baldwin, J., joined.

Brewer, J., dissented and filed an opinion.

Baldwin, J., dissented and filed an opinion, in which

Walters, J., joined.

______________

*  Appeal from Marion Court Circuit Court, Thomas M. Hart, Judge. 252 Or

App 478, 287 P3d 1196 (2012).

60 State v. Unger

Defendant moved to suppress evidence obtained pursuant to a voluntary con-

sent search, arguing that his consent was the product of a prior unlawful search,

and, therefore, that the evidence was inadmissible under Article I, section 9, of

the Oregon Constitution. The trial court denied defendant’s motion, and a jury

convicted defendant on four of the counts charged. The Court of Appeals reversed

and remanded. Held: (1) The Court disavowed the “minimal factual nexus” part

of the exploitation analysis announced in State v. Hall, 339 Or 7, 115 P3d 908

(2005); (2) instead, when a defendant has established that an illegal stop or an

illegal search occurred and challenges the validity of his or her subsequent con-

sent to a search, the state bears the burden of demonstrating both that the con-

sent was voluntary and that it was not the product of police exploitation of the

illegal stop or search; (3) whether police exploited unlawful conduct to obtain

a defendant’s consent to search depends on the totality of the circumstances,

including the temporal proximity between the unlawful conduct and the consent,

any intervening or mitigating circumstances, the nature, extent, and severity of

the constitutional violation, and the purpose and flagrancy of the misconduct;

and (4) in this case, the state met its burden of showing that, under the totality

of the circumstances, detectives did not exploit their unlawful entry into defen-

dant’s backyard to obtain his consent to enter his house or to obtain his consent

to show the detectives around his house.

The decision of the Court of Appeals is reversed, and the case is remanded to

the Court of Appeals for further proceedings.

Cite as 356 Or 59 (2014) 61

BALMER, C. J.

In this criminal case, we again consider when evi-

dence discovered following a person’s voluntary consent to

search must be suppressed on the theory that the police

exploited a prior illegality to obtain the consent. Last year,

we addressed that issue in State v. Hemenway, 353 Or 129,

295 P3d 617 (2013), and modified part of this court’s exploita-

tion analysis previously described in State v. Hall, 339 Or 7,

34-35, 115 P3d 908 (2005). Shortly after issuing Hemenway,

this court learned that the defendant in that case had died

before the court had issued its opinion. Accordingly, we

vacated our decision as moot. State v. Hemenway, 353 Or

498, 506, 302 P3d 413 (2013). In this case, as in Hemenway,

the state asks this court to revisit the exploitation analysis

in Hall and either overrule it or modify it as the court did in

Hemenway. Defendant, on the other hand, asks this court to

reaffirm Hall.

The state charged defendant with manufacture of

cocaine and endangering the welfare of a minor, among other

things. Before trial, defendant moved to suppress physical

evidence and statements obtained by detectives after they

knocked on the back door of defendant’s house and obtained

defendant’s consent to enter and then to search the house.

Defendant argued both that his consent had not been vol-

untary and that the detectives had exploited their unlawful

conduct to obtain his consent in violation of Article I, sec-

tion 9, of the Oregon Constitution.1 The trial court denied

the motion, and a jury convicted defendant on four of the

counts charged. The Court of Appeals reversed, reasoning

that, under the Hall exploitation analysis, the detectives’

unlawful entry into defendant’s backyard to reach his back

door had “tainted [defendant’s] subsequent consent.” State

v. Unger, 252 Or App 478, 487-88, 287 P3d 1196 (2012). For

the reasons that follow, we reverse the decision of the Court

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 affirma-

tion, and particularly describing the place to be searched, and the person or

thing to be seized.”

62 State v. Unger

of Appeals. In doing so, we modify part of the exploitation

analysis announced in Hall.

I.  FACTS AND PROCEEDINGS BELOW

The Marion County Sheriff’s Office received a com-

plaint about drug activity at defendant’s house, and an

informant had reported that young children were staying

there and had access to drugs and guns. In response, three

detectives from the sheriff’s office and one detective from

the Canby Police Department went to the house around

10:00 a.m. to conduct a “knock-and-talk.” One detective

knocked on the front door, but received no response. Another

detective then knocked on a basement door on the lower level

of the front of the house, but he also received no response.

Despite the lack of responses, several cars were in the drive-

way, and the detectives thought that someone likely was

home.

One detective, Roberts, eventually followed a path

around the lower level of the house, which led up to a wrap-

around porch in back, where there was a sliding glass door

that was partially covered with drapes. Roberts knocked

on the sliding glass door, and, when defendant came to the

door, it appeared that defendant had just woken up. Roberts

introduced himself as “Kevin [Roberts] with the sheriff’s

office,” and he explained that there had been a complaint

about the house. Defendant asked to put on a robe and then

gave the detectives permission to enter the house. At some

point during the initial interaction between defendant and

Roberts, at least two of the other detectives joined Roberts

at the sliding glass door.2

The sliding glass door opened into a bedroom, and

defendant led the detectives through the bedroom, where a

woman was in bed, to the kitchen. In the kitchen, the detec-

tives introduced themselves and again explained why they

were there. The detectives then asked if defendant would

show them around the house, and defendant agreed.

2

In ruling on defendant’s motion to suppress, the trial court stated, “I find

that [defendant] allowed [the detectives] consensual entry into the house and

three out of the four of [the detectives] came through the back door * * *.” The trial

court did not address whether or how the fourth detective had entered the house.

Cite as 356 Or 59 (2014) 63

Defendant took the detectives on a tour of the

house, and throughout that tour, defendant was “coopera-

tive.” When defendant showed the detectives the lower level

of the house, Roberts noticed a torn piece of a bag that was

coated with a white powder and contained some small crys-

tals. Roberts told Detective Cypert what he had found, and

Cypert passed that information along to defendant. Cypert

then read defendant a “consent to search” card, which

included a warning that defendant did not have to consent,

but defendant refused to sign the card without first consult-

ing his attorney. Cypert testified that defendant had given

the detectives “verbal consent to continue to look through

the house,” and defendant called his attorney. Meanwhile,

one of the detectives performed a field test on the torn piece

of bag.

After defendant spoke to his attorney, he told the

detectives that his attorney wanted the detectives to leave

the house. According to Cypert, Cypert told defendant that

“it was ultimately up to [defendant] to make that decision if

he wanted [the detectives] out of the house,” and defendant

said he wanted to speak to his attorney again. After speak-

ing to his attorney a second time, defendant told the detec-

tives that he wanted everybody out of the house. By that

point, however, the bag that Roberts had found had tested

positive for methamphetamine, and the detectives placed

defendant under arrest. The detectives obtained a search

warrant based on the evidence found during their initial

interactions with defendant, and they discovered additional

incriminating evidence when executing the warrant.

Before trial, defendant moved to suppress all evi-

dence and statements obtained as a result of the detectives’

“unlawful entry into the home and subsequent search, sei-

zure, interrogation and arrest.” Defendant argued both that

his consent had not been voluntary and that the detectives

had exploited their unlawful entry into his backyard to

obtain his consent in violation of Article I, section 9, of the

Oregon Constitution.3 The trial court denied the motion,

3

Defendant also cited the Fourth Amendment to the United States

Constitution in his motion to suppress, but he does not make any argument under

the Fourth Amendment before this court.

64 State v. Unger

finding that defendant had “allowed [the detectives] con-

sensual entry into the house” and that “the consent [had

been] freely and voluntarily made.” The trial court did not

expressly address whether the detectives’ position in the

backyard at the sliding glass door had been unlawful, and,

if so, whether the detectives had exploited that illegality to

obtain defendant’s consent. In a subsequent jury trial, defen-

dant was convicted on four of the counts charged. Defendant

appealed the trial court’s denial of his motion to suppress.

The Court of Appeals reversed and remanded. The

court first determined that the detectives had trespassed in

violation of Article I, section 9, when they entered defendant’s

backyard and knocked on his back door. Unger, 252 Or App

at 483. Because, on appeal, defendant did not argue that

his consent had been involuntarily given, the court went on

to apply the exploitation analysis set forth in Hall to deter-

mine “whether the [detectives’] illegal entry into defendant’s

backyard invalidated defendant’s consent to the [detectives’]

entry into and search of his home.”4 Id. at 483-84.

In Hall, this court described a two-step analysis to

determine whether evidence obtained pursuant to volun-

tary consent must nonetheless be suppressed. Under Hall, a

defendant must establish a “minimal factual nexus” between

the evidence that the defendant seeks to suppress and the

prior unlawful police conduct. If the defendant makes that

showing, then the state must show that (1) the police inevi-

tably would have obtained the evidence through lawful pro-

cedures; (2) the police obtained the evidence independently

of the illegal conduct; or, as relevant here, (3) the illegal con-

duct was “independent of, or only tenuously related to” the

disputed evidence. Hall, 339 Or at 25, 35. In determining

whether the illegal police conduct was “independent of, or

only tenuously related to,” the disputed evidence, Hall noted

that “[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.” Id. at 35. The court went on

to state that a causal connection requiring suppression also

4

The Court of Appeals issued its decision in Unger before this court had

issued its decision in Hemenway modifying the Hall analysis.

Cite as 356 Or 59 (2014) 65

may exist if the illegality “significantly affected” the defen-

dant’s decision to consent. Id. Hall identified several con-

siderations relevant to “determining the existence of such a

causal connection”:

“(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.

In this case, the Court of Appeals determined that

defendant had established a minimal factual nexus because

“[t]he trespass gave the [detectives] the opportunity to

obtain defendant’s consent” and “the trespass was ongoing

when the [detectives] obtained defendant’s consent to enter

his house.” Unger, 252 Or App at 486. The court went on

to note that “[t]he state [did] not argue that defendant’s

consent was independent of or only tenuously related to the

[detectives’] trespass” and rejected the state’s argument

that no exploitation had occurred because the detectives had

not sought consent based on anything that they saw during

the trespass.5 Id. at 486-87. Thus, the court concluded that

the detectives’ illegal entry into defendant’s backyard had

tainted his consent, and the court reversed and remanded.

The state petitioned for review. On review, the

state argues that this court should overrule Hall by elim-

inating the exploitation analysis and instead holding that

evidence obtained during a voluntary consent search nec-

essarily is admissible despite prior unlawful police con-

duct. Alternatively, the state argues that this court should

adhere to two modifications to Hall that were announced

in Hemenway: According to the state, Hemenway clarified

that Hall had undervalued the constitutional significance

5

On review, the state disputes the Court of Appeals’ characterization of its

argument before that court. The state notes that it did argue that the consent

was insufficiently related to the illegal conduct to justify suppression because

it argued that, at most, the illegality gave the detectives the opportunity to

request consent. That connection, argued the state, would establish only “but for”

causation, which would not demonstrate that the detectives had exploited their

illegal conduct to obtain defendant’s consent.

66 State v. Unger

of voluntary consent and overvalued the constitutional sig-

nificance of the temporal proximity between the police ille-

gality and the defendant’s consent. See Hemenway, 353 Or

at 144 (“We agree that the exploitation test announced in

Hall does not account sufficiently for the importance of a

defendant’s voluntary consent to search.”); id. at 150 (“[T]he

focus on ‘temporal proximity’ too easily leads to the conclu-

sion that any consent search that occurs when a person is

unlawfully stopped is invalid, when the better-framed ques-

tion is whether police exploited the unlawful stop to obtain

the consent.” (Emphasis in original.)). In this case, the state

argues that Article I, section 9, does not require that the

evidence be suppressed because defendant voluntarily had

consented to the detectives’ entry into and search of his

house. Alternatively, the state argues that suppression is

not required because there is no indication that any illegal-

ity significantly affected defendant’s decision to voluntarily

consent, particularly because the illegality was of short

duration and the detectives’ conduct was not aggressive or

intimidating.

Defendant responds that this court should retain

the exploitation analysis set forth in Hall because voluntary

consent alone is insufficient to overcome police illegality that

preceded a defendant’s decision to consent. Moreover, defen-

dant asserts that this court in Hall tailored the exploita-

tion analysis to the rationale that underlies Oregon’s exclu-

sionary rule: the vindication of an individual’s right to be

free from unreasonable searches and seizures. According

to defendant, accounting for the nature of the detectives’

misconduct—brief and not aggressive or intimidating—in

the exploitation analysis, as the state proposes, would be

inconsistent with that rationale. Here, applying the Hall

analysis, defendant argues that Article I, section 9, requires

that the evidence be suppressed because, although defen-

dant’s consent was voluntary, the detectives exploited their

illegal entry into defendant’s backyard to place themselves

in a position to contact defendant and request his consent.

Defendant also notes that no intervening or other circum-

stances mitigated the effect of the unlawful police conduct.

Thus, defendant argues, this court should affirm the Court

of Appeals.

Cite as 356 Or 59 (2014) 67

II. THE HALL EXPLOITATION ANALYSIS

We begin with a summary of the relevant parts of

Hall. In that case, the defendant voluntarily consented to a

search after being stopped by police, and the police discov-

ered drugs. The defendant moved to suppress, arguing that

the stop had been illegal and that that illegality required

suppression of the evidence despite his voluntary consent to

the search. The trial court denied the motion, but the Court of

Appeals reversed and ordered the evidence suppressed. 339

Or at 10-12. The state petitioned for review, arguing, among

other things, that the defendant’s voluntary consent had sev-

ered 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, a majority of

this court first examined the nature of the police interaction

with the defendant, concluding that the officer unlawfully

had stopped the defendant in violation of 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 had to be sup-

pressed 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

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

68 State v. Unger

“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.

Rodriguez, 317 Or 27, 854 P2d 399 (1993), and State v.

Kennedy, 290 Or 493, 624 P2d 99 (1981), noting that those

cases had borrowed from the exploitation analysis that the

United States Supreme Court had 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 sup-

pression of evidence obtained through voluntary consent

searches.6 Although neither Rodriguez nor Kennedy required

suppression on the facts of those cases, the majority in Hall

noted that both cases had analyzed the issue as whether

the defendant’s voluntary consent “derived from” the prior

illegal seizures. 339 Or at 30-32. The majority determined

that “consent is insufficient to establish the admissibility

of evidence from a warrantless search if the state cannot

prove that the consent was independent of, or only tenuously

related to, any preceding violation of the defendant’s rights

under Article I, section 9.” Id. at 27 (citing Rodriguez, 317

Or at 41-42).

The majority in Hall summarized its conclusions as

follows:

“After a defendant shows a minimal factual nexus between

unlawful police conduct and the defendant’s consent, then

6

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 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 endorsement of the Wong Sun exploitation analysis.

Hall, 339 Or at 26-30.

Cite as 356 Or 59 (2014) 69

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

consent search. The dissent asserted that the defendant’s

“voluntary consent to the search demonstrate[d] that the

disputed evidence came to light as the result of a reason-

able, not unreasonable, search.” Id. at 39 (Durham, J., con-

curring in part and dissenting in part). The dissent took

issue with the majority’s reliance on Rodriguez, 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

70 State v. Unger

evidence was gained as a result of that consent and not by

way of the prior illegality. Id. at 51.

III.  CLARIFICATION AND MODIFICATION OF HALL

As it did in Hemenway, the state argues that we

should overrule our 2005 decision in Hall and instead hold

that evidence found during a voluntary consent search nec-

essarily is admissible under Article I, section 9, despite

any prior police illegality. “[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 bur-

den of demonstrating that we should reconsider and reject

the rule announced in Hall. Similarly to the state’s argu-

ments in Hemenway, the state argues, among other things,

that Hall failed to apply this court’s “usual paradigm” for

analyzing constitutional provisions; that the decision failed

to construe the text or discuss the history 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 the deficiencies that the state asserts. We also

note that, in seeking to overrule Hall, the state relies in sub-

stantial 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. As it did in Hemenway,

the state argues that internal contradictions mar both steps

of Hall’s exploitation test and make the test difficult in appli-

cation and uncertain 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 defen-

dant 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

Cite as 356 Or 59 (2014) 71

must be suppressed involves three overlapping issues:

(1) whether the initial stop or search was lawful; (2) whether

the defendant’s consent to the subsequent search was volun-

tary; and (3) assuming that the initial stop or search was

unlawful and the consent to the subsequent search was vol-

untary, whether the police exploited the illegality to obtain

the disputed evidence.

The first issue is the lawfulness of the police-citizen

encounter. If the defendant argues that the initial encounter

was an unlawful seizure, then the court must examine the

nature of that encounter. See Hall, 339 Or at 19 (examining

nature of encounter between police officer and the defendant

before engaging in exploitation analysis). There is nothing

constitutionally suspect under Article I, section 9, about

police engaging a citizen in conversation and then request-

ing that citizen’s consent to search. State v. Ashbaugh,

349 Or 297, 308-09, 317, 244 P3d 360 (2010). In contrast

to “mere conversation,” which does not implicate Article I,

section 9, an officer “stops” an individual—raising potential

constitutional issues—when the officer “intentionally and

significantly restricts, interferes with, or otherwise deprives

an individual of that individual’s liberty or freedom of move-

ment.” Id. at 308, 316; see also State v. Backstrand, 354 Or

392, 399-402, 412-13, 313 P3d 1084 (2013) (outlining prin-

ciples that guide analysis of what constitutes a seizure for

purposes of Article I, section 9). Article I, section 9, requires

the police, before stopping an individual, to have reasonable

suspicion that the individual is involved in criminal activity.

In the absence of reasonable suspicion (or some other per-

missible concern, such as officer safety), the individual has

the right to be free from police interference and may termi-

nate an encounter with police at will. See Ashbaugh, 349 Or

at 308-09.

Alternatively, the initial encounter may take the

form of a search. A search occurs when “the government

invades a protected privacy interest,” State v. Meredith, 337

Or 299, 303, 96 P3d 342 (2004), and a protected privacy

interest may be tied to a particular space. See State v. Smith,

327 Or 366, 373, 963 P2d 642 (1998) (“[T]he privacy inter-

ests that are protected by Article I, section 9, commonly are

circumscribed by the space in which they exist and, more

72 State v. Unger

particularly, by the barriers to public entry (physical and

sensory) that define that private space.”). A search is “per se

unreasonable,” in violation of Article I, section 9, in the

absence of a warrant or an exception to the warrant require-

ment. State v. Baker, 350 Or 641, 647, 260 P3d 476 (2011).

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 an

illegal stop or an illegal search, the state must prove that the

defendant’s consent was the product of his or her own free

will, rather than the result of coercion. State v. Wolfe, 295 Or

567, 572, 669 P2d 320 (1983); see also State v. Stevens, 311

Or 119, 136, 806 P2d 92 (1991) (consent to search voluntary

when no evidence that “the police intimidated or coerced

defendant in any way”); Kennedy, 290 Or at 504, 506 (con-

sent 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 exploita-

tion of that illegality or instead by means sufficiently dis-

tinguishable to be purged of the primary taint.” 371 US

at 488 (internal quotation marks 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

Cite as 356 Or 59 (2014) 73

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 used 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, 501, 507-08, 103 S Ct 1319, 75

L Ed 2d 229 (1983) (voluntary consent to search tainted by

illegal detention by police).

The relationship between the voluntariness of 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

there was no exploitation of any prior police misconduct, and

the converse also is true. Yet it is important to emphasize

that the tests are not identical and that they address sepa-

rate 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), 101 (5th ed

2012) (emphasis in original; footnote omitted).

We agree. Applying both the test for voluntariness

of consent and the test for exploitation is necessary to vindi-

cate a defendant’s right to be free from unreasonable search

and seizure. When, for example, the police stop an individ-

ual without reasonable suspicion, the individual’s liberty is

restrained in violation of Article I, section 9. Because the

person stopped is unable to terminate the interaction with

police, he or she is subject to police authority in excess of con-

stitutional 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 interfer-

ence. Similarly, when the police invade a person’s protected

privacy interest without a warrant (or an exception to the

74 State v. Unger

warrant requirement), the person is subject to governmen-

tal scrutiny in excess of what the constitution permits.

Exploitation analysis recognizes that police conduct that

constitutes an illegal stop or an illegal search 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 or some other aspect of that 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 to vindicate an individual’s rights.

See State v. Sargent, 323 Or 455, 462-63, 918 P2d 819 (1996)

(suppression of evidence required only when the evidence is

a product of 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, we turn to the exploitation

test articulated in Hall. As noted, Hall announced 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 defen-

dant 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 defen-

dant’s consent was independent of, or only tenuously related

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

A.  “Minimal Factual Nexus” Test

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

mal factual nexus” part of the Hall test. That test was drawn

from a case that arose in a significantly different procedural

context from Hall, 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. Instead, we hold that, when a

Cite as 356 Or 59 (2014) 75

defendant has established that an illegal stop or an illegal

search occurred and challenges the validity of his or her

subsequent consent to a search, the state bears the burden

of demonstrating that (1) the consent was voluntary; and (2)

the voluntary consent was not the product of police exploita-

tion of the illegal stop or search.

Hall adopted the “minimal factual nexus” compo-

nent of its test from State v. Johnson, 335 Or 511, 73 P3d 282

(2003). In that case, the defendant sought to suppress evi-

dence that had been seized illegally but then later “reseized”

pursuant to a warrant. The state asserted that the war-

rant was “entirely independent of, and was not obtained by

exploitation of, the previous illegality.” Id. at 519. Ordinarily,

a search performed under authority of a warrant is subject

to a presumption of regularity, and the party challenging

the evidence bears the burden to prove the unlawfulness of

the search or seizure. Id. at 520-21. Before addressing the

state’s exploitation argument, the court addressed which

party bore the burden with regard to proving exploitation or

its absence. Because of the presumption of regularity when

the police act under authority of a warrant, the court con-

cluded 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. Once a defendant demonstrates that nexus, the

court in Johnson wrote, “the presumption of regularity [of

the warrant] is undermined and the burden of proof fairly

may be shifted to the government to show that the evidence

is not tainted by the misconduct.” Id. at 521.

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 perform

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.

76 State v. Unger

Moreover, under the Hall test, parties were

required to first focus on whether or not a “minimal factual

nexus” existed before examining the more central issues of

(1) whether the police had acted unlawfully in making the

initial stop or search; and (2) whether the later consent to

search and subsequently discovered evidence were obtained

through exploitation of the unlawful police conduct. However,

exploitation analysis already considers the existence of a

“minimal factual nexus,” because determining whether the

police exploited their unlawful conduct to gain the disputed

evidence necessarily requires an examination of the causal

connection between the police conduct and the defendant’s

consent. Accordingly, the “minimal factual nexus” test is

not analytically significant in determining whether the con-

sent to search was the product of the illegal police conduct,

such that evidence obtained pursuant to that search must

be suppressed.

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.

B.  Exploitation Test

We now turn to the remaining—and more central—

part of the Hall exploitation test. That test requires the state

to prove “that the defendant’s consent was independent of,

or only tenuously related to, the unlawful police conduct.”

339 Or at 35. Hall posited two scenarios that may 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 several considerations relevant to deter-

mining whether the “causal connection” between the unlawful

Cite as 356 Or 59 (2014) 77

police conduct and the defendant’s decision to consent is suf-

ficiently strong that the police can be said to have “exploited”

their unlawful conduct to gain the consent, thus requiring

suppression of the evidence obtained:

“(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.

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 [the] defendant’s consent, and the absence of any inter-

vening circumstances or other circumstances mitigating the

effect of that unlawful police conduct.” Id. at 36. This court’s

cases following Hall have reached similar results. See, e.g.,

State v. Ayles, 348 Or 622, 636-39, 237 P3d 805 (2010) (evi-

dence suppressed under Hall when statements were made in

response to officer questions in close temporal proximity to

police illegality and Miranda warnings alone were not suf-

ficient to “ensure that the unlawful police conduct did not

affect, or had only a tenuous connection to, [the] defendant’s

responses”); State v. Rodgers/Kirkeby, 347 Or 610, 630,

227 P3d 695 (2010) (evidence suppressed under Hall when

consent granted in close temporal proximity to illegal stop

and state failed to demonstrate intervening or mitigating

circumstances).

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 unlaw-

ful conduct did not affect or had only a tenuous connection

78 State v. Unger

to the evidence produced. 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, in the

circumstances of a particular case, 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 or search, 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 cir-

cumstances surrounding [the] defendant’s consent” and the

defendant had volunteered consent without prompting from

the officers. 290 Or at 504, 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

indicated that there was, at most, a tenuous causal connec-

tion between the consent and the prior illegal police conduct.

See Hall, 339 Or at 34. Hall, however, suggested that, had

the police asked for (and obtained) the defendant’s consent in

Rodriguez—rather than the defendant having volunteered

to be searched—suppression would have been required. Id.

By asserting that an unprompted consent is an intervening

circumstance sufficient to mitigate the causal impact of the

prior illegality, while positing that a requested consent on

the same facts would demonstrate the necessary causal con-

nection, Hall could be read as effectively having 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 no interven-

ing or mitigating circumstances exist.

We agree with the state that such a per se rule is

untenable. A consent to search that is unprompted or uni-

lateral is relevant evidence of the voluntariness of the con-

sent; as recognized in Kennedy and Rodriguez, unprompted

or volunteered 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

Cite as 356 Or 59 (2014) 79

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 given con-

sent. Id.

Properly considered, then, a voluntary consent

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

sufficient to demonstrate that the consent is unrelated or

only tenuously related to the prior illegal police conduct.

Whether the voluntary consent is sufficient—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 an unlawful

stop or search always breaks the causal chain and makes

the evidence admissible, as we likewise reject defendant’s

argument that such consent, standing alone, will rarely,

if ever, break the causal chain. Voluntary consent, while

important, is not dispositive and does not relieve courts of

undertaking the fact-specific exploitation analysis.

We also conclude that Hall erred in focusing exclu-

sively on “temporal proximity” and the presence of mitigat-

ing or intervening circumstances in determining whether

the police exploited unlawful conduct to obtain consent to

search.7 The court in Hall correctly stated that determining

7

The court in Hall correctly recognized that evidence obtained following

unlawful police conduct also will be admissible if the state can prove that the

evidence “inevitably” would have been discovered through lawful procedures or

that the police obtained the disputed evidence “independently” of the violation of

the defendant’s rights. 339 Or at 25. However, those considerations are not part

of the more focused inquiry as to whether the causal connection between the

unlawful conduct and the defendant’s consent requires suppression, and neither

in Hall nor in this case did the state argue “inevitable discovery” or “independent

source” as grounds of admissibility of the disputed evidence.

80 State v. Unger

whether the defendant’s voluntary consent derived from

unlawful police conduct involved a “fact-specific inquiry into

the totality of the circumstances to determine the nature of

the causal connection.” 339 Or at 35. But the only “consider-

ations” that the court mentioned as relevant to that inquiry

were the temporal proximity between the illegal police con-

duct and the voluntary consent; the existence of interven-

ing circumstances; and the presence of circumstances that

might mitigate the effect of the police misconduct, such as

Miranda warnings or the police advising the defendant of

his right to refuse consent. Id. at 35, 35 n 21. Subsequent

cases have understandably focused on the considerations

highlighted in Hall. Those considerations are appropriate,

of course; however, in our view, determining based on the

totality of the circumstances whether the police exploited the

prior unlawful conduct to obtain consent often will involve

additional considerations, as this case illustrates.

As discussed, our task is to determine whether

police “exploited” or “took advantage of” or “traded on” their

unlawful conduct to obtain consent, or—examined from

the perspective of the consent—whether the consent was

“tainted” because it was “derived from” or was a “product

of” the unlawful conduct.8 In making that determination, it

8

This court and the federal courts have used a variety of verbal formulations

in an effort to capture one general concept: that some voluntary and otherwise

valid consents to search are nevertheless influenced by prior unlawful police con-

duct to the extent that evidence obtained from the search should be suppressed

under the applicable constitutional standard. See Hall, 339 Or at 22 (examining

whether evidence must be excluded, despite voluntary consent, because that con-

sent “derived from—or, stated differently, was obtained by ‘exploitation’ of—the

unlawful stop” (emphases added)); Wong Sun, 371 US at 488 (explaining that

courts must examine whether evidence “has been come at by exploitation” of a

prior illegality (internal quotation marks omitted; emphasis added)); Brown v.

Illinois, 422 US 590, 600, 604, 95 S Ct 2254, 45 L Ed 2d 416 (1975) (applying

Wong Sun to determine whether the defendant’s statements were obtained by

“exploitation of the illegality of his arrest”); Rodriguez, 317 Or at 41 (concluding

that INS agent “did not trade on or otherwise take advantage of ” unlawful arrest

to obtain the defendant’s consent to search (emphasis added)); Ashbaugh, 349 Or

at 307, 318 (examining whether consent search of the defendant’s purse “in some

sense derived from” prior unlawful police stop and concluding that consent was

not “the product of” an unlawful stop (emphasis in original)); Rodgers/Kirkeby,

347 Or at 628-30 (explaining that evidence may be excluded where “a defendant’s

[voluntary] consent was derived from, or was the product of, the prior police ille-

gality” and concluding that consent given during unlawful extension of traffic

stop was the product of that unlawful seizure (emphases added)); Royer, 460 US

at 501 (noting that prior cases have held that “statements given during a period

Cite as 356 Or 59 (2014) 81

seems obvious that, in many cases, the nature of the illegal

conduct will be a relevant consideration. Unlawful police

conduct can take many forms, from a daytime trespass by

following a path around the lower level of the defendant’s

house from a front door to a back door, as in this case, to

an unlawful arrest followed by lengthy interrogation at

a police station. If the conduct is intrusive, extended, or

severe, it is more likely to influence improperly a defen-

dant’s consent to search. In contrast, where the nature and

severity of the violation is limited, so too may be the extent

to which the defendant’s consent is “tainted.” And where

the taint is limited, the degree of attenuation necessary to

purge the taint is correspondingly reduced. See Ayles, 348

Or at 654 (Kistler, J., dissenting). Thus, voluntary consent

to a search in those circumstances is more likely to be suffi-

cient to demonstrate that the consent was “independent of,

or only tenuously related to, the unlawful police conduct.”

Hall, 339 Or at 35.

An overlapping but distinct concern relevant to

whether a defendant’s consent resulted from exploitation

of police misconduct is the “purpose and flagrancy” of the

misconduct. The “purpose and flagrancy” inquiry comes

from Brown v. Illinois, 422 US 590, 603-04, 95 S Ct 2254,

45 L Ed 2d 416 (1975), where the United States Supreme

Court described the “purpose and flagrancy of the official

misconduct” as relevant to exploitation analysis under the

Fourth Amendment. In Wolfe, this court explained that

the Brown exploitation factors, including “purpose and fla-

grancy,” were relevant in determining the effect of police

misconduct on the voluntariness of a defendant’s consent to

search. 295 Or at 572. In Hall, however, the court asserted

that “purpose and flagrancy” “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 the court in Hall

reiterated the “rights-based” rationale of Article I, section

9, and contrasted it with the “deterrence” rationale of the

Fourth Amendment, see id. at 22-25, it did not explain why

of illegal detention are inadmissible even though voluntarily given if they are the

product of the illegal detention and not the result of an independent act of free

will” (emphasis added)).

82 State v. Unger

“purpose and flagrancy” is not compatible with the “rights-

based” approach. On reflection, we think that it is.9

Particularly flagrant conduct—such as excessive

use of force in unlawfully arresting a defendant, the unlaw-

ful forcible entry into a home by multiple officers wielding

automatic weapons, or unlawful and lengthy in-custody

interrogation—is more likely to affect the defendant’s deci-

sion to consent than more restrained behavior. See Brown,

422 US at 593-94, 604-05 (where officers broke into the

defendant’s apartment, searched it, and arrested him at

gunpoint without probable cause, the defendant’s subse-

quent statements were tainted by flagrant police miscon-

duct); State v. Olson, 287 Or 157, 159-60, 166, 598 P2d 670

(1979) (where officers entered the defendant’s home at night

without consent and arrested him, the defendant’s subse-

quent statements were tainted by police misconduct).10 By

seeking consent after engaging in such flagrant violation

of the defendant’s constitutional rights, the police improp-

erly exploit their misconduct, because they have placed the

defendant “in a worse position than if the governmental offi-

cers had acted within the bounds of the law.” See Hall, 339

Or at 25. Although every police illegality places an individ-

ual in a worse position than if no illegality had occurred, it

is a matter of degree. Officers who engage in particularly

egregious or intimidating misconduct place the individual

in a more disadvantaged position, making it easier and

more likely for the officer to exploit that illegality to obtain

consent. Excluding the subsequently discovered evidence

vindicates the defendant’s rights and thus is consistent with

the rights-based rationale underlying Article I, section 9.

Similarly, the “purpose” of the police misconduct

may be a relevant consideration in the exploitation analysis

9

Justice Landau’s concurring opinion argues that this court took a wrong

turn in rejecting deterrence as one rationale for excluding evidence because

it was obtained in violation of Article I, section 9, and relying exclusively on a

“rights-based” rationale. 356 Or at 94-103 (Landau, J., concurring). We need not

address that issue, interesting as it is, because we reach the same result based on

this court’s existing rights-based approach.

10

Conversely, the absence of flagrant or egregious police conduct, even in a

situation where the defendant’s Article I, section 9, rights have been violated, can

be relevant considerations in determining whether police exploited their miscon-

duct to obtain consent.

Cite as 356 Or 59 (2014) 83

in some circumstances. Our cases have rejected constitu-

tional principles that would involve the court in unstruc-

tured analysis of a person’s subjective understandings,

whether that person is a police officer or a defendant. See

Ashbaugh, 349 Or at 309-16 (reconsidering and rejecting

as component of test for “seizure” under Article I, section 9,

whether person had “subjective belief” that they had been

seized); Hall, 339 Or at 28 n 16 (rejecting notion that “a police

officer’s state of mind is relevant under Article I, section 9”).

Instead, this court has focused on objective circumstances,

behavior, and verbal comments. See Ashbaugh, 349 Or at

316 (focus is on “objective” circumstances of police conduct

and what a reasonable person would believe based on the

circumstances). However, in some cases, those objective cir-

cumstances may indicate the police purpose in engaging in

conduct later determined to be unlawful. So, too, may state-

ments that police make at the time or in a later court pro-

ceeding. Whether expressed through conduct or comments,

the “purpose” of what is later determined to be unlawful

police conduct could well be relevant both to understanding

the nature of the misconduct and, ultimately, to deciding

whether the police exploited that misconduct to obtain con-

sent to search. Again, while Hall dismissed the relevance of

police “purpose” in a footnote, in our view, that purpose may

be an appropriate consideration in the rights-based analysis

under Article I, section 9, at least in some circumstances.

Our point here is that, while Hall correctly stated

that the exploitation inquiry involved consideration of the

“totality of the circumstances,” that decision’s focus on tem-

poral proximity and intervening and mitigating circum-

stances was too narrow, because, at least by implication, it

excluded other relevant considerations. The nature, extent,

and severity of police misconduct—and, relatedly, the pur-

pose and flagrancy of that misconduct—can vary dramat-

ically, and ignoring the very different effects that police

conduct may have on an individual’s consent to a search is

neither reasonable nor constitutionally required.

The dissenting opinions make some thoughtful,

although ultimately unpersuasive, arguments concern-

ing our exploitation analysis. Most of those arguments are

addressed directly or indirectly elsewhere in this opinion, but

84 State v. Unger

several deserve brief additional responses. Justice Baldwin

and Justice Walters suggest that we have modified the Hall

analysis to remove the presumption that a consent search

following unlawful police conduct is “tainted” or is invalid.

On the contrary, the first part of this opinion in fact elim-

inates the requirement in Hall that the defendant show a

“minimal factual nexus” between unlawful police conduct

and the defendant’s consent before any burden shifts to the

state. See 356 Or at 74 (discussing Hall, 339 Or at 34-35).

Instead, we view that requirement, which placed an initial

burden on the defendant, as being encompassed in the gen-

eral exploitation analysis. As to that analysis, we adhere to

Hall in requiring the state to prove that the consent was

independent of, or only tenuously related to, the illegal police

conduct. 356 Or at 74-75; Hall, 339 Or at 35.

Justice Walters and Justice Brewer raise concerns

about considering the degree or severity of different con-

stitutional violations as part of the exploitation test. We

acknowledge the difficult weighing that may be involved in

some circumstances. Yet those challenges cannot be avoided

when, as here, the relevant constitutional text prohibits only

“unreasonable” searches and seizures; our cases, including

Hall, admonish us to make that determination based on

the “totality of the circumstances”; and the considerations

that we have identified as relevant to that determination

cut both ways. In our view, to treat a police trespass onto a

defendant’s property to reach and knock on a back door no

differently in terms of its causal effect on defendant’s vol-

untary consent than if the police had broken down all the

doors simultaneously, entered the home with guns drawn,

and arrested defendant—simply because both scenarios

involve violations of Article I, section 9—is to ignore reality.

A per se rule—either the rule advocated by the state, that

voluntary consent (almost always) trumps prior unlawful

police conduct, or its opposite, that unlawful police conduct

(almost always) trumps later voluntary consent—fails to

account for the myriad variety of circumstances in police-

citizen interactions. Moreover, it is not even clear that a

per se rule would have the benefit of predictability, as the

threshold issue of whether police acted unlawfully can, in

some circumstances, involve close factual questions and is,

Cite as 356 Or 59 (2014) 85

of course, subject to the general “reasonableness” test of

Article I, section 9.

Relatedly, Justice Brewer and Justice Baldwin

express concern that the principles that we apply here would

countenance constitutional violations as long as the police

are polite or courteous. We do recognize, in contrast to Hall,

that the purpose and flagrancy of any prior illegality may

be relevant to the determination of whether later voluntary

consent was the product of the police misconduct. However,

we do not hold that polite police misconduct necessarily

means that the subsequent consent is valid. Indeed, in State

v. Musser, 356 Or 148, ___ P3d___ (2014), also decided today,

after reviewing all the facts related to the unlawful police

conduct and the defendant’s subsequent consent to a search,

we concluded that the officer had exploited his unlawful con-

duct to obtain the consent. We therefore suppressed the evi-

dence in that case, notwithstanding the fact that the police

conduct was restrained and courteous.

C.  Summary

In an effort to clarify this complicated area of law,

we again review the basic principles at issue. As noted,

the overarching inquiry is whether the evidence that the

state seeks to introduce must be suppressed because that

evidence was obtained in violation of the defendant’s con-

stitutional rights. In the context of Hall, where an illegal

stop preceded a consent to search, or in the context of this

case, where unlawful entry onto defendant’s property pre-

ceded the consent to search, that inquiry has two prongs.

First, the court must assess whether the consent was vol-

untary. If the consent to search was not voluntary, then the

evidence must be suppressed, because only a voluntary con-

sent to search provides an exception in this context to the

warrant requirement of Article I, section 9. See, e.g., State

v. Guggenmos, 350 Or 243, 261-62, 262 n 8, 253 P3d 1042

(2011) (finding no reason to determine whether exploita-

tion analysis would require suppression of evidence because

determination that consent was not voluntary required sup-

pression); Williamson, 307 Or at 626-27 (Carson, J., concur-

ring) (“The validity of [the defendant’s] consent determines

the outcome of this case. If the consent were involuntary

86 State v. Unger

and, thus, invalid, the subsequent search and resulting sei-

zure, arrest, and conviction likewise were invalid.”).

Second, even if the consent is voluntary, the court

must address whether the police exploited their prior illegal

conduct to obtain the evidence. Exploitation may be found if,

for example, the police illegally stop a vehicle, allowing them

to view contraband that otherwise would not have been visi-

ble, and then request the driver’s consent to search the vehi-

cle as a result of what they saw. In that example, there may

be a direct causal connection between the prior illegal stop

and the consent because the request for consent itself (and

the evidence gathered) resulted from police knowledge of the

presence of that evidence, which they had only because they

had observed it during the illegal stop. See Hall, 339 Or at

35 (“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.”). We articulated those prin-

ciples in Hall and other cases, and we adhere to them.

Hall also held that evidence may be subject to sup-

pression if the police obtained the consent to search through

less direct exploitation of their illegal conduct. Id. We adhere

to that principle as well. As discussed previously, Hall

stated that the exploitation analysis required consideration

of the totality of the circumstances to determine whether

the state had carried its burden of proving that the con-

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

unlawful police conduct. However, the only considerations

that that case mentioned in analyzing whether the police

had exploited their illegal conduct to obtain consent were

the temporal proximity between the illegal police conduct

and the consent and the presence of any intervening or mit-

igating circumstances. Id. at 35, 35 n 21. In this opinion, we

have identified additional considerations that are relevant

to that inquiry, including an assessment of the actual police

misconduct. We have explained that the nature, extent, and

severity of the constitutional violation are relevant, as are

the purpose and flagrancy of the misconduct. Depending

on the circumstances of the particular case, other consider-

ations may be relevant to the exploitation inquiry. Professor

LaFave, summarizing state and federal cases, writes:

Cite as 356 Or 59 (2014) 87

“In determining whether the consent was, as the Court put

it in Brown, ‘obtained by exploitation of an illegal arrest,’

account must be taken of the proximity of the consent to

the arrest, whether the seizure brought about police obser-

vation of the particular object which they sought consent to

search, whether the illegal seizure was ‘flagrant police mis-

conduct,’ whether the consent was volunteered rather than

requested by the detaining officers, whether the arrestee

was made fully aware of the fact that he could decline to

consent and thus prevent an immediate search of the car or

residence, whether there has been a significant intervening

event such as presentation of the arrestee to a judicial offi-

cer, and whether the police purpose underlying the illegal-

ity was to obtain the consent.”

LaFave, 4 Search and Seizure § 8.2(d) at 109-12 (footnotes

omitted).

Article I, section 9, prohibits “unreasonable” searches

and seizures, and exploitation analysis is necessarily

nuanced. As the preceding discussion demonstrates, the test

for whether a consent search conducted following an illegal

search or stop comports with Article I, section 9, cannot be

reduced to a simple formula.

IV. APPLICATION

In applying the principles discussed above to the

present case, we begin by clarifying what is not at issue—the

unlawfulness of the detectives’ conduct and the voluntari-

ness of defendant’s consent. As to the first issue, the Court of

Appeals determined that “the [detectives] trespassed when

they entered defendant’s backyard and knocked on his back

door, and the trespass violated defendant’s Article I, section

9, rights.” Unger, 252 Or App at 483. On review, the state

accepts that the detectives were unlawfully in defendant’s

backyard when they obtained his consent to enter his house.

As to the second issue, the trial court determined that defen-

dant’s consent was “freely and voluntarily made,” and defen-

dant does not challenge that ruling on review. Thus, the

only issue on review is whether the detectives exploited the

unlawful entry into defendant’s backyard to obtain his con-

sent. And that issue, in this case, is a narrow one, because

there is no indication that the detectives learned of incul-

patory evidence as a result of their unlawful conduct and

88 State v. Unger

therefore sought consent to search. Compare Hall, 339 Or at

35. Rather, the unlawful conduct simply put the detectives

in a place where they could initiate contact with the occu-

pants of the house. Thus, the question reduces to whether

the police exploited the unlawful conduct to obtain defen-

dant’s consent to search.

To determine whether the state has met its burden

of showing that defendant’s consent was not the product of

the unlawful police conduct, we consider the totality of the

circumstances, including the temporal proximity between

that misconduct and the consent, and the existence of any

intervening or mitigating circumstances. We also consider

the nature, purpose, and flagrancy of the misconduct.

Because the analysis is a fact-intensive inquiry, we return

to the facts.

In response to a complaint about drug activity at

defendant’s house, as well as information from an informant

about the presence of children and concerns that the drugs

and guns were accessible to the children, four detectives

went to the house around 10:00 a.m. to conduct a “knock-

and-talk.” The detectives had been told that the children

“had actually gotten their hands on the cocaine” and “that

there were so many guns in the residence that the children

at some point had to walk over the guns.” Detectives knocked

at two separate doors at the front of the house and received

no response. One detective, Roberts, followed a path around

the lower level of the house to a wraparound porch at the

back of the house and knocked on a sliding glass door. When

defendant came to the door, Roberts introduced himself as

“Kevin with the sheriff’s office” and advised defendant of

the drug complaint. The detectives obtained defendant’s vol-

untary consent to enter the house. At least two of the other

detectives joined Roberts at the sliding glass door sometime

during the initial interaction.

Defendant led the detectives through what turned

out to be a bedroom and into the kitchen where the detec-

tives introduced themselves, and Roberts explained to defen-

dant that when a drug complaint is received and “when kids

are involved,” the detectives “talk to the homeowner and ask

for permission and if [the homeowner] would show [them]

Cite as 356 Or 59 (2014) 89

around the house.” Defendant was “cooperative” and agreed

to show the detectives around the house. It was during that

tour of the house that Roberts discovered the sandwich bag

with methamphetamine residue that provided the basis for

defendant’s arrest and the subsequent search warrant.11

In framing the exploitation inquiry, we first note

that the detectives were on defendant’s property without his

permission, which constituted trespass. The state concedes

that, at least after the detectives left the front door and fol-

lowed a path to the sliding glass door in back, that tres-

pass was a “search” of defendant’s property without probable

cause, in violation of Article I, section 9. As we discuss in

greater detail below in connection with the purpose and fla-

grancy of the detectives’ conduct, however, that unlawful con-

duct simply brought the detectives, during daylight hours, to

a door of the house, which defendant opened. A conversation

ensued, and defendant voluntarily consented to the detec-

tives entering the house. The detectives’ conduct did not rise

to the level of an unlawful arrest or stop. The detectives did

not unlawfully enter defendant’s home or ignore any gates

or “no trespassing” signs. Within the universe of possible

unlawful police activity, the trespass here was limited in

“extent, nature, and severity.” Ayles, 348 Or at 654 (Kistler,

J., dissenting) (degree of attenuation required to purge taint

of unlawful police conduct varies with “extent, nature, and

severity of any illegality”); see also U.S. v. Perea-Rey, 680

F3d 1179, 1188 (9th Cir 2012) (for Fourth Amendment pur-

poses, the “constitutionality of * * * entries into the curtilage

hinges on whether the officer’s actions are consistent with

an attempt to initiate consensual contact with the occu-

pants of the home. Officers conducting a knock and talk * * *

need not approach only a specific door if there are multiple

doors accessible to the public.”). Nothing in the record sug-

gests that the interaction between the detectives and defen-

dant, including his voluntary consent to the search, was any

11

It is not clear from the motion to suppress or from the briefing whether

defendant argues that the detectives exploited their unlawful entry into defen-

dant’s backyard to obtain (1) defendant’s consent to enter the house; (2) defen-

dant’s consent to take the detectives on a tour of the house; or (3) both. For pur-

poses of this opinion, we assume that defendant is arguing that both the entry

and the search of the house violated his Article I, section 9, rights.

90 State v. Unger

different than it would have been if he had answered the

initial knock at his front door.

We also consider in the exploitation analysis the

temporal proximity between the misconduct and the defen-

dant’s consent. The detectives were trespassing on defen-

dant’s property when they obtained his consent to enter his

home. Moreover, there is no indication that any significant

amount of time elapsed between the detectives’ initial entry

onto defendant’s property and defendant’s subsequent con-

sent to show the detectives around the home. Both of defen-

dant’s consents occurred during or shortly after the detec-

tives’ unlawful conduct. See Hall, 339 Or at 36 (noting close

temporal proximity between consent and unlawful stop of

the defendant). Temporal proximity weighs in defendant’s

favor.

The state does not identify any intervening or miti-

gating circumstances, such as providing Miranda warnings

or admonitions to defendant that he could refuse to consent

to a search.12 As discussed above, however, we emphasize

that the focus should remain on whether the totality of the

circumstances indicates that the detectives exploited their

unlawful conduct to obtain consent. Temporal proximity

and intervening or mitigating circumstances are not the

only considerations.

We next consider the “purpose and flagrancy” of the

detectives’ actions, which involves a closer look at the nature

and extent of the unlawful police conduct. We do not inquire

into the subjective intent or motivations of the detectives,

but rather examine statements made by the detectives and

the undisputed facts surrounding the contact with defen-

dant. Here, the detectives were following up on information

12

As noted earlier, the officers told defendant, once in the house, that he

could refuse consent to search. They did not, however, tell him that he could

refuse to consent to their entry at the time that they entered the house. Such

admonitions, although not required, may be helpful when the state seeks to show

that it did not exploit any police misconduct to obtain consent. See Hall, 339 Or

at 35 (describing “police officer informing the defendant of the right to refuse

consent” as a circumstance that may mitigate “the effect of the unlawful police

conduct”). See also LaFave, 4 Search and Seizure § 8.2(i) at 152-55 (admonitions

or warnings not required, but may be significant in determining validity of con-

sent to search).

Cite as 356 Or 59 (2014) 91

about drug activity at defendant’s home, including informa-

tion that there were children in the home who had been

exposed to both drugs and a large volume of guns. The

detectives permissibly knocked on the front door of defen-

dant’s home. Although there was no response, several cars

were in the driveway, and the detectives thought that some-

one likely was home, so they followed a path around the

house to another door and knocked on it. Their purpose—

both in knocking on the front door and later on the sliding

glass door—was to contact the homeowner to ask for per-

mission to search the house, not to search for incriminat-

ing evidence near the back door. See Perea-Rey, 680 F3d at

1187-88 (under Fourth Amendment, officers are permitted

to “approach a home to contact the inhabitants” and “need

not approach only a specific door”). Moreover, there is no

indication that the purpose of going to the back door was

that defendant would be more likely to consent at the back

door, rather than the front door.

In contrast, when police observe contraband

because they have unlawfully stopped someone or unlaw-

fully entered a home—and then ask for consent to search,

their “purpose” is more likely to be to seize the contraband

that they already have seen as a result of their misconduct.

In those circumstances, the police have “taken advantage

of” or “exploited” their unlawful conduct to the defendant’s

detriment, and that tainted “purpose” suggests that the

defendant’s consent, even if voluntary, also may be tainted.

So, too, may be a consent that follows a random stop or sei-

zure that lacks probable cause or reasonable suspicion that

a crime has been committed and that is nothing more than

a fishing expedition for incriminating evidence. LaFave, 4

Search and Seizure § 8.2(d) at 111-12, 112 n 154. This case

presents none of those scenarios.

Moreover, the detectives’ conduct in walking around

defendant’s house to knock on his door was not flagrant or

egregious. The detectives followed a path around the side of

the house to the back door, which defendant could have cho-

sen not to open. The detectives did not have to cross any bar-

riers or use force to reach that door; they did not force or even

open the door themselves; and there is no indication that

defendant had made any effort to keep that space private.

92 State v. Unger

Compare U.S. v. Robeles-Ortega, 348 F3d 679, 680-81, 684

(7th Cir 2003) (concluding that evidence was tainted where

consent to search was given after “the officers literally broke

down the door, without exigent circumstances and without a

warrant, and at least five agents rushed into the apartment

with guns”). When defendant opened the door, the detec-

tives introduced themselves, explained why they were there,

and asked for consent, just as they would have at the front

door. Thus, although the detectives’ conduct allowed them to

contact defendant, the unlawful conduct in which the detec-

tives engaged was not flagrant. In short, nothing about the

limited nature of the unlawful conduct, or the purpose or

flagrancy of the conduct, suggests that it caused defendant

to consent to the search.

Defendant, for his part, does not argue that any-

thing about the nature of the trespass or his interactions with

the detectives significantly affected his consent. Rather, he

contends that, if the detectives had not unlawfully entered

his backyard, they never would have been able to make con-

tact with him and obtain his consent. In other words, defen-

dant argues, “the illegal trespass placed the [detectives] in

a position to request defendant’s consent,” and, “but for” that

illegal conduct, “the [detectives] would not have been in a

position to obtain defendant’s consent.” However, this court

in Hall—the case on which defendant relies—rejected that

formulation of the attenuation analysis. Hall, 339 Or at 25

(“[T]his court has rejected the notion that evidence is ren-

dered inadmissible under Article I, section 9, simply because

it was obtained after unlawful police conduct or because it

would not have been obtained ‘but for’ unlawful police con-

duct.”). That part of Hall, along with other parts that we

reaffirm, remains sound. Where a defendant has consented

voluntarily to a search following police misconduct, we con-

sistently have held that mere but-for causation is insufficient

to justify suppression of the evidence, even in the absence

of intervening or mitigating circumstances. Here, the state

has met its burden of showing that, under the totality of

the circumstances, the detectives in this case did not exploit

their unlawful entry into defendant’s backyard to obtain his

consent to enter the house or to obtain his consent to show

the detectives around his house.

Cite as 356 Or 59 (2014) 93

V. CONCLUSION

Encounters between the police and citizens can

take many different forms. Although unlawful police con-

duct undoubtedly has an effect on citizens and on how they

interact with police officers in certain circumstances, our

cases reject the notion that unlawful police conduct neces-

sarily requires suppression of evidence discovered follow-

ing such conduct. See Hall, 339 Or at 25 (“[T]his court has

rejected the notion that evidence is rendered inadmissible

under Article I, section 9, simply because it was obtained

after unlawful police conduct or because it would not have

been obtained ‘but for’ unlawful police conduct.”).

For the reasons stated above, we disavow the min-

imal factual nexus test described in Hall. We adhere to the

view expressed in Hall that a defendant’s voluntary consent

to search, following unlawful police conduct, may never-

theless require suppression of evidence obtained during

the search, if the police exploited their unlawful conduct

to gain that consent. However, we modify the exploitation

analysis in Hall, which considered only the temporal prox-

imity between the unlawful police conduct and the con-

sent and mitigating or intervening circumstances. Rather,

courts must consider the totality of the circumstances, as

described above, including the nature of the illegal conduct

and its purpose and flagrancy, without unduly emphasizing

any single consideration.

We share the dissenters’ concerns about stability in

our case law and protecting Article I, section 9, rights. This

case does not damage either. Although we have clarified and

modified in part the analysis set out in Hall, the narrow

issue on which we focus here, as Justice Brewer correctly

notes, is a “vexing cranny” of our search and seizure law.

356 Or at 118 (Brewer, J., dissenting). Professor LaFave

reminds us that there is “overlap” in the voluntariness and

exploitation tests. LaFave, 4 Search and Seizure § 8.2(d) at

101. If unlawful police conduct leads to consent to search,

the consent may be “involuntary” and also the “product”

of the unlawful conduct. Conversely, the same facts that

demonstrate that a particular consent was voluntary also

may support a conclusion that the consent was not the result

94 State v. Unger

of exploitation of unlawful conduct—or that the police con-

duct was not unlawful in the first place. The less common

(although not rare) situation presented in this case is that

the state no longer argues that the police conduct was lawful

and defendant no longer argues that his consent was invol-

untary. That procedural posture means that those critical

issues are not before us, and we are instead presented with

the narrow and specific exploitation issue that we have con-

sidered in detail above.

Moreover, we expect that law enforcement officers

will act within constitutional limitations in their inter-

actions with Oregon citizens. Civil litigation, tort claims,

and training and education—as well as the exclusion-

ary rule—help protect Article I, section 9, rights. We also

expect that trial courts will carefully consider claims of

unlawful police conduct, disputes over the voluntariness of

consent, and whether consent, even if voluntary, was the

product of unlawful police conduct—and will make findings

of fact when appropriate. An appropriate record will help

the appellate courts in our ongoing effort to develop princi-

pled and meaningful applications of the fundamental pro-

hibition on unreasonable searches and seizures in Article I,

section 9.

The decision of the Court of Appeals is reversed,

and the case is remanded to the Court of Appeals for further

proceedings.13

LANDAU, J., concurring.

As the majority correctly observes, this court’s

cases hold that the sole rationale for the exclusion of evi-

dence obtained as a result of police misconduct is the vindi-

cation of the defendant’s constitutional rights. The purpose

of excluding evidence unlawfully obtained, the court has

explained, is “to restore a defendant to the same position as

13

In addition to the issue raised before this court, defendant raised four other

assignments of error before the Court of Appeals. Although the court rejected

two of those assignments of error without discussion, the court declined to reach

defendant’s other two assignments of error because it was unnecessary given

the court’s disposition in the case. See Unger, 252 Or App at 479 n 2. Because we

reverse the Court of Appeals, we remand for the Court of Appeals to consider the

remaining two assignments of error.

Cite as 356 Or 59 (2014) 95

if the government’s officers had stayed within the law.” State

v. Hall, 339 Or 7, 24, 115 P3d 908 (2005). In adopting that

rationale, the court has categorically rejected deterrence as

an explanation for this state’s exclusionary rule. In so doing,

the court has painted itself into something of a doctrinal

corner.

The problem is that the personal rights rationale

for Oregon’s exclusionary rule is incomplete. It fails to

supply an explanation for the exclusion of evidence that,

although obtained as a product of prior police misconduct,

was obtained with the defendant’s consent. If a defendant

has, in fact, voluntarily consented to the search, why should

the courts not vindicate that decision? See Hall, 339 Or at

40-41 (Durham, J., concurring in part and dissenting in

part) (consent to search that is “the product of an authentic

voluntary choice and not mere resignation to the authority

of the police or to the exigencies of the stop or arrest” is suf-

ficient to justify warrantless search).

To answer that question, this court has invoked the

idea of “tainted consent.” The police misconduct may be of a

particular character that it deprives subsequent consent of

its force. But the court has had a devil of a time explaining

why that is so and precisely how we can identify such a taint.

Moreover, the factors that it has identified for determining

the existence of such a taint usually have nothing to do

with whether the prior police misconduct actually affected

a defendant’s decision to consent. The idea of a tainted con-

sent, then, is something of a fiction.

In my view, there is a straightforward explanation

for why, notwithstanding a defendant’s consent, certain

unlawfully obtained evidence should be excluded: deter-

rence of future police misconduct. There are some forms of

police misconduct that the courts simply should not counte-

nance. Sometimes, regardless of whether a defendant con-

sented, the court should exclude evidence otherwise unlaw-

fully obtained to prevent police from reaping the benefits of

their misconduct.

That is not to say that this court has erred in invok-

ing the vindication of personal rights as the rationale for

this state’s exclusionary rule. It is to say that the court has

96 State v. Unger

erred in adhering to the notion that it is the sole rationale

for that rule. Of course, correcting that error would require

reevaluating a number of this court’s prior cases.

For years, this court explained its exclusionary

rule in terms of deterrence, following existing federal court

interpretation of the Fourth Amendment. In State v. Nettles,

287 Or 131, 136, 597 P2d 1243 (1979), for example, the court

explicitly endorsed the federal court view that the exclusion-

ary rule is “a judicially created remedy designed to deter

future unlawful police conduct and that the rule [is] not for

the purpose of compensating for the unlawful invasion of

a person’s privacy.” See also State v. Holt, 291 Or 343, 351,

630 P2d 854 (1981) (“The purpose of exclusion is to deter

unlawful police conduct by excluding evidence unlawfully

obtained from the person against whom it is to be used.”);

State v. Quinn, 290 Or 383, 397, 623 P2d 630 (1981) (refer-

ring to the “protective and prophylactic purposes” of the

deterrence-based exclusionary rule).

In 1981, however, the court began to shift its focus

away from deterrence as a rationale for the exclusionary

rule. Writing for the court in State v. McMurphy, 291 Or

782, 785, 635 P2d 372 (1981), Justice Linde commented

that “the deterrent effect on future practices against others,

though a desired consequence, is not the constitutional basis

for respecting the rights of a defendant against whom the

state proposes to use evidence already seized. In demanding

a trial without such evidence, the defendant invokes rights

personal to himself.” Justice Linde’s comment was obiter

dictum, but it was to lay the groundwork for a rethinking of

the rationale for the state’s exclusionary rule in subsequent

cases.

Two years later, in State v. Davis, 295 Or 227, 237,

666 P2d 802 (1983), the court went so far as to suggest

that, historically, the purpose of Oregon’s exclusionary rule

was to vindicate the personal rights of the defendant “by

denying the state the use of evidence secured in violation

of those rules against the persons whose rights were vio-

lated, or, in effect, by restoring the parties to their position

as if the state’s officers had remained within the limits of

their authority.” The court nevertheless acknowledged some

Cite as 356 Or 59 (2014) 97

“diversity of expression” as to the rationale for the exclusion-

ary rule, which included in a number of cases the deterrence

of future police misconduct. Id.

In State v. Tanner, 304 Or 312, 745 P2d 757 (1987),

however, a deeply divided court (there were five separate

opinions) stated categorically that Oregon’s exclusionary

rule was not predicated on deterrence of police miscon-

duct. Citing Davis and McMurphy, the court declared that,

“[u]nlike the Fourth Amendment exclusionary rule, which

has been predicated in recent years on deterrence of police

misconduct * * * the exclusionary rule of [Article I,] section 9

is predicated on the personal right of a criminal defendant

to be free from an ‘unreasonable search, or seizure.’ ” Id. at

315.

Justice Jones, joined by Justice Peterson, dissented,

complaining that “[t]he whole theory that Oregon’s exclu-

sionary rule is somehow predicated on a personal right of

a defendant simply falls for lack of any foundation.” Id. at

341. Justice Jones challenged the majority’s reliance on

McMurphy, which he said was “predicated on pure dictum,”

id. at 330, as well as Davis, which he asserted was based on

a misreading of prior case law, id. at 331-33.

Justice Gillette concurred, but he expressly disas-

sociated himself “from the ‘personal right’ vs. ‘deterrent’

struggle into which this case has developed.” Id. at 324-25.

He commented that, although Justice Jones made “some

good points” in questioning the majority’s description of the

court’s own prior cases, in his view, the result in that case

would be the same under either rationale, so it was unneces-

sary for him to weigh in on the debate between the dissent

and the majority. Id.

In State ex rel. Juv. Dept. v. Rogers, 314 Or 114,

117-18, 836 P2d 127 (1992), this court expressly disavowed

Nettles, explaining that its prior decision had relied too

much on federal Fourth Amendment analysis in recogniz-

ing deterrence as a rationale for the state’s exclusionary

rule. Since then, the court fairly consistently has reiterated

the position that the sole purpose of, and rationale for, the

state’s exclusionary rule is the vindication of the personal

98 State v. Unger

right to be free from unreasonable searches and seizures.

See, e.g., State v. Smith, 327 Or 366, 379, 963 P2d 642 (1998)

(“This court *  * clearly has rejected that deterrence ratio-

*

nale as foreign to the Oregon search and seizure provision,

holding, instead, that the Oregon exclusionary rule exists to

vindicate a personal right to be free from unlawful searches

and seizures.”); State v. Sargent, 323 Or 455, 462 n 4, 918

P2d 819 (1996) (“Oregon does not follow the rationale that

suppression is granted to deter unlawful police conduct.”).

It is perhaps worth noting that this court, in stak-

ing out the position that deterrence has no role in deter-

mining whether evidence must be excluded, stands almost

alone. Nearly all the state courts that have adopted an

exclusionary rule under their state constitutions recognize

that deterrence is, at the very least, a relevant consideration

in determining whether to exclude evidence.1 The Supreme

Court of Alaska, for example, has explained that its state

constitutional exclusionary rule “has twin rationales. One

of these rationales is deterrence of unconstitutional meth-

ods of law enforcement. The other rationale is the impera-

tive of judicial integrity.” State v. Sears, 553 P2d 907, 911-12

(Alaska 1976). The Hawaii Supreme Court, for another

example, recognizes that its state exclusionary rule serves

three purposes: “(1) judicial integrity, (2) the protection of

individual privacy, and (3) deterrence of illegal police mis-

conduct.” State v. McKnight, 131 Hawai’i 379, 398, 319 P3d

298 (2013). The Idaho Supreme Court likewise has devel-

oped its state constitutional exclusionary rule “as a constitu-

tionally mandated remedy for illegal searches and seizures

* * * [and] a deterrent for police misconduct.” State v. Koivu,

152 Idaho 511, 519, 272 P3d 483 (2012).2

1

I am aware of only two states—New Mexico and Pennsylvania—that have

rejected deterrence as a justification for a state exclusionary rule. See State v.

Gutierrez, 116 NM 431, 446, 863 P2d 1052 (1993) (objective of the exclusionary

rule is not to deter police misconduct but “to effectuate in the pending case the

constitutional right of the accused to be free from unreasonable search and sei-

zure”); Com. v. Valentin, 2000 PA Super 63, 748 A2d 711, 713, appeal denied, 564

Pa 731, 766 A2d 1247 (2000) (“While the sole purpose of the exclusionary rule

under the Fourth Amendment is to deter police misconduct, Article I, section

8, [of the Pennsylvania Constitution] is meant to embody a strong, abiding, and

distinctive notion of privacy.”).

2

See also State v. Bolt, 142 Ariz 260, 266 n 7, 689 P2d 519 (1984) (“There

are other reasons justifying the existence of the exclusionary rule. When officers

Cite as 356 Or 59 (2014) 99

In that light, it strikes me as odd that this court, in

recognizing the importance of vindicating personal rights

as a justification for this state’s exclusionary rule, has con-

cluded that it is necessary to abandon the justification of

deterrence. In fact, although the court expended a great

deal of effort attempting to justify the personal rights justi-

fication in Davis, it has never expended much of any effort

at explaining why deterrence did not continue to be a valid

justification for exclusion as well. The court appears to

have predicated its decision on the assumption that it was

purposefully violate the constitution to obtain evidence to use at trial, ‘the suc-

cess of the lawless venture depends entirely on the court’s lending its aid by

allowing’ the use of the evidence. If the law does not permit the gathering of the

evidence, the court should not ‘have a hand in such dirty business’ by allowing its

use. Further, it would be a ‘pernicious doctrine’ to declare that the government

should ‘commit crimes’ in order to secure the conviction of criminals.”); Watson

v. State, 302 Ga App 619, 624, 691 SE2d 378 (2010) (“The rationale behind the

exclusionary rule is to prevent the State from capitalizing on police misconduct

to put the prosecution in a better position than it would have been if no illegality

had occurred.”); People v. McGee, 268 IllApp3d 32, 43, 644 NE2d 439 (1994) (“In

vindicating individual rights, the exclusionary rule encourages compliance by the

legislative and executive branches and induces scrutiny and guidance from the

judicial branch * * *. It encourages the legislature to enact constitutional laws and

prevents legislative ‘grace’ periods during which large classes of constitutional

violations may freely take place. It encourages the executive branch to uphold

its oath to support the Illinois Constitution while carrying out the duties of the

particular office. It permits courts to honor the Constitution other than merely

to note its breach.”); State v. Coleman, 466 So 2d 68, 72 (LaApp2 Cir 1985), writ

denied, 467 So2d 542 (La 1985) (“The primary purpose of the exclusionary rule

* * * is to deter official misconduct by government agencies in the administration

of the criminal law. *  * Another recognized purpose of the exclusionary rule is

*

that judicial integrity will be best served by denying the State the use of evidence

unconstitutionally obtained or seized from a citizen or from his home.” (Emphasis

in original.)); Com. v. Brown, 456 Mass 708, 715, 925 NE2d 845 (2010) (“One of

the purposes * * * is the deterrence of police [mis]conduct * * *. Another is the pro-

tection of judicial integrity through the dissociation of the courts from unlawful

conduct.”); State v. Panarello, 157 NH 204, 207, 949 A2d 732 (2008) (“The purpose

of the exclusionary rule is three-fold. * * * It serves to: (1) deter police misconduct;

(2) redress the injury to the privacy of the victim of the unlawful police conduct;

and (3) safeguard compliance with State constitutional protections.”); State v.

Harris, 211 NJ 566, 590, 50 A3d 15 (2012) (“The purpose of the rule is two-fold:

1) to assure that the law does not provide an incentive for police misconduct and

2) to protect judicial integrity.”); Miles v. State, 1987 OK CR 179, 742 P2d 1150,

1152 (1987) (“The purpose of the exclusionary rule is to deter police misconduct

and to provide an effective remedy for unreasonable searches and seizures.”);

State v. Patton, 898 SW2d 732, 734 (Tenn Crim App 1994) (“The dual purposes

of the exclusionary rule are to protect fundamental individual liberties and to

deter improper police conduct.”); State v. Felix, 339 Wis2d 670, 695, 811 NW2d

775 (“The purposes of the exclusionary rule are to deter police misconduct and

ensure judicial integrity by refusing to rely on evidence obtained through police

misconduct * * *, but the primary purpose is deterrence.”).

100 State v. Unger

required to choose one justification or the other. The case

law that I have just noted casts some doubt on the validity of

that assumption, however. In my view, there seems to be no

good reason why deterrence cannot also inform our evalua-

tion of whether evidence must be excluded.

In the course of the last 30 years of case law, this

court has offered some hints as to the source of its discom-

fort with deterrence. I find none of them particularly persua-

sive, though. First, in McMurphy, Justice Linde suggested in

dictum that, although deterrence may be “a desired conse-

quence,” nevertheless it “is not the constitutional basis for

respecting the rights of a defendant against whom the state

proposes to use evidence already seized.” McMurphy, 291 Or

at 785. Justice Linde, however, never explained precisely

why deterrence lacks a constitutional basis. And, indeed,

although this court frequently has repeated the conclusion,

to my knowledge, the court has never explained it. The court

appears to assume that deterrence is merely a judicially cre-

ated prophylactic that cannot be rooted in the constitution

itself. Even assuming that to be the case, however, I find it

useful to note that the court has felt no such hesitation in

requiring Miranda-type warnings under Article I, section

12, of the Oregon Constitution, even though nothing in the

constitution itself requires it. State v. Moore/Coen, 349 Or

371, 382, 245 P3d 101 (2010) (“Under, Article I, section 12,

the police must give a defendant who is in custody Miranda-

like warnings prior to questioning.”). Indeed, the court has

candidly explained that requiring such warnings is not,

strictly speaking, required by the text of the constitution;

rather, the requirement is a judicially created prophylactic

that “may be adapted or replaced from time to time by deci-

sions of this court or by legislation in the light of experience

or changing circumstances.” State v. Mains, 295 Or 640,

645, 669 P2d 1112 (1983).

Second, it has been suggested that adopting a

deterrence rationale would open the door for defendants to

challenge the admissibility of evidence that was admitted

in violation of someone else’s constitutional rights. That

concern, in fact, appears to be the principal underpinning

of the court’s rejection of deterrence in Tanner. 304 Or at

315-16 (“the search or seizure must violate the defendant’s

Cite as 356 Or 59 (2014) 101

[Article I,] section 9 rights before evidence obtained thereby

will be suppressed; a defendant’s section 9 rights are not

violated merely by admitting evidence obtained in violation

of section 9”). Justice Linde likewise voiced the same con-

cern in McMurphy, in which he noted that “it should make

no difference whose rights were invaded” if deterrence is the

justification for exclusion. 291 Or at 785. But it strikes me

that that is valid only if it assumed that deterrence is the

sole justification for the state’s exclusionary rule.

Third, it also has been suggested that adopting a

deterrence rationale for the state’s exclusionary rule leads

to the recognition of a malleable “good faith exception” that

would apply when police officers may violate a defendant’s

Article I, section 9, rights, but do so in good faith. See, e.g.,

Tanner, 304 Or at 325 (Gillette, J., concurring) (“The vac-

illation and retraction in recent years in the United States

Supreme Court’s Fourth Amendment jurisprudence, leading

to its inexplicable ‘good faith’ exception to the exclusionary

rule * * * satisfies me that the ‘deterrence’ rationale does not

vindicate adequately the interests to which Article I, section

9, speaks.”). But a good faith exception does not necessar-

ily follow from consideration of deterrence as a justification

for an exclusionary rule. In any event, the purpose and fla-

grancy of an officer’s conduct already is routinely taken into

account, and that strikes me as pretty much the same thing

as inquiring into the officer’s good faith.

As I noted at the outset, one problem with the court’s

exclusive focus on personal rights as the basis for its exclu-

sionary rule arises when a defendant consents to a warrant-

less search or seizure that is in some way causally connected

to prior police misconduct. In my view, the personal rights

explanation for exclusion fails to explain why a defendant’s

voluntary consent does not suffice to justify the search.

The court’s usual explanation is that the prior ille-

gality can “taint” the otherwise perfectly voluntary consent.

But the test for the existence of such a taint has nothing to

do with whether the police misconduct actually affected the

consent in any way. In Hall, for example, a majority of this

court declared that, even in a case in which the defendant

voluntarily consents to a search, prior police misconduct

102 State v. Unger

will require the exclusion of evidence obtained from that

search if that misconduct “significantly affected” the defen-

dant’s consent. 339 Or at 34-35. But the three factors that

the court listed as an aid to determining whether the mis-

conduct “significantly affected” the defendant’s consent—

temporal proximity, intervening circumstances, and other

circumstances that mitigate the misconduct—need not have

anything whatsoever to do with whether the misconduct

actually affected the defendant’s consent at all, much less

substantially so.

Part of the problem, I think, is that the court has

borrowed its analysis for excluding otherwise voluntary con-

fessions from Fourth Amendment cases such as Brown v.

Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975),

and Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9

L Ed 2d 441 (1963). See, e.g., Hall, 339 Or at 21 (relying on

Wong Sun); State v. Painter, 296 Or 422, 425, 676 P2d 309

(1984) (relying on Brown and Wong Sun); State v. Wolfe, 295

Or 567, 572, 669 P2d 320 (1983) (relying on Brown). The fed-

eral “fruit of the poisonous tree” cases, however, have been

predicated expressly on the importance of deterrence as a

justification for disregarding an otherwise voluntary con-

sent. Brown, for example, went to some lengths to empha-

size that its exclusion of evidence in cases such as Wong Sun

was intended to effectuate “the broad deterrent purpose” of

the exclusionary rule. 422 US at 599-600.

Indeed, the factors that Brown mentioned, and that

this court has borrowed—temporal proximity, the presence

of intervening circumstances, and the purpose and fla-

grancy of police misconduct—make much better sense in

the context of a policy of deterrence. Each goes to the char-

acter of the police actions, regardless of their actual effect on

a defendant’s decision to consent to a search. Small wonder,

then, that this court has struggled to explain its decisions

when it is attempting to apply the federal analysis while, at

the same, rejecting the rationale for it.

If this court wishes to better explain the exclu-

sion of evidence procured from consent searches based on

prior police misconduct, it seems to me that it will have

to reconsider its categorical abjuration of deterrence as a

Cite as 356 Or 59 (2014) 103

justification for its exclusionary rule and include deterrence

as an additional justification for the rule. I suggest that, in

an appropriate case, the court should do that. Until then, I

join the majority, which gives greater attention to the role of

a defendant’s consent to a warrantless search.

WALTERS, J., dissenting.

This case begins with a conceded violation of the

Oregon Constitution and ends without legal consequence.

That is wrong, and, respectfully, I dissent.

Until today, like courts throughout this nation,1

this court recognized that, when a police officer violates the

constitution and then, while the constitutional violation is

ongoing, obtains a defendant’s voluntary consent to search,

the constitutional violation has a causal connection to the

consent and the resulting evidence must be suppressed

unless the state proves other intervening or mitigating

facts. State v. Ayles, 348 Or 622, 636, 237 P3d 805 (2010);

State v. Rodgers/Kirkeby, 347 Or 610, 628-29, 227 P3d 695

(2010); State v. Hall, 339 Or 7, 27, 115 P3d 908 (2005); State

v. Olson, 287 Or 157, 166, 598 P2d 670 (1979). From today,

when a police officer violates the Oregon Constitution,

a court no longer must presume that the officer gains an

advantage, and the state no longer has the burden to prove

that the evidence that the officer obtains by pressing that

advantage should be admitted.

I concede that the majority does not acknowledge

those fundamental shifts. State v. Unger, 356 Or 59, ___

1

See, e.g., United States v. Macias, 658 F3d 509, 524 (5th Cir 2011) (suppress-

ing evidence from voluntary consent obtained during illegal extension of traffic

stop); United States v. Washington, 490 F3d 765, 777 (9th Cir 2007) (where consent

obtained immediately after illegal seizure, without any “appreciable interven-

ing circumstances,” evidence must be suppressed); United States v. Lopez-Arias,

344 F3d 623, 630 (6th Cir 2003) (suppressing evidence obtained during consent

search when consent obtained during illegal arrest); United States v. Vasquez,

638 F2d 507, 527-29 (2d Cir 1980), cert den, 450 US 970 (1981) (consequence of

“an illegal entry is to make unlawful any ensuing interrogations or searches,”

and “suppression is required * * * unless the taint of the initial entry has been dis-

sipated before the ‘consents’ to search were given”); Commonwealth v. Swanson,

56 Mass App Ct 459, 463-64, 778 NE2d 958 (2002) (“evidence [obtained after the

illegal entry] must be disregarded in assessing the lawfulness of the search”); In

re Ashley W., 284 Neb 424, 444, 821 NW2d 706 (2012) (ordering suppression of

evidence derived from consent search made during unlawful stop).

104 State v. Unger

P3d ___ (2014). In fact, the majority specifically disavows

them when it disputes the dissents’ suggestion that “we

have modified the Hall analysis to remove the presumption

that a consent search following unlawful police conduct is

‘tainted,’ ” 356 Or at 84, and insists that the burden of estab-

lishing the admissibility of evidence produced as a result of

such a consent search remains with the state. 356 Or at 88.

But if the presumption held and the burden stayed put, the

majority could not decide this case the way that it does.

It is when the majority applies the principles that it

articulates that the majority reveals the extent to which it

“refines” prior law. In describing the officers’ unconstitutional

conduct in this case, the majority writes that “nothing about

the limited nature of the unlawful conduct, or the purpose

or flagrancy of the conduct, suggests that it caused defen-

dant to consent to the search.” 356 Or at 92. If the major-

ity had presumed that the officers’ illegality and defendant’s

consent to search were causally connected, the majority—

like courts throughout the nation and like the Oregon

courts that decided the cases cited above—would have been

required to move to the next step in the analysis and con-

sider whether the state had proved intervening or mitigating

facts that would permit the admission of the evidence. And,

had the majority moved to that step, it would have been com-

pelled to concede that the state had not proved such facts.

In its application of the principles that it articulates,

the majority neither presumes a causal connection between

the police illegality and defendant’s consent to search nor

rests its decision on the state’s proof of intervening or mit-

igating facts. Rather, the majority dispenses with the pre-

sumption by declaring that “mere but-for causation is insuf-

ficient to justify suppression of the evidence, even in the

absence of intervening or mitigating circumstances.” 356 Or

at 92. In so declaring, the majority not only disregards the

advantage that an officer commands when engaged in a con-

tinuing constitutional violation, the majority also ignores

this court’s holding in Ayles that there is nothing “mere”

about the motivating effect of such an advantage:

“[A] defendant establishes a more substantial connection

than merely one thing occurring after another when that

Cite as 356 Or 59 (2014) 105

defendant establishes that he or she consented to a search

during an unlawful detention. In such a circumstance, the

fact that the defendant is not legally free to leave because

of the illegal police activity cannot be discounted in moti-

vating the defendant’s consent, and therefore, such illegal

police conduct normally will be at least minimally con-

nected to the defendant’s decision to consent.”

348 Or at 635.

Moreover, by ignoring the causal connection that

exists when officers use unconstitutional means to seek and

obtain consent to search, the majority effectively shifts the

burden of proof to the defendant. Instead of requiring the

state to prove that the evidence that the officers obtained

did not derive from their unconstitutional acts by prov-

ing intervening or mitigating circumstances, the majority

requires the defendant to prove facts in addition to the police

illegality to demonstrate the necessary causal connection.

Thus, the majority relies on the fact that defendant “does

not argue that anything about the nature of the trespass

or his interactions with the detectives significantly affected

his consent.” 356 Or at 92. If the burden remained with the

state, then the majority would have identified the evidence

that the state had adduced to demonstrate that defendant’s

consent to search was unrelated to the fact that uniformed

officers had come onto his property, into his backyard and

up to his sliding glass bedroom door, woken him from sleep,

and, pressing that unconstitutional advantage, requested

his consent to search.

Why the unacknowledged change in the presump-

tion and the burden? The majority does not dispute that,

when an individual is “subject to police authority in excess

of constitutional bounds,” the individual is “placed at a dis-

advantage relative to the constitutional position that he or

she would have occupied in the absence of the illegal police

interference.” 356 Or at 73. The majority concedes that

“every police illegality puts an individual in a worse posi-

tion than if no illegality had occurred.” 356 Or at 82. And,

the majority recognizes that the purpose of the exclusionary

rule is to restore defendants to the same position that they

would have occupied if “the government’s officers had stayed

106 State v. Unger

within the law.” Hall, 339 Or at 24; State v. Davis, 295 Or

227, 234, 666 P2d 802 (1983).

As the reason for the changes that it implements,

the majority states that “the exploitation test announced in

Hall does not account sufficiently for the importance of a

defendant’s voluntary consent to search.” 356 Or at 77. The

reason, the majority explains, is that “[o]ur cases demon-

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

sent itself may be sufficient to demonstrate that the unlaw-

ful conduct did not affect or had only a tenuous connection

to the evidence produced.” 356 Or at 77-78. True enough,

but the cited cases—State v. Rodriguez, 317 Or 27, 854 P2d

399 (1993), and State v. Kennedy, 290 Or 493, 624 P2d 99

(1981) 2 —are the same cases that the state relied on in Hall

and that the court found unconvincing. The court explained

in Hall that, in Rodriguez and Kennedy, the officers did not

engage in illegal conduct and then, pressing their advan-

tage, politely ask for consent to search. There were interven-

ing, mitigating facts: In those cases, before the police sought

consent to search, the defendants had “volunteered to allow

the search without any police prompting,” and, in Kennedy,

the police also provided the defendant with Miranda warn-

ings. Hall, 339 Or at 34. Thus, under Hall, Rodriguez, and

Kennedy, the state was required to prove intervening or mit-

igating facts, other than tainted consent, to establish the

admissibility of the evidence that the officers discovered.

The majority acknowledges as much when it states

that “Hall could be read as effectively having 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 no intervening

or mitigating circumstances exist.” 356 Or at 78 (empha-

sis added). The majority is correct in that understanding

of Hall. The majority is wrong when, later in its opinion, it

cites Hall for the proposition that “mere but-for causation is

insufficient to justify suppression of the evidence[.]” 356 Or

2

The majority also cites State v. Williamson, 307 Or 621, 772 P2d 404 (1989),

in which police officers had traded on evidence that they had only by virtue of

their illegality. The evidence was not admitted: “[T]he officers * * * were trading

on evidence that they had only by virtue of the unlawful roadblock. That is a far

cry from Kennedy.” Id. at 626.

Cite as 356 Or 59 (2014) 107

at 92. Both interpretations of Hall cannot be correct, and

only the former justifies the result that the court reached in

Hall and applied thereafter.

The majority is correct that, in Hall, the court

stated that

“this court has rejected the notion that evidence is rendered

inadmissible under Article I, section 9, simply because

it was obtained after unlawful police conduct or because

it would not have been obtained ‘but for’ unlawful police

conduct.”

339 Or at 25. However, the majority fails to point out that

the court then went on to explain what it meant by that

statement: that, although a defendant establishes a causal

connection sufficient to result in suppression when the

defendant establishes a but-for relationship between an

unconstitutional act and the evidence to be suppressed, the

state may prove to the contrary:

“[A]fter a defendant establishes the existence of a mini-

mal 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, the state

nevertheless may establish that the disputed evidence

is admissible under Article I, section 9, by proving that

the evidence did not derive from the preceding illegality.

To make that showing, the state must prove that either

(1) the police inevitably would have obtained the disputed

evidence through lawful procedures even without the vio-

lation of the defendant’s rights under Article I, section 9,

see, e.g., Johnson, 335 Or at 522-26 (discussing principle);

(2) the police obtained the disputed evidence independently

of the violation of the defendant’s rights under Article I, sec-

tion 9; see, e.g., Smith, 327 Or at 379-80 (discussing princi-

ple); or (3) the preceding violation of the defendant’s rights

under Article I, section 9, has such a tenuous factual link

to the disputed evidence that that unlawful police conduct

cannot be viewed properly as the source of that evidence,

see, e.g., State v. Jones, 248 Or 428, 433-34, 435 P2d 317

(1967) (discussing principle).”

Id. (emphasis added). It is the third means by which the

state may fulfill its burden to demonstrate that the evidence

did not derive from the preceding illegality on which the

108 State v. Unger

majority hangs its hat—that the violation “has such a tenu-

ous factual link to the disputed evidence that that unlawful

police conduct cannot be viewed properly as the source of

that evidence.” Id. But, again, the majority makes more of

that hook than it can hold.

In Hall, the court cited State v. Jones, 248 Or 428,

435 P2d 317 (1967), as discussing the principle on which

the majority relies. In Jones, the court had observed that a

causal link between an unconstitutional act and resulting

evidence may be too tenuous to require suppression when

intervening events or circumstances—such as a legal arrest

or the passage of time—break the causal chain. Id. at 434.

In Hall, the court reasoned that, when such a break occurs,

the admission of the challenged evidence

“does not offend Article I, section 9, because the defendant

has not been disadvantaged as a result of the unlawful

police conduct, or, stated differently, because the defendant

is not placed in a worse position than if the governmental

officers had acted within the bounds of the law.”

339 Or at 25.

Hall and this court’s decisions since Hall make

clear that, when the police engage in unconstitutional con-

duct that gives them an advantage and thereby obtain con-

sent to search, the resulting evidence must be suppressed

to restore the defendant to the position the defendant would

have occupied had the police acted within the bounds of the

law. As is evident from those cases, the defendant’s consent

results from the unconstitutional act—it is a continuation

of that act and not a break in the causal chain. The court

explained why that is so in Ayles:

“A defendant gains nothing from having a constitutional

right not to be seized if the police can seize him and—by

definition—use the circumstance of that seizure as a guar-

antee of an opportunity to ask him to further surrender his

liberty.”

348 Or at 631. Thus, in Ayles, Rodgers/Kirkeby, and Hall,

once the defendants established that officers had used the

advantage afforded by their unconstitutional acts to obtain

consent to search, the evidence that the officers obtained as

a result was suppressed.

Cite as 356 Or 59 (2014) 109

In reaching a contrary result in this case, the major-

ity does far more than merely “refine” the Hall analysis

and add factors for a court’s consideration: It changes its

focus completely. The majority notes, unremarkably, that,

if an officer’s conduct is “intrusive, extended, or severe, it

is more likely to influence improperly a defendant’s consent

to search.” 356 Or at 81. The majority then reasons from

the dissent in Ayles that, “where the nature and severity of

the violation is limited, so too may be the extent to which

the defendant’s consent is ‘tainted’ ” and that “the degree of

attenuation necessary to purge the taint is correspondingly

reduced.” 356 Or at 81 (citing Ayles, 348 Or at 654 (Kistler, J.,

dissenting)). The majority also engrafts federal consider-

ations of “purpose” and “flagrancy” into the Oregon consti-

tutional analysis. The majority reasons that particularly

flagrant conduct is “more likely to affect the defendant’s

decision to consent than more restrained behavior[,]” 356

Or at 82, and that purposeful police conduct may be “rel-

evant both to understanding the nature of the misconduct

and, ultimately, to deciding whether the police exploited

that misconduct to obtain consent to search.” 356 Or at 83.

Certainly more intrusive, extended, severe, fla-

grant, or purposeful unconstitutional conduct may have a

greater effect on a defendant’s decision to consent, but that

does not mean that other unconstitutional conduct has none.

What the majority refuses to confront openly is that, until

today, the state was required to prove some intervening or

mitigating circumstance other than a tainted consent to

obtain admission of illegally obtained evidence.

To reach its conclusion that a court need not sup-

press the evidence that officers gain when they engage in

unconstitutional conduct and simultaneously seek and

obtain consent to search, the majority must overrule one of

two holdings: (1) the holdings in Hall, Rodgers/Kirkeby, and

Ayles that an ongoing constitutional violation significantly

affects and is causally related to a defendant’s simultaneous

consent to search; or (2) the holdings in those cases that,

when such a causal connection exists, the constitutional

violation—whatever its nature or severity—requires sup-

pression. If it overrules the former, then the majority

110 State v. Unger

disregards the advantage that officers obtain when they

seek consent during the course of a constitutional violation.

If it overrules the latter, then the majority determines by

the attachment of adjectives which constitutional violations

will be vindicated and which will not.

The fact that the majority explicitly overrules nei-

ther is itself troubling. In Farmers Ins. Co. of Oregon v.

Mowry, 350 Or 686, 261 P3d 1 (2011), the court decided not

to overrule a prior decision because

“[w]e assume that fully considered prior cases were cor-

rectly decided, and defendant raises no argument that was

not rejected by the majority in [the prior decision]. As such,

there is no principled reason for this court to overrule [that

decision] on the ground that the majority was wrong. *  * *

[J]udicial fashion or personal policy preference are not suf-

ficient grounds to reverse well established precedent.”

Mowry, 350 Or at 700 (citations omitted). Similarly here, the

state raises no argument that was not rejected by the major-

ity in Hall, Rodgers/Kirkeby, and Ayles. I see no principled

reason for this court to overrule those cases or to decide,

without explicitly overruling them, that the new rule that it

articulates is an improvement on the old. And I do not see

the new rule as an improvement. The rule that a continu-

ing unconstitutional act creates an advantage that requires

suppression absent proof of intervening or mitigating facts

was clear and workable, and the majority does not mount a

case to the contrary.

It may seem “reasonable,” in a constitutional sense,

to permit officers to enter the backyard of a home, knock at

a bedroom door, and seek consent to enter when the officers

suspect drug activity and are concerned about the welfare

of children inside the home. Courts with that view have rea-

soned that the officers do not violate the constitution when,

pursuing a lawful objective, they walk to the back door of a

residence after receiving no response at the front. See, e.g.,

United States v. Perea-Rey, 680 F3d 1179, 1187-88 (9th Cir

2012) (“[I]t remains permissible for officers to approach a

home to contact the inhabitants. The constitutionality of

such entries into the curtilage hinges on whether the officer’s

actions are consistent with an attempt to initiate consensual

Cite as 356 Or 59 (2014) 111

contact with the occupants of the home. Officers conducting

a knock and talk also need not approach only a specific door

if there are multiple doors accessible to the public.”); United

States v. Raines, 243 F3d 419, 421 (8th Cir 2001) (“[L]aw

enforcement officers must sometimes move away from the

front door when attempting to contact the occupants of a

residence.”). Under those courts’ precedents, therefore, the

actions in which the officers engaged in this case would not

violate the constitution, and thus evidence obtained by those

actions would be admissible.

But that is not what the majority decides here. The

majority accepts the state’s concession that the officers acted

unreasonably and violated defendant’s Article I, section 9,

rights when they moved beyond his front door and entered

his property. The majority then holds that it will impose

no consequence for that violation. The majority refuses to

restore defendant to the position that he would have occu-

pied if “the government’s officers had stayed within the law.”

Davis, 295 Or at 234. What that means is that officers may

violate the constitution without consequence in this and

other circumstances in the future and, consequently, that

the state may benefit from the officers’ constitutional viola-

tions. The only apparent restriction imposed by the majority

is that a court may decide, after the fact, that the conduct

of the officers was so severe, purposeful, or flagrant that, in

the court’s opinion, suppression must follow. But how can

the police or the public know before the fact which adjective

a court will attach? And, more importantly, by what mea-

sure will this court determine the “degree” of the constitu-

tional violation?

If an officer’s acts are “reasonable,” then, perhaps,

they do not violate the constitution. But if the officer’s acts do

violate the constitution, they cannot be deemed “reasonable”

in any sense of that word.3 Courts, understandably, wish to

3

With respect, the concurrence mistakes the focus of the inquiry. Citing the

dissent in Hall, Justice Landau asks: “If a defendant has, in fact, voluntarily

consented to the search, why should the courts not vindicate that decision?” 356

Or at 95 (Landau, J., concurring). He expresses doubt about whether police mis-

conduct may “deprive[ ] subsequent consent of its force[,]” id. at 95, and joins the

majority “which gives greater attention to the role of a defendant’s consent to a

warrantless search.” Id. at 103.

112 State v. Unger

hold criminals accountable for their crimes. But the major-

ity’s new rule removes a solid brick from the constitutional

wall that prohibits the state from benefitting from its ille-

gality. See Davis, 295 Or at 233-34 (“The object of denying

the government the fruits of its transgression against the

person whose rights it has invaded is not to preserve the

self-regard of judges but to preserve that person’s rights to

the same extent as if the government’s officers had stayed

within the law.”).4

The issue that we confront is not whether a defendant’s consent obviates the

need for a warrant, is valid, or has “force.” If officers obtain voluntary consent

to search, the consent is valid and effective in the sense that the officers do not

violate the constitution when they search pursuant to the consent and without a

warrant. In that sense, the ensuing search is reasonable and constitutional. But

that does not answer the question of the consequence that flows from the preced-

ing unconstitutional and admittedly unreasonable act—in this case, the illegal

entry.

We know from the majority opinion in this case, adhering to prior cases, that,

when officers illegally stop a car, see contraband that they would not have seen

had they acted within constitutional bounds, and seek and obtain the defendant’s

voluntary consent to search, the officers exploit their illegal seizure and the evi-

dence must be suppressed. 356 Or at 86. That is so, even though the consent was

valid and of force in the sense that the officers did not violate the constitution

when they searched pursuant to the consent and without a warrant. The evidence

is suppressed not because the officers searched without valid consent; rather, it is

suppressed because the officers stopped and seized the defendant illegally. That

illegal seizure gave the officers an advantage—the vantage that allowed them

to see the contraband—and they used that advantage to seek consent to search.

Suppression is required to restore the defendant to the position that the defen-

dant would have held had the officers acted constitutionally.

My point is that it is not the validity of a defendant’s consent that is an issue

in an exploitation analysis. Instead, the issue is the consequence that a court will

impose when officers obtain, by unconstitutional acts, an advantage that they

would not have held had they remained within the law.

4

I do not see Justice Landau as arguing that that brick should remain in

place and be supported by a second brick of deterrence. Justice Landau considers

“the idea” of tainted consent to be “something of a fiction.” 356 Or at 95 (Landau, J.,

concurring). The reason, I think, is that he is not convinced that, when officers

engage in unconstitutional acts, those acts have an “actual” effect on a defen-

dant’s decision to respond affirmatively when the officers ask for consent to

search. But it is not only the concern that an unconstitutional act may serve as a

motivating force that underlies this court’s “personal rights” jurisprudence. Until

today, this court has recognized that, when officers engage in unconstitutional

acts, those acts place them at an advantage and enable them to seek consent

that they otherwise could not obtain. Consequently, the evidence that the officers

obtain must be suppressed unless the state can show that the officers inevitably

or independently would have obtained or did obtain the same evidence or that

intervening or mitigating circumstances demonstrate that the illegality was not

the source of the evidence. That “personal rights” rule is simply a rule that the

state may not retain the benefit of its illegal conduct and that the defendant must

be returned to the status quo ante. Justice Landau does not expressly reject that

Cite as 356 Or 59 (2014) 113

This case illustrates the significance of the change

that the majority has engineered. In this case, as the state

concedes, the court must adhere to a century of jurispru-

dence and acknowledge that the officers violated defendant’s

Article I, section 9, rights when they entered his backyard.

But under the majority’s rule, the court need not engage in

the analysis necessary to overrule that precedent; rather, it

may describe the violation as “limited” and thereby permit it.

This court has an obligation to demonstrate to the

people of Oregon that our constitution is enduring: That it

is made of sterner stuff than four votes represent; that it

can withstand the forces of the day that call, always call,

for understanding and flexibility to permit the government

to act. Surely government must act; but when it violates the

constitution in doing so, it should not benefit.

I respectfully dissent.

Baldwin, J., joins in this opinion.

BREWER, J., dissenting.

Article I, section 9, of the Oregon Constitution

protects the personal right to be secure against unlawful

searches and seizures. State v. Davis, 313 Or 246, 253-54,

834 P2d 1008 (1992); State v. Kosta, 304 Or 549, 553, 748

P2d 72 (1987); State v. Tanner, 304 Or 312, 315-16 n 2, 745

P2d 757 (1987). When the government violates that right by

conducting an unreasonable search or seizure in obtaining

evidence, the right is protected “through the sanction of [the]

suppression of evidence.” Davis, 313 Or at 253. Suppression

view. However, because Justice Landau votes with the majority, I do not think

that he endorses it.

If what Justice Landau suggests by arguing for deterrence as a rationale for

the exclusionary rule is that there are some continuing constitutional violations

that require suppression and some that do not, based on whether deterrence is

warranted, I disagree. How we draw such lines, other than purely subjectively,

is a mystery to me. For instance, as I point out in note 3, when officers violate

the constitution, see evidence, and then seek consent to search, we suppress the

evidence that they obtain in their search, but when the officers violate the consti-

tution and do not see evidence until after they obtain consent to search, we do not.

I do not see how adding a deterrence rationale will allow us to better articulate a

constitutional basis for that distinction or better “vindicate a defendant’s right to

be free from unreasonable search and seizure”—our goal as the majority states

it. 356 Or at 73.

114 State v. Unger

is justified by the rationale that it is necessary to place the

person subjected to the violation in the same position as if no

violation had occurred. Id. at 254.

Questions frequently have arisen concerning the

causal connection between a person’s consent to search

and a preceding violation of his or her right to be free from

an unlawful search or seizure. The argument that, where

consent is voluntary, there is no constitutional right to be

restored to the person has persistently been made. See, e.g.,

State v. Rodgers, 347 Or 610, 642-43, 227 P3d 695 (2010)

(Durham, J, dissenting). Although the majority does not

subscribe to that argument, to properly resolve cases like

this one, it is nevertheless important to understand why

that argument is mistaken. When a person consents to a

warrantless search of his or her person or property and the

person’s capacity for self-determination has not been over-

borne or critically impaired, the consent is voluntary. State

v. Stevens, 311 Or 119, 133-38, 806 P2d 92 (1991). However,

that does not necessarily mean that the person has know-

ingly relinquished his or her right under Article I, section 9,

to be free from unreasonable searches and seizures. That is

because consent to search can be voluntary but not amount

to a knowing waiver of the person’s constitutional rights. In

particular, the person may not know that the conduct that

placed the officer in a position to seek consent was unlawful

or that the person has a right under Article I, section 9, to

refuse consent. That is, even though the person’s free will

has not been overborne or critically impaired in the sense

required to make the consent to search involuntary, he or

she still may be missing vital information that the officer

has not disclosed which, if known, would have affected the

decision to give consent. For that reason, there remains a

constitutional right to safeguard under Article I, section 9,

where unlawful police conduct preceded the giving of volun-

tary consent to a search. State v. Hall, 339 Or 7, 34-35, 115

P3d 908 (2005).

As the majority notes, the state has the burden to

prove by a preponderance of the evidence that a warrantless

search is valid. State v. Tucker, 330 Or 85, 90–91, 997 P2d

182 (2000); ORS 133.693(4). To satisfy that burden where

unlawful police conduct preceded the giving of voluntary

Cite as 356 Or 59 (2014) 115

consent to search, the state must prove that evidence that

the police obtained as a result of the search did not derive

from the unlawful conduct. Hall, 339 Or at 24. To do so, the

state must show that (1) the police inevitably would have

discovered the evidence through lawful procedures in the

absence of the illegality; (2) the state obtained the evidence

independently of the violation of the defendant’s rights; or

(3) the factual link between the violation and the evidence

is so “tenuous” that the violation cannot be viewed as the

source of the evidence. Id. at 25. Where, as here, the state

relies on the third path, that is, attenuation, the state must

show that the unlawful conduct did not “significantly affect”

the defendant’s decision to give consent, even if the consent

itself was voluntary. Id. at 32, 35.

The considerations that this court identified in Hall

are “relevant to” the determination whether unlawful police

conduct significantly affected the giving of consent. Id. Those

considerations are (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 other circumstances, such as Miranda

warnings or other admonitions, that would have informed

the defendant of his or her right to refuse consent and would

have mitigated the effect of the illegal police conduct. Hall,

339 Or at 35.5 The primary question in this case is whether

other factors, including the purpose and flagrancy of police

misconduct leading to the giving of consent, should be bal-

anced against the considerations identified in Hall.

Because the factors of purpose and flagrancy that the

majority introduces derive from Fourth Amendment juris-

prudence, it is useful to consider the historical similarities

5

The court in Hall stated that “determining the existence of such a causal

connection requires examination of the specific facts at issue in a particular case.”

339 Or at 35. Interestingly, each of the considerations that the court identified is

an objective indicator of the strength of a causal connection between police mis-

conduct and consent or the evidentiary fruits of an ensuing search. That is, none

of those considerations necessarily indicates whether police misconduct actually

affected the giving of consent in a particular case. Because the state has the

burden of proving that a warrantless search is valid, and the defendant cannot

be compelled to testify, it is perhaps unsurprising that objective considerations

would bear primary emphasis in determining what might otherwise appear, in

the terms that the court framed it, to be a subjective inquiry.

116 State v. Unger

and differences between federal and Oregon attenuation

analyses involving consent searches. As this court noted in

Hall,

“In Brown v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed

2d 416 (1975), the United States Supreme Court also iden-

tified some of these considerations as relevant to deciding

the admissibility of a defendant’s voluntary statements fol-

lowing a Fourth Amendment violation. See id. at 603-04

(in deciding whether Fourth Amendment exclusionary rule

requires suppression of defendant’s voluntary statements

following unlawful arrest, court should consider whether

police provided defendant with Miranda warnings, along

with ‘[t]he temporal proximity of the arrest and the confes-

sion, the presence of intervening circumstances, and, par-

ticularly, the purpose and flagrancy of the official miscon-

duct’). * * * [T]he Brown factor of ‘purpose and flagrancy

of the official misconduct’ relates to only the deterrence

rationale of the Fourth Amendment exclusionary rule

and has no applicability to the exclusionary rule under

Article I, section 9. The other considerations that the

Supreme Court identified in Brown—namely, whether the

police had provided the defendant with Miranda warnings

(or, in the case of a consent search, with a warning that

the defendant had the right to refuse consent), the tempo-

ral proximity between the illegality and the defendant’s

confession or consent, and the presence of intervening cir-

cumstances—relate to the causal connection between the

preceding illegality and the defendant’s confession or con-

sent, and, for that reason, also are relevant to the decision

whether exclusion is required to vindicate a defendant’s

rights under Article I, section 9.”

Hall, 339 Or at 35 n 21. In short, the attenuation analyses for

consent searches under the federal and state constitutions

generally employ similar factors, but the federal analysis

includes additional factors—purpose and flagrancy of police

misconduct—that the court in Hall rejected based on dif-

ferences in the underlying natures of the two constitutional

provisions: The Fourth Amendment aims at deterring police

misconduct, whereas, Article I, section 9, focuses on the pro-

tection of personal rights.6 Although the majority in this case

6

Whether there are constitutionally grounded reasons for that “either-or”

distinction is a different matter. Because the most effective way to uphold a con-

stitutional right is to eliminate the incentive to knowingly violate it, I fail to

Cite as 356 Or 59 (2014) 117

notes those differences in constitutional focus, it disagrees

with the fundamental premise of Hall that the factors of

purpose and flagrancy are immaterial to a rights-based

analysis under Article I, section 9. As explained below, I do

not share that view.

To characterize unlawful police conduct as “pur-

poseful” means that the misconduct was investigatory in

design and purpose and executed “in the hope that some-

thing might turn up.” Brown, 422 US at 605; United States

v. Simpson, 439 F3d 490, 496 (8th Cir 2006). Because the

relevant inquiry under Article I, section 9, is whether a per-

son’s consent was significantly affected by preceding police

misconduct, the purpose of the misconduct is immaterial to

the analysis unless that purpose was apparent to the sus-

pect. However, even where a suspect knows the purpose of

police conduct, determining the effect of such knowledge on

the decision to give consent does not necessarily get at the

problem. The facts of this case illustrate the point. Here,

defendant knew from the outset of his encounter with the

officers that the purpose of their presence was investiga-

tory, and he may well have inferred from their request for

consent to enter his residence that they were hoping to find

contraband. However, there is no evidence that defendant

knew that the officers’ presence at his bedroom door was

unlawful. As discussed below, knowing that fact when the

officers requested consent might well have made a differ-

ence in defendant’s decision.

understand why a deterrence-based rationale for suppression should not supple-

ment the rights-based focus of Article I, section 9. This court came close to—but

fell short of—saying as much in State v. McMurphy, 291 Or 782, 785, 635 P2d 372

(1981):

“[T]he deterrent effect on future practices against others, though a desired

consequence, is not the constitutional basis for respecting the rights of a

defendant against whom the state proposes to use evidence already seized.

In demanding a trial without such evidence, the defendant invokes rights

personal to himself.”

The court’s reticence was understandable, in that it probably foresaw the

unfortunate consequences of an analysis that either supplants a rights-based

focus with a deterrence rationale or uses lower deterrence value as a counter-

weight to the protection of personal rights where the court perceives a constitu-

tional violation to be “minor.” For that reason, I would insist on describing deter-

rence as a supplemental—not alternative or collateral—rationale for suppression

where consent to search is not fully informed.

118 State v. Unger

A related problem exists with respect to applying the

factor of flagrancy. Misconduct is “flagrant” when its “impro-

priety * * * was obvious or the officer knew, at the time, that

his conduct was likely unconstitutional but engaged in it

nevertheless.” Green, 439 F3d at 496 (citing Brown, 422 US

at 605): That is, flagrancy refers to the officer’s knowledge,

or likely awareness, of the illegality of his or her conduct. Of

course, conduct that is obviously unlawful in the eyes of a

trained and experienced police officer may be carried out in

such a way that an uninformed suspect would not know that

it is unlawful. In that circumstance, the flagrancy of the

misconduct would not affect the suspect’s giving of consent,

and it therefore would not be relevant to the analysis under

Article I, section 9.

On the other hand, police conduct whose unlaw-

fulness is obvious to a suspect can affect the giving of con-

sent, even when it does not literally overcome the free will

of the suspect. The question is how such manifest flagrancy

should be weighed or balanced, if at all, in the attenuation

analysis. Under the majority’s conception, it would appear

that politely executed police misconduct—although obvi-

ously illegal—may not unlawfully taint consent even when

it is given in close temporal proximity to the misconduct,

no intervening circumstances operate to break the causal

connection between the two, and the suspect is not advised

of his or her right to refuse consent.

In my view, it is in this vexing cranny of Oregon’s

search and seizure jurisprudence that there is a special—

albeit supplemental—space for deterrence, even though

the primary focus of Article I, section 9, is to protect per-

sonal rights. If unlawful police conduct is flagrant in a way

that is pertinent to the attenuation analysis in consent

cases—that is, its unlawfulness is obvious to the officer and

suspect alike—then it has no business occurring, even if

delivered in an inoffensive wrapper. Flagrant misconduct,

however committed, should weigh heavily in favor of sup-

pression both to protect personal rights and so that officers

are not tempted to think that they can engage in unlawful

evidence-generating acts with impunity as long as they do

so courteously.

Cite as 356 Or 59 (2014) 119

But, where police misconduct is not flagrant in the

constitutional sense, that is, where the officer does not know

or likely know that he or she has engaged in unlawful con-

duct, and if there is no reason for the suspect to know that

the conduct is unlawful either, there still remains a risk that

the unlawful conduct will significantly affect the giving of

consent when the latter follows the former in brief sequence

and the suspect is not advised that he or she is free to refuse

consent. In other words, the fact that police conduct was not

obviously unlawful does not necessarily make it less likely

that the misconduct affected the giving of consent. Thus,

subject to the caveat discussed below, there is little room in

a rights-focused conception of Article I, section 9, for a lack

of flagrancy in unlawful police conduct to weigh in favor of

attenuation in the context of a consent search where other

factors point in the direction of suppression.

That said, as this court stated in Hall, the issue

is what “effect” unlawful police conduct had on a suspect’s

decision to give consent to search. Hall, 339 Or at 32. For

that reason, it is tempting to agree—at least in principle—

with the logic of the following statement by Justice Kistler

in his dissenting opinion in State. v. Ayles, 348 Or 622, 654,

237 P3d 805 (2010):

“The degree of attenuation necessary to purge the taint var-

ies with the extent of the taint, and where * * * any taint is

minimal, the required degree of attenuation is correspond-

ingly reduced. The point has nothing to do with deterrence.

Rather, under a rights-based suppression analysis, the

degree of attenuation necessary to purge the taint (and

thus restore the defendant to the position he or she would

have been in had no constitutional violation occurred) var-

ies with the extent, nature, and severity of any illegality.

Any other rationale would give a constitutional violation

that had only minimal effect far greater reach than either

the constitution requires or good sense warrants.”

I cannot rule out the possibility that nonflagrant

but unlawful police conduct that is relatively brief in dura-

tion and “minor” in its nature and degree of severity might

not significantly affect a suspect’s decision to give consent

yet still qualify as an unreasonable search or seizure for

constitutional purposes. Such a bare constitutional violation

120 State v. Unger

arguably could be a mere “but for” cause of obtaining dis-

puted evidence, and thus not require suppression.7 See Hall,

339 Or at 25 (“[T]his court has rejected the notion that evi-

dence is rendered inadmissible under Article I, section 9,

simply because it was obtained after unlawful police conduct

or because it would not have been obtained ‘but for’ unlawful

police conduct.”). It is difficult, however, to conceive of obvi-

ous examples of a “minor” constitutional violation that likely

would have had only a minimal effect on consent without

resorting to fine distinctions such as “unreasonable but just

barely so.” It is unsurprising that this court in Hall did not

undertake or endorse such a hairsplitting analysis. Judging

degrees of relative severity in determining the effect of a

constitutional violation on a defendant’s consent does not

readily lend itself to principled and predictable decision

making, and it is therefore best avoided except in the most

obvious case. This, in my view, is not such a case.

As noted, the state had the burden of showing by

a preponderance of the evidence that the warrantless entry

into and ensuing search of defendant’s residence was valid.

Tucker, 330 Or at 90-91. Thus, the state was required to

prove that the police trespass in this case did not signifi-

cantly affect defendant’s consent for the police to enter and

search his residence. Hall, 339 Or at 34-35. The evidence

showed that the police officers here had knocked for a signif-

icant period of time at doors of defendant’s residence where

they lawfully could be present. After receiving no response

for “two to three minutes,” they then unlawfully entered

the back yard of the residence and, knocking at a sliding

glass door to defendant’s bedroom, roused him out of bed.

Without advising defendant that he did not have to allow

them further entry, one of the officers told defendant that

the police had received complaints of drug activity at his

residence and asked defendant if he could enter. Defendant

asked to put on a robe and then allowed the four officers to

enter.

7

“In order that conduct be the actual cause of a particular result it is almost

always sufficient that the result would not have happened in the absence of the

conduct; or, putting it another way, that ‘but for’ the antecedent conduct the result

would not have occurred.” W. La Fave & A. Scott, Handbook on Criminal Law 249

(1972).

Cite as 356 Or 59 (2014) 121

Defendant led the officers from his bedroom, where

his girlfriend was still in bed, into his kitchen. An officer

repeated that they were investigating complaints about

drug activity and asked defendant it he would show them

around the house. Although the officers were polite and the

tone of the encounter was conversational, few people sub-

jected to it would regard such an intrusive, focused, and

determined police presence at their backyard bedroom door

as a minor or insignificant factor in deciding whether to give

consent to search their residence. Unsurprisingly, defendant

did give consent. Only after locating incriminating evidence

inside the residence did an officer read defendant a prepared

“consent to search” card. At that point, defendant exercised

his right to counsel, refused to sign the card, and, again,

predictably—but too late—asked the officers to leave.

Here, the unlawful trespass violated defendant’s

right to be secure against unreasonable searches of his

personal residence, because it closely preceded the initial

giving of consent, no cognizable intervening circumstance

broke the causal connection between the officers’ unlawful

presence at defendant’s bedroom door and the giving of con-

sent (or the ensuing discovery of the challenged evidence),

and the advice of rights came too late to make a practical

difference in defendant’s initial decision to give consent. To

punctuate matters, once defendant understood his rights, he

belatedly asked the officers to leave. Finally, and moreover,

even if the flagrancy of the police misconduct in this case

were relevant to the attenuation analysis, there was no evi-

dence that the officers mistakenly but reasonably believed

that they had acted lawfully in entering defendant’s back-

yard and knocking on his bedroom door, much less that any

such belief affected defendant’s decision whether to give con-

sent to the ensuing entry into and search of his residence.

Accordingly, I would conclude that the state failed

to meet its burden to show by a preponderance of the evi-

dence that the police trespass did not significantly affect

defendant’s consent to the entry into and search of his res-

idence. Suppression was required in those circumstances,

even though defendant voluntarily consented to the entry

and initial search of his residence. In my view, to so con-

clude does not undervalue the effect of defendant’s consent;

122 State v. Unger

rather, it accords that consent the reduced weight to which

it is properly entitled in the attenuation analysis, where the

police engaged in unlawful conduct in an effort to obtain

the consent and there is no indication that, in giving it, the

defendant was aware either of the unlawfulness of the police

conduct or of his right to refuse. I therefore respectfully

dissent.

BALDWIN, J., dissenting.

In this case, several officers deliberately violated

defendant’s privacy rights protected by Article I, section 9,

of the Oregon Constitution. After two of the officers entered

defendant’s backyard, they approached a sliding glass

door connected to defendant’s bedroom. Detective Roberts

knocked on the glass door, looked through it. and observed

defendant. Awakened by the intrusion, defendant opened the

door. Roberts asked to enter the residence to look around,

and defendant allowed him and the other officers to do so.

The officers then discovered illegal drugs in defendant’s resi-

dence. Today, by declining to suppress the evidence obtained

as a result of that deliberate violation of defendant’s privacy

rights, the majority departs from longstanding precedents

of this court protecting the privacy rights of citizens in their

homes from warrantless governmental intrusions.

Without a search warrant, the officers went to

defendant’s residence early on a Sunday morning to investi-

gate suspected drug activity. To be sure, the officers’ conduct

in knocking on the front doors of the residence accessible

to the public was appropriate and necessary based on the

information that they had received. However, rather than

staying within the constitutional bounds of a proper investi-

gation, the officers chose to pursue an illegal course of action.

Freelancing, the officers entered defendant’s backyard and

approached a private entrance to defendant’s bedroom.

Detective Scharmota testified that, when defendant came to

the door, “[h]e had just gotten out of bed. He complained of

some back pain, he was pretty sore.” The trial court found

that defendant “awoke to the knock on the slider door in the

back and the [detectives] allowed him to put a robe on” and

that “it was obvious that the girlfriend was still in the bed”

when the detectives entered defendant’s bedroom.

Cite as 356 Or 59 (2014) 123

On review of the trial court’s denial of defendant’s

motion to suppress, the Court of Appeals rejected the state’s

argument “that the officers’ trespass did not taint the defen-

dant’s consent.” State v. Unger, 252 Or App 478, 487, 287

P3d 196 (2012). Betraying incredulity, the unanimous panel

opined that, “if the state’s argument were correct, officers

could break into an individual’s home, sit inside and wait for

the defendant to return home, and then ask the defendant

for consent to search the home.” Id. at 487-88. The court

concluded,

“In sum, the officers violated defendant’s constitutional

rights by trespassing on his property, and that violation

tainted his subsequent consent to the officers’ entry into

and search of his house. As a result, all evidence obtained

as a result of the entry and search should have been

suppressed.”

Id. at 488.

According to the rule now adopted by the majority,

police officers may deliberately violate the privacy rights

of ci

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