State v. Musser

148 August 28, 2014 No. 60

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

DEBORAH ANN MUSSER,

Respondent on Review.

(CC 201001347; CA A145540; SC S060868)

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.

Peter Gartlan, Chief Defender, Salem, argued the cause

and filed the brief for respondent on review.

BALMER, C. J.

The decision of the Court of Appeals is affirmed. The

judgment of the circuit court is reversed, and the case is

remanded to the circuit court for further proceedings.

Walters, J., specially concurred and filed an opinion, in

which Baldwin, J., joined.

Brewer, J., specially concurred and filed an opinion.

Baldwin, J., specially concurred and filed an opinion.

______________

*  Appeal from Lane County Circuit Court, Debra K. Vogt, Judge. 253 Or App

178, 289 P3d 340 (2012).

Cite as 356 Or 148 (2014) 149

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

sent search, arguing that her consent had been derived from a prior unlawful

stop. The trial court denied the motion and found defendant guilty at a stipulated

facts trial. The Court of Appeals reversed. Held: (1) The Court adhered to its

holding in State v. Unger, 356 Or __, __ P3d __ (2014) (decided this date), modify-

ing part of the exploitation analysis first described in State v. Hall, 339 Or 7, 115

P3d 908 (2005); and (2) applying that modified analysis, the police improperly

exploited their unlawful stop of defendant to obtain her consent to the search.

The decision of the Court of Appeals is affirmed. The judgment of the cir-

cuit court is reversed, and the case is remanded to the circuit court for further

proceedings.

150 State v. Musser

BALMER, C. J.

This is one of three cases that we decide today in

which we examine when evidence obtained pursuant to a

voluntary consent search must be suppressed on the the-

ory that the consent was the result of exploitation of prior

illegal police conduct. In the first of the three cases, State v.

Unger, 356 Or ___, ___ P3d ___ (Aug 28, 2014), we modified

part of the exploitation analysis announced in State v. Hall,

339 Or 7, 115 P3d 908 (2005). We disavowed the require-

ment in Hall that a defendant must establish a “minimal

factual nexus” between the unlawful police conduct and the

disputed evidence, and we instead held that, when a defen-

dant challenges the validity of his or her consent based on a

prior police illegality, the state bears the burden of demon-

strating that the consent was voluntary and was not the

product of police exploitation of that illegality. Unger, 356

Or at ___. We also emphasized that the determination of

whether the police have exploited their unlawful conduct

to obtain a defendant’s consent depends on the totality of

the circumstances. That analysis, we stated, should recog-

nize the importance of the voluntariness of the consent and

should consider not only the temporal proximity between

the unlawful conduct and the consent and any intervening

or mitigating circumstances—factors emphasized in Hall—

but also the nature of the unlawful conduct, including its

purpose and flagrancy. Id. at ___.

In this case, a police officer on patrol encountered

defendant at 10:00 p.m. in an area behind a shopping cen-

ter where criminal activity frequently occurred. The offi-

cer stopped defendant and obtained her consent to search

pouches that he saw inside her purse, as well as the remain-

der of her purse. During those searches, the officer found

drugs and drug paraphernalia. Defendant sought to sup-

press that evidence at trial, arguing, among other things,

that the stop had been unlawful and that defendant’s con-

sent had been derived from the unlawful stop in violation

of Article I, section 9, of the Oregon Constitution. The trial

court denied that motion, and defendant was convicted of

unlawful possession of methamphetamine at a stipulated

facts trial. The Court of Appeals reversed, concluding that

the officer had stopped defendant unlawfully and that the

Cite as 356 Or 148 (2014) 151

incriminating evidence had derived from that stop. State v.

Musser, 253 Or App 178, 184, 289 P3d 340 (2012). For the

reasons discussed below, we affirm the decision of the Court

of Appeals.

A police officer was patrolling an alley behind a

shopping center around 10:00 p.m., because he often had

encountered people engaging in illegal activity in that area.

At that time of night, the majority of the businesses in the

shopping center were closed. The businesses that remained

open were in the front of the complex, but they were near a

walkway that connected the front of the shopping center to

the alley that the officer was patrolling. As he drove through

the alley, the officer saw defendant and a male compan-

ion on the walkway. Because the alley was a place “where

people frequently engage[d] in criminal activity,” the offi-

cer approached defendant and her companion “basically, to

make sure they were not doing anything wrong.”1 The officer

also believed that they were trespassing because of the time

of night.

As the officer approached in his car, which had

its spotlight and alley lights on, defendant started to walk

towards the front of the shopping center. The officer got out

of his car and said “Hey, I need to talk to you.” Instead of

talking to the officer, however, defendant continued walk-

ing toward the front of the shopping center, prompting the

officer to say “in a more direct, firm tone,” “Hey, come back

here. I need to talk to you.” Defendant came back to speak

to the officer, but told him that she wanted to return to the

front of the shopping center where her friends were.

The officer requested defendant’s identification.

Defendant was “nervous” and “fidgety.” Based on defendant’s

“inability to stand still” and her “nervousness as compared

to the male, who was completely calm,” the officer suspected

that defendant had recently used methamphetamine or

some other stimulant.

While defendant was looking through her purse for

identification, the officer noticed two Crown Royal pouches

in her purse. Based on his suspicion that she had recently

1

The quotations in the factual summary are from testimony below.

152 State v. Musser

used methamphetamine, the officer “thought it was more

likely than not that she probably had some controlled

substances in her purse.” After the officer ran the name

on defendant’s identification, he “asked for her consent to

search the two Crown Royal pouches that were in her purse,

and she agreed.” Inside one of the pouches, the officer dis-

covered a metal spoon with burn marks on it, a small metal

scraping tool, and a small black pouch with white residue

inside. The officer believed that the spoon and the scraping

tool had been used in connection with methamphetamine,

and he therefore suspected that the white residue was

methamphetamine.

After the officer searched the Crown Royal pouches,

a second officer arrived to assist with the investigation. The

first officer then asked for defendant’s consent to search the

remaining contents of her purse, and defendant agreed.

During that search, the officer discovered a third pouch con-

taining a bag with a white crystalline substance inside that

later tested positive for methamphetamine. The whole inter-

action, from when the officer initially contacted defendant to

when he wrote her a citation, lasted about an hour.

The state charged defendant with unlawful posses-

sion of methamphetamine, and defendant moved to suppress

her statements and the items found in her purse. Defendant

argued, among other things, that the officer had stopped her

unlawfully and that, to the extent that she had consented,

her consent had been “derived from” the unlawful stop.2 The

trial court denied defendant’s motion to suppress, reasoning

that the officer had “reasonably suspected that some crim-

inal activity was afoot” when he had stopped defendant.

The case proceeded to a stipulated facts trial, and the court

found defendant guilty.

On appeal, the parties focused their arguments on

whether the officer had had reasonable suspicion to stop

2

In her memorandum in support of the motion to suppress, defendant also

argued that her consent was “not knowing or voluntary.” The trial court did not

address that issue, and defendant did not raise it on appeal or in her brief before

this court, instead focusing on the exploitation prong of the analysis. At oral

argument, defense counsel “acknowledge[d] that the consent [had been] volun-

tary,” so we do not address that issue.

Cite as 356 Or 148 (2014) 153

defendant, and the Court of Appeals likewise focused its

opinion on that issue. See Musser, 253 Or App at 181 (stating

that the “issue on appeal is whether [the officer] had rea-

sonable suspicion to stop defendant for criminal trespass”).

The court addressed defendant’s exploitation argument in

a single sentence: “Because [the officer] stopped defendant

without reasonable suspicion and there is no dispute that

the evidence he subsequently obtained derived from that

stop, the trial court erred by denying defendant’s motion to

suppress.”3 Id. at 184.

The state sought review. On review, the state con-

cedes that the officer stopped defendant without reason-

able suspicion, in violation of Article I, section 9. The state

argues that, despite that illegality, the evidence discovered

in defendant’s purse should not be suppressed. As in Unger,

the state argues that, if a police illegality is followed by a

voluntary consent to search, then any evidence obtained as

a result of that search is admissible. The state acknowledges

that that result would require this court to overrule Hall.

Alternatively, the state argues that this court should mod-

ify Hall as it did in State v. Hemenway, 353 Or 129, 295

P3d 617, vac’d as moot, 353 Or 498, 302 P3d 413 (2013), by

emphasizing that the exploitation analysis set forth in Hall

overvalued the temporal proximity between the illegality

and the consent, while undervaluing the defendant’s volun-

tary consent.

Under either test, the state argues, the evidence in

this case should not be suppressed. Under its proposed rule,

the state argues, defendant’s consent to both searches was

voluntary, and that fact—in and of itself—provides a basis

for denying a motion to suppress. Even if this court rejects

that approach, the state argues that, under its alternative

3

The state had conceded that, under the Court of Appeals’ prior applications

of Hall, the evidence was the product of the stop. The state noted, however, that

in its view, Hall did not set forth the proper test for when a prior police illegality

requires suppression of evidence obtained pursuant to a consent search. Instead,

the state argued, as it does here, that the only relevant inquiry was whether the

consent was voluntary. Nonetheless, the state acknowledged that only this court

could modify or overrule Hall, and the state noted that this court likely would

address the issue in State v. Hemenway, 353 Or 129, 295 P3d 617, vac’d as moot,

353 Or 498, 302 P3d 413 (2013), which was pending before this court at that time.

154 State v. Musser

proposed rule, nothing about the interaction “significantly

affected” defendant’s decision to consent because the inter-

action was short, the officer did not physically restrain

defendant, and the officer was not otherwise aggressive or

intimidating.

Although defendant agrees that this court should

disavow the minimal factual nexus test from Hall, as the

court did in Hemenway, defendant argues that this court

should retain the remaining exploitation analysis set forth

in Hall, rather than modifying it as we did in Hemenway.

Defendant argues, however, that the evidence must be

suppressed under the analysis articulated in either Hall

or Hemenway because the officer requested consent to

search shortly after the unlawful stop, there were no inter-

vening or mitigating circumstances, and the interaction

never deescalated from a criminal investigation into mere

conversation.

In Unger, today we held that the determination as

to whether evidence found in a search should be suppressed

because police exploited their violation of a defendant’s

Article I, section 9, rights to obtain consent to the search

requires consideration of the totality of the circumstances

surrounding the police-defendant encounter. In reaching

that conclusion, we rejected both the state’s view that vol-

untary consent generally cures any taint that might have

arisen from prior police misconduct and the defendant’s view

that voluntary consent that follows unlawful police conduct

generally is the product of exploitation and must lead to sup-

pression, in the absence of mitigating or intervening circum-

stances, such as Miranda warnings or an admonition that

consent need not be granted. As part of the totality of the

circumstances, we described the considerations relevant to

determining whether the police improperly “took advantage

of” or “exploited” their unlawful conduct to gain the defen-

dant’s consent to search. We noted that voluntary consent

was an important, but not dispositive consideration, and we

examined the nature of the unlawful conduct, including its

purpose and flagrancy, the temporal proximity between the

unlawful conduct and consent, and the presence of inter-

vening or mitigating circumstances. We also recognized,

Cite as 356 Or 148 (2014) 155

as we had in Hall, that evidence should not be excluded on

exploitation grounds if it inevitably would have been discov-

ered or if the police discovered the evidence though a source

independent of the illegality. See Unger, 356 Or at ___.

We applied those considerations in Unger and con-

cluded that the evidence in that case did not have to be

suppressed. There, four detectives went to the defendant’s

house in response to a complaint about drug activity and

information from an informant that there were children at

the house with access to drugs and guns. When knocking

on two front doors failed to elicit any response, detectives

trespassed onto the defendant’s property by following a path

around to the back of the house, where they knocked on a

sliding glass door. Defendant came to the door and, after

the detectives explained why they were there, the defendant

consented to the detectives entering the home, then agreed

to show them around the house. While walking through the

house, one detective discovered a bag with methamphet-

amine residue. There, we concluded that the misconduct

was limited in extent, nature, and severity because the offi-

cers had followed a path around the house without cross-

ing any barriers and the detectives had interacted with the

defendant just as they would have at the front door. Id. at

__. Moreover, the detectives’ purpose in going to the back

door was to contact the defendant, not to make the defen-

dant more likely to consent. Id. at __. Although the consent

had been given in close temporal proximity to the illegality,

and there were no intervening or mitigating circumstances,

under the totality of the circumstances, the state met its

burden of showing that the detectives’ minimal intrusion

did not require suppression. Id. at ___.

Similarly, in State v. Lorenzo, 356 Or ___, ___

P3d ___ (Aug 28, 2014), which we also decided today, we

affirmed the trial court’s denial of a motion to suppress evi-

dence obtained pursuant to a voluntary consent search that

followed an officer opening the defendant’s apartment door

and reaching into the apartment to knock on his bedroom

door. There, because the officer was concerned for the defen-

dant’s safety, the officer had made repeated attempts to con-

tact the defendant before reaching inside the apartment to

156 State v. Musser

knock on the bedroom door. After knocking on the defen-

dant’s bedroom door, the officer waited outside the apart-

ment until the defendant came to the door and consented

to allowing the officer to enter the apartment. When he

entered the apartment, the officer smelled marijuana, and

the defendant then consented to a search of his bedroom.

Applying the Unger analysis, we noted that there was tem-

poral proximity between the illegality and the consent, but

that other considerations cut in the opposite direction. Id.

at ___. In particular, we reasoned that the search was lim-

ited in extent and severity and was not an effort to direct or

control the defendant. Id. at __. Moreover, although there

were no intervening or mitigating circumstances, the pur-

pose of the search was to check on the defendant’s welfare

and not to conduct an investigation. Id. at ___. As to fla-

grancy, we acknowledged that entry into the defendant’s

apartment was unlawful, but explained that the officer’s

conduct was restrained, without threats or intimidation. Id.

at ___. Based on all those considerations, we concluded that

the state had met its burden of showing that the police did

not exploit their unlawful conduct to obtain the consent.

We now apply the principles set out in Unger to

the facts here. A police officer saw defendant on a walkway

behind a shopping center at a time when most of the busi-

nesses were closed. The area was one where the officer knew

that illegal conduct took place. The officer directed defen-

dant to come speak to him, saying, “Hey, I need to talk to

you.” When defendant continued walking, the officer stated,

in a “more direct, firm tone,” “Hey, come back here. I need to

talk to you.” Defendant complied. As the state concedes, the

officer lacked reasonable suspicion that defendant had com-

mitted a crime, and the officer’s conduct was an unconsti-

tutional stop of defendant. The stop continued for about an

hour until defendant was cited and released. In our view, the

stop here was a more severe violation of defendant’s rights

than the violation in Unger, which was a daytime trespass

onto the defendant’s property that allowed the police to con-

tact the defendant at his back door, or the similar conduct

in Lorenzo, where the officer reached into the defendant’s

apartment to knock on the defendant’s bedroom door in an

effort to contact him because of concern for his safety. Here,

Cite as 356 Or 148 (2014) 157

the police order to defendant to return and talk to the police,

rather than to continue in the direction she was heading,

clearly indicated to defendant that she had no choice but to

respond to the order, bringing her significantly under the

control of the police.

Defendant also is correct—and the state does not

dispute—that the request to defendant to consent to the

search of her purse occurred during the unlawful stop,

thus establishing the “temporal proximity” that our cases,

including Unger and Hall, have indicated is a relevant con-

sideration in the exploitation analysis. The state does not

argue that the evidence found in defendant’s purse would

have “inevitably” been discovered or that it would have been

(or was) discovered by a means independent of defendant’s

consent.

Neither does the state argue that intervening or

mitigating circumstances—other than defendant’s volun-

tary consent to the search—occurred between the unlawful

stop and the discovery of the evidence. Rather, the state’s

central argument is that defendant’s consent to the request

to search the pouches and her purse, because it was vol-

untary, was sufficient to vindicate defendant’s rights. Put

differently, the state argues that, because a voluntary-

consent search is “reasonable,” defendant’s right to be free

from “unreasonable” searches was not violated. In Unger,

we accepted the state’s argument that this court in Hall

had failed to give sufficient weight to an individual’s volun-

tary consent to a search. We did not, however, suggest that

voluntary consent always would “trump” the effect of prior

police misconduct; rather, we identified a number of nonex-

clusive considerations that should be considered in review-

ing the totality of the circumstances to determine whether

the police “exploited” or “took advantage” of their unlawful

conduct to obtain the consent. See Unger, 356 Or at ___.

We return to a discussion of those considerations in

this case. We observed in Hall and reaffirmed in Unger that

exploitation of police misconduct may exist if the police seek

the defendant’s consent solely as a result of knowledge of

inculpatory evidence obtained from their unlawful conduct.

Hall, 339 Or at 35; Unger, 356 Or at ___. The facts support

158 State v. Musser

defendant’s argument that such exploitation occurred here,

because the officer pursued several lines of inquiry “spurred

by his observations of the contents of defendant’s purse

during the unlawful seizure.” After defendant, at the offi-

cer’s direction, came towards him, he asked for identifica-

tion. While defendant was looking through her purse for

identification, the officer saw the two Crown Royal pouches.

Because of his observation that she was nervous and fidgety,

and his suspicion that defendant had drugs in the purse,

when the officer saw the Crown Royal pouches—in which,

as the trial court observed, drug users often carry their

drugs—he asked for consent to search them. In contrast to

the facts in Unger, where the trespass onto defendant’s prop-

erty only brought the police into contact with the defendant,

or the similar circumstances in Lorenzo, the unlawful police

conduct here led directly to observations, including obser-

vation of the pouches that the officer suspected contained

drugs, and then to the request for consent to search. Here,

there was not simply “but for” causation—unlawful police

conduct and then a request for consent. Instead, the unlaw-

ful conduct led to the request for identification, which led to

observation of pouches that the officer believed contained

drugs, which led to the request to search and the evidence

ultimately obtained. That evidence was the product of the

initial unlawful stop.

In Unger, we also identified the “purpose and fla-

grancy” of the misconduct as relevant to determining

exploitation. As we discussed there, the inquiry into “pur-

pose” is not focused on the officer’s subjective intent, but on

the objective circumstances, including verbal and nonverbal

conduct, that may indicate whether police took advantage

of the prior illegality to obtain defendant’s consent. 356 Or

at ___. Here, without—the state concedes—probable cause

or reasonable suspicion to believe that defendant was com-

mitting any crime, the officer violated the constitutional

rights of defendant and her friend for the purpose of “basi-

cally [making] sure they were not doing anything wrong:

Breaking the law, damaging any property.”

Police obviously need reasonable leeway to inves-

tigate and prevent crimes, and monitoring locations where

criminal activity frequently occurs and where trespassers

Cite as 356 Or 148 (2014) 159

are often found is part of good police work. But police are

not authorized to detain and question citizens merely to

“make sure they [are] not doing anything wrong.” The pur-

pose of the unlawful stop here—in contrast to the “knock-

and-talk” in Unger, which was precipitated by information

about the presence of drugs, guns, and children in a partic-

ular house—apparently was a “shot in the dark” to check for

criminal activity.4 But here, even that generalized concern

about trespassing and criminal activity gave way as the

encounter developed, with the officer eventually focusing—

as defendant well understood—on drug possession. The ini-

tial and developing purpose of the police misconduct in con-

tinuing to detain defendant while inquiring about various

possible crimes shows the state taking advantage of that

misconduct in a way that likely had an effect on defendant’s

decision to consent.

As to the flagrancy of the police conduct, the state

argues that the seizure was only “minimally restrictive,”

that defendant was never handcuffed, and that the police

were not—and were not perceived by defendant to be—

aggressive or intimidating. All that may be true. But fla-

grancy is simply one consideration in the larger exploitation

analysis. We agree with defendant that police may not pur-

posefully and severely interfere with a person’s Article I,

section 9, rights—even if they do so politely.

For the reasons set out above, and applying the

analysis described in Unger, we conclude that the police

improperly exploited their unlawful stop of defendant to

obtain her consent to the search. We agree with the Court

of Appeals that the resulting evidence should have been

suppressed.

The decision of the Court of Appeals is affirmed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court for further proceedings.

4

The purpose of the unlawful stop here also stands in contrast to Lorenzo,

where the officer went to the defendant’s apartment to check on him after learn-

ing that the defendant’s roommate, who had just tried to commit suicide, owned

a gun. Nothing in the record there indicated that the officer was concerned about

any criminal activity on the part of the defendant when the officer knocked on the

defendant’s interior bedroom door.

160 State v. Musser

WALTERS, J., specially concurring.

I concur in the judgment of the court and its rea-

soning that, because the unlawful stop “led to the request

for identification, which led to the observation of pouches

that the officer believed contained drugs, which led to the

request to search and the evidence ultimately obtained,” the

“evidence was the product of the initial unlawful stop” and

must be suppressed. State v. Musser, 356 Or ___, ___, ___

P3d ___ (2014). I also agree that the officer took advantage

of the unlawful stop “in a way that likely had an effect on

defendant’s decision to consent.” Id. at ___. I write, however,

with a plea for consistency and simplicity.

In State v. Unger, 356 Or ___, ___ P3d ___ (2014),

the majority specifically declared that it was adhering to

the following principle articulated in State v. Hall, 339 Or

7, 115 P3d 908 (2005), and other cases: “A causal connection

requiring suppression may exist because the police sought

the defendant’s consent solely as a result of knowledge of

inculpatory evidence obtained from unlawful police con-

duct.” Unger, 356 Or at ___. The majority described the con-

nection between the illegality and the consent to search as

“a direct causal connection.” Id. at ___. The majority then

went on to discuss “less direct exploitation,” which, it said,

requires consideration of the totality of the circumstances

to determine whether the consent was sufficiently related to

the unlawful police misconduct to require suppression. Id.

at __.

To me, this case is a perfect example of the “direct

causal connection” described and adhered to in Unger, and

the court apparently does not disagree. Musser, 356 Or at

___. However, the court nevertheless goes on to discuss

whether the constitutional violation was severe, purpose-

ful, or flagrant. When previously describing the exploitation

that occurs in circumstances of “direct causal connection,”

the court has not considered the factors applicable in “less

direct exploitation” cases, and I question whether that com-

plexity is necessary or desirable. The cause of consistency

and simplicity would be advanced if the court were to con-

clude, without adjectival measuring, that, in this case, the

evidence must be suppressed because the officer violated

Cite as 356 Or 148 (2014) 161

the constitution, obtained an advantage that he otherwise

would not have had, and then exploited that advantage to

obtain consent to search.

The cause of consistency also would be advanced if

the court were to recognize that the same reasoning that

requires exclusion of the inculpatory evidence in this case

requires exclusion of the inculpatory evidence at issue in

Unger. In both cases, the officers approached the defen-

dants to try to ascertain whether criminal conduct was tak-

ing place. In this case, the officer violated the constitution

because he stopped defendant without reasonable suspicion.

In Unger, the officers violated the constitution because they

invaded the defendant’s property and privacy without his

permission. In both cases, the officers gained an advantage

that they would not have had had they operated within the

law. In this case, the unconstitutional stop permitted the

officer to get defendant’s attention, see pouches, and ask for

consent to search. In Unger, the unconstitutional intrusion

permitted the officers to get the defendant’s attention and

ask for consent to search. To be consistent, the court, in both

cases, should require the suppression of the evidence that

the officers obtained by pressing their advantage.

I am heartened that, in this case, the court recog-

nizes the causal link between the constitutional violation

and the inculpatory evidence and orders its suppression. I

take hope from the fact that, in State v. Ayles, 348 Or 622,

636, 237 P3d 805 (2010), State v. Rodgers/Kirkeby, 347 Or

610, 227 P3d 695 (2010), and State v. Hall, 339 Or 7, 34-35,

115 P3d 908 (2005), the court recognized the same causal

link and also ordered suppression, and that, in the trilogy

of cases decided today, this court did not explicitly overrule

those cases. My plea is that, in the years to come, courts will

continue to adhere to the reasoning in this and those cases

and, in doing so, will make the law more consistent, more

easily applied, and more true to its constitutional purpose.

Baldwin, J., joins in this opinion.

BREWER, J., specially concurring.

I concur in the judgment of the court but, for the

reasons stated in my dissenting opinion in State v. Unger,

162 State v. Musser

356 Or ___, ___, ___ P3d ___ (2014) (Brewer, J., dissenting),

I am unable to join in the opinion of the court in this case.

BALDWIN, J., specially concurring.

I concur in the judgment of the court but, for the

reasons I explained in my dissenting opinion in State v.

Unger, 356 Or ___, ___, ___ P3d ___ (2014) (Baldwin, J., dis-

senting), I do not join the majority’s reasoning in this case.