State v. Bailey

486 November 6, 2014 No. 69

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

CLARK ALLEN BAILEY,

aka Clarke Allen Bailey,

Petitioner on Review.

(CC 101033810; CA A148109; SC S061647)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 6, 2014.

Anne Fujita Munsey, Senior Deputy Public Defender,

Salem, argued the cause and filed the briefs for petitioner

on review. With her on the briefs were Peter Gartlan, Chief

Defender, and Daniel Bennett, Deputy Public Defender.

Anna M. Joyce, Solicitor General, Salem, argued the

cause and filed the brief for respondent on review. With her

on the brief were Ellen F. Rosenblum, Attorney General, and

Peenesh H. Shah, Assistant Attorney General.

BREWER, J.

The decision of the Court of Appeals is reversed. The

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

remanded to the circuit court for further proceedings.

______________

*  Appeal from Multnomah County Circuit Court, Edward J. Jones, Judge,

258 Or App 18, 308 P3d 368 (2013).

Cite as 356 Or 486 (2014) 487

In this case, police officers unlawfully detained defendant for an investi-

gatory purpose without reasonable suspicion that he had engaged in unlawful

activity. During that unlawful detention, which lasted more than 30 minutes, the

officers ascertained defendant’s identity and ran a warrant check, which revealed

that defendant was the subject of an outstanding arrest warrant. The officers

arrested defendant and, during a search incident to arrest, discovered that he

was in possession of illegal drugs. Based on that evidence, the state prosecuted

defendant for various drug offenses.

Defendant moved to suppress the evidence, contending that it was the result

of an unlawful seizure and subject to the federal exclusionary rule. The circuit

court and Court of Appeals rejected defendant’s argument, relying on State v.

Dempster, 248 Or 404, 434 P2d 746 (1967), in which this court applied the fed-

eral exclusionary rule and adopted a per se rule: the discovery and execution

of a valid arrest warrant necessarily break the connection between preceding

unlawful police conduct and a search incident to the arrest. Held: The decision of

the Court of Appeals and the judgment of the circuit court are reversed. The case

is remanded to the circuit court for further proceedings. Dempster’s per se rule

is inconsistent with the United States Supreme Court’s subsequent development

of the Fourth Amendment. The causal connection between preceding unlawful

police conduct and a search incident to the arrest should be tested according to

the three-factor test established by the United States Supreme Court in Brown

v. Illinois, 422 US 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975). That test looks at

(1) the temporal proximity between unlawful police conduct and the discovery of

challenged evidence; (2) the presence of intervening circumstances; and (3) the

purpose and flagrancy of the official misconduct. Applying that three-factor test

to the facts established by the circuit court, the circuit court erred in denying

defendant’s motion to suppress.

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

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

proceedings.

488 State v. Bailey

BREWER, J.

Police officers unlawfully detained defendant when

he was a passenger in a car. During that unlawful deten-

tion, the officers ascertained defendant’s identity and ran a

warrant check, which revealed that defendant was the sub-

ject of an outstanding arrest warrant. The officers arrested

defendant and, during a search incident to arrest, discov-

ered that he was in possession of illegal drugs. Based on

that evidence, the state prosecuted defendant for various

drug offenses. Defendant moved to suppress the evidence

under the state and federal exclusionary rules, which,

subject to certain exceptions—including the attenuation

exception—prohibit the state from using at trial evidence

that was obtained as a result of an unreasonable search or

seizure. See State ex rel Dept. of Human Services v. W. P., 345

Or 657, 664-69, 202 P3d 167 (2009) (describing operation of

exclusionary rules under Article I, section 9, of the Oregon

Constitution, and the Fourth Amendment to the United

States Constitution). As explained below, this case requires

us to consider whether, under the Fourth Amendment, the

discovery and execution of a valid warrant for defendant’s

arrest sufficiently attenuated the connection between defen-

dant’s unlawful detention and evidence found in the search

incident to his arrest so as to permit the state to use the

evidence against defendant at trial.

The circuit court and the Court of Appeals rejected

defendant’s arguments and applied a per se rule to the atten-

uation analysis: The discovery and execution of a valid arrest

warrant necessarily break the connection between preced-

ing unlawful police conduct and a search incident to the

arrest. State v. Bailey, 258 Or App 18, 308 P3d 368 (2013).

The Court of Appeals drew that rule from this court’s deci-

sion in State v. Dempster, 248 Or 404, 434 P2d 746 (1967).

Bailey, 258 Or App at 21-29. For the reasons explained

below, we conclude that Dempster’s per se rule is inconsistent

with the subsequent development of the Fourth Amendment

attenuation exception set out in Brown v. Illinois, 422 US

590, 95 S Ct 2254, 45 L Ed 2d 416 (1975), where the United

States Supreme Court rejected such an approach. Id. at 603.

Instead, Brown requires courts to consider three factors in

the attenuation analysis: (1) the temporal proximity between

Cite as 356 Or 486 (2014) 489

unlawful police conduct and the discovery of challenged evi-

dence; (2) the presence of intervening circumstances; and

(3) “particularly, the purpose and flagrancy of the official

misconduct.” Id. at 603-04. Applying those factors in this

case, we conclude that the circuit court erred in denying

defendant’s motion to suppress.

I. BACKGROUND

In reviewing the denial of a motion to suppress, we

are bound by the circuit court’s findings of historical fact

that are supported by evidence in the record. State v. Stevens,

311 Or 119, 126, 806 P2d 92 (1991). If the circuit court does

not make findings on all pertinent historical facts and there

is evidence from which those facts could be decided more

than one way, we will presume that the court found facts in

a manner consistent with its ultimate conclusion. Id. at 127.

On review, our role is to decide whether the court correctly

applied the law to those historical facts. State v. Holdorf, 355

Or 812, 814, 333 P3d 982 (2014). The factual record in this

case is largely uncontested for purposes of our review. We

set out the pertinent facts as follows.

During a period of escalating gang violence, numer-

ous gang members attended the funeral of an associate in

Portland. Police officers were concerned that the funeral

would spark additional violence, so they monitored a house

where gang members had gathered after attending the

funeral. An officer in an aircraft saw several people leave

the house and get into a car that the officer thought might

be a rental car. According to one officer, gang members often

use rental cars for drive-by shootings and other crimes.

The airborne officer asked a patrol unit to stop the car. The

patrol unit did so after observing the driver commit a minor

traffic violation.

Defendant was a passenger in the back seat of

the car when it was stopped. A patrol officer asked the

driver for identification and proof of insurance. The driver

produced her driver license, confirmed that the car was

a rental, and provided an expired insurance card. The

driver stated that, although the card showed that her

insurance coverage had expired, she still had coverage

through the same insurer. The officer went to his patrol

490 State v. Bailey

car to contact the driver’s insurance company and deter-

mine whether the driver had maintained coverage. While

doing so, the officer asked his partner to determine the

identities of the passengers, including defendant. When

that officer asked defendant for his name, defendant

refused to provide it.

Soon after the patrol unit stopped the car, four

back-up officers arrived, including Officer Stradley. Stradley

recognized defendant as a gang associate, but he did not

remember defendant’s name. Stradley asked for defendant’s

identification, but defendant again refused. Stradley then

asked Officer Burley to come to the scene for the express

purpose of identifying defendant and another passenger

who also had refused to identify himself. Burley was work-

ing on a gang unit at the time, and Stradley “thought maybe

he’d be able to recognize these guys.” Burley, however, was

engaged in other work and did not arrive for another 25

minutes. During that time, Stradley attempted to obtain a

list of individuals associated with the driver, hoping that it

would jog his memory. Stradley testified that it would have

been against Stradley’s interest to inform defendant that he

was free to leave because Stradley wanted to have defendant

identified. During the course of the stop, one of the officers

told the driver that the stop would go faster if the driver

would identify the passengers in the car.

Burley and his partner arrived approximately 30

minutes after the patrol unit stopped the car. At that point,

there were eight officers at the scene. Once there, Burley

quickly was able to identify defendant. Stradley immediately

performed a warrant check and learned that defendant was

the subject of an outstanding arrest warrant. Stradley then

arrested defendant pursuant to the warrant. During the

ensuing search incident to defendant’s arrest, Burley found

a plastic bag containing a white substance under defendant’s

tongue. The substance later was determined to be cocaine.

In the search, officers also found $700 in cash in defendant’s

possession.

Based on that evidence, the state charged defendant

with delivery of cocaine, ORS 475.880, possession of cocaine,

ORS 475.884, and tampering with physical evidence, ORS

Cite as 356 Or 486 (2014) 491

162.295. Before trial, defendant moved to suppress the evi-

dence discovered during the search incident to arrest. The

circuit court concluded that the patrol officers had lawfully

stopped the car, but found that the stop should have taken

no more than five minutes to complete their investigation of

the traffic infraction and determine whether the driver was

carrying proof of insurance.1 After that point, the court con-

cluded, the officers had extended the stop without reason-

able suspicion or probable cause, and the stop of the vehicle

and its occupants therefore became unlawful. The court also

determined that the officers had no reasonable suspicion or

probable cause to hold defendant but that he had not been

free to leave and, therefore, had been unlawfully detained.

The circuit court nevertheless denied defendant’s motion to

suppress. According to the court, “[O]nce [the officers] dis-

cover the warrant[,] it does cure those prior illegalities. And

once they discover the warrant, the officers, evidence-wise,

are, in effect, home free.” Defendant was subsequently con-

victed after a stipulated facts trial.

On appeal, a divided Court of Appeals panel

affirmed the circuit court’s suppression ruling. Bailey, 258

Or App at 18. In doing so, the Court of Appeals relied heav-

ily on Dempster, in which this court had held, under the

Fourth Amendment, that the discovery and execution of a

valid arrest warrant that produces incriminating evidence

in a search incident to the arrest attenuates the taint of pre-

ceding unlawful police conduct. Id. at 21-28. The Court of

Appeals further held—based on its own decisions that had

applied the reasoning in Dempster—that the discovery and

execution of the arrest warrant in this case attenuated the

taint of defendant’s unlawful detention under Article I, sec-

tion 9, of the Oregon Constitution. Id. at 28. Judge Egan dis-

sented, reasoning that intervening developments in federal

constitutional law precluded the outcome that the majority

reached. Id. at 30-38. Defendant now seeks review in this

court and contends that the circuit court erred by denying

his motion to suppress.

1

The driver ultimately was cited for failing to signal a turn and for failure to

provide current proof of insurance.

492 State v. Bailey

II. ANALYSIS

A.  State v. Dempster

To set the stage for our discussion of the applicable

constitutional principles, it is helpful to examine in some

detail this court’s decision in Dempster. There, an officer who

already knew the defendant spoke with him on the street.

The officer recently had learned that the defendant was on

probation. During the conversation, the defendant revealed

that he was living with a person whom the officer knew was

under investigation for criminal activity. The officer either

asked or ordered the defendant to come to the police station

while the officer contacted the defendant’s probation officer.

At the station, the officer checked the defendant’s records

and learned that there was an outstanding warrant for his

arrest. The officer placed the defendant under arrest. In a

search incident to arrest, the officer found drugs and related

paraphernalia in the defendant’s possession. Dempster, 248

Or at 905-06.

The state charged the defendant with unlawful

possession of the drugs and paraphernalia. The defendant

moved to suppress the evidence, asserting that the officer

unlawfully had detained him before discovering the arrest

warrant and that the evidence that the officer had found in

the search was “the ‘fruit’ of an illegal arrest.” Id. at 407.

A majority of this court rejected the defendant’s argument.

The court did not resolve whether the defendant’s initial

detention was unlawful. Instead, the court held that, even

if the initial detention were unlawful, the evidence was not

subject to suppression because the “defendant was lawfully

arrested at the police station before he was searched.” Id.

The court concluded that, because the defendant had been

“lawful[ly] arrested” under a valid warrant, “the connection

between the earlier alleged illegal arrest and the subsequent

search had become so attenuated by the intervening legal

arrest as to dissipate the taint.” Id. at 407-08. In reaching

that conclusion, the court cited two United States Supreme

Court decisions, neither of which the court undertook to

link analytically to the factual circumstances presented in

Dempster. See id. (citing Wong Sun v. United States, 371 US

471, 487, 83 S Ct 407, 9 L Ed 2d 441 (1963), and Nardone v.

Cite as 356 Or 486 (2014) 493

United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed 307

(1939)).

Justice O’Connell dissented. He would have con-

cluded that the officer had unlawfully detained the defen-

dant before discovering the warrant and that, as a conse-

quence, the evidence discovered in the search incident to

arrest should be suppressed. The dissent

“[knew] of no other way to discourage this kind of police

practice—a practice which, if condoned, would permit

arrest and detention without probable cause for the pur-

pose of making exploratory searches.”

Id. at 408. According to the dissent, “This is precisely the

kind of police conduct the Fourth Amendment was intended

to proscribe.” Id.

As noted, the Court of Appeals in this case relied

extensively on the majority opinion in Dempster for the prop-

osition that, under the federal and state exclusionary rules,

the discovery and execution of a valid arrest warrant that

produces incriminating evidence in a search incident to the

arrest necessarily attenuates the taint of preceding unlaw-

ful police conduct. Bailey, 258 Or App at 21-28. Defendant

initially argues that the facts of this case are materially dis-

tinguishable from those in Dempster and, thus, that case

does not control here. In particular, defendant observes

that, in Dempster, the officer knew the name of the defen-

dant before unlawfully detaining him, Dempster, 248 Or at

405, whereas, in this case, defendant was detained by offi-

cers before they knew his identity. According to defendant,

that distinction is significant, because the detaining officers

in this case were able to ascertain his identity, and thus

discover the warrant and arrest him, only as a result of the

unlawful detention.

We decline defendant’s invitation to distinguish

Dempster on that basis. To be sure, the constitutional under-

pinnings and scope of this court’s holding in Dempster are

somewhat opaque.2 Because the opinion is sparsely reasoned,

2

As noted, this court in Dempster relied solely on Fourth Amendment juris-

prudence in its limited exploitation analysis. Neither the parties in their briefs

nor the court in its opinion cited or discussed the parallel provision of the Oregon

Constitution, Article I, section 9.

494 State v. Bailey

it could be argued, as defendant asserts, that the scope of its

holding should be limited to its particular facts. However,

to do so would be disingenuous. Dempster has been under-

stood for decades as establishing a per se rule under which

the discovery and execution of a valid arrest warrant neces-

sarily attenuate the taint of preceding unlawful police con-

duct, just as it was understood by the dissent in Dempster

when that case was decided. Id. at 408-10. Because of the

evident sweep of the rule announced in Dempster, we do not

agree that the factual distinction on which defendant relies

takes this case beyond the reach of Dempster’s holding. If, as

Dempster holds, the discovery and execution of a valid arrest

warrant necessarily attenuate the taint of preceding police

misconduct, then the nature and extent of the misconduct

is not material to the analysis. Thus, the factual distinction

that defendant identifies can be material, if at all, only if the

per se rule set out in Dempster is incorrect.

We conclude, therefore, that we must determine

whether to follow Dempster or whether the legal context

“has changed in such a way as to seriously undermine

[its] reasoning or result.” Farmers Ins. Co. v. Mowry, 350

Or 686, 698, 261 P3d 1 (2011). Ordinarily, we would start

with an analysis of Oregon constitutional law. See, e.g.,

State v. Kennedy, 295 Or 260, 262-63, 666 P2d 1316 (1983)

(explaining methodology). However, we begin with federal

law in this case because that is what Dempster purported

to apply. Moreover, for the past several decades, Dempster

has been treated as the legal foundation for determining the

effect of the discovery and execution of an arrest warrant

on preceding unlawful police conduct both under the Fourth

Amendment and Article I, section 9.3 Accordingly, it is nec-

essary to consider at the outset whether that decisional prec-

edent remains viable. See State v. Probst, 339 Or 612, 626,

124 P3d 1237 (2005) (“[B]ecause our decisional precedent

3

See, e.g., State v. Langston, 223 Or App 590, 594-95, 196 P3d 84 (2008) (con-

cluding, under Article I, section 9, that, “[in Dempster], the Supreme Court * * *

held that an arrest based on an outstanding warrant can serve to attenuate the

link between unlawful police conduct and subsequently discovered evidence”); see

also State v. Allen, 222 Or App 71, 78-79, 191 P3d 762, rev den, 345 Or 503 (2008)

(same); State v. La France, 219 Or App 548, 558, 184 P3d 1169 (2008), rev den,

349 Or 664 (2009) (same); State v. Snyder, 72 Or App 359, 695 P2d 958, rev den,

299 Or 251 (1985).

Cite as 356 Or 486 (2014) 495

in this case * * * is based on the Sixth Amendment, and

because the state’s line of reasoning fails if [that precedent]

continues to state applicable federal law correctly, we turn

to the federal constitutional analysis first.”).

B.  Fourth Amendment Analysis

As we explained at the outset, the central question

that this case presents is: Did the discovery and execution of

a valid warrant for defendant’s arrest sufficiently attenuate

the connection between his preceding unlawful detention

and evidence found in the search incident to his arrest so

as to permit the state to use the evidence against him? We

begin by summarizing the general principles that inform

our answer to that question.

The Fourth Amendment to the United States

Constitution provides:

“The right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable searches

and seizures, shall not be violated, and no Warrants shall

issue, but upon probable cause, supported by Oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized.”

The federal exclusionary rule is “a judicially created remedy

designed to safeguard Fourth Amendment rights generally

through its deterrent effect.” United States v. Calandra, 414

US 338, 348, 94 S Ct 613, 38 L Ed 2d 561 (1974). Because

of its remedial nature, courts must “ ‘weigh the likely social

benefits of excluding unlawfully seized evidence against the

likely costs’ ” to determine whether the rule applies. INS v.

Lopez-Mendoza, 468 US 1032, 1042, 104 S Ct 3479, 82 L

Ed 2d 778 (1984) (quotation omitted). The exclusionary rule

applies not only to the “direct products” of unconstitutional

invasions of Fourth Amendment rights, but also to the indi-

rect or derivative “fruits” of those invasions. See Wong Sun,

371 US at 484 (“The exclusionary prohibition extends as

well to the indirect as the direct products of such invasions.”

(Citation omitted.)). In this context, “indirect” fruit refers to

“evidence [that] was acquired by the police after some initial

Fourth Amendment violation.” United States v. Crews, 445

US 463, 471, 100 S Ct 1244, 63 L Ed 2d 537 (1980) (empha-

sis in original).

496 State v. Bailey

There are three recognized exceptions to the

Fourth Amendment exclusionary rule: (1) the inevitable dis-

covery exception; (2) the independent source exception; and

(3) the attenuation exception.4 United States v. Smith, 155

F3d 1051, 1060 (9th Cir 1998). Because the first two excep-

tions are not implicated here, we discuss only the attenu-

ation exception. Under that exception, whether fruit is “of

the poisonous tree”—in which case it must be excluded at

trial—depends on “whether the chain of causation proceed-

ing from the unlawful conduct has become so attenuated or

has been interrupted by some intervening circumstance so

as to remove the taint imposed upon that evidence by the

original illegality.” Crews, 445 US at 471.

When this court considered the attenuation excep-

tion in Dempster, the United States Supreme Court’s exclu-

sionary rule jurisprudence was in its early stages of devel-

opment. The Court’s most complete elaboration of both the

exclusionary rule and the attenuation exception to date had

been set out in Wong Sun, which built on an earlier case,

Nardone. Wong Sun, 371 US at 487-88. In Wong Sun, the

Court declined to require the suppression of evidence “sim-

ply because it would not have come to light but for the illegal

actions of the police.” Id. at 488. Instead, the Court distin-

guished between evidence that is the product of exploitation

of unlawful police conduct (which would be excluded) and

evidence that was procured by sufficiently distinguishable

means such that “the connection between the lawless conduct

of the police and the discovery of the challenged evidence has

‘become so attenuated as to dissipate the taint.’ ” Id. at 487

(emphasis added) (quoting Nardone, 308 US at 341).

Although Wong Sun and Nardone provided a test for

the exclusion of tainted evidence, neither case provided much

direction about how to apply the test, and neither addressed

4

The doctrine of inevitable discovery allows admission of unlawfully

obtained evidence if the government can “establish by a preponderance of the evi-

dence that the information ultimately or inevitably would have been discovered

by lawful means.” Nix v. Williams, 467 US 431, 444, 448, 104 S Ct 2501, 81 L Ed

2d 377 (1984). The independent source doctrine permits the introduction of evi-

dence initially discovered during, or as a consequence of, an unlawful search, but

later obtained independently from activities untainted by the initial illegality.

Murray v. United States, 487 US 533, 537, 108 S Ct 2529, 101 L Ed 2d 472 (1988).

Cite as 356 Or 486 (2014) 497

how exceptions to the exclusionary rule—including the attenu-

ation exception—would function in practice. Wayne R. LaFave,

6 Search & Seizure § 11.4(a) (5th ed) (“In neither Nardone nor

Wong Sun did the Court elaborate upon the ‘attenuated con-

nection’ test, thus leaving it rather uncertain exactly what it

was that lower courts were expected to look for, to say nothing

of what facts would be relevant to an ‘attenuation’ determina-

tion.”). That was the state of affairs when this court decided

Dempster. See Dempster, 248 Or at 408 (applying Nardone and

Wong Sun without any detailed analysis).

Eight years after Dempster was decided, the

Supreme Court provided further guidance in Brown. In

that case, the defendant was unlawfully arrested, received

Miranda warnings, and then made two confessions. 422 US

at 593-96. The Illinois Supreme Court had refused to sup-

press the confessions after having adopted a per se rule that

Miranda warnings necessarily break the causal connection

between an unlawful arrest and a defendant’s subsequent

confession. Id. at 597.

In reviewing that decision, the Supreme Court

initially observed that the effect of the Miranda warnings

was not dispositive because evidence obtained as a result

of unlawful police conduct may implicate multiple constitu-

tional protections that operate independently, even though

they may intersect. Id. at 601-02. In Brown, the eviden-

tiary use of the defendant’s confession was subject to Fifth

Amendment protections, including Miranda warnings that

are designed to ensure the voluntariness of confessions. Id.

at 601. However, because it was the product of an unlawful

seizure, the evidence also was subject to Fourth Amendment

protections. Id. Those protections are effectuated by requir-

ing the government to establish an exception to the exclu-

sionary rule, such as attenuation, as a condition of admit-

ting the evidence at trial. Id.5 Accordingly, even though the

5

As a result, even if a confession was “voluntary under the Fifth Amendment,

the Fourth Amendment issue remains.” Id. at 602-03. In that sense, “[t]he volun-

tariness of the statement is a threshold requirement.” Id. at 604. If the confession

was involuntary, then it likely would be suppressed as the direct result of a Fifth

Amendment violation rather than the indirect result of a Fourth Amendment

violation. Dunaway v. New York, 442 US 200, 217, 99 S Ct 2248, 60 L Ed 2d 824

(1979) (applying Brown and stating, “[i]ndeed, if the Fifth Amendment has been

violated, the Fourth Amendment issue would not have to be reached”).

498 State v. Bailey

demands of the Fifth Amendment were met in Brown, the

Court engaged in a separate Fourth Amendment analysis.

Echoing Justice O’Connell’s dissent in Dempster, the

Court expressed concern that adopting a per se rule would

encourage, rather than discourage, unlawful conduct. Id.

at 602 (“Arrests made without warrant or without probable

cause, for questioning or ‘investigation,’ would be encour-

aged by the knowledge that evidence derived therefrom

could well be made admissible at trial by the simple expe-

dient of giving Miranda warnings.”). The Court stated that

treating the Miranda warnings as a “ ‘cure-all’ ” would “evis-

cerate[ ]” the incentive that police officers have to operate

within the limits of the Fourth Amendment. Id. at 602-03.

The Court then set out three factors to determine whether

the causal connection between unlawful police conduct and

challenged evidence was sufficiently attenuated so as to

purge the taint of illegality. Id. at 603. Again, those factors

are (1) the temporal proximity between unlawful police con-

duct and the discovery of the evidence; (2) the presence of

intervening circumstances; and (3) “particularly, the pur-

pose and flagrancy of the official misconduct.” Id. at 603-04

(citations omitted). Under that standard, “[n]o single fact is

dispositive.” Id. at 603.

The Supreme Court has not expressly indicated

whether the Brown framework applies to a fact pattern like

the one presented in this case, where challenged evidence

was discovered in a search incident to arrest under a valid

warrant that was discovered during an unlawful detention.

However, in every subsequent case that has come to our atten-

tion in which a federal or state court has addressed whether to

apply the Brown framework, the court has done so, and none

has adopted the per se rule for which the state advocates. See,

e.g., United States v. Gross, 662 F3d 393, 401 (6th Cir 2011);

United States v. Simpson, 439 F3d 490, 495 (8th Cir 2006);

United States v. Green, 111 F3d 515, 521 (7th Cir 1997); State

v. Mazuca, 375 SW3d 294, 304 (Tex Crim App 2012).

That authority notwithstanding, the state asserts

that the Supreme Court’s decision in Hudson v. Michigan,

547 US 586, 126 S Ct 2159, 165 L Ed 2d 56 (2006), marked

a significant departure from the Brown framework for

Cite as 356 Or 486 (2014) 499

analyzing attenuation and that Hudson, instead, governs

the analysis in this case. For the following reasons, we con-

clude that the state is mistaken.

In Hudson, officers executed a valid search war-

rant at a residence in a manner that violated the so-called

“knock-and-announce rule.”6 Id. at 588. The Supreme Court

declined to suppress the evidence produced by the search.

In reaching that decision, the Court made three holdings.

First, the Court held that there was no “but for” causation

between the discovery of the evidence and the violation

of the knock-and-announce rule. The Court stated that,

because the officers in that case were executing a search

warrant, they would have discovered the evidence even if

they had complied with the knock-and-announce rule. Id.

at 592. Second, the Court held that, even if the violation

of the knock-and-announce rule led to the discovery of the

evidence, the violation of that rule did not implicate any

interest protected by the exclusionary rule. Id. at 593-94.7

Third, the Court held that the exclusion of evidence for a

violation of the knock-and-announce rule was not otherwise

justified, considering the costs of excluding inculpatory evi-

dence against the benefits of deterring knock-and-announce

violations. Id. at 594-99.

We readily conclude that Hudson did not supplant

or alter the attenuation framework that the Court adopted

in Brown; instead, the Court in Hudson concluded that the

rationale for applying the exclusionary rule was inapplicable

6

The “knock-and-announce” rule is a subset of the reasonableness require-

ment of the Fourth Amendment; for a search to be reasonable, police officers must

generally knock and announce their presence, unless the circumstances are such

that doing so would be unreasonable. See, e.g., Richards v. Wisconsin, 520 US 385,

395-96, 117 S Ct 1416, 137 L Ed 2d 615 (1997) (failure to comply with knock-and-

announce reasonable because of officer’s fears that evidence would be destroyed).

7

The interests protected by the knock-and-announce rule include (1) “the

protection of human life and limb, because an unannounced entry may provoke

violence in supposed self-defense by a surprised resident”; (2) the protection of

property, because breaking into a house “absent an announcement would penal-

ize someone who” “did not know of the process, of which, if he had notice, it is to be

presumed that he would obey it”; and (3) “those elements of privacy and dignity

that can be destroyed by a sudden entrance.” Id. at 594 (quotation and citations

omitted). “What the knock-and-announce rule has never protected, however,

is one’s interest in preventing the government from seeing or taking evidence

described in a warrant.” Id.

500 State v. Bailey

to the “knock and announce” context.8 The state nonetheless

asserts that, as in Hudson, the rationale for the exclusionary

rule is not applicable in this case and, accordingly, there is no

justification for engaging in an attenuation analysis under the

Brown framework. In the state’s view, just as the exclusion-

ary rule does not apply to evidence obtained after a “knock-

and-announce” violation by police that occurred in the course

of executing a valid search warrant, neither does it require

the suppression of evidence discovered in a search incident

to arrest under a valid arrest warrant, even if the arrest,

search, and evidence resulted from a preceding unlawful

detention. We conclude that the comparison is inapt.

Unlike the warrant-based search in Hudson, this

case involves an unlawful detention that was not supported

by reasonable suspicion—let alone probable cause. The

acquisition of evidence resulting from an unlawful detention

goes to the core of the interests protected by the exclusion-

ary rule. See Silverthorne Lumber Co. v. United States, 251

US 385, 392, 40 S Ct 182, 64 L Ed 319 (1920) (“The essence

of a provision forbidding the acquisition of evidence in a cer-

tain way is that not merely evidence so acquired shall not

be used before the Court but that it shall not be used at

all.”). Moreover, the exclusion of such evidence safeguards

the rights of all people—not merely those with something to

hide—from unreasonable searches and seizures. See Brown,

422 US at 601 (“[The Fourth Amendment] is directed at all

unlawful searches and seizures, and not merely those that

happen to produce incriminating material or testimony as

fruits.”). Thus, for example, where the police engage in a

fishing expedition in which people are unlawfully detained

in the hope of ultimately executing outstanding warrants,

the exclusionary rule serves as a deterrent to protect the

innocent, not just the guilty, from unreasonable searches

and seizures. State v. Shaw, 213 NJ 398, 417 64 A3d 499,

510 (2012); see also People v. Brendlin, 45 Cal 4th 262, 272,

85 Cal Rptr 3d 496, 504, 195 P3d 1074, 1081 (2008), cert

8

The majority opinion in Hudson did not mention Brown; the dissent referred

to Brown only to clarify that the attenuation framework set out in Brown was not

affected by Hudson. Id. at 619-20 (Breyer, J., dissenting). The majority did not

challenge that assertion. See State v. Grayson, 336 SW3d 138, 149-50 (Mo 2011)

(“Hudson did not change the attenuation doctrine, it just found the reason for the

exclusionary rule inapplicable to the ‘knock and announce’ context.”).

Cite as 356 Or 486 (2014) 501

den, 556 US 1192, 129 S Ct 2008, 173 L Ed 2d 1103 (2009)

(contrasting the “fishing expedition” scenario with “a chance

discovery of an outstanding arrest warrant in the course of

a seizure that is later determined to be invalid”).

In view of those underpinnings of the exclusionary

rule, it comes as no surprise that the cases on which the

state relies—including Hudson—do not attach constitu-

tional significance to whether a warrant or evidence estab-

lishing probable cause to arrest or search existed when a

constitutional violation occurred; instead, they attach sig-

nificance to the officer’s knowledge of the warrant or evi-

dence establishing probable cause to arrest or search. See

Hudson, 547 US at 593 (whether “the constitutional violation

of an illegal manner of entry * * * had occurred or not, the

police would have executed the warrant they had obtained,

and would have discovered the gun and drugs inside the

house”); see also New York v. Harris, 495 US 14, 18-19, 110

S Ct 1640, 109 L Ed 2d 13 (1990) (declining to suppress con-

fession after police unlawfully executed a valid warrant,

because probable cause to arrest existed); Henry v. United

States, 361 US 98, 103, 80 S Ct 168, 4 L Ed 2d 134 (1959)

(“An arrest is not justified by what the subsequent search

discloses.”); United States v. Crawford, 372 F3d 1048, 1056

(9th Cir 2004) (en banc) (“[T]he presence of probable cause

to arrest has proved dispositive when deciding whether the

exclusionary rule applies to evidence or statements obtained

after the defendant is placed in custody.”).9 By contrast,

there is no evidence in this case that the officers who unlaw-

fully detained defendant had any knowledge, either actual

or imputed, that justified defendant’s detention before they

discovered the arrest warrant.10 Accordingly, the fact that

91

Although there is some flexibility in establishing the requisite knowledge,

“even courts that impute knowledge among officers working closely together will not

do so absent a close working nexus between the officers during the stop or arrest.”

United States v. Shareef, 100 F3d 1491, 1504 (10th Cir 1996) (citation omitted).

10

In the context of a Fifth Amendment challenge, the Supreme Court has

stated that “[o]ne’s identity is, by definition, unique; yet it is, in another sense,

a universal characteristic.” Hiibel v. Sixth Judicial Dist., 542 US 177, 191, 124

S Ct 2451, 2458, 159 L Ed 2d 292 (2004). Stated differently, a person’s identity,

when proffered for public view, is inherently “knowable.” But, it cannot be credi-

bly argued (nor does the state assert) that the public or knowable nature of one’s

identity means, for Fourth Amendment purposes, that a person can be indefi-

nitely detained in the hope that some police officer eventually will recognize him

or her as a person of criminal interest.

502 State v. Bailey

a valid warrant for defendant’s arrest existed does not, by

itself, mean that the exclusionary rule is inapplicable to a

violation of his rights under the Fourth Amendment.

In so concluding, we recognize that police officers

who discover a valid arrest warrant in the course of an

unlawful search or seizure may arrest the subject of the war-

rant and conduct a search incident to that arrest. A crimi-

nal defendant cannot avoid a court’s jurisdiction over his or

her physical person, even when there has been some prior

illegality on the part of the government. See INS v. Lopez-

Mendoza, 468 US 1032, 1039, 104 S Ct 3479, 82 L Ed 2d 778

(1984) (“The ‘body’ or identity of a defendant or respondent

in a criminal or civil proceeding is never itself suppressible

as a fruit of an unlawful arrest, even if it is conceded that an

unlawful arrest, search, or interrogation occurred.” (Citation

omitted.)).11 That principle has unavoidable evidentiary con-

sequences for the application of the exclusionary rule: An

individual cannot escape a tribunal’s power over his or her

“body” under a lawful arrest warrant despite being subject

to an illegal seizure; in that respect, the person’s “identity”

is not subject to suppression on a purely practical level. See

Pretzantzin v. Holder, 736 F3d 641, 650 (2d Cir 2013) (so

concluding); United States v. Garcia-Beltran, 389 F3d 864,

868 (9th Cir 2004) (same).

However, to acknowledge that officers lawfully may

arrest and lawfully search a defendant based on a valid

arrest warrant that is discovered during an unlawful deten-

tion does not mean that the causal connection between the

unlawful detention and evidence discovered in the lawful

search incident to arrest can be ignored. Defendant here

does not seek to suppress his person or his identity; instead,

11

Federal appellate courts are divided as to whether the quoted state-

ment from Lopez-Mendoza simply recognizes an established jurisdictional rule,

namely, that an unlawful seizure does not deprive a court of jurisdiction over the

arrestee, or, instead, whether the statement establishes a blanket rule that a

defendant’s identity—and any evidence related to that identity—is never subject

to suppression. Compare United States v. Olivares-Rangel, 458 F3d 1104, 1106

(10th Cir 2006) (interpreting Lopez-Mendoza as merely reiterating long-standing

jurisdictional rule), and United States v. Guevara-Martinez, 262 F3d 751, 754-55

(8th Cir 2001) (same) with United States v. Bowley, 435 F3d 426, 430-31 (3d Cir

2006) (interpreting Lopez-Mendoza as barring suppression of evidence of iden-

tity), and United States v. Navarro-Diaz, 420 F3d 581, 588 (6th Cir 2005) (same).

However, that split in authority is not relevant to the point we make here.

Cite as 356 Or 486 (2014) 503

he challenges the admission of physical evidence that was

the object of an unlawful seizure. As the Kansas Supreme

Court recently explained, the difference matters:

“[T]he preceding unlawful detention does not taint the

lawful arrest on the outstanding warrant, nor does it pre-

vent the officer from conducting a safety search pursuant

to that arrest; but it does taint any evidence discovered

during the unlawful detention or during a search incident

to the lawful arrest.

“Were it otherwise, law enforcement officers could ran-

domly stop and detain citizens, request identification, and

run warrants checks despite the lack of any reasonable sus-

picion to support the detention, knowing that if the deten-

tion leads to discovery of an outstanding arrest warrant,

any evidence discovered in the subsequent search will be

admissible against the defendant in a criminal proceeding

unrelated to the lawful arrest.”

State v. Moralez, 297 Kan 397, 415, 300 P3d 1090, 1102

(2013);12 see also State v. Hummons, 227 Ariz 78, 81, 253 P3d

275, 278 (2011) (“[T]he subsequent discovery of a warrant

is of minimal importance in attenuating the taint from an

illegal detention upon evidence discovered during a search

incident to an arrest on the warrant.”).

Thus, a synthesis emerges. Where a person’s iden-

tity is made known to the police during an unlawful deten-

tion, and he or she is determined to be the subject of a valid

12

Determining the deterrence value of suppression where evidence of a crime

is found during a search incident to an arrest based on a valid warrant discov-

ered during an unlawful detention may be somewhat more complicated than the

quoted statement suggests. For example, the particular purpose of an unlaw-

ful detention might not have been to acquire evidence of a crime but, rather,

to discover a valid arrest warrant so that a person of interest could be lawfully

arrested and detained. In that circumstance, the suppression of evidence of a

crime found in a search incident to arrest based on the warrant might not as

strongly implicate the deterrence rationale of the exclusionary rule. However,

that possibility does not justify failing to apply the rule. Not only is the subjective

purpose of an unlawful detention often difficult to ascertain—indeed, the police

may have multiple motives for impermissibly detaining a person of interest—but

the deterrence value of suppressing incriminating evidence is not entirely viti-

ated where the particular motive for the detention was not to secure the evidence.

By excluding evidence in such circumstances, some deterrence value is attained,

even if it is not as great as where obtaining the evidence was a particular objec-

tive of the unlawful detention, because applying the rule admonishes the police

to operate within the bounds of the law.

504 State v. Bailey

arrest warrant, the police may lawfully arrest the person

and conduct a lawful search incident to the arrest. However,

the Brown framework nevertheless applies to the separate

determination whether the causal connection between the

unlawful detention and the discovery of evidence in the

search incident to arrest has been sufficiently attenuated so

as to dissipate the taint of the illegality.

In light of Brown, it is therefore apparent that this

court’s decision in Dempster does not accurately reflect the

current state of the law. As we stated in Mowry,

“this court’s obligation when interpreting constitutional

and statutory provisions and when formulating the com-

mon law is to reach what we determine to be the correct

result in each case. * * * [T]his court is willing to reconsider

cases when the legal or factual context has changed in such

a way as to seriously undermine the reasoning or result of

earlier cases.”

Mowry, 350 Or at 698. Without engaging in a detailed

analysis, this court in Dempster adopted a per se rule for

determining the effect, for attenuation purposes under the

Fourth Amendment, of the discovery and execution of a law-

ful arrest warrant on preceding unlawful police conduct.

By adopting a multi-factor test for determining whether

the effect of unlawful police conduct has been sufficiently

attenuated to permit the admission of challenged evidence,

the Supreme Court in Brown undermined this court’s rea-

soning in Dempster. Accordingly, we disavow our holding in

Dempster and conclude, instead, that the Brown factors sup-

ply the correct standard for the Fourth Amendment analysis

in this case.13

13

We note that, in State v. Unger, 356 Or 59, 333 P3d 1009 (2014), this

court applied factors similar to the Brown factors in conducting an attenuation

analysis under Article I, section 9, of the Oregon Constitution, in the context of

a consent search that was preceded by unlawful police conduct. In rejecting a

per se test similar to the one adopted in Dempster, the court stated:

“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.”

Id. at 84-85.

Cite as 356 Or 486 (2014) 505

We now apply those factors to the evidentiary

record in this case. The first factor is the amount of time

that elapsed between the unlawful police conduct and the

discovery of the challenged evidence. Brown, 422 US at 603.

Generally speaking, that factor is most pertinent where the

intervening circumstance involves a volitional act by the

defendant, such as a confession or consent to a search. See,

e.g., Simpson, 439 F3d at 495; Green, 111 F3d at 522; see

also United States v. Najjar, 300 F3d 466, 486 n 2 (4th Cir

2002) (“[T]he temporal factor in Brown served as evidence of

the exercise of free will on the part of the accused in giving

a confession subsequent to an illegal arrest.”). However, it

also carries weight in other circumstances as well. Here, for

example, the relevant police conduct consisted of an unlaw-

ful detention that persisted until shortly before the discovery

of challenged evidence. In such circumstances, there is less

likely to be a sufficient break in the causal chain between

the unlawful police conduct and the discovery of evidence so

as to attenuate the taint of the illegality. Where, in contrast,

incriminating evidence—such as a jailhouse confession

made several days later—is secured long after the preced-

ing illegality ended, the causal connection between the two

may be much weaker. In short, because the temporal break

between the unlawful detention and the discovery of the

evidence was brief, that factor bears some weight in favor

of suppression. See, e.g., Mazuca, 375 SW2d at 306 (“In our

view, the first Brown factor is certainly relevant, but, even

though it usually favors suppression of evidence that is dis-

covered in the immediate aftermath of an illegal pedestrian

or roadside stop, it will sometimes prove to be, in the con-

text of the seizure of physical evidence, ‘the least important

factor’—at least relative to the other two.”).

The second factor is the existence of intervening

circumstances. Brown, 422 US at 603. In this case, the

posited intervening circumstance was the discovery of the

warrant for defendant’s arrest. As discussed, the warrant

provided a lawful basis for defendant’s arrest and the sub-

sequent search incident to arrest. However, it is difficult to

weigh the significance of the discovery of the arrest war-

rant in the attenuation analysis without considering the

officers’ unlawful detention of defendant. That is, the weight

506 State v. Bailey

assigned to the discovery of the arrest warrant depends on

the degree to which it was the direct consequence or objec-

tive of the unlawful detention. Where, as here, the discov-

ery of the arrest warrant was an objective of the unlawful

detention, “it should not be overemphasized to the ultimate

detriment to the goal of deterrence that animates the exclu-

sionary rule.” Mazuca, 375 SW3d at 306.

The third factor is the purpose and flagrancy of

the unlawful police conduct. Id. at 604. In light of the more

limited relevance of the other two factors, it is apparent

that, in this case, the greatest weight should be placed on

that factor. That conclusion is consistent with the exclu-

sionary rule’s deterrence-based justification and with

recent United States Supreme Court decisions applying

the exclusionary rule. See Davis v. United States, __ US

__, 131 S Ct 2419, 2427, 180 L Ed 2d 285 (2011) (“[T]he

deterrence benefits of exclusion ‘var[y] with the culpability

of the law enforcement conduct’ at issue. When the police

exhibit ‘deliberate,’ ‘reckless,’ or ‘grossly negligent’ disre-

gard for Fourth Amendment rights, the deterrent value

of exclusion is strong and tends to outweigh the resulting

costs.” (Citations omitted.)).

The focus of the purpose and flagrancy factor is on

whether the stop was investigatory in nature and whether

the unlawfulness of the police conduct should have been

obvious to the officers. Brown, 422 US at 605. In Brown, the

Supreme Court noted that the arresting officers had “vir-

tually conceded” that the arrest obviously had been unlaw-

ful when they repeatedly acknowledged that the purpose of

the arrest “was ‘for investigation’ or for ‘questioning.’ ” Id.

Further, the Court held that the arrest had been investiga-

tory “both in its design and in execution” because the offi-

cers had “embarked upon this expedition for evidence in the

hope that something might turn up.” Id.

This case presents analogous circumstances. The

initial traffic stop was lawful, but the purpose of enforc-

ing the traffic laws was merely incidental to an overarch-

ing investigatory purpose. The officers specifically targeted

defendant and his fellow passengers. An officer who was

monitoring the car through aircraft surveillance asked

Cite as 356 Or 486 (2014) 507

ground officers to pull it over even before anyone observed

a traffic violation. Although the ground officers waited until

they observed a traffic violation before initiating the stop,

their intent remained investigatory.

The unlawful detention also was flagrant. The

circuit court ruled that the traffic stop should have lasted

about five minutes, but it ultimately lasted about 37 min-

utes. Thus, the officers unlawfully extended the stop of the

occupants of the vehicle, including defendant, by more than

30 minutes, or 600 percent.

The state contends that, although the stop was

unlawfully extended, it was extended not to investigate

defendant but to verify the driver’s insurance coverage.

That argument is unavailing here. Under the Fourth

Amendment, for the duration of a traffic stop, a police officer

effectively seizes “everyone in the vehicle,” the driver and

all passengers. Arizona v. Johnson, 555 US 323, 327, 129 S

Ct 781, 172 L Ed 2d 694 (2009); Brendlin v. California, 551

US 249, 255, 127 S Ct 2400, 168 L Ed 2d 132 (2007). An

officer may ask passengers questions during a traffic stop

that are unrelated to a lawful purpose for the stop, but only

if the inquiry does not measurably extend the stop. Johnson,

555 US at 333. The circuit court here expressly found that

the overall stop of the vehicle and its occupants should have

lasted no more than five minutes because, within that time

period, the officers had completed their investigation of the

traffic infraction and determined that the driver was not

carrying proof of valid insurance. The state has not chal-

lenged that finding, and it binds us on review.14

Throughout the period of unlawful detention, the

officers repeatedly asked defendant for his identification.

When defendant refused, Stradley called another officer,

Burley, to the scene to identify him. When Burley was

delayed, Stradley sat in his patrol car running records

searches, hoping that he could remember defendant’s name.

14

The state does not contend that, in response to the officers’ inquiry, defen-

dant was required to identify himself or that defendant’s refusal to identify him-

self provided an independent justification for the extension of the stop. Cf. Hiibel,

542 US at 188 (“[A]n officer may not arrest a suspect for failure to identify him-

self if the request for identification is not reasonably related to the circumstances

justifying the stop.”).

508 State v. Bailey

Stradley testified that it would have been against his inter-

est to tell defendant that defendant was free to leave the

scene because, according to Stradley, “I want[ed] to have

them identified.” After Burley arrived and identified defen-

dant, Stradley immediately ran the warrant check on

defendant.

To put a finer point on things, the officers in this case

detained defendant for an investigatory purpose without

reasonable suspicion that he had engaged in unlawful activ-

ity for more than 30 minutes after the lawful justification

for the traffic stop had ended. That conduct was purposeful,

and it should have been obvious to the officers that they had

extended the detention without regard to defendant’s right

to be free from an unreasonable seizure. See Moralez, 300

P3d at 1103 (“Regardless of whether a suspicionless deten-

tion to identify a citizen and check that citizen for outstand-

ing arrest warrants is characterized as a standard practice,

a field interview, a pedestrian check, or a ‘fishing expedi-

tion,’ such a detention can, and often will, demonstrate at

least some level of flagrant police conduct.”).15

For purposes of the federal exclusionary rule, the

effect of that factor, when considered along with the tem-

poral proximity between the unlawful detention and the

discovery of the challenged evidence, outweighs any value

that otherwise might be assigned to the subsequent dis-

covery of a valid arrest warrant. See Hummons, 253 P3d

at 278 (“If the purpose of an illegal stop or seizure is to

discover a warrant—in essence, to discover an intervening

circumstance—the fact that a warrant is actually discovered

cannot validate admission of the evidence that is the fruit of

the illegality.”). Because the state failed to meet its burden

to establish attenuation, the circuit court erred by denying

defendant’s motion to suppress. We therefore reverse the

decision of the Court of Appeals affirming the circuit court’s

denial of that motion.

15

Cf. Stufflebeam v. Harris, 521 F3d 884, 889 (8th Cir 2008) (“[Where police]

prolong[ed] the detention and then arrest[ed] * * * a passenger not suspected of

criminal activity, because he adamantly refused to comply with an unlawful

demand that he identify himself[,] * * * no reasonable police officer could believe

he had probable cause to arrest this stubborn and irritating, but law abiding

citizen.”).

Cite as 356 Or 486 (2014) 509

The decision of the Court of Appeals is reversed.

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

is remanded to the circuit court for further proceedings.