holding that a police-citizen encounter is a constitutionally significant seizure “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred” (emphasis in original)
How later courts described this case
- holding that a police-citizen encounter is a constitutionally significant seizure “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred” (emphasis in original)
- holding that, “[although it is possible to restrict a person’s liberty and freedom of movement by purely verbal means,” the officer did not do so when he asked the defendant whether she had anything illegal in her purse and if he could search it
- explaining that stops generally must be justified by reasonable suspicion that the person has been involved in criminal activity and arrests must be justi- fied by probable cause that the individual has committed a crime
- explaining that police-citizen encounters fall into three categories — mere conversation, stops, and arrests — and that a stop is a seizure that must be supported by a “safety emergency or by reasonable suspicion”
Written by the judges who cited it.
The opinion
DURHAM, J.,
specially concurring.
I agree with the majority that the trial court correctly denied defendant’s motion to suppress the evidence, and that defendant’s conviction should be affirmed. However, I do not agree with the majority’s explanation of its reasons for affirming defendant’s conviction. I would decide this case on narrower and, I submit, simpler grounds.
The only question that this case poses is whether the police officers conducted an unreasonable search when they examined the interior of defendant’s purse and saw drug paraphernalia. If that search was lawful, then the officers’ subsequent observations supplied them with probable cause to seize the drug evidence.
The state defends the police search here on the ground of consent. A citizen’s voluntary consent to a police search is an exception to the requirement of a search warrant. A valid consent confirms, for legal purposes, that the resulting search is reasonable and does not violate the citizen’s rights under Article I, section 9, of the Oregon Constitution. State v. Weaver, 319 Or 212, 219 , 874 P2d 1322 (1994). Courts must examine the totality of the evidence to determine whether the citizen consented to the search voluntarily, rather than as the result of police coercion, express *319 or implied. State v. Parker, 317 Or 225, 230 , 855 P2d 636 (1993).
In this case, two aspects of the trial court record greatly simplify the court’s examination of the consent issue. First, defendant admitted that she consented to the search of her purse by the police. Second, defendant also conceded that her consent to the search of her purse was voluntary. The majority and the dissent give almost no attention to those significant admissions. To me, however, those admissions dispose of all or virtually all of defendant’s arguments that the search of her purse was unreasonable.
The majority and the dissent focus instead, at agonizing length, on whether the two police officers interfered with defendant’s freedom of movement, that is, whether they “seized” her, during either of their two encounters with her in the park. As it turns out, the seizure issue ultimately does not matter in this case, however the court decides it. I will briefly explain why that is so.
In the consent search context, a defendant commonly challenges the voluntariness of consent by pointing to evidence that the police had restrained the defendant’s liberty of movement at or before the moment when the alleged consent was granted. A restraint on liberty is relevant to the validity of consent in that kind of case. By establishing that the police first seized the defendant, the defendant can argue that the seizure (and any other coercive circumstances) overcame his or her free will and rendered any subsequent statement of consent involuntary.
That argument, however, is beside the point here because of defendant’s concessions, noted above. Even if the police encounter with defendant amounted to a stop or an arrest, the trial court correctly declined to treat it as having a coercive influence on defendant because defendant stipulated that her consent to the search of her purse was voluntary.
One other argument merits discussion. Evidence seized by police will be treated as “fruit of the poisonous tree” and suppressed if the police commit an illegality, such as an invalid stop or arrest, and subsequently exploit that illegality *320 to obtain the disputed evidence. State v. Rodriguez, 317 Or 27, 38 , 854 P2d 399 (1993). Under that theory, it is not sufficient that the initial illegality stands in a mere “but for” causal relationship to the seized evidence. Other causal factors can intervene to lead the police to the evidence. Evidence remains “fruit of the poisonous tree” and subject to suppression only if the initial police illegality, when compared to other intervening causal factors, was the reason for the discovery of the evidence by the police. Id. at 39-40 ; State v. Hall, 339 Or 7, 45 , 115 P3d 908 (2005) (Durham, J., concurring in part and dissenting in part).
Defendant argues that the evidence seized here was the result of police officers’ exploitation of the unlawful stop or arrest of defendant in their first or second encounter (or both) with her. But the facts do not demonstrate the required sort of exploitation. Rather, according to the evidence, the event that brought the disputed evidence to light was defendant’s voluntary consent to a search of her purse. Even if the police encounter with defendant began with an invalid stop or arrest, the facts establish that her voluntary consent exposed the evidence to the police and that the initial stop or arrest did not compel her to consent to the search of her purse.
For the reasons expressed above, the majority reaches a correct conclusion about defendant’s exploitation theory, even though my analysis of that theory differs significantly from that employed by the majority. And, as noted, the majority’s ultimate answer here — that the trial court properly denied defendant’s motion to suppress evidence — is correct.
I concur.