State v. Ashbaugh

• Decision Date: 31 December 2008
• Docket Number: A131117.,C052367CR.
• Citation: 200 P.3d 149,225 Or. App. 16
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Charity Ann ASHBAUGH, Defendant-Appellant.
• Court: Oregon Court of Appeals

200 P.3d 149

225 Or. App. 16

STATE of Oregon, Plaintiff-Respondent, v. Charity Ann ASHBAUGH, Defendant-Appellant.

C052367CR.

A131117.

Court of Appeals of Oregon, En Banc.

Argued and Submitted on February 27, 2008.

December 31, 2008.

Joshua B. Crowther, Deputy Public Defender, argued the cause for appellant. With him on the brief were Ingrid Swenson, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Stacie F. Beckerman, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

SCHUMAN, J.

Defendant was convicted of unlawful possession of a controlled substance. On appeal, she assigns error to the trial court's denial of her motion to suppress evidence obtained after she consented to a search of her purse. She argues that her consent, and therefore the discovery of the evidence, derived from a violation of her right under Article I, section 9, of the Oregon Constitution¹ to be free from unreasonable searches and seizures. The state concedes that police officers detained defendant in violation of her constitutional right when, without reasonable suspicion, they required her to provide identification and then called in a "warrant check." The state argues, however, that the relationship between that unlawful conduct and the discovery of the evidence does not support a suppression remedy. We agree. However, defendant further argues that a subsequent encounter was also an unlawful stop, and that it, too, led to the discovery of the evidence. We conclude that the second encounter may have been unlawful, depending on facts that neither party developed at trial, and that the second encounter did lead to discovery of the evidence. We therefore remand to the trial court for further factfinding.

The undisputed facts are as follows. While patrolling a public park on their bicycles in the early afternoon, Beaverton Police Officers Barrowcliff and Schaer noticed defendant and her husband sitting on the ground in the shade of a tree. Because the couple were "middle-aged," they "didn't look like older people or people with kids" who frequented the park, and that fact aroused the officers' suspicion. One of the officers told the couple, "Hey, you're not in any trouble; do you have some I.D. we can see?" Defendant and her husband cooperated with the request, and the officers took their identification to check for warrants.

After a few minutes, the officers learned that defendant had no outstanding warrants, and they returned her identification to her. The check on her husband, however revealed that defendant had a valid restraining order against him. Defendant acknowledged the existence of the restraining order but told the officers that she and her husband were trying to repair their relationship. The officers nonetheless arrested the husband for violating the order and called for a transport vehicle. While he was being handcuffed, defendant's husband asked, within earshot of defendant, if defendant could take his belongings with her. The officers said that she could. Defendant's conversation with the officers was "relaxed and nonconfrontational"; she knew that she was not being detained.

The officers led defendant's husband to a patrol car approximately 40 feet from where defendant stood. A few minutes thereafter—and 18 minutes after the officers first approached the couple—the officers went to retrieve their bikes. Defendant was still there. They asked her if she would take her husband's belongings. At that point, "something inside of [Schaer] made [him] want to ask" defendant if she had anything illegal in her purse, and he did so. Defendant told him that she did not. Schaer then asked if he could look inside her purse, and she consented. That conversation was also "relaxed and nonconfrontational." Schaer looked inside the purse and found methamphetamine.

Defendant was charged with unlawful possession of a controlled substance. Former ORS 475.992(4) (2003), renumbered as ORS 475.840(3) (2005). In a pretrial motion to suppress, she argued that her initial interaction with the officers amounted to an unlawful stop and that the evidence had to be suppressed because the officers discovered it as a result of that violation of her rights. In the alternative, she argued that a separate unlawful stop occurred when, after putting defendant's husband in the police car, the officers approached her again and Schaer asked for permission to search her purse. The trial court denied her motion, concluding that the original stop became unlawful when the officers took the identification and began a warrant check, but that the relationship between that unlawful activity and the discovery of the evidence did not support suppression. The court also implicitly rejected the alternative argument that the second encounter was a stop. After a trial to the court on stipulated facts, defendant was convicted.

On appeal, defendant renews the arguments that she made at trial. The state concedes (as it did at trial) that the officers violated Article I, section 9, when, without reasonable suspicion of criminal activity, they asked for and retained defendant's identification and conducted a warrant check.² We agree and accept that concession. See State v. Hall, 339 Or. 7, 19, 115 P.3d 908 (2005) (stop occurs when officer retains identification and conducts radio warrant check). The state argues, however, that any causal connection between that illegality and defendant's consent is too tenuous to require suppression because "the stop had ended, significant time had elapsed, and defendant was not the focus of the investigation but rather the victim of a crime." The state further argues that Schaer's questioning regarding the contents of defendant's purse did not constitute a separate unlawful stop because such a request, without more, does not elevate a police-citizen encounter to the level of a seizure so as to trigger constitutional protection.

First, we address defendant's argument that the evidence should have been suppressed because it derived from the first encounter: the concededly unlawful stop that occurred when the officers took defendant's identification to check for warrants. The critical inquiry in determining the nature of the relationship between unlawful police conduct and evidence that a defendant seeks to suppress is "whether the state obtained the evidence * * * as a result of a violation of the defendant's rights under Article I, section 9." Hall, 339 Or. at 24, 115 P.3d 908 (emphasis added). The Supreme Court has provided the analytical framework for resolving that inquiry:

"After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant's consent."

Id. at 34-35, 115 P.3d 908.

In order to establish a "minimal factual nexus," the defendant must show that there is at least a "but for" relationship between the unlawful stop and the consent. Id. at 25, 115 P.3d 908. The burden then shifts to the state. If the state cannot establish "independence"—that is, that the evidence inevitably would have been discovered through the exercise of lawful procedures (such as a mandatory inventory policy), or that it was obtained not only as a result of the illegality, but also as the result of a chain of events that did not include an illegality (that is, an "independent source")—it must prove "attenuation." State v. Tyler, 218 Or. App. 105, 110, 178 P.3d 282 (2008). Factors on which the state might rely to make that showing include the amount of time that elapsed between the illegality and the request for consent and the presence of any intervening or mitigating circumstances. Id.

In accordance with those principles, we must first determine whether defendant has established the requisite "but for" relationship. Hall, 339 Or. at 25, 115 P.3d 908. We have explained that relationship, albeit in the civil context, as follows: one event is the "but for" cause of a second event if the second event would not have occurred if the first event had not occurred. Wallach v. Allstate Ins. Co., 206 Or.App. 137, 143, 135 P.3d 404 (2006), aff'd, 344 Or. 314, 180 P.3d 19 (2008); see also Blacks Law Dictionary 213 (8th ed. 2004) (defining "but-for test" as "[t]he doctrine that causation exists only when the result would not have occurred without the party's conduct"). The state asserts that, although the request for consent occurred after the unlawful stop, defendant has failed to show that the request occurred as a result of it. Defendant's position is that, if her interaction with the officers had ended before they took her identification and began a warrant check, the subsequent series of events culminating in the officers' request for consent to search would never have occurred. Instead, the encounter would have ended and, presumably, the officers would have moved on.

Defendant's theory does not withstand scrutiny. The officers' retention of defendant's identification and subsequent warrant check had no causal relationship with the discovery of evidence; that check came back negative, at which point defendant was free to leave. The warrant check that was causally related to the discovery of evidence was the one that police carried out on defendant's husband; that act, a violation of his rights, led to the discovery of the outstanding...