State v. Benning

Decision Date19 August 2015
Docket Number130230915,A154608.
PartiesSTATE of Oregon, Plaintiff–Appellant, v. William Phillip BENNING, Defendant–Respondent.
CourtOregon Court of Appeals

Leigh A. Salmon, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Laura E. Coffin, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

TOOKEY, J.

The state appeals a pretrial order granting defendant's motion to suppress evidence and dismissing a one-count indictment against defendant for possession of methamphetamine. ORS 138.060(1)(c). The evidence was obtained after the police observed defendant and a companion, Jacobs, “bent over a bag” in front of a restaurant; initiated contact with them; implicitly denied defendant's request to go to the bathroom; asked defendant and Jacobs for identification; said “hang on there, or hang on a second”; ran a records check that revealed an outstanding warrant for defendant's arrest; arrested defendant on the warrant; and searched defendant incident to that arrest. We conclude that the evidence was obtained after defendant was unlawfully seized in violation of his rights under Article I, section 9, of the Oregon Constitution, and that the state failed to prove attenuation—that is, the state failed to prove, under the totality of the circumstances, that the violation of defendant's rights under Article I, section 9, had such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence. Accordingly, we affirm.

We are bound by the trial court's findings of fact as long as there is constitutionally sufficient evidence to support them. State v. Ehly, 317 Or. 66, 74–75, 854 P.2d 421 (1993). In the absence of express factual findings, we presume that the trial court decided the disputed facts in keeping with its ultimate conclusion. Id. at 75, 854 P.2d 421. On appeal, [o]ur function is to decide whether the trial court applied legal principles correctly to those facts.” Id. We state the facts consistently with those standards.

Officer Lemons, who worked for the East Precinct street crimes unit, was on daytime patrol in Portland when he saw defendant and Jacobs, “bent over a bag” in front of a restaurant. Lemons was “not real sure what was going on there,” so he [c]ircled back around” in his patrol vehicle, “intend[ing] to contact the two.”

As soon as defendant and Jacobs saw Lemons circling back around, they started walking away.” In Lemons's experience, when people see the police and “avoid police contact, something is * * * usually up.” Thus, Lemons's suspicion was raised—he wondered, “why leave the area just because of me?” However, at that point, Lemons did not believe that he had “reasonable suspicion to actually stop [defendant] for a crime.” In fact, Lemons “definitely [did not] think [he had] a crime.” Rather, he had a “hunch,” and he wanted “to know who these folks [were] and why they [were] wanting to leave the area because [Lemons was] there.”

Lemons parked his patrol vehicle, got out of the vehicle, and began walking toward defendant and Jacobs. During his approach, Lemons said something to the effect of, ‘Hey, what's going on, guys?’ As Lemons continued to walk toward defendant and Jacobs, defendant and Jacobs came back toward Lemons. Lemons then asked the men “what they were up to” and “asked what was in the bag.” The men responded that the bag contained cans, and, although Lemons did not open the bag, he had “no reason to doubt” that the bag contained cans. Defendant then told Lemons that he ha[d] to go to the bathroom.”

Lemons did not directly respond to defendant's request to go to the bathroom; instead, Lemons asked defendant and Jacobs for identification. Defendant, who did not have an identification card, told Lemons his name and date of birth, and Lemons apparently wrote that information down in a notebook. Jacobs handed Lemons an identification card, which Lemons retained. Lemons then told defendant and Jacobs to “hang on there, or hang on a second.” Lemons returned to his patrol vehicle to run a records check. While Lemons was at his patrol vehicle running the records check, Officer Slyder and another officer arrived as back up. At some point, Officer Edwards arrived as backup, apparently along with his partner, Officer Strawn.

The records check revealed an outstanding warrant for defendant's arrest. Lemons did not know about the warrant before he ran the records check, and he did not later recall what the warrant was for. If Lemons had not discovered the outstanding warrant, he would have “let [defendant] go on his way”—that is, he “would have let him know that he was free to leave” because he “had no reason to arrest him.” Instead, Slyder informed defendant that he would be taken into custody.

Defendant was asked whether there was anything on him that Lemons was going to find, and defendant said that he “might have” marijuana or “crystal” on him. Lemons advised defendant of his Miranda rights, searched a “coin pocket” on defendant's jeans, and found a folded piece of paper containing a substance that later tested positive for methamphetamine. Defendant was subsequently charged with unlawful possession of methamphetamine, in violation of ORS 475.894(1).

As the case proceeded to trial, defendant moved to suppress the “evidence discovered subsequent to the illegal detention[,] arguing that the evidence was obtained in violation of his rights under Article I, section 9, and the Fourth Amendment to the United States Constitution. Specifically, defendant argued that he was unlawfully seized when Lemons conducted a records check on him and that the discovery of the outstanding warrant did not ‘purge the taint’ of the unlawful seizure.

At a hearing on the matter, the state responded that defendant was not seized and alternatively argued that, even if defendant was seized, suppression was not warranted because the discovery of the outstanding warrant “create[d] an attenuation.” To support its attenuation argument, the state relied upon State v. Dempster, 248 Or. 404, 408, 434 P.2d 746 (1967), in which the Oregon Supreme Court concluded that the lawful arrest of the defendant on an outstanding warrant “purged the search incident thereto of the taint of any illegality in the detention of defendant prior to that time.”

Relating to seizure, the trial court ruled:

[U]nder these facts and circumstances, the officer did not have a reasonable suspicion or probable cause. And I would find that walking up to these gentlemen, making this inquiry, taking identification, going back to the car leads me to a reasonable assumption with him saying hang on there, or hang on a second that he is being stopped and he is not free to leave.
“There's other officers showing up. No reasonable person, I would find under the totality of circumstances, would feel free to leave. And, in fact, I don't think he was free to leave because had he started walking off, I'll bet you the officer would have grabbed him.
“So I'm comfortable this was an unlawful stop by the police officers and he was stopped.”

The trial court then reviewed both state and federal case law, commenting on both state and federal constitutional theories of suppression. The court stated:

“Nothing stops a police officer from having contact with citizens and talking to them and asking questions. It only becomes an issue when the police use some illegality by requiring a person to do something that they have a lawful right not to do. And then when they intend to use that evidence as—as a result of exploitation.
“So the question for me is do I think that the Courts are moving towards excluding tainted evidence or moving towards allowing more tainted evidence in so that people that have warrants out or commit a crime should be punished for what they did?”

After noting that the “trend of the law is moving towards excluding this evidence[,] the court ruled:

“And I would find that, based on the evidence and circumstances that I've heard, that the State has not met its burden and convinced me that this evidence is not tainted and I think because of the illegality, they exploited an illegal stop of the defendant and I am going to suppress the evidence.”

The state now appeals.

On appeal, the state essentially reprises its arguments under both Article I, section 9, and the Fourth Amendment. Thus, we must first determine whether defendant was seized in violation of his constitutional rights. If we conclude that a constitutional violation occurred, we must then consider whether the state proved attenuation—that is, whether the state proved that the violation of defendant's rights had such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence. We consider questions of state law first. See State v. Kennedy, 295 Or. 260, 262–63, 666 P.2d 1316 (1983) (court considers and disposes of questions of state law before reaching federal law claims).

Article I, section 9, provides that the people have the right “to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.] When construing Article I, section 9, the Oregon Supreme Court “has identified three categories of encounters along the continuum of meetings between law enforcement officers and citizens[.] State v. Holmes, 311 Or. 400, 407, 813 P.2d 28 (1991). Those categories are:

(1) a mere conversation or noncoercive encounter that involves no restraint of liberty and, therefore, is not a seizure that requires any justification; (2) a stop, which is a type of seizure that occurs when an officer
...

To continue reading

Request your trial
12 cases
  • State v. Jones
    • United States
    • Oregon Court of Appeals
    • December 30, 2015
    ...incident thereto of the taint of any illegality in the detention of defendant prior to that time"); see also State v. Benning, 273 Or.App. 183, 194–95, 359 P.3d 357 (2015) ("[T]he ‘Dempster / Snyder rule’ became the basis for determining under Article I, section 9, the legal effect of the d......
  • State v. Kelly, C120310CR
    • United States
    • Oregon Court of Appeals
    • October 14, 2015
    ...is, in favor of a determination that the police misconduct tainted defendant's subsequent consents to search. See State v. Benning,273 Or.App. 183, 197, 359 P.3d 357 (2015)(in the absence of an “extended temporal break,” the “temporal proximity” consideration weighed against a finding of at......
  • State v. Gilkey
    • United States
    • Oregon Court of Appeals
    • February 24, 2022
    ...the unlawful police conduct was "independent of, or only tenuously related to" the disputed evidence—attenuation. State v. Benning , 273 Or. App. 183, 194, 359 P.3d 357 (2015) (quoting State v. Hall , 339 Or. 7, 35, 115 P.3d 908 (2005) ); see, e.g. , Unger , 356 Or. at 84, 333 P.3d 1009 (ad......
  • State v. Pichardo, 110833156
    • United States
    • Oregon Court of Appeals
    • December 2, 2015
    ...that defendant's consent, although voluntary, was nonetheless directly derivative of the misconduct. See State v. Benning, 273 Or.App. 183, 202, 359 P.3d 357 (2015) (determining that "purpose" consideration weighs in favor of suppression if the purpose of the misconduct was to enable an inv......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT