State v. Hall, (CC 9701546CR; CA A109813; SC S49825).

CourtSupreme Court of Oregon
Citation115 P.3d 908
Docket Number(CC 9701546CR; CA A109813; SC S49825).
PartiesSTATE of Oregon, Petitioner on Review, v. David Clyde HALL, Respondent on Review.
Decision Date15 July 2005

Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Peter Gartlan, Chief Defender, Salem, argued the cause for respondent on review. With him on the briefs were Peter A. Ozanne, Executive Director, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.**


In this criminal case, we decide two questions. First, under the circumstances at issue here, did the police encounter with defendant constitute an unlawful "stop" under ORS 131.615(1) (1995) and, consequently, also an unlawful "seizure" under Article I, section 9, of the Oregon Constitution?1 Second, if so, did that unlawful stop vitiate defendant's consent to the subsequent search of his person?

The state charged defendant with possession of amphetamine, ORS 475.992(4)(b), based upon evidence that a police officer had seized during a consent search of defendant's person. The trial court denied defendant's pretrial motion to suppress the state's evidence, and a jury later convicted defendant of the charged offense. On defendant's subsequent appeal, a majority of the Court of Appeals, sitting en banc, reversed. It held that, notwithstanding the voluntariness of defendant's consent to the search, Article I, section 9, required exclusion of the challenged evidence because the police officer had stopped defendant unlawfully and then had "exploited" that unlawful stop to obtain defendant's consent. State v. Hall, 183 Or App. 48, 50 P.3d 1258 (2002). We allowed the state's petition for review. For the reasons that follow, we affirm the decision of the Court of Appeals and reverse the judgment of the trial court.


Our review of the trial court's denial of defendant's pretrial suppression motion is limited to issues of law. We are bound by the trial court's findings of historical fact if constitutionally sufficient evidence in the record supports those findings. State v. Boone, 327 Or. 307, 309, 959 P.2d 76 (1998). If the trial court did not make express findings respecting all pertinent historical facts, and the record contains conflicting evidence, then we presume that the trial court found facts that were consistent with its ultimate conclusion. State v. Stevens, 311 Or. 119, 126-27, 806 P.2d 92 (1991). With those precepts in mind, we take the following facts from the trial court's written findings and from the record.

At approximately 4:00 p.m. on January 8, 1997, Klamath Falls Police Officer Deese saw defendant walking along Washington Street near Tenth Street in Klamath Falls. Deese was in uniform and was driving a marked police vehicle. As Deese drove past defendant, he noticed defendant twice glance towards him and then quickly look away. After he had passed defendant, Deese observed in his rear-view mirror that defendant had turned around to look at him several more times.

Based upon those observations, Deese turned his vehicle around and drove back towards defendant. Without activating his overhead lights or blocking defendant's way, Deese stopped his vehicle next to defendant and then motioned with two fingers for defendant to approach him. When defendant neared, Deese got out of his vehicle and asked defendant if he had any personal identification. Defendant handed Deese an identification card, which Deese used to radio the police dispatch for a warrant check relating to defendant.

After he had radioed the police dispatch, but before he had received back any information, Deese returned the identification card to defendant. Deese noticed that defendant appeared to be carrying something inside his jacket and asked defendant if he was carrying any weapons, knives, or illegal drugs. Defendant replied that he was not. Deese asked defendant if he minded if Deese searched him, and defendant responded "no, go ahead." After patting down the exterior of defendant's jacket, Deese reached into defendant's jacket pocket, pulled out a small glass vial, and opened it. Based upon the smell and the appearance of white residue inside that vial, Deese concluded that the vial contained methamphetamine, and he arrested defendant for possession of a controlled substance. Subsequent testing established that the vial contained traces of amphetamine.

Before trial, relying upon ORS 131.615(1) (1995), Article I, section 9, and the Fourth Amendment to the United States Constitution,2 defendant moved to suppress the evidence of the vial and its contents upon the ground that that evidence was the fruit of an unlawful police stop.3 He also contended that suppression was required because he had not consented to the search voluntarily. After a hearing at which both Deese and defendant testified, the trial court denied defendant's motion, concluding that Deese's encounter with defendant had not amounted to a stop and that defendant's consent to the subsequent search had been voluntary.4 As noted, after a trial, a jury found defendant guilty of the charged offense.

Defendant appealed. Before the Court of Appeals, defendant did not challenge the trial court's ruling that his consent to the search had been voluntary. Instead, he argued only that the state's evidence was inadmissible because it had derived from an unlawful police stop.5

Sitting en banc, a majority of the Court of Appeals reversed. Contrary to the trial court, the Court of Appeals unanimously concluded that Deese unlawfully had stopped defendant without reasonable suspicion of criminal activity. Hall, 183 Or.App. at 56, 62, 50 P.3d 1258. In considering the effect of that illegality upon the admissibility of the evidence from the consent search that followed, that court also unanimously agreed that, notwithstanding the voluntariness of defendant's consent, Article I, section 9, required the court to exclude the state's evidence if that evidence had derived from "exploitation" of the unlawful stop. Id. at 58, 63, 50 P.3d 1258. In deciding whether the state's evidence in fact had derived from "exploitation" of that prior illegality, however, the court divided over both the applicable analysis and the result.

According to the majority opinion, whether evidence from a consent search derives from exploitation of prior unlawful police conduct6 depends upon whether the police gained information from that illegality that provided the impetus for the police to seek the defendant's consent. Id. at 58 n. 8, 59, 50 P.3d 1258. Specifically, reaffirming the test articulated in that court's decision in State v. Stanley, 139 Or.App. 526, 912 P.2d 948 (1996), rev'd on other grounds, 325 Or. 239, 935 P.2d 1202 (1997), the majority opinion explained that "exploitation occurs when unlawful police conduct reveals information that focuses police attention on the defendant and prompts [the police] either to seek the defendant's consent or to ask questions leading to consent." Hall, 183 Or.App. at 60, 50 P.3d 1258 (quoting Stanley, 139 Or.App. at 535, 912 P.2d 948; internal quotation marks omitted). In this case, the majority opinion determined that Deese had "exploited" the unlawful stop because that stop had allowed Deese to observe bulges in defendant's jacket, which, in turn, had prompted his request for defendant's consent to the search. Id. at 59, 50 P.3d 1258. Based upon that determination, the majority opinion held that the trial court had erred by admitting the challenged evidence, and it reversed the trial court's judgment.7 Id.

The dissent disagreed, taking issue both with the majority opinion's explanation of the nature of the court's inquiry in determining "exploitation" and with its application of that analysis to the facts of this case. In the dissent's view, whether evidence derives from police exploitation of a prior illegality is a fact-specific inquiry that depends upon the nature of the causal connection between the unlawful police conduct and the evidence sought to be suppressed. Id. at 67, 50 P.3d 1258 (Deits, C. J., dissenting). By contrast to the majority opinion's focus upon whether the illegality affected the officer's actions, the dissent asserted that an exploitation analysis concerns whether a prior illegality affected the defendant's decision to consent. Id. at 72, 50 P.3d 1258 (Deits, C. J., dissenting). Although stressing that no "bright-line" rule exists, the dissent identified a number of factors that it considered relevant to that determination, including (1) a "but-for" causal connection between the unlawful police conduct and the evidence sought to be suppressed; (2) whether the police had obtained information only by virtue of unlawful conduct, and whether the defendant's knowledge that the police had such information had been a substantial factor in the defendant's decision to consent; (3) the presence of intervening circumstances separating the unlawful police conduct from the evidence sought to be suppressed; and (4) the temporal proximity between the unlawful police conduct and the defendant's consent. Id. at 71, 50 P.3d 1258 (Deits, C.J., dissenting). Because the trial court had not reached the question of exploitation in this case, the dissent would have remanded the case to the trial court for that court to determine whether the state's evidence had derived from exploitation of the unlawful stop in light of the above-described considerations. Id. at 75, 50 P.3d 1258 (Deits, C.J., dissenting).

The state petitioned this court for review, and we allowed that petition....

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