State v. Hemenway

• Decision Date: 10 January 2013
• Docket Number: SC S059085 (Control); S059392).,CA A136981,(CC 071107
• Citation: 295 P.3d 617,353 Or. 129
• Parties: STATE of Oregon, Respondent on Review, v. Leland Jay HEMENWAY, Petitioner on Review. State of Oregon, Petitioner on Review, v. Leland Jay Hemenway, Respondent on Review.
• Court: Oregon Supreme Court

353 Or. 129
295 P.3d 617

STATE of Oregon, Respondent on Review,
v.
Leland Jay HEMENWAY, Petitioner on Review.
State of Oregon, Petitioner on Review,
v.
Leland Jay Hemenway, Respondent on Review.

(CC 071107; CA A136981; SC S059085 (Control); S059392).

Supreme Court of Oregon.

Argued and Submitted Nov. 14, 2011.
Decided Jan. 10, 2013.

Background: Following denial of motion to suppress evidence, defendant pled guilty in the Circuit Court, Tillamook County, Rick W. Roll, J., to possession of methamphetamine. Defendant appealed. The Court of Appeals, 232 Or.App. 407, 222 P.3d 1103, vacated and remanded. Defendant and state petitioned for review. Petitions were consolidated and review was allowed.

Holding: The Supreme Court, Balmer, C.J., held that drug evidence from tin found on defendant's person was not tainted by unlawful stop, and thus, was admissible.

Decision of Court of Appeals reversed; judgment of circuit court affirmed.

Landau, J., filed concurring opinion.

Walters, J., filed dissenting opinion in which De Muniz, Senior Judge, joined.

[295 P.3d 619]

On review from the Court of Appeals.^*
Rolf Moan, Assistant Attorney General, Salem, argued the cause and filed the brief for State of Oregon, respondent on review/petitioner on review. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Peter Gartlan, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the brief for Leland Jay Hemenway, petitioner on review/respondent on review.

Before BALMER, Chief Justice, KISTLER, WALTERS, LINDER, and LANDAU, Justices, and DURHAM and DE MUNIZ, Senior Judges, Justices pro tempore.^**

BALMER, C.J.

[353 Or. 131]This case requires us to consider once again the circumstances in which a person's voluntary consent to a search is the result of exploitation of prior illegal police conduct—leading to the exclusion of the evidence obtained—and when it is not. The state charged defendant with possession of methamphetamine. Before trial, defendant filed a

[295 P.3d 620]

motion to suppress evidence seized by the police, arguing that his consent to search was the product of an illegal seizure and, therefore, that the evidence was inadmissible under Article I, section 9, of the Oregon Constitution. ¹ The trial court denied the motion. Defendant entered a conditional guilty plea, reserving his right to appeal the denial of his motion to suppress. The Court of Appeals reversed, relying in part on our decision in State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), and holding that, if the stop was unlawful, the evidence from the search was presumptively obtained through exploitation of the earlier unlawful conduct. State v. Hemenway, 232 Or.App. 407, 222 P.3d 1103 (2009). For the reasons that follow, we reverse the decision of the Court of Appeals. In doing so, we modify the exploitation analysis announced in Hall.

BACKGROUND

We take the facts from the Court of Appeals opinion.

“In April 2007, deputies Orella and Russell responded to a call from Taylor, defendant's girlfriend, regarding the Taylor residence's electric power and the whereabouts of Taylor's son. The deputies, in separate cars, arrived at Taylor's residence just before midnight. Both deputies parked in the driveway behind defendant's truck, blocking the truck's exit route. The deputies were in uniform, carrying guns, and driving marked sheriff's vehicles. Defendant and Taylor were both outside the house when the deputies arrived. Deputy Orella approached Taylor and instructed [353 Or. 132]defendant to go talk to Deputy Russell. Orella then informed Russell that he had observed a rifle in defendant's truck.

“Defendant met Russell near the back of the truck and voluntarily explained that he was in the process of moving out of the house and many of his belongings were in the truck, including the rifle and a handgun. Russell asked defendant if he was a felon; defendant responded that he was not. In order to verify defendant's assertion that he was not a felon, Russell asked for defendant's name and date of birth. Defendant provided the information to Russell. Defendant asked Russell's permission to have a cigarette. Russell said that he could, but that he wanted to search defendant to ‘ease his mind.’ Defendant agreed to that search. Russell found a breath mint tin in one of defendant's pockets. The trial court found that Russell first asked if he could open the tin, and, after defendant agreed, Russell discovered a methamphetamine pipe and a baggie that Russell suspected contained methamphetamine residue. Russell placed defendant under arrest and advised him of his Miranda rights.

“Russell then asked defendant if he had more drugs in the house. Defendant admitted that there might be and consented to Russell retrieving the drug-related items from the house. Defendant accompanied Russell into the house and pointed out where the methamphetamine paraphernalia was, which Russell then located and seized.

“Before trial, defendant moved to suppress all evidence obtained from the warrantless search of his person and residence and his inculpatory statements made to the deputies. Defendant argued that the deputies' conduct before his grants of consent and statements constituted an unlawful stop under Article I, section 9, of the Oregon Constitution and that Russell exploited the unlawful stop when he obtained defendant's consents and statements. The trial court determined that defendant was not ‘seized’ by Russell and that defendant's consents were voluntary. Defendant entered a conditional plea of guilty, reserving the right to appeal the trial court's denial of his motion to suppress.”

Id. at 409–10, 222 P.3d 1103.

On appeal, defendant argued that the trial court erred by holding that defendant had

[295 P.3d 621]

not been seized; defendant did not challenge the trial court's finding that [353 Or. 133]he voluntarily had consented to the searches. The Court of Appeals determined that (1) the officers did not have reasonable suspicion that defendant had engaged in criminal activity; and (2) a reasonable person in defendant's position would have believed that he had been stopped, “[g]iven that defendant was physically blocked from exiting in his truck by the deputies' cars, that he was told to speak to Russell and had to alter his course to do so, and that Russell asked if defendant was a felon and subsequently asked for his verifying information.” Id. at 415, 222 P.3d 1103. The court nevertheless remanded defendant's case for the trial court to determine whether defendant subjectively had believed that he had been stopped. Id. Under this court's case law at the time of the Court of Appeals decision, a seizure for purposes of Article I, section 9, occurred whenever an individual subjectively “believe[d]” that a law enforcement officer had restrained that individual's liberty or freedom of movement and such belief was objectively reasonable. See State v. Holmes, 311 Or. 400, 409–10, 813 P.2d 28 (1991), overruled in part by State v. Ashbaugh, 349 Or. 297, 316, 244 P.3d 360 (2010).

Turning to the question whether, if defendant had been unlawfully stopped, the evidence from the consent searches should have been suppressed, the Court of Appeals held that it should. Hemenway, 232 Or.App. at 416–18, 222 P.3d 1103. Applying Hall, the court held that the state had failed to show that defendant's voluntary consents were attenuated from the potentially illegal stop. For that reason, if the stop was unlawful, the evidence was obtained through exploitation and should have been suppressed.

Defendant and the state each requested an extension of time to file their respective petitions for review pending this court's decision Ashbaugh. In that case, we modified the test for whether the police have seized a person for purposes of Article I, section 9, eliminating the subjective component of the test. Ashbaugh, 349 Or. at 316, 244 P.3d 360. After the opinion Ashbaugh issued, defendant and the state both petitioned for review in these cases. Defendant argued that, under Ashbaugh, this court should reverse the part of the Court of Appeals opinion that remanded his case to the trial court for an investigation into his subjective [353 Or. 134]belief regarding whether he had been stopped and should order the suppression of the drug evidence under Hall. The state conceded that defendant had been stopped under Article I, section 9, as explained in Ashbaugh, but asserted that Hall was incorrectly decided and should be overruled. We consolidated the petitions and allowed review.

On review, the state argues that Hall—discussed further below—was incorrectly decided because a voluntary consent search is necessarily “reasonable” under Article I, section 9, of the Oregon Constitution and, thus, any evidence seized pursuant to a voluntary consent search is admissible regardless of any prior illegal conduct by law enforcement. Defendant responds that Hall was correctly decided and that, under Hall, the evidence seized pursuant to defendant's consent must be suppressed because the evidence was derived from the illegal stop.

We begin with a summary of the relevant parts of Hall. In that case, as here, the defendant consented to a search voluntarily after being stopped by police, and the police discovered drugs. The defendant moved to suppress, arguing that the stop had been illegal and that that illegality required suppression of the evidence despite his voluntary consent to the search. The trial court denied the motion, but the Court of Appeals reversed and ordered the evidence suppressed. 339 Or. at 10–12, 115 P.3d 908. The state petitioned for review, arguing, among other things, that the defendant's voluntary consent had severed the causal link between the illegal police conduct and the evidence. Thus, in the state's view, the exclusionary rule did not bar the evidence, because the illegal conduct did not bring the evidence to light. Id. at 14, 115...