State v. Jones

• Decision Date: 30 December 2015
• Docket Number: A154424.,121235748
• Citation: 275 Or.App. 771,365 P.3d 679
• Parties: STATE of Oregon, Plaintiff–Appellant, v. Mario Terrell JONES, aka Mario Jones, Defendant–Respondent.
• Court: Oregon Court of Appeals

275 Or.App. 771

365 P.3d 679

STATE of Oregon, Plaintiff–Appellant,

v.Mario Terrell JONES, aka Mario Jones, Defendant–Respondent.

121235748

A154424.

Court of Appeals of Oregon.

Argued and Submitted on Nov. 10, 2014.

Decided Dec. 30, 2015.

Leigh A. Salmon, Assistant Attorney General, argued the cause for appellant. With her on the briefs 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.

SERCOMBE, P.J.

The state appeals the trial court's pretrial order granting defendant's motion to suppress. On appeal, the state asserts that the court erred in concluding that the Fourth Amendment to the United States Constitution compelled suppression of evidence that defendant possessed methamphetamine.¹ Defendant, in a cross-assignment of error, asserts that the trial court incorrectly concluded that the evidence was not subject to suppression pursuant to Article I, section 9, of the Oregon Constitution, and that the evidence should have been suppressed under that provision.² As explained below, we agree with defendant that, under the circumstances of this case, the evidence was subject to suppression under Article I, section 9, and, accordingly, we affirm.

The relevant underlying circumstances in this case are few and undisputed. One night, a law enforcement officer on patrol observed defendant walking on the sidewalk and then ducking into nearby bushes. The officer interacted with defendant and, as both parties agreed, unlawfully seized defendant during that interaction. As part of his encounter with defendant, the officer tried to obtain defendant's identification and questioned defendant about why he had stepped off into the bushes. After unlawfully seizing defendant, the officer ran a warrants check and discovered an outstanding warrant for defendant's arrest. The officer then arrested defendant on the warrant and placed him in the back of the officer's patrol car. The officer subsequently discovered methamphetamine in that area of the car.

Defendant was charged with unlawful possession of methamphetamine. He filed a pretrial motion to suppress in which he asserted that the officer had unlawfully seized him and that he was entitled to suppression of the evidence obtained thereafter under both state and federal law, notwithstanding the officer's subsequent discovery of the arrest warrant and lawful arrest of defendant. At a hearing on defendant's motion, as noted, the state stipulated that defendant had been unlawfully stopped by the officer. The state presented no testimony at the hearing, and asserted that, in light of the stipulation, the only issue before the court was legal: whether the subsequent discovery of the warrant "cure[d] the bad stop."³ Relying on State v. Dempster, 248 Or. 404, 434 P.2d 746 (1967), the state asserted that the discovery of the warrant "purges the taint of a bad stop." The trial court ultimately agreed that, under state law, the discovery of the arrest warrant purged the taint of the earlier police illegality. Accordingly, the court concluded that suppression was not appropriate under Article I, section 9. However, the trial court concluded that, under the Fourth Amendment, "the stop was unlawful, the warrant check was unreasonable," and, therefore, the evidence was subject to suppression. The court relied upon United States v. Luckett, 484 F.2d 89 (9th Cir.1973), in which the Ninth Circuit Court of Appeals held that, where police unlawfully detained a defendant for the purpose of running a warrants check, evidence discovered following an arrest on the warrant was subject to suppression.⁴ Accordingly, the trial court denied suppression under Article I, section 9, but granted the motion under the Fourth Amendment.

As noted, on appeal, the state asserts that the trial court erred in granting defendant's motion to suppress pursuant to the Fourth Amendment. Defendant cross-assigns error to the trial court's denial of the motion pursuant to Article I, section 9. Given the state's concession that defendant was unlawfully seized without reasonable suspicion, the state had the burden under either constitutional provision to demonstrate that the evidence in question was "independent of, or only tenuously related to, the illegal police conduct." State v. Unger, 356 Or. 59, 84, 333 P.3d 1009 (2014) ; see State v. Bailey, 356 Or. 486, 508, 338 P.3d 702 (2014) (in a Fourth Amendment analysis, the state has the "burden to establish attenuation"); State v. Jackson, 268 Or.App. 139, 151, 342 P.3d 119 (2014) ("Whenever the state has obtained evidence following the violation of a defendant's Article I, section 9 rights, it is presumed that the evidence was tainted and must be suppressed."). Thus, the issue in this case is whether the state met its burden to establish attenuation.

At the time that the trial court ruled on the motion to suppress, under Dempster, 248 Or. 404, 434 P.2d 746, and State v. Snyder, 72 Or.App. 359, 695 P.2d 958, rev. den., 299 Or. 251, 701 P.2d 784 (1985), the rule was that the lawful arrest of a defendant on an outstanding warrant served to attenuate the link between unlawful police conduct and subsequently discovered evidence. Dempster, 248 Or. at 408, 434 P.2d 746 (arrest based on outstanding warrant "purged the search 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 discovery and execution of an outstanding arrest warrant in cases involving prior unlawful police conduct."); State v. Langston, 223 Or.App. 590, 595, 196 P.3d 84 (2008) (under the "Dempster / Snyder rule," the "discovery and execution of the outstanding warrant for defendant's arrest purged the taint of any prior unlawful stop"). However, after the parties filed their briefs on appeal, the Supreme Court decided Bailey, in which it disavowed its holding in Dempster. In Bailey, police officers unlawfully detained the defendant, who was a passenger in a car that was stopped. During the unlawful detention, officers ran a warrants check on the defendant, discovered an outstanding arrest warrant, arrested the defendant, and, during a search incident to arrest, discovered that the defendant possessed illegal drugs. The court considered whether, "under the Fourth Amendment, the discovery and execution of a valid warrant for defendant's arrest sufficiently attenuated the connection between defendant's unlawful detention and evidence found in the search incident to his arrest so as to permit the state to use the evidence against defendant at trial." Bailey, 356 Or. at 488, 338 P.3d 702. The court concluded that "Dempster 's per se rule is inconsistent with the subsequent development of the Fourth Amendment attenuation exception set out in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the United States Supreme Court rejected such an approach." Id. Instead, according to the court, under Brown, in conducting an attenuation analysis, courts must consider three factors: "(1) the temporal proximity between unlawful police conduct and the discovery of the challenged evidence; (2) the presence of intervening circumstances; and (3) particularly, the purpose and flagrancy of the official misconduct." Id. at 488–89, 338 P.3d 702 (internal quotation marks omitted).

Thereafter, in Benning, we acknowledged that, in light of Bailey, Snyder was no longer "good law." 273 Or.App. at 196, 359 P.3d 357. We explained that, in determining whether the state had met its burden to demonstrate attenuation under Article I, section 9, we should apply the attenuation test set forth in Unger, in which we evaluate "the temporal proximity between the unlawful police conduct and the discovery of the challenged evidence; the presence of mitigating circumstances; the presence of intervening circumstances; the purpose and flagrancy of the unlawful police conduct; and the nature and extent of the constitutional violation." Benning, 273 Or.App. at 197, 359 P.3d 357 (citing Unger, 356 Or. at 86, 333 P.3d 1009 ). Thus, whether we are evaluating attenuation under Article I, section 9, or the Fourth Amendment, we consider essentially the same factors to determine whether the state has met its burden to demonstrate attenuation. We have recognized that the results under the tests set forth in Unger and Bailey are likely to be the same. State v. Mitchell, 273 Or.App. 207, 215 n. 3, 360 P.3d 525 (2015) (concluding that the trial court did not err in denying the defendant's motion to suppress under the Fourth Amendment attenuation test set forth in Bailey, and recognizing that the result under Article I, section 9, "would almost certainly" be the same).

In light of those cases, the state filed memoranda of additional authorities in which it asserts that the case should be remanded for a new suppression hearing. According to the state, at the suppression hearing, it relied on "then-existing precedent" and "had no reason to consider other tactical choices or to develop a factual record that would satisfy the new attenuation standards that were not announced until after the parties presented their arguments on appeal." (Emphasis in original; internal quotation marks omitted.) Given the change in the "legal landscape," the state argues, the case should be "remanded for full record development and reconsideration in light of new precedent." We reject the state's assertion that the case should be remanded for a new suppression hearing.

As noted, in cases where the state seeks to introduce evidence obtained from an unlawful seizure, the burden has long been on ...