State v. Lorenzo

• Decision Date: 28 August 2014
• Docket Number: SC S060969.,CA A145826,CC C100238CR
• Citation: 356 Or. 134,335 P.3d 821
• Parties: STATE of Oregon, Petitioner on Review, v. Jeffery LORENZO, Respondent on Review.
• Court: Oregon Supreme Court

356 Or. 134

335 P.3d 821

STATE of Oregon, Petitioner on Review

v.Jeffery LORENZO, Respondent on Review.

CC C100238CR

CA A145826

SC S060969.

Supreme Court of Oregon.

Argued and Submitted Sept. 17, 2013.

Decided Aug. 28, 2014.

Rolf Moan, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Peter Gartlan, Chief Defender, Salem, argued the cause and filed the brief for respondent on review.

Before BALMER, Chief Justice, KISTLER, WALTERS, LINDER, LANDAU, and BALDWIN, Justices.^**

Opinion

BALMER, C. J.

This is the third of three cases that we decide today in which we consider when evidence obtained during a voluntary consent search must nonetheless be suppressed on the theory that the consent was the product of a prior police illegality. This court previously addressed that question in State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), and today we modified part of the Hall exploitation analysis in State v. Unger, 356 Or. 59, 333 P.3d 1009, 2014 WL 4243788 (2014). We disavowed the requirement in Hall that a defendant make a threshold showing of a minimal factual nexus between the police illegality and the disputed evidence, and we instead held that, when a defendant challenges the validity of his or her consent based on prior police misconduct, the state bears the burden of demonstrating that the consent was voluntary and was not the product of that misconduct. Id. at 74–75, 333 P.3d at 1019–20. We reaffirmed that the exploitation analysis must be based on the totality of the circumstances. See Hall, 339 Or. at 35, 115 P.3d 908. We modified Hall, however, by clarifying the importance of an individual's voluntary consent and by noting that the exploitation analysis should include not only the Hall considerations of the temporal proximity between the unlawful conduct and the consent and any intervening or mitigating circumstances, but also the nature of the unlawful conduct, including its purpose and flagrancy. Unger, 356 Or. at 93, 333 P.3d at 1029.

In this case, defendant challenged the trial court's denial of his motion to suppress evidence obtained during a voluntary consent search, which had followed an officer reaching into defendant's apartment to knock on his bedroom door. The trial court concluded that the officer's entry into defendant's apartment had been lawful and that there was no basis for suppression. Defendant was convicted at a bench trial. The Court of Appeals reversed, holding that the officer's conduct constituted an unlawful search and that the state had not proved that the subsequent consent was independent of or only tenuously related to that prior illegality. State v. Lorenzo, 252 Or.App. 263, 268, 271, 287 P.3d 1133 (2012). For the reasons described below, we reverse the decision of the Court of Appeals.

Officers responded to an early morning 9–1–1 call from a woman who reported that her ex-fiancé, Kyle, was outside her apartment with a noose around his neck, threatening to hang himself. When the officers arrived, they quickly detained Kyle and removed the noose from his neck. In the course of talking to Kyle and his ex-fiancée, the officers learned that Kyle lived in an apartment complex directly across from the apartment complex where Kyle had threatened to hang himself, that Kyle owned a gun, and that Kyle had a roommate named Jeff (defendant).

When Officer Wujcik arrived on the scene, after Kyle had been detained, he went to Kyle and defendant's apartment to check on defendant's welfare. Wujcik was concerned about defendant because, as he later explained, “when we get called to suicidals * * * sometimes they're suicidal because they have hurt somebody or killed somebody or something else is going on.” Initially, Wujcik knocked on the outer door of defendant's apartment and called out, “Beaverton Police Department, Jeff, are you okay?” Defendant did not respond, and other officers on the scene asked Kyle's ex-fiancée to call defendant to see if he was unharmed. Those calls also failed to elicit any response.

As the officers continued to talk to Kyle and his ex-fiancée, they learned that defendant's bedroom door was just inside the exterior door to the apartment. Based on that information, Wujcik reached inside the exterior apartment door and knocked on defendant's bedroom door, which he was able to do without stepping inside the apartment.¹ As he was knocking on the bedroom door, Wujcik again said, “Police, Jeff, are you okay?” About ten seconds later, defendant came out of his bedroom into an area where Wujcik could see him from the front door. At that point, Wujcik was fully outside defendant's apartment. Wujcik again asked defendant if he was okay, and defendant responded, “Yeah.” Wujcik then asked defendant, “Can I come in and talk?” and defendant replied, “Yes.”

When he entered the apartment, Wujcik smelled a strong odor of marijuana coming from defendant's room, and he asked defendant for his identification. As defendant went back into his bedroom to retrieve his identification, Wujcik saw a plastic bag containing what appeared to be marijuana on the bedroom floor. Wujcik ran defendant's identification and proceeded to question defendant about the incident with his roommate. Wujcik then told defendant that he knew that there was marijuana in his bedroom, and he asked defendant if he was selling the drug. Defendant responded that he was not. Wujcik then asked if he could make sure that defendant was not selling marijuana by searching defendant's room. According to Wujcik's testimony, defendant said “yes” and “motioned towards the door and stepped away.” During his search of the bedroom, Wujcik found drugs, drug paraphernalia, and a firearm.

The state charged defendant with unlawful manufacture of marijuana, unlawful delivery of marijuana for consideration, and felon in possession of a firearm. Before trial, defendant moved to suppress the evidence found in his bedroom, arguing that the police had entered defendant's apartment unlawfully, that they had exploited that entry to obtain defendant's consent to search his room, and that defendant's consent had not been voluntary.² The trial court denied defendant's motion, concluding that Wujcik's initial warrantless entry into defendant's apartment had been justified under the emergency aid doctrine. Although the trial court found that, in response to Wujcik's request to enter the apartment, defendant had said, “Yes,” and that “by consent [Wujcik had gotten] himself into a position where he smell[ed] and [saw] the marijuana,” the trial court did not expressly address whether defendant's consent had been voluntary. Moreover, the trial court declined the state's request for an alternative ruling on exploitation. Following his conviction at a bench trial, defendant appealed.

The Court of Appeals reversed. The court first concluded that the emergency aid exception to the warrant requirement did not apply. As a result, the court reasoned that the police had entered defendant's apartment unlawfully. L orenzo, 252 Or.App. at 268, 287 P.3d 1133. Applying Hall, the court went on to conclude that the evidence from the subsequent search should have been suppressed because “the state did not demonstrate that defendant's consent was independent of the illegality or that the link between the two was so tenuous that suppression should not be required.” Id. at 271, 287 P.3d 1133. In particular, the court noted that the officers had been unable to contact defendant through lawful means, “[t]he events leading up to defendant's consent to the search of his bedroom flowed quickly and directly from the officer's entry into the apartment,” and the officer had not informed defendant that he could refuse the officer's entry into or search of the apartment. Id. at 270–71, 287 P.3d 1133.

The state petitioned for review. On review, the state does not contest the Court of Appeals' determination that the emergency aid exception did not justify the officer's warrantless entry into defendant's apartment. The state concedes that the officer violated Article I, section 9, when he reached inside defendant's apartment to knock on his bedroom door. Despite that unlawful police conduct, the state argues that the evidence that the officer obtained should not be suppressed because defendant voluntarily consented to the searches that produced the evidence. According to the state, evidence found during a voluntary consent search necessarily is admissible, despite prior police illegality. Even if voluntary consent is not dispositive, however, the state asserts that the evidence in this case should not be suppressed because the police illegality did not significantly affect defendant's decision to consent. In particular, the state notes that the illegal entry into defendant's apartment was short in duration and had terminated by the time that defendant emerged from his bedroom, the illegal entry did not reveal anything incriminating, defendant was not physically restrained, and the illegal entry was not aggressive or intimidating.

Defendant responds by using this court's decision in State v. Hemenway, 353 Or. 129, 295 P.3d 617, vac'd as moot, 353 Or. 498, 302 P.3d 413 (2013), which modified the exploitation analysis set forth in Hall, to frame his arguments. Defendant asserts that Hemenway correctly concluded that a court reviewing a consent search must examine both the voluntariness of the consent and whether the police had exploited a prior illegality to obtain that consent. Defendant also agrees with the court's decision in Hemenway to disavow the minimal factual nexus analysis required by Hall. Defendant argues that the other part of the Hall exploitation analysis should be retained, however, because the court in Hemenway undervalued the effect of police illegality on a person's decision to consent and moved away from Oregon's focus on vindication of personal rights by...