State v. Musser

• Decision Date: 28 August 2014
• Docket Number: SC S060868.,CC 201001347,CA A145540
• Citation: 356 Or. 148,335 P.3d 814
• Parties: STATE of Oregon, Petitioner on Review, v. Deborah Ann MUSSER, Respondent on Review.
• Court: Oregon Supreme Court

356 Or. 148

335 P.3d 814

STATE of Oregon, Petitioner on Review

v.Deborah Ann MUSSER, Respondent on Review.

CC 201001347

CA A145540

SC S060868.

Supreme Court of Oregon, En Banc.

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.

Opinion

BALMER, C.J.

This is one of three cases that we decide today in which we examine when evidence obtained pursuant to a voluntary consent search must be suppressed on the theory that the consent was the result of exploitation of prior illegal police conduct. In the first of the three cases, State v. Unger, 356 Or. 59, 333 P.3d 1009, 2014 WL 4243788 (2014), we modified part of the exploitation analysis announced in State v. Hall, 339 Or. 7, 115 P.3d 908 (2005). We disavowed the requirement in Hall that a defendant must establish a “minimal factual nexus” between the unlawful police conduct and the disputed evidence, and we instead held that, when a defendant challenges the validity of his or her consent based on a prior police illegality, the state bears the burden of demonstrating that the consent was voluntary and was not the product of police exploitation of that illegality. Unger, 356 Or. at 74–75, 333 P.3d at 1019–20. We also emphasized that the determination of whether the police have exploited their unlawful conduct to obtain a defendant's consent depends on the totality of the circumstances. That analysis, we stated, should recognize the importance of the voluntariness of the consent and should consider not only the temporal proximity between the unlawful conduct and the consent and any intervening or mitigating circumstances—factors emphasized in Hall—but also the nature of the unlawful conduct, including its purpose and flagrancy. Id. at 93, 333 P.3d at 1029.

In this case, a police officer on patrol encountered defendant at 10:00 p.m. in an area behind a shopping center where criminal activity frequently occurred. The officer stopped defendant and obtained her consent to search pouches that he saw inside her purse, as well as the remainder of her purse. During those searches, the officer found drugs and drug paraphernalia. Defendant sought to suppress that evidence at trial, arguing, among other things, that the stop had been unlawful and that defendant's consent had been derived from the unlawful stop in violation of Article I, section 9, of the Oregon Constitution. The trial court denied that motion, and defendant was convicted of unlawful possession of methamphetamine at a stipulated facts trial. The Court of Appeals reversed, concluding that the officer had stopped defendant unlawfully and that the incriminating evidence had derived from that stop. State v. Musser, 253 Or.App. 178, 184, 289 P.3d 340 (2012). For the reasons discussed below, we affirm the decision of the Court of Appeals.

A police officer was patrolling an alley behind a shopping center around 10:00 p.m., because he often had encountered people engaging in illegal activity in that area. At that time of night, the majority of the businesses in the shopping center were closed. The businesses that remained open were in the front of the complex, but they were near a walkway that connected the front of the shopping center to the alley that the officer was patrolling. As he drove through the alley, the officer saw defendant and a male companion on the walkway. Because the alley was a place “where people frequently engage[d] in criminal activity,” the officer approached defendant and her companion “basically, to make sure they were not doing anything wrong.”¹ The officer also believed that they were trespassing because of the time of night.

As the officer approached in his car, which had its spotlight and alley lights on, defendant started to walk towards the front of the shopping center. The officer got out of his car and said “Hey, I need to talk to you.” Instead of talking to the officer, however, defendant continued walking toward the front of the shopping center, prompting the officer to say “in a more direct, firm tone,” “Hey, come back here. I need to talk to you.” Defendant came back to speak to the officer, but told him that she wanted to return to the front of the shopping center where her friends were.

The officer requested defendant's identification. Defendant was “nervous” and “fidgety.” Based on defendant's “inability to stand still” and her “nervousness as compared to the male, who was completely calm,” the officer suspected that defendant had recently used methamphetamine or some other stimulant.

While defendant was looking through her purse for identification, the officer noticed two Crown Royal pouches in her purse. Based on his suspicion that she had recently used methamphetamine, the officer “thought it was more likely than not that she probably had some controlled substances in her purse.” After the officer ran the name on defendant's identification, he “asked for her consent to search the two Crown Royal pouches that were in her purse, and she agreed.” Inside one of the pouches, the officer discovered a metal spoon with burn marks on it, a small metal scraping tool, and a small black pouch with white residue inside. The officer believed that the spoon and the scraping tool had been used in connection with methamphetamine, and he therefore suspected that the white residue was methamphetamine.

After the officer searched the Crown Royal pouches, a second officer arrived to assist with the investigation. The first officer then asked for defendant's consent to search the remaining contents of her purse, and defendant agreed. During that search, the officer discovered a third pouch containing a bag with a white crystalline substance inside that later tested positive for methamphetamine. The whole interaction, from when the officer initially contacted defendant to when he wrote her a citation, lasted about an hour.

The state charged defendant with unlawful possession of methamphetamine, and defendant moved to suppress her statements and the items found in her purse. Defendant argued, among other things, that the officer had stopped her unlawfully and that, to the extent that she had consented, her consent had been “derived from” the unlawful stop.² The trial court denied defendant's motion to suppress, reasoning that the officer had “reasonably suspected that some criminal activity was afoot” when he had stopped defendant. The case proceeded to a stipulated facts trial, and the court found defendant guilty.

On appeal, the parties focused their arguments on whether the officer had had reasonable suspicion to stop defendant, and the Court of Appeals likewise focused its opinion on that issue. See Musser, 253 Or.App. at 181, 289 P.3d 340 (stating that the “issue on appeal is whether [the officer] had reasonable suspicion to stop defendant for criminal trespass”). The court addressed defendant's exploitation argument in a single sentence: “Because [the officer] stopped defendant without reasonable suspicion and there is no dispute that the evidence he subsequently obtained derived from that stop, the trial court erred by denying defendant's motion to suppress.”³ Id. at 184, 289 P.3d 340.

The state sought review. On review, the state concedes that the officer stopped defendant without reasonable suspicion, in violation of Article I, section 9. The state argues that, despite that illegality, the evidence discovered in defendant's purse should not be suppressed. As in Unger, the state argues that, if a police illegality is followed by a voluntary consent to search, then any evidence obtained as a result of that search is admissible. The state acknowledges that that result would require this court to overrule Hall. Alternatively, the state argues that this court should modify Hall as it did in State v. Hemenway, 353 Or. 129, 295 P.3d 617, vac'd as moot, 353 Or. 498, 302 P.3d 413 (2013), by emphasizing that the exploitation analysis set forth in Hall overvalued the temporal proximity between the illegality and the consent, while undervaluing the defendant's voluntary consent.

Under either test, the state argues, the evidence in this case should not be suppressed. Under its proposed rule, the state argues, defendant's consent to both searches was voluntary, and that fact—in and of itself—provides a basis for denying a motion to suppress. Even if this court rejects that approach, the state argues that, under its alternative proposed rule, nothing about the interaction “significantly affected” defendant's decision to consent because the interaction was short, the officer did not physically restrain defendant, and the officer was not otherwise aggressive or intimidating.

Although defendant agrees that this court should disavow the minimal factual nexus test from Hall, as the court did in Hemenway, defendant argues that this court should retain the remaining exploitation analysis set forth in Hall, rather than modifying it as we did in Hemenway. Defendant argues, however, that the evidence must be suppressed under the analysis articulated in either Hall or Hemenway because the officer requested consent to search shortly after the unlawful stop, there were no intervening or mitigating circumstances, and the interaction never deescalated from a criminal investigation into mere conversation.

In Unger, today we held that the determination as to whether evidence found in a search should be suppressed because police exploited their violation of a defendant's Article I, section 9, rights to obtain consent to the search requires consideration of the totality of the circumstances surrounding the police-defendant encounter. In reaching that conclusion, we rejected both the state's view that voluntary consent generally cures any taint that...