State v. Pichardo

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Victor Javier PICHARDO, Defendant–Appellant.
• Citation: 275 Or.App. 49,364 P.3d 1
• Docket Number: A150488.,110833156
• Court: Oregon Court of Appeals
• Decision Date: 02 December 2015

275 Or.App. 49

364 P.3d 1

STATE of Oregon, Plaintiff–Respondent,

v.Victor Javier PICHARDO, Defendant–Appellant.

110833156

A150488.

Court of Appeals of Oregon.

Submitted on Remand Feb. 24, 2015.

Decided Dec. 2, 2015.

Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On the supplemental brief were Jedediah Peterson and O'Connor Weber LLP.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General.

Before FLYNN, Presiding Judge, and HASELTON, Chief Judge, and WOLLHEIM, Senior Judge.

HASELTON, C.J.

This case is before us for a second time. Previously, we reversed and remanded defendant's conviction for possession of heroin, concluding that the trial court had erred in denying defendant's motion to suppress evidence that derived from an unlawful seizure. State v. Pichardo, 263 Or.App. 1, 326 P.3d 624, vac'd and rem'd, 356 Or. 574, 342 P.3d 87 (2014) (Pichardo I ). The Supreme Court vacated our decision and remanded for reconsideration in light of its intervening decisions in State v. Unger, 356 Or. 59, 333 P.3d 1009 (2014), and its companion cases, State v. Musser, 356 Or. 148, 335 P.3d 814 (2014), and State v. Lorenzo, 356 Or. 134, 335 P.3d 821 (2014), which modified the analytical framework for deciding whether a person's voluntary consent to a search derived from a preceding police illegality. As explained below, we conclude, under the modified framework, that the state failed to demonstrate that defendant's consent to search was not the product of police exploitation of the unlawful seizure. Accordingly, we adhere to our prior decision, and reverse and remand.

We begin by reiterating the recitation of material facts from Pichardo I:

"On August 2, 2011, Gresham Police Officer Long and his partner were dispatched to assist other officers who were looking for a wanted person, Hamilton, who had fled police officers on foot after they attempted to execute an arrest warrant. Long was not informed about the basis of that warrant. While driving in the neighborhood in which Hamilton had last been seen, Long and his partner saw defendant's car stopped and idling in a traffic lane. There were no other vehicles traveling on that street. Long believed that defendant was impeding traffic in violation of ORS 811.130. As Long watched defendant's car, a man who matched Hamilton's description ran to the car, opened the front passenger door, jumped in, and leaned the seat back. At that point, Long was ‘concerned’ that defendant was helping Hamilton evade the police.

"Long and his partner drove toward the front of defendant's car, activated the overhead lights on their patrol car, and parked in front of defendant's car. Another police car with its overhead lights on pulled behind defendant's car. While other officers arrested the front-seat passenger (who, indeed, was Hamilton), Long approached the driver's side window and asked defendant to step out of the car. Defendant complied. Long asked defendant for his driver's license and proof of insurance, and defendant responded that he had insurance but no driver's license.

"Long then asked defendant for consent to search him for drugs. Defendant consented and admitted that he had heroin in his pocket, which Long located and seized. Long arrested defendant, placed him in handcuffs, advised him of his Miranda rights, and placed him in the back seat of a patrol car. Long then asked defendant for consent to search his car. Defendant consented, and admitted that there were drugs in the car, which Long located and seized.

"Defendant was charged with possession of heroin. Defendant filed a pretrial motion, arguing that the stop and search violated Article I, section 9, [of the Oregon Constitution] and, therefore, the court should suppress ‘all evidence obtained as a result of an unlawful stop, including the seizure of any controlled substances and all oral derivative evidence.’ Specifically, defendant argued that the initial stop was not supported by probable cause that defendant had parked his car ‘in a manner that impedes or blocks the normal and reasonable movement of traffic.’ ORS 811.130(1). Defendant further argued that, even if the initial stop was lawful, Long unlawfully extended the scope and duration of the stop by asking about drugs without reasonable suspicion that defendant was engaged in criminal drug activity.

"The trial court denied defendant's motion, reasoning, with little elaboration, that ‘the duration and scope of the stop was all reasonable on the record.’ Defendant entered a conditional guilty plea and appealed, assigning error to the denial of his motion to suppress and reprising his arguments before the trial court."

Pichardo I, 263 Or.App. at 2–4, 326 P.3d 624 (footnote omitted).

On appeal in Pichardo I, the parties disputed the lawfulness of the initial stop, whether the stop was unlawfully extended, and whether defendant's consent was sufficiently attenuated from any police misconduct, under the analysis set forth in State v. Hall, 339 Or. 7, 24, 115 P.3d 908 (2005).

We ultimately resolved the first issue in the state's favor and the latter two issues in favor of defendant. As to the first issue, we concluded that the initial stop of defendant's vehicle was lawful because Long had reasonable suspicion to stop defendant to inquire about his interactions with Hamilton and to gather information necessary to issue a traffic citation. In addition, Long developed probable cause to investigate defendant for driving without a license. Pichardo I, 263 Or.App. at 5, 326 P.3d 624. However, we concluded that "Long's inquiry about drugs unconstitutionally extended the duration of the stop," constituting an unlawful seizure under Article I, section 9. Id. at 7, 326 P.3d 624. We explained that Long had departed from the "constitutionally permissible paths of inquiry and action" by "immediately"—and without the coincidence of an "unavoidable lull"—"ask[ing] defendant whether he was carrying drugs and whether he would consent to a search" without reasonable suspicion of drug activity. Id.

We further concluded that, under Hall, defendant was entitled to exclusion of the evidence that derived from Long's request to search for drugs:

"Contrary to the state's assertion, defendant's consent was not independent of or attenuated from police misconduct. As explained, Long's request to search defendant for drugs constituted an unlawful extension of the stop, and defendant's consent and admission was directly responsive to Long's impermissible inquiry. Thus, the unlawful extension of the stop can ‘be viewed properly as the source of defendant's consent and admissions and physical evidence of possession of heroin. [Hall, 339 Or. at 25, 115 P.3d 908 ]. Accordingly, the trial court erred in denying defendant's motion to suppress."

Pichardo I, 263 Or.App. at 8, 326 P.3d 624.

The Supreme Court subsequently issued Unger, Musser, and Lorenzo, which modified Hall's analysis. As pertinent to our consideration here, the court explained that, when a defendant seeks to suppress evidence discovered during a consent search that followed unlawful police conduct, "the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the consent was not the product of police exploitation of the illegal stop or search." Unger, 356 Or. at 74–75, 333 P.3d 1009.

Where, as here, there is no question that the defendant's consent was voluntary, we examine "the totality of the circumstances to determine whether the state had carried its burden of proving that the consent was independent of, or only tenuously related to, the unlawful police conduct." Id. at 86, 333 P.3d 1009 (adhering to Hall in that respect). In other words, we must determine "whether police ‘exploited’ or ‘took advantage of’ or ‘traded on’ their unlawful conduct to obtain consent, or—examined from the perspective of the consent—whether the consent was ‘tainted’ because it was ‘derived from’ or was a ‘product of’ the unlawful conduct." Id. at 80, 333 P.3d 1009. Factors relevant to that fact-intensive analysis include

"the temporal proximity of the unlawful police conduct and the defendant's consent, whether any intervening or mitigating circumstances exist (like officers having advised the defendant of the right to refuse consent), whether officers ‘traded on’ information obtained during an illegal search or seizure in subsequently gaining consent to search further, the intrusiveness or severity of the police misconduct, whether the police misconduct was flagrant, and the nature of the police officers' purpose in engaging in the unlawful conduct."

State v. Kelly, 274 Or.App. 363, 377, 360 P.3d 691 (2015) (quoting Unger, 356 Or. at 80–83, 333 P.3d 1009 ).

Our only task on remand is to apply that framework to the circumstances in this case. With respect to that narrowly circumscribed issue, defendant emphasizes the temporal proximity and direct causal link between the unlawful extension of the stop—which was effectuated by the request for defendant's consent to search his person for drugs—and led to defendant's consent to search and his inculpatory admission. Defendant also emphasizes the lack of intervening or mitigating circumstances, noting that he was under arrest by the time Miranda warnings were given, and had at no point been given a choice to remain in the car or refuse consent to a search. In addition, the defense stresses that the motivating purpose for the misconduct was clearly to facilitate a consent search for drugs.

The state responds by focusing its arguments on other considerations, particularly the nature and relatively low "flagrancy" of the police misconduct. Although it does not...