State v. Unger

CourtSupreme Court of Oregon
Citation333 P.3d 1009,356 Or. 59
Docket NumberCA A144192,(CC 09C42443,SC S060888).
PartiesSTATE of Oregon, Petitioner on Review, v. Mark Lawrence UNGER, Respondent on Review.
Decision Date28 August 2014

356 Or. 59
333 P.3d 1009

STATE of Oregon, Petitioner on Review,
Mark Lawrence UNGER, Respondent on Review.

(CC 09C42443; CA A144192; SC S060888).

Supreme Court of Oregon,
En Banc.

Argued and Submitted Sept. 17, 2013.
Decided Aug. 28, 2014.

[333 P.3d 1012]

On review from the Court of Appeals.
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.

Jason E. Thompson, Ferder Casebeer French & Thompson, LP, Salem, argued the cause and filed the brief for respondent on review.


In this criminal case, we again consider when evidence discovered following a person's voluntary consent to search must be suppressed on the theory that the police exploited a prior illegality to obtain the consent. Last year, we addressed that issue in State v. Hemenway, 353 Or. 129, 295 P.3d 617 (2013), and modified part of this court's exploitation analysis previously described in State v. Hall, 339 Or. 7, 34–35, 115 P.3d 908 (2005). Shortly after issuing Hemenway, this court learned that the defendant in that case had died before the court had issued its opinion. Accordingly, we vacated our decision as moot. State v. Hemenway, 353 Or. 498, 506, 302 P.3d 413 (2013). In this case, as in Hemenway, the state asks this court to revisit the exploitation analysis in Hall and either overrule it or modify it as the court did in Hemenway. Defendant, on the other hand, asks this court to reaffirm Hall.

The state charged defendant with manufacture of cocaine and endangering the welfare of a minor, among other things. Before trial, defendant moved to suppress physical evidence and statements obtained by detectives after they knocked on the back door of defendant's house and obtained defendant's consent to enter and then to search the house. Defendant argued both that his consent had not been voluntary and that the detectives had exploited their unlawful conduct to obtain his consent in violation of Article I, section 9, of the Oregon Constitution.1 The trial court denied the motion, and a jury convicted defendant on four of the counts charged. The Court of Appeals reversed, reasoning that, under the Hall exploitation analysis, the detectives' unlawful entry into defendant's backyard to reach his back door had “tainted [defendant's] subsequent consent.” State v. Unger, 252 Or.App. 478, 487–88, 287 P.3d 1196 (2012). For the reasons that follow, we reverse the decision of the Court of Appeals. In doing so, we modify part of the exploitation analysis announced in Hall.


The Marion County Sheriff's Office received a complaint about drug activity at defendant's house, and an informant had reported that young children were staying there and had access to drugs and guns. In response, three detectives from the sheriff's office and one detective from the Canby Police Department went to the house around 10:00 a.m. to conduct a “knock-and-talk.” One detective knocked on the front door, but received no response. Another detective then knocked on a basement door on the lower level of the front of the house, but he also received no response. Despite the lack of responses, several cars were in the driveway, and the detectives thought that someone likely was home.

One detective, Roberts, eventually followed a path around the lower level of the house, which led up to a wraparound porch in back, where there was a sliding glass door that was partially covered with drapes. Roberts knocked on the sliding glass door, and, when defendant came to the door, it appeared that

[333 P.3d 1013]

defendant had just woken up. Roberts introduced himself as “Kevin [Roberts] with the sheriff's office,” and he explained that there had been a complaint about the house. Defendant asked to put on a robe and then gave the detectives permission to enter the house. At some point during the initial interaction between defendant and Roberts, at least two of the other detectives joined Roberts at the sliding glass door.2

The sliding glass door opened into a bedroom, and defendant led the detectives through the bedroom, where a woman was in bed, to the kitchen. In the kitchen, the detectives introduced themselves and again explained why they were there. The detectives then asked if defendant would show them around the house, and defendant agreed.

Defendant took the detectives on a tour of the house, and throughout that tour, defendant was “cooperative.” When defendant showed the detectives the lower level of the house, Roberts noticed a torn piece of a bag that was coated with a white powder and contained some small crystals. Roberts told Detective Cypert what he had found, and Cypert passed that information along to defendant. Cypert then read defendant a “consent to search” card, which included a warning that defendant did not have to consent, but defendant refused to sign the card without first consulting his attorney. Cypert testified that defendant had given the detectives “verbal consent to continue to look through the house,” and defendant called his attorney. Meanwhile, one of the detectives performed a field test on the torn piece of bag.

After defendant spoke to his attorney, he told the detectives that his attorney wanted the detectives to leave the house. According to Cypert, Cypert told defendant that “it was ultimately up to [defendant] to make that decision if he wanted [the detectives] out of the house,” and defendant said he wanted to speak to his attorney again. After speaking to his attorney a second time, defendant told the detectives that he wanted everybody out of the house. By that point, however, the bag that Roberts had found had tested positive for methamphetamine, and the detectives placed defendant under arrest. The detectives obtained a search warrant based on the evidence found during their initial interactions with defendant, and they discovered additional incriminating evidence when executing the warrant.

Before trial, defendant moved to suppress all evidence and statements obtained as a result of the detectives' “unlawful entry into the home and subsequent search, seizure, interrogation and arrest.” Defendant argued both that his consent had not been voluntary and that the detectives had exploited their unlawful entry into his backyard to obtain his consent in violation of Article I, section 9, of the Oregon Constitution.3 The trial court denied the motion, finding that defendant had “allowed [the detectives] consensual entry into the house” and that “the consent [had been] freely and voluntarily made.” The trial court did not expressly address whether the detectives' position in the backyard at the sliding glass door had been unlawful, and, if so, whether the detectives had exploited that illegality to obtain defendant's consent. In a subsequent jury trial, defendant was convicted on four of the counts charged. Defendant appealed the trial court's denial of his motion to suppress.

The Court of Appeals reversed and remanded. The court first determined that the detectives had trespassed in violation of Article I, section 9, when they entered defendant's backyard and knocked on his back door. Unger, 252 Or.App. at 483, 287 P.3d 1196. Because, on appeal, defendant did not argue that his consent had been involuntarily given, the court went on to apply the exploitation analysis set forth in Hall to determine “whether the [detectives'] illegal entry into defendant's backyard invalidated defendant's

[333 P.3d 1014]

consent to the [detectives'] entry into and search of his home.” 4Id. at 483–84, 287 P.3d 1196.

In Hall, this court described a two-step analysis to determine whether evidence obtained pursuant to voluntary consent must nonetheless be suppressed. Under Hall, a defendant must establish a “minimal factual nexus” between the evidence that the defendant seeks to suppress and the prior unlawful police conduct. If the defendant makes that showing, then the state must show that (1) the police inevitably would have obtained the evidence through lawful procedures; (2) the police obtained the evidence independently of the illegal conduct; or, as relevant here, (3) the illegal conduct was “independent of, or only tenuously related to” the disputed evidence. Hall, 339 Or. at 25, 35, 115 P.3d 908. In determining whether the illegal police conduct was “independent of, or only tenuously related to,” the disputed evidence, Hall noted that “[a] causal connection requiring suppression may exist because the police sought the defendant's consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct.” Id. at 35, 115 P.3d 908. The court went on to state that a causal connection requiring suppression also may exist if the illegality “significantly affected” the defendant's decision to consent. Id. Hall identified several considerations relevant to “determining the existence of such a causal connection”:

“(1) the temporal proximity between the unlawful police conduct and the defendant's consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances—such as, for example, a police officer informing the defendant of the right to refuse consent—that mitigated the effect of the unlawful police conduct.”


In this case, the Court of Appeals determined that defendant had established a minimal factual nexus because “[t]he trespass gave the [detectives] the opportunity to obtain defendant's consent” and “the trespass was ongoing when the [detectives] obtained defendant's consent to enter his house.” Unger, 252 Or.App. at 486, 287 P.3d 1196. The court went on to note that “[t]he state [did] not argue that defendant's consent was independent of or only tenuously related to the [detectives'] trespass” and rejected the state's argument that no exploitation had occurred because the detectives had not sought consent based on anything...

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