State v. Bailey

356 Or. 486

338 P.3d 702

STATE of Oregon, Respondent on Review

v.Clark Allen BAILEY, aka Clarke Allen Bailey, Petitioner on Review.

CC 101033810, CA A148109, SC S061647.

Supreme Court of Oregon, En Banc.

Argued and Submitted May 6, 2014.

Decided Nov. 6, 2014.

Anne Fujita Munsey, Senior Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs were Peter Gartlan, Chief Defender, and Daniel Bennett, Deputy Public Defender.

Anna M. Joyce, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Peenesh H. Shah, Assistant Attorney General.

Opinion

BREWER, J.

Police officers unlawfully detained defendant when he was a passenger in a car. During that unlawful detention, the officers ascertained defendant's identity and ran a warrant check, which revealed that defendant was the subject of an outstanding arrest warrant. The officers arrested defendant and, during a search incident to arrest, discovered that he was in possession of illegal drugs. Based on that evidence, the state prosecuted defendant for various drug offenses. Defendant moved to suppress the evidence under the state and federal exclusionary rules, which, subject to certain exceptions—including the attenuation exception—prohibit the state from using at trial evidence that was obtained as a result of an unreasonable search or seizure. See State ex rel. Dept. of Human Services v. W.P., 345 Or. 657, 664–69, 202 P.3d 167 (2009) (describing operation of exclusionary rules under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution). As explained below, this case requires us to consider 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.

The circuit court and the Court of Appeals rejected defendant's arguments and applied a per se rule to the attenuation analysis: The discovery and execution of a valid arrest warrant necessarily break the connection between preceding unlawful police conduct and a search incident to the arrest. State v. Bailey, 258 Or.App. 18, 308 P.3d 368 (2013). The Court of Appeals drew that rule from this court's decision in State v. Dempster, 248 Or. 404, 434 P.2d 746 (1967). Bailey, 258 Or.App. at 21–29, 308 P.3d 368. For the reasons explained below, we conclude 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. at 603, 95 S.Ct. 2254. Instead, Brown requires courts to consider three factors in the attenuation analysis: (1) the temporal proximity between unlawful police conduct and the discovery of challenged evidence; (2) the presence of intervening circumstances; and (3) “particularly, the purpose and flagrancy of the official misconduct.” Id. at 603–04, 95 S.Ct. 2254. Applying those factors in this case, we conclude that the circuit court erred in denying defendant's motion to suppress.

I. BACKGROUND

In reviewing the denial of a motion to suppress, we are bound by the circuit court's findings of historical fact that are supported by evidence in the record. State v. Stevens, 311 Or. 119, 126, 806 P.2d 92 (1991). If the circuit court does not make findings on all pertinent historical facts and there is evidence from which those facts could be decided more than one way, we will presume that the court found facts in a manner consistent with its ultimate conclusion. Id. at 127, 806 P.2d 92. On review, our role is to decide whether the court correctly applied the law to those historical facts. State v. Holdorf, 355 Or. 812, 814, 333 P.3d 982 (2014). The factual record in this case is largely uncontested for purposes of our review. We set out the pertinent facts as follows.

During a period of escalating gang violence, numerous gang members attended the funeral of an associate in Portland. Police officers were concerned that the funeral would spark additional violence, so they monitored a house where gang members had gathered after attending the funeral. An officer in an aircraft saw several people leave the house and get into a car that the officer thought might be a rental car. According to one officer, gang members often use rental cars for drive-by shootings and other crimes. The airborne officer asked a patrol unit to stop the car. The patrol unit did so after observing the driver commit a minor traffic violation.

Defendant was a passenger in the back seat of the car when it was stopped. A patrol officer asked the driver for identification and proof of insurance. The driver produced her driver license, confirmed that the car was a rental, and provided an expired insurance card. The driver stated that, although the card showed that her insurance coverage had expired, she still had coverage through the same insurer. The officer went to his patrol car to contact the driver's insurance company and determine whether the driver had maintained coverage. While doing so, the officer asked his partner to determine the identities of the passengers, including defendant. When that officer asked defendant for his name, defendant refused to provide it.

Soon after the patrol unit stopped the car, four back-up officers arrived, including Officer Stradley. Stradley recognized defendant as a gang associate, but he did not remember defendant's name. Stradley asked for defendant's identification, but defendant again refused. Stradley then asked Officer Burley to come to the scene for the express purpose of identifying defendant and another passenger who also had refused to identify himself. Burley was working on a gang unit at the time, and Stradley “thought maybe he'd be able to recognize these guys.” Burley, however, was engaged in other work and did not arrive for another 25 minutes. During that time, Stradley attempted to obtain a list of individuals associated with the driver, hoping that it would jog his memory. Stradley testified that it would have been against Stradley's interest to inform defendant that he was free to leave because Stradley wanted to have defendant identified. During the course of the stop, one of the officers told the driver that the stop would go faster if the driver would identify the passengers in the car.

Burley and his partner arrived approximately 30 minutes after the patrol unit stopped the car. At that point, there were eight officers at the scene. Once there, Burley quickly was able to identify defendant. Stradley immediately performed a warrant check and learned that defendant was the subject of an outstanding arrest warrant. Stradley then arrested defendant pursuant to the warrant. During the ensuing search incident to defendant's arrest, Burley found a plastic bag containing a white substance under defendant's tongue. The substance later was determined to be cocaine. In the search, officers also found $700 in cash in defendant's possession.

Based on that evidence, the state charged defendant with delivery of cocaine, ORS 475.880, possession of cocaine, ORS 475.884, and tampering with physical evidence, ORS 162.295. Before trial, defendant moved to suppress the evidence discovered during the search incident to arrest. The circuit court concluded that the patrol officers had lawfully stopped the car, but found that the stop should have taken no more than five minutes to complete their investigation of the traffic infraction and determine whether the driver was carrying proof of insurance.¹ After that point, the court concluded, the officers had extended the stop without reasonable suspicion or probable cause, and the stop of the vehicle and its occupants therefore became unlawful. The court also determined that the officers had no reasonable suspicion or probable cause to hold defendant but that he had not been free to leave and, therefore, had been unlawfully detained. The circuit court nevertheless denied defendant's motion to suppress. According to the court, “[O]nce [the officers] discover the warrant[,] it does cure those prior illegalities. And once they discover the warrant, the officers, evidence-wise, are, in effect, home free.” Defendant was subsequently convicted after a stipulated facts trial.

On appeal, a divided Court of Appeals panel affirmed the circuit court's suppression ruling. Bailey, 258 Or.App. at 18, 308 P.3d 368. In doing so, the Court of Appeals relied heavily on Dempster, in which this court had held, under the Fourth Amendment, that the discovery and execution of a valid arrest warrant that produces incriminating evidence in a search incident to the arrest attenuates the taint of preceding unlawful police conduct. Id. at 21–28, 308 P.3d 368. The Court of Appeals further held—based on its own decisions that had applied the reasoning in Dempster —that the discovery and execution of the arrest warrant in this case attenuated the taint of defendant's unlawful detention under Article I, section 9, of the Oregon Constitution. Id. at 28, 308 P.3d 368. Judge Egan dissented, reasoning that intervening developments in federal constitutional law precluded the outcome that the majority reached. Id. at 30–38, 308 P.3d 368. Defendant now seeks review in this court and contends that the circuit court erred by denying his motion to suppress.

II. ANALYSIS

A. State v. Dempster

To set the stage for our discussion of the applicable constitutional principles, it is helpful to examine in some detail this court's decision in Dempster. There, an officer who already knew the defendant spoke with him on the street. The officer recently had learned...