State v. DeJong

368 Or. 640

497 P.3d 710

STATE of Oregon, Respondent on Review,

v.Kristi DEJONG, Petitioner on Review.

CC 16CR52264 (SC S068065)

Supreme Court of Oregon, En Banc.

Argued and submitted June 22, 2021.

November 4, 2021

Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Christopher R. Page, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

WALTERS, C. J.

Officers unlawfully seized defendant's residence. Based, in part, on information learned during the seizure, they obtained a warrant to search the residence where they discovered evidence of unlawful delivery of methamphetamine. Defendant moved to suppress the evidence obtained in the warranted search, contending that it was inadmissible under Article I, section 9, of the Oregon Constitution.¹ The trial court denied defendant's motion to suppress that evidence, and the Court of Appeals affirmed, relying on this court's decision in State v. Johnson , 335 Or. 511, 73 P.3d 282 (2003).

In Johnson , this court adopted a burden-shifting framework that applies when a defendant challenges the admission of evidence obtained in a warranted search that is preceded by an illegality. Under that framework, the defendant has the initial burden to establish a minimal factual nexus between the illegality and the challenged evidence. Id. at 520-21, 73 P.3d 282. If the defendant does so, the burden shifts to the state to establish that the challenged evidence was untainted by the illegality. Id . In this case, the Court of Appeals concluded that defendant's challenge failed at the first step—that is, that defendant failed to establish the requisite factual nexus between the unlawful seizure of her residence and the evidence the state discovered during the warranted search. State v. DeJong , 305 Or.App. 325, 469 P.3d 253 (2020). For reasons we will explain, we disagree with that conclusion and hold that defendant established the necessary factual nexus. We further conclude that the record in this case is legally insufficient to support a finding that the state met its burden at the second step of the Johnson analysis. Accordingly, we reverse the decision of the Court of Appeals and the judgment of the circuit court and remand the case to the circuit court for further proceedings.

We review a trial court's denial of a motion to suppress for errors of law and are bound by the court's factual findings if there is constitutionally sufficient evidence to support them. State v. Maciel-Figueroa , 361 Or. 163, 165-66, 389 P.3d 1121 (2017) (citing State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993) ). If the trial court did not make express findings as to all pertinent issues and there is evidence from which the court could have found a fact in more than one way, we will presume that the court found the fact that is consistent with its ultimate conclusion. Id. at 166, 389 P.3d 1121. With that standard in mind, we set out the most basic facts and later add those necessary to address the state's argument that it satisfied its burden under Johnson.

Officer Daniel Pelayo had been investigating defendant's involvement in an "illegal drug enterprise" for approximately 18 months when an informant, Tiffany Williams, contacted him. Williams told Pelayo that defendant was selling methamphetamine, that Williams had been at defendant's residence earlier that day to purchase marijuana, and that, while Williams was there, she had observed defendant sell methamphetamine to Flora Penrod. Pelayo knew that Penrod lived in the basement of defendant's residence, and he had Williams arrange to meet defendant at her residence to make a purchase.

Shortly thereafter, Pelayo and several other officers went to defendant's residence. Pelayo knocked on the door, and defendant answered. She told Pelayo that Penrod was in the residence but otherwise refused to speak with him. Defendant was arrested and eventually taken to the county jail.

Officers "secured" the residence. In the course of doing so, they found Penrod in the basement and interviewed her, first just outside the residence and later at the police station. During those interviews, Penrod gave a detailed account of her purchase of methamphetamine from defendant earlier that day and disclosed that defendant had given and sold methamphetamine to her in the past.

Later that evening, Pelayo prepared an affidavit and search warrant application. Among other things, the affidavit included the information that Williams had provided about defendant's drug activities, the text messages that Williams had exchanged with defendant arranging to purchase methamphetamine, and the information that Penrod had provided during her interviews with Pelayo. The search warrant was issued and, in the subsequent search of the residence, officers located and seized evidence, including a bindle bag with methamphetamine, digital scales, a methamphetamine pipe, a glass pipe and small bottle with residue, half of a white pill, a cell phone, and a black sunglasses bag with "syringes and meth baggies" and a pipe. Among other crimes, defendant was charged with unlawful delivery of methamphetamine.

Defendant moved to suppress the evidence obtained following the seizure of her residence. Relying on Article I, section 9, she argued that, because exigent circumstances did not exist, the warrantless seizure of her residence was unlawful and that the subsequently discovered evidence should be suppressed.²

The trial court agreed with defendant that exigent circumstances did not justify the warrantless seizure, and that, "[i]f the officers had not illegally seized the residence, cleared the residence[,] and located Penrod[,] the state would not have her statements." But the trial court did not grant defendant's motion in its entirety. Instead, the trial court suppressed Penrod's statements and excised them from the search warrant affidavit.³ The court then reexamined the affidavit, concluded that what remained still established probable cause to issue the warrant, and denied defendant's motion to suppress the evidence obtained in the warranted search.

Defendant entered a conditional guilty plea to unlawful delivery of methamphetamine, reserving the right on appeal to challenge, among other rulings, the trial court's denial of her motion to suppress.⁴ After accepting defendant's plea, the trial court entered a judgment convicting defendant of unlawful delivery of methamphetamine and dismissing all other charges as indicated in the plea agreement.

On appeal, defendant assigned error to the denial of her motion to suppress, contending that the evidence discovered in the warranted search was tainted by the unlawful seizure that preceded it. DeJong , 305 Or.App. at 330, 469 P.3d 253. Both defendant and the state acknowledged that our decision in Johnson established the controlling framework for resolving the case. Id. at 330-31, 469 P.3d 253. Defendant did not challenge the trial court's conclusion that, after excising Penrod's statements and other information, the search warrant affidavit established probable cause. Id. at 331, 469 P.3d 253 n. 2. And the state did not challenge the trial court's ruling that the warrantless seizure of defendant's residence was unlawful because it was not justified by exigent circumstances. Id. at 331, 469 P.3d 253 & n. 3. Thus, the issue on appeal was a narrow one—viz. , whether, under Johnson , defendant had established a minimal factual nexus between the unlawful seizure of her residence and the evidence discovered in the warranted search so as to shift the burden to the state to establish that the challenged evidence was untainted by the preceding illegality. Defendant contended that she had satisfied her burden, and the state disagreed.

The Court of Appeals concluded that defendant had failed to establish the requisite factual nexus and, therefore, that the trial court had not erred in denying defendant's motion to suppress the evidence obtained in the warranted search. In reaching that conclusion, the court specifically rejected two arguments that defendant had made.

In her first argument, defendant had asserted that "the inclusion of Penrod's statements in the search warrant affidavit contributed to the issuing judge's probable cause determination, thereby establishing the required nexus."

Id. at 335, 469 P.3d 253. In rejecting that argument, the Court of Appeals concluded that the trial court's remedy of excising the tainted information from the affidavit and assessing whether the balance of the affidavit established probable cause was sufficient. Id. at 336, 469 P.3d 253.

In her second argument, defendant had asserted that the challenged evidence was tainted by the preceding illegality because, as a result of the unlawful seizure, the evidence remained in place at the time of the search. Id. at 331, 469 P.3d 253. Defendant argued that the state had failed to demonstrate that the evidence would have remained in place even if the officers had not seized her residence. Id. at 330-31, 469 P.3d 253. In rejecting that argument, the Court of Appeals reasoned that defendant had the burden to establish the necessary nexus and to produce evidence that the challenged evidence "might have been removed had the house not been seized." Id. at 337, 469 P.3d 253. Without such a showing, the court concluded, defendant had not "established the requisite minimal factual nexus between the unlawful seizure of her house and the ensuing warrant search." Id. at 338, 469 P.3d 253. The court further concluded that, "[w]ithout that nexus, the state was under no obligation to establish that the police had not exploited their unlawful conduct when they searched defendant's home pursuant to [the] warrant." Id.

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