State v. Suppah

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FILED: August 6, 2014 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. ROMAN LANCE SUPPAH, Defendant-Appellant. Sherman County Circuit Court 100016CT A149412 En Banc Thomas M. Hull, Judge. Submitted on September 24, 2013; resubmitted en banc January 07, 2014. Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent. Before Haselton, Chief Judge, and Armstrong, Wollheim, Ortega, Sercombe, Duncan, Nakamoto, Hadlock, Egan, DeVore, Tookey, Garrett, Judges, and Schuman, Senior Judge. DUNCAN, J. Reversed and remanded. Hadlock, J., dissenting. 1 DUNCAN, J. 2 In this criminal case, defendant appeals a judgment of conviction for giving 3 false information to a police officer, ORS 807.620,1 assigning error to the trial court's 4 denial of his motion to suppress evidence obtained during and after a traffic stop. He 5 contends that the stop violated his rights under Article I, section 9, of the Oregon 6 Constitution2 because it was not supported by probable cause, and he further contends 7 that that violation tainted the evidence that he moved to suppress. The state does not 8 dispute that the stop violated defendant's constitutional rights, but argues that the 9 violation did not taint the evidence. Because we conclude that the violation tainted the 10 evidence obtained during the stop and that admission of that evidence was prejudicial, we 11 reverse and remand. 12 I. HISTORICAL AND PROCEDURAL FACTS 13 The relevant facts are undisputed. On July 14, 2010, defendant was driving 14 a purple Cadillac on Interstate 84. Sherman County Deputy Sheriff Hulke pulled 15 defendant over. 1 ORS 807.620(1) provides: "A person commits the offense of giving false information to a police officer if the person knowingly uses or gives a false or fictitious name, address or date of birth to any police officer who is enforcing motor vehicle laws." ORS 807.620(2) provides that the offense is a Class A misdemeanor. 2 Article I, section 9, provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." 1 1 At the hearing on defendant's motion to suppress, Hulke testified that he 2 stopped defendant for a traffic violation, but that he could not recall what the violation 3 was. Hulke testified that it was the type of violation for which he would usually issue a 4 warning to a driver; but Hulke did not issue a warning to defendant. Defendant's 5 uncontradicted testimony was that Hulke did not inform him of the reason for the stop. 6 Although, in his motion to suppress, defendant specifically asserted that there was no 7 evidence that Hulke had a reason to stop him, the state did not respond by presenting any 8 evidence--such as a dispatch record or police report--that Hulke had ever given notice of, 9 or recorded, any reason for the stop.3 10 During the stop, Hulke asked defendant for his name and defendant gave 11 the name "Harold Pennington," which is the name of one of defendant's friends. Hulke 12 ran Pennington's name through dispatch, learned that Pennington's driver's license was 13 suspended, and issued defendant a traffic citation in Pennington's name for driving while 14 suspended and--because defendant had been unable to provide proof of insurance--for 15 driving uninsured. 16 17 Approximately one month later, defendant informed a staff member of the district attorney's office that he had given a false name during the traffic stop. Thereafter, 3 In his written motion to suppress, defendant asserted that there was no evidence that Hulke had a reason to stop him. He also pointed out that the citation that Hulke had issued was for offenses that Hulke discovered only after stopping him, specifically, driving while suspended and driving uninsured. Defendant filed his motion more than two months before the hearing on it was held. Thus, the state had notice of the need to present, and an opportunity to present, any evidence that may have existed to establish that Hulke had a reason to stop defendant. 2 1 Sherman County Deputy Sheriff Shull telephoned defendant and obtained an oral 2 statement. Defendant told Shull that he had given a false name because he did not have a 3 valid license at the time of the stop and he did not want the car, which belonged to his 4 girlfriend, to be towed. Defendant also told Shull that he had given Pennington's name 5 because he had thought that Pennington had a valid license, and that he wanted to make 6 sure that Pennington "didn't get in trouble." Shull asked defendant to go to his local 7 police department and complete a written statement. Defendant did so, and the police 8 department sent the statement to Shull. Thereafter, the state charged defendant with 9 giving false information to a police officer based on his statements during the traffic stop. 10 Defendant moved to suppress the evidence obtained during and after the 11 traffic stop. In his written motion, defendant moved to suppress "the seizure and 12 identification of Defendant, any statements or admissions made by Defendant, all 13 observations of Defendant, all evidence including identification, seized from Defendant 14 and/or the vehicle in which he was driving on July 14, 2010." Defendant asserted that 15 Hulke "pull[ed] [him] over without cause and ask[ed] for [his] identification" and that 16 doing so "constitute[d] an unlawful seizure similar to the one struck down in State v. 17 Toevs, 327 Or 525, 964 P2d 1007 (1998)." Defendant further asserted that, because the 18 stop was unlawful, the evidence obtained as a result of the stop had to be suppressed 19 under the "attenuation analysis delineated in [State v. Hall, 339 Or 7, 115 P3d 908 20 (2005)]." Similarly, at the hearing on his motion, defendant argued that the evidence 21 obtained during and after the traffic stop had to be suppressed under Hall. Defendant 3 1 argued that the evidence was "directly tied to that stop" and that there was "no factual 2 attenuation" between the stop and the discovery of the evidence. 3 The state did not dispute that Hulke had stopped defendant unlawfully. 4 But, the state argued that the causal connection between the unlawful stop and the 5 discovery of the evidence was attenuated. The state's theory regarding the statements that 6 defendant made during the stop was that the statements were attenuated from the stop 7 because defendant made them because "[h]e didn't want to get his girlfriend's car towed." 8 The state's theory regarding the statements that defendant made after the stop was that 9 they were attenuated from the stop because defendant volunteered them a month after the 10 11 stop and because he made them "so his friend wouldn't get in trouble." Accepting the state's arguments, the trial court stated: 12 13 14 15 16 17 "I'm going to deny the Motion to Suppress. I'm going to find the stop was illegal, but the conduct of the Defendant was independent in his own decision to notify the police that he gave a wrong name. And to keep his friend out of trouble[,] as well as having the car towed * * *[.] I'm also going to find there was a substantial attenuation of the time frame in which this took place." 18 After the denial of his motion to suppress, defendant waived his right to a jury trial, and 19 the court acquitted him of driving while suspended, but convicted him of giving false 20 information to a police officer. Defendant appeals. 21 22 II. ARGUMENTS ON APPEAL As mentioned, defendant assigns error to the denial of his motion to 23 suppress the evidence obtained as a result of the illegal stop. He renews his argument 24 that, under the exclusionary rule of Article I, section 9, the evidence is inadmissible 4 1 because it is the unattenuated product of the illegal stop. His argument focuses on the 2 admissibility of his statements, both the oral statements that he made during the stop and 3 the oral and written statements that he made one month after the stop.4 He asserts that all 4 of the statements were erroneously admitted, but that, even if the later statements were 5 properly admitted, the erroneous admission of the earlier statements was harmful 6 because, without the earlier statements, the later statements would not have been 7 corroborated and the state would not have been able to prove that he committed the crime 8 of giving false information to a police officer. See ORS 136.425 (generally, a 9 "confession alone is not sufficient to warrant the conviction of the defendant without 10 some other proof that the crime has been committed").5 11 In response, the state argues that all of defendant's statements were properly 12 admitted because the causal connection between the stop and the statements is attenuated. 13 The state acknowledges that the stop made it possible for Hulke to question defendant 14 and that defendant's statements during the stop were in response to Hulke's questioning, 15 but contends that the statements are admissible because defendant chose to give a false 4 Although defendant moved to suppress all evidence obtained as a result of the unlawful stop, including any "observations of Defendant," defendant's appellate argument focuses on the admissibility of his statements. In passing, he asserts that evidence of "defendant's appearance, conduct and statements in the Cadillac were obtained in violation of Article I, section 9," but he does not make any argument based on Hulke's observation of defendant's appearance. 5 As discussed below, the state's only argument on appeal is that Hulke "did not exploit any * * * illegality." The state does not dispute defendant's assertion that, if the statements he made during the stop were erroneously admitted, reversal is required. 5 1 name. According to the state, "defendant's unilateral, voluntary decision to lie about his 2 identity attenuated the 'discovery' of the evidence from the prior illegality." The state 3 also argues, for the first time on appeal, that defendant's statements are admissible 4 because they are evidence of a "new independent crime--providing false information to a 5 police officer." As support for that argument, the state relies on an exception to the 6 exclusionary rule that applies to evidence of "independent crimes directed at officers who 7 illegally stop, frisk, arrest or search," State v. Gaffney, 36 Or App 105, 108, 583 P2d 582 8 (1978), rev den, 285 Or 195 (1979), but the state acknowledges that "this case does not 9 present the same type of officer-safety concerns "as the cases in which we have applied 10 the Gaffney exception. 11 12 13 III. DISCUSSION A. The History and Purpose of Oregon's Exclusionary Rule Article I, section 9, protects individuals from unreasonable government 14 searches and seizures. It prohibits government officers from interfering with individuals' 15 rights to privacy and liberty. 16 Article I, section 9, applies to traffic stops. State v. Rodgers/Kirkeby, 347 17 Or 610, 618, 227 P3d 695 (2010). To be constitutional, a stop for the purpose of 18 investigating a traffic violation must be based on probable cause that the person to be 19 stopped has committed the violation. ORS 810.410(2), (3); State v. Matthews, 320 Or 20 398, 402, 884 P2d 1224 (1994). The probable cause requirement serves to protect the 21 rights of all individuals to travel without unjustified interference by government officers; 6 1 it helps to ensure that government officers exercise their authority only for proper 2 purposes. 3 When a defendant moves to suppress evidence obtained as a result of a 4 warrantless seizure on the ground that the seizure violated Article I, section 9, the state 5 bears the burden of proving that the seizure was constitutional. State v. Davis, 295 Or 6 227, 237, 666 P2d 802 (1983). In this case, the state did not establish that Hulke had 7 probable cause to stop defendant. Therefore, as the trial court held, the stop violated 8 defendant's Article I, section 9, rights. As a result, the question in this case is whether 9 defendant's statements obtained during and after the unlawful stop were subject to 10 11 exclusion under Article I, section 9. In Davis, the Oregon Supreme Court explained the history and underlying 12 principles of the exclusionary rule of Article I, section 9. 295 Or at 231-37. The court 13 reviewed early cases in which other courts had excluded evidence that had been obtained 14 in violation of protections against unreasonable searches and seizures, and it cited with 15 approval cases in which courts had held that the exclusion of evidence obtained in 16 violation of the protections was necessary to give effect to the protections because, 17 without it, the protections would have no force. Id. at 231-34. The court emphasized 18 that, although the exclusionary rule can prevent the government from using evidence, it 19 applies only to evidence that the government would not have if its officers had complied 20 with the law. Id. at 237. The court also explained that the cost of exclusion was offset by 21 the benefit of enforcement of the constitutional limits on government authority, quoting 7 1 Weeks v. United States, 232 US 383, 393, 34 S Ct 341, 58 L Ed 652 (1914), for the 2 proposition that, if evidence obtained in violation of a person's Fourth Amendment rights 3 can be admitted against the person in a criminal trial, "'the protection of the Fourth 4 Amendment declaring his right to be secure against such searches and seizures is of no 5 value, and, so far as those thus placed are concerned, might as well be stricken from the 6 Constitution.'" Davis, 295 Or at 232. 7 The court then reviewed its own cases and concluded that the underlying 8 premise of the exclusionary rule of Article I, section 9, is "to bar the government's use of 9 its own invasions of the defendant's rights, as stated in Weeks and its predecessors." 10 Davis, 295 Or at 233 n 5. The court explained: 11 12 13 14 15 16 17 18 19 20 "In summary, although not without some diversity of expression, the court since State v. Laundy, [103 Or 443, 204 P 958, reh'g den, 103 Or 443 (1922)] has held to a principled view of the effect of an unlawful seizure of evidence. It has maintained the principle that those rules of law designed to protect citizens against unauthorized or illegal searches or seizures of their persons, property, or private effects are to be given effect by denying the state the use of evidence secured in violation of those rules against the persons whose rights were violated, or, in effect, by restoring the parties to their position as if the state's officers had remained within the limits of their authority." 21 Davis, 295 Or at 237. Thus, evidence that the government secures in violation of a 22 person's Article I, section 9, rights is inadmissible against that person; it must be 23 suppressed in order to vindicate the person's constitutional rights. Id. As the court later 24 stated in State v. Davis, 313 Or 246, 253, 834 P2d 1008 (1992), "If that constitutional 25 right to be 'secure' against impermissible government conduct is to be effective, it must 26 mean that the government cannot obtain a criminal conviction through the use of 8 1 evidence obtained in violation of a defendant's rights under that provision." Thus, "[i]f 2 the government seeks to rely on evidence in an Oregon criminal prosecution, that 3 evidence must have been obtained in a manner that comports with the protections given 4 to the individual by Article I, section 9." Id. at 254; see Hall, 339 Or at 24 ("The right to 5 be free from unreasonable searches and seizures under Article I, section 9, also 6 encompasses the right to be free from the use of evidence obtained in violation of that 7 provision."). 8 The applicability of the Oregon exclusionary rule of Article I, section 9, is 9 to be determined in light of the reasons for the rule. Hall, 339 Or at 23; State ex rel Juv. 10 Dept. v. Rogers, 314 Or 114, 118-19, 836 P2d 127 (1992). Because the purpose of the 11 rule is to protect individuals' rights, the rule requires the suppression of evidence to 12 restore individuals to the positions that they would have held if "the government's officers 13 had stayed within the law." Davis, 295 Or at 234. 14 B. 15 The Hall Test for Exclusion Resolution of this case turns on the application of the test prescribed in Hall 16 for the exclusion of evidence under Article I, section 9. Therefore, it is necessary to 17 examine Hall in some detail. In Hall, a police officer stopped the defendant, a 18 pedestrian, without reasonable suspicion, thereby violating the defendant's rights under 19 Article I, section 9. 339 Or at 19. The officer did so by asking for the defendant's 20 identification and running a warrant check. Id. While the check was pending, the officer 21 asked the defendant if he was carrying any weapons or drugs and if he would consent to a 9 1 search. Id. at 10. The defendant consented, and the officer found a vial containing 2 methamphetamine residue in the defendant's jacket pocket. Id. at 11. 3 The defendant filed a motion to suppress evidence of the vial and its 4 contents, asserting that the illegal stop tainted his consent and the results of the consent 5 search. The trial court denied the motion, and the Supreme Court reversed the trial court, 6 holding that the evidence was tainted by the illegal stop. Id. at 36-37. In its opinion, the 7 court explained that there are "two related, but distinct, ways that a violation of a 8 defendant's rights under Article I, section 9, may affect the validity of a defendant's 9 subsequent consent to a search." Id. at 20. First, a violation "may negate a defendant's 10 consent to a search upon the ground that that police conduct rendered the defendant's 11 consent involuntary." Id. Second, "Article I, section 9, may require exclusion of 12 evidence from an otherwise valid consent search upon the ground that the defendant's 13 consent derived from a preceding violation of the defendant's rights under that state 14 constitutional provision." Id. at 21. 15 In Hall, the defendant did not claim that his consent was involuntary; the 16 issue was whether the defendant's consent was tainted by the illegal stop. That, the court 17 explained, was dependent on the nature of the causal connection between the illegal stop 18 and the defendant's consent. Id. at 28. According to the court, the test to determine 19 whether consent is tainted for the purposes of Article I, section 9, is similar to the "fruit 20 of the poisonous tree" test articulated by the United States Supreme Court in Wong Sun v. 21 United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963), in which, in the context 10 1 of a challenge to the admission of statements made during an illegal arrest, the Court 2 stated: 3 4 5 6 7 8 9 "'We need not hold that all evidence is fruit of the poisonous tree simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" 10 339 Or at 21 n 12 (quoting Wong Sun, 371 US at 487-88 (internal quotation marks 11 omitted)) (emphasis added). Thus, under Wong Sun, evidence that is causally connected 12 to illegal police action is inadmissible unless it has been, or would have been, obtained 13 "by means sufficiently distinguishable" from the illegal action "to be purged of the 14 primary taint." 317 US at 488. In other words, such evidence is inadmissible unless "the 15 connection between the lawless conduct of the police and the discovery of the challenged 16 evidence has 'become so attenuated as to dissipate the taint.'" Id. at 487 (quoting 17 Nardone v. United States, 308 US 338, 341, 60 S Ct 266, 84 L Ed 307 (1939)). 18 In a manner consistent with the phrasing of the "fruit of the poisonous tree" 19 test in Wong Sun, the Hall court stated that the question before it was "whether Article I, 20 section 9, require[d] exclusion of the state's evidence because [the] defendant's consent 21 derived from--or, stated differently, was obtained by 'exploitation' of--the unlawful stop." 22 Hall, 339 Or at 22.6 The court then prescribed how courts are to determine whether a 6 Thus, under both Wong Sun and Hall, evidence is the product of "exploitation" of unlawful police conduct if it has been obtained as a result of--or derived from--that conduct, as opposed to a "means sufficiently distinguishable" from that conduct. Wong 11 1 defendant's consent "derived from" prior unlawful police conduct. The court explained 2 that, in order for evidence to be excluded on the ground that it resulted from a violation of 3 a defendant's Article I, section 9, rights, there must be a causal connection between the 4 violation and the discovery of the evidence, and, if there is a causal connection, exclusion 5 is required unless the government can establish "that the evidence did not derive from the 6 preceding illegality." Id. at 25. To do so, the government 7 8 9 10 11 12 13 14 "must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant's rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant's rights under Article I, section 9; or (3) the preceding violation of the defendant's rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence[.]" 15 Id. (internal citations omitted). In each of those three circumstances, "the admission of 16 the challenged evidence does not offend Article I, section 9, because the defendant has 17 not been disadvantaged as a result of the unlawful police conduct, or stated differently, 18 because the defendant is not placed in a worse position than if the governmental officers 19 had acted within the bounds of the law." Id. 20 In Hall, the issue was whether the state had established that the causal 21 connection between the violation of the defendant's rights and the discovery of the 22 disputed evidence was so tenuous that the violation could not "be viewed properly as the Sun, 371 US at 488; Hall, 339 Or at 25; see also Florida v. Royer, 460 US 491, 507-08, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (consent obtained during the defendant's illegal detention was tainted). 12 1 source of [the] evidence." Id. According to the Hall court, determining whether the state 2 has established that the violation is only tenuously related to the discovery of the 3 evidence "requires a fact-specific inquiry into the totality of the circumstances." Id. at 35. 4 Several considerations are relevant to that determination, including "(1) the temporal 5 proximity between the unlawful police conduct and the [discovery of the evidence], (2) 6 the existence of any intervening circumstances, and (3) the presence of any 7 circumstances--such as, for example, a police officer informing the defendant of the right 8 to refuse consent--that mitigated the effect of the unlawful police conduct." Id. 9 To summarize, Hall establishes that, if there is a causal connection between 10 unlawful police conduct and a defendant's consent to a search, evidence obtained as a 11 result of the consent is inadmissible unless the state proves that the discovery of the 12 evidence "was independent of, or only tenuously related to, the unlawful police conduct." 13 Id. And, considerations relevant to whether a defendant's consent is only tenuously 14 related to the unlawful police conduct include the temporal proximity between the 15 conduct and the consent and whether there are any intervening circumstances or other 16 circumstances that mitigate the effect of the unlawful police conduct. Id. 17 Applying its test to the facts of the case before it, in which the officer 18 illegally stopped the defendant by asking for his identification and running a warrant 19 check, the Hall court concluded that the officer's illegal stop vitiated the defendant's 20 consent to the search. Id. at 36. The court explained: 21 22 "Given the close temporal proximity between the illegal detention and [the] defendant's consent, and the absence of any intervening circumstances or 13 1 2 3 4 other circumstances mitigating the effect of that unlawful police conduct, we cannot say that the state has proved that the defendant's decision to consent, even if voluntary, was not the product of the preceding violation of [the] defendant's rights under Article I, section 9." 5 Id. Therefore, the court further concluded, evidence resulting from the defendant's 6 consent was inadmissible. Id. 7 Importantly, the Hall court distinguished the facts of the case before it from 8 the facts in two other cases: State v. Kennedy, 290 Or 493, 624 P2d 99 (1981), and State 9 v. Rodriguez, 317 Or 27, 854 P2d 399 (1993). In Kennedy, when police officers told the 10 defendant that they had information that he was carrying narcotics, the defendant "denied 11 that he was carrying narcotics and said, 'Would you like to search my luggage?'" 290 Or 12 at 496. The officers found cocaine as a result of the search, and the defendant moved to 13 suppress that evidence on the ground that the officers had illegally stopped him before he 14 invited the officers to search his luggage. In Rodriguez, a police officer asked the 15 defendant, who had already been advised of his Miranda rights, "[D]o you have any 16 drugs or guns in the house?" and he replied, "No, go ahead and look." 317 Or at 30. The 17 police found a gun in the house, and the defendant moved to suppress that evidence on 18 the ground that the police had illegally arrested him before he offered to allow the 19 officers to search. In each case, the Supreme Court concluded that, even assuming that 20 the officers had engaged in unlawful conduct, the evidence discovered as a result of the 21 defendant's consent was admissible. In Hall, the court explained that its conclusions in 22 Kennedy and Rodriguez 14 1 2 3 4 5 "must be understood in light of the specific facts of each of those cases-particularly, the facts that those defendants both had volunteered to allow a search without any police prompting and, in Rodriguez, that the police had provided the defendant with Miranda warnings before questioning him about drugs or weapons." 6 339 Or at 34. The court further explained that, "[i]n the absence of such intervening 7 circumstances--or other circumstances mitigating the effect of the unlawful police 8 conduct--this court has required suppression under facts similar to those at issue in 9 Kennedy and Rodriguez," that is, when officers obtain consent during an unlawful (or 10 unlawfully extended) stop. Id. As examples, the court cited State v. Toevs, 327 Or 525, 11 and State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995). In each of those 12 cases, an officer lawfully stopped the defendant for a traffic violation, completed the 13 investigation of the violation, told the defendant that he was free to go, but then asked the 14 defendant if he would consent to a search. And, in each case, the Supreme Court 15 concluded that the officer's conduct after telling the defendant that he was free to go 16 constituted an unlawful extension of the traffic stop and that the defendant's consent and 17 the evidence resulting from it were tainted and had to be suppressed.7 Toevs, 327 Or at 18 537-38; Dominguez-Martinez, 321 Or at 214. 19 Subsequent cases involving traffic stops have followed Hall. In State v. 20 Thompkin, 341 Or 368, 371, 143 P3d 530 (2006), an officer asked the defendant, who 21 was a passenger in a car that had been lawfully stopped for a traffic violation, for her 7 Toevs and Dominguez-Martinez involved violations of ORS 810.410, which governs police authority to conduct traffic stops, but, as the Supreme Court noted in Hall, the reasoning of those opinions is applicable in cases involving violations of Article I, section 9. Hall, 339 Or at 33 nn 19-20. 15 1 identification, which the officer used to run a records check. Meanwhile, a second officer 2 questioned the defendant about drugs. The questioning prompted the defendant to 3 surrender a pipe used for smoking crack cocaine, and a subsequent search led to the 4 discovery of a small amount of cocaine. The Supreme Court held that the officers had 5 illegally stopped the defendant and that the resulting evidence was inadmissible. Id. at 6 381. The court explained that the reasoning of Dominguez-Martinez, Toevs, and Hall 7 was "equally applicable to this case, where [the] defendant voluntarily surrendered 8 incriminating evidence in response to the officer's questioning during an impermissible 9 seizure," and where there were no "intervening circumstances or other circumstances 10 mitigating the effect of the unlawful police conduct." Thompkin, 341 Or at 381. 11 Likewise, in Rodgers/Kirkeby, 347 Or at 630, which involved two cases 12 that were consolidated for review, the Supreme Court held that the officer in each case 13 illegally extended an otherwise lawful traffic stop when, rather than proceeding to either 14 issue a citation or release the defendant, the officer questioned the defendant about 15 matters unrelated to the reason for the stop and requested consent to search, which the 16 defendant gave and which led to the discovery of contraband. Regarding the effect of the 17 illegal extension on one of the defendants, the court observed that the defendant had "no 18 way of knowing that [the officer's] questions and request to search the car were not part 19 of the traffic investigation and that his cooperation in [the officer's] investigation was not 20 required to continue." Id. at 626. The court concluded that "as in Hall, given the 21 temporal proximity between the illegal detention and each defendant's consent, and in the 16 1 absence of any other intervening circumstances, or other circumstances mitigating the 2 effect of the unlawful seizures of each defendant, * * * each defendant's consent, even if 3 voluntary, was the product * * * of the unlawful seizure." Id. at 630. 4 Hall, its predecessors, and its progeny establish that, when an officer 5 illegally stops a person and makes an inquiry, the person's response to that inquiry is the 6 product of the illegal stop and evidence obtained as a result of the inquiry is inadmissible, 7 unless the state proves that the response was "independent of, or only tenuously related 8 to, the unlawful police conduct." Hall, 339 Or at 35. They also establish that, in the 9 absence of intervening circumstances or other circumstances that mitigate the effect of 10 the illegal stop, a person's response to an officer's inquiry during an illegal stop is not 11 attenuated from the illegality; it is the tainted fruit of the illegality. 12 Of particular relevance here, both we and the Supreme Court held, well 13 before Hall, that, when an officer illegally stopped a driver and requested the driver's 14 identification, the driver's response to that request was tainted by the illegal stop, as was 15 the evidence obtained as a result of the driver's response. State v. Starr, 91 Or App 267, 16 754 P2d 618 (1988), and State v. Farley, 308 Or 91, 775 P2d 835 (1989), are illustrative. 17 In Starr, an officer illegally stopped the defendant, who had been sleeping 18 in his car on the side of the road, by requesting and retaining his driver's license. After 19 the officer returned the license, the defendant drove away, and the officer ran a records 20 check and learned that the defendant's driving privileges were suspended. The officer 21 pursued the defendant and arrested him for driving while suspended. The trial court 17 1 suppressed the evidence resulting from the illegal stop, including the defendant's identity, 2 and we affirmed. 91 Or App at 269-70. We specifically rejected the state's argument that 3 the officer was "entitled to know [the] defendant's name from the first encounter," stating 4 that "[u]nder the circumstances, [the officer] did not have authority to compel [the] 5 defendant to do anything, including giving his name." Id. at 270. Accordingly, we 6 concluded that "[the] defendant's identity was obtained as a result of the unlawful stop." 7 Id. 8 In Farley, an officer stopped the defendant for driving a vehicle that did not 9 have a license plate. 308 Or at 93. But, when the officer approached the defendant's car, 10 he saw a temporary registration sticker in the window. At that point, the officer's reason 11 for the stop evaporated. Id. Nevertheless, the officer proceeded to ask the defendant for 12 his driver's license and proof of registration. The defendant's responses to those requests 13 led to the discovery of evidence that the defendant's license was suspended and he was 14 driving uninsured. The Supreme Court held that, once the reason for the stop evaporated, 15 the officer did not have authority to ask the defendant for his license and registration, and 16 the court affirmed the trial court's order suppressing the evidence resulting from those 17 requests. Id. at 94; see also State v. Bentz, 211 Or App 129, 134, 158 P3d 1081 (2007) 18 (holding that officer's request for defendant's name during an illegal entry constituted 19 exploitation of the illegal entry under Hall). 20 21 As Starr and Farley show, an illegal stop taints evidence obtained in response to police inquiries made during the illegal stop, absent intervening or mitigating 18 1 circumstances. A defendant is entitled to suppression of such evidence, and, contrary to 2 the dissent's suggestion, ___ Or App at ___ (Hadlock, J., dissenting) (slip op at 9-10), the 3 defendant is not required to prove that that the officer was conducting a criminal 4 investigation or that there were coercive circumstances above and beyond the illegal stop. 5 ___ Or App at ___ (slip op at 9-11) (describing the Hall test for exclusion). 6 Essentially, the Hall test creates a presumption that, if the discovery of 7 evidence is causally connected to unlawful police conduct, the evidence is tainted and, 8 therefore, inadmissible. The state can rebut the presumption by showing that (1) the 9 evidence would have been inevitably discovered, (2) the evidence had an independent 10 source, or (3) the causal connection between the unlawful conduct and the discovery of 11 the evidence was tenuous. 339 Or at 25. The presumption is proper; it reflects the 12 reality--both legal and practical--that unlawful police conduct puts an individual at a 13 disadvantage that can affect the person's decision whether to, for example, consent to a 14 search, surrender property, or make a statement. 15 A stop can affect a person's decision whether to respond to an officer's 16 request for information in at least two ways. First, it restricts the person's legal options. 17 Unlike a person who has not been stopped, a person who has been stopped is not free to 18 walk away from an officer seeking information; the person's legal options for responding 19 to an inquiry by the officer have been restricted. That is particularly true for traffic stops. 20 As the Supreme Court explained in Rodgers/Kirkeby: 21 22 "[I]n contrast to a person on the street, who may unilaterally end an officercitizen encounter at any time, the reality is that a motorist stopped for a 19 1 2 3 4 5 6 traffic infraction is legally obligated to stop at an officer's direction, see ORS 811.535 (failing to obey a police officer) and ORS 811.540 (fleeing or attempting to elude a police officer), and to interact with the officer, see ORS 807.570 (failure to carry or present license) and ORS 807.620 (giving false information to a police officer), and therefore is not free unilaterally to end the encounter * * *." 7 347 Or at 622-23. If, for example, a driver does not provide identification to an officer, 8 the officer may detain or arrest the person in order to investigate and verify the driver's 9 identity. As a result, when an officer subjects a person to a traffic stop, the officer has 10 gained the authority to impose negative consequences--further detention or arrest--if the 11 person refuses to respond to a request for identification. 12 Second, a stop can affect a person's decision whether to respond to an 13 officer's request for information because it brings additional considerations to bear on the 14 person's decision--considerations such as what effect noncompliance with the officer's 15 request could have on the person's release. In other words, a stop changes a person's 16 decisional calculus by introducing additional factors that weigh in favor of compliance.8 17 When a person has been illegally stopped, the person's options have been 18 illegally restricted, and additional factors that weigh in favor of compliance have been 19 illegally introduced. Thus, an illegal stop subjects the person to "the pressure of police 20 action that [is] available to police only by the prior unauthorized conduct." State v. 8 In addition, if the stop is illegal, it signals to the stopped person that his or her rights will not be respected. To illustrate, if an officer illegally seizes an item of property from a person and then asks for consent to search it, the illegal seizure conveys a disregard of the person's rights, which will weigh in favor of compliance with the officer's request for consent. The same is true if, instead of seizing property, an officer seizes a person. 20 1 Williamson, 307 Or 621, 626, 772 P2d 404 (1989). It puts the person "in a worse position 2 than if the governmental officers had acted within the bounds of the law." Hall, 339 Or 3 at 25. Accordingly, it is appropriate that, under the Hall test, if there is a causal 4 connection between unlawful police conduct and the discovery of evidence, the evidence 5 cannot be admitted unless the state proves that its discovery was independent of, or only 6 tenuously connected to, the illegal stop. 7 C. Application of the Hall Test 8 As in Hall, the issue in this case is whether the causal connection between 9 the illegal stop and the challenged evidence is attenuated. We conclude that defendant's 10 statements to Hulke during the unlawful traffic stop are not attenuated from the stop, but 11 that his statements one month later are. 12 With respect to the earlier statements, there was no temporal break between 13 the stop and the statements; the stop was ongoing when the statements were made. There 14 were no mitigating circumstances: Hulke did not inform defendant that he did not need 15 to answer his questions, and the circumstances--a traffic stop--would have caused 16 defendant to reasonably believe that he was required to provide the officer with 17 identification. Nor were there any intervening circumstances: Nothing occurred that 18 would have alerted defendant that he was free to leave or to refuse to provide 19 information. And, the statements were not spontaneous. They are akin to the defendants' 20 self-identifications in Starr and Farley, the defendants' consents in Toevs, Dominguez- 21 Martinez, Hall, and Rodgers/Kirkeby, and the defendant's surrender of evidence in 21 1 2 Thompkin. The opposite is true for the statements that defendant made one month later. 3 Defendant was not stopped when he made the oral statements to Shull or when he 4 completed the written statement at his local police department; indeed, a significant 5 amount of time had passed since the illegal stop. Moreover, defendant initiated the 6 contact with government authorities by telling the district attorney's office that he had 7 given a false name. 8 The dissent concludes that defendant's statements during the illegal stop are 9 not tainted. In reaching its conclusion, the dissent acknowledges that Hall governs its 10 analysis, but does not abide by Hall. The dissent suggests that Hulke did not "exploit" 11 the illegal stop because he "did not trade on or otherwise take advantage" of the stop to 12 ask defendant his name. ___ Or App at ___ (Hadlock, J., dissenting) (slip op at 6-7). 13 The dissent's focus on whether Hulke "trade[d] on or otherwise [took] advantage of" the 14 illegal stop is based on Rodriguez. ___ Or App at ___ (Hadlock, J., dissenting) (slip op at 15 7). To the extent that the dissent relies on Rodriguez to suggest a different test than Hall 16 for whether evidence is the "fruit of the poisonous tree," we must apply Hall. Moreover, 17 concluding, as the dissent does, that evidence obtained as a result of unlawful police 18 conduct is tainted only if an officer engaged in coercive conduct in addition to the illegal 19 stop, is inconsistent with Starr and Farley, where the evidence that was suppressed had 20 been obtained as a result of requests for identification. 21 The dissent accepts the state's argument based on State v. Crandall, 340 Or 22 1 645, 136 P3d 30 (2006). In Crandall, a police officer directed the defendant to "stop" 2 and "come here." Id. at 647. The "[d]efendant obeyed that direction but, before he 3 reached the officer, put a clear plastic 'baggie' containing a controlled substance 4 underneath one of the cars in the apartment parking lot." Id. On review, the Supreme 5 Court assumed that the officer had illegally stopped the defendant, but concluded that the 6 illegality did not taint the subsequently discovered evidence. Id. at 652-53. The court 7 held that the "defendant's unilateral, voluntary decision to put the baggie underneath the 8 car sufficiently attenuated the discovery of that evidence from the prior illegality, in the 9 same way that the defendants' acts in Kennedy and Rodriguez did." Id. at 652. 10 Relying on Crandall, the dissent contends that "defendant's unilateral, 11 voluntary decision to lie about his identity attenuated the discovery of the evidence * * * 12 from the prior illegality." ___ Or App at ___ (Hadlock, J., dissenting) (slip op at 5). 13 According to the dissent, "defendant's unilateral choice to give a false name was an 14 intervening circumstance that attenuated the discovery of that false statement from the 15 prior illegality[.]" Id. at ___ (slip op at 6). 16 That is incorrect for several reasons. First, defendant's decision was not 17 "unilateral." As mentioned, in Crandall, the Supreme Court held that the defendant's act 18 of putting the baggie under the car was similar to the defendants' consents in Kennedy 19 and Rodriguez, which were volunteered, and different from the defendant's consent in 20 Hall, which was in response to a question. This case is akin to, and controlled by, Hall. 21 Like Hall, and unlike Kennedy and Rodriguez, it involves a direct response to an officer's 23 1 request, not a volunteered or unilateral action. See also State v. Campbell, 207 Or App 2 585, 590, 142 P3d 517 (2006) (distinguishing Kennedy and Rodriguez because defendant 3 did not volunteer to be searched but consented only after deputy asked for permission to 4 conduct a pat-down search). 5 6 Second, defendant's false statement was not an "intervening circumstance" between the illegal stop and the discovery of the evidence. It was the evidence. 7 Third, and finally, it is irrelevant that defendant's statement was false. 8 Whether a statement is the product of prior unlawful conduct does not depend on whether 9 the statement is true or false. If, as the dissent suggests, a decision to lie in response to a 10 question could be said to be a "unilateral, voluntary decision," a decision to tell the truth 11 could also be said to be a "unilateral, voluntary decision," as could a decision to consent 12 to a search. The dissent's reasoning would lead to the conclusion that, if an illegally 13 stopped person provided his name upon request, and, as a result of a records check, was 14 charged with driving while suspended, then the evidence obtained as a result of the stop 15 would be admissible. That, however, is contrary to controlling law. Starr, 91 Or App at 16 270; Farley, 308 Or at 94. Likewise, the dissent's reasoning would lead to the conclusion 17 that, if an illegally stopped person was asked to consent to a search and did consent, the 18 results of the search would be admissible. That, too, is contrary to controlling law. Hall, 19 339 Or at 36. 20 21 Ultimately, the dissent's conclusion rests on the fact that defendant committed a new crime, giving false information to a police officer. The dissent appears 24 1 to have accepted the state's argument based on Gaffney, 36 Or App at 105, in which we 2 recognized an exception to the exclusionary rule for evidence of new crimes that threaten 3 officer safety. The Gaffney exception to the exclusionary rule is a limited one; it applies 4 to "evidence of independent crimes directed at officers who illegally stop, frisk, arrest or 5 search." 36 Or App at 108. Accordingly, we have applied it only in cases in which the 6 challenged evidence involved a new crime that threatened officer safety. See e.g., State 7 v. Rodriguez, 37 Or App 355, 357, 587 P2d 487 (1978), rev den, 285 Or 319 (1979) 8 (evidence that defendant hit officer in the head was admissible even if officer had 9 illegally stopped defendant); State v. Burger, 55 Or App 712, 715-16, 639 P2d 706 10 (1982) (evidence that defendant kicked officers after being arrested was admissible even 11 if the arrest was unlawful). And, in State v. Williams, 161 Or App 111, 119-20, 984 P2d 12 312 (1999), we expressly declined to extend the exception to evidence of a crime-- 13 supplying contraband, for bringing marijuana into jail--that the defendant allegedly 14 committed after being illegally arrested. We explained that the Gaffney line of cases was 15 "inapposite" because "[t]he crucial fact in those cases was that the new crime was 16 directed at the arresting officers, thereby threatening their safety." Id. at 119. "The 17 rationale underlying our denial of suppression in those cases," was absent in Williams 18 because "[t]he presence of the concealed marijuana did not threaten the officer's safety in 19 any way." Id. at 120. Therefore, we concluded, evidence of the marijuana was tainted 20 and had to be suppressed in order to "'restor[e] the parties to their position as if the state's 21 officers had remained within the limits of their authority.'" Id. (quoting Davis, 295 Or at 25 1 237). 2 Just as the evidence of the alleged supplying contraband had to be 3 suppressed in Williams in order to restore the parties to the positions that they would have 4 occupied had the state's officers not violated the defendant's Article I, section 9, rights, 5 the challenged evidence in this case must be suppressed. To admit the evidence under the 6 Gaffney exception would be inconsistent with the limited purpose of the exception that 7 we clearly articulated in Williams.9 8 Because defendant's statements during the illegal stop were not attenuated 9 from the stop and are not admissible under the Gaffney exception to the exclusionary 10 rule, we conclude that the trial court erred in denying defendant's motion to suppress 11 those statements. Admission of those statements was not harmless because, as defendant 12 argues and the state does not dispute, the state could not have secured a conviction based 13 on the later statements alone. See ORS 126.425(1) ("A confession [is not] sufficient to 14 warrant the conviction without some other proof that the crime has been committed[.]"). 15 IV. CONCLUSION 16 In sum, we conclude that the trial court erred in failing to suppress the 17 statements that defendant made during the illegal stop and that the error was not 18 harmless. Therefore, we reverse and remand. 19 Reversed and remanded. 9 The state does not argue that Williams is plainly wrong, nor does it offer any reason why the balance struck in that case between the protection of the defendant's constitutional rights and the state's interest in prosecuting crimes should be any different in this case, which involves a nonviolent misdemeanor. 26 1 HADLOCK, J., dissenting. 2 Defendant gave a false name to a police officer who had conducted a traffic 3 stop. As the state concedes, that stop must be deemed unlawful because the officer could 4 not recall, at the time of the hearing on defendant's motion to suppress, why he had 5 stopped defendant, and the officer apparently had not memorialized the reason for the 6 stop, in a citation or otherwise. The majority concludes that the trial court erred in 7 denying defendant's motion to suppress the statements that he made during that unlawful 8 traffic stop because those statements "were not attenuated from the stop and are not 9 admissible under the Gaffney exception to the exclusionary rule." State v. Suppah, __ Or 10 11 App __, __, __ P3d __ (2014) (slip op at 26). With respect, I dissent. I briefly recap the undisputed facts. In July 2010, Officer Hulke stopped 12 defendant for a traffic violation, but he was not able to recall, at a later suppression 13 hearing, what that violation was. During the stop, Hulke asked defendant for his name 14 and date of birth. Instead of answering truthfully, defendant gave him the name and birth 15 date of a friend, Pennington. Although defendant was unaware of it, Pennington's license 16 was suspended at the time. Hulke issued a citation to defendant, using Pennington's 17 name, for driving with a suspended license and driving uninsured. Approximately one 18 month later, defendant contacted the district attorney's office, stating that he had given "a 19 wrong name" and asserting that he did not want Pennington to get in trouble because of 20 his actions. Deputy Sheriff Shull followed up with defendant and asked him to submit a 21 written statement through his local police department. Defendant submitted a statement 1 1 in which he explained that he had been pulled over by Hulke on July 14. He later was 2 charged with giving false information to a police officer, ORS 807.620 and driving while 3 suspended, ORS 811.182.1 4 Before trial, defendant moved to suppress all information and evidence that 5 had been obtained from the stop, arguing that the search and seizure violated his rights 6 under various constitutional provisions, including Article I, section 9, of the Oregon 7 Constitution.2 Based on Hulke's inability to recall the reason that he had stopped 8 defendant, the trial court ruled that the stop had been illegal. Nonetheless, the court 9 denied defendant's suppression motion, stating, 10 11 12 13 14 "I'm going to find the stop was illegal, but the conduct of the Defendant was independent in his own decision to notify the police that he gave a wrong name. And to keep his friend out of trouble as well as having the car towed in that I'm also going to find that there was a substantial attenuation of the time frame in which this took place." 15 Defendant waived his right to a jury and was tried to the court, which found him guilty of 16 giving false information to a police officer. 17 18 On appeal, defendant argues that the trial court should have suppressed both his statements from the initial traffic stop and the statements that he made to police 1 Defendant was acquitted of driving while suspended. 2 Article I, section 9, of the Oregon Constitution provides: "No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized." 2 1 one month later. He contends that suppression was required under Article I, section 9, 2 because the evidence was derived from an unlawful stop and not "sufficiently attenuated 3 to remove the taint of the unlawful stop." 4 For the reasons stated by the majority, I agree that the trial court correctly 5 denied defendant's motion to suppress the statements that he made one month after the 6 traffic stop. See Suppah, __ Or App at __ (slip op at 21-22). 7 However, I disagree with the majority's conclusion that the trial court erred 8 by denying defendant's motion to suppress the statements that he made during the traffic 9 stop. I begin my analysis with State v. Hall, 339 Or 7, 25, 115 P3d 908 (2005), which 10 explains the circumstances under which a trial court should suppress evidence that police 11 officers obtained as a result of their own unlawful conduct. Under Hall, a defendant 12 seeking to suppress evidence must first establish "a minimal factual nexus--that is, at 13 minimum, the existence of a 'but for' relationship--between the evidence sought to be 14 suppressed and prior unlawful police conduct." Id. at 25. However, the existence of that 15 "but for" connection is not enough, standing alone, to warrant suppression. See State v. 16 Rodriguez, 317 Or 27, 40, 854 P2d 399 (1993) ("[t]he fact that, 'but for' the unlawful 17 conduct the police would not have been in a position to seek (for example) a person's 18 consent does not, in and of itself, render any evidence uncovered during the ensuing 19 consent search inadmissible."). Rather, once that minimum factual nexus is established, 20 the state has the burden of showing that the evidence was not obtained through 21 "exploitation" of the unlawful police conduct: 3 1 2 3 4 5 6 7 8 9 10 11 "[T]he state nevertheless may establish that the disputed evidence is admissible under Article I, section 9, by proving that the evidence did not derive from the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant's rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant's rights under Article I, section 9; or (3) the preceding violation of the defendant's rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence." 12 Hall, 339 Or at 25 (internal citations omitted); see State v. Ashbaugh, 349 Or 297, 244 13 P3d 360 (2010) (the "exploitation" analysis asks "whether the consent search in some 14 sense derived from the prior unlawful police stop" (emphasis in original)). In 15 determining whether evidence derived from unlawful police conduct--or, conversely, 16 "was independent of, or only tenuously related to" it--we consider the specific facts at 17 issue, including the temporal proximity between the unlawful police conduct and the 18 discovery of the evidence, and the existence of any intervening or mitigating 19 circumstances. Hall, 339 Or at 35. 20 As noted, the state does not challenge the trial court's determination that 21 Hulke's stop of defendant was unlawful. Nor does the state contend that no "but for" 22 connection exists between the stop and the statements that defendant made during that 23 stop--specifically, defendant's false declaration that he was Pennington. Rather, the state 24 argues only that Hulke did not obtain that statement by exploiting the illegal stop. In that 25 regard, the state argues, it was defendant's own, independent desire to evade citation that 26 prompted him to lie. The state asserts that, "simply because an individual is unlawfully 4 1 detained under Article I, section 9, it does not follow that the evidence of defendant's 2 new, independent crime--providing false information to a police officer--must be 3 suppressed." 4 In support of that contention, the state cites State v. Crandall, 340 Or 645, 5 136 P3d 30 (2006). In that case, a police officer unlawfully stopped the defendant 6 without reasonable suspicion of criminal activity, by telling him to "stop" and "come 7 here" as he left an apartment. Crandall, 340 Or at 647. The "[d]efendant obeyed that 8 direction, but before he reached the officer, he put a clear plastic 'baggie' containing a 9 controlled substance underneath one of the cars in the apartment parking lot." Id. After 10 noting that the officer's direction to "stop" and "come here" was the "but for" cause of the 11 defendant's decision to put the baggie underneath the car, the Supreme Court concluded 12 that the "defendant's unilateral, voluntary decision to put the baggie underneath the car 13 sufficiently attenuated the discovery of that evidence from the prior illegality," such that 14 "'the unlawful police conduct cannot be viewed properly as the source of that evidence.'" 15 Id. at 652-53 (quoting Hall, 339 Or at 25). 16 Here, the state argues, defendant's unilateral, voluntary decision to lie about 17 his identity attenuated the discovery of the evidence (his false statement) from the prior 18 unlawful police conduct, in much the same way that the defendant's actions in Crandall 19 did. In my view, the state's reliance on Crandall is apt. Although Hulke's request for 20 identification was the "but for" cause of defendant's decision to give him Pennington's 21 name, defendant made a unilateral, voluntary decision to lie. Thus, just as the defendant 5 1 in Crandall chose to hide evidence of drugs in an attempt to avoid criminal liability, the 2 defendant in this case chose to hide evidence of his identity in an attempt to avoid the 3 consequences of giving his own name. In each case, the officer's unlawful action was the 4 "but for" cause of the defendant's choice, but that voluntary choice (and the officer's 5 discovery of evidence that flowed from that choice) cannot be said to have derived from 6 the officer's action. And here (unlike in Crandall), defendant's choice involved 7 committing a new crime (giving false identification to a police officer) that had not yet 8 existed when the officer asked him for identification, further weakening any causal link 9 between the officer's inquiry and the officer's discovery of evidence (the false name). 10 Given the totality of the circumstances, I would conclude that defendant's unilateral 11 choice to give a false name was an intervening circumstance that attenuated the discovery 12 of that false statement from the prior illegality, such that the unlawful stop "cannot be 13 viewed properly as the source of that evidence." Hall, 339 Or at 25.3 14 Put differently, Hulke did not "exploit" his unlawful stop of defendant in 15 any way that resulted in defendant giving the false name. True, Hulke would not have 16 asked defendant for his name had he not conducted the traffic stop, and defendant 3 In State v. Bentz, 211 Or App 129, 134, 158 P3d 1081 (2007), we held that a police officer's act of "asking a person's name constitutes exploitation if the question causes the person to give information that leads the police to evidence." Bentz does not control here because Hulke's request for defendant's name did not cause defendant to give information that led Hulke to discover evidence that already existed. Rather, by giving a false name in response, defendant voluntarily and unilaterally committed a new crime and created new evidence that otherwise would not have existed. Consequently, Hulke's discovery of that evidence was sufficiently attenuated from the illegality so as not to warrant suppression. 6 1 presumably would not have provided any identifying information (accurate or not) had 2 Hulke not asked that question. But that chain of events establishes nothing more than the 3 sort of "but for" causation that the Supreme Court has held does not constitute 4 exploitation. Take the circumstances at issue in Rodriguez, a case that presented the 5 question whether the defendant's consent to search his apartment was obtained through 6 exploitation of a purportedly unlawful arrest. 317 Or at 38. The officer making that 7 arrest had gone to the defendant's apartment, entered the apartment when the defendant 8 "stepped back," which the officer took as an indication to step in, read Miranda warnings 9 to the defendant, and then asked, "Do you have any drugs or guns in the house?" Id. at 10 30. Although the defendant then said, "No, go ahead and look," the officer sought 11 clarification, asking, "'Can we search?' You know, 'Want to consent to search,' and so 12 forth." Id. At that point, the defendant said, "Yes, go ahead." Id. 13 The Supreme Court held that the Rodriguez defendant's consent was not 14 obtained through exploitation of the purportedly unlawful arrest, which had brought the 15 officer to the defendant's apartment, because the officer "did not trade on or otherwise 16 take advantage of the arrest to obtain [the] defendant's consent to the search." Id. at 41. 17 "The mere fact that, but for the arrest, the agent would not have been standing in the 18 doorway of [the] defendant's apartment, in a position to ask [the] defendant about drugs 19 and guns" did not establish that the officer had exploited the arrest to obtain the 20 defendant's consent. Id. Similarly, the mere fact that the traffic stop put Hulke in the 21 position to ask defendant's name does not, itself, amount to "exploitation" of the illegality 7 1 2 associated with that stop. The majority's disagreement with my analysis is based primarily on Hall, in 3 which the Supreme Court held that a defendant's consent to search was obtained through 4 exploitation of an unlawful stop. 339 Or at 36. But Hall does not stand for the 5 proposition that any request for information--or request for consent to search--made 6 during an unlawful stop necessarily constitutes exploitation. Rather, the Hall court made 7 a fact-specific determination of whether "the unlawful police conduct, even if not 8 overcoming the defendant's free will, significantly affected the defendant's decision to 9 consent." Id. at 35. Given the totality of the circumstances in that case, including that the 10 officer requested consent to search immediately after he had asked the defendant about 11 whether he was carrying weapons or illegal drugs, and while he was awaiting the results 12 of a warrant check, the court held that the state had not proved that the "defendant's 13 decision to consent, even if voluntary, was not the product of the preceding violation of 14 [the] defendant's rights under Article I, section 9." Id. at 36. Nothing in this record 15 suggests that defendant's decision to give a false answer to Hulke's request for identifying 16 information was based on similar police pressure. 17 The other cases on which the majority relies--like Hall--also involved two 18 types of facts that are not present here. First, in each of those cases, police officers took 19 advantage of an unlawful (or unlawfully extended) stop to conduct an investigation into 20 possible criminal activity, like the unlawful possession of controlled substances or 21 weapons. See State v. Rodgers/Kirkeby, 347 Or 610, 626-28, 227 P3d 695 (2010) (officer 8 1 asked defendant Rodgers about items in car possibly related to the manufacture of 2 controlled substances, and requested consent to search, during an unlawful extension of a 3 traffic stop; officer requested consent to patdown and further search from defendant 4 Kirkeby after traffic stop should have concluded); State v. Thompkin, 341 Or 368, 378- 5 79, 143 P3d 530 (2006) (officers unlawfully seized the defendant, who was a passenger 6 in a stopped car, when they requested and retained her identification to run a warrants 7 check and questioned her about illegal activity); State v. Toevs, 327 Or 525, 537, 964 P2d 8 1007 (1998) (officer questioned the defendant about drugs during an unlawfully extended 9 traffic stop); State v. Dominguez-Martinez, 321 Or 206, 208-09, 895 P2d 306 (1995) 10 (similar). Second, Rodgers/Kirkeby and Thompkin involved coercive circumstances 11 beyond the types of discomfort or inconvenience that may often accompany an 12 unadorned traffic stop. See Rodgers/Kirkeby, 347 Or at 626-28 (discussing officers' 13 "show of authority"); Thompkin, 341 Or at 378-79 (explaining circumstances that 14 amounted to seizure of the defendant).4 This case does not involve analogous 15 circumstances. Hulke was not conducting the sort of criminal investigation that is aimed 16 at revealing inculpatory evidence (like weapons, drugs, or other contraband) when he 17 simply asked defendant for his identification in conjunction with a traffic stop. 18 Moreover, no other potentially coercive circumstances were present--for example, before 4 In Toevs and Dominguez-Martinez, the Supreme Court held that, under thenexistent statutes that subsequently were amended, evidence obtained during an unlawfully extended stop necessarily had to be suppressed. 327 Or at 537-38; 321 Or at 214. 9 1 requesting defendant's identification, Hulke had not asked him about contraband or 2 sought consent to search defendant or his vehicle.5 3 The majority also rejects my reliance on Crandall--and my ultimate 4 determination that defendant's choice to lie was an intervening circumstance that 5 attenuated discovery of the falsehood from the illegality of the stop--asserting that 6 application of my analysis would lead to the admissibility of all statements that 7 defendants made in response to police questioning during an unlawful traffic stop. 8 Suppah, __ Or App at __ (slip op at 24). With respect, I disagree. Questions of the type 9 identified by the majority--like a request for consent to search--often are aimed (unless 10 they are asked for officer-safety reasons) at uncovering possible criminal activity. Thus, 11 an officer who asks such questions during the course of an unlawful (or unlawfully 12 extended) traffic stop, and gains inculpatory evidence as a result, frequently may be said 5 The majority also cites State v. Starr, 91 Or App 267, 754 P2d 618 (1988), and State v. Farley, 308 Or 91, 775 P2d 835 (1989). I find those pre-Hall (indeed, preRodriguez) cases unhelpful to the analysis. In Starr, this court stated with little explanation that a trial court properly suppressed evidence of a stopped driver's identification because the "defendant's identity was obtained as a result of the unlawful stop." 91 Or App at 270. That holding has little persistent significance, as it preceded the Hall distinction between a mere "but for" link between an officer's unlawful conduct and subsequently obtained evidence (which would not result in suppression) and an unattenuated exploitative link (which would result in suppression), and includes no similar analysis. And in Farley, the Supreme Court's analysis focused on its determination that, under ORS 810.410(3), a police officer "had no statutory authority" to ask a lawfully stopped driver for his license once the justification for the stop had ended. 308 Or at 94. The court went on to hold that the trial court had correctly granted the defendant's motion to suppress evidence that the officer obtained as a result of obtaining the defendant's license, but the court did so without engaging in any sort of exploitation analysis like the one later announced in Rodriguez and Hall. 10 1 to have traded on the stop--i.e., exploited the unlawful stop--to conduct a criminal 2 investigation. In such circumstances, the officer's discovery of the evidence is not 3 attenuated from the illegality. But attenuation does exist when, as here, a police officer 4 simply asks a driver for identification during the course of a stop and, as a result, obtains 5 evidence of a newly committed crime (giving false information to a police officer) and not 6 evidence of a crime that the defendant already had committed before the questioning 7 ensued. 8 9 In short, defendant voluntarily committed a new crime when he gave Hulke a false name after the unlawful traffic stop. In my view, that new crime was an 10 intervening circumstance that attenuated the causal connection between the unlawfulness 11 of the stop and the newly created evidence (the giving of the false name) that defendant 12 sought to suppress. Accordingly, I would hold that the trial court did not err when it 13 denied defendant's suppression motion. I respectfully dissent from the majority's 14 contrary conclusion. 15 Haselton, C. J., and Wollheim, Ortega, and DeVore, JJ., join in this dissent. 11

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