September 14, 2011 01:54 PM

IN THE SUPREME COURT OF THE STATE OF OREGON _______________ STATE OF OREGON, Plaintiff-Respondent, Respondent on Review CA A136981 v. LELAND JAY HEMENWAY, Defendant-Appellant, Petitioner on Review. _______________________________ STATE OF OREGON, Plaintiff-Respondent, Petitioner on Review, v. LELAND JAY HEMENWAY, Defendant-Appellant, Respondent on Review. _______________ BRIEF ON THE MERITS OF PETITIONER ON REVIEW, STATE OF OREGON _______________ Review of the Decision of the Court of Appeals on Appeal from a Judgment of the Circuit Court for Tillamook County Honorable RICK W. ROLL, Judge _______________ Opinion Filed: December 9, 2009 Author of Opinion: Sercombe, J. Concurring Judges: Edmonds, P.J., and Carson, S.J. _______________ SC S059392 SC S059085 (Control) Tillamook County Circuit Court No. 071107

PETER GARTLAN #870467 Chief Defender Office of Public Defense Services 1175 Court St. NE Salem, Oregon 97301 Telephone: (503) 378-3349 Email: peter.gartlan@opds.state.or.us Attorneys for Defendant JOHN R. KROGER #077207 Attorney General MARY H. WILLIAMS #911241 Solicitor General ROLF C. MOAN #924077 Assistant Attorney General 1162 Court St. NE Salem, Oregon 97301-4096 Telephone: (503) 378-4402 Email: rolf.moan@doj.state.or.us Attorneys for the State of Oregon

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TABLE OF CONTENTS QUESTIONS PRESENTED AND PROPOSED RULES OF LAW .................. 1 First Question Presented.............................................................................1 First Proposed Rule of Law........................................................................1 Second Question Presented ........................................................................1 Second Proposed Rule of Law ...................................................................2 SUMMARY OF ARGUMENT........................................................................... 2 STATEMENT OF THE CASE AND SUMMARY OF MATERIAL FACTS .. 5 A. Defendant consented to multiple searches, and those searches uncovered methamphetamine and methamphetamine paraphernalia. ....................................................5 The trial court concluded that defendants consents were voluntary...........................................................................................6 Although it was undisputed on appeal that defendants consents were voluntary, the Court of Appeals heldunder State v. Hallthat any unlawful seizure that preceded the consents required suppression..........................................................7 This court should re-assess State v. Halls suppression holding............................................................................................10 1. The Hall majoritys failure to apply the usual paradigm for construing constitutional provisions provides a reason to re-assess Halls suppression holding. ............................................................................... 10 Because Hall announced a new rule that is just six years old, passage of time and precedential use considerations do not weigh against reconsideration. ........ 12 Additional factors further limit Halls precedential use and warrant its reconsideration................................... 19 a. b. Internal contradictions characterize the first step in Halls methodology. ..................................... 19 Contradictions also characterize Halls second step............................................................................ 21

B. C.

ARGUMENT....................................................................................................... 9 A.

2.

3.

B.

Application of the appropriate paradigm shows that Hall is wrong, and that the states proposed rule is correct.......................22 1. Because it authorizes all reasonable searches, Article I, section 9s text demonstrates that Hall is wrong. ................................................................................. 23 Hall conflicts with this courts case law describing Article I, section 9s exclusionary rule. .............................. 25 a. Suppression is not required to vindicate defendants Article I, section 9 right to be free from unreasonable searches...................................... 26 Suppression is also not required to vindicate defendants right to be free from unreasonable seizures. .................................................................... 28

2.

b.

C.

Adopting the states proposed rule, and overturning Halls suppression holding, will clarify the law. ......................................30

CONCLUSION.................................................................................................. 32

TABLE OF AUTHORITIES Cases Cited Farmers Insurance Company of Oregon v. Mowry, ___ Or ___, ___ P3d ___ (September 9, 2011 slip op at 8) ............. 10, 18 Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992)................................................................11 State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010)......................................................... 8, 13 State v. Ayles, 348 Or 622, 237 P3d 805 (2010)................................................. 13, 20, 21 State v. Bea, 318 Or 220, 864 P2d 854 (1993)..............................................................23 State v. Carston, 323 Or 75, 913 P2d 709 (1996)................................................................15 State v. Ciancanelli, 339 Or 282, 121 P3d 613 (2005) ............................... 10, 11, 13, 18, 19, 31 ii

State v. Crandall, 340 Or 645, 136 P3d 30 (2006)................................................................13 State v. Davis, 295 Or 227, 666 P2d 802 (1983)................................................. 11, 25, 26 State v. Davis, 313 Or 246, 834 P2d 1008 (1992)............................................................25 State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995)..............................................................15 State v. Hall, 339 Or 7, 115 P3d 908 (2005) ...................... 1-3, 5, 7-23, 25, 26-28, 30-33 State v. Hemenway, 232 Or App 407, 222 P3d 1103 (2009), rev allowed, 350 Or 532 (2011) .......................................... 5, 6, 7, 8, 9, 20 State v. Kennedy, 290 Or 493, 624 P2d 99 (1981)......................................................... 14, 17 State v. Newton, 291 Or 788, 636 P2d 393 (1981)..............................................................23 State v. Olson, 287 Or 157, 598 P2d 670 (1979)..............................................................16 State v. Parker, 317 Or 225, 855 P2d 636 (1993)..............................................................30 State v. Paulson, 313 Or 346, 833 P2d 1278 (1992)............................................................23 State v. Pogue, 243 Or 163, 412 P2d 28 (1966)................................................................24 State v. Quinn, 290 Or 383, 623 P2d 630 (1981)....................................................... 14, 17 State v. Robertson, 293 Or 402, 649 P2d 569 (1982)....................................................... 13, 14 State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010)....................................................... 13, 28 State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993)................................................... 16, 17, 31 State v. Thompkin, 341 Or 368, 143 P3d 530 (2006)..............................................................13 iii

State v. Toevs, 327 Or 525, 964 P2d 1007 (1998)..................................................... 15, 16 State v. Vondehn, 348 Or 462, 236 P3d 691 (2010)..............................................................13 State v. Weaver, 319 Or 212, 874 P2d 1322 (1994)..................................................... 17, 23 State v. Wolfe, 295 Or 567, 669 P2d 320 (1983)....................................................... 24, 30 Stranahan v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000)....................................................... 9, 10, 13 Constitutional and Statutory Provisions Or Const, Art I, 8 .............................................................................................13 Or Const, Art I, 9 ................................................. 1-4, 7, 9-12, 14-17, 22-30, 32 ORS 136.432.......................................................................................................16 ORS 165.540.......................................................................................................15 ORS 810.410(3) ..................................................................................................15 US Const, Amend IV ................................................................................... 15, 16 Other Authorities John Bouvier, II Bouviers Law Dictionary at 424 (1856) ..............................................24 Noah Webster, An American Dictionary of the English Language (1830).......................24

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BRIEF ON THE MERITS OF PETITIONER ON REVIEW, STATE OF OREGON _______________ QUESTIONS PRESENTED AND PROPOSED RULES OF LAW First Question Presented If a decision by this court that construed an original state constitutional provision is just six years old, if the court that issued the decision failed to follow the usual paradigm for construing original constitutional provisions, if the decisions complicated methodology and internal contradictions limit its precedential use, and if the decision is legally incorrect, should this court reconsider it? First Proposed Rule of Law Under the circumstances described above, this court should reconsider a prior decision construing an original state constitutional provision. Because those circumstances apply to the suppression holding in State v. Hall, 339 Or 7, 115 P3d 908 (2005)a holding that the Court of Appeals deemed dispositive herethe court should reconsider that holding. Second Question Presented If a defendant who has been unlawfully seized subsequently provides voluntary consent to a warrantless search, can Article I, section 9, of the Oregon Constitution require suppression of evidence found during the search?

2 Second Proposed Rule of Law If an unlawful seizure did not impair the defendants ability to freely consent, and if the defendants consent to a search thus was voluntary, the ensuing search necessarily was reasonable and constitutional. Under those circumstances, the initial seizure provides no state constitutional basis to suppress the discovered evidence. Because Halls suppression holding dictates otherwise, this court should abandon it. SUMMARY OF ARGUMENT It is undisputed that defendant voluntarily consented to multiple searches in this case, and that police found drug evidence while conducting those searches. Defendants voluntary consent is significant becauseas this court consistently has explainedArticle I, section 9, of the Oregon Constitution permits officers to conduct a warrantless search based on voluntary consent. When consent is voluntary, it necessarily reflects the persons free will and reflects no police coercion. As a matter of law, voluntary-consent searches are reasonable and, it follows, constitutional. In State v. Hall, 339 Or 7, 115 P3d 908 (2005), this court did not purport to abandon any of those principles. Nonetheless, Hall held that evidence found during a voluntary-consent search can be subject to suppression under Article I, section 9. Hall requires suppression if the defendant shows a minimal factual nexus between the unlawful seizure and the voluntary consent, and if the state

3 fails to show that the consent was independent of, or only tenuously related to, the seizure. The Court of Appeals relied on Hall to reverse the trial courts denial of defendants motion to suppress. This court should reconsider and reject Halls suppression holding. It should re-affirm that, because voluntary consent to a search renders the search constitutional, evidence found during the search isfor Article I, section 9 purposesadmissible. Hall warrants re-assessment because the Hall majority ignored the threestep usual paradigm for construing original provisions of the Oregon Constitution: (1) The majority ignored Article I, section 9s text, which prohibits only unreasonable searches; (2) it ignored pertinent case law, by overlooking this courts repeated descriptions of voluntary-consent searches as reasonable and therefore constitutional; and (3) it made no effort to identify historical circumstances that nonetheless might justify its holding. Furthermore, because Hall announced a new constitutional rule that is just six years old, and because internal inconsistencies make its suppression holding difficult to implement consistently, neither passage of time nor precedential use considerations should insulate it from reconsideration. In the end, the pertinent paradigm shows that evidence found during a voluntary-consent search is admissible under Article I, section 9, despite any preceding police illegality. To hold otherwise conflicts with Article I, section 9s focus on reasonableness and with the rationale behind its exclusionary

4 rule. Although Article I, section 9s exclusionary rule authorizes suppression only to vindicate constitutional rights, suppression here does not serve that purpose. First, suppression cannot vindicate defendants Article I, section 9 right to be free from unreasonable searches. Because defendant voluntarily consented to the searches at issue, those searches were reasonable as a matter of law. Suppression thus is not needed to give effect to defendants right to be free from unreasonable searches. In fact, suppression would essentially diminish defendants rights, by rendering insignificant his voluntary decisions to authorize searches of his person and property. Second, suppression cannot vindicate defendants Article I, section 9 right to be free from unreasonable seizures. Because any initial seizure did not uncover the evidence at issue, or increase officers ability to search constitutionally, it did not alter defendants constitutional position with respect to the discovered evidence. Both before and after the seizure, police authority to search remained contingent on defendants willingness to consent to a search. Both before and after the seizure, defendant possessed the same amount of constitutional power to keep officers from searching him or his property, and to keep them ignorant of the evidence at issue. Because defendants constitutional position had not changed with respect to the evidence at issue, suppression is not needed to restore him to his pre-seizure constitutional position, and to vindicate his Article I, section 9 rights.

5 In many cases, of course, an unlawful seizure will render subsequent consent to a search involuntary. But if, as here, the unlawful conduct does not affect a defendants ability to freely consent to a search, it cannot require suppression. That rule is not only constitutionally correct butwhen compared to Halls multi-step burden-shifting methodologysimplifies the required analysis, by merely requiring courts to apply the same voluntariness inquiry that consent-search cases traditionally have required. This court should overrule Halls suppression holding, and should hold that the trial court correctly denied defendants motion to suppress. STATEMENT OF THE CASE AND SUMMARY OF MATERIAL FACTS Defendant voluntarily consented to three searches, and those searches revealed evidence that was used to convict him of methamphetamine possession. The Court of Appeals reversed defendants conviction, based on the possibility that officers had seized defendant, for state constitutional purposes, before obtaining his consent. The court held that any such seizure would have been unlawful, andunder Hallwould require suppression of the discovered evidence. A. Defendant consented to multiple searches, and those searches uncovered methamphetamine and methamphetamine paraphernalia. In response to 9-1-1 calls from defendants girlfriend, Sheriffs Deputies Orella and Russell drove to the girlfriends house. State v. Hemenway, 232 Or App 407, 409, 418, 222 P3d 1103 (2009), rev allowed, 350 Or 532 (2011); (Tr

6 39). The deputies parked their vehicles behind defendants truck, blocking the trucks exit route, and Deputy Orella instructed defendant to go talk to Deputy Russell. Hemenway, 232 Or App at 409. Because the deputies had observed a rifle in defendants truck, Deputy Russell asked defendant if he was a felon. Id. at 409. When defendant said he was not, Deputy Russell asked for and obtained defendants name and date of birth, and asked to search defendant. Id. at 409-10. Defendant consented. While searching defendant, Deputy Russell discovered a breath-mint tin in one of defendants pockets. Id. at 410. Deputy Russell asked if he could open the tin. Defendant again consented. The deputy opened it and discovered a methamphetamine pipe and a baggie that [he] suspected contained methamphetamine residue. 232 Or App at 410. Deputy Russell then asked defendant if he had more drugs in the house, and defendant said that there might be. 232 at 410. The deputy asked if he could search the house for drug-related items. Defendant consented to that search as well. 232 Or App at 410. Officers searched the house and discovered additional methamphetamine paraphernalia. 232 Or App at 410. B. The trial court concluded that defendants consents were voluntary. Before trial, defendant argued that he was unlawfully seized before he consented, and he thus moved to suppress all evidence obtained from the warrantless search of his person and residence, and to suppress his

7 inculpatory statements made to the deputies. 232 Or App at 410. The trial court denied the motion. The court ruled, in part, that defendant had not been seized. 232 Or App at 410. It also ruled that defendant had provided voluntary consent, for constitutional purposes, to each of the three searches at issue. 232 Or App at 410. Defendant subsequently entered a conditional guilty plea to methamphetamine possession. 232 Or App at 409-10. C. Although it was undisputed on appeal that defendants consents were voluntary, the Court of Appeals heldunder State v. Hallthat any unlawful seizure that preceded the consents required suppression. On appeal, defendant did not dispute that his consents were voluntary. (Defendants App Br 2-3, 17-19). Nonetheless, the Court of Appeals reversed defendants convictions. Hemenway, 232 Or App at 418. The court held, in part, that the deputies may have seized defendant unlawfullyunder Article I, section 9, of the Oregon Constitutionby blocking his truck, direct[ing him] to move to a location to speak with a deputy, obtaining his identification, and questioning him. 232 Or App at 411. The Court of Appeals remanded so that the trial court could determine if defendant had subjectively believed that the deputies had detained him. 232 Or App at 412, 418. If so, the Court of Appeals held, defendant had been seized unlawfully for state constitutional purposes. Id. 1

Defendant has asked this court to review whether, to be seized under the state constitution, a person must * * * subjectively believe that he is
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8 The court also held that, if defendant was unlawfully seized before he consented to the searches, Hall required suppression of the discovered evidence. Hemenway, 232 Or App at 416-18. Applying Halls suppression methodology, the court reached two conclusions: (1) Defendant had established the requisite causal connection between the unlawful stop and [his] grants of consent because, but for the unlawful stop, Russell would not have been able to request defendants consent; and (2) [t]he state has not shown that the evidence is so tenuously related to the prior illegality as to render it admissible. 232 Or App at 416, 418. Consequently, any seizure that occurred

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unable to leave. (Petition 2). The court granted defendants petition but asked the parties to focus their briefing on the issues raised in the states petition for review, and to address the issues raised in defendants petition only to the extent they may dispute it. (July 22, 2011 letter from Philip Schradle). This court need not review the Court of Appeals seizure holding. In light of State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010), the parties agree that the answer to the question presented in defendants petition is a simple no. Moreover, even if this court granted defendant the ultimate relief that his petition asks for (a ruling that police seized defendant before obtaining consent), it would still need to assess whetheras the state contends defendants voluntary consents eliminated any basis for suppressing the evidence at issue. Indeed, as noted later in this brief, even if the court concluded that no seizure occurred, jurisprudential reasons would support also addressing whether defendants voluntary consents provided an independent, and equal, basis to affirm the trial courts judgment. The states brief thus does not address the seizure issue, or ask this court to conclude that no seizure occurred.

9 prior to consent wouldunder Hallrequire suppression of the evidence found during the consent searches. Hemenway, 232 Or App at 418. ARGUMENT This is a case about Article I, section 9, of the Oregon Constitution, which identifies the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure. Although voluntary-consent searches qualify as reasonable, Hall holds that evidence found during a voluntary-consent search nonetheless can require suppression. Under Hall, an unlawful seizure that precedes voluntary consent to a search will require suppression of evidence found during the search if (1) the defendant shows a minimal factual nexus between the unlawful seizure and the consent; and (2) the state then fails to prove that consent was independent of, or only tenuously related to, the unlawful [seizure]. Hall, 339 Or at 34-35. This court should reconsiderand should abandonthat holding. This court is willing to reconsider its own state constitutional holdings whenever a party presents * * * a principled argument that the earlier decision wrongly considered or wrongly decided the issue in question. Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228 (2000). Although constitutional decisions should be stable and reliable, there is a similarly important need to be able to correct past errors because [t]his court is the body with the ultimate responsibility for construing our constitution, and if [it] err[s],

10 no other reviewing body can remedy that error. Farmers Insurance Company of Oregon v. Mowry, ___ Or ___, ___, ___ P3d ___ (September 9, 2011 slip op at 8), quoting Stranahan, 331 Or at 53. This court pays particular attention to arguments that * * * demonstrate some failure [by the earlier court] to follow its usual paradigm for considering and construing the meaning of the provision at issue. Id. A party also must show that when the passage of time and the precedential use of the challenged rule is factored in, overturning the rule will not unduly cloud or complicate the law. State v. Ciancanelli, 339 Or 282, 291, 121 P3d 613 (2005). And to ultimately convince the court to abandon the prior holding, the partyunsurprisinglymust show that the holding is incorrect. Id. Under those criteria, this court should re-assess Halls suppression holding. In doing so, this court should reaffirm thatbecause the touchstone of Article I, section 9 is reasonablenessvoluntary consent to a search renders a search necessarily constitutional, and makes the discovered evidence admissible for state constitutional purposes. A. This court should re-assess State v. Halls suppression holding. 1. The Hall majoritys failure to apply the usual paradigm for construing constitutional provisions provides a reason to reassess Halls suppression holding.

The usual paradigm for construing Article I, section 9or any other original Oregon Constitutional provisionis to discern the intent of the

11 provisions drafters by consulting the wording of the constitutional provision, the case law surrounding it, and the historical circumstances leading to its adoption. See Ciancanelli, 339 Or at 289 (recounting usual paradigm described in Priest v. Pearce, 314 Or 411, 840 P2d 65 (1992)). Yet the Hall majorityas discussed belowdid not follow those steps in construing Article I, section 9. For that reason alone, this court should be willing to re-examine Halls suppression holding. First, the Hall majoritys suppression analysis failed to address Article I, section 9s wording. Hall, 339 Or at 20-37. Although Article I, section 9 prohibits only unreasonable searches, and although the evidence at issue in Hall was found during a voluntary-consent search, the Hall majority did not discuss the meaning of unreasonable, or refer to the constitutional divide between reasonable and unreasonable searches. 339 Or at 20-37. Similarly, the majority made no effort to determine whether Article I, section 9s text implies a right to suppress evidence found during a voluntary-consent search. Id.; see State v. Davis, 295 Or 227, 235, 666 P2d 802 (1983) (in assessing whether a violation of the Oregon Constitution requires suppression, courts must assess the character of the rule violated in the course of securing the evidence and whether the rule implied a right not to be prosecuted upon evidence so secured).

12 Second, the Hall majority failed to consider pertinent case law surrounding Article I, section 9s text, and thus failed to adequately apply the second step in the pertinent paradigm. The majority failed to acknowledge or address case lawcase law discussed later in this briefthat describes voluntary-consent searches as reasonable and therefore lawful under the Oregon Constitution. 339 Or at 20-37. The Hall majority made no effort to criticize that body of case law or, alternatively, to explain how that case law can be viewed consistently with Halls ultimate suppression holding. 2 Id. Third, the Hall majority identified no historical circumstances that could justify its ultimate holding. 339 Or at 20-37. Indeed, it failed to discuss any of the historical circumstances leading to Article I, section 9s adoption. Id. The majority thereby failed to apply the third step in the usual paradigm. 2. Because Hall announced a new rule that is just six years old, passage of time and precedential use considerations do not weigh against reconsideration.

In addition, neither passage of time nor precedential use considerations weigh against, or preclude, reconsideration of Halls suppression The Hall court did cite a number of this courts prior decisions in an effort to support its Article I, section 9 suppression holding. But as recounted later in this brief, none of those decisions compelled the result that Hall reached. Instead, this courts pre-Hall case law demonstrated that evidence found during a voluntary-consent search is admissible, despite a preceding violation of Article I, section 9. As a result, the decisions that the Hall majority invoked cannot account for its failure to discuss case law describing voluntary-consent searches as automatically constitutional.
2

13 holding. See Ciancanelli, 291 Or at 291 (party challenging a constitutional holding must show that when the passage of time and the precedential use of the challenged rule is factored in, overturning the rule will not unduly cloud or complicate the law). Instead, Hall announced a new suppression rule for voluntary-consent-search cases. That rule is just six years old, this court has applied it just four times, 3 and this is the first time the court has granted a petition for review asking it to overrule Hall. Accordingly, this case resembles Stranahan, in which the court acted at the earliest possible moment to correct a decision that was less than 10 years old and that few intervening precedents had relied on. See Ciancanelli, 339 Or at 290-91 (describing Stranahan in that manner).4

The court applied Halls suppression holding in State v. Ayles, 348 Or 622, 237 P3d 805 (2010); State v. Rodgers/Kirkeby, 347 Or 610, 629-30, 227 P3d 695 (2010); State v. Thompkin, 341 Or 368, 379, 143 P3d 530 (2006); and State v. Crandall, 340 Or 645, 649-52, 136 P3d 30 (2006). The court cited Hall in Ashbaugh, 349 Or at 306-07 n 7, and in State v. Vondehn, 348 Or 462, 465, 477, 236 P3d 691 (2010), but did not expressly apply Halls suppression holding in either case. Because this court has applied Halls suppression holding just four times, this case is easily contrasted with Ciancanelli. In Ciancanelli, this court refused to overrule State v. Robertson, 293 Or 402, 649 P2d 569 (1982), a seminal 23-year-old decision construing Article I, section 8. According to Westlaw, this court, prior to Ciancanelli, had cited Robertson in 43 different cases. The courts longstanding reliance on Robertson, and its resulting reluctance to abandon Robertson, stands in marked contrast to the courts minimal reliance on Halls suppression holding. See Ciancanelli, 339 Or at 290-91 (unlike Stranahan, [t]he present case * * * involves a challenge not
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14 Moreover, Hall announced a new construction of Article I, section 9. Before Hall, this court followed the same rule of law that the state proposes here: If police officers discover evidence during a voluntary-consent search, the discovered evidence is admissible under Article I, section 9, even if a police illegality preceded the consent. The court had followed that rule in both State v. Quinn, 290 Or 383, 623 P2d 630 (1981), and State v. Kennedy, 290 Or 493, 624 P2d 99 (1981). See Quinn, 290 Or at 394-97 (because initial warrantless search had not influence[d] the defendants consent to a later search, Article I, section 9 did not require exclusion of the evidence found during the later search; evidence was admissible because the consent was voluntarily given, uninfluenced and untainted by the earlier unlawful act); Kennedy, 290 Or at 501 (if officers obtain consent to search during an illegal stop, the proper approachin assessing whether evidence found during a later consent search must be suppressedis to determine * * * whether [the] defendants consent to the search was voluntary). Hall abandoned that approach, by expressly overruling Quinn. Hall, 339 Or at 26-27. Admittedly, the Hall majority described Hall as merely reiterating longstanding suppression rules. In reality, the Article I, section 9 rule that it

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only to Robertson, but also to the many cases that this court has decided since 1983 that have utilized its methodology).

15 announced had not been announced previously, and cannot be described as a rule whose longevity should immunize it from reconsideration. According to the Hall majority, this court repeatedly ha[d] recognized that, even when a defendants consent is voluntary[,] * * * consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of the defendants rights under Article I, section 9. 339 Or at 26-27. But of the five decisions that the Hall majority cited to support that statement, 339 Or at 27-29, 32-33, four did not apply Article I, section 9s exclusionary rule at all. Those decisions instead required suppression based either on police violation of a statute or on Fourth Amendment exclusionary principles. See State v. Toevs, 327 Or 525, 537-38, 964 P2d 1007 (1998) (officers violation of ORS 810.410(3) required suppression of subsequently discovered evidence in defendants car); State v. Carston, 323 Or 75, 79, 85-87, 913 P2d 709 (1996) (police violation of ORS 165.540 required suppression of evidence found during later consent search); State v. Dominguez-Martinez, 321 Or 206, 213-14, 895 P2d 306 (1995) (officers violation of ORS 810.410(3), prior to defendants consent to search, required suppression of evidence discovered during search) 5 ;

Whether an officers Article I, section 9 violation requires suppression of subsequently discovered evidence is an analytically distinct inquiry from determining whether a statutory violation requires suppression of
Footnote continued

16 State v. Olson, 287 Or 157, 162-66, 598 P2d 670 (1979) (applying Fourth Amendment suppression rule to police conduct that violated both the Fourth Amendment and Article I, section 9). Moreover, neither Toevs nor Olson involved a consent search. See Toevs, 327 Or at 528-29 (describing requests to search defendants car, but containing no indication that defendant ever consented to search at issue); Olson, 287 Or at 166 (addressing admissibility of statements made by the defendant). None of those four decisions holds that, if police violate Article I, section 9 before obtaining a voluntary consent, the violation can require suppression. The fifth decision that the Hall majority citedState v. Rodriguez, 317 Or 27, 42, 854 P2d 399 (1993)stated, without citing any supporting authority, that if a defendant voluntarily consents to a search, [t]here may be cases in which a prior illegality affects admissibility. 317 Or at 39 (emphasis added). Yet nothing in Rodriguez compelled Halls suppression holding. 317 Or at 39. Indeed, Rodriguez itself neither ordered suppression of any evidence nor

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subsequently-discovered evidence. The former inquiry requires assessment of the drafters intent in adopting Article I, section 9, while the latter inquiry requires assessment of the legislatures intent in drafting a particular statute. Moreover, by the time Hall was decided, ORS 136.432 (adopted in 1997) provided that relevant evidence obtained in violation of a[] statutory provision generally must be admitted. For each of those reasons, any attempt by the Hall majority to rely on decisions suppressing evidence based on statutory violations must be deemed analytically unjustifiable.

17 purported to overrule Quinn or Kennedy. Rodriguez, 317 Or at 39-42. And a year after this court issued Rodriguez, it made it clear that neither Rodriguez nor any other decision had overruled Quinn. See State v. Weaver, 319 Or 212, 221 n 9, 874 P2d 1322 (1994) ([o]ur disposition of this case does not require us to reexamine whether State v. Quinn * * * remains a valid statement of search and seizure law). 6 Because neither Rodriguez nor any other pre-Hall decision overruled Quinns holding about the significance of voluntary consent to a search, Hall necessarily marked a departure from previous case law. Hall, rather than perpetuating an old rule, announced a new constitutional rule, one that this court has not heavily relied on. As a result, passage of time and precedential use considerations should not insulate Hall from re-assessment. 7

Weaver cited Rodriguez for the proposition that suppression of evidence obtained during a consent search may be necessary to vindicate a defendants rights that were violated by earlier, unlawful police conduct, even if consent was voluntary. Weaver, 319 Or at 219. Yet nothing in Weaver identified any circumstances in which unlawful police conduct would require suppression despite a voluntary consent to search. 319 Or at 219-22. Indeed, suppression was required in Weaver not by unlawful conduct that preceded consent to search, but by a search that exceeded the scope of the given consent. 319 Or at 222. In quoting Rodriguezs statement that some situations may require suppression of evidence found during a voluntary-consent search, Weaver did nothing to transform that statement into an exclusionary-rule holding under Article I, section 9. Moreover, nothing suggests that defendant chose or modified his conduct in this case based on Halls suppression rule, or that other criminal defendants have relied on Hall to choose particular courses of action. For that
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18 The passage-of-time factor suggests that, even if the court were to consider the seizure issue and conclude (despite the absence of any request from the state to do so) that defendant was not seized, it should address whether defendants voluntary consents provide an independent, and equally valid, basis for affirmance. This courts ability to correct Halls analytical and legal errorsand to redress the impact that Halls erroneous holding has on voluntary-consent-search caseswill only diminish with time. That is, the longer that the court chooses not to re-assess Halls suppression holding, the more difficult it will become to justify reconsideration. See Ciancanelli, 339 Or at 291 (party challenging a state constitutional holding must show that when the passage of time and the precedential use of the challenged rule is factored in, overturning the rule will not unduly cloud or complicate the law). Accordingly, jurisprudential considerations favor re-assessing Halls suppression holding in this case, whether or not the court addresses the Court of Appeals seizure holding. This court should revisit Halls suppression holding before it becomes more firmly entrenched.
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reason also, precedential use considerations do not insulate Hall from reassessment. Contrast with Mowry, ___ Or at ___ (September 9, 2011 slip op at 17) (noting that [i]n the area of commercial transactions, we have noted that stability and predictability strongly support adherence to precedent, because parties rely on the rules of law announced by this court to structure their transactions, and this court should not upend those expectations without sufficient reason).

19 3. Additional factors further limit Halls precedential use and warrant its reconsideration.

Halls precedential value is further limited by the following fact: The suppression methodology that Hall announced suffers from multiple ambiguities and internal contradictions. As a result, reconsidering and abandoning Hall, rather than complicating the law, will only simplify it. See Ciancanelli, 339 Or at 291 (party challenging constitutional holding must show that when its precedential use and the holdings precedential use are considered, overturning [it] will not unduly cloud or complicate the law). a. Internal contradictions characterize the first step in Halls methodology.

Internal contradictions plague both inquiries that Halls suppression holding requires. Hall requires courts to first ask if the defendant has shown a minimal factual nexus between the police illegality in question and the defendants consent to a search. Hall, 339 Or at 34-35. But in assessing whether a defendant has met that burden, lower courts must choose between three contradictory analytical options: First, Hall can be read as requiring defendants to show more than a but for connection between the illegality and subsequent consent. See Hall 339 Or at 25 (noting that court previously rejected the notion that evidence is inadmissible simply because it was obtained after unlawful police conduct or because it would not have been obtained but for unlawful police conduct).

20 Second, Hall can be read as suggesting that proof of [nothing more than] a but for causal connection will be sufficient to establish a minimum factual nexus and thus to presume that the consent was the product of the illegality. State v. Ayles, 348 Or 622, 649 n 5, 237 P3d 805 (2010) (Kistler, J., dissenting, joined by Balmer, J., and Linder, J.; emphasis added); see Hall, 339 Or at 25 (noting that defendant must show existence of a but for relationship at minimum, but arguably leaving it open whether a but for showingby itselfmight suffice). Indeed, in this case, the Court of Appeals concluded that defendant satisfied his burden by making nothing more than a but for showing. See Hemenway, 232 Or App at 418 (defendant established the requisite causal connection between the unlawful stop and [his] consent[s] by showing that, but for the unlawful stop, [the officer] would not have been able to request defendants consent; emphasis added). Third, Hall can be read as suggesting that a defendant can satisfy his burden even without showing a but for connection. See Ayles, 348 Or at 65051 (Kistler, J., dissenting, joined by Balmer, J., and Linder, J.) (majoritys application of Hall in Ayles can be read as substitut[ing] a temporal connection for a causal connection, and as eliminating any duty to show a minimal causal connection).

21 b. Contradictions also characterize Halls second step.

If the defendant satisfies his burden to show a factual nexus, Hall next requires the state to show that consent was independent of, or only tenuously related to, the unlawful police conduct. Hall, 339 Or at 35. Here, too, Halls methodology has produced contradictory signals to courts and litigants. On the one hand, this court has suggested that the effect of a police illegality on an officers decision to seek consent is pertinent to Halls second inquiry. See Hall, 339 Or at 35 ([a] causal connection requiring suppression may exist because the police sought the defendants consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct). On the other hand, this court has stated that an illegalitys effect on an officers decision to seek consent is not pertinent to that inquiry. See Ayles, 348 Or at 630-31 (rejecting states argument that, because officers would have sought consent regardless, police illegality did not require suppression; the focus of the factual nexus determination is not on whether [the officer]s decision to ask defendant for consent was caused by his taking of defendants identification; emphasis in original). Halls description of the states burden likely has confused lower courts and litigants in another way as well. Hall states that, even if consent was voluntary, [a] causal connection requiring suppression * * * may exist because the unlawful police conduct, even if not overcoming the defendants free will,

22 significantly affected the defendants decision to consent. 339 Or at 35. That statement appears self-contradictory; if a defendants consent to a search is truly voluntary (meaning that it was not produced by police coercion), it is hard to imagine how it simultaneously could have been significantly affected by unlawful police conduct. See Hall, 339 Or at 20 (noting that consent is voluntary only if it results from free will and not from police coercion, either express or implied). Here, too, Halls suppression holding has itself clouded the law. In sum, neither passage-of-time nor precedential-use considerations suggest that Hall should be insulated from re-assessment. Halls relative youth, and its internal contradictions, limit its precedential value and make this case the appropriate vehicle for re-assessing its suppression holding. B. Application of the appropriate paradigm shows that Hall is wrong, and that the states proposed rule is correct. Once this court undertakes its re-assessment of Halls suppression holding, it should conclude that the holding is wrong and should be abandoned. Application of the pertinent paradigm demonstrates the following: So long as a defendants consent to search is voluntary, it necessarily renders the ensuing search constitutional under Article I, section 9. And because a voluntary consent fully vindicates the defendants Article I, section 9 rights with respect

23 to the discovered evidence, the evidence is admissible, despite any unlawful conduct that preceded consent. 1. Because it authorizes all reasonable searches, Article I, section 9s text demonstrates that Hall is wrong.

Article I, section 9 prohibits only unreasonable searches: 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 * * *. It follows that any search that qualifies as reasonable necessarily is constitutional. That simple principle helps show that Hallin holding that Article I, section 9 can require suppression of evidence found during a voluntary-consent searchis incorrect. As this courts decisions reflect, police necessarily act reasonablyas the Oregon Constitutions drafters would have understood the termif they conduct a search pursuant to a voluntary consent. See Weaver, 319 Or at 219 ([a] warrantless search by the police is reasonable under Article I, section 9, when the search falls into one or another of the recognized exceptions to the warrant requirement, and [o]ne such exception is consent; emphasis omitted); State v. Bea, 318 Or 220, 229, 864 P2d 854 (1993) (same); State v. Paulson, 313 Or 346, 351, 833 P2d 1278 (1992) (same); State v. Newton, 291 Or 788, 801, 636 P2d 393 (1981) (state constitutional warrant requirement

24 may be excused if there is consent); State v. Pogue, 243 Or 163, 164, 412 P2d 28 (1966) ([w]hen there is consent to the search, no warrant is necessary). Those decisions comport with a common-sense reading of Article I, section 9s text. The drafters would have understood a reasonable search as one that can be described as not excessive, agreeable to reason, rational, or just. See John Bouvier, II Bouviers Law Dictionary at 424 (1856) (defining reasonable as [c]onformable or agreeable to reason; just; rational); Noah Webster, An American Dictionary of the English Language (1830) (defining reasonable as, among other things, [n]ot excessive and agreeable to reason; just; rational). A voluntary-consent search can be described in those very terms. If consent is voluntary, the defendant necessarily exercised free will in deciding to consent, and the decision did not result from express or implied police coercion. State v. Wolfe, 295 Or 567, 572, 669 P2d 320 (1983). If consent is voluntary under that standard, the search that it authorizes (assuming officers do not exceed the consents scope), cannot be described as excessive. Instead, it objectively can be described as reflecting rational police conduct that is agreeable to reason, and can even be describedin light of the defendants free-will choice to authorize itas just. A search under those conditions qualifies as reasonable, as Article I, section 9s framers understood the word.

25 In short, if police discover evidence during a voluntary-consent search, the discovery complies with Article I, section 9. Hall, however, holds that Article I, section 9 nonetheless can require suppression of that evidence. That holding cannot be squared with Article I, section 9s text, or with this courts case law construing the text. 2. Hall conflicts with this courts case law describing Article I, section 9s exclusionary rule.

As discussed earlier, the case law that the Hall majority cited to justify its suppression holding did not, in fact, compel that holding. In reality, Halls suppression holding directly conflicts with this courts exclusionary-rule case law. Suppressing evidence based on unlawful police conduct is a dramatic remedy. As this court repeatedly has explained, Article I, section 9 authorizes that remedy if, and only if, suppression will vindicate a defendants Article I, section 9 rights, by restoring him to the same position he would have occupied had no police illegality occurred. See State v. Davis, 313 Or 246, 254, 834 P2d 1008 (1992) (the exclusionary rule * * * operates to vindicate a constitutional right); Hall, 339 Or at 24 (quoting Davis, 295 Or at 234, while noting that the aim of the Oregon exclusionary rule is to restore a defendant to the same position as if the governments officers had stayed within the law); Davis, 295 Or at 234 (the goal is to preserve that persons rights to the same

26 extent as if the governments officers had stayed within the law). Consequently, if suppressions sole purpose in a particular case will be to deter future police misconduct, Article I, section 9 will not authorize suppression. See Davis, 313 Or at 254 (the focus [of suppression under Article I, section 9] * * * is on protecting the individuals rights, and not on deterring or punishing the excessive conduct of any particular government actor); Hall, 339 Or at 24 (noting that prior decisions explicitly * * * rejected the view that the Oregon exclusionary rule is predicated upon a deterrence rationale). Here, however, suppression cannot vindicate any of defendants Article I, section 9 rights. First, suppression would not vindicate his right to be free from unreasonable searches and, in fact, would only diminish that right. Second, suppression also would not vindicate his right to be free from unreasonable seizures. Hall, by nonetheless authorizing suppression in a case like this, conflicts with this courts case law describing Article I, section 9s exclusionary rule. In that manner as well, the pertinent paradigm reflects that Hall is incorrect. a. Suppression is not required to vindicate defendants Article I, section 9 right to be free from unreasonable searches.

It is undisputed that defendants consent to each search was voluntary. In other words, it is undisputed that defendant retained, despite any unlawful seizure, the unfettered power to either authorize or forbid the requested

27 searches. Furthermore, by ultimately giving his voluntary consent to those searches, defendant himself ensured that they were reasonable. Because those searches were reasonable as a matter of law, neither suppression nor any other remedy was required to vindicateor give effect todefendants Article I, section 9 right to be free from unreasonable searches. See Hall, 339 Or at 51 (Durham, J., dissenting) (when consent to search follows police illegality, the voluntariness inquirywhich considers the effect of illegal police conduct on the decision to consentfully vindicates the rights of the defendant). Put differently, only if the unlawful seizure had negated defendants free will, and had rendered consent involuntary, would it have altered defendants constitutional position with respect to his right to be free from unreasonable searches. Only under those circumstancescircumstances not present here would Article I, section 9 have required suppression, as a means to restore defendant to the position he would have occupied had no unlawful seizure occurred. Ultimately, Halls approach diminishes, rather than vindicates, a defendants Article I, section 9 rights. In essence, Hall grants no legal or practical significance to a defendants voluntary consent in cases like this. Instead, Hall requires courts to pretend that a defendantdespite giving voluntary consentnever possessed a meaningful choice to authorize or

28 forbid a search. 8 Rather than vindicating a defendants Article I, section 9 rights, Hall renders a defendants voluntary decision to authorize a search without legal significance, and tells him that he may not authorize a search of his person or property. Cf. Rodgers/Kirkeby, 347 Or at 633-34 (Durham, J., dissenting, joined by Linder, J.) (Oregon courts should not insist on maintaining the privacy of a persons property, and [on] suppress[ing] its admission as evidence in court, after the person himself of herself has voluntarily consented to its disclosure to police). b. Suppression is also not required to vindicate defendants right to be free from unreasonable seizures.

Just as suppression is not required to vindicate defendants Article I, section 9 right to be free from unreasonable searches, it is not required to vindicate his Article I, section 9 right to be free from unreasonable seizures. Here, the crucial point is that the unlawful seizure did not produce the evidence at issue. Immediately after the seizure, officers had not yet found, and did not yet possess, the evidence in question. Instead, their discovery of the evidence was contingent on events that had not yet occurredit was contingent on

In Hall, for example, officers violated Article I, section 9, by seizing the defendant without reasonable suspicion. 339 Or at 19. Although the defendant subsequently consented to a search that revealed methamphetamine, and although he did not dispute that his consent was voluntary for state constitutional purposes, the unlawful seizure required suppression of the discovered drugs. 339 Or at 10-11, 22, 36-37.

29 defendants subsequent and voluntary consent to searches of his person and property. If the unlawful seizure had directly produced incriminating evidence, suppression would be required to vindicate defendants constitutional right to be free from unreasonable seizure, and to place him in the same position as if no seizure occurred. For example, if police had seized defendant, absent reasonable suspicion, by grabbing him by the shirt, and if doing so revealed cocaine tucked inside defendants pants, Article I, section 9s exclusionary rule would require suppression of the cocaine. Under that scenario, suppression of the cocaine would return defendant to the same constitutional position he occupied before the seizure, by depriving the police of evidence that they discovered by seizing him. The seizure in this case, however, did not itself produce incriminating evidence. As a result, it did not alter defendants constitutional position with respect to the drug evidence at issue, or diminish his ability to prevent the officers from finding that evidence by searching him or his property. Both before and after the seizure, defendant fully controlled the officers ability to discover the evidence in question: If defendant voluntarily authorized a search, officers likely would find the evidence; if defendant declined to consent to a search, the evidence would remain undiscovered. Because the seizure did not change defendants constitutional position with respect to the drug evidence,

30 or with respect to the officers ability to search for it, suppression cannot be deemed necessary to somehow restore defendant to his pre-seizure position. Both before and after the seizure, defendant retained the same amount of constitutional authority to either authorize or forbid a search. Suppression thus is not required to vindicate defendants right to be free from unreasonable seizures. Because suppression is not needed to vindicate any of defendants Article I, section 9 rights, suppression cannot be required. Hall, by nonetheless authorizing suppression in cases like this, conflicts with case law describing permissible grounds for suppression under Article I, section 9. Halls suppression holding is incorrect in that sense as well and should be overruled. C. Adopting the states proposed rule, and overturning Halls suppression holding, will clarify the law. The states proposed rule is the same rule that this court followed prior to Hall. Under that rule, the only pertinent inquiry is straightforward, and is one that courts already are accustomed to: Did the state show that the defendant in light of all the circumstanceswas able to exercise free will in choosing to consent, and that the consent did not result from express or implied police coercion? Wolfe, 295 Or at 572; State v. Parker, 317 Or 225, 230, 855 P2d 636 (1993). Compared to Halls suppression holding, the states proposed rule will simplify the law rather than complicate it. That further suggests that the court

31 should replace Halls suppression holding with the states proposed rule. See Ciancanelli, 339 Or at 291 (requiring state to convince court not only that prior holding is legally incorrect, but that overturning [it] will not unduly cloud or complicate the law). It bears noting that, under the states proposed rule, unlawful police conduct that precedes consent often will require suppression of evidence found during a consent search, by rendering the consent involuntary. For example, if unlawful conduct is violent or abusive, it may well impair a defendants ability to genuinely exercise free will in response to a request for consent. And if a defendant is aware that officers violated his constitutional rights before requesting consent, he may well conclude that they are likely to search whether he consents or not. Under those circumstances, any decision to consent might well be viewed as essentially coerced. See Rodriguez, 317 Or at 38 and n 13 (unlawful conduct may have some effect on the state of mind of the person giving the consent, and a defendants knowledge of the illegality may affect voluntariness). Further, when police act unlawfully before seeking consent, countless other factors might be present thatwhen all circumstances are consideredundermine the states ability to show that consent was voluntary. Under either the states proposed rule or under Hall, unlawful police conduct that precedes consent sometimes will require suppression of evidence found during a consent search; sometimes it will not. Yet the states proposed

32 rule, unlike the Hall methodology, does not involve multiple steps or burden shifting. It requires courts to engage in a single inquiry: Did the state prove that, despite the unlawful conduct, defendant consented as an act of free will? Aside from being constitutionally correct, that inquiry is easy for courts to administer, and easy for prosecutors, defense attorneys, and police officers to understand. Indeed, that inquiry is the same one that courts traditionally have applied to assess if consent was voluntary for constitutional purposes. Because the states proposed rule will simplify rather than cloud the law, this court should substitute that rule for Halls suppression holding. CONCLUSION Article I, section 9s text, along with pertinent case law, demonstrates that this court should abandon State v. Halls suppression holding. This court should declare that Article I, section 9 provides no basis for suppressing evidence found during a voluntary-consent search, even if officers unlawfully seized the defendant before obtaining consent. Here, although officers unlawfully seized defendant before requesting consent, they did not impair his ability to freely authorize or forbid the requested searches. Because defendant voluntarily consented, the searches necessarily were reasonable, and nothing further was required to vindicate, or give effect to, defendants right to be free from unreasonable searches. And because the unlawful seizure neither uncovered the evidence in question nor

33 impaired defendants ability to keep the evidence hidden, suppression was not needed to restore defendant to his pre-seizure constitutional position, or to vindicate his right to be free from unreasonable seizures. No state constitutional basis to suppress exists. This court should overrule Halls suppression holding, reverse the Court of Appeals decision, and affirm the trial courts judgment. Respectfully submitted, JOHN R. KROGER Attorney General MARY H. WILLIAMS Solicitor General

/s/ Rolf C. Moan ________________________________ ROLF C. MOAN #924077 Assistant Attorney General rolf.moan@doj.state.or.us Attorneys for Petitioner on Review
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NOTICE OF FILING AND PROOF OF SERVICE I certify that on September 14, 2011, I directed the original Brief on the Merits of Petitioner on Review, State of Oregon to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Peter Gartlan, attorney for respondent on review, by using the court's electronic filing system. CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 7,754 words. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). /s/ Rolf C. Moan ________________________________ ROLF C. MOAN #924077 Assistant Attorney General rolf.moan@doj.state.or.us Attorney for Petitioner on Review
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