Argued and Submitted September 17, 2013
On review from the Court of Appeals, CC
C100238CR; CA A145826. [*]
Rolf Moan, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Peter Gartlan, Chief Defender, Salem, argued the cause and filed the brief for respondent on review.
Before Balmer, Chief Justice, Kistler, Walters, Linder, Landau, and Baldwin, Justices.[**] Walters, J., dissented and filed an opinion, in which Baldwin, J., joined. Baldwin, J., dissented and filed an opinion.
[356 Or. 136] BALMER,
This is the third of three cases that we decide today in which we consider when evidence obtained during a voluntary consent search must nonetheless be suppressed on the theory that the consent was the product of a prior police illegality. This court previously addressed that question in State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), and today we modified part of the Hall exploitation analysis in State v. Unger, 356 Or. 59, 333 P.3d 1009. We disavowed the requirement in Hall that a defendant make a threshold showing of a minimal factual nexus between the police illegality and the disputed evidence, and we instead held that, when a defendant challenges the validity of his or her consent based on prior police misconduct, the state bears the burden of demonstrating that the consent was voluntary and was not the product of that misconduct. Id. at 74-75. We reaffirmed that the exploitation analysis must be based on the totality of the circumstances. See Hall, 339 Or. at 35. We modified Hall, however, by clarifying the importance of an individual's voluntary consent and by noting that the exploitation analysis should include not only the Hall considerations of the temporal proximity between the unlawful conduct and the consent and any intervening or mitigating circumstances, but also the nature of the unlawful conduct, including its purpose and flagrancy. Unger, 356 Or. at 93.
In this case, defendant challenged the trial court's denial of his motion to suppress evidence obtained during a voluntary consent search, which had followed an officer reaching into defendant's apartment to knock on his bedroom door. The trial court concluded that the officer's entry into defendant's apartment had been lawful and that there was no basis for suppression. Defendant was convicted at a bench trial. The Court of Appeals reversed, holding that the officer's conduct constituted an unlawful search and that the state had not proved that the subsequent consent was independent of or only tenuously related to that prior illegality. State v. Lorenzo, 252 Or.App. 263, 268, 271, 287 P.3d 1133 (2012). For the reasons described
below, we reverse the decision of the Court of Appeals.
[356 Or. 137] Officers responded to an early morning 9-1-1 call from a woman who reported that her ex-fiancé , Kyle, was outside her apartment with a noose around his neck, threatening to hang himself. When the officers arrived, they quickly detained Kyle and removed the noose from his neck. In the course of talking to Kyle and his ex-fiancé e, the officers learned that Kyle lived in an apartment complex directly across from the apartment complex where Kyle had threatened to hang himself, that Kyle owned a gun, and that Kyle had a roommate named Jeff (defendant).
When Officer Wujcik arrived on the scene, after Kyle had been detained, he went to Kyle and defendant's apartment to check on defendant's welfare. Wujcik was concerned about defendant because, as he later explained, " when we get called to suicidals *** sometimes they're suicidal because they have hurt somebody or killed somebody or something else is going on." Initially, Wujcik knocked on the outer door of defendant's apartment and called out, " Beaverton Police Department, Jeff, are you okay?" Defendant did not respond, and other officers on the scene asked Kyle's ex-fiancé e to call defendant to see if he was unharmed. Those calls also failed to elicit any response.
As the officers continued to talk to Kyle and his ex-fiancé e, they learned that defendant's bedroom door was just inside the exterior door to the apartment. Based on that information, Wujcik reached inside the exterior apartment door and knocked on defendant's bedroom door, which he was able to do without stepping inside the apartment. As he was knocking on the bedroom door, Wujcik again said, " Police, Jeff, are you okay?" About ten seconds later, defendant came out of his bedroom into an area where Wujcik could see him from the front door. At that point, Wujcik was fully outside defendant's apartment. Wujcik again asked defendant if he was okay, and defendant responded, " Yeah." Wujcik then asked defendant, " Can I come in and talk?" and defendant replied, " Yes."
[356 Or. 138] When he entered the apartment, Wujcik smelled a strong odor of marijuana coming from defendant's room, and he asked defendant for his identification. As defendant went back into his bedroom to retrieve his identification, Wujcik saw a plastic bag containing what appeared to be marijuana on the bedroom floor. Wujcik ran defendant's identification and proceeded to question defendant about the incident with his roommate. Wujcik then told defendant that he knew that there was marijuana in his bedroom, and he asked defendant if he was selling the drug. Defendant responded that he was not. Wujcik then asked if he could make sure that defendant was not selling marijuana by searching defendant's room. According to Wujcik's ...