May 6, 2014, Argued and Submitted
CC 101033810; CA A148109. On review from the Court of Appeals. [*]
State v. Bailey, 258 Or.App. 18, 308 P.3d 368, (2013)
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Anne Fujita Munsey, Senior Deputy Public Defender, Salem, argued the cause and filed the briefs for petitioner on review. With her on the briefs was Peter Gartlan, Public Defender.
Anna M. Joyce, Solicitor General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Ellen F. Rosenblum, Attorney General, and Peenesh H. Shah, Assistant Attorney General.
[356 Or. 488] En Banc
Police officers unlawfully detained defendant when he was a passenger in a car. During that unlawful detention, the officers ascertained defendant's identity and ran a warrant check, which revealed that defendant was the subject of an outstanding arrest warrant. The officers arrested defendant and, during a search incident to arrest, discovered that he was in possession of illegal drugs. Based on that evidence, the state prosecuted defendant for various drug offenses. Defendant moved to suppress the evidence under the state and federal exclusionary rules, which, subject to certain exceptions--including the attenuation exception--prohibit the state from using at trial evidence that was obtained as a result of an unreasonable search or seizure. See State ex rel Dept. of Human Services v. W. P., 345 Or. 657, 664-69, 202 P.3d 167 (2009) (describing operation of exclusionary rules under Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution). As explained below, this case requires us to consider whether, under the Fourth Amendment, the discovery and execution of a valid warrant for defendant's arrest sufficiently attenuated the connection between defendant's unlawful detention and evidence found in the search incident to his arrest so as to permit the state to use the evidence against defendant at trial.
The circuit court and the Court of Appeals rejected defendant's arguments and applied a per se rule to the attenuation analysis: The discovery and execution of a valid arrest warrant necessarily break the connection between preceding unlawful police conduct and a search incident to the arrest. State v. Bailey, 258 Or.App. 18, 308 P.3d 368 (2013). The Court of Appeals drew that rule from this court's decision in State v. Dempster, 248 Or. 404, 434 P.2d 746 (1967). Bailey, 258 Or.App. at 21-29. For the reasons explained below, we conclude that Dempster 's per se rule is inconsistent with the subsequent development of the Fourth Amendment attenuation exception set out in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the United States Supreme Court rejected such an approach. Id. at 603. Instead, Brown requires courts to consider three factors in the attenuation analysis: (1) the temporal proximity between [356 Or. 489] unlawful police conduct and the discovery of challenged evidence; (2) the ...