written arguments in oregon v. hemenway

8/3/2019 Written arguments in Oregon v. Hemenway

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IN THE SUPREME COURT OF THE STATE OF OREGON

_______________

STATE OF OREGON,

Plaintiff-Respondent,Respondent on Review

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.

Tillamook County Circuit

Court No. 071107

CA A136981

SC S059085 (Control)

SC S059392

_______________

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 CountyHonorable RICK W. ROLL, Judge

_______________

Opinion Filed: December 9, 2009

Author of Opinion: Sercombe, J.

Concurring Judges: Edmonds, P.J., and Carson, S.J.

_______________

September 14, 2011 01:54 P



PETER GARTLAN #870467

Chief Defender

Office of Public Defense Services

1175 Court St. NE

Salem, Oregon 97301

Telephone: (503) 378-3349Email: [email protected]

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: [email protected]

Attorneys for the State of Oregon

9/11



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TABLE OF CONTENTS

QUESTIONS PRESENTED AND PROPOSED RULES OF LAW .................. 1

First Question Presented.............................................................................1

First Proposed Rule of Law ........................................................................1Second 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

B. The trial court concluded that defendant’s consents were

voluntary...........................................................................................6

C. Although it was undisputed on appeal that defendant’s

consents were voluntary, the Court of Appeals held—under

State v. Hall—that any unlawful seizure that preceded the

consents required suppression..........................................................7

ARGUMENT....................................................................................................... 9

A. This court should re-assess State v. Hall’s suppression

holding............................................................................................10

1. The Hall majority’s failure to apply the “usual

paradigm” for construing constitutional provisions

provides a reason to re-assess Hall’s suppression

holding. ............................................................................... 10

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. ........ 12

3. Additional factors further limit Hall’s “precedentialuse” and warrant its reconsideration................................... 19

a. Internal contradictions characterize the first

step in Hall’s methodology. ..................................... 19

b. Contradictions also characterize Hall’s second

step............................................................................ 21



B. Application of the appropriate paradigm shows that Hall is

wrong, and that the state’s proposed rule is correct.......................22

1. Because it authorizes all “reasonable” searches,

Article I, section 9’s text demonstrates that Hall is

wrong. ................................................................................. 23

2. Hall conflicts with this court’s case law describing

Article I, section 9’s exclusionary rule............................... 25

a. Suppression is not required to vindicate

defendant’s Article I, section 9 right to be free

from unreasonable searches...................................... 26

b. Suppression is also not required to vindicate

defendant’s right to be free from unreasonable

seizures. .................................................................... 28

C. Adopting the state’s proposed rule, and overturning Hall’s

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

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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

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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 Bouvier’s Law Dictionary at 424 (1856)..............................................24

Noah Webster,

An American Dictionary of the English Language (1830).......................24

iv



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 decision’s 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

here—the 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 defendant’s ability to freely

consent, and if the defendant’s 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 Hall’s 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. Defendant’s voluntary consent is significant because—as this court

consistently has explained—Article 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 person’s 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 court’s

denial of defendant’s motion to suppress. This court should reconsider and

reject Hall’s suppression holding. It should re-affirm that, because voluntary

consent to a search renders the search constitutional, evidence found during the

search is—for Article I, section 9 purposes—admissible.

Hall warrants re-assessment because the Hall majority ignored the three-

step “usual paradigm” for construing original provisions of the Oregon

Constitution: (1) The majority ignored Article I, section 9’s text, which

prohibits only “unreasonable” searches; (2) it ignored pertinent case law, by

overlooking this court’s 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

9’s focus on “reasonableness” and with the rationale behind its exclusionary



4

rule. Although Article I, section 9’s exclusionary rule authorizes suppression

only to “vindicate” constitutional rights, suppression here does not serve that

purpose. First, suppression cannot vindicate defendant’s 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 defendant’s right to be

free from unreasonable searches. In fact, suppression would essentially

diminish defendant’s rights, by rendering insignificant his voluntary decisions

to authorize searches of his person and property.

Second, suppression cannot vindicate defendant’s 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 defendant’s constitutional “position” with

respect to the discovered evidence. Both before and after the seizure, police

authority to search remained contingent on defendant’s 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

defendant’s 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 defendant’s ability to freely consent to a search, it cannot require

suppression. That rule is not only constitutionally correct but—when compared

to Hall’s multi-step burden-shifting methodology—simplifies the required

analysis, by merely requiring courts to apply the same “voluntariness” inquiry

that consent-search cases traditionally have required.

This court should overrule Hall’s suppression holding, and should hold

that the trial court correctly denied defendant’s 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 defendant’s 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, and—under Hall—would require suppression of the

discovered evidence.

A. Defendant consented to multiple searches, and those searchesuncovered methamphetamine and methamphetamine paraphernalia.

In response to 9-1-1 calls from defendant’s girlfriend, Sheriff’s Deputies

Orella and Russell drove to the girlfriend’s 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 defendant’s truck, “blocking the

truck’s 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 defendant’s 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 defendant’s 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 defendant’s 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 defendant’s 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



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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 defendant’s consents were

voluntary, the Court of Appeals held—under State v. Hall —that any

unlawful seizure that preceded the consents required suppression.

On appeal, defendant did not dispute that his consents were voluntary.

(Defendant’s App Br 2-3, 17-19). Nonetheless, the Court of Appeals reversed

defendant’s convictions. Hemenway, 232 Or App at 418. The court held, in

part, that the deputies may have seized defendant unlawfully—under Article I,

section 9, of the Oregon Constitution—by 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

Footnote continued…

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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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 Hall’s 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 defendant’s 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

(…continued)

unable to leave.” (Petition 2). The court granted defendant’s petition but asked

the parties “to focus their briefing on the issues raised in the state’s petition for

review,” and to address “the issues raised in defendant’s 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 defendant’s 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 whether—as the state contends—

defendant’s voluntary consents eliminated any basis for suppressing theevidence 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 defendant’s voluntary consents provided an independent,

and equal, basis to affirm the trial court’s judgment. The state’s brief thus does

not address the “seizure” issue, or ask this court to conclude that no seizure

occurred.



9

prior to consent would—under Hall—require 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 reconsider—and should abandon—that 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 party—unsurprisingly—must show that the holding is “incorrect.”

Id.

Under those criteria, this court should re-assess Hall’s suppression

holding. In doing so, this court should reaffirm that—because the touchstone of

Article I, section 9 is reasonableness—voluntary 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. Hall ’s suppression holding.

1. The Hall majority’s failure to apply the “usual paradigm” forconstruing constitutional provisions provides a reason to re-

assess Hall ’s suppression holding.

The “usual paradigm” for construing Article I, section 9—or any other

original Oregon Constitutional provision—is to discern the intent of the



11

provision’s 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

majority—as discussed below—did not follow those steps in construing Article

I, section 9. For that reason alone, this court should be willing to re-examine

Hall’s suppression holding.

First, the Hall majority’s suppression analysis failed to address Article I,

section 9’s 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 9’s 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 9’s text, and thus failed to adequately apply the

second step in the pertinent paradigm. The majority failed to acknowledge or

address case law—case law discussed later in this brief—that 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 Hall’s 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 9’s 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 Hall’s suppression

2 The Hall court did cite a number of this court’s prior decisions in

an effort to support its Article I, section 9 suppression holding. But asrecounted later in this brief, none of those decisions compelled the result that

Hall reached. Instead, this court’s 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.



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


3 The court applied Hall’s suppression holding in State v. Ayles, 348Or 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 Hall’s suppression

holding in either case.

4 Because this court has applied Hall’s 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 court’s longstanding reliance on Robertson, and its resulting

reluctance to abandon Robertson, stands in marked contrast to the court’s

minimal reliance on Hall’s suppression holding. See Ciancanelli, 339 Or at

290-91 (unlike Stranahan, “[t]he present case * * * involves a challenge not



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 defendant’s 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

approach”—in assessing whether evidence found during a later consent search

must be suppressed—is to “determine * * * whether [the] defendant’s 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

(…continued)

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

defendant’s 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 defendant’s 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 9’s 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) (officer’s violation of

ORS 810.410(3) required suppression of subsequently discovered evidence in

defendant’s 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) (officer’s violation of ORS 810.410(3), prior to defendant’s

consent to search, required suppression of evidence discovered during search)5;


5 Whether an officer’s 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



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 defendant’s 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 cited—State 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 Hall’s suppression holding. 317 Or at 39.

Indeed, Rodriguez itself neither ordered suppression of any evidence nor

(…continued)

subsequently-discovered evidence. The former inquiry requires assessment of

the drafters’ intent in adopting Article I, section 9, while the latter inquiryrequires assessment of the legislature’s 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

Quinn’s 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


6 Weaver cited Rodriguez for the proposition that “suppression of

evidence obtained during a consent search may be necessary to vindicate a

defendant’s 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 Rodriguez’s 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.

7 Moreover, nothing suggests that defendant chose or modified his

conduct in this case based on Hall’s suppression rule, or that other criminal

defendants have relied on Hall to choose particular courses of action. For that



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

defendant’s voluntary consents provide an independent, and equally valid, basis

for affirmance. This court’s ability to correct Hall’s analytical and legal

errors—and to redress the impact that Hall’s erroneous holding has on

voluntary-consent-search cases—will only diminish with time. That is, the

longer that the court chooses not to re-assess Hall’s 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 Hall’s

suppression holding in this case, whether or not the court addresses the Court of

Appeals’ seizure holding. This court should revisit Hall’s suppression holding

before it becomes more firmly entrenched.

(…continued)

reason also, “precedential use” considerations do not insulate Hall from re-assessment. 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 Hall ’s “precedential use” and

warrant its reconsideration.

Hall’s 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 holding’s “precedential use” are

considered, “overturning [it] will not unduly cloud or complicate the law”).

a. Internal contradictions characterize the first step in

Hall ’s methodology.

Internal contradictions plague both inquiries that Hall’s 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

defendant’s 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” showing—by

itself—might 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 defendant’s 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 650-

51 (Kistler, J., dissenting, joined by Balmer, J., and Linder, J.) (majority’s

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 Hall ’s 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, Hall’s

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 officer’s decision to seek consent is pertinent to Hall’s second

inquiry. See Hall, 339 Or at 35 (“[a] causal connection requiring suppression

may exist because the police sought the defendant’s 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 illegality’s effect on an officer’s

decision to seek consent is not pertinent to that inquiry. See Ayles, 348 Or at

630-31 (rejecting state’s 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 defendant’s identification”;

emphasis in original).

Hall’s description of the state’s 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 defendant’s free will,



22

significantly affected the defendant’s decision to consent.” 339 Or at 35. That

statement appears self-contradictory; if a defendant’s 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, Hall’s 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. Hall’s 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 state’s proposed rule is correct.

Once this court undertakes its re-assessment of Hall’s 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

defendant’s 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 defendant’s 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 9’s 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 Hall—in holding that

Article I, section 9 can require suppression of evidence found during a

voluntary-consent search—is incorrect.

As this court’s decisions reflect, police necessarily act “reasonably”—as

the Oregon Constitution’s drafters would have understood the term—if 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 9’s 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 Bouvier’s 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 consent’s 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 described—in light of the defendant’s

free-will choice to authorize it—as “just.” A search under those conditions

qualifies as “reasonable,” as Article I, section 9’s 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 9’s text, or with this court’s

case law construing the text.

2. Hall conflicts with this court’s case law describing Article I,

section 9’s 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, Hall’s

suppression holding directly conflicts with this court’s 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 defendant’s 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 government’s officers had stayed within the law’”);

Davis, 295 Or at 234 (the goal is “to preserve that person’s rights to the same



26

extent as if the government’s officers had stayed within the law”).

Consequently, if suppression’s 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 individual’s 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 defendant’s 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 court’s case law describing Article I, section 9’s exclusionary

rule. In that manner as well, the pertinent paradigm reflects that Hall is

incorrect.

a. Suppression is not required to vindicate defendant’s

Article I, section 9 right to be free from unreasonable

searches.

It is undisputed that defendant’s 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 “vindicate”—or give effect to—defendant’s

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 inquiry—which considers the effect of illegal police

conduct on the decision to consent—“fully vindicates the rights of the

defendant”).

Put differently, only if the unlawful seizure had negated defendant’s free

will, and had rendered consent involuntary, would it have altered defendant’s

constitutional “position” with respect to his right to be free from unreasonable

searches. Only under those circumstances—circumstances 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, Hall’s approach diminishes, rather than “vindicates,” a

defendant’s Article I, section 9 rights. In essence, Hall grants no legal or

practical significance to a defendant’s voluntary consent in cases like this.

Instead, Hall requires courts to pretend that a defendant—despite giving

“voluntary” consent—never possessed a meaningful choice to authorize or



28

forbid a search.8

Rather than “vindicating” a defendant’s Article I, section 9

rights, Hall renders a defendant’s 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 person’s 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 defendant’s

right to be free from unreasonable seizures.

Just as suppression is not required to vindicate defendant’s 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 occurred—it was contingent on

8 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

defendant’s 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 defendant’s 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 defendant’s pants, Article I, section 9’s 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 defendant’s 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 defendant’s 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” defendant’s right to be

free from unreasonable seizures. Because suppression is not needed to

vindicate any of defendant’s 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. Hall’s suppression holding is incorrect in that sense as well

and should be overruled.

C. Adopting the state’s proposed rule, and overturning Hall ’s

suppression holding, will clarify the law.

The state’s 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 circumstances—was 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 Hall’s suppression holding, the state’s proposed rule will

simplify the law rather than complicate it. That further suggests that the court



31

should replace Hall’s suppression holding with the state’s 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 state’s 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 defendant’s 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 defendant’s “knowledge of the illegality” may affect

voluntariness). Further, when police act unlawfully before seeking consent,

countless other factors might be present that—when all circumstances are

considered—undermine the state’s ability to show that consent was voluntary.

Under either the state’s 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 state’s 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 state’s proposed rule will simplify rather than cloud the law, this court

should substitute that rule for Hall’s suppression holding.

CONCLUSION

Article I, section 9’s text, along with pertinent case law, demonstrates

that this court should abandon State v. Hall’s 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, defendant’s right to be free from unreasonable searches. And

because the unlawful seizure neither uncovered the evidence in question nor



33

impaired defendant’s 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 Hall’s suppression holding, reverse the Court

of Appeals’ decision, and affirm the trial court’s judgment.

Respectfully submitted,

JOHN R. KROGER

Attorney General

MARY H. WILLIAMS

Solicitor General

/s/ Rolf C. Moan________________________________

ROLF C. MOAN #924077


[email protected]

Attorneys for Petitioner on Review

RCM:mlk/3006210



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


[email protected]

Attorney for Petitioner on Review

RCM:mlk/3006210

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