State v. Wiggins

If a dog sniff produces incriminating evidence, that would not have happened but for an unlawful search, it is the unattenuated product of that illegality and should be suppressed.

Defendant appeals the resulting judgment of a conditional plea of no contest under ORS 135.353(3), possession of methamphetamine. Defendant argues that the trial court erred in denying her motion to suppress the evidence. A police officer performed a search of defendant’s car because he thought he had probable cause, based on eight circumstances the officer had taken into account and the behavior of his narcotics detection police canine. On appeal, defendant argues that the issues the trial court did not address are dispositive in granting her motion to suppress the evidence, that is (1) whether defendant was stopped, (2) if there was a stop was it supported by reasonable suspicion, and (3) if the stop was unlawful, was there a causal “but for” connection between that illegality and the evidence defendant seeks to suppress. The Court held there was a stop because it was a necessary precondition of the dog sniff, and the stop was unlawful because the circumstances the officer took into account before conducting a search did not take into account “the person’s conduct” and his inferences were not reasonable. Therefore, there was no reasonable suspicion. As a result, but for the unlawful search, the dog sniff would not have happened, thus it is the unattenuated product of that illegality. The trial court erred in denying defendant’s motion to suppress. Reversed and Remanded.