State v. Heater

Analysis for admissibility of evidence obtained after illegal police activity has been extended by recent decisions to include not only temporal proximity and mitigating circumstances, but also an analysis of the totality of the circumstances, including the nature of the illegal conduct and its purpose and flagrancy.

This case came on remand for reconsideration from the decision in State v. Heater by the Oregon Supreme Court in light of three recent decisions concerning the admissibility of evidence. The trial court denied Defendant's motion to suppress evidence derived from an unlawful seizure and Defendant entered a guilty plea for possession of methamphetamine (ORS 475.894), reserving the right to appeal the denial of Defendant's motion to suppress. Defendant appealed the denial, this Court previously held that the motion had been improperly denied, and remanded.

The State appealed to the Oregon Supreme Court, which vacated and remanded in light of three recent opinions: Unger, Musser, and Lorenzo. These opinions added new factors to the analysis of the legality of evidence following unlawful police conduct. In addition to temporal proximity and mitigating circumstances, the court must now consider the totality of the circumstances, including the nature of the illegal conduct and its "purpose and flagrancy".

The State argued on remand that the illegal police conduct did not significantly affect Defendant's decision to consent to the search. The Court held that because the State argued at the suppression hearing that there was no illegal police conduct at all, the trial court did not consider whether police illegality affected Defendant's decision to consent. The court held that the record could have developed differently if the State had made these arguments at trial, and therefore would not consider this alternative basis for affirmance on appeal.

Reversed and remanded.