State v. Benning

A violation of a defendant’s rights under Article I, section 9, of the Oregon Constitution requires an analysis using the Unger factors including temporal proximity; mitigating circumstances; intervening circumstances (without using the Dempster/Snyder rule, which is no longer good law); purpose and flagrancy of the unlawful police conduct; and the nature, extent, and severity of the constitutional violation.

Defendant was standing with another person, Jacobs, looking into a bag when an officer passed by, and both Defendant and Jacobs began to walk away. The officer called them over because he was suspicious of the bag and that they had walked away when they spotted the officer. Defendant and Jacobs complied, and Defendant stated he needed to use the bathroom. Rather than affirming Defendant had the right to leave, the officer did not respond to Defendant and asked Defendant and Jacobs for identification. The officer told Defendant and Jacobs to hang on, and proceeded to run a records check on Defendant while two other patrol vehicles arrived on the scene. The officer found that Defendant had an outstanding warrant and subsequently arrested and searched Defendant, finding methamphetamine in Defendant’s pocket. At trial, the court granted a motion to suppress the evidence and dismiss the case because the State did not prove the seizure was lawful or attenuation. The issue on appeal was whether the violation of Defendant’s rights under Article I, section 9, of the Oregon Constitution had a tenuous factual link to the disputed evidence such that the evidence must be suppressed, the proper analysis is to apply the exploitation analysis of the Unger test, including temporal proximity; mitigating circumstances; intervening circumstances (without using the Dempster/Snyder rule, which is no longer good law); purpose and flagrancy of the unlawful police conduct; and the nature, extent, and severity of the constitutional violation. The Court held, under the totality of the circumstances, the facts support suppression in this case because there was no extended temporal break that served to attenuate the factual link between the unlawful conduct and the disputed evidence, no mitigating circumstances were presented, the discovery and execution of the outstanding warrant was the direct result of the unlawful detention, and the purpose of the seizure was investigatory, intrusive, and not merely incidental to a later consent or other valid circumstances. Affirmed.