State v. Gabr

Motions to suppress rightfully made when evidence at trial is tainted by illegal search and seizure. Additionally, arguments materially altering the record may not be allowed at appeals when unpreserved below.

Defendant appealed the trial court’s denial of his motion to suppress evidence on the grounds that the police illegally expanded a traffic stop into a criminal investigation without reasonable suspicion, that continued questioning after finding no drugs was illegal, and alternatively, that the police’s initial questioning was not attenuated enough from defendant’s confession to make it admissible. Defendant was stopped by police for a traffic violation. Police stopped defendant after leaving a hotel where drug activity had been reported. The traffic stop expanded into a criminal investigation. No drugs were found. After the search, police questioned defendant and he confessed to solicitation. Defendant was convicted of commercial sexual solicitation. The State argued the confession was attenuated enough from the illegal stop to permit its admittance. The Court held that the evidence was tainted by illegal search and seizure under Article I, section 9 of the Oregon Constitution. Additionally, because the State’s argument was not made at trial, the Court found that regardless of whether or not the facts at trial would support the State’s new argument and whether the trial court’s ruling would be consistent with that argument, the record would not be materially the same had the State raised this argument at trial. The Court of Appeals therefore refused to acknowledge the attenuation argument as the record may have developed differently had it been made below. REVERSED and REMANDED.