Defendant cross-assigns error to the trial court's denial of the motion pursuant to Article I, section 9. Given the state's concession that defendant was unlawfully seized without reasonable suspicion, the state had the burden under either constitutional provision to demonstrate that the evidence in question was βindependent of, or only tenuously related to, the illegal police conduct.β State v. Unger, 356 Or. 59, 84, 333 P.3d 1009 (2014); see State v. Bailey, 356 Or. 486, 508, 338 P.3d 702 (2014) (in a Fourth Amendment analysis, the state has the βburden to establish attenuationβ); State v. Jackson, 268 Or.App. 139, 151, 342 P.3d 119 (2014) (βWhenever the state has obtained evidence following the violation of a defendant's Article I, section 9 rights, it is presumed that the evidence was tainted and must be suppressed.β). Thus, the issue in this case is whether the state met its burden to establish attenuation.
That amendment provides, in part, that β[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.β As the Oregon Supreme Court has recognized, under the Fourth Amendment, βfor the duration of a traffic stop, a police officer effectively seizes βeveryone in the vehicle,β the driver and all passengers.β State v. Bailey, 356 Or. 486, 507, 338 P.3d 702 (2014) (quoting Arizona v. Johnson, 555 U.S. 323, 327, 129 S.Ct. 781, 172 L.Ed.2d 694 (2009) ; Brendlin v. California, 551 U.S. 249, 255, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007) ). Additionally, β[a]n officer may ask passengers questions during a traffic stop that are unrelated to a lawful purpose for the stop, but only if the inquiry does not measurably extend the stop.β Id.
268 Or.App. at 707 n. 2, 343 P.3d 272. Our Fourth Amendment attenuation analysis is governed by State v. Bailey, 356 Or. 486, 338 P.3d 702 (2014). In Bailey, the Oregon Supreme Court disavowed its holding in Dempster and applied a three-factor test to determine, under the Fourth Amendment, whether the causal connection between the unlawful seizure of the defendant and the subsequent discovery of evidence was sufficiently attenuated by the intervening discovery of an outstanding warrant so as to purge the taint of the illegality.
characterization of the warrant as a βcompellingβ or βextraordinaryβ intervening circumstance. See, e.g., McBath v. State, 108 P.3d 241, 248β49 (Alaska Ct.App.2005) ; People v. Brendlin, 45 Cal.4th 262, 85 Cal.Rptr.3d 496, 195 P.3d 1074, 1080 (2008) ; People v. Hillyard, 197 Colo. 83, 589 P.2d 939, 941 (1979) ; State v. Frierson, 926 So.2d 1139, 1144 (Fla.2006) ; State v. Cooper, 260 Ga.App. 333, 579 S.E.2d 754, 758 (2003) ; State v. Page, 140 Idaho 841, 103 P.3d 454, 460 (2004) ; Quinn v. State, 792 N.E.2d 597, 602 (Ind.Ct.App.2003) ; State v. Martin, 285 Kan. 994, 179 P.3d 457, 458β63 (2008) ; Hill, 725 So.2d at 1285 ; Cox v. State, 397 Md. 200, 916 A.2d 311, 323 (2007) ; People v. Reese, 281 Mich.App. 290, 761 N.W.2d 405, 412 (2008) ; State v. Grayson, 336 S.W.3d 138, 147 (Mo.2011) (en banc); State v. Thompson, 231 Neb. 771, 438 N.W.2d 131, 137 (1989) ; Jacobs v. State, 128 P.3d 1085, 1089 (Okla.Crim.App.2006) ; State v. Dempster, 248 Or. 404, 434 P.2d 746, 748 (1967) (abrogated by State v. Bailey, 356 Or. 486, 338 P.3d 702 (2014) ); Lewis v. State, 915 S.W.2d 51, 54 (Tex.Ct.App.1995).See also Page, 103 P.3d at 459 (finding attenuation in conjunction with a conclusion that police conduct was neither flagrant nor motivated by an improper purpose); Quinn, 792 N.E.2d at 602 (finding βno evidence suggesting any impropriety as the purpose for stopping Quinnβ).
--------On appeal, the state concedes that, under State v. Bailey, 356 Or. 486, 338 P.3d 702 (2014), and State v. Benning, 273 Or.App. 183, 359 P.3d 357 (2015), the trial court erred. In Bailey, the Supreme Court disavowed the per se rule from Dempster that the discovery and execution of a valid arrest warrant necessarily breaks the connection between a police illegality and discovery of evidence for Fourth Amendment purposes. 356 Or. at 488β89, 504, 338 P.3d 702.
268 Or App at 707 n 2.Our Fourth Amendment attenuation analysis is governed by State v. Bailey, 356 Or 486, 338 P3d 702 (2014). In Bailey, the Oregon Supreme Court disavowed its holding in Dempster and applied a three-factor test to determine, under the Fourth Amendment, whether the causal connection between the unlawful seizure of the defendant and the subsequent discovery of evidence was sufficiently attenuated by the intervening discovery of an outstanding warrant so as to purge the taint of the illegality.
However, after the trial court granted defendant's motion to suppress in this case, the Oregon Supreme Court disavowed its holding in Dempster, stating that βDempster'sper se rule is inconsistent with the subsequent development of the Fourth Amendment attenuation exception set out in Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), where the United States Supreme Court rejected such an approach.β State v. Bailey, 356 Or. 486, 488, 338 P.3d 702 (2014). Rather than applying Dempster'sper se rule of attenuation, the Oregon Supreme Court in Bailey applied Brown's three-factor test to determine, under the Fourth Amendment, whether the causal connection between the unlawful police conduct and the challenged evidence was sufficiently attenuated so as to purge the taint of the illegality.
Although the parties do not brief this point directly, numerous courts have held that seizure on an outstanding warrant discovered in the course of an otherwise unlawful arrest or detention is not a Fourth Amendment violation. United States v. Green, 111 F.3d 515, 521 (7th Cir. 1997) ("It would be startling to suggest that because the police illegally stopped an automobile, they cannot arrest an occupant who is found to be wanted on a warrant . . . ."); State v. Moralez, 297 Kan. 397, 415 (2013) ("[T]he preceding unlawful detention does not taint the lawful arrest on the outstanding warrant . . . ."); State v. Bailey, 356 Or. 486, 503-04 (2014) ("Where a person's identity is made known to the police during an unlawful detention, and he or she is determined to be the subject of a valid arrest warrant, the police may lawfully arrest the person . . . ."); People v. Murray, 312 Ill. App. 3d 685, 691-92 (2000) ("It would be illogical and nonsensical for us to hold that once the police illegally stop an automobile, they can never arrest an occupant who is found to be wanted on a warrant."); State v. Gardner, 2011-Ohio-5692, ΒΆ 33 aff'd 984 N.E.2d 1025 ("None of this means that a defendant cannot be arrested for the outstanding warrant simply because his name was discovered as a result of an unlawful stop.").
We recite the facts, and all reasonable inferences that they support, in the light most favorable to the trial court's denial of the motion to suppress. See State v. Bailey , 356 Or. 486, 489, 338 P.3d 702 (2014) (stating standard of review). The Oregon Humane Society received a report that defendant was abusing and neglecting her dog, Juno.
We recite the facts, and all reasonable inferences that they support, in the light most favorable to the trial court's denial of the motion to suppress. SeeState v. Bailey, 356 Or 486, 489, 338 P3d 702 (2014) (stating standard of review). The Oregon Humane Society received a report that defendant was abusing and neglecting her dog, Juno.