In the context of this case, that doctrine permitted the officers to seize evidence without a warrant if, in the course of executing this search warrant and while they were in a place where they had a right to be, they had probable cause to believe that evidence that they saw was either contraband or evidence of a crime. See State v. Sargent, 323 Or 455, 463 n 5, 918 P2d 819 (1996) (evidence of a crime in plain view); State v. Lippert, 317 Or 397, 403, 856 P2d 634 (1993) (contraband in plain view). The decision of the Court of Appeals is affirmed.

Moreover, as we understand Johnson , its analytic framework protects, and does not burden, a defendant's right to be free from the use of evidence obtained in violation of that constitutional provision. Before we decided Johnson , we had decided three cases addressing whether to suppress evidence obtained during a valid warranted search that was preceded by unlawful police conduct: State v. Hansen , 295 Or. 78, 664 P.2d 1095 (1983) ; State v. Sargent , 323 Or. 455, 918 P.2d 819 (1996) ; and Smith , 327 Or. 366, 963 P.2d 642. Those cases reflected an evolution from the use of federal, deterrence based-principles in Hansen to the use of vindication-of-rights principles in Smith that further the purpose of Article I, section 9.

Subsequent to Hansen and Nicholson, however, the Supreme Court appears to have abandoned the primary/derivative distinction. In State v. Sargent, 323 Or. 455, 918 P.2d 819 (1996), the officers "secured" a home while waiting for other officers to obtain a warrant. 323 Or at 459.

It is that exploitation of the prior police illegality that must be remedied to vindicate an individual's rights. See State v. Sargent, 323 Or. 455, 462–63, 918 P.2d 819 (1996) (suppression of evidence required only when the evidence is a product of the constitutional violation); State v. Williamson, 307 Or. 621, 626, 772 P.2d 404 (1989) (search not valid when consent is “obtained under the pressure of police action that became available to police only by the prior unauthorized conduct”).

Under Hansen, defendant argues, that evidence is subject to suppression. Defendant does acknowledge that, in a more recent case, State v. Sargent, 323 Or. 455, 918 P.2d 819 (1996), involving facts very similar to those in Hansen, this court reversed a suppression order on the ground that there was no logical connection between the unlawful securing of the residence and the discovery of what was, indisputably, primary evidence. He argues, however, that Sargent does not represent a change in the court's position — that the two cases are distinguishable factually and that they ultimately deal with different aspects of Article I, section 9.

Defendant responded that the police had not been required to obtain a separate search warrant because they lawfully had been in the home, the forgery-related evidence had been in plain view, and the incriminating nature of that evidence had been immediately apparent. See State v. Sargent, 323 Or 455, 463 n 5, 918 P2d 819 (1996) (noting that evidence is admissible under the "plain view" doctrine when intrusion is valid and it is immediately apparent that items are incriminating). Defendant further argued that, to the extent that the forgery-related evidence had not been in plain view, the officers discovered that evidence while searching for evidence within the scope of the warrant — i.e., documents related to the source or control of amphetamine or documents establishing the identity of persons present in the residence. Defendant contended that, as a result, the post-conviction court correctly determined that a trial court would have denied a motion to suppress and that petitioner's trial counsel either acted reasonably in failing to file such a motion or that petitioner suffered no prejudice as a result.

The state also indicated that it was prepared to present testimony that would establish that, even if the police had released the clothing to McDowell, they subsequently would have recovered the clothing from her. To the extent that it made that showing, the state argued, the evidence would be admissible under Murray v. United States, 487 U.S. 533, 108 S.Ct. 2529, 101 L.Ed.2d 472 (1988), State v. Smith, 327 Or. 366, 963 P.2d 642 (1998), and State v. Sargent, 323 Or. 455, 918 P.2d 819 (1996). Murray is the preeminent United States Supreme Court case dealing with the "independent source" theory; Smith and Sargent stand for the proposition that evidence that initially is seized unlawfully will not be suppressed if the unlawful seizure is causally unrelated to a later seizure pursuant to lawful warrant.

Accordingly, we remand to the trial court for it to make factual findings in the first instance. See State v. Carter , 200 Or.App. 262, 268, 113 P.3d 969 (2005), aff'd , 342 Or. 39, 147 P.3d 1151 (2006) (remanding to the trial court because "there remain[ed] issues of fact regarding whether the incriminating character of the evidence [was] ‘immediately apparent’ " as is required by the plain-view exception (quoting State v. Sargent , 323 Or. 455, 463 n. 5, 918 P.2d 819 (1996) )). We modify our opinion to vacate the judgment as to Counts 8 and 9, the convictions for the theft of the two signs.

Therefore, “[w]here [a] motion to suppress challenges evidence seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.” ORS 133.693(4) ; State v. Sargent, 323 Or. 455, 461, 918 P.2d 819 (1996) ; see also State v. Ordner, 252 Or.App. 444, 447, 287 P.3d 1256 (2012), rev. den., 353 Or. 280, 298 P.3d 30 (2013) (the state has the burden of proving the lawfulness of a warrantless traffic stop) (citing Sargent, 323 Or. at 461, 918 P.2d 819 ). Article I, section 9, provides, in pertinent part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]”

As pertinent here, the “plain view” exception to the warrant requirement allows an officer to seize an object without a warrant if the officer encounters the object in plain view, while in a place where the officer is entitled to be, and the incriminating character of that object is immediately apparent. State v. Currin, 258 Or.App. 715, 718–19, 311 P.3d 903 (2013); State v. Sargent, 323 Or. 455, 463 n. 5, 918 P.2d 819 (1996) (stating that “the intrusion must be valid and it must be immediately apparent that the items [seized] are crime evidence”). In this case, there is no dispute that, because defendant gave consent to the officer to enter her apartment, the officer observed the dog in plain view while in a place where he was entitled to be.