S056577, Opinion — State v. Ayles

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OCR transcription for search; preserved printed pages are authoritative

Argued and submitted May 13, 2009, decision of Court of Appeals affirmed;
judgment of circuit court reversed, and case remanded to circuit court for
further proceedings August 12, 2010

STATE OF OREGON,
Petitioner on Review,
v.
ERIN ALBERT AYLES,
Respondent on Review.
(CC 051228; CA A132029; SC S056577)
237 P3d 805

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CJS, Criminal Law § 877.

# En Banc

On review from the Court of Appeals .*

\* Appeal from the Clatsop County Circuit Court, Henry R. Dickerson, Jr.,
Senior Judge. 220 Or App 606, 188 P3d 378 (2008).

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Janet A. Metcalf, Assistant Attorney General, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief were John R. Kroger, Attorney General,
and Rolf C. Moan, Acting Solicitor General.

David Ferry, Deputy Public Defender, Salem, argued the
cause and filed the brief for respondent on review. With him
on the brief was Peter Gartlan, Chief Defender, Office of
Public Defense Services.

GILLETTE, J.

The decision of the Court of Appeals is affirmed. The judg-
ment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

Durham, J., concurred and filed an opinion.

Kistler, J., dissented and filed an opinion, in which
Balmer and Linder, JJ., joined.

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## GILLETTE, J.

In this criminal case, a police officer unlawfully
detained defendant, a passenger in a car that the officer law-
fully had stopped for a traffic violation, and then sought and
obtained defendant's consent to search his person. The case
requires us to consider whether defendant established a min-
imal factual link between the illegal detention and his con-
sent to a search of his person during that illegal detention. If
he did establish the required link, then the burden shifted to
the state to demonstrate that contraband seized during that
search was not obtained as a result of an exploitation of the
illegal detention. The case presents a further question: Must
evidence found and incriminating statements made after
defendant was arrested and advised of his rights under
Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d
694 (1966), be suppressed because they also were the product
of the preceding illegal detention? We hold that defendant
has shown the required minimal factual connection between
the illegal detention and his consent. We also hold that the
later administration of Miranda warnings did not suffi-
ciently attenuate the taint of the illegal detention to permit
this court to conclude that the defendant's subsequent
incriminating statements, and the evidence found as a result
of those statements, were not the product of the prior illegal-
ity. We therefore affirm the decision of the Court of Appeals,
State v. Ayles, 220 Or App 606, 188 P3d 378 (2008), to that
effect.

The following facts are undisputed. On June 7, 2005,
at 9:47 a.m., state police trooper Hunt observed a car driving
67 miles per hour in 55 miles-per-hour zone on Highway 26.
He also noticed that the car did not have a front license plate.
Hunt stopped the car for the two violations. The stop
occurred some 15 miles east of Seaside, Oregon, and about
two miles from the nearest gas station-convenience store.
The area was wooded and there were no residences nearby.
Hunt approached the driver and noticed that she appeared to
be under the influence of methamphetamine. Defendant was
sitting in the front passenger seat. Three other people were
sitting in the back seat of the car.

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Hunt explained to the driver why he had stopped the
car. When Hunt then asked the driver if there was any meth-
amphetamine in the car, defendant interrupted, asking the
trooper how to rectify the license plate situation so that they
could avoid being stopped again. Hunt answered defendant's
question. Although defendant had not done anything to
cause Hunt to believe that defendant had committed a crime,
Hunt found it suspicious that defendant had spoken up while
Hunt was questioning the driver about methamphetamine.
Hunt's suspicions also were aroused by defendant's
demeanor, which Hunt described as "over friendly."

Hunt asked defendant for his identification. Defen-
dant handed Hunt a Department of Veterans' Affairs identi-
fication card. Hunt took it and put it in his patrol car. He then
had the driver get out of the car and told her that he sus-
pected that she was under the influence of methampheta-
mine. He patted her down, did not find weapons or contra-
band, and told her to sit on the rear bumper of her car. He
returned to the patrol car and ran a computer check on defen-
dant and the driver. That check did not reveal anything of
interest. Nonetheless, Hunt continued to retain defendant's
identification.

Hunt returned to the car and asked defendant to
step out. Defendant did so. Hunt asked defendant if he had
any weapons, and defendant replied that he did not. Hunt
then asked defendant for consent to pat him down, which
defendant gave. Hunt had defendant interlace his fingers
and put them to the back of his neck, and then Hunt put one
hand on defendant's hands in preparation for the patdown.
From his vantage point at that moment, Hunt could see down
into defendant's right breast pocket, where he observed an
unlabeled prescription pill bottle that contained something
wrapped in plastic. From Hunt's training and experience, he
believed that the pill bottle contained illegal drugs. He took
the bottle out of defendant's pocket and asked defendant, "Is
that the meth?" Defendant admitted that it was. Hunt
arrested defendant, handcuffed him, advised defendant of his
Miranda rights, searched him more thoroughly, and placed
him in the back seat of the patrol car.

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Hunt then conducted field sobriety tests on the
driver and arrested her for driving under the influence of
intoxicants. He asked the three remaining passengers to step
out of the car. As they were getting out, one of the passengers
told Hunt that there was a blue backpack in the car that
belonged to defendant. Hunt then went back to the patrol car
and asked defendant to step out again. He asked defendant if
the backpack was his, and defendant admitted that it was.
Hunt then asked defendant if there was any additional meth-
amphetamine in the backpack; defendant replied that there
was and described in detail what Hunt would find in the
backpack. Hunt searched the backpack and found the meth-
amphetamine as defendant described, as well as other drug
paraphernalia.

Defendant was charged with possession and manu-
facture/delivery of methamphetamine. Before trial, he moved
to suppress all of his statements and the evidence obtained
after Hunt took his identification. He argued that he was
seized in violation of Article I, section 9, of the Oregon
Constitution, when Hunt took and retained his identifica-
tion, because Hunt had no reasonable suspicion at that time
that defendant either had committed a crime or posed a
threat to Hunt's safety. The trial court denied the motion.
The court ruled that defendant was not illegally seized when
Hunt took defendant's identification. In light of that ruling,
the trial court concluded that defendant's consent to search
his person was voluntary, his subsequent arrest was lawful,
and the statements that he made after receiving Miranda
warnings also were voluntary.1 The trial court then con-
ducted a stipulated facts trial and convicted defendant of the
possession offense.

Defendant appealed his conviction to the Court of
Appeals, assigning error to the trial court's denial of his

I The trial court noted, however, that, if the taking and retaining of defendant's
identification were considered an illegal detention, then suppression would have
been required because, the trial court found,

"[d]efendant's identification was held during the stop where a reasonable per-
son would not feel free to leave. The consent for search was in close proximity
to obtaining defendant's identification and asking him to exit. The state did not
produce any evidence regarding inevitable discovery, independent discovery or
a tenuous factual link that would still allow the search."

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motion to suppress. In the Court of Appeals, the state con-
ceded that the taking and retaining of defendant's identifi-
cation amounted to an unlawful seizure under Article I, sec-
tion 9, of the Oregon Constitution. The Court of Appeals
accepted that concession as well founded and held that the
trial court erred in ruling to the contrary. Ayles, 220 Or App
at 611.

The court then turned to the state's arguments that
defendant's consent to search was not the result of an exploi-
tation of the unlawful seizure, and that the giving of Miranda
warnings attenuated the taint of the preceding unlawful
police conduct. Id. The court quoted a statement from this
court's opinion in State v. Hall, 339 Or 7, 115 P3d 908 (2005),
explaining that a defendant who seeks suppression of evi-
dence obtained from a consensual search on the ground that
the search was the product of illegal police conduct bears an
initial burden to show a " 'minimal factual nexus between the
unlawful police conduct and the defendant's consent.' " Ayles,
220 Or App at 611-12 (quoting Hall, 339 Or at 34-35). Under
Hall, if the defendant has met that burden, then the burden
shifts to the state to prove "that the defendant's consent was
independent of, or only tenuously related to, the unlawful
police conduct." 339 Or at 35. The state argued that defen-
dant had failed to make the initial showing required of him in
this case. The Court of Appeals rejected that argument, hold-
ing that there was a minimal factual nexus between the ille-
gal taking and retaining of defendant's identification and the
ultimate discovery of contraband. The court then went on to
hold that the state had failed to "demonstrate[ ] the existence
of any intervening circumstances or other factors that might
mitigate the effect of the illegal detention of defendant."
Ayles, 220 Or App at 613. Finally, the Court of Appeals con-
cluded that the evidence found in defendant's backpack after
he had been handcuffed, arrested, and advised of his rights
under Miranda also should have been suppressed because, in
this case, the Miranda warnings were not a sufficient inter-
vening circumstance to purge the taint of the previous illegal
police conduct. Id. at 616. Accordingly, the Court of Appeals
reversed the judgment of the trial court.

The state seeks review of that decision. The state
contends that the Court of Appeals erroneously concluded

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that there was a minimal factual nexus between defendant's
consent to search and the prior illegal police conduct simply
because the illegal police conduct preceded the giving of con-
sent and the making of statements. The state asserts that
defendant was detained not just as a legal matter, by the tak-
ing and retaining of his identification, but also as a factual
matter, by the lawful stop, in a remote location, of the car in
which he was riding. According to the state, the factual con-
siderations trump the legal ones: Because, as a practical mat-
ter, defendant could not have left the scene, Hunt's request
for consent to search defendant was causally unrelated to the
unlawful police conduct.

Before we begin our analysis of the legal issues pre-
sented in this case, we pause to observe how limited the state,
as petitioner here, has chosen to make them. First, the state
has not asked this court to reconsider Hall. Second, the state
does not argue that the Court of Appeals was wrong to con-
clude that the state had not met its burden to show that the
consent would have occurred independent of the illegality or
that the connection between the unlawful stop and the con-
sent was attenuated. Rather, as the state has presented the
case to this court, the only issues are whether (1) defendant
met his initial burden to show a minimal factual nexus
between the unlawful police conduct and his consent to
search, and whether (2) the giving of Miranda warnings was
a sufficient intervening circumstance, standing alone, to mit-
igate the taint of the preceding unlawful police conduct on
defendant's later statements about the evidence in the back-
pack. We turn to those issues.

As the state has acknowledged, defendant was seized
in violation of Article I, section 9, of the Oregon
Constitution, when Hunt took and retained defendant's iden-
tification without reasonable suspicion of criminal activity.
Defendant consented to the search of his person during that
illegal seizure.2 That consent was voluntary, i.e., there is no
evidence in the record that defendant's free will was over-
come by the illegal police conduct. See Hall, 339 Or at 20-21

2 This, therefore, is not a case in which the unlawful police conduct merely
"preceded" defendant's giving of consent. The record is clear that the unlawful
detention here was ongoing-Hunt continued to retain defendant's identification-
when defendant gave his consent to the search.

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(suggesting distinction between two ways in which violation
of defendant's rights under Article I, section 9, may affect
validity of defendant's consent to search-situations in which
police conduct renders defendant's consent involuntary, and
situations where consent is voluntary, that is, the illegal
police conduct does not rise to level of overcoming defendant's
free will, but nevertheless affects defendant's decision to con-
sent). That is, even when consent is voluntary as a matter of
"free will," evidence obtained as a result of the ensuing search
is not admissible unless the state also can "prove that the
consent was independent of, or only tenuously related to, any
preceding violation of the defendant's rights under Article I,
section 9." Hall, 339 Or at 27.

As noted above, in Hall, the court described a para-
digm for analyzing the effect of an illegal detention on the
admissibility of evidence obtained from a subsequent "con-
sensual" search:

"After a defendant shows a minimal factual nexus between
unlawful police conduct and the defendant's consent, then
the state has the burden to prove that the defendant's con-
sent was independent of, or only tenuously related to, the
unlawful police conduct. Deciding whether the state has
satisfied that burden requires a fact-specific inquiry into
the totality of the circumstances to determine the nature of
the causal connection between the unlawful police conduct
and the defendant's consent. * * * Although determining
the existence of such a causal connection requires exami-
nation of the specific facts at issue in a particular case, we
view several considerations to be relevant to that determi-
nation, including (1) the temporal proximity between the
unlawful police conduct and the defendant's consent, (2) the
existence of any intervening circumstances, and (3) the
presence of any circumstances-such as, for example, a
police officer informing the defendant of the right to refuse
consent-that mitigated the effect of the unlawful police
conduct."

Id. at 34-35. And, as noted above, this case requires us only to
examine what is required for the defendant to establish the
"minimal factual nexus" that is mentioned in the first sen-
tence of the foregoing paragraph.3

3 It is important to emphasize again that we need not determine whether the
state has met its burden to show that there is no causal connection between the

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The state argues that, in this case, defendant has not
proved that there was any factual nexus, even a minimal one,
"between the illegal stop-the taking and retaining of defen-
dant's identification-and the trooper's request for consent to
pat down defendant," because (1) defendant was a passenger
in a car that was lawfully stopped in a remote location when
the officer asked defendant for that consent, and (2) accord-
ing to the state, there was evidence in the record that Hunt
would have asked defendant for consent to search him even if
Hunt had not asked defendant for identification. And, the
state argues, "if the only preceding illegality-the taking and
retaining of defendant's identification-was not causally
related to the trooper's request for defendant's consent to a
patdown, then there was no taint to purge." As the state
stresses, " [b]ut for' causation may require only a 'minimal
factual nexus,' Hall, 339 Or at 25, but it is not devoid of all
meaning and it is not the equivalent of post hoc ergo propter
hoc[.]"

There are two problems with the state's argument.
First, it misunderstands the Hall analysis. Second, it mis-
understands the undisputed facts of the encounter. With
respect to the first point, Hall requires the defendant to

preceding illegality and defendant's consent that would require suppression of the
evidence found as a result of the ensuing search. That is so because the state did
not argue below, and does not argue in this court, that, if defendant had not estab-
lished the requisite minimal factual nexus, the state did or could meet its burden to
prove that defendant's consent (and the consequent discovery of the prescription
pill bottle containing methamphetamine) was independent of, or only tenuously
related to, the unlawful police conduct. As noted, the trial court observed that
"[t]he state did not produce any evidence regarding inevitable discovery, independ-
ent discovery or a tenuous factual link that would still allow the search." 348 Or at
626 n 1. The state has never challenged that observation.

The dissent does not acknowledge this posture of the case. The dissent states:
"As a matter of causation, two independent causes prevented defendant
from leaving. One was lawful; the other was not. Under those circumstances,
any causal connection between the retention of defendant's identification card
and his voluntary consent to the patdown search was so faint that defendant's
voluntary consent was sufficient to break the causal chain."

348 Or at 646 (Kistler, J., dissenting). The dissent then goes on to explain why, in
its view, the state had met its burden to prove attenuation with respect to the con-
sent to the patdown search. The problem with the foregoing, of course, is that it
purports to explain why the state should prevail here, when the state did not argue
the dissent's theory either to this court or to the Court of Appeals. The state is the
petitioner here. It must live with what it has raised and argued-a small enough
requirement, but one from which the dissent is not entitled to relieve it.

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establish a "minimal factual nexus between unlawful police
conduct and the defendant's consent," not the police officer's
request for consent. That is, the focus of the factual nexus
determination is not on whether Hunt's decision to ask defen-
dant for consent was caused by his taking of defendant's
identification; rather, it is on whether defendant would have
consented to the search that uncovered the evidence if the
officer had not unlawfully seized him. The second problem
with the state's theory lies in its assertion that the only fac-
tual nexus that defendant has shown is that the unlawful
police conduct preceded his consent. As noted, however, the
illegal seizure did not simply precede the consent-
it was ongoing at the time defendant gave his consent to the
search; therefore, the two events were not just in close "tem-
poral proximity," Hall, 339 Or at 35, but were occurring
simultaneously.

When we apply the law, properly understood, to the
facts of the case, we conclude that defendant met his burden
to establish a minimal factual nexus between the illegal
police conduct and his consent to search. During defendant's
unlawful seizure, defendant was not free to leave. The unlaw-
ful police conduct thus made defendant available to Hunt for
questioning. Although the state asserts that, as a practical
matter, defendant would have remained at the scene regard-
less of the illegal seizure (because his driver had been law-
fully stopped and the location of the stop was somewhat
remote), the state has pointed to no evidence in the record
that defendant would not have left had he not been illegally
detained. Indeed, the state's only argument on that point is
that the nearest convenience store was about two miles away
and the stop of the driver occurred 15 miles east of Seaside.
Those facts alone do not establish that it would have been
impossible, or even extremely difficult, for defendant to leave
the scene. But our point is an even more fundamental one:
Whether or not defendant would have asserted his personal
liberty and left the scene once his identification was returned
to him, we cannot conclude that the illegal seizure of defen-
dant, while it was ongoing, had no factual nexus to defen-
dant's decision to consent. A defendant gains nothing from
having a constitutional right not to be seized if the police can
seize him and-by definition-use the circumstance of that

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seizure as a guarantee of an opportunity to ask him to further
surrender his liberty. There was a minimal factual nexus
between defendant's illegal seizure and his decision to
consent.

This court's recent decision in State v. Thompkin,
341 Or 368, 143 P3d 530 (2006), provides strong support for
that conclusion. In Thompkin, a police officer requested and
retained the defendant's identification during a lawful stop of
the car in which defendant was a passenger. At that time, the
officer did not have either a reasonable suspicion of criminal
activity on the defendant's part or a concern for the officer's
own safety. While the defendant was seized, an officer asked
the defendant if she had any drugs or weapons on her person.
In response, the defendant handed the officer a crack pipe.
The officer then asked the defendant if she would consent to
a search of her person. Defendant responded by getting out of
the car and complying with the request to search. The ensu-
ing search revealed a rock of crack cocaine.

This court held that the defendant had been unlaw-
fully seized for purposes of Article I, section 9, of the Oregon
Constitution, when the officer took and retained her identifi-
cation without either reasonable suspicion of criminal activ-
ity or of a threat to his safety. Id. at 379. It then turned to the
question whether suppression of the evidence obtained dur-
ing that illegal seizure was required. The court began by set-
ting out the Hall analysis to be used in situations such as
these, then emphasized that,

"[o]nce a defendant demonstrates a minimal factual nexus
between prior, unlawful police conduct and the evidence
sought to be suppressed, deciding whether the state has
carried its burden requires a fact-specific inquiry into the
totality of the circumstances."

Thompkin, 341 Or at 380. The court acknowledged that, in
Hall and the cases that Hall relied on, the defendants con-
sented to be searched during an unlawful seizure, whereas in
Thompkin, the defendant directly surrendered incriminating
evidence in response to police questioning during an unlaw-
ful seizure-but the court held that those slight factual dif-
ferences were of no constitutional moment. Thus, the court
held, because of the close temporal proximity between the

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illegal seizure of the defendant and her surrender of the
crack pipe, as well as the absence of any intervening circum-
stances attenuating the effects of the unlawful police con-
duct, "the state failed to prove that [the] defendant's decision
to surrender incriminating evidence, even if voluntary, was
not the product of the preceding violation of her rights under
Article I, section 9." Id. at 381. It followed, the court held, that
the evidence obtained during the unlawful seizure had to be
suppressed. Id.

The state points out that the court in Thompkin did
not expressly find that the defendant there had established a
"minimal factual nexus" between the unlawful police conduct
and her surrender of incriminating evidence in response to
police questioning; rather, the court appeared to have
assumed such a connection without considering the matter.
And, the state suggests, had the court properly considered
the question, it would have concluded that, as here, there was
no causal connection between the unlawful seizure and the
defendant's subsequent incriminating action.

We disagree. It is true that, in certain of this court's
cases, including Thompkin and even Hall itself, the court has
not expressly found the existence of a minimal factual con-
nection between illegal police conduct and a defendant's deci-
sion to consent. Rather, the court in those cases appears to
have assumed without discussion that the defendant had
met that initial burden by establishing that the defendant
had consented to a search during an illegal seizure. The court
merely stated the requirement of a minimal factual nexus
and then proceeded immediately to an examination of
whether the state had met its burden to prove that the con-
nection was too tenuous to require suppression.

On the other hand, the state has cited no case, and
our research discloses none, in which a court has found the
absence of a minimal factual nexus between an unlawful sei-
zure that is ongoing and a defendant's decision to consent to
an officer's request to search. We think that the reason both
that the court sometimes assumes without discussion that a
defendant has shown the required nexus when consent
occurs during an ongoing seizure and that no case exists

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holding that there is no minimum connection in such circum-
stances is that the existence of a minimal factual nexus is
obvious in cases in which the defendant consents to a search
(or takes other incriminating action) during an illegal sei-
zure. That conclusion is reflected in this court's recent deci-
sion in State v. Rodgers / Kirkeby, 347 Or 610, 227 P3d 695
(2010). In that case, without any discussion or explanation,
this court expressly concluded that the defendants in that
case "ha[d] shown the required nexus" by showing that they
consented to be searched during a period of unlawful deten-
tion. Id. at 629-30.

To summarize, then, we agree with the state that the
"minimal factual nexus" standard is a true standard, not a
resort to the logical fallacy, "post hoc ergo propter hoc." How-
ever, a defendant establishes a more substantial connection
than merely one thing occurring after another when that
defendant establishes that he or she consented to a search
during an unlawful detention. In such a circumstance, the
fact that the defendant is not legally free to leave because of
the illegal police activity cannot be discounted in motivating
the defendant's consent and, therefore, such illegal police
conduct normally will be at least minimally connected to the
defendant's decision to consent.4 We hold that this is such a
"normal" case-i.e., defendant in this case met his initial bur-
den, thereby shifting the burden to the state to prove that the
evidence obtained did not derive from exploitation of the
unlawful police conduct. As noted, the posture of this case
makes that remaining inquiry a narrow one. The state has
not argued that it did or could meet its burden to prove that
defendant's consent to search was independent of, or only
tenuously related to, Hunt's unlawful seizure of defendant in
violation of Article I, section 9, of the Oregon Constitution.
Therefore, as the Court of Appeals correctly concluded, the
trial court should have suppressed the evidence found in the
ensuing search-viz., the prescription pill bottle containing
methamphetamine.

4 We say "normally," because this is not a per se rule. Among many other sce-
narios, it is always possible that the state will be able to produce, for example, an
admission by defendant to some other person to the effect that he would have
remained at the scene or consented in any event.

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We turn to the second part of the state's argument-
that, after defendant was given Miranda warnings, the
incriminating statements that he made, and the evidence
eventually found in his backpack, were admissible notwith-
standing the prior illegality. The state asserts:

"In the state's view, the giving of Miranda warnings always
suffices to break the chain between a prior illegality and
post-Miranda admissions or statements. Even if that is not
true, at a minimum the giving of the warnings is an
extremely strong indicator that post-Miranda statements
were not obtained through exploitation of the prior
illegality."

The state also argues that, in holding that the Miranda
warnings did not attenuate the taint of the preceding illegal-
ity, the Court of Appeals improperly minimized the effect of
those warnings in this case. In fact, according to the state, the
Court of Appeals went so far as to suggest that the giving of
Miranda warnings itself has a coercive effect that negates
the voluntariness of the subsequent statements, when the
court stated that the warnings

" 'could perpetuate the person's perception that his or her
liberty continued to be restrained as the officer pursued a
criminal investigation by seeking consent to a search.'"

Ayles, 220 Or App at 614 (quoting State v. La France, 219 Or
App 548, 557, 184 P3d 1169 (2008)). On the contrary, the
state notes, this court stated in Thompkin that Miranda
warnings could, in fact, be an intervening circumstance ade-
quate to break the causal chain between the defendant's
statements and the prior illegality. See Thompkin, 341 Or at
380 (so stating). The state then concludes that where (as it
characterizes the situation), "the prior illegality amounted
only to taking and retaining defendant's identification[,]
\* \* the [later] giving of Miranda warnings, followed by
defendant's admission that more methamphetamine was in
his backpack, served to dissipate the taint of the illegal
proceeding."

We agree with the state that the Court of Appeals'
statement creates an incorrect impression: The giving of the
warnings, which is intended to assure voluntariness, cannot
be used in the way that the Court of Appeals used it to prove

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a contrary theory. To be sure, it is clear from context that the
Court of Appeals was not talking specifically about coercion
or the voluntariness of post-Miranda statements at all.
Rather, the court merely made the observation that, in the
"totality of the circumstances" surrounding a defendant's
consent to search during an ongoing unlawful seizure, the
Miranda warnings themselves could have an effect on a
defendant's feeling that his liberty was being restrained and,
therefore, on his consequent decision to consent. We think,
however, that the court's statement is too prone to misinter-
pretation, and therefore should not be used in this way again.

We return to the central issue. As with defendant's
consent to search, defendant concedes that the statements
that he made in response to Hunt's questions after Hunt
administered the Miranda warnings were voluntary-that
is, they were not actually coerced by police conduct that over-
came his free will. Nonetheless, like the evidence found after
defendant's consent to search, those statements, and the
methamphetamine and related paraphernalia found as a
result of those statements, are inadmissible unless the state
can demonstrate that the statements and evidence did not
derive from the preceding illegal seizure of defendant's per-
son.5 Again, Hall provides the paradigm for our analysis of
whether the state has met that burden. For convenience, we
repeat that paradigm here:

"Deciding whether the state has satisfied that burden
requires a fact-specific inquiry into the totality of the cir-
cumstances to determine the nature of the causal connec-
tion between the unlawful police conduct and the defen-
dant's consent. * * * Although determining the existence of

5 As we held in the first part of this opinion, defendant met his initial burden to
establish a minimal factual nexus between the illegal police conduct and his deci-
sion to consent to the first patdown of his person. The burden then shifted to the
state to prove that all of defendant's subsequent statements, including his later
consent to the search of his backpack, and the evidence discovered as a result of
those statements, including the drugs and paraphernalia found in the backpack,
did not derive from exploitation of the illegal seizure of his person. As noted, the
state did not argue that it had met its burden with respect to the evidence found in
the search of defendant's person. However, the state does argue that defendant's
consent to the search of his backpack was so attenuated from the initial illegal
police conduct that the evidence found therein should not be suppressed.

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such a causal connection requires examination of the spe-
cific facts at issue in a particular case, we view several con-
siderations to be relevant to that determination, including
(1) the temporal proximity between the unlawful police con-
duct and the defendant's consent, (2) the existence of any
intervening circumstances, and (3) the presence of any cir-
cumstances-such as, for example, a police officer inform-
ing the defendant of the right to refuse consent-that miti-
gated the effect of the unlawful police conduct."

339 Or at 35. As noted, the state argues that the giving of
Miranda warnings was an "intervening circumstance" suffi-
cient to attenuate any taint from Hunt's unlawful conduct in
taking and retaining defendant's identification.

Hall requires us to conduct a "fact-specific inquiry
into the totality of the circumstances to determine the nature
of the causal connection between the unlawful police con-
duct" and the statements and evidence that defendant asks
be suppressed. In this case, that totality of the circumstances
includes the fact that Hunt gave defendant the Miranda
warnings after Hunt arrested defendant for possessing the
prescription pill bottle containing methamphetamine. That
arrest was unlawful because it was based on evidence found
in an unlawful search of defendant's person. Moreover, after
defendant's arrest, and at the time that Hunt asked defen-
dant about the backpack, defendant was handcuffed and in
custody in the back of a patrol car. Hunt's questions per-
tained to defendant's possession of additional quantities of
the same drug that he had already been arrested for possess-
ing, and, at the time of the questioning, Hunt was holding the
backpack that contained those drugs. Those facts all suggest
that the initial unlawful police conduct-the unconstitu-
tional seizure of defendant's person-affected defendant's
actions from his initial consent to be searched through the
time that he responded to Hunt's questions about the back-
pack. That is, the "temporal proximity" factor plainly weighs
in defendant's favor.

The question then is whether, notwithstanding
those ongoing effects of the prior illegality, the state has met
its burden to show that the Miranda warnings alone (the
state has pointed to nothing else) were sufficient to ensure
that the unlawful police conduct did not affect, or had only a

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tenuous connection to, defendant's responses to Hunt's ques-
tions or the later discovery of the methamphetamine in the
backpack. This court considered a very similar question in
State v. Olson, 287 Or 157, 598 P2d 670 (1979). In that case,
the police had probable cause to arrest defendant for bur-
glary. They went to his house late in the evening and knocked
and announced their presence. After receiving no response,
the officers opened the defendant's door, entered his house,
and found the defendant in bed with his girlfriend. They then
searched the house without a warrant and, finding some
items taken in the burglary, arrested the defendant and
advised him of his Miranda rights. The defendant subse-
quently confessed. In deciding that the defendant's state-
ments must be suppressed, the court stated,

"The burden is also upon the state to prove that despite the
illegal entry, arrest and search, the incriminating state-
ments and ultimate confession were acts of defendant's free
will and that the primary taint of illegality was thus
purged. It can be contended that the receiving of the
Miranda warning by defendant was such an intervening
circumstance indicating voluntariness. In Brown v. Illinois,
422 US 590, 602, 95 S Ct 2254, 45 L Ed 2d 416 (1975), as
here, incriminating statements were made almost immedi-
ately upon defendant's arrest followed shortly by a more
detailed statement of the crime. There the Court sup-
pressed the statements, which it found to be the product of
an invalid arrest and search, even though given after a
Miranda warning. Such a warning is evidence which may
be considered in deciding whether a statement or a confes-
sion was unaffected by an illegal arrest and search. That
decision is dependent upon all the circumstances, and we
believe that in the present case the warning is inadequate
to relieve the obvious taint resulting from breaking in,
arresting defendant, and searching the premises."

Olson, 287 Or at 166.

We think that here, as in Olson, the Miranda warn-
ing is "inadequate to relieve the obvious taint" of the unlaw-
ful police conduct. Given that defendant's illegal seizure led
to an illegal search of defendant's person that revealed defen-
dant's possession of a controlled substance and that that dis-
covery, in turn, led to defendant's arrest (which triggered the
giving of the Miranda warnings), it is impossible to conclude

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that the Miranda warnings alone were adequate to break the
causal chain between the illegal police conduct and the sub-
sequent incriminating statements and discovery of evidence.
The Court of Appeals correctly held that the trial court
should have suppressed defendant's statements in response
to Hunt's questions along with the evidence found in defen-
dant's backpack.

The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.

DURHAM, J., concurring.

I join the majority's answer to the narrow issues that
it decides in this case. However, I do not join much of the rea-
soning that the majority uses to arrive at its answer, and I
write separately to explain the basis for this concurrence.

This case concerns the admissibility of two catego-
ries of evidence: (1) evidence obtained from a consent search
of defendant's person, and (2) statements that defendant
made to the police after they advised defendant of his rights
under Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed
2d 694 (1966), as well as other drug-related evidence
obtained from defendant's backpack as a consequence of
those statements to the police. The majority concludes that
unlawful police conduct-an unconstitutional seizure of
defendant-tainted the consent search of defendant's person
and that the later delivery of Miranda warnings was inade-
quate to sever the causal link between the unlawful seizure
and the incriminating statements and drug evidence found in
defendant's backpack. Those admissibility determinations,
according to the majority, each find their root in the conduct
of the police officer in requesting defendant's consent to
search his person during the unlawful seizure.

Applying State v. Hall, 339 Or 7, 115 P3d 908 (2005),
and its progeny, the majority decides that the trial court
should have suppressed all evidence that came to light during
the events that followed the seizure. The majority stresses,
however, that the key issue that it decides concerning the ini-
tial consent search is a narrow one concerning causation, and

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that no issue exists here about whether Hall was correctly
decided. The majority states:

"Before we begin our analysis of the legal issues pre-
sented in this case, we pause to observe how limited the
state, as petitioner here, has chosen to make them. First,
the state has not asked this court to reconsider Hall.
Second, the state does not argue that the Court of Appeals
was wrong to conclude that the state had not met its burden
to show that the consent would have occurred independent
of the illegality or that the connection between the unlawful
stop and the consent was attenuated. Rather, as the state
has presented the case to this court, the only issues are
whether (1) defendant met his initial burden to show a min-
imal factual nexus between the unlawful police conduct and
his consent to search, and whether (2) the giving of
Miranda warnings was a sufficient intervening circum-
stance, standing alone, to mitigate the taint of the preced-
ing unlawful police conduct on defendant's later statements
about the evidence in the backpack. We turn to those
issues."

348 Or at 628 (emphasis in original).

In response to the majority's narrow statement of
the issue here, the dissent seeks to distinguish the factual cir-
cumstances in Hall from those presented here, all in an effort
to demonstrate that the causal link between the unlawful
stop and defendant's voluntary consent to a search of his per-
son was weak or nonexistent. In arguing that point, the dis-
sent acknowledges that this case presents only a question of
the factual nexus between the police illegality and the con-
sent search, and does not raise a challenge to the correctness
of Hall:

"This case does not require us to decide whether Hall
was correctly decided, and the state has not asked to reex-
amine that decision. Rather, the state argues, and I would
hold, that any causal connection in this case between the
retention of defendant's identification and defendant's deci-
sion to consent is so much weaker than it was in Hall that
we should give effect to defendant's voluntary consent to
the patdown search."

348 Or at 647 (Kistler, J., dissenting) (footnote omitted).

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I dissented in Hall, arguing that the majority there
had distorted the relevant legal analysis when the police,
after committing an illegality, obtain incriminating evidence
against a defendant. 339 Or at 37 (Durham, J., concurring in
part and dissenting in part). I contended that new mode of
analysis adopted in Hall was not supported by any existing
precedent, state or federal, and that the reasoning in Hall
would lead to the needless suppression of evidence obtained
by the police with the specific, voluntary consent of the owner
or possessor of the evidence. More recently, I dissented from
the court's extension of the Hall paradigm to the arena of the
traffic stop. State v. Rodgers / Kirkeby, 347 Or 610, 631, 227
P3d 695 (2010) (Durham, J., dissenting).

This case specifically concerns the application of the
part of the Hall analysis that obliged defendant to demon-
strate that a factual link exists between his unlawful deten-
tion by the police officer and, later, the officer's request for
consent to conduct a patdown search of defendant's person.
The state raises no claim that the Hall court erred in creating
that requirement. Given the temporal and physical circum-
stances of the stop and the officer's request, the majority has
the better of the argument on that point. Therefore, I join the
majority's conclusion that defendant met his initial burden,
as described in Hall.

Further, I join the majority's second conclusion,
which follows from its first, that a Miranda warning alone
was not sufficient to nullify the causal link between the ini-
tial police illegality and the statements and drug-related evi-
dence that defendant seeks to suppress. I do not join in the
majority's recital at length of the rationale in the Hall line of
cases that has nothing to do with the disposition of this case.

The court, in the future, may face other arguments
that question the logic of Hall and its progeny in ways that
this case does not. This court has stated:

"[W]e remain willing to reconsider a previous ruling under
the Oregon Constitution whenever a party presents to us a
principled argument suggesting that, in an earlier decision,
this court wrongly considered or wrongly decided the issue
in question. We will give particular attention to arguments
that either present new information as to the meaning of

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the constitutional provision at issue or that demonstrate
some failure on the part of this court at the time of the ear-
lier decision to follow its usual paradigm for considering
and construing the meaning of the provision in question."

Stranahan v. Fred Meyer, Inc., 331 Or 38, 54, 11 P3d 228
(2000). Counsel for any party who chooses to challenge the
correctness of the decision in Hall in a future case is well-
advised to bear in mind the guidance that this court provided
in Stranahan for that endeavor.

For the reasons stated above, I concur in the major-
ity's decision.

KISTLER, J., dissenting.

An officer lawfully stopped a car in which defendant
was a passenger. The majority holds that the officer uncon-
stitutionally seized defendant when the officer retained
defendant's identification card and that all the evidence that
followed was a product of that seizure and must be sup-
pressed. Although I agree that the officer stopped defendant
without reasonable suspicion, the rest of the majority's rea-
soning sweeps too broadly. As an initial matter, defendant
would not have left the scene of the stop, even if the officer
had not retained his identification. In that circumstance,
defendant's later, voluntary consent to a patdown search was
sufficient to break the causal chain. Beyond that, the officer
lawfully discovered evidence during a search incident to the
arrest of the driver and defendant chose to answer the offi-
cer's questions about that evidence after having been advised
of his Miranda rights. Those events occurred independently
of the retention of defendant's license and were not the prod-
uct of that act. This case differs in those respects from State v.
Hall, 339 Or 7, 115 P3d 908 (2005), and the majority errs in
treating this case as if Hall governed it. I respectfully dissent.

The question whether a voluntary consent that fol-
lows an unconstitutional stop is a product of that stop is a
fact-intensive one, and it is worth recounting the facts in this
case before turning to the legal issues that they raise. One
morning, a police officer lawfully stopped a car in which
defendant was a passenger. The car was missing a license
plate and exceeding the speed limit. The stop occurred at a

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remote location in the Coast Range along Highway 26.1 There
were five people in the car (including the driver) and only a
single officer. On approaching the car, the officer noticed that
the driver of the car appeared to be under the influence of
methamphetamine. As the officer explained:

"[The driver's] body was contorting and twisting. She
couldn't sit still. She was running her fingers through her
hair at a very high and unusual rate of speed. I saw her jaw
muscles * * * and her face muscles were spasming and
relaxing. I asked her for her driver's license. She was mak-
ing just some random statements that I really didn't hear
and understand. She made a couple of comments that were
basically irrelevant to anything."

The driver found her license and gave it to the officer. After
giving the officer her license, the driver continued to rum-
mage through her wallet, even though the officer had asked
only for her license.

Given the driver's behavior, the officer asked her if
she had any methamphetamine in the car. At that point,
defendant, who was sitting in the front passenger seat, spoke
up and said, "Sir, what do we have to do to rectify this so that
we stop getting stopped. So that we don't get stopped any-
more." The timing of defendant's question and the overly
polite way in which he asked it raised the officer's suspicions.
The officer asked defendant for identification, and defendant
gave him a veteran's identification card. The officer took both
the driver's license and defendant's identification card and
put them in his car. He then asked the driver to step out of
the car, spoke to her briefly, and returned to his car where he
"ran a computer check on both the defendant and [the
driver]." That check did not reveal any outstanding warrants
for either person.

1 The officer testified that the closest home "would probably be three miles
away[.]" Later, the officer explained that there was one house on Saddle Mountain
Road about a quarter to a half mile up that road from where it "leaves [Highway]
26." There was no testimony regarding how far Saddle Mountain Road was from
the scene of the stop and thus nothing to call into question the officer's earlier tes-
timony that the nearest home was three miles away. As defense counsel put the
issue to the officer, "So as far as people in the car * * * would be able to observe by
driving through that area, they're three miles from anything in one direction out
there * * * [and they're]-I don't know-six or seven miles I think in the other
direction." The officer answered, "Approximately. Yes, sir."

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The officer went back to the car where defendant
was sitting.2 He asked defendant "if he would mind stepping
out of the car and talking to [him] for a minute." Defendant
said "[s]ure" and stepped out. At that point, the officer asked
defendant to step to the back of the car, where the driver was
seated, so that he could keep an eye on defendant, the driver,
and the three other passengers who were still in the back
seat of the car. As defendant walked to the back of the car, the
officer noticed that defendant walked with an exaggerated
limp, but he did not see any obvious signs that defendant was
under the influence of any substance.

Once they reached the back of the car, the officer
explained to defendant that, when he talks to someone out-
side of a car, he "like[s] * * * to pat them down for weapons"
and then he asked defendant "for consent to pat him down."
Defendant replied, ""'Yeah.'" As the officer explained, "[h]e
told me that I could pat him down." As the officer started to
pat defendant down, he could see from his vantage point into
defendant's shirt pocket. Inside the pocket, he "saw a pre-
scription pill bottle with no label on it[,] and [he] could see
inside the pill bottle was plastic wrapping and [he] immedi-
ately suspected it was drugs." He took the bottle out of defen-
dant's pocket and asked, "Is that the meth[,]" and defendant
said, "Yeah, I guess it must be." The officer placed defendant
under arrest and advised him of his Miranda rights.

At that point, the officer turned his attention back to
the driver, whom he "ran * * * through a field sobriety test
and subsequently arrested her for driving under the influ-
ence of methamphetamine." After the officer arrested the
driver, he searched the car for "additional means of intoxica-
tion." During that search, the three passengers in the back
seat got out of the car. One of them told the officer that there
was a backpack in the car, which the passenger identified as
defendant's. The officer asked defendant if there were meth-
amphetamine in the backpack. Defendant said that there
was and described the contents of the backpack in detail. The

2 It is not clear when the officer returned the license to the driver and the iden-
tification card to defendant. The state, however, does not dispute that the officer
did not return the identification card before he began speaking with defendant.

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officer then looked in the backpack and found more metham-
phetamine.

Before trial, defendant moved to suppress all the evi-
dence found during the stop. Specifically, defendant moved to
suppress: (1) the methamphetamine found in the pill bottle
during the patdown search; (2) defendant's statements to the
officer regarding the backpack; and (3) the contents of the
backpack. The trial court denied that motion, and the Court
of Appeals reversed the resulting judgment of conviction.

Before turning to the issue that this case presents, it
is important to note what is not at issue. Defendant does not
contend that the officer lacked probable cause to stop the car
for a traffic infraction, nor does he dispute that the officer
acquired reasonable suspicion that the driver was under the
influence of methamphetamine once he approached the car
and spoke with her. Defendant has not challenged the vol-
untariness of his consent to the patdown search. He has not
questioned the officer's testimony that the prescription bottle
in defendant's shirt pocket was in plain view when the officer
began to pat him down, and he has not argued that the officer
acted unconstitutionally when he removed the prescription
bottle from his shirt pocket and asked him about its contents.
Relatedly, defendant does not argue that the officer lacked
probable cause to arrest the driver for driving under the
influence of methamphetamine, once she performed field
sobriety tests, and he has not challenged the officer's author-
ity to search the car for additional evidence of intoxication, as
a search incident to the driver's lawful arrest. Defendant's
argument accordingly reduces to the proposition that every
lawful act that followed the retention of his identification
must fall because it was a product of that single, initial
illegality.

The state, for its part, does not dispute that the offi-
cer's retention of defendant's identification card prevented
him from leaving and thus stopped defendant without
reasonable suspicion. The state argues, however, that there
is no causal connection between that illegality and defen-
dant's voluntary consent to the patdown search because
defendant would not have left the scene, even if the officer

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had not retained his identification. It follows, the state con-
tends, that defendant's voluntary consent to the patdown
search was not the product of the prior illegality. Alterna-
tively, the state argues that, even if the consent were the
product of the retention of defendant's identification, the
Miranda warnings that defendant subsequently received
were, in the totality of the circumstances, sufficient to break
the causal chain, rendering defendant's post-Miranda state-
ments and the contents of the backpack admissible.

In my view, both of the state's arguments are well
taken. Under this court's decisions, when the officer retained
defendant's identification card, he prevented him from leav-
ing and accordingly stopped him without reasonable suspi-
cion. See, e.g., State v. Thompkin, 341 Or 368, 379, 143 P3d
530 (2006) (so reasoning). Defendant, however, also was pre-
vented from leaving the scene of the stop for an independent
and completely lawful reason. The officer lawfully had
stopped the car in which defendant was riding and, on stop-
ping the car, reasonably suspected that the driver was under
the influence of methamphetamine. The stop occurred in a
remote wooded location, three miles from the nearest home,
and the trial court reasonably could have found that defen-
dant would not have left the scene of the lawful stop of the car
even if the officer had not retained his identification.3 In this
case, as long as the driver's car was lawfully detained, so was
defendant.

As a matter of causation, two independent causes
prevented defendant from leaving. One was lawful; the other
was not. Under those circumstances, any causal connection
between the retention of defendant's identification card and
his voluntary consent to the patdown search was so faint that
defendant's voluntary consent was sufficient to break the
causal chain. To be sure, this court held in Hall that the
defendant's voluntary consent that followed an unlawful stop
did not break the causal chain. 339 Or at 36. In that case,
however, the unlawful seizure was the only reason that the

3 The majority notes in passing that the facts "do not establish that it would
have been impossible, or even extremely difficult, for defendant to leave the scene."
348 Or at 631. The majority uses the wrong standard of review. Whether defendant
could or would have left the scene if the officer had not retained his identification is
a factual issue for the trial court, which ruled in the state's favor.

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defendant in Hall remained at the scene. In this case, by con-
trast, the lawful retention of the car and its driver prevented
defendant (the passenger) from leaving, without regard to
whether the officer retained the defendant's identification or
gave it back.

Not every causal connection, however faint, will be
sufficient to disable a defendant's voluntary consent from
breaking the causal chain, and the causal connection in this
case is, if existent at all, far weaker than the causal connec-
tion in Hall. This case does not require us to decide whether
Hall was correctly decided, and the state has not asked us to
reexamine that decision. Rather, the state argues, and I
would hold, that any causal connection in this case between
the retention of defendant's identification and defendant's
decision to consent is so much weaker than it was in Hall that
we should give effect to defendant's voluntary consent to the
patdown search.4

As noted, defendant does not challenge the voluntar-
iness of his consent to the patdown search, nor has he argued
that the officer did not lawfully see, in plain view, what the
officer reasonably suspected was contraband once he started
to conduct the patdown search. Because everything that fol-
lowed defendant's voluntary consent to the patdown search
was constitutionally obtained and because, in these circum-
stances, defendant's voluntary consent was not the product of
the unlawful retention of his identification, I would hold, on
that ground alone, that all the evidence that the officer dis-
covered was admissible.

4 In that connection, it is worth noting that the United States Supreme Court
and almost every state supreme court that has considered the issue have held
that stopping a car seizes both the driver and the passengers. See Brendlin v.
California, 551 US 249, 257, 259 n 5, 127 S Ct 2400, 168 L Ed 2d 132 (2007) (so
holding and noting the holdings of the state supreme courts). Reasonable suspicion
to stop the car justifies the stop of both the driver and the passengers. See Arizona
v. Johnson,_ US_, 129 S Ct 781, 172 L Ed 2d 694 (2009) (same) (citing
Brendlin, 551 US at 255, 263). Under those decisions, the officer's retention of
defendant's identification in this case would not have constituted an unlawful stop.
Rather, it simply would have been a permissible inquiry during the lawful stop of
the car, the driver, and all four passengers. As a practical matter, this case is no dif-
ferent. The stop of this car stopped defendant as well and, in the circumstances of
this case, the officer's retention of defendant's identification contributed nothing
additional to the restraint effectively placed on defendant's freedom to leave as a
result of the lawful stop of the car in which defendant was a passenger.

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The majority reaches a different conclusion. It holds
that, under Hall, a minimum factual nexus will exist
between an illegality and a defendant's consent as long as the
consent occurs while the unlawful stop is ongoing. The major-
ity's holding is at odds with the reasoning in Hall. The ques-
tion under Hall is not whether there is a temporal connection
between the illegality and the defendant's decision to con-
sent. Rather, the question is whether there is a causal con-
nection. The majority's decision either assumes incorrectly
that all events that occur contemporaneously are causally
connected, or it dispenses with the requirement that the ille-
gality must be the cause of the decision to consent. Either
way you cut it, the majority errs.

The majority, for its part, invokes the decision in
Hall and two cases that follow it as support for its holding.
The analysis in Hall, however, undercuts the majority's
rationale, and the two cases that follow Hall add nothing to
the analysis. The question in Hall was whether evidence dis-
covered as a result of the defendant's voluntary consent to a
search "derived from a preceding violation of the defendant's
rights under [Article I, section 9, of the Oregon Constitution]."
339 Or at 21. The question that the court posed in Hall was at
base a causal one. See id. at 24 ("[T]he critical inquiry is
whether the state obtained the evidence sought to be sup-
pressed as a result of a violation of the defendant's rights
under Article I, section 9.") (emphasis added). Consistently
with that focus, the court described the minimum factual
nexus that defendants must establish as a causal connection
between the illegality and the defendant's decision to con-
sent. See id. at 25 ("[A] minimum factual nexus * * * is, at
minimum, * * * a 'but for' relationship[.]"). The standard that
the majority announces in this case-that the illegality and
the decision to consent need share only a temporal link-is
inconsistent with the court's recognition in Hall that the con-
nection must be causal.

To be sure, it often will be the case that consent
obtained during an illegal stop also will be causally connected
to the stop. But that is not always so, as this case illustrates.
Any causal link in this case was so faint that defendant's vol-
untary consent was sufficient to break the causal chain. Not
only is the majority's reasoning at odds with the analysis in

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Hall, but this case differs factually from Hall in that the ille-
gal detention in that case was the only reason that the defen-
dant in Hall remained at the scene. No independent lawful
reason prevented the defendant in Hall from leaving, and
this court presumed without further discussion that there
was a sufficient causal connection between the illegality and
the consent to shift the burden to the state to prove independ-
ent source, inevitable discovery, attenuation, or the like. 339
Or at 36.5

The two other cases that the majority cites add noth-
ing to the analysis. One case, State v. Rodgers / Kirkeby, 347
Or 610, 227 P3d 695 (2010), is factually similar to Hall. In
that case, the illegal detention was the only reason that each
defendant remained at the scene. Because no independent,
lawful reason prevented either defendant from leaving, that
case did not present the causation question that this case
does.

The other case, State v. Thompkin, 341 Or 368, 143
P3d 530 (2006), is factually closer. In Thompkin, the defen-
dant was a passenger in a lawfully stopped car. The police
stopped the passenger (the defendant) when they retained
her identification without reasonable suspicion. Id. at 377-
79. Although the trial court's findings are not particularly
clear, its findings can be read to suggest that the defendant in
Thompkin would have remained at the scene of the lawful
stop without regard to whether the police unlawfully
retained her identification.6 In that respect, Thompkin is fac-
tually closer to this case.

5 It is worth noting that the procedural paradigm that the court announced in
Hall is difficult to square with the reasoning in both Hall and other cases. The
court explained in Hall, 339 Or at 25, and reaffirmed in State v. Crandall, 340 Or
645, 652, 136 P3d 30 (2006), that the fact that an illegality is the "but for" cause of
a defendant's voluntary consent does not render the resulting evidence inadmissi-
ble. However, in describing how the Hall paradigm works, the court stated that
proof of a "but for" causal connection will be sufficient to establish a minimum fac-
tual nexus and thus to presume that the consent was the product of the illegality,
unless the state offers some evidence other than the defendant's voluntary consent
to prove independent source, inevitable discovery, attenuation, or the like. Hall,
339 Or at 25. In my view, there is a substantial question whether proof of "but for"
causation is by itself sufficient to disable the effect of a defendant's voluntary con-
sent. In this case, it is especially troubling that the majority finds that something
less than "but for" causation suffices to establish a minimum factual nexus.

6 The court noted in Thompkin that the trial court had found that " 'there's no
evidence that [the defendant] would have gotten out of the car or left the scene, that

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Despite that possible similarity, Thompkin provides
no precedential support for the majority's decision because
the state never argued and this court never considered in
Thompkin whether the possible presence of an independent,
lawful reason for remaining at the scene meant that there
was no minimum factual nexus between the unlawful reten-
tion of the defendant's identification and her voluntary deci-
sion to disclose evidence to the police. See 341 Or at 380-81.
Indeed, the decision in Thomkin omits any discussion of
whether the defendant had established a minimum factual
nexus that shifted the burden to the state. See id. The opinion
is silent on that point, and we should not treat Thompkin's
silence as if it were binding precedent. See Coast Range
Conifers v. Board of Forestry, 339 Or 136, 148-49, 117 P3d
990 (2005) (reaching that conclusion regarding an issue that
an earlier decision could have but did not address).

As the majority ultimately recognizes, this court has
assumed without discussion, both in Hall and also in
Rodgers / Kirkeby and Thompkin, that a minimum factual
nexus existed, and those cases thus provide little or no ana-
lytical help in determining what a defendant must show to
establish that nexus. The majority attempts to supply the
analytical deficiency in those decisions with the following
explanation:

"We think that the reason both that the court sometimes
assumes without discussion that a defendant has shown
the required nexus when consent occurs during an ongoing
seizure and that no case exists holding that there is no min-
imum connection in such circumstances is that the exis-
tence of a minimal factual nexus is obvious in cases in
which the defendant consents to a search (or takes other
incriminating action) during an illegal seizure."

348 Or at 633-34 (emphasis in original). In my view, the
majority's explanation still leaves something to be desired.
However obvious the causal connection may be in some cases,
it is not obvious in every case. The majority errs in sweeping
away all factual distinctions with an uncritical assertion that
a minimum factual nexus will always exist when consent

she didn't feel free to leave because [the officer retained her identification].'" 341
Or at 373-74 (quoting the trial court's findings).

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occurs during an illegal detention; in so doing, it incorrectly
substitutes a temporal connection for a causal one.

One final point requires discussion. The majority
says, in a footnote, that the state has not argued the first
issue that this opinion discusses. The state, however, argued
in its brief to the Court of Appeals that, under Hall, a defen-
dant must show " 'at minimum, the existence of a "but for"
relationship' " between the evidence sought to be suppressed
and the police illegality to establish a factual nexus. Respon-
dent's Brief at 8 (quoting Hall, 339 Or at 25). The state con-
tended that the evidence in this case was not sufficient to
establish even that minimal causal connection. It followed,
the state reasoned, that "[t]here is no reason to suppose
that taking and retaining defendant's ID had any effect on
his decision to consent to the patdown[.]" Id. at 9-10.

In this court, the state raised the same issue. It con-
tended that, because the traffic stop was lawful and ongoing,
any connection between the retention of defendant's identifi-
cation and the officer's request for consent to the patdown
search was not sufficient to establish even "but for" causa-
tion.7 In my view, the state's arguments in both the Court of
Appeals and this court properly raised the question whether
the causal connection between the retention of defendant's
identification and his consent to the patdown search was so
weak that defendant's voluntary consent broke the causal
chain. As explained above, on that issue, I would hold that,
because the detention in this case resulted equally from a
lawful and an unlawful cause, the illegality did not have a
sufficient effect on defendant's voluntary decision to consent
to the patdown search to prevent that decision from breaking
the causal chain, even under Hall.

A second, more limited basis for reversing the Court
of Appeals decision exists. Even if one assumes that defen-
dant's consent to the patdown search was not sufficient to
break the causal chain, four later events, viewed collectively,

7 In this court, the state focused on the absence of a "but for" causal connection
between the retention of defendant's identification and the officer's request for con-
sent, but it did so presumably because that was what the Court of Appeals had held
was the correct focus in determining the existence of a minimal causal connection
under Hall. See State v. Ayles, 220 Or App 606, 612, 188 P3d 378 (2008).

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were. First, the officer lawfully arrested the driver for driving
under the influence of methamphetamine. Second, the officer
lawfully searched the car for more evidence of intoxicants
incident to his lawful arrest of the driver. See State v.
Caraher, 293 Or 741, 759, 653 P2d 942 (1982) (authorizing a
search incident to arrest when "it is relevant to the crime for
which defendant is being arrested and so long as it is reason-
able in light of all the facts").8 Third, during that search, one
of the passengers got out the car, told the officer that there
was a backpack in the car, and identified it as defendant's.9
Fourth, the officer asked defendant whether there was meth-
amphetamine in the backpack, and defendant, having previ-
ously received Miranda warnings, chose to answer the offi-
cer's questions.

Even if defendant's voluntary consent to the pat-
down did not break the causal chain, his receipt of the
Miranda warnings did. Admittedly, giving a defendant
Miranda warnings does not always break the causal connec-
tion between an Article I, section 9, violation, and a defen-
dant's subsequent statements. See Hall, 339 Or at 35 (iden-
tifying several considerations, in addition to Miranda
warnings, to account for in assessing a causal connection); see
Brown v. Illinois, 422 US 590, 603, 95 S Ct 2254, 45 L Ed 2d
416 (1975) ("Miranda warnings, alone and per se, cannot
always make the act sufficiently a product of freewill to
break, for Fourth amendment purposes, the causal connec-
tion[.]"). Rather, determining whether those warnings were
sufficient to break "a causal connection requires examination
of the specific facts at issue in a particular case." Hall, 339 Or
at 35. That is, the question whether the warnings purged the

8 This court recognized in State v. Owens, 302 Or 196, 729 P2d 524 (1986), that,
under Article I, section 9, a search incident to arrest permits officers to look in the
trunk of the defendant's car for evidence of the crime for which they had arrested
him. See id. at 203-04 (quoting, with approval, an earlier case for that proposition).

9 Under Article I, section 9, an officer may look for evidence of the crime for
which he or she arrested a person to the extent that the evidence "reasonably could
be concealed on the arrestee's person or in the belongings in [the arrestee's] imme-
diate possession at the time of the arrest." Owens, 302 Or at 200. In this case, the
state has not argued that the driver was in possession of defendant's backpack at
the time of her arrest. Accordingly, although the officer lawfully discovered defen-
dant's backpack as part of a search incident to the driver's arrest, he could not, inci-
dent to the driver's arrest, go further and search the contents of defendant's
backpack.

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taint requires consideration of the nature and the extent of
the taint.

Here, any taint was minimal. The only illegality that
defendant has identified was the fact that the officer's reten-
tion of defendant's identification card prevented defendant
from leaving and thus stopped him without reasonable sus-
picion. As explained above, however, defendant could not
leave for an independent, completely lawful reason. In those
circumstances, the effect of retaining his identification card
was minimal, if not nonexistent. The subsequent, independ-
ent discovery of defendant's backpack and the Miranda
warnings that defendant received were sufficient to attenu-
ate any taint deriving from the officer's retention of his
identification. If defendant's voluntary statements were
not the product of the officer's retention of defendant's iden-
tification, then the subsequent search of his backpack was
lawful, based solely on those statements, either under the
automobile exception or as a search incident to defendant's
arrest.

Relying on State v. Olson, 287 Or 157, 598 P2d 670
(1979), the majority reaches a different conclusion. However,
this is not a case in which the officers broke into the defen-
dant's house without justification and roused the defendant
and his companion from their bed, as they did in Olson. Cf. id.
at 159. Nor is this a case in which the defendant, on entering
his home, found an officer unlawfully inside his home point-
ing a gun at him and saying, "Don't move, you are under
arrest." Cf. Brown, 422 US at 592. In that case, neither the
officers' entry into the defendant's house nor their arrest of
him at gun point was constitutionally justified. Id. at 596. In
those cases, this court and the United States Supreme Court
respectively held that the mere fact that the officer gave the
defendants Miranda warnings before the defendants made
incriminating statements was not sufficient to purge the taint
of the officers' unconstitutional entries into the defendants'
homes. Olson, 287 Or at 166; see also Brown, 422 US at 603. In
light of the nature and severity of the Fourth Amendment
and Article I, section 9, violations in those cases, something
more than Miranda warnings was required. Olson, 287 Or at
166; Brown, 422 US at 604-05.

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In this case, by contrast, the nature and severity of
the violation was minimal. The officer retained defendant's
identification and prevented him from leaving in a situation
where defendant had no ability to go anywhere until the offi-
cer concluded his lawful stop of the car. The degree of atten-
uation necessary to purge the taint varies with the extent of
the taint, and where, as here, any taint is minimal, the
required degree of attenuation is correspondingly reduced.
The point has nothing to do with deterrence. Rather, under a
rights-based suppression analysis, the degree of attenuation
necessary to purge the taint (and thus restore the defendant
to the position he or she would have been in had no constitu-
tional violation occurred) varies with the extent, nature, and
severity of any illegality.10 Any other rationale would give a
constitutional violation that had only minimal effect far
greater reach than either the constitution requires or good
sense warrants. Because I would uphold the trial court's
judgment in this case, I respectfully dissent.

Balmer and Linder, JJ., join in this opinion.

10 This court has rejected, in a footnote and in dicta, any reliance on the pur-
pose and flagrancy of the constitutional violation to the extent that it bears on
deterrence. Hall, 339 Or at 35 n 21. That reasoning is consistent with the rights-
based suppression analysis that this court has adopted. To the extent, however,
that the dictum in Hall goes further and suggests that the nature of the violation is
irrelevant to the degree of attenuation necessary to purge the taint flowing from
that violation, the suggestion lacks persuasive value. Not only is the suggestion
dictum and thus not binding, but the assumption that underlies it-that all consti-
tutional violations have the same effect-is erroneous.