State v. Young
Case # A151946
Full Text of Opinion: http://www.publications.ojd.state.or.us/docs/A151946.pdf
On New Years’ Eve, just before midnight, Officer Monico pulled his marked patrol vehicle up behind a stalled car and activated his overhead lights. When Monico got out of his car and called out, the stalled car’s driver reached back into the car toward the floorboard. Monico drew his gun and told the driver to put his hands on his head and step away from the car. Monico also ordered the car’s three passengers to put their hands in their heads and told the group that he would shoot them if they moved. Upon smelling an “overwhelming” odor of marijuana emanating from the car, Monico asked the passengers where the marijuana was located and told them that he “wanted it.” The two passengers in the backseat, one of whom was Defendant Young, glanced toward a backpack. Monico had everyone get out of the car, which he then searched. After taking the backpack from the car, Monico asked if anyone wanted to claim it. Young and another passenger consented to a search, and in it Monico found 12 bags of marijuana totaling 37.82 grams. Young was subsequently convicted of Manufacturing Marijuana, ORS 475.856, Delivery of Marijuana, ORS 475.860, and Possession of Marijuana, ORS 475.864.
Young now appeals, arguing that the trial court erroneously denied his motion to suppress because the marijuana evidence was obtained as a result of a warrantless search. He alleges that he was unlawfully seized, the backpack was unlawfully seized, and that subsequent discovery of marijuana was the product of unlawful seizures. The State counters that Monico would have requested Young’s consent to search the backpack even if it had been left in the car, and Young therefore failed to establish a minimal factual nexus between the alleged unlawful police conduct and the search.
The Court of Appeals explains that State v. Unger, 356 Or 59, 74-75, 333 P3d 1009 (2014) provides the proper analysis for this case. Unger overturned the minimal factual nexus analysis and instead held that, “when a defendant has established that an illegal stop or an illegal search occurred and challenges the validity of his or her subsequent consent to a search, the state bears the burden of demonstrating that (1) the consent was voluntary; and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search.” Id. To determine whether the state has met that burden, “we consider the totality of the circumstances, including the temporal proximity between that misconduct and the consent, and the existence of any intervening or mitigating circumstances. We also consider the nature, purpose, and flagrancy of the misconduct.” Id. at 88.
Here, the temporal proximity between Monico’s seizure of the backpack and Young’s consent to search it were almost immediate. In addition, Monico had searched the car and told Young that he “wanted” the marijuana, and after he seized the backpack he wanted to know who “claimed it.” These facts show that Monico acted forcefully to assert his control over Young and the property, and they further support a conclusion that his purpose in seizing the backpack was to facilitate a search. The Court further observes that “we cannot assume that [Young] would have consented as readily to a request to search that was not preceded by a violation of his rights.”
The Court also concludes that the backpack was seized because no exception to the warrant requirement applied to the situation. So, because Monico unlawfully seized the backpack and because the State failed to demonstrate that the subsequent search was not the produce of police exploitation of the unlawful seizure, Young’s motion to suppress should have been granted. Accordingly, the judgment is reversed and remanded.