State v. Weaver

De MUNIZ, J. The state moves for reconsideration of our opinion, 121 Or App 362, 854 P2d 962 (1993). We allow reconsideration and adhere to our opinion. In its motion for reconsideration, the state takes issue with the following language from our opinion: “The evidence supports a finding that the officers began searching for and seizing evidence well before defendant signed the consent form. The officers invaded defendant’s constitutionally protected privacy interests when they began searching and seizing evidence without a warrant, without consent and without any other exception to the warrant requirements of Article I, section 9, and the Fourth Amendment. The fact that defendant subsequently consented does not vitiate the unlawfulness of a search and seizure that violated the state and federal constitutions at its inception.” 121 Or App at 366. The state asserts that our holding is contrary to the Supreme Court’s analysis in State v. Rodriguez, 317 Or 27, 854 P2d 399 (1993), and State v. Quinn, 290 Or 383, 623 P2d 630 (1981). The state correctly asserts that Quinn and Rodriguez stand for the proposition that evidence seized in a subsequent consent search will be suppressed “only in those cases where the police have exploited their prior unlawful conduct to obtain that consent.” 317 Or at 40. The state also correctly asserts that, here the police did not exploit their prior unlawful conduct to obtain defendant’s consent. However, that rule, or the misapplication of that rule as asserted by the state, is not the basis of our holding. Instead, the rationale underlying our holding is that the state failed to carry its burden of proving that the evidence it wants to introduce against defendant at trial was seized after defendant consented. The trial court made a factual finding that the officers began searching for and seizing evidence well before defendant signed the consent form. There is evidence to support that finding. We reiterate: “It is possible that some of the searching and seizing occurred after defendant consented. However, nothing in the record suggests which items were seized after 2:00 p.m., nor does the record indicate which evidence was seized without [618] the benefit of information contained in the ADR. If any of the evidence was lawfully seized, the state has not met its burden of proving it.” 121 Or App at 367. (Footnote omitted.) We reject the state’s suggestion that Quinn supports the proposition “that suppression [is] not required even if a * * * seizure occurred before the officers obtained defendant’s consent.” The whole point of Quinn and Rodriguez is that, although the police engaged in unlawful conduct, there was no direct causal connection between the prior unlawful conduct and the evidence seized during a subsequent consensual search. Here, unlike Quinn and Rodriguez, evidence was seized in an unlawful search that preceded defendant’s consent. The state’s record fails to show what, if any, items were seized after defendant’s consent. Had the state proved that items were seized after defendant’s consent was obtained, the state’s reliance on Quinn and Rodriguez would be justified. However, on this record, that reliance is misplaced. Reconsideration allowed; opinion adhered to.