No. 1 January 10, 2013 129

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

LELAND JAY HEMENWAY,

Petitioner on Review.

(CC 071107; CA A136981; SC S059085 (Control))

STATE OF OREGON,

Petitioner on Review,

v.

LELAND JAY HEMENWAY,

Respondent on Review.

(S059392)

(Consolidated)

On review from the Court of Appeals.*

Argued and submitted November 14, 2011, at Reynolds 

High School, Troutdale, Oregon.

Rolf Moan, Assistant Attorney General, Salem, argued 

the cause and fi led the brief for State of Oregon, respondent 

on review/petitioner on review. With him on the brief were 

John R. Kroger, Attorney General, and Mary H. Williams, 

Solicitor General.

Peter Gartlan, Chief Defender, Offi ce of Public Defense 

Services, Salem, argued the cause and fi led the brief for 

Leland Jay Hemenway, petitioner on review/respondent on 

review.

Before Balmer, Chief Justice, Kistler, Walters, Linder, 

and Landau, Justices, and Durham and De Muniz, Senior 

Judges, Justices pro tempore.**

_______________

 ** Appeal from Tillamook County Circuit Court, Rick W. Roll, Judge. 232 Or 

App 407, 222 P3d 1103 (2009).

 ** Brewer and Baldwin, JJ., did not participate in the consideration or 

decision of this case.
130 State v. Hemenway

BALMER, C. J.

The decision of the Court of Appeals is reversed. The 

judgment of the circuit court is affi rmed.

Landau, J., concurred and fi led an opinion.

Walters, J., dissented and fi led an opinion, in which

De Muniz, Senior Judge, Justice pro tempore, joined.

Defendant moved to suppress evidence obtained by the police after defendant 

voluntarily consented to a search, arguing that his consent to search was the product of an illegal seizure and, therefore, that the evidence was inadmissible under 

Article I, section 9, of the Oregon Constitution. The trial court denied defendant’s 

motion, and defendant entered a conditional guilty plea, reserving his right to 

appeal the denial of his motion to suppress. The Court of Appeals reversed. Held: 

(1) The Court disavowed the “minimal factual nexus” part of the two-part test 

announced in State v. Hall, 339 Or 7, 115 P3d 908 (2005), for determining whether 

evidence acquired from a voluntary consent search must be suppressed because 

the consent was derived from an illegal seizure; (2) when a defendant has established that an illegal stop occurred and challenges the validity of his subsequent 

consent to a search, the state bears the burden of demonstrating that the consent 

was voluntary, and that the consent, even if voluntary, was not the product of police exploitation of the illegal stop; (3) the purpose and egregiousness of the illegal 

police conduct are factors in the totality of the circumstances that are relevant 

to whether the police exploited that conduct to obtain the defendant’s consent to 

search; and (4) in this case, defendant’s consent to three different searches was not 

a product of or tainted by the illegal stop, so defendant’s Article I, section 9, right 

to be free from unreasonable seizure would not be vindicated by suppressing the 

evidence the police obtained.

The decision of the Court of Appeals is reversed. The judgment of the circuit 

court is affi rmed.
Cite as 353 Or 129 (2013) 131

BALMER, C. J.

 This case requires us to consider once again the 

circumstances in which a person’s voluntary consent 

to a search is the result of exploitation of prior illegal 

police conduct—leading to the exclusion of the evidence 

obtained—and when it is not. The state charged defendant 

with possession of methamphetamine. Before trial, 

defendant fi led a motion to suppress evidence seized by the 

police, arguing that his consent to search was the product 

of an illegal seizure and, therefore, that the evidence was 

inadmissible under Article I, section 9, of the Oregon 

Constitution.1

 The trial court denied the motion. Defendant 

entered a conditional guilty plea, reserving his right to 

appeal the denial of his motion to suppress. The Court of 

Appeals reversed, relying in part on our decision in State 

v. Hall, 339 Or 7, 115 P3d 908 (2005), and holding that, if 

the stop was unlawful, the evidence from the search was 

presumptively obtained through exploitation of the earlier 

unlawful conduct. State v. Hemenway, 232 Or App 407, 222 

P3d 1103 (2009). For the reasons that follow, we reverse the 

decision of the Court of Appeals. In doing so, we modify the 

exploitation analysis announced in Hall.

BACKGROUND

 We take the facts from the Court of Appeals opinion.

“In April 2007, deputies Orella and Russell responded to a 

call from Taylor, defendant’s girlfriend, regarding Taylor 

residence’s electric power and the whereabouts of Taylor’s 

son. The deputies, in separate cars, arrived at Taylor’s 

residence just before midnight. Both deputies parked 

in the driveway behind defendant’s truck, blocking the 

truck’s exit route. The deputies were in uniform, carrying 

guns, and driving marked sheriff’s vehicles. Defendant 

and Taylor were both outside the house when the deputies 

arrived. Deputy Orella approached Taylor and instructed

1

 Article I, section 9, of the Oregon Constitution provides:

 “No law shall violate the right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable search, or seizure; and no 

warrant shall issue but upon probable cause, supported by oath, or affi rmation, 

and particularly describing the place to be searched, and the person or thing to 

be seized.”
132 State v. Hemenway

defendant to go talk to Deputy Russell. Orella then informed 

Russell that he had observed a rifl e in defendant’s truck.

 “Defendant met Russell near the back of the truck and 

voluntarily explained that he was in the process of moving 

out of the house and many of his belongings were in the 

truck, including the rifl e and a handgun. Russell asked 

defendant if he was a felon; defendant responded that 

he was not. In order to verify defendant’s assertion that 

he was not a felon, Russell asked for defendant’s name 

and date of birth. Defendant provided the information to 

Russell. Defendant asked Russell’s permission to have a 

cigarette. Russell said that he could, but that he wanted 

to search defendant to ‘ease his mind.’ Defendant agreed 

to that search. Russell found a breath mint tin in one of 

defendant’s pockets. The trial court found that Russell fi rst 

asked if he could open the tin, and, after defendant agreed, 

Russell discovered a methamphetamine pipe and a baggie 

that Russell suspected contained methamphetamine 

residue. Russell placed defendant under arrest and advised 

him of his Miranda rights.

 “Russell then asked defendant if he had more drugs in 

the house. Defendant admitted that there might be and 

consented to Russell retrieving the drug-related items 

from the house. Defendant accompanied Russell into 

the house and pointed out where the methamphetamine 

paraphernalia was, which Russell then located and seized.

 “Before trial, defendant moved to suppress all evidence 

obtained from the warrantless search of his person and 

residence and his inculpatory statements made to the 

deputies. Defendant argued that the deputies’ conduct 

before his grants of consent and statements constituted 

an unlawful stop under Article I, section 9, of the Oregon 

Constitution and that Russell exploited the unlawful stop 

when he obtained defendant’s consents and statements. 

The trial court determined that defendant was not ‘seized’ 

by Russell and that defendant’s consents were voluntary. 

Defendant entered a conditional plea of guilty, reserving 

the right to appeal the trial court’s denial of his motion to 

suppress.”

Id. at 409-10.

 On appeal, defendant argued that the trial court 

erred by holding that defendant had not been seized; 

defendant did not challenge the trial court’s fi nding that 
Cite as 353 Or 129 (2013) 133

he voluntarily had consented to the searches. The Court 

of Appeals determined that (1) the offi cers did not have 

reasonable suspicion that defendant had engaged in 

criminal activity; and (2) a reasonable person in defendant’s 

position would have believed that he had been stopped,

“[g]iven that defendant was physically blocked from exiting 

in his truck by the deputies’ cars, that he was told to speak 

to Russell and had to alter his course to do so, and that 

Russell asked if defendant was a felon and subsequently 

asked for his verifying information.” Id. at 415. The court 

nevertheless remanded defendant’s case for the trial court 

to determine whether defendant subjectively had believed 

that he had been stopped. Id. Under this court’s case law 

at the time of the Court of Appeals decision, a seizure 

for purposes of Article I, section 9, occurred whenever an 

individual subjectively “believe[d]” that a law enforcement 

offi cer had restrained that individual’s liberty or freedom 

of movement and such belief was objectively reasonable. 

See State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991), 

overruled in part by State v. Ashbaugh, 349 Or 297, 316, 244 

P3d 360 (2010).

 Turning to the question whether, if defendant had 

been unlawfully stopped, the evidence from the consent 

searches should have been suppressed, the Court of Appeals 

held that it should. Hemenway, 232 Or at 416-18. Applying 

Hall, the court held that the state had failed to show that 

defendant’s voluntary consents were attenuated from the 

potentially illegal stop. For that reason, if the stop was 

unlawful, the evidence was obtained through exploitation 

and should have been suppressed.

 Defendant and the state each requested an 

extension of time to fi le their respective petitions for review 

pending this court’s decision in Ashbaugh. In that case, 

we modifi ed the test for whether the police have seized a 

person for purposes of Article I, section 9, eliminating the 

subjective component of the test. Ashbaugh, 349 Or at 316. 

After the opinion in Ashbaugh issued, defendant and the 

state both petitioned for review in these cases. Defendant 

argued that, under Ashbaugh, this court should reverse 

the part of the Court of Appeals opinion that remanded his 

case to the trial court for an investigation into his subjective 
134 State v. Hemenway

belief regarding whether he had been stopped and should 

order the suppression of the drug evidence under Hall. 

The state conceded that defendant had been stopped under 

Article I, section 9, as explained in Ashbaugh, but asserted 

that Hall was incorrectly decided and should be overruled. 

We consolidated the petitions and allowed review.

 On review, the state argues that Hall—discussed 

further below—was incorrectly decided because a voluntary 

consent search is necessarily “reasonable” under Article 

I, section 9, of the Oregon Constitution and, thus, any 

evidence seized pursuant to a voluntary consent search is 

admissible regardless of any prior illegal conduct by law 

enforcement. Defendant responds that Hall was correctly 

decided and that, under Hall, the evidence seized pursuant 

to defendant’s consent must be suppressed because the 

evidence was derived from the illegal stop.

 We begin with a summary of the relevant parts of 

Hall. In that case, as here, the defendant consented to a 

search voluntarily after being stopped by police, and the 

police discovered drugs. The defendant moved to suppress, 

arguing that the stop had been illegal and that that illegality 

required suppression of the evidence despite his voluntary 

consent to the search. The trial court denied the motion, 

but the Court of Appeals reversed and ordered the evidence 

suppressed. 339 Or at 10-12. The state petitioned for review, 

arguing, among other things, that the defendant’s voluntary 

consent had severed the causal link between the illegal 

police conduct and the evidence. Thus, in the state’s view, 

the exclusionary rule did not bar the evidence, because the 

illegal conduct did not bring the evidence to light. Id. at 14. 

On review, the majority of this court fi rst determined that 

the stop was illegal under Article I, section 9. Id. at 19. As 

discussed below, the majority then addressed the proper 

framework for determining whether the evidence gleaned 

from the consent search nevertheless must be suppressed 

because of the illegal stop.

 The majority in Hall began by outlining the 

history of the exclusionary rule in Oregon and analyzing 

this court’s past treatment of consent searches. The 

exclusionary rule is constitutionally mandated and serves 
Cite as 353 Or 129 (2013) 135

to vindicate a defendant’s personal right to be free from 

unreasonable searches and seizures. Id. at 24. The federal 

exclusionary rule, by contrast, is premised on deterring 

police misconduct. Id. at 23. The goal of the exclusionary 

rule in Oregon is to “restore a defendant to the same 

position as if ‘the government’s offi cers had stayed within 

the law’ “ by suppressing evidence obtained in violation of 

the defendant’s rights. Id. at 24 (quoting State v. Davis, 295 

Or 227, 234, 666 P2d 802 (1983)).

 The majority noted that illegal police conduct 

may negate a defendant’s consent to search and require 

suppression of evidence in two ways. First, the consent 

itself may be “involuntary” if the illegal police conduct 

overcame the defendant’s free will, and the consent instead 

resulted from “police coercion.” Id. at 20. Second, evidence 

gained through a voluntary consent search still may require 

suppression if the defendant’s consent to search “derived 

from” the prior illegal police conduct. Id. at 21. The majority 

rejected the state’s argument that only the voluntariness 

inquiry was necessary, stating that, even when a defendant 

voluntarily consents, 

“this court’s case law * * * makes clear that Article I, 

section 9, also requires the consideration of the effect of 

the unlawful police conduct upon the defendant’s decision 

to consent, even if that conduct did not rise to the level of 

overcoming the defendant’s free will.”

Id. at 32. In particular, the majority relied on State v. 

Kennedy, 290 Or 493, 624 P2d 99 (1981), and State v. 

Rodriguez, 317 Or 27, 854 P2d 399 (1993), noting that 

those cases borrowed from the exploitation analysis that 

the United States Supreme Court announced in Wong Sun

v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 

(1963), to analyze whether Article I, section 9, required 

suppression of evidence obtained through valid consent 

searches.2

 Although neither Kennedy nor Rodriguez required 

suppression on the facts of those cases, the majority in 

2

 The majority also discussed and disavowed parts of State v. Quinn, 290 Or 

383, 623 P2d 630 (1981), which had relied extensively on Wong Sun. The Hall

court’s rejection of the result in Quinn was based on the difference between the 

state and federal exclusionary rules and Quinn’s questionable application of Wong 

Sun, but Hall did not reject Quinn’s use of the Wong Sun exploitation analysis. 

Hall, 339 Or at 26-30.
136 State v. Hemenway

Hall noted that both cases analyzed the issue as whether 

the defendant’s voluntary consent “derived from” the prior 

illegal seizures. 339 Or at 30-32. The majority determined 

that “consent is insuffi cient to establish the admissibility of 

evidence from a warrantless search if the state cannot 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.” Id. at 27 (citing Rodriguez, 317 

Or at 41-42).

 The majority in Hall summarized its conclusions as 

follows:

“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 

consent was independent of, or only tenuously related to, 

the unlawful police conduct. Deciding whether the state 

has satisfi ed that burden requires a fact-specifi c 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. A causal connection 

requiring suppression may exist because the police sought 

the defendant’s consent solely as the result of knowledge 

of inculpatory evidence obtained from unlawful police 

conduct. A causal connection requiring suppression also 

may exist because the unlawful police conduct, even if not 

overcoming the defendant’s free will, signifi cantly affected 

the defendant’s decision to consent. Although determining 

the existence of such a causal connection requires 

examination of the specifi c facts at issue in a particular 

case, we view several considerations to be relevant to 

that determination, 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 offi cer informing the defendant of the 

right to refuse consent—that mitigated the effect of the 

unlawful police conduct.”

Id. at 34-35.

 Justice Durham fi led a separate opinion, joined by 

Justice Gillette, concurring in part and dissenting in part. 

The dissent agreed that the defendant had been illegally 

stopped, but disagreed that that prior illegality should 

result in the suppression of the evidence gained through the 
Cite as 353 Or 129 (2013) 137

consent search. The dissent asserted that the defendant’s 

“voluntary consent to the search demonstrates that the 

disputed evidence came to light as the result of a reasonable, 

not unreasonable, search.” Id. at 39 (Durham, J., concurring 

in part and dissenting in part). The dissent took issue with 

the majority’s reliance on Rodriguez, 317 Or 27, which the 

dissent characterized as incorrectly focusing on the police 

decision to seek consent, “rather than the voluntariness of 

the defendant’s consent.” Id. at 50. In the dissent’s view, 

the inquiry into the voluntariness of a defendant’s consent 

takes into account any prior illegal conduct by the police. Id. 

at 46. And, a voluntary consent to search fully vindicates 

the defendant’s rights under Article I, section 9, because the 

evidence was gained as a result of that consent and not by 

way of the prior illegality. Id. at 51. 

CLARIFICATION OF HALL

 The state argues that we should overrule our 2005 

decision in Hall, 339 Or 7. “[T]he principle of stare decisis

means that the party seeking to change a precedent must 

assume responsibility for affi rmatively persuading us that 

we should abandon that precedent.” State v. Ciancanelli, 

339 Or 282, 290, 121 P3d 613 (2005). The state thus has 

the burden of demonstrating that we should reconsider and 

reject the rule announced in Hall. The state argues, among 

other things, that Hall failed to apply this court’s “usual 

paradigm” for analyzing constitution provisions; that the 

decision erroneously construed the text of Article I, section 

9; and that it departed from earlier case law. We have 

considered—and we reject—the state’s argument that Hall

suffers from all of the defi ciencies that the state asserts. We 

also note that, in seeking to overrule Hall, the state relies 

in substantial part on arguments that were, in fact, raised 

by the Hall dissent and considered and rejected by the 

majority.

 Although we reject the state’s assertion that Hall

articulated an impermissible construction of Article I, 

section 9, we agree that Hall’s test for exploitation is fl awed 

in some respects and bears refi nement. The state argues that 

internal contradictions mar both steps of Hall’s exploitation 

test and make the test diffi cult in application and uncertain 
138 State v. Hemenway

in result. The state is correct that, in practice, the Hall test 

has caused some confusion. Parties and the courts have 

struggled to determine when a defendant has met his or 

her burden of establishing a “minimal factual nexus” and 

whether the police exploited their illegal conduct to obtain a 

defendant’s consent to search. We turn to those issues.

 We begin with a review of the relevant legal 

principles. In the context of Hall and in this case, the inquiry 

into whether evidence obtained pursuant to a consent 

search must be suppressed involves three overlapping 

issues: (1) whether the initial stop was lawful; (2) whether 

the defendant’s consent to the search was voluntary; and 

(3) assuming that the stop was unlawful and the consent 

voluntary, whether the police exploited the illegal stop to 

obtain the disputed evidence.

 The fi rst issue is the lawfulness of the police-citizen 

encounter. There is nothing constitutionally suspect under 

Article I, section 9, about police engaging a citizen in conversation and then requesting that citizen’s consent to search. 

Ashbaugh, 349 Or at 308-09. In contrast to “mere conversation,” which does not implicate Article I, section 9, an offi -

cer “stops” an individual—raising potential constitutional 

issues—when the offi cer “intentionally and signifi cantly 

restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement.” 

Id. at 308-09, 316. Before stopping an individual, Article I, 

section 9, requires the police to have reasonable suspicion 

that the individual is involved in criminal activity. In the 

absence of reasonable suspicion (or some other permissible 

concern, such as offi cer safety), the individual has the right 

to be free from police interference and may terminate an 

encounter with police at will. See id. at 308-09.

 The second issue is whether the consent to search 

was voluntary. The proper test for voluntariness of consent 

“is to examine the totality of the facts and circumstances to 

see whether the consent was given by defendant’s free will 

or was the result of coercion, express or implied.” Kennedy, 

290 Or at 502 (citing Schneckloth v. Bustamonte, 412 US 

218, 226-27, 93 S Ct 2041, 36 L Ed 2d 854 (1973)). To prove 

the voluntariness of a consent to search in the context of 
Cite as 353 Or 129 (2013) 139

an illegal stop, the state must prove that the defendant’s 

consent was the product of his own free will, rather than 

the result of coercion. State v. Wolfe, 295 Or 567, 572, 669 

P2d 320 (1983); see also State v. Stevens, 311 Or 119, 136, 

806 P2d 92 (1991) (consent to search voluntary when no 

evidence that “the police intimidated or coerced defendant 

in any way”); Kennedy, 290 Or at 504, 506 (consent to search 

voluntary in light of “an almost total absence of coercive 

factors”).

 The specifi c focus of Hall and of this case is the 

third part of the inquiry: If the police-citizen encounter 

was unlawful, but the consent to search was voluntary, 

the issue becomes whether the police exploited their 

illegal conduct to obtain the consent to search and, by that 

means, the evidence in question. In Wong Sun, the United 

States Supreme Court described exploitation as “whether, 

granting establishment of the primary illegality, the 

evidence to which instant objection is made has been come 

at by exploitation of that illegality or instead by means 

suffi ciently distinguishable to be purged of the primary 

taint.” 371 US at 488 (internal quotation marks and citation 

omitted). Since at least Kennedy, this court has referred to 

and used the exploitation analysis announced in Wong Sun

in the context of determining whether evidence obtained 

through voluntary consent searches should be suppressed. 

See Kennedy, 290 Or at 501 (“[E]vidence [gained from a 

consent search during or after alleged police illegality] is 

to be suppressed only if it is found that the consent was 

gained by exploitation of the illegality or that defendant’s 

free will was tainted by the illegal police conduct.” (Citing 

other state and federal jurisdictions that apply Wong Sun to 

consent searches.)). The United States Supreme Court also 

has employed exploitation analysis in the context of consent 

searches, even when the consent was “voluntary,” in the 

sense that it was not coerced. See, e.g., Florida v. Royer, 460 

US 491, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (voluntary 

consent to search tainted by illegal detention by police).

 The relationship between the voluntariness of 

consent and exploitation, of course, is a close one: often, when 

the circumstances support the determination that consent 

was voluntary, they also will support the conclusion that 
140 State v. Hemenway

there was no exploitation of any prior police misconduct, and 

the converse is also true. Yet it is important to emphasize 

that the tests are not identical and that they address 

separate concerns. As Professor LaFave notes, 

“While there is a suffi cient overlap of the voluntariness 

and [exploitation] tests that often a proper result may be 

reached by using either one independently, it is extremely 

important to understand that (i) the two tests are not 

identical, and (ii) consequently the evidence obtained by 

the purported consent should be held admissible only if it 

is determined that the consent was both voluntary and not 

an exploitation of the prior illegality.”

Wayne R. LaFave, 4 Search and Seizure § 8.2(d), 76 (4th 

ed 2004) (emphasis in original; footnote omitted). We agree. 

Applying both the tests for voluntariness of consent and for 

exploitation is necessary to vindicate a defendant’s right to 

be free from unreasonable search and seizure. When the 

police stop an individual without reasonable suspicion, the 

individual’s liberty is restrained in violation of Article I, 

section 9. Because the person stopped is unable to terminate 

the interaction with police, he or she is subject to police 

authority in excess of constitutional bounds and is thereby 

placed at a disadvantage relative to the constitutional 

position that he or she would have occupied absent the illegal 

police interference. Exploitation analysis recognizes that 

police conduct that constitutes an illegal stop may fall short 

of coercing a defendant to consent to a subsequent request to 

search, but nevertheless may require suppression because 

the police took advantage of information gained from their 

illegal conduct to obtain consent—an advantage that they 

would not have had had the police stayed within the bounds 

of the law. Hall, 339 Or at 27-28. It is that exploitation of the 

prior police illegality that must be remedied (or vindicated). 

See State v. Sargent, 323 Or 455, 462-63, 918 P2d 819 (1996) 

(suppression of evidence required only when the evidence is 

tainted by the constitutional violation); State v. Williamson, 307 

Or 621, 626, 772 P2d 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”).

 With that background in mind, we turn to the 

exploitation test articulated in Hall. As noted, Hall
Cite as 353 Or 129 (2013) 141

announced a two-part test for determining whether evidence acquired from a voluntary consent search must be 

suppressed because the consent was derived from an illegal 

seizure. First, the defendant must establish a “minimal factual nexus—that is, at minimum, the existence of a ‘but for’ 

relationship—between the evidence sought to be suppressed 

and prior unlawful police conduct.” 339 Or at 25. Once the 

defendant establishes that causal link, the burden shifts to 

the state to prove that the evidence nevertheless is admissible because “the defendant’s consent was independent of, or 

only tenuously related to, the unlawful police conduct.” Id. 

at 34-35.

 For the reasons that follow, we disavow the 

“minimal factual nexus” part of the Hall test and instead 

hold that, when a defendant has established that an illegal 

stop 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 consent, even if voluntary, was not the product of 

police exploitation of the illegal stop. In deciding whether 

the voluntary consent was a product of police exploitation of 

the illegal stop, the court must evaluate whether the police 

took advantage of the illegal aspects of the earlier police 

behavior to obtain consent or whether other circumstances 

were suffi cient to purge the taint of the prior illegality on 

the evidence that the police ultimately obtained. As noted 

in Hall, 339 Or at 44, the state also may prove that the 

evidence is admissible by showing that the evidence was 

gained through an independent, lawful source or that the 

evidence inevitably would have been discovered by the 

police using lawful procedures. 

 As discussed further below, we disavow the “minimal 

factual nexus” part of the Hall test because it was drawn 

from a case that arose in a signifi cantly different procedural 

context, and it did not take into account a relevant statute. 

Moreover, since this court issued Hall, the test has been 

unevenly applied and, apparently, has proved confusing to 

lawyers and judges.

Hall adopted the “minimal factual nexus” 

component of its test from State v. Johnson, 335 Or 511, 

73 P3d 282 (2003). In that case, the defendant sought to 
142 State v. Hemenway

suppress evidence that had been seized illegally but then 

later “reseized” pursuant to a warrant. The state asserted 

that the warrant was “entirely independent of, and was not 

obtained by exploitation of, the previous illegality.” Id. at 

519. Ordinarily, a search performed under authority of a 

warrant is subject to a presumption of regularity, and the 

party challenging the evidence bears the burden to prove 

the unlawfulness of the search or seizure. Id. at 520-

21. Before addressing the state’s exploitation argument, 

the court addressed which party bore the burden with 

regard to proving exploitation or its absence. Because of 

the presumption of regularity when the police act under 

authority of a warrant, the court concluded that the 

defendant had an initial burden to establish a “factual 

nexus” between prior illegal police conduct and the evidence 

gained pursuant to an independently valid warrant. Id. at 

521. Once a defendant demonstrates that nexus, the court 

in Johnson wrote, “the presumption of regularity [of the 

warrant] is undermined and the burden of proof fairly may 

be shifted to the government to show that the evidence is 

not tainted by the misconduct.” Id.

This court’s reliance in Hall on Johnson was 

misplaced. By statute, whenever a defendant challenges 

evidence seized following a warrantless search, the state 

bears the burden of proving “by a preponderance of the 

evidence the validity of the search.” ORS 133.693(4); State v. 

Tucker, 330 Or 85, 87, 997 P2d 182 (2000). When the police 

conduct a search and seize evidence without a warrant, as in 

Hall and in this case, there is no presumption of regularity 

to overcome, because there was no warrant and, thus, there 

is no need for a threshold showing by the defendant to shift 

the burden to the state. The state already has the burden to 

prove that the warrantless search was valid.

 Moreover, under the Hall test, parties were required 

to fi rst focus on whether or not a “minimal factual nexus” 

was present, rather than examining the more central issues 

of (1) whether the police had acted unlawfully in making the 

initial stop, and (2) whether the later consent to search and 

subsequently discovered evidence were obtained through 

exploitation of the unlawful police conduct. However, 

exploitation analysis already considers the existence of a 
Cite as 353 Or 129 (2013) 143

“minimal factual nexus,” because determining whether the 

police exploited their unlawful conduct to gain the disputed 

evidence necessarily requires an examination of the causal 

connection between the police conduct and the defendant’s 

consent. Accordingly, the “minimal factual nexus” test 

is not analytically signifi cant in determining whether 

the consent was the product of the illegal police conduct, 

such that evidence obtained pursuant to that search must 

be suppressed. Additionally, it is unnecessary to shift the 

burden of proving lack of exploitation to the state because, 

as noted, the state already bears the burden of proving that 

evidence obtained from a warrantless search is valid.

 Because the “minimal factual nexus” test adopted 

in Hall does not have fi rm grounding in our case law and 

is inconsistent with ORS 133.693(4)—and because the 

application of the test has been unclear in our cases since 

Hall and has proved confusing to litigants and the courts—

we disavow that part of the Hall analysis.

 We now turn to the remaining—and more central—

part of the Hall exploitation test. That test requires 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. Hall posited two scenarios that require 

suppression: 

“A causal connection requiring suppression may exist 

because the police sought the defendant’s consent solely as 

the result of knowledge of inculpatory evidence obtained 

from unlawful police conduct. A causal connection requiring 

suppression also may exist because the unlawful police 

conduct, even if not overcoming the defendant’s free will, 

signifi cantly affected the defendant’s decision to consent.”

Id. Hall identifi ed three factors for assessing whether the 

causal connection “signifi cantly affected” the defendant’s 

decision to consent and thus requires suppression:

“(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 offi cer 

informing the defendant of the right to refuse consent—

that mitigated the effect of the unlawful police conduct.”

Id.
144 State v. Hemenway

 The state asserts that the Hall test does not afford 

suffi cient weight to a defendant’s decision to voluntarily 

relinquish his or her Article I, section 9, right to be free from 

unreasonable governmental searches and seizures because, 

under Hall, suppression almost always will be required 

when consent is granted in close temporal proximity to an 

illegal stop. In Hall itself, the court required suppression, 

“[g]iven the close temporal proximity between the illegal 

detention and defendant’s consent, and the absence of 

any intervening circumstances or other circumstances 

mitigating the effect of that unlawful police conduct.” Id. at 

36. This court’s cases following Hall have reached similar 

results. See, e.g., State v. Rodgers/Kirkeby, 347 Or 610, 630, 

227 P3d 695 (2010) (evidence suppressed under Hall when 

consent granted in close temporal proximity to illegal stop 

and state failed to demonstrate intervening or mitigating 

circumstances); State v. Ayles, 348 Or 622, 637-39, 237 P3d 

805 (2010) (same).

 We agree that the exploitation test announced 

in Hall does not account suffi ciently for the importance 

of a defendant’s voluntary consent to search. Our cases 

demonstrate that, in some situations, a defendant’s voluntary 

consent itself may be suffi cient to demonstrate that the 

search was reasonable and permitted, notwithstanding the 

prior illegality. See Rodriguez, 317 Or at 41-42; Williamson, 

307 Or at 626 (both rejecting proposition that consent “can 

never legitimize” a search following illegal police conduct). 

That legal determination—whether consent has so 

attenuated the connection between the prior illegal conduct 

and the evidence obtained in the consent search—requires a 

court to consider the illegal conduct that comprised the stop, 

the character of the consent, and the causal relationship 

between the two. In Kennedy, for example, the defendant’s 

consent was not “tainted” by the illegal police conduct 

when there was an “absence of any coercive circumstances 

surrounding [the] defendant’s consent” and the defendant 

volunteered consent without prompting from the offi cers. 

290 Or at 506.

The court in Hall asserted that the unprompted grant 

of consent in Kennedy and a similar volunteering of consent 

in Rodriguez were intervening circumstances that cut off 
Cite as 353 Or 129 (2013) 145

the causal connection between the consent and the prior 

illegal conduct. Hall, 339 Or at 34. Hall, however, suggested 

that, had the police asked for (and obtained) the defendant’s 

consent in Rodriguez—rather than the defendant having 

volunteered to be searched—suppression would have been 

required. Id. By asserting that an unprompted consent is 

an intervening circumstance suffi cient to mitigate the taint 

of the prior illegality but positing that a requested consent 

on the same facts would not purge the taint, Hall, in effect, 

created a per se rule that evidence gained from a requested 

consent search always must be suppressed if that request 

occurs in close temporal proximity to the illegal stop and the 

state cannot demonstrate some breach in the causal chain.

 The fact that a consent to search was unprompted 

or unilateral is relevant evidence of the voluntariness 

of the consent; as recognized in Kennedy and Rodriguez, 

unprompted or unilateral consent is less likely to be a 

product of illegal police conduct. However, the fact that 

an offi cer requested consent does not demonstrate that 

the offi cer necessarily exploited the prior illegal conduct to 

gain consent. Rodriguez, for example, involved a voluntary 

consent following an illegal arrest. The offi cer did not directly 

ask the defendant for consent to search, but he did ask the 

defendant if he had any drugs or guns in his apartment. 

Rodriguez, 317 Or at 41. In response to that question, the 

defendant said, “No, go ahead and look.” Id. So, even if the 

defendant’s consent in Rodriguez was “volunteered,” that 

consent was, in fact, prompted by the offi cer’s question about 

drugs and guns. Rodriguez concluded, nevertheless, that 

the offi cer “did not trade on or otherwise take advantage 

of the arrest to obtain defendant’s consent” in light of the 

factual circumstances, including the manner in which the 

defendant had granted consent. Id.

 Properly considered, then, a voluntary consent 

to search that is prompted by an offi cer’s request can be 

suffi cient to purge the taint of illegal police conduct. Whether 

the voluntary consent is suffi cient to purge the taint—or 

whether the police exploited their illegal conduct to obtain 

consent—will depend on the totality of the circumstances. 

We reject the state’s position that voluntary consent during 
146 State v. Hemenway

an unlawful stop necessarily breaks the causal chain 

and makes the evidence admissible, as we do defendant’s 

argument that such consent will rarely, if ever, break the 

causal chain.

 In an effort to clarify this complicated area of law, 

we again review the basic principles at issue. As noted, the 

overarching inquiry is whether the evidence that the state 

seeks to introduce must be suppressed because that evidence 

was obtained in violation of the defendant’s constitutional 

rights. In the context of Hall and this case, where an illegal 

stop preceded a consent to search, that inquiry has two 

prongs. First, the court must assess whether the consent was 

voluntary. If the consent to search was not voluntary, then 

the evidence must be suppressed, because only a voluntary 

consent to search provides an exception in this context to 

the warrant requirement of Article I, section 9. Second, 

even if the consent was voluntary, the court must address 

whether the police exploited their prior illegal conduct to 

obtain the evidence. Evidence may be tainted directly by the 

illegal police conduct, if, for example, the police illegally stop 

a vehicle, allowing them to view contraband that otherwise 

would not have been visible, and then request the driver’s 

consent to search the vehicle as a result of what they saw. 

The consent in that example does not “purge the taint” of the 

prior illegal stop, because the evidence has a direct causal 

connection to the illegal conduct. 

 Evidence also may be tainted if the police obtained 

the consent to search through less direct exploitation of 

their illegal conduct. As noted, Hall identifi ed several 

factors for analyzing whether the police exploited their 

illegal conduct to obtain consent. Those factors include 

the temporal proximity between the illegal police conduct 

and the consent and the presence of any intervening or 

mitigating circumstances, such as Miranda warnings or 

other admonitions. Hall, 339 Or at 35, 35 n 21. Additionally, 

the purpose and egregiousness of the illegal police conduct 

is relevant to whether the police exploited that conduct 

to obtain the defendant’s consent to search. See Brown v. 

Illinois, 422 US 590, 603-04, 95 S Ct 2254, 45 L Ed 2d 416 

(1975) (identifying “the purpose and fl agrancy of the offi cial 

misconduct” as relevant to exploitation analysis under 
Cite as 353 Or 129 (2013) 147

the Fourth Amendment); see also Wolfe, 295 Or at 572 

(explaining that the Brown exploitation factors, including 

“the purpose and fl agrancy of the offi cial misconduct,” 

were relevant to determine the effect of police misconduct 

on the voluntariness of a defendant’s consent to search). 

Hall asserted, without discussion, that “the Brown factor 

of ‘purpose and fl agrancy of the offi cial misconduct’ relates 

to only the deterrence rationale of the Fourth Amendment 

exclusionary rule and has no applicability to the 

exclusionary rule under Article I, section 9.” 339 Or at 35

n 21. Although Hall was correct that the Oregon exclusionary 

rule, unlike the federal one, does not balance the value of 

deterrence against the costs of exclusion in determining 

whether evidence should be suppressed, id. at 23-24, we 

clarify here that the “purpose and fl agrancy” of police 

misconduct nonetheless may play a role in exploitation 

analysis. For example, police misconduct that is intended 

to gain a defendant’s consent may well be more likely to 

substantially affect that defendant’s decision to consent. 

Likewise, particularly egregious police misconduct—such as 

excessive use of force in unlawfully seizing a defendant—is 

more likely to affect the defendant’s decision to consent than 

more restrained police behavior. The verbal and nonverbal 

interactions between a defendant and the police leading up 

to the consent itself are relevant to whether or not the police 

gained consent through exploitation.

 Stated in terms of the state’s burden, the state must 

prove that the defendant’s consent was suffi cient to attenuate 

the taint of the illegal police conduct. We emphasize that the 

state is not required to prove that there was no causal link 

whatsoever between the illegal conduct and consent; rather, 

the state must prove that the illegal police conduct was a 

minor or remote cause. See Rodriguez, 317 Or at 40 (“Mere 

physical presence as a result of prior unlawful conduct does 

not constitute exploitation of that conduct. Exploitation 

occurs when the police take advantage of the circumstances 

of their unlawful conduct to obtain the consent to search.”). 

As this court often has stated, but-for causation—that, as 

a factual matter, the illegal police conduct was a necessary 

link in the sequence of events that led to the consent search 

and the evidence—is insuffi cient to require suppression. 
148 State v. Hemenway

Kennedy, 290 Or at 500-01. If the defendant shows that he 

or she was stopped illegally and challenges the validity of 

his or her consent to search, then the state is required to 

prove that the police did not exploit their illegal conduct 

to obtain consent. If the state fails to make that showing, 

the evidence will be suppressed. However, if the state can 

show that the illegal conduct did not “signifi cantly affect[ ]” 

the consent that the police obtained, then the state has 

established that the police did not exploit that conduct, and 

suppression is not required. Hall, 339 Or at 35.

 In analyzing exploitation, it must be remembered 

that Article I, section 9, prohibits “unreasonable” searches 

and seizures. As the preceding discussion demonstrates, 

the test for whether a consent search conducted following 

an illegal stop comports with Article I, section 9, cannot 

be reduced to a simple formula. On the contrary, like all 

reasonableness determinations, whether a particular search 

or seizure is unreasonable necessarily depends on the facts 

of each case.

We again emphasize that, in addition to analyzing 

possible exploitation of prior police misconduct—the issue 

in this case—the trial court must consider whether the 

defendant’s consent was voluntary. If the defendant’s 

consent was not voluntary, the evidence obtained as a result 

of that search must be suppressed, regardless of whether any 

exploitation occurred. See, e.g., State v. Guggenmos, 350 Or 

243, 261-62, 262 n 8, 253 P3d 1042 (2011) (finding no reason 

to determine whether exploitation analysis would require 

suppression of evidence because determination that consent 

was not voluntary required suppression); Williamson, 307 

Or at 626-27 (Carson, J., concurring) (“The validity of 

[the defendant’s] consent determines the outcome of this 

case. If the consent were involuntary and, thus, invalid, 

the subsequent search and resulting seizure, arrest, and 

conviction likewise were invalid.”). Because the tests for 

exploitation and voluntariness, while overlapping, are not 

identical, it is important that the trial court consider both 

tests in deciding whether to suppress evidence obtained in a 

consent search that follows an illegal stop.

 We turn to several issues that the dissent raises. 

The dissent argues, among other things, that we have 
Cite as 353 Or 129 (2013) 149

overruled Hall and other cases sub silentio; abandoned an 

“objective” and “logical” test for one that is “more intrusive 

and less clear”; and failed to “grapple suffi ciently with 

whether defendant’s consent was * * * a product of the 

offi cer’s unlawful stop and detention.” 353 Or at 163-64 

(Walters, J., dissenting). The dissent is wrong on each count. 

In this case, we clarify the rule announced in Hall. The 

state asked us to overrule Hall, arguing that, if a defendant 

who is unlawfully stopped by police voluntarily consents 

to a search, then that consent always makes the search 

reasonable and the evidence seized in the search admissible. 

We expressly reject that argument. Instead, we adhere 

to Hall in holding that evidence obtained from a consent 

search must be suppressed if the consent was obtained 

through exploitation of the unlawful police conduct. Under 

Hall—and under our decision today—the state must prove 

that “the defendant’s consent was independent of, or only 

tenuously related to, the unlawful police conduct.” Hall, 339 

Or at 35. That analysis is consistent with our reliance in 

Hall on long-standing exploitation analysis derived from the 

United States Supreme Court’s decision in Wong Sun and 

this court’s cases following Wong Sun, including Kennedy 

and Rodriguez. In this case, as discussed above, 353 Or at 

143-47, we modify the exploitation test announced in Hall, 

because we conclude that it did not give suffi cient weight 

to a defendant’s voluntary consent to a search, as well as to 

other factors such as the purpose and egregiousness of the 

police misconduct.3

 We also disagree that Hall established a logical, 

easily applied test that we have now abandoned for 

one that is more intrusive and less clear. Hall, as noted, 

followed the exploitation analysis of Wong Sun and 

required consideration of “the effect of the unlawful police 

conduct upon the defendant’s decision to consent.” 339 

Or at 32. That determination “requires examination of 

3

 The dissent argues that we have “reverse[d]” and “effectively overrul[ed]” 

Hall and Rodgers/Kirkeby, suggesting that the results in those cases would 

have been different under the test that we adopt here. Whether the outcome in 

Hall and Rodgers/Kirkeby would have been different under the analysis set out 

here is speculative. The issue whether a defendant’s consent was the “product” 

of unlawful police conduct or, put differently, whether police “exploited” their 

unlawful conduct to obtain consent, is necessarily dependent on the facts of the 

particular case and on the record developed in the trial court.
150 State v. Hemenway

the specifi c facts at issue in a particular case,” including 

“temporal proximity” between the unlawful police conduct 

and the defendant’s consent, “intervening circumstances,” 

and other circumstances that “mitigated the effect of the 

unlawful police conduct.” Id. at 35. In this case, we point 

out that the focus on “temporal proximity” too easily leads 

to the conclusion that any consent search that occurs when 

a person is unlawfully stopped is invalid, when the betterframed question is whether police exploited the unlawful 

stop to obtain the consent. It is true that that test requires 

consideration of the totality of the circumstances of the stop 

and the police-citizen encounter, but that is often the case 

in deciding search and seizure cases.

 Finally, the dissent’s claim that we fail to “grapple 

suffi ciently” with the question whether the consent given 

in this case was the “product” of the unlawful stop seems 

to contradict its argument in favor of a simpler test. As our 

application below of the test that we have articulated to the 

facts of this case demonstrates, the test is more nuanced 

than that announced in Hall and takes into account 

the totality of the circumstances of the encounter. As we 

describe below, that test provides a more careful and more 

full consideration of the facts that lead to a determination 

as to whether the consent was the “product” of the unlawful 

police conduct than did the test in Hall.

APPLICATION

 We return to the issue in this case. The Court of 

Appeals concluded that defendant had been stopped “when 

the movement of his truck was physically constrained, he 

was directed to move to a location to speak with a deputy, 

his identifi cation was obtained, and he was questioned 

by the deputy.” Hemenway, 232 Or App at 411. The court 

also determined that the stop was unlawful because the 

police had lacked reasonable suspicion that defendant was 

engaged in criminal conduct. Id. The state does not challenge 

the Court of Appeals’ determination that defendant was 

illegally stopped, and we therefore do not consider that 

issue further.

 After being stopped, defendant then consented to 

three searches. Defendant agrees that his consent to search 
Cite as 353 Or 129 (2013) 151

was “voluntary” in the sense used in our cases—that is, that 

the consent was not coerced. The only question, then, is 

whether defendant’s consent was gained through exploitation 

of the illegal stop. The Court of Appeals concluded that it 

was, stating that, because defendant’s consent had occurred 

“contemporaneously with the stop, with no intervening or 

mitigating factors[,] [i]t was therefore dependent on the 

unlawful stop and was not attenuated” under Hall. Id. at 

416.

 Because exploitation is a fact-intensive inquiry, 

we review the facts in some detail. Defendant’s girlfriend, 

Taylor, called 9-1-1 regarding the whereabouts of her son, 

who was overdue from a visit to a friend’s house, and an 

unspecifi ed problem with electrical power at the house. 

Close to midnight and several hours after Taylor had 

placed the call, two offi cers arrived at Taylor’s residence in 

separate vehicles. Defendant was in the process of moving 

out, and his truck, fi lled with his belongings, was parked 

in the driveway. The offi cers parked in the driveway, 

behind defendant’s truck. Both Taylor and defendant were 

outside the residence when the offi cers arrived. Deputy 

Orella observed a rifl e in defendant’s truck and told Deputy 

Russell. Orella approached Taylor and directed defendant 

to speak with Russell.

 Defendant stated that he was moving out and that 

he had a handgun and another fi rearm in the truck, in 

addition to the rifl e. Russell asked if defendant was a felon 

and requested defendant’s name and date of birth, which 

defendant provided. Russell and defendant engaged in 

what the trial court described as “chit-chat of an innocuous 

nature,” and, according to Russell:

“[Defendant] asked if he could have a cigarette, and I said 

that’s no problem. Asked him if he’d have a problem with 

me searching him just to put me at ease and then he could 

have his hands wherever he wanted and we wouldn’t have 

to worry about, you know, knowing if there [were] weapons 

or anything else on him he shouldn’t have.”

The trial court found that Russell was “concerned because 

the [d]efendant had his hands in his pockets which were 

bulky, had weapons in the vehicle and it was very dark at 

their location.” Defendant consented to that search. Russell 
152 State v. Hemenway

found a small tin in defendant’s pocket and asked if he 

could open it. Defendant again consented, and the deputy 

found drug paraphernalia and residue. The offi cer arrested 

defendant and gave him Miranda warnings. Defendant 

then consented to a search of the residence. The trial court 

found that the tone of the interactions between defendant 

and Russell had been “normal” prior to the arrest and that 

defendant had been “cooperative and forthcoming.”

 In this court, as noted, the state does not challenge 

the Court of Appeals’ determination that, at the time of 

defendant’s consents to the searches, he had just been 

unlawfully stopped. Accordingly, the temporal proximity 

factor weighs in defendant’s favor. See Ayles, 348 Or at 637.

 On the other hand, there is no evidence that the 

police conduct in this case was egregious; indeed, the trial 

court described the interaction between Russell and defendant 

as “amicable and casual,” and the record amply supports 

that conclusion. Regarding the purpose of the police actions, 

the stop occurred around midnight during a welfare check 

initiated by defendant’s girlfriend, who was concerned about 

the whereabouts of her son. Although the offi cers parked 

their cars in the driveway behind defendant’s truck, there 

was no indication that they did so for the purpose of blocking 

him from leaving. Moreover, the police had observed a rifl e 

in defendant’s truck when they fi rst arrived, before any stop 

occurred. Defendant then had volunteered that he was moving 

his possessions out of the house and that he also had a handgun 

and another fi rearm in the truck. The offi cers’ interactions 

with defendant, then, were—at least initially—for the lawful 

purpose of investigating Taylor’s call to the police. There is no 

indication that, when the offi cers stopped defendant, they did 

so with the purpose of searching for evidence, in contrast to 

Williamson, 307 Or at 623, 623-24 n 1.

 We turn to defendant’s three consents to search. 

As to each consent, the trial court found that there was no 

evidence of police coercion, either express or implied, and 

that each consent had been voluntary. On review, defendant 

does not dispute that conclusion. He argues, instead, that 

the police exploited their illegal stop to obtain his consent 

to the searches that led to the evidence upon which he was 
Cite as 353 Or 129 (2013) 153

convicted and that, under Hall, the evidence therefore must 

be suppressed. The trial court found that the police made no 

verbal or physical threats and did not approach defendant 

with weapons drawn. The trial court described defendant as 

“cooperative” throughout the entire encounter.

 As to defendant’s fi rst consent, the trial court found 

that, when Russell had asked to search defendant to “ease 

his mind,” defendant “readily agreed.” Defendant testifi ed 

at the suppression hearing that he consented to the fi rst 

search to show that “I wasn’t any kind of a threat to him.” 

The evidence supports the trial court’s conclusion that 

defendant had consented to “ease [Russell’s] mind.” The 

cause of the consent, then, does not appear to be the illegal 

conduct by the police. Rather, the setting of the interaction—

the welfare check, the darkness, defendant’s acknowledged 

possession of fi rearms in his truck, and defendant’s desire 

to have a cigarette while the police conducted the welfare 

check—and the testimony of defendant and the offi cers 

indicates that defendant’s consent was not the product of 

the unlawful stop. Aside from the close temporal proximity 

to the stop, there is no evidence that Russell exploited 

any aspect of the stop to obtain defendant’s fi rst consent. 

Accordingly, we hold that defendant’s fi rst consent was not 

a product of the illegal stop.

 During the fi rst search, Russell discovered a small 

tin and requested consent to open it. Defendant responded, 

according to Russell, in a “low mopey voice” that he could, 

and Russell discovered a methamphetamine pipe and 

methamphetamine residue. Russell did not threaten or 

cajole defendant regarding the tin; he simply requested 

consent to open it. There is no evidence that Russell took 

advantage of the fact that defendant was unable to terminate 

the encounter to gain defendant’s consent to open the tin. 

Given that the fi rst search, which led to the discovery of the 

tin, was valid and that there is no indication in the record 

that Russell exploited the stop to gain defendant’s consent 

to open the tin, the evidence in the tin was not tainted by the 

prior illegal conduct. Because the drug evidence from the tin 

was not tainted by the unlawful stop, defendant’s Article I, 

section 9, right to be free from unreasonable seizure would 

not be vindicated by suppressing that evidence.
154 State v. Hemenway

 After discovering the contraband, Russell arrested 

defendant and gave him Miranda warnings. Defendant 

acknowledged that there might be more drugs in the house 

and consented to a search of the house. Defendant then led 

Russell to more contraband. As noted, defendant’s prior 

consents were valid, and, therefore, the evidence gained 

from those searches was not tainted by the illegal stop. 

Discovery of that drug evidence gave Russell probable 

cause to arrest defendant. Moreover, defendant had been 

given Miranda warnings before Russell requested consent 

to search the house. Accordingly, defendant’s arrest was 

lawful, and defendant’s voluntary consent to search the 

house following his arrest did not violate Article I, section 9, 

of the Oregon Constitution.

 The decision of the Court of Appeals is reversed. 

The judgment of the circuit court is affi rmed.

LANDAU, J., concurring.

 I agree with the majority’s disposition and reasoning 

on the merits in this case. I write separately to address 

the state’s argument that we should reexamine the search 

and seizure guarantee of Article I, section 9, in accordance 

with this court’s “usual paradigm” for constitutional 

interpretation. The majority summarily rejects the state’s 

argument. State v. Hemenway, 353 Or 129, 137-38, ___ P3d 

___ (2013). I agree with the majority’s ultimate conclusion, 

but I think that it is important to set out some of the reasons 

why that conclusion is correct.

 The state’s argument is predicated on Stranahan 

v. Fred Meyer, Inc., 331 Or 38, 11 P3d 228 (2000), in which 

this court observed that “it long has been the practice of 

this court to ascertain and give effect to the intent of the 

framers” of a disputed provision of the state constitution. Id. 

at 54 (internal quotation marks omitted). The court invited 

litigants to present arguments that we should reconsider 

prior case law because of a “failure on the part of this 

court at the time of the earlier decision to follow its usual 

paradigm for considering and construing the meaning of the 

provision in question.” Id. In light of what this court said in 

Stranahan, I do not fault the state for making the argument 

that it advances in this case. I do, however, take issue with 
Cite as 353 Or 129 (2013) 155

Stranahan and its stated commitment to a jurisprudence of 

original intent.

 At the outset, I question the accuracy of Stranahan’s 

observation that such has been the longstanding practice 

of the court. If the court meant that there are some very 

old cases in which the court applied that interpretive 

approach, I suppose the observation is true enough.1

 But 

I take Stranahan to assert that originalism2

 is a wellestablished methodology that this court has consistently 

applied for a long time. In that regard, Stranahan is 

incorrect. Sometimes the court has applied that interpretive 

approach, and sometimes it has not. See, e.g., Dodd v. Hood 

River County, 317 Or 172, 180-82, 855 P2d 608 (1993) (state 

constitutional takings clause interpreted without reference 

to framers’ intentions); State v. Mai, 294 Or 269, 272, 656 

P2d 315 (1982) (state constitutional compulsory process 

clause is construed “in the same way as the [United States] 

Supreme Court construed the virtually identical federal 

counterpart” and without reference to the intention of its 

Oregon framers).

 That said, there certainly are a number of cases 

in which the court determined the meaning of the state 

constitution by reference to the “framers’ intentions.” In 

fact, in more than a few cases, the court has effectively 

limited the scope and meaning of a provision of the state 

constitution to whatever its framers would have understood 

it to mean in 1857. At the very least, there is language in 

a number of those opinions that has understandably led 

parties—such as the state in this case—to argue that our 

state’s constitution means no more than what it meant to 

its framers at the time of its adoption.

1

 The court in Stranahan cited Jones v. Hoss, 132 Or 175, 178, 285 P 205 

(1930). There are actually older cases, such as Noland v. Costello, 2 Or 57, 58-59 

(1863), that refer to the intentions of the framers of the state constitution.

2

 I use the term somewhat loosely to refer to the mode of constitutional 

interpretation that regards the meaning of a provision as frozen in time in 

accordance with the intentions of those who adopted the constitution or with the 

meaning of the constitution as it would have been understood at that time. I 

understand that, among scholars, there is a difference between original intent and 

original public meaning, see, e.g., Keith E. Whittington, The New Originalism, 2 

Geo J L & Pub Pol’y 599 (2004) (describing transition among originalist scholars 

from emphasizing original intent to original public meaning), but that is a 

distinction that this court’s prior cases have not consistently recognized.
156 State v. Hemenway

 In Lakin v. Senco Products, Inc., 329 Or 62, 72, 987 

P2d 463 (1999), for instance, this court sweepingly declared 

of the right to a jury trial guaranteed in Article I, section 17, 

that “whatever the right to ‘Trial by Jury’ meant in 1857, 

it means precisely the same thing today.” In Smothers v. 

Gresham Transfer, Inc., 332 Or 83, 118, 23 P3d 333 (2001), to 

pick another example, the court announced that the purpose 

of the remedy clause of Article I, section 10, “is to protect 

absolute common-law rights respecting person, property, 

and reputation, as those rights existed when the Oregon 

Constitution was drafted in 1857.” And in State v. Delgado, 

298 Or 395, 401, 692 P2d 610 (1984), to pick still another, the 

court held that the question whether the state constitutional 

right to bear arms applies to the possession of a switch-blade 

knife depends on “whether the drafters would have intended 

the word ‘arms’ to include the switch-blade knife[.]”

 In my view, the idea that the original state constitution means no more than what it meant to its framers in 

1857 is untenable. To begin with, all too often, the state of 

the historical record is such that we simply cannot know 

what the framers had in mind.3

 We do not even know with 

any certainty that the framers intended that their intentions 

or understandings should count in future constitutional 

interpretation.4

 But even when the historical record does 

3

 When faced with such circumstances, this court in some cases has attributed 

to the framers of the Oregon Constitution knowledge of information that there 

is no evidence they actually possessed. See, e.g., State v. Cookman, 324 Or 19, 

28-31, 920 P2d 1086 (1996) (attributing to the framers of the Oregon Constitution 

an intention to follow an 1822 Indiana Supreme Court decision interpreting the 

1816 version of the Indiana Constitution that was the predecessor to the 1851 

Indiana Constitution that is presumed to be the basis for Oregon’s ex post facto

clause, because the decision was, at least in a temporal sense, “available” to the 

Oregon framers). The effect is to reconstruct a presumed intention that we have 

no way of knowing accords with reality.

4

 That the delegates to the Oregon Constitutional Convention expressly 

declined to create any offi cial record of their debates would seem to suggest that 

they did not care one way or the other. One of the arguments in favor of keeping 

a record of the convention was precisely to preserve a record of the intentions of 

the framers for future reference. Charles H. Carey ed., The Oregon Constitution 

and Proceedings and Debates of the Constitutional Convention of 1857 140 (1926). 

But the argument failed to carry the day. Moreover, any suggestion that the 

prevailing interpretive conventions of the day presumed that the intentions or 

understandings of the framers would control is at least debatable. See, e.g., John 

P. Figura, Against the Creation Myth of Textualism: Theories of Constitutional 

Interpretation in the Nineteenth Century, 80 Miss LJ 587 (2010) (summarizing 

various interpretive approaches refl ected in nineteenth-century treatises).
Cite as 353 Or 129 (2013) 157

permit some inferences and conclusions about the original 

intentions and understandings of the framers, the idea that 

those intentions and understandings are controlling makes 

the state’s highest law little more than a historical artifact 

of an era that few in this century actually would choose as a 

determinant of individual rights and government authority—

an era, it should be remembered, when women possessed few 

political and civil rights, when the common law recognized 

no protections for workers, and when the people decreed 

that a “negro” or “mulatto” who did not already reside in the 

state when the constitution was adopted was not permitted 

to reside in Oregon. Or Const, Art I, § 35, repealed 1926.

 That is not to say that the historical context for 

the adoption of a constitutional provision is irrelevant. All 

provisions of a state constitution were adopted at a specifi c 

point in history. That history—including the intentions or 

understandings of the framers (or perhaps more precisely, 

the voters)5

—is always relevant. State constitutions, after all, 

are commands designed to instruct citizens and government 

offi cials about the powers of government and the limitations 

on the exercise of those powers. As such, those commands 

invite consideration of their intended purposes.6

 A number of constitutional provisions are of relatively 

recent vintage, adopted with comprehensive records as to the 

intentions or understandings of their makers, and prepared 

with the obvious expectation that those records be taken 

into account in determining the meaning of the provisions. 

In such cases, it makes much sense to heed carefully the 

available evidence of their intended purposes.7

5

 It is common to refer to the intentions of the “framers,” but, given that the 

constitution derives its force from ratifi cation by the people, it is actually the voters, not the framers in the constitutional convention, whose intentions or understandings count. See Monaghan v. School District No. 1, 211 Or 360, 367, 315 

P2d 797 (1957) (“The constitution derives its force and effect from the people who 

ratifi ed it and not from the proceedings of the convention where it was framed[.]”).

6

 Thus, Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992), appropriately 

requires an examination of “the historical circumstances” that led to the adoption 

of a provision of the original constitution. Priest, however, does not require, as 

some of this court’s later cases have suggested, that those historical circumstances 

determine the meaning of the provision at issue.

7

 Accordingly, the approach to constitutional interpretation of amendments 

adopted by initiative set out in Ecumenical Ministries v. Oregon State Lottery 

Comm., 318 Or 551, 559-60, 871 P2d 106 (1994), with its focus on ascertaining the 

intentions of the people who adopted the amendments, seems correct to me.
158 State v. Hemenway

 But much of the original constitution consists of 

vaguely worded clauses adopted a century and a half in the 

past, with little or no record of their meanings or purposes. 

In such cases, it is diffi cult to speak with any precision about 

the intentions of the framers. Moreover, whatever we do 

know of the specifi c intentions of the framers of the Oregon 

Constitution is diffi cult to apply to modern circumstances that 

were hardly in the contemplation of persons who lived in the 

middle of the nineteenth century. At best, the historical record 

will offer, in very general terms, an idea of some underlying 

principles that may have animated the original provisions, 

which principles may be applied to modern circumstances.8

 The search and seizure clause of Article I, section 

9, that is at issue in this appeal is an excellent case in 

point. The clause requires that searches and seizures 

not be “unreasonable.” Beyond the fact that the provision 

was obviously based on the Fourth Amendment, there is 

a complete absence of direct historical evidence of what 

the framers intended or what the voters understood about 

the provision. It was adopted without discussion in the 

constitutional convention, and there is no record of public 

debate about it during ratifi cation. See generally Claudia 

Burton & Andrew Grade, A Legislative History of the Oregon 

Constitution of 1857—Part I (Articles I & II), 37 Willamette 

L Rev 469, 515 (2001) (search and seizure provisions were 

passed with “no reported comment or debate”). Any attempt to 

reconstruct what the framers or voters might have intended 

in adopting Article I, section 9, will yield only speculation. 

There is no real consensus among historians about what 

people thought about search and seizure guarantees in 

the late-eighteenth century. There is an especially fi erce 

debate among scholars about the original understanding 

of the Fourth Amendment.9

 There is perhaps slightly less 

8

 Some of this court’s more recent cases properly refl ect that interpretive 

approach. See, e.g., State v. Davis, 350 Or 440, 446, 256 P3d 1075 (2011) (“[The 

purpose of historical analysis] is not to freeze the meaning of the state constitution 

in the mid-nineteenth century. Rather it is to identify, in light of the meaning 

understood by the framers, relevant underlying principles that may inform our 

application of the constitutional text to modern circumstances.”)

9

 The crux of the debate concerns whether the framers of the Fourth Amendment 

understood or intended that searches and seizures generally require warrants. 

Strictly speaking, the Fourth Amendment says only that searches and seizures be 

reasonable and that warrants should not issue except on probable cause. Some 
Cite as 353 Or 129 (2013) 159

controversy about the general understanding of state search 

and seizure clauses in the early- to mid-nineteenth century; 

it appears that most courts at that time interpreted them 

merely to require that searches and seizures be “reasonable” 

under the circumstances in which the actions occurred.10

 A particularly signifi cant problem with trying to 

apply Article I, section 9, as it would have been understood 

back in 1857 is the fact that its very wording invites analysis 

that is not historically bound. The requirement that searches 

and seizures be “reasonable” seems to me to necessitate 

constant reassessment in light of changing circumstances. 

Trying to determine what is reasonable today by looking 

solely to nineteenth-century history seems to me akin to 

trying to drive a vehicle on an interstate highway by looking 

only in the rearview mirror.

 In short, the majority is correct in rejecting the 

state’s contention that we should interpret the search and 

seizure clause of Article I, section 9, to refl ect only the 

intentions or understandings of its framers in 1857. My point 

in writing separately is to explain my view that there are 

important underlying reasons why we should not interpret 

the search and seizure clause that way—reasons that 

scholars, however, argue that the framers understood the amendment implicitly 

to require warrants. See, e.g., William J. Cuddihy, The Fourth Amendment: 

Origins and Original Meaning 1602-1791 (2009). Others argue that the Fourth 

Amendment merely requires that searches and seizures not be unreasonable. See, 

e.g., Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv L Rev 757 

(1994). Still others contend that the “reasonableness clause” of the amendment 

was intended only as a preamble and that the sole purpose of operative provision 

was to limit the issuance of warrants. See, e.g., Thomas Y. Davies, Recovering the 

Original Fourth Amendment, 98 Mich L Rev 547 (1999). And yet others argue that 

the Fourth Amendment was originally intended only to regulate the issuance of 

warrants to search houses. See, e.g., David E. Steinberg, The Uses and Misuses of 

Fourth Amendment History, 10 U Pa J Const L 581 (2008).

10 See, e.g., Rohan v. Sawin, 59 Mass 281, 284-85 (1850) (purpose of state and 

federal search and seizure guarantee was solely to require that warrants issue on 

sworn complaint establishing probable cause); Wakely v. Hart, 6 Binn 315, 318 (Pa 

1814) (state constitution does not prohibit warrantless searches and requires only 

that warrants issue on probable cause); Mayo v. Wilson, 1 NH 53, 60 (1817) (state 

constitution “does not seem intended to restrain the legislature from authorizing 

arrests without warrant, but to guard against the abuse of warrants issued by 

magistrates”). In fact, as late as 1927, this court held that “the possession of 

[a] warrant is not the controlling consideration of whether a search is reasonable 

or unreasonable. An offi cer armed with a warrant may make an unreasonable 

search. An offi cer without a warrant may make a reasonable search.” State v.

De Ford, 120 Or 444, 452, 250 P 220 (1927).
160 State v. Hemenway

counsel the exercise of caution and skepticism in assessing 

the signifi cance of such nineteenth-century intentions and 

understandings as we interpret other provisions of the 

original constitution, as well.

WALTERS, J., dissenting.

 The majority is bold, and it is deft. The majority 

begins by affi rming the rule of stare decisis, declaring that 

“the party seeking to change a precedent must assume 

responsibility for affi rmatively persuading us that we 

should abandon that precedent” and deciding that the state 

did not meet its burden of persuasion in this case. 353 Or 

at 137. Then, by sleight of hand, the majority reverses its 

holdings in State v. Hall, 339 Or 7, 115 P3d 908 (2005), and 

State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), 

a case that this court decided just three years ago.

 In Hall, police offi cers unlawfully and unconstitutionally stopped the defendant without reasonable suspicion 

of criminal activity. During the illegal stop, the offi cers 

asked for and the defendant gave his consent to search. 

The offi cers were polite and did not threaten or cajole the 

defendant. There was no evidence that the offi cers had acted 

egregiously. The court nevertheless held that the evidence 

that the offi cers obtained as a result of the consent search 

was not admissible because the state had not proved “that 

defendant’s decision to consent, even if voluntary, was not 

the product of the preceding violation of defendant’s rights 

under Article I, section 9.” 339 Or at 29 (emphasis added).

 In this case, the police also unlawfully and unconstitutionally stopped defendant without reasonable suspicion 

of criminal activity and asked him for his consent to 

search. The majority holds that the evidence that the police 

obtained when defendant fi rst consented to the search was

admissible because it was not the product of the preceding 

violation. 353 Or at 154. Yet the majority does not overrule 

its holding in Hall, nor does it distinguish it.

 In 2010, this court reaffi rmed its holding in Hall in 

State v. Rodgers/Kirkeby, 347 Or 610. In Rodgers/Kirkeby,

the court held that the defendants’ consents to search were 
Cite as 353 Or 129 (2013) 161

the products of unlawful detention and must be suppressed. 

The court explained:

“It was during the period of unlawful detention that the 

offi cers requested that each defendant consent to a search. 

Here, as in Hall, neither defendant spontaneously granted 

the offi cers consent to search; instead, each defendant gave 

his consent in response to the offi cers’ requests. The state 

does not advance any argument to this court to satisfy 

its burden under Hall that intervening circumstances 

or factors severed the connection between the unlawful 

seizures and defendants’ consent. Thus, as in Hall, given 

the temporal proximity between the illegal detention 

and each defendant’s consent, and in the absence of any 

other intervening circumstances, or other circumstances 

mitigating the effect of the unlawful seizures of each 

defendant, we conclude that each defendant’s consent, 

even if voluntary, was the product of police conduct that 

violated Article I, section 9. Because the consent to search 

in each case was a product of the unlawful seizure, the 

evidence obtained during the search, in both cases, must 

be suppressed.”

Id. at 630. The offi cers in Rodgers/Kirkeby did not threaten 

or cajole the defendants. There was no evidence that the 

offi cers acted in an egregious manner. If the holding in 

Rodgers/Kirkeby is no longer good law, why does the 

majority not overrule it? If Rodgers/Kirkeby is still good 

law, why does the majority not distinguish it?

 The majority also fails to contend with other cases 

that should carry precedential weight. In Hall, the court 

carefully considered those cases and said:

 “In our view, the circumstances at issue here more 

closely resemble the circumstances at issue in DominguezMartinez and Toevs, rather than the circumstances at issue 

in Kennedy and Rodriguez. Similarly to the defendants in 

Dominguez-Martinez and Toevs, defendant here consented 

to the search during an unlawful stop. Unlike the 

defendants in Rodriguez and Kennedy, defendant’s grant of 

consent was not spontaneous but, instead, was made only 

in response to [the offi cer’s] request that defendant allow a 

search. [The offi cer] made that request immediately after 

he had questioned defendant about whether defendant was 

carrying any weapons or illegal drugs and while he was 

waiting for the results of defendant’s warrant check. Given 
162 State v. Hemenway

the close temporal proximity between the illegal detention 

and defendant’s consent, and the absence of any intervening 

circumstances or other circumstances mitigating the effect 

of that unlawful police conduct, we cannot say that the 

state has proved that defendant’s decision to consent, even 

if voluntary, was not the product of the preceding violation 

of defendant’s rights under Article I, section 9. We 

therefore conclude that the unlawful seizure of defendant 

vitiated his consent to the search and, for that reason, the 

evidence from that search is inadmissible under Article I, 

section 9.”

339 Or at 36. In this case, the majority relies heavily on 

Rodriguez, a case that the court considered and distinguished 

in Hall, but says nothing about Dominguez-Martinez

and Toevs, the cases that the court cited in support of its 

decision in Hall. Are those cases no longer good law, or are 

they distinguishable? The majority does not say.

 The majority justifi es its failure to grapple with the 

need for stability and predictability that the rule of stare 

decisis fosters by claiming that it has merely “clarifi ed” Hall

while continuing to adhere to the precept that a court must 

suppress evidence obtained from a consent search if the 

consent was obtained “through exploitation of the unlawful 

police conduct.” 353 Or at 137.1 Hall and Rodgers/Kirkeby 

undoubtedly stand for that precept, but they do not stand for 

that precept alone. They also stand for the rule that evidence 

is obtained through exploitation when the police unlawfully 

stop citizens and, while continuing to detain them without 

legal authority to do so, request that they submit to search. 

Under Hall and Rodgers/Kirkeby, the law has been that, 

in the absence of intervening or mitigating circumstances, 

the evidence that the police obtain must be suppressed even 

when the citizens’ consents to search are voluntary. This 

court may distinguish or even reverse those holdings, but 

it should do so openly and in accordance with the rule of 

stare decisis. Because the majority does otherwise, I ask the 

question that all citizens have the right to ask: What force 

1

 In 2011, this court reiterated that “[f]ew legal principles are so central to our 

tradition as the concept that courts should ‘[t]reat like cases alike,’ * * * and stare 

decisis is one means of advancing that goal.” Farmers Ins. Co. v. Mowry, 350 Or 

686, 698, 261 P3d 1 (2011) (second alteration in original; citation omitted).
Cite as 353 Or 129 (2013) 163

does the rule of law have if a court can avoid it by refusing 

to call it by its right name?

 I press my point because, in effectively overruling 

Hall and Rodgers/Kirkeby, the majority changes the 

exclusionary rule as Oregon has known it and, in my view, 

does so to the detriment of Oregonians. The majority defends 

its decision by saying that Hall’s exploitation test “failed to 

give suffi cient weight to a defendant’s voluntary consent to 

a search * * *.” 353 Or at 149. But as the majority so aptly 

explains, whether a defendant’s consent was voluntary is a 

question that is distinct from the question of whether the 

evidence that the police obtained was a product of their 

illegal conduct. Id. at 12.

 The aim of the Oregon exclusionary rule is to restore 

a defendant to the same position as if “the government’s 

offi cers had stayed within the law.” State v. Davis, 295 

Or 227, 234, 666 P2d 802 (1983). Before today, this court 

had “rejected the view that the Oregon exclusionary rule 

is predicated upon a deterrence rationale” and instead 

had adopted a rule “that serves to vindicate a defendant’s 

personal rights. In other words, the right to be free from 

unreasonable searches and seizures under Article I, section 

9, also encompasses the right to be free from the use of 

evidence obtained in violation of that state constitutional 

provision.” Hall, 339 Or at 24 (citing State v. Davis, 313 Or 

246, 249, 834 P2d 1008 (1992)).

 The majority’s new test focuses not on whether the 

police violated a defendant’s constitutional right against 

unreasonable seizure and obtained evidence as a result, but 

on whether the police also engaged in purposeful or additional 

misconduct that may have affected the defendant’s decision 

to consent. The majority justifi es consideration of those 

factors by explaining that

“police misconduct that is intended to gain a defendant’s 

consent may well be more likely to substantially affect 

that defendant’s decision to consent. Likewise, particularly 

egregious police misconduct—such as excessive use of force 

in unlawfully seizing a defendant—is more likely to affect 

the defendant’s decision to consent than more restrained 

police behavior.”
164 State v. Hemenway

353 Or at 147. I do not quarrel with that reasoning; I 

question its role in the exploitation analysis.

 When the police unconstitutionally stop or detain 

a defendant and act with an illegal purpose or engage in 

egregious misconduct, a court must consider whether the 

defendant’s subsequent consent to search is voluntary. Police 

actions that deprive a defendant of constitutional rights or 

exert unconstitutional coercion may render a defendant’s 

consent involuntary. See State v. Kennedy, 290 Or 493, 624 

P2d 99 (1981). But, as the majority acknowledges, even 

when a defendant’s consent is voluntary, evidence that is the 

product of illegal police misconduct is subject to suppression.

353 Or at 140. In this case, the majority’s decision that the 

evidence that the police obtained was admissible because 

the police actions, although illegal, were not egregious and 

may not have affected defendant’s decision to consent may 

refl ect an accurate assessment that defendant’s consent 

was voluntary in the sense that it was an act of free will. 

However, the majority fails to grapple suffi ciently with 

whether defendant’s consent was, nevertheless, a product of 

the offi cer’s unlawful stop and detention. Hall and Rodgers/

Kirkeby recognize the reality of the power imbalance that 

exists when the police use their authority to unlawfully stop 

and detain a person and then, while continuing to exert that 

authority, seek consent to search. The majority confl ates the 

voluntariness and exploitation prongs of the analysis and 

wrongly fails to give suffi cient effect to the constitutional 

mandate of the exclusionary rule in Oregon—that courts 

apply it to vindicate a defendant’s personal right against 

unconstitutional seizure. Hall, 339 Or at 24; Davis, 313 Or 

at 249.

 The majority’s new test also upends the Oregon 

exclusionary rule in other ways. Before today, the inquiry 

that the court used to decide whether police had exploited 

an illegality and obtained evidence that must be suppressed 

was an objective, logical one that did not require analysis 

of the subjective motivation of the police in seeking a 

defendant’s consent to search or of the subjective effect that 

the police misconduct had on a defendant’s decision to give 

consent. By adopting an exploitation test that now permits 

or even requires both, the majority shifts away from the 
Cite as 353 Or 129 (2013) 165

objectivity and logic of the exploitation prong of the analysis 

and imposes a test that is both more intrusive and less clear. 

It may seem right to instruct courts and offi cers to consider 

“the totality of the circumstances,” but police offi cers and 

trial courts endeavor to make decisions that this court will 

uphold and are entitled to more guidance than the majority 

gives. If the facts unfold as they did in Hall and Rodgers/

Kirkeby, must the trial court suppress the evidence as this 

court required in those cases, or, considering the fact that 

the police were polite, must the trial court now admit the 

evidence?

 Until today, certain consequences followed when 

the police illegally and unconstitutionally stopped citizens 

without probable cause or reasonable suspicion and, 

while continuing to unlawfully detain them, asked for and 

obtained their consent to search. Today, the majority has 

eliminated, or at least substantially altered, the certainty 

that the violation of a defendant’s constitutional rights 

will be vindicated. If the majority had acknowledged and 

attempted to justify its abandonment of precedent, I might 

be more satisfi ed as a judge, but I do not know that I would 

be more comfortable as a citizen.

 The majority is bold, and it is deft. In my view, the 

majority is also wrong. I respectfully dissent.

 De Muniz, Senior Judge, Justice pro tempore, joins 

in this dissent.