S056239, Opinion — State v. Rodgers/Kirkeby

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Argued and submitted February 9, 2009, at Central Catholic High School,
Portland, Oregon; in State v. Michael K. Rodgers, S056239, decision of Court
of Appeals affirmed; judgment of circuit court reversed, and case remanded to
circuit court for further proceedings; in State v. Anthony Douglas Kirkeby,
S056237, decision of Court of Appeals and judgment of circuit court affirmed
February 11, 2010

STATE OF OREGON,
Petitioner on Review,
v.
MICHAEL K. RODGERS,
Respondent on Review.
(CC CM0420629; CA A128857; SC S056239 (Control))

STATE OF OREGON,
Petitioner on Review,
v.

ANTHONY DOUGLAS KIRKEBY,
Respondent on Review.
(CC CR030112; CA A128263; SC S056237)
(Cases Consolidated for Opinion)

227 P3d 695

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611

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CJS, Searches and Seizures § 120.

# En Banc

On review from the Court of Appeals .*

Anna Marie Joyce, Assistant Attorney General, Salem,
argued the cause for petitioner on review. With her on the

\* Appeal from Benton County Circuit Court, David B. Connell, Judge. 219 Or
App 366, 182 P3d 209 (2008).

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petitions for review and briefs on the merits were Hardy
Myers, Attorney General, Mary H. Williams, Solicitor
General, and Susan G. Howe, Senior Assistant Attorney
General. With her on the reply brief were John R. Kroger,
Attorney General, and Rolf C. Moan, Acting Solicitor
General.

Peter Gartlan, Chief Defender, Office of Public Defense
Services, Salem, argued the cause and filed the brief for
respondents on review Michael K. Rodgers and Anthony
Douglas Kirkeby.

DE MUNIZ, C. J.

In State v. Michael K. Rodgers, S056239, the decision of
the Court of Appeals is affirmed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit
court for further proceedings. In State v. Anthony Douglas
Kirkeby, S056237, the decision of the Court of Appeals and
the judgment of the circuit court are affirmed.

Gillette, J., concurred and filed an opinion.

Durham J., dissented and filed an opinion, in which
Linder, J., joined.

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DE MUNIZ, C. J.

In these two criminal cases, consolidated for pur-
poses of opinion, each defendant was charged with drug-
related crimes based on evidence obtained during separate
traffic stops. In each case, the Court of Appeals concluded
that the officer's conduct unreasonably extended the dura-
tion of the traffic stop, in violation of Article I, section 9.1
State v. Rodgers, 219 Or App 366, 373, 182 P3d 209 (2008);
State v. Kirkeby, 220 Or App 177, 186, 185 P3d 510 (2008).
We allowed the state's petitions for review and now conclude
that each defendant was unlawfully seized in violation of
Article I, section 9, because in each case the police conduct
was not justified by reasonable suspicion of criminal activity;
was unrelated to the traffic violation investigation, identifi-
cation, or issuance of a citation; and significantly restricted
each defendant's freedom of movement. Because there were
no intervening circumstances or other circumstances miti-
gating the effect of the illegal seizures of each defendant, we
conclude that each defendant's consent, even if voluntary,
was the product of police conduct that violated Article I, sec-
tion 9, of the Oregon Constitution. 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. We therefore affirm the decisions of the Court of
Appeals.

## I. FACTS, PROCEDURAL BACKGROUND, AND PARTIES' ARGUMENTS

For purposes of the issue presented here, the rele-
vant facts of each case are undisputed.

### A. State v. Rodgers

Defendant Rodgers was stopped by Corvallis Police
Officer Van Arsdall for driving a vehicle with a burned-out
license plate light in violation of ORS 816.330. Defendant
provided Van Arsdall with a valid driver license and vehicle
registration, but was unable to provide proof of insurance.

1 Article I, section 9, of the Oregon Constitution provides, in part:

"No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure[.]"

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Defendant explained that the vehicle was borrowed and that
he was driving it with the owner's permission. While they
were talking, Van Arsdall noticed a large container of blue
liquid on the front passenger floorboard and a white sack
with a smaller, square, metallic container inside it on the
back seat. Van Arsdall also noticed that defendant had sores
on his face, which Van Arsdall believed to be consistent with
methamphetamine use. Van Arsdall returned to his patrol
car and radioed a request for a records check.

In the meantime, a second officer, Kantola, arrived.
Van Arsdall explained his observations to Kantola and told
him that he believed that defendant had items in his vehicle
that likely were used to produce methamphetamine. How-
ever, Van Arsdall testified at the suppression hearing that, at
that point, he did not have enough information to arrest
defendant-defendant's records check had come back clear,
and Van Arsdall therefore had a sufficient basis only to issue
defendant a traffic citation. Notwithstanding the clear
records check, Van Arsdall approached the driver's side of the
vehicle, while Kantola approached the passenger side. Van
Arsdall asked defendant about the blue liquid, and defendant
explained that it was windshield washer fluid. Van Arsdall
then expressed concern about the metallic container in the
white sack. Defendant removed the container from the sack
and explained that it contained denatured alcohol, which he
used for his job at a company that manufactured fertilizer.
Van Arsdall then asked defendant for consent to search the
vehicle. Defendant agreed, and, during the search, the offi-
cers found acid, lithium batteries, foil, and cold medicine con-
taining pseudoephedrine-all precursor materials for manu-
facturing methamphetamine.

Defendant was charged with unlawful manufacture
of a controlled substance. Before trial, defendant moved to
suppress the evidence found in the vehicle, on the ground
that Van Arsdall unconstitutionally had extended the scope
and duration of the traffic stop by questioning him without
reasonable suspicion that a crime had been or was being com-
mitted. The trial court concluded that Van Arsdall did not
have reasonable suspicion to request to search the vehicle.
However, the trial court found that defendant's consent to

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search was voluntary and that Van Arsdall's request for con-
sent did not extend the duration of the stop. The trial court
therefore denied defendant's motion to suppress, and defen-
dant was convicted.

Defendant appealed, and the Court of Appeals
reversed and remanded. That court concluded that Van
Arsdall had extended the traffic stop beyond a reasonable
time when he asked defendant about the containers instead
of issuing a traffic citation. The Court of Appeals noted that
Van Arsdall's questions had been unrelated to the traffic
infraction. Because Van Arsdall had lacked reasonable sus-
picion to extend the stop, the Court of Appeals concluded that
defendant's consent was the product of an unlawful seizure
under Article I, section 9, and that the evidence discovered in
the search of the vehicle therefore should have been sup-
pressed. Rodgers, 219 Or App at 374.

### B. State v. Kirkeby

A deputy sheriff who knew defendant by sight and
knew that his driver license had been suspended saw defen-
dant driving with a passenger in downtown Willamina. The
deputy contacted his dispatcher, who confirmed that defen-
dant had a suspended license but otherwise had no outstand-
ing arrest warrants. Based on that information, the deputy
activated his overhead lights-which remained on through-
out the duration of the stop-and stopped defendant. Both
defendant and the deputy got out of their respective vehicles
and walked toward one another. The passenger remained in
defendant's vehicle. The deputy was concerned for his safety,
because defendant had left his vehicle. When the deputy told
defendant the reason for the stop, defendant seemed sur-
prised and handed the deputy an Oregon driver license.
Defendant was cooperative and businesslike, and he did not
act in a threatening or aggressive manner. Also, throughout
the deputy's extensive history of prior contacts with defen-
dant, defendant never had acted in a threatening or violent
manner and never had displayed a weapon. At that point, the
deputy had defendant's name, date of birth, and driver
license number, which was all the information necessary to
complete a traffic citation. However, the deputy testified that
he probably did not have all the information that he needed

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because he did not have the vehicle registration and proof of
insurance.

The deputy told defendant that the license was "no
good" and asked him if he had any weapons on his person or
in the vehicle. Defendant stated that he did not have any
weapons. The deputy then asked for consent to conduct a pat-
down, and defendant agreed. At some point, two additional
officers arrived and observed the passenger while the deputy
talked with defendant. After the patdown of defendant, the
deputy felt fairly confident that defendant did not have any
firearms on his person, but nonetheless asked for consent to
examine each of the items that he had felt in defendant's
pockets, because he did not know what they were and wanted
to investigate further. Defendant consented. The deputy tes-
tified that defendant was not free to leave at that time. The
deputy, with defendant's further consent, opened a small
metal cylindrical container that he had found during the pat-
down and discovered two ziplock bags containing a residual
amount of a clear crystalline substance that appeared to be
methamphetamine. By that time, four to five minutes had
elapsed since the beginning of the stop.

Defendant was charged with possession of a con-
trolled substance. Before trial, defendant moved to suppress
the evidence obtained during the patdown search. He
acknowledged that questions concerning the presence of
weapons may be authorized under ORS 810.410(3)(d), set out
post, 347 Or at 619-20 n 3. However, defendant argued that,
unless the officer has "a reasonable suspicion of an immedi-
ate threat of serious injury," such questioning-including
asking for permission to search for weapons-constituted an
unlawful seizure in violation of Article I, section 9, and the
Fourth Amendment to the United States Constitution. The
trial court granted defendant's motion. The court concluded
that the deputy's request to conduct a patdown had not vio-
lated ORS 810.410; however, the trial court further con-
cluded that that request had violated Article I, section 9,
because the patdown had gone beyond "ordinary social inter-
course" and therefore had amounted to a seizure of defendant
without reasonable suspicion that defendant either posed a
danger to the deputy or others, or had committed a crime.

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The state appealed, and the Court of Appeals
affirmed, determining that the outcome was controlled by its
decision in Rodgers. The Court of Appeals noted that, at the
time that the deputy asked for consent to conduct a patdown,
the deputy was not waiting for further information or other-
wise prevented from completing the traffic stop; that is,
instead of asking defendant for his vehicle registration and
proof of insurance, the deputy had proceeded down an unre-
lated path. The court further determined that, under State v.
Hall, 339 Or 7, 115 P3d 908 (2005), the consensual search
was the product of unlawful police conduct, because defen-
dant had shown that, if not for the unlawful seizure, the dep-
uty would not have been in a position to request consent, and
the state for its part had not shown that intervening circum-
stances or factors had severed the connection between the
unlawful stop and defendant's consent. Therefore, the Court
of Appeals concluded the trial court properly suppressed the
evidence found in the container. Kirkeby, 220 Or App at 187.

### C. Petitions for Review-Parties' Arguments

The state petitioned for review in both cases. On
review, the state argues that the Court of Appeals "refused to
engage in what is necessarily a fact-specific inquiry into the
reasonableness of the totality of [each] encounter." The state
contends that, instead, the Court of Appeals adopted a
bright-line rule that will require police officers to follow a pre-
determined list of investigative steps, thereby imposing an
artificial and unnecessary restriction on officers that is "in no
manner compelled" by the protection against unreasonable
seizures set out in Article I, section 9. The state concedes that
the questioning here was unrelated to the traffic violations
for which defendants were stopped and that the officers
lacked reasonable suspicion to act on what they saw. How-
ever, the state asserts that the questions that the officers
asked were of the same variety that this court has held to be
permissible in officer-citizen encounters, without amounting
to seizures under Article I, section 9. See State v. Holmes, 311
Or 400, 410, 813 P2d 28 (1991) ("[L]aw enforcement officers
remain free to approach persons on the street or in public
places, seek their cooperation or assistance, request or
impart information, or question them without being called

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upon to articulate a certain level of suspicion in justification
if a particular encounter proves fruitful."). The state also
asserts that this court already has rejected the premise that
an officer may never ask questions unrelated to the stop
itself, citing State v. Amaya, 336 Or 616, 626, 89 P3d 1163
(2004) ("To the extent that defendant argues that every ques-
tion by an officer that is unrelated to the reason for a valid
traffic stop violates Article I, section 9, unless the question is
based on reasonable suspicion, we reject defendant's argu-
ment." (emphasis in original)).

The state acknowledges that, in the context of a law-
ful traffic stop, the police will have "stopped" the motorist to
question him or her about a traffic violation. Therefore, the
state argues, the question becomes whether an officer is enti-
tled to ask questions, including seeking consent to search,
without effecting an unreasonable seizure under Article I,
section 9. Focusing on the scope and length of the questioning
at issue, the state proposes a rule that police questioning that
is unrelated to a traffic stop, or a request for consent to search
during a lawful traffic stop, will not constitute an unconsti-
tutional seizure if that questioning creates only a de minimis
delay during an otherwise lawful stop. That determination,
the state argues, involves a fact-specific inquiry into the
totality of the circumstances that can "take into account the
many factors that contribute to the determination [of]
whether any given circumstance amounts to an unreasona-
ble seizure."

Applying its proposed rule here, the state asserts
that, in Rodgers, Van Arsdall's questions and request to
search defendant's vehicle did not constitute an unreason-
able seizure under Article I, section 9, because Van Arsdall
posed the same kinds of questions to defendant during the
course of the lawful traffic stop that he could have posed to
defendant had he approached him on the street. The two
questions that Van Arsdall asked about the blue liquid and
the white sack took only a few moments and caused only a
de minimis delay. Thus, the state argues, the questions did
not render the traffic stop unreasonable in either its length or
scope.

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Likewise, the state argues that, in Kirkeby, the offi-
cer's single question about whether defendant had any weap-
ons, followed by a request for consent to conduct a patdown
and then a search, did not constitute an unreasonable sei-
zure, because the exchange took only about four to five
minutes and the questions could have been asked of any per-
son walking down the street.

In response, defendants assert that the traffic stop
itself is a seizure for constitutional purposes. Defendants con-
trast "mere conversation" between an officer and a person on
the street-who freely may end the interaction and walk
away-with a traffic stop, where the motorist is legally obli-
gated to stop at an officer's direction, must interact with and
respond to officer-initiated inquiries, is not free to end the
encounter, and may not leave without the officer's consent.
Therefore, defendants argue, Article I, section 9, limits an
officer to investigatory questions about the vehicle code vio-
lation for which a driver is stopped, unless the officer devel-
ops reasonable suspicion or probable cause to believe that the
driver has committed, is attempting to commit, or is commit-
ting a crime.2 Defendants argue that the state's proposed
rule, which focuses only on the temporal duration of a stop, is
unworkable, because too many variables arise in the traffic
stop context. For example, defendants argue that traffic stops
have no standard length: an experienced officer would be
more efficient than an inexperienced officer, while a stop for
a more serious traffic infraction could take longer than a stop
for a minor infraction.

## II. ANALYSIS

The authority of a police officer to stop a vehicle for a
traffic violation is governed by ORS 810.410.3 The statute has

2 Defendant Kirkeby no longer asserts, as he did to the trial court, that the offi-
cer's initial question about the presence of weapons constituted a seizure under
Article I, section 9. We express no opinion on that issue.

3 ORS 810.410 provides, in part:

"(2) A police officer may issue a citation to a person for a traffic violation at
any place within or outside the jurisdictional authority of the governmental
unit by which the police officer is authorized to act:

"(a) When the traffic violation is committed in the police officer's presence;
or

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a long history in this court. Before 1997, this court, in a series
of cases, held that the statute not only described what an offi-
cer could do respecting a traffic stop; it also indicated what
the officer could not do. See, e.g., State v. Porter, 312 Or 112,
120, 817 P2d 1306 (1991) ("* * * [B]y implication, the statute
proscribes any further action by the police [beyond that spe-
cifically authorized] * * * , unless [that further action] has
some basis other than the traffic infraction."). See also State
v. Farley, 308 Or 91, 94-95, 775 P2d 835 (1989); State v.
Dominguez-Martinez, 321 Or 206, 212, 895 P2d 306 (1995)
(both to same effect). This court held that, because the stat-
ute was intended to limit police activity associated with a
traffic stop, it was also the legislature's intention that evi-
dence seized in violation of the statutory proscription be sup-
pressed. Porter, 312 Or at 121; Dominguez-Martinez, 321 Or
at 214.

The foregoing interpretations of legislative intent
were superseded by the legislature in 1997. In that year's leg-
islative session, the legislature enacted ORS 136.432. That
statute provides, in part:

"(b) When the police officer has probable cause to believe an offense has
occurred based on a description of the vehicle or other information received
from a police officer who observed the traffic violation.

"(3) A police officer:

"(a) Shall not arrest a person for a traffic violation.

"(b) May stop and detain a person for a traffic violation for the purposes of
investigation reasonably related to the traffic violation, identification and issu-
ance of citation.

"(c) May make an inquiry into circumstances arising during the course of
a detention and investigation under paragraph (b) of this subsection that give
rise to a reasonable suspicion of criminal activity.

"(d) May make an inquiry to ensure the safety of the officer, the person
stopped or other persons present, including an inquiry regarding the presence
of weapons.

"(e) May request consent to search in relation to the circumstances
referred to in paragraph (c) of this subsection or to search for items of evidence
otherwise subject to search or seizure under ORS 133.535.

"(f) May use the degree of force reasonably necessary to make the stop and
ensure the safety of the peace officer, the person stopped or other persons
present.

"(g) May make an arrest of a person as authorized by ORS 133.310 (2) if
the person is stopped and detained pursuant to the authority of this section."

Paragraphs (c), (d), (e), and (f) of subsection (3) were added in 1997. Or Laws 1997,
ch 866, §§ 4, 5.

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"A court may not exclude relevant and otherwise admis-
sible evidence in a criminal action on the grounds that it
was obtained in violation of any statutory provision unless
exclusion of the evidence is required by:

"(1) The United States Constitution or the Oregon
Constitution[.]"

ORS 136.432 prohibits the judicial branch from
excluding evidence obtained by government conduct that
exceeds statutory authority. Thus, although the legislature
has continued to circumscribe the authority of the police in
ORS 810.410-requiring that, during a traffic stop, police
investigatory conduct be reasonably related to the traffic vio-
lation, the identification (of persons), and the issuance of a
citation-any evidence that is obtained when the police
exceed that authority is not suppressible unless it violates
some constitutional rule. We turn to a determination
whether there is such a constitutional rule.

Article I, section 9, of the Oregon Constitution estab-
lishes a right of the people "to be secure in their persons,
houses, papers, and effects, against unreasonable search, or
seizure." Among the potentially "infinite variety of encoun-
ters between law enforcement officers and citizens," Holmes,
311 Or at 406, this court has identified three general catego-
ries of encounters and described whether or when those
encounters implicate the protections afforded to individuals
under Article I, section 9. Id. at 406-07. First, "mere conver-
sation" or a "noncoercive encounter" between an officer and a
citizen that involves no restraint of liberty requires no justi-
fication and does not implicate the liberty protections pro-
vided in Article I, section 9. Second, a temporary restraint of
a person's liberty for the purpose of criminal investigation-
i.e., a "stop"-qualifies as a "seizure," under Article I, section
9, and must be justified by a reasonable suspicion of criminal
activity. Third, an arrest also is a "seizure," under Article I,
section 9, and that degree of restraint must be justified by
probable cause to believe that the person arrested has com-
mitted a crime. Id. at 407.

A person is "seized" under Article I, section 9, when
either (1) a police officer intentionally and significantly inter-
feres with the person's freedom of movement; or (2) the per-
son believes, in an objectively reasonable manner, that his or

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her liberty of movement has been so restricted. Id. at 409-10.
That determination requires a "fact-specific inquiry into the
totality of the circumstances of the particular case." Id. at
408.

As noted, the state acknowledges that, in the context
of a lawful traffic stop, the police have "stopped" the driver
and any passengers in a vehicle. The state also concedes that
the police inquiries at issue in these cases were unrelated to
the reasons for which defendants were stopped (that is, for
traffic violations) and that the officers lacked reasonable sus-
picion that crimes (as opposed to those traffic violations) had
been or were being committed before the inquiries were
made. However, the state asserts that the essential question
is whether, notwithstanding the fact of the traffic stop, an
officer may make the kinds of inquiries that were made in
these cases without violating the liberty interests protected
by Article I, section 9. That argument proceeds from the
premise that the police inquiries in these cases were of the
same variety that this court held in Holmes would be permis-
sible in any police-citizen encounter. That is, the state relies
on this court's observation in Holmes that police officers may
approach persons on the street or in public places, question
them, and even accompany them to another location without
the encounter necessarily resulting in a seizure under Article
I, section 9. And, as this court further explained, that princi-
ple may carry over to police-driver interactions. Id. at 409-11.

In our view, the state's assertion-that police may
make unrelated inquiries (including requests to search a per-
son or vehicle) during the course of a traffic stop without
implicating Article I, section 9-is correct in the sense that
verbal inquiries are not searches and seizures. That is, we
agree that police inquiries during the course of a traffic stop
(including requests to search a person or vehicle) are not
searches and seizures and thus by themselves ordinarily do
not implicate Article I, section 9. However, police conduct
that involves physical restraint or a show of authority that
restricts an individual's freedom of movement typically does
implicate Article I, section 9.

Nevertheless, in contrast to a person on the street,
who may unilaterally end an officer-citizen encounter at any

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time, the reality is that a motorist stopped for a traffic infrac-
tion is legally obligated to stop at an officer's direction, see
ORS 811.535 (failing to obey a police officer) and ORS
811.540 (fleeing or attempting to elude a police officer), and
to interact with the officer, see ORS 807.570 (failure to carry
or present license) and ORS 807.620 (giving false information
to a police officer), and therefore is not free unilaterally to end
the encounter and leave whenever he or she chooses. More-
over, an officer ordinarily cannot casually "approach" a mov-
ing vehicle on the road in the same way that an officer may
approach a person on the street. It follows that a traffic stop
by its nature is not an ordinary police-citizen "encounter," as
the court described such encounters in Holmes.

Moreover, if the purpose of a traffic stop is to investi-
gate crime, evidence gained from the stop must be obtained
in compliance with Article I, section 9. See State v. Anderson,
304 Or 139, 141, 743 P2d 715 (1987) (criminal sanctions were
intended consequence of sobriety roadblock; thus, where offi-
cers had neither warrant nor individualized suspicion that
defendant was engaged in illegal activity, evidence gained
from roadblock must be suppressed). Seizures or searches for
evidence to be used in a criminal prosecution, conducted
without a warrant or without an exception to the warrant
requirement, violate Article I, section 9, of the Oregon
Constitution. Nelson v. Lane County, 304 Or 97, 101, 743 P2d
692 (1987) (plurality opinion).

In summary, Article I, section 9, and this court's case
law establish the following principles that must guide the
police in their contact with motorists stopped for routine non-
criminal traffic violations. Police authority to perform a traf-
fic stop arises out of the facts that created probable cause to
believe that there has been unlawful, noncriminal activity,
viz., a traffic infraction. Police authority to detain a motorist
dissipates when the investigation reasonably related to that
traffic infraction, the identification of persons, and the issu-
ance of a citation (if any) is completed or reasonably should be
completed. Other or further conduct by the police, beyond
that reasonably related to the traffic violation, must be justi-
fied on some basis other than the traffic violation.

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To put the matter another way, constitutionally,
Article I, section 9, protects persons and effects from unrea-
sonable searches and seizures by requiring a judicially
authorized warrant supported by probable cause authorizing
a search or seizure. There are, however, certain limited
exceptions to the warrant and probable cause requirements.
One such exception permits the police to stop and briefly
detain motorists for investigation of noncriminal traffic vio-
lations. Police conduct during a noncriminal traffic stop does
not further implicate Article I, section 9, so long as the deten-
tion is limited and the police conduct is reasonably related to
the investigation of the noncriminal traffic violation. How-
ever, a police search of an individual or a vehicle during the
investigation of a noncriminal traffic violation, without prob-
able cause and either a warrant or an exception to the war-
rant requirement, violates Article I, section 9. Because police
inquiries during a traffic stop are neither searches nor sei-
zures, police inquiries in and of themselves require no justi-
fication and do not necessarily implicate Article I, section 9.
However, police inquiries unrelated to a traffic violation,
when combined with physical restraint or a police show of
authority, may result in a restriction of personal freedom
that violates Article I, section 9.

It is within that framework that this court now must
decide whether the police conduct in these cases, conceded by
the state to be unrelated to the investigation of a traffic vio-
lation, transgressed the limits of Article I, section 9, resulting
in an unlawful seizure and, if so, whether the evidence seized
by the police in each case should be suppressed because it is a
product of an unlawful seizure.4

4 We reject the state's argument that this court's decision in State v. Jackson,
296 Or 430, 677 P2d 21 (1984), stands for the rule that a de minimis delay during a
traffic violation investigation does not, under any circumstances, violate an indi-
vidual's right to be free from unreasonable searches and seizures under Article I,
section 9. In that case, during a valid traffic stop, the officer walked from the
driver's side to the passenger side of the defendant's van, shined a flashlight
through the window, and saw open beer containers. This court stated that the
delay caused by the officer in walking around the van was "de minimis" and did not
constitute a violation of Oregon statute, nor violate any state or federal constitu-
tional right. However, the court continued,

"Were the defendant to prevail here, an interpretation of the Court of Appeals
standard would seem to dictate that once an officer returns an operator's

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In doing so, we consider the totality of the circum-
stances, and we are bound by the trial courts' findings of his-
torical fact, to the extent that those findings are supported by
evidence in the record. State v. Ehly, 317 Or 66, 75, 854 P2d
421 (1993). However, this court determines de novo whether
the trial courts applied the legal principles involved here cor-
rectly to those facts. Id.

In evaluating the totality of the circumstances, we
believe that two cases should serve as guideposts. The first is
State v. Juarez-Godinez, 326 Or 1, 942 P2d 772 (1997). In
that case, this court observed that, for purposes of Article I,
section 9, interference with a person's freedom of movement
may take the form of either physical force or a show of
authority. Id. at 6.

The second guidepost is State v. Toevs, 327 Or 525,
531, 964 P2d 1007 (1998). In that case, police officers stopped
the defendant for driving at night without the use of head-
lights. After running a records check and instructing the
defendant to turn on his lights, the officer advised the defen-
dant that he was free to go. Id. at 529. After making that
statement, however, the officer immediately asked the defen-
dant for his consent to search the vehicle and questioned the
defendant about whether he was carrying any illegal drugs.
Id. The defendant initially withheld his consent to a search;
however, after further questioning, he admitted to the officer
that he was in possession of drugs.

In concluding that the traffic stop had ended and
that the police officer's subsequent questioning and repeated
requests for consent to search resulted in defendant's seizure,
the court stated:

license to the driver of a stopped vehicle, he or she must execute an abrupt
about-face and march directly back to the police vehicle. Such an interpreta-
tion would not be reasonable. An officer who has lawfully stopped a vehicle
does not violate any occupant's rights in walking around the vehicle and looking
through the windows of the vehicle to observe that which can be plainly seen."

Id. at 438 (emphasis added). The key of that holding was not the duration of the
stop and detention, but the fact that the officer observed evidence of a crime from a
lawful vantage point outside the car before conducting further investigation.
Unlike the circumstances in these cases, the officer in Jackson did not question the
defendant about anything unrelated to the reason for the stop until he observed
evidence of criminal activity, as required under Article I, section 9.

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"Under the totality of the circumstances, we conclude
that a reasonable person in defendant's position could have
believed that the officers significantly had restricted his lib-
erty or freedom of movement. Indeed, the officers' continu-
ous show of police authority constituted conduct that was
'significantly beyond that accepted in ordinary social inter-
course.' Holmes, 311 Or at 410. Therefore, through that con-
duct, they continued to detain defendant. See State v.
Painter, 296 Or 422, 425, 676 P2d 309 (1984) ('[A] show of
authority may suffice to convert a police-citizen encounter
into a "stop" of statutory proportion.').

"The state contends that, because Smith told defendant
that he was free to go, the traffic stop ended before Smith
began questioning defendant about possessing drugs. It is
true that, when an officer tells a driver that he or she is free
to go, that factor certainly can weigh in favor of concluding
that a traffic stop indeed had ended. However, our case law
demonstrates that, when viewing the totality of the circum-
stances, an officer's conduct after stating that a driver is
free to go may negate such a statement."

Toevs, 327 Or at 536-37 (brackets and emphases in original).

As previously noted, in defendant Rodgers's case,
when Van Arsdall returned to defendant's driver-side win-
dow, he had all the information necessary to issue defendant
a citation and end defendant's limited detention. Although
Van Arsdall chose not to issue the citation at that time, his
authority to detain defendant evaporated from that point,
because Van Arsdall had completed the investigation reason-
ably related to the traffic infraction and issuance of the cita-
tion. Van Arsdall did not advise defendant in any way that
the traffic stop was at an end. The inquiries regarding the
items in the car and the request to search occurred after Van
Arsdall had completed the traffic violation investigation, and
were made by Van Arsdall from the driver-side window while
Officer Kantola was stationed on the passenger side of the
car. Defendant was not informed that he was free to go, and
thus he had no way of knowing that Van Arsdall's questions
and request to search the car were not part of the traffic
investigation and that his cooperation in Van Arsdall's inves-
tigation was not required to continue.

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Under the totality of the circumstances, we conclude
that Van Arsdall's position at the driver-side window and
Kantola's presence on the passenger side of the car was a suf-
ficient "show of authority" that, in combination with the
unrelated questions concerning the items in the car and the
request to search the car, resulted in a significant restriction
of defendant's freedom of movement. See Toevs, 327 Or at
536-37 ("[O]fficers' continuous show of police authority con-
stituted conduct that 'was significantly beyond that accepted
in ordinary social intercourse.'" (quoting Holmes, 311 Or at
410)). See Dominguez-Martinez, 321 Or at 213 (officer who
told defendant that he was free to go while leaning on open
door of defendant's vehicle continued to detain defendant).
Because that conduct occurred after completion of the inves-
tigation of the traffic violation and because (as the state has
conceded) Van Arsdall did not have a reasonable suspicion of
criminal activity that justified defendant Rodgers's contin-
ued detention, we conclude that defendant Rodgers was
unlawfully seized in violation of Article I, section 9.5

In Kirkeby, the deputy lawfully stopped defendant
for the traffic violation of driving with a suspended license.
Defendant was well-known to the deputy and was coopera-
tive and "businesslike" during the encounter. After defen-
dant gave the deputy his driver license, the deputy had
defendant's name, date of birth, and driver license number.
The deputy acknowledged that that was all the information
that would be contained on a traffic citation; however, he tes-
tified that he "probably" did not have everything he needed to
issue the citation, because he had not requested and received
from defendant the vehicle registration and proof of insur-
ance. The deputy apparently did not ask any other questions
of that kind, however. Instead, because defendant had left his
car and the deputy was concerned for his safety, he asked
whether defendant had any weapons. (Again, we emphasize
that defendant does not assert on review that the deputy's

5 We emphasize that the restriction of movement that implicates Article I, sec-
tion 9, in both of these cases occurred after the police officers had completed their
investigations reasonably related to the traffic infraction and issuance of the cita-
tion, We express no opinion about the effect of unrelated police inquiries that occur
during the course of the traffic violation investigation and that do not result in any
further restriction of movement of the individual.

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initial question about the presence of weapons constituted a
seizure under Article I, section 9.) Defendant responded in
the negative, and the state concedes that nothing else gave
rise to a reasonable suspicion of criminal activity. However,
instead of then either issuing a traffic citation or asking for
insurance information, the deputy asked defendant for con-
sent to conduct a patdown and, following the patdown, asked
for defendant's consent to examine each of the items that he
had felt in defendant's pockets. The deputy did so, even
though he was confident defendant did not have any firearms
on his person and had no reasonable suspicion that the items
in defendant's pockets were contraband or evidence of a
crime. And, as the deputy acknowledged, at the time that he
asked defendant for permission to conduct a patdown and to
examine the contents of defendant's pockets, defendant was
not free to leave.

Based on the totality of the circumstances, we con-
clude that the deputy's show of authority that accompanied
his request that defendant consent to a patdown and subse-
quent request that defendant consent to an examination of
the contents of defendant's pockets occurred after the point
that defendant should have been issued a citation or sent on
his way. Because the deputy's further detention of defendant
was a significant limitation on defendant's freedom of move-
ment and was not justified by reasonable suspicion of crimi-
nal activity, defendant Kirkeby was unlawfully seized in vio-
lation of Article I, section 9.

Having concluded that each defendant was unlaw-
fully seized in violation of Article I, section 9, we now must
determine the effect of that illegality on the admissibility of
the evidence obtained from the consensual search that
occurred in each case.

In Hall, this court acknowledged that there are two
related but distinct ways that a violation of a defendant's
rights under Article I, section 9, may affect the validity of a
defendant's subsequent consent to a search. First, illegal
police conduct may negate a defendant's consent to a search,
on the ground that the police conduct rendered defendant's
consent involuntary. Second, Article I, section 9, may require
the exclusion of evidence because a defendant's consent was

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derived from, or was the product of, the prior police illegality.
In each of these cases, defendants contend only that their
consent to search was derived from, or was the product of, the
illegal seizure. The methodology for determining whether the
state obtained evidence that should be suppressed because it
had been obtained in violation of Article I, section 9, was first
explained in State v. Johnson, 335 Or 511, 520-21, 73 P3d 282
(2003), and then summarized in Hall:

"After a defendant shows a minimal factual nexus between
unlawful police conduct and the defendant's consent, then
the state has the burden to prove that the defendant's con-
sent was independent of, or only tenuously related to, the
unlawful police conduct. Deciding whether the state has
satisfied that burden requires a fact-specific inquiry into
the totality of the circumstances to determine the nature of
the causal connection between the unlawful police conduct
and the defendant's consent. A causal connection requiring
suppression may exist because the police sought the defen-
dant's consent solely as the result of knowledge of inculpa-
tory evidence obtained from unlawful police conduct. * * *
Although determining the existence of such a causal con-
nection requires examination of the specific facts at issue in
a particular case, we view several considerations to be rel-
evant 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 officer informing the defen-
dant of the right to refuse consent-that mitigated the
effect of the unlawful police conduct."

Hall, 339 Or at 34-35.6

Here, both defendants have shown the required
nexus. In both cases the officers had completed the traffic

6 The dissent apparently agrees that the police conduct in each of these cases
resulted in an unlawful seizure of each defendant in violation of Article I, section 9.
However, the dissent refuses to follow the exclusionary rule methodology approved
just five years ago by the court in Hall. Instead, the dissent retraces this court's
cases involving the scope and application of the exclusionary rule that led up to this
court's decision in Hall. The competing theories and arguments regarding the
application of the exclusionary rule had their origins in many of the cases that the
dissent reexamines. It is, however, undisputed that the cases to which the dissent
refers were thoroughly considered and analyzed in Hall. Thus, the matter is a set-
tled one.

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violation investigation and should have either issued a cita-
tion or informed each defendant that they could leave. As
already explained, the officers in each case did neither and
instead unlawfully detained each defendant. It was during
the period of unlawful detention that the officers requested
that each defendant consent to a search. Here, as in Hall, nei-
ther defendant spontaneously granted the officers consent to
search; instead, each defendant gave his consent in response
to the officers' requests. The state does not advance any argu-
ment to this court to satisfy its burden under Hall that inter-
vening 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 cir-
cumstances 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 vio-
lated 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.

In State v. Michael K. Rodgers, S056239, the deci-
sion of the Court of Appeals is affirmed. The judgment of the
circuit court is reversed, and the case is remanded to the cir-
cuit court for further proceedings. In State v. Anthony
Douglas Kirkeby, S056237, the decision of the Court of
Appeals and the judgment of the circuit court are affirmed.

GILLETTE, J., concurring.

I concur in the analysis and conclusions of the lead
opinion, including its reliance on State v. Hall, 339 Or 7, 115
P3d 908 (2005). I do so for a reason sufficiently important (at
least to me) that I choose to state it separately.

In Hall, a majority of this court announced the rule
of law that we apply today. Justice Durham offered a spirited
and extensive dissent from that rule, id. at 37-52 (Durham,
J., dissenting), which I found persuasive. I therefore joined it.
In the present cases, the dissent makes the same analytical
and interpretive points that were made in the Hall dissent.

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Were we writing on a clean slate, I might still find that mes-
sage persuasive. But we are not writing on a clean slate. The
dissent's points, therefore, are-for me-an echo of an argu-
ment fairly waged, but lost. The spirit-the idea-of stare
decisis calls for us to accept Hall, get behind it, and make it
work. I understand that others feel differently (as they have
every right to do) but I hear that call. I therefore join the lead
opinion. See North Carolina v. Pearce, 395 US 711, 744-45, 89
S Ct 2072, 23 L Ed 2d 656 (1969) (Harlan, J., concurring in
part and dissenting in part) (explaining a similar approach).

DURHAM, J., dissenting.

The question that these cases pose is straight-
forward: Did the police officers conduct unreasonable
searches in violation of Article I, section 9, of the Oregon
Constitution, when they (1) searched defendant Rodgers's
car, (2) conducted a patdown search of defendant Kirkeby,
and (3) opened a metal container discovered in Kirkeby's
pocket during the patdown? Each of those searches yielded
drug-related evidence.

In my view, those searches were not unreasonable
and, thus, did not violate Article I, section 9. My reason for
that conclusion is equally straightforward, although it virtu-
ally disappears from the majority's analysis: Before search-
ing, the police requested and obtained each defendant's vol-
untary consent to the proposed search. The record confirms
that the officers scrupulously conducted each search within
the scope of the voluntary consent that each defendant had
granted to them. Those facts are undisputed.

The upshot of those facts is that defendants volun-
tarily gave up any privacy interest in the areas searched, and
the police lawfully observed and seized the drug-related evi-
dence that the searches brought to light. Defendants simply
defy logic in contending that the searches were unreasonable
and unconstitutional, even though they voluntarily con-
sented to each search before it occurred.1

1 The majority, in reciting the pertinent facts, indicates that the searches in
these cases occurred after each defendant gave "consent." I assume that, in using
that description, the majority is confirming that each defendant gave the voluntary
consent that our case law requires. See State v. Quinn, 290 Or 383, 394, 623 P2d
630 (1981) (stating standard and upholding trial court's findings that "consent to
search was knowingly and voluntarily given").

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The majority, however, agrees with and adopts
defendants' logic. In doing so, the majority recites several
broad-and, for the most part, unhelpful-principles of
search and seizure law, which I discuss below, but fails to
apply the correct legal principles that, in fact, govern the dis-
position of these cases.

The majority's result undermines ORS 136.432,
which prohibits Oregon courts from ordering the suppression
of relevant evidence for reasons that do not rise to the level of
an invasion of constitutional rights (aside from the law of
privileges, hearsay, and the rights of the press).2 The major-
ity's result also will confuse the members of the law enforce-
ment community about the practical efficacy of a heretofore
valuable tool in roadside encounters: the consent search.
Finally, the majority's rationale creates needless confusion
regarding the law that governs searches and seizures under
the Oregon Constitution. Those negative consequences are
both unnecessary and avoidable, for reasons that I explain
below.

ORS 136.432 sets the stage for any discussion of
defendants' motions to suppress evidence. Under that
provision, a criminal defendant cannot obtain suppression of

My own review of the record indicates that defendants voluntarily consented to
the searches that the police conducted in each case. In Rodgers, the trial court
expressly found that defendant's consent to the search of his car was voluntary.

In Kirkeby, the deputy testified that defendant consented to the patdown
search of defendant's clothing and also consented to the opening of the metal con-
tainer discovered during the patdown. The trial court in Kirkeby found the facts to
be "as the officer testified today." The officer's testimony generally indicated that
defendant's consent to the requested searches was voluntary. The trial court in
Kirkeby also determined that the deputy "did not have reasonable suspicion for his
safety," and thus, he had no justification to request a patdown search of defen-
dant's clothing. That view of the deputy's authority to request a search does not
undermine the court's implicit determination, consistent with the deputy's testi-
mony, that defendant's consent to the requested search was voluntary.

2 ORS 136.432 provides:

"A court may not exclude relevant and otherwise admissible evidence in a
criminal action on the grounds that it was obtained in violation of any statu-
tory provision unless exclusion of the evidence is required by:

"(1) The United States Constitution or the Oregon Constitution;

"(2) The rules of evidence governing privileges and the admission of hear-
say; or

"(3) The rights of the press."

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evidence obtained through police conduct that exceeds the
statutory authority of the police. ORS 136.432 effectively
supersedes this court's decision in State v. Valdez, 277 Or
621, 561 P2d 1006 (1977), in which this court upheld the trial
court's sanction of exclusion of evidence where police had
obtained the evidence in violation of their statutory author-
ity. The relevant inquiry here, therefore, is whether the
police obtained the evidence that defendants seek to suppress
by conducting searches that violated Article I, section 9.

Article I, section 9, provides, in part:

"No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure * * *. "

Under that provision, warrantless searches are per se unrea-
sonable, subject to a few well-recognized exceptions, such as
searches conducted following a voluntary consent. As
explained in State v. Paulson, 313 Or 346, 351-52, 833 P2d
1278 (1992):

"A warrantless search by the police is 'reasonable' under
Article I, section 9, when the search falls into one or another
of the recognized exceptions to the warrant requirement.
State v. Miller, 300 Or 203, 225, 709 P2d 225 (1985), cert
den 475 US 1141 (1986). One such exception is consent.
'When there is consent to a search, no warrant is necessary.'
State v. Pogue, 243 Or 163, 164, 412 P2d 28 (1966)."

(Emphasis in original.)

Courts regard a consent search or seizure as an
"exception" to the prohibition on unreasonable search and
seizure for good reason, even though the constitutional text
does not refer to consent. In Oregon, the people control the
right to the security and privacy that Article I, section 9, pro-
tects. If a state agent wishes to examine a person's pockets,
automobile, briefcase, or other area that Article I, section 9,
protects, the person is free to grant or withhold consent. But
if the person voluntarily grants consent to a search or sei-
zure, courts recognize that it is virtually impossible, certainly
from the standpoint of logic, to conclude that the resulting
search or seizure is "unreasonable." Our courts do not sit to
stubbornly insist on maintaining the privacy of a person's

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property, and to suppress its admission as evidence in court,
after the person himself or herself has voluntarily consented
to its disclosure to the police.

We must bear in mind the particular interests that
Article I, section 9, protects and the particular actions by a
state actor to which that provision pertains.

"Article I, section 9, protects privacy and possessory
interests. A 'search' occurs when a person's privacy inter-
ests are invaded.

\* \* A 'seizure' [of property] occurs when there is a sig-
nificant interference with a person's possessory or owner-
ship interests in property."

State v. Owens, 302 Or 196, 206-07, 729 P2d 524 (1986).
Unquestionably, the police in this case "searched for" and
"seized" property from defendants after obtaining their con-
sent. The dispute here is whether the searches and seizures
of items of property in Rodgers's car and in Kirkeby's pocket
unlawfully deprived defendants of their constitutional pri-
vacy and possessory interests in the seized property despite
defendants' voluntary consent to the searches.

The majority concludes that the police exceeded
their statutory authority when they detained defendants by
questioning them in a manner unrelated to any traffic viola-
tion. Those unlawful detentions, according to the majority,
also were unconstitutional "seizures" under Article I, section
9, because they deprived defendants of their freedom of
movement without lawful justification.

The police, however, did not obtain the evidence that
is in dispute here simply by detaining defendants after the
traffic stops should have ended. In constitutional terms,
defendants' right to personal freedom of movement and their
right to the privacy of their property are distinct constitu-
tional interests that merit independent examination when
asserted against intrusive police conduct. As this court has
stated,

"Not all governmental intrusions trigger the protec-
tions guaranteed by Article I, section 9, of the Oregon

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Constitution. State v. Owens, 302 Or 196, 206, 729 P2d 524
(1986). Thus, in determining whether a particular govern-
mental action violates Article I, section 9, of the Oregon
Constitution, we first must decide whether the action is
either a 'search' or a 'seizure' within the meaning of that
section."

State v. Juarez-Godinez, 326 Or 1, 5, 942 P2d 772 (1997)
(footnote omitted).

Juarez-Godinez illustrates this court's insistence on
a separate examination of a driver's distinct interests in his
personal liberty and the privacy of his property in the context
of a traffic stop. In that case, Trooper Burdick stopped a car
driven by the defendant, who was accompanied by two pas-
sengers, for exceeding the maximum speed limit. Fifteen
minutes later, Burdick arrested the defendant for failure to
display a valid driver's license, placed him in a patrol car, and
asked if he could search the car. The defendant refused. The
court summarized the legal effect of those actions as follows:

"Indisputably, defendant had been placed under arrest.
As a consequence of that arrest, defendant was unable to
drive the car away himself. Still he retained a possessory
interest in the car and, in normal circumstances, could have
transferred possession of it to one of his passengers and
directed that it be driven away. Indeed, Burdick's request
that defendant consent to the search at least arguably was
a recognition of defendant's possessory interest, and defen-
dant's refusal to allow Burdick to search was an effort to
exercise that possessory interest."

Id. at 7-8. After detaining the defendant's car, the police
searched it and discovered illegal drugs. The court deter-
mined that the detention of the car constituted an unconsti-
tutional seizure of the car. The defendant argued that the
drug evidence was subject to suppression because the search
that brought it to light was the product of several observa-
tions of the car by Burdick during the unlawful detention of
the car. This court agreed and ordered suppression. Id. at
9-10.

Juarez-Godinez is helpful in analyzing the instant
case. The decision in that case demonstrates that a driver

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who has been subjected to a full-custody arrest during a traf-
fic stop, and thus has been deprived of his personal liberty to
move about, nevertheless retains a constitutionally protected
possessory and privacy interest regarding his property,
including his car, at the scene of the stop. That signifies that,
despite being under arrest, a driver can choose, in response to
a request for consent to search the car or other property,
either to insist on a search warrant or to voluntarily consent
to the requested search.

This court reached that very conclusion in State v.
Bea, 318 Or 220, 864 P2d 854 (1993), in which this court
upheld the admissibility of evidence seized from an arrestee
who voluntarily consented to a search of his person. The
court's principal focus in Bea was on the voluntariness of the
arrestee's consent to the search. That was the correct focus.3
The court examined all the surrounding circumstances,
including the fact that the defendant was under arrest, and
determined that

"[t]here is nothing in the record to indicate that the police
'intimidated or coerced [defendant] in any way' in obtaining
his consent or that there were any circumstances present
that might 'impair [defendant's] capacity to make a know-
ing, voluntary, and intelligent choice.' Because defendant
voluntarily consented to the search, that search did not vio-
late defendant's rights under Article I, section 9."

Id. at 230-31 (citations omitted; alterations in original).

The analysis is more complicated, however, when
the consent search follows a detention that is unconstitu-
tional. The unlawfulness of an initial detention may create
additional pressure on the citizen to consent to a search and,

3 Bea also confirmed that the pertinent inquiry under the Fourth Amendment
to the United States Constitution is identical to the inquiry under Article I, section
9: Did the arrestee give a voluntary consent to the search that uncovered the dis-
puted evidence? This court, describing the federal rule, stated:

"The mere fact that a defendant is in custody of police officers does not, in
itself, demonstrate that a consent to search is coerced. See United States v.
Watson, 423 US 411, 424, 96 S Ct 820, 46 L Ed 2d 598 (1976) (citing
Schneckloth [v. Bustamonte, 412 US 218, 219, 93 S Ct 2041, 36 L Ed 2d 854
(1973)] in concluding that 'the fact of custody alone has never been enough in
itself to demonstrate a coerced * * * consent to search')."

Bea, 318 Or at 231-32.

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thus, lead to the conclusion that the citizen's consent was not
voluntary. See State v. Kennedy, 290 Or 493, 502, 624 P2d 99
(1981) ("[T]he burden [of persuasion] on the police to show
voluntariness when consent occurs after illegal police con-
duct is greater than when no illegality has occurred."); State
v. Warner, 284 Or 147, 585 P2d 681 (1978) (defendant's con-
sent to search, following illegal stop, was not voluntary, given
that defendant had been confronted by six officers and three
marked police cars).

Apart from the voluntariness inquiry described
above, this court will require suppression of evidence
obtained following an initial unlawful detention if the evi-
dence is the "fruit of the poisonous tree." See Warner, 284 Or
at 166, citing Wong Sun v. United States, 371 US 471, 83 S Ct
407, 9 L Ed 2d 441 (1963) (discussing "fruit of the poisonous
tree" doctrine); Quinn, 290 Or at 396-97 (applying Wong Sun
"fruit of the poisonous tree" doctrine under Oregon Constitu-
tion). This court observed in State v. Hall, 339 Or 7, 27, 115
P3d 908 (2005), that the Quinn decision had not applied the
analysis in Wong Sun correctly to the facts of that case, and I
agree with that conclusion. Except for that misstep, however,
this court has applied the "fruit of the poisonous tree" analy-
sis to determine whether police have exploited an initial ille-
gal detention to obtain a defendant's consent to a search. See
State v. Rodriguez, 317 Or 27, 38, 38 n 11, 854 P2d 399 (1993)
(deciding, under Article I, section 9, whether evidence seized
pursuant to consent search was "'fruit' of the unlawful
arrest" of the defendant).

The facts in Wong Sun illustrate the significance of a
defendant's voluntary cooperation with police in a court's
subsequent application of the "fruit of the poisonous tree"
doctrine. In Wong Sun, federal narcotics officers illegally
entered a dwelling without probable cause and arrested Toy.
Toy made incriminating statements and gave the officers
information that led them to two other persons, Yee and
Wong Sun. The officers arrested Yee and seized drugs in his
possession. The officers also arrested Wong Sun. The court
arraigned Toy, Yee, and Wong Sun, and released them on
their own recognizance. Within a few days, an officer inter-
rogated Toy and Wong Sun, after advising them of their right
to remain silent. They made incriminating statements.

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The Court applied the "fruit of the poisonous tree"
doctrine to determine whether several distinct types of evi-
dence were subject to suppression because the officers had
obtained the evidence in violation of the Fourth Amendment
to the United States Constitution. The Court first decided
that the officers' entry into Toy's dwelling and subsequent
arrest had been unlawful. The Court then concluded that
Toy's oral statements to the officers in his home were the
fruit of that initial illegality and were subject to suppression.
371 US at 487.

Next, the Court turned to the admissibility of narcot-
ics seized from Yee. The seizure of those drugs was the imme-
diate result of the oral statements by Toy in his home. The
Court first determined that the officers had not obtained the
drug evidence through any source independent of Toy's dec-
larations. The Court continued:

" '[N]or is this a case in which the connection between the
lawless conduct of the police and the discovery of the chal-
lenged evidence has 'become so attenuated as to dissipate
the taint.' Nardone v. United States, 308 US 338, 341[, 60
S Ct 266, 84 L Ed 307 (1939)]. We need not hold that all evi-
dence is 'fruit of the poisonous tree' simply because it would
not have come to light but for the illegal actions of the
police. Rather, the more apt question in such a case is
'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 sufficiently distinguishable to be purged of the pri-
mary taint.' Maguire, Evidence of Guilt, 221 (1959). We
think it clear that the narcotics were 'come at by the exploi-
tation of that illegality' and hence that they may not be
used against Toy."

Id. at 487-88.

The Court then examined the admissibility of Wong
Sun's incriminating statement to the police after his arraign-
ment. The Court agreed that the officers had arrested Wong
Sun without probable cause, but decided that his incriminat-
ing statement to the officers was not the fruit of the unlawful
arrest:

"We turn now to the case of the other petitioner, Wong
Sun. We have no occasion to disagree with the finding of the

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Court of Appeals that his arrest, also, was without probable
cause or reasonable grounds. At all events no evidentiary
consequences turn upon that question. For Wong Sun's
unsigned confession was not the fruit of that arrest, and
was therefore properly admitted at trial. On the evidence
that Wong Sun had been released on his own recognizance
after a lawful arraignment, and had returned voluntarily
several days later to make the statement, we hold that the
connection between the arrest and the statement had
'become so attenuated as to dissipate the taint.' Nardone v.
United States, 308 US [at 341]."

Id. at 488.

Several useful principles emerge from the analysis
used in Wong Sun. First, the Court focused specifically on
how the police have "come at," or obtained, the challenged
evidence. Second, the Court also rejected reliance on a "but
for" causal relationship between the primary illegality and a
subsequent seizure of evidence. Finally, as the Court's dis-
cussion of its conclusion pertaining to defendant Wong Sun
discloses, a defendant's voluntary cooperation in providing
evidence to the police can dissipate the taint of an earlier
police illegality (there, the prior unlawful arrest of Wong
Sun), and justify admission of evidence despite the fact that
the police would not have obtained it but for earlier illegal
actions.

We must apply those principles faithfully in the con-
text of the present cases. The majority posits, and I agree,
that the police stops in these cases became unlawful seizures
when the officers delayed each driver's release at the conclu-
sion of any traffic-related business. At that point, the officers
had no probable cause to conduct any search or seizure of
either defendants' property; they had only a suspicion that
defendants might possess contraband.

The officers sought each defendant's consent to a
search and, in each case, defendants granted voluntary con-
sent to a search. Kirkeby repeatedly granted voluntary con-
sent to the search of his pockets. The resulting searches
yielded contraband. In Wong Sun terms, the police "came at"
the disputed evidence because of the voluntary consent of
each defendant to the requested searches. It is true that the

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seized contraband in each case has a "but for" causal link to
the police stops. However, Wong Sun holds that a "but for"
relationship between unlawful police conduct and evidence
seized afterward is insufficient where later events have dis-
sipated the taint of the earlier illegality.

Under the circumstances shown here, the voluntary
consent granted to the police was sufficient to purge the taint
of the unlawfully extended police stops. An officer's noncoer-
cive request for consent to search does no more than give a
defendant the choice of whether to permit the police to invade
his or her privacy interest in the property in question. If a
defendant voluntarily consents to a search, any evidence that
comes to light during the search owes its discovery to the
defendant's decision to consent, not to unilateral searching or
seizing activity by the police.

As noted, both the illegality of a defendant's deten-
tion and the factual circumstances surrounding a detention
can bear on the voluntariness inquiry when police rely on evi-
dence seized following a consent. But voluntariness is not
challenged here. Rather, defendants contend that the court
must suppress the seized evidence only because each request
for consent expanded the scope of each stop, thus effecting an
unconstitutional detention. That argument fails because it
focuses only on the "but for" relationship between the delayed
stops and the evidence seized later, and fails to account for
the attenuating effect of the consents to search that actually
brought the disputed evidence to light.

This case is unlike Quinn, where officers first con-
ducted a search without a warrant or a justification for a war-
rantless search, discovered the disputed evidence, and later
sought and obtained defendant's consent to again look for the
same evidence. At that point, the police already had breached
defendant's privacy interest in the disputed evidence. I agree
that, under those circumstances, the taint of the initial police
search was not dissipated by a later consent to search.

The majority reasons that the conduct of the police
in asking for consent to search was unlawful, because the
requests changed the purpose of the detention from a traffic
stop to a criminal investigation for which there was no
reasonable suspicion of criminal activity. 347 Or at 627-28.

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From that premise, the majority concludes that defendants'
consents to the requested searches were the product of
unlawful police conduct-the extended traffic stops-that
placed the officers in a position to request consent to search.

An obvious flaw in that reasoning is that it relies on
a "but for" causal connection between the delayed stop and
the officer's request for consent and avoids any analysis of the
correct issues: (1) did defendants voluntarily consent to a
search; and (2) if the consents were voluntary, did that fact
attenuate the taint of the delayed stop? The majority errs in
terminating its analysis based only on the fact that the
requests for consent occurred after the stops became unlaw-
ful and, thus, were the "product" of the extended stops.

The majority's focus on the requests for consent to
search is erroneous for another reason. Certain provisions of
the Oregon Constitution do restrict the opportunity of police
officers to ask questions of a suspect at certain times dur-
ing a police investigation. For example, the right against
self-incrimination in Article I, section 12, of the Oregon
Constitution restricts the police from subjecting a suspect to
custodial interrogation unless the police first advise the sus-
pect of his rights. State v. Scott, 343 Or 195, 203, 166 P3d 525
(2007). A suspect's constitutional right to counsel similarly
requires the police to refrain from questioning a suspect once
he or she asks for a lawyer. State v. Charboneau, 323 Or 38,
54, 913 P2d 308 (1996).

Article I, section 9, prohibits unreasonable
"searches" and "seizures." In the context of a consent search,
a police request for consent to search is not itself a search and
does not invade the privacy of the citizen. Thus, a request for
consent is distinguishable from, for example, custodial inter-
rogation, in which the permissibility of police questioning
itself is controlled by Article I, section 12.4 By contrast, courts
examine a request for consent under Article I, section 9, to
determine whether, based on the totality of the circum-
stances, the subsequent consent was voluntary. By focusing
exclusively on the causal link between the delayed stops and

4 Neither defendant in these cases asserts that the conduct of the police in
requesting consent violated any right protected by Article I, section 12.

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the officers' requests for consent to search, the majority is
able to identify only a "but for" causal link between the traffic
stops and defendants' consents to search, and avoid alto-
gether any examination of the voluntariness of defendants'
consent.

The majority relies on State v. Hall for the conclu-
sion that, in this context, the state must demonstrate that
the causal link between an unlawful police detention and any
later consent to a search is "severed." Hall did not attempt to
distinguish, let alone overrule, our cases invoking the correct
analytical rule in this circumstance, i.e., the "fruit of the poi-
sonous tree" doctrine.

According to the majority, under Hall, a request for a
consent to search effects an unlawful stop and is impermis-
sible police conduct, apart from any consideration of the vol-
untariness of the resulting consent to a search. That reading
of Hall conflicts with State v. Amaya, 336 Or 616, 626, 89 P3d
1163 (2004), in which this court confirmed that a police ques-
tion that does not relate to an ongoing traffic stop is not
unlawful when the question is asked to ensure the safety of
the police officer or others. Hall does not purport to overrule
Amaya or resolve that inconsistency.

Finally, Hall sought to distinguish two cases,
Kennedy and State v. Rodriguez, in which this court had
denied suppression of evidence obtained pursuant to consent
during assertedly unlawful police detentions. According to
Hall, the defendants in those cases consented to searches
without police prompting and, in Rodriguez, after a reading
of Miranda rights. 339 Or at 34. But the facts in those cases
showed only that the evidence on the record amply supported
the conclusion of voluntariness, not that the court, as the major-
ity sees it, could avoid the inquiry into voluntariness altogether
by deciding that the detention of the citizen was unlawful.

I dissented from the reasoning and result in Hall
regarding the consent search in that case. 339 Or at 37 (Dur-
ham, J., concurring in part and dissenting in part). The con-
cern that I voiced there-that the majority had created an
analytical model for consent searches that our precedents did
not support-takes on additional weight because the major-
ity has now extended its Hall analysis to the context of traffic

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stops, one of the most common police-citizen encounters. The
result will be a decline in the safety of traffic-related law
enforcement activities and an increase in the suppression of
evidence seized from automobiles even though the citizen has
granted the police voluntary consent to conduct a search. In
my view, Hall requires reconsideration.

A traffic stop by a police officer is a limited, but still
significant, abridgment of a citizen's freedom to move about
in an automobile. A traffic stop may rise to the level of a con-
stitutional seizure if the officer detains the driver, including
through questioning, without reasonable grounds. However,
if an officer unlawfully detains a driver, and later develops
suspicions about property in the car or on the driver's person,
the officer commits no invasion of the driver's privacy inter-
est in his or her property by requesting and receiving volun-
tary consent to search.

The request for consent places the driver and the
officer in the same positions that they would have occupied
before the unlawful detention, because it affords the driver
the choice to decide whether to voluntarily expose the prop-
erty to police examination through a search. Defendants in
these cases made that voluntary choice in favor of allowing
the police to search. The unchallenged conclusion that defen-
dants acted voluntarily in consenting confirms, as a matter of
logic, that the surrounding circumstances, including the
unlawfully extended stop, did not coerce defendants to coop-
erate with the police by allowing them to search. Conse-
quently, the searches here were not unreasonable under
Article I, section 9, and, accordingly, ORS 136.432 prohibits
suppression of the evidence in question.

In State v. Rodgers, I would reverse the decision of
the Court of Appeals and affirm the judgment of the trial
court. In State v. Kirkeby, I would reverse both the decision of
the Court of Appeals and the judgment of the trial court. I
dissent from the contrary dispositions ordered by the
majority.

Linder, J., joins in this dissenting opinion.