State v. DeJong

                                      325

                 Submitted May 30, 2019, affirmed July 8, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                         KRISTI DeJONG,
                        Defendant-Appellant.
                     Baker County Circuit Court
                       16CR52264; A165504
                                  

    Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine. She assigns error to the trial court’s denial of her motion to suppress
evidence obtained from her house following the execution of a search warrant.
Specifically, defendant argues that the police unlawfully seized her house before
applying for a search warrant and that the state failed to show that the evidence
discovered during the ensuing search was not tainted by the preceding seizure.
Held: The trial court did not err. Defendant did not establish a factual nexus
between the unlawful, pre-warrant seizure of the house and the officers’ discovery of the challenged evidence. Accordingly, the burden was not on the state to
prove that the evidence was not the product of that unlawful seizure.
    Affirmed.



    Gregory L. Baxter, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
    DeHOOG, P. J.
    Affirmed.
326                                           State v. DeJong

        DeHOOG, P. J.
         Defendant appeals a judgment of conviction for
unlawful delivery of methamphetamine, ORS 475.890.
Defendant assigns error to the trial court’s denial of her
motion to suppress evidence obtained from her house following the execution of a search warrant. Defendant argues
that the police unlawfully seized her house before applying for a search warrant and that the state failed to show
that the evidence discovered during the ensuing search was
not tainted by the preceding seizure. The state responds
that suppression was not warranted, because, even if the
pre-warrant seizure of defendant’s home had not occurred,
officers would nonetheless have discovered the challenged
evidence while executing the lawfully issued search warrant. We conclude that the trial court did not err. Because
the circumstances of this case do not show a factual nexus
between the unlawful, pre-warrant seizure of the home and
the officers’ discovery of the challenged evidence, the burden
was not on the state to prove that the search was not tainted
by the prior seizure; we therefore affirm.
         We review the trial court’s denial of defendant’s
motion to suppress for legal error. State v. Maciel-Figueroa,

, 

 (2017). In conducting that
review, “we are bound by the trial court’s factual findings
if there is … constitutionally sufficient evidence in the
record to support them.” 

. “If the trial court did
not make findings of fact on all pertinent issues and ‘there is
evidence from which the trial court could have found a fact
in more than one way, we will presume that the trial court
decided the facts consistently with the trial court’s ultimate
conclusion.’ ” State v. Brownlee, 

, 

 (2020) (quoting Maciel-Figueroa, 

).
We state the facts with that standard in mind.
        On August 19, 2016, an informant, Williams, who
had been working with Officer Pelayo regarding defendant’s
suspected involvement in an “illegal drug enterprise,” contacted Pelayo and informed him that she had purchased
methamphetamine from defendant several times during
the month of August. Williams told Pelayo that defendant
“had a decent amount of methamphetamine and she was
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selling it.” Williams added that she had been at defendant’s
residence earlier that day with defendant and defendant’s
roommate, Penrod. During that time, Williams said, defendant had “pulled a medium sized baggie out of her black
and grey colored purse containing a large amount of methamphetamine.” According to Williams, defendant weighed
out 40 dollars-worth of the methamphetamine and gave it to
Penrod for $20. Williams told Pelayo that she had then purchased a small amount of marijuana from defendant, left
the residence, and contacted him.
         At Pelayo’s request, Williams agreed to send defendant a text message asking to purchase methamphetamine.
She sent a message to defendant stating, “Hey I got someone
look in for $50th u got that.” Defendant responded, “Yes.”
Through additional texts, they agreed to meet at defendant’s
house in “[a]bout an hour.” Williams told Pelayo that once
defendant makes an agreement to sell, she becomes impatient. Based on past deals, Williams believed that defendant
would leave her residence and go camping if law enforcement waited too long.
        At approximately 6:00 p.m. that evening, Pelayo
and six other officers went to defendant’s home and knocked
on the door; defendant answered. Defendant refused to talk
to Pelayo, but she did let him know that her roommate,
Penrod, was the only other person there. At that point,
Pelayo arrested defendant and took her to jail. Other officers then entered and “secure[d] the residence.” According
to Pelayo, that involved looking for people inside the house,
having them come outside, and positioning officers around
the house to ensure that no one entered before officers could
obtain a search warrant.
         While securing defendant’s home, officers located
Penrod in the basement and asked her to come outside.
Once Penrod was outside, officers interviewed her both on
site and at the police department. Penrod gave a detailed
statement in which she described having purchased methamphetamine from defendant, as well as other narcotics
sales by defendant. Among other things, Penrod told Pelayo
that, just that day, she had seen defendant sell Williams a
baggie of methamphetamine worth about $30 for only $20.
328                                                        State v. DeJong

         Shortly before 8:00 p.m., Pelayo began drafting
an affidavit and search warrant authorizing a search of
defendant’s residence. In his affidavit, Pelayo discussed
Williams’s allegations, the text messages that Williams
and defendant had exchanged, the results of Penrod’s interviews, and statements attributed to defendant’s neighbors
and other officers. At approximately 11:00 p.m., after Pelayo
had procured a search warrant, officers began a search
of defendant’s home, which by then had been secured for
approximately five hours. During their search, officers
located and seized several evidentiary items from the house,
including a bindle containing what turned out to be methamphetamine, a digital scale, two baggies containing methamphetamine residue, a meth pipe, a black sunglasses bag
holding syringes, a glass pipe, half of a white pill, and a cell
phone.
         As a result of those discoveries and Pelayo’s related
investigation, defendant was prosecuted for unlawful delivery of methamphetamine, ORS 475.890, conspiracy to commit a class B felony, ORS 161.450, and unlawful possession
of methamphetamine, ORS 475.894. Defendant moved to
suppress the evidence obtained during the warrant search,
arguing that it was derived from an unlawful search and
seizure; defendant also moved to controvert Pelayo’s affidavit. Defendant’s theory as to why suppression was required
was that the pre-warrant “freezing of the premises” constituted a warrantless search and seizure not supported
by exigent circumstances. Defendant further argued that,
because Pelayo would not have had any information from
Penrod without officers having illegally entered her home,
the search warrant issued based partly on that information was not valid and the resulting evidence should be
suppressed.1
        In response, the state argued that exigent circumstances had justified securing defendant’s house while officers applied for a search warrant. The state specifically
    1
      Defendant also argued that the search warrant affidavit failed to establish
probable cause because the facts Pelayo relied on were “stale” and included hearsay. The trial court excised the hearsay from the affidavit and concluded that the
balance of the affidavit established probable cause. Defendant does not reprise
that argument on appeal.
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argued that an exigency arose following defendant’s arrest,
because, at that time, Penrod would have had some interest in destroying or removing any evidence in the home.
The state alternatively argued that, even if exigent circumstances did not justify securing the house, suppression was
not warranted, because the “police [had] gained nothing
from securing the residence that they would not have otherwise had.”
         The trial court issued a written opinion declining
to suppress the evidence discovered during the warrant
search. In reaching that decision, however, the court agreed
with aspects of defendant’s arguments. In particular, the
court agreed that “there were not exigent circumstances to
justify the seizure” of the house and that the officers had
therefore acted unlawfully when they secured defendant’s
home while Pelayo procured a search warrant. As a result,
the court ruled that the suppression of Penrod’s statements
was required, which, in turn, meant that they could play
no role in the assessment of whether probable cause had
supported the issuance of a search warrant. The court disagreed, however, that the unlawful seizure of defendant’s
home meant that all evidence obtained pursuant to the
search warrant was subject to suppression. As the trial court
explained,
   “[O]nly the evidence gained from the illegal conduct should
   be suppressed. State v. Smith, [

, 

 (1998)].

       “Pelayo gained the statements of … Penrod as a result
   of the illegal seizure. Penrod’s statements flowed from
   the illegal seizure of the residence. If the officers had not
   illegally seized the residence, cleared the residence, and
   located Penrod[,] the state would not have her statements.

      “The seizure of [defendant’s] residence pending application for search warrant was unlawful. Penrod’s statements were illegally obtained. Therefore, her statements
   are suppressed.

      “The illegally obtained statements were used in Pelayo’s
   search warrant affidavit. Illegally obtained evidence should
   be excised from the affidavit and the affidavit should be
330                                               State v. DeJong

   reexamined to determine if probable cause existed at the
   time the original warrant issued.”
        Upon reexamining Pelayo’s affidavit with Penrod’s
unlawfully obtained statements excised from that document, the trial court concluded that the search warrant
was, nonetheless, supported by probable cause:
   “The court reexamined the affidavit to determine if there
   was probable cause given the illegally obtained statements
   of Penrod …. … This court finds that even with Penrod’s
   statement excised … there was probable cause to issue
   the warrant. Defendant’s motion to suppress evidence
   seized pursuant to the search warrant is denied.”
(Boldface in original.) Following the trial court’s ruling on
her motion to suppress, defendant entered a conditional
guilty plea to Count 1, unlawful delivery of methamphetamine, and the remaining counts were dismissed. This
appeal followed.
         On appeal, plaintiff assigns error to the trial court’s
denial of her motion to suppress the evidence obtained
during the warrant search of her house. Specifically, defendant argues that the evidence discovered in that search was
tainted by the unlawful seizure that preceded it. Defendant
acknowledges that, under State v. Johnson, 

, 

 (2003), the burden was initially on her to establish
a factual nexus between the unlawful police conduct and
the discovery of the evidence she sought to have suppressed.
Defendant contends, however, that she satisfied that burden
in two ways: by proving that (1) but for the unlawful securing of her home, Pelayo would not have had Penrod’s statements to include in his search warrant affidavit, and (2) but
for the seizure, the house and its contents would not have
been under police control. Thus, defendant argues, under
Johnson, she successfully shifted the burden to the state to
establish that the police did not exploit their unlawful conduct to obtain the evidence that they ultimately discovered
during the warrant search. 

.
        Defendant further contends that the state failed
to meet that burden and argues that, for two reasons, any
contrary argument by the state is unavailing. First, she
argues, although the search warrant affidavit establishes
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probable cause even without Penrod’s statements,2 the presence of those statements in the original affidavit contributed to the initial finding of probable cause. Second, defendant reasons, “[w]ithout the police seizing the house, there
was no guarantee that the challenged evidence would have
remained in place, such that it would have been there for
the police to discover hours later upon issuance of the warrant.” Defendant concludes that the trial court’s suppression
of only Penrod’s statements was therefore insufficient.
         For its part, the state does not challenge the trial
court’s ruling that the seizure of defendant’s home was
unlawful.3 Instead, the state responds that the court did not
err in ultimately denying defendant’s motion to suppress,
because officers would have obtained the evidence that they
found during the warrant search even if the pre-warrant seizure had not occurred. Like defendant, the state recognizes
Johnson as controlling, but argues that defendant failed to
establish the requisite factual nexus between the unlawful
seizure of her home and the discovery of the challenged evidence. 

. The state also acknowledges that the
trial court found a factual nexus between the pre-warrant
seizure and Penrod’s statements, but argues that the court’s
remedy of suppressing those statements and excising them
from the affidavit was both correct and sufficient. The state
further observes that, because the trial court agreed with
defendant that exigent circumstances did not justify the
seizure, it “implicitly found that … Penrod was not going
to remove the evidence from the residence.” Thus, to the
extent that defendant suggests that the unlawful removal
of Penrod was causally related to continued presence of evidence in defendant’s home at the time of the warrant search,
the state contends that the trial court’s finding precludes
that argument. We turn to those arguments.
         Article I, section 9, of the Oregon Constitution provides, in part, that “[n]o law shall violate the right of the
people to be secure in their persons, houses, papers, and

    2
      Defendant does not contest that the search warrant affidavit, with Penrod’s
statement excised, establishes probable cause.
    3
      Specifically, the state does not argue, as it did to the trial court, that the
pre-warrant seizure of defendant’s house was lawful.
332                                                        State v. DeJong

effects, against unreasonable search, or seizure[.]” “A warrantless search or seizure is unreasonable and therefore violates the right provided by Article I, section 9, unless the
search or seizure comes ‘within one of the few specifically
established and carefully delineated exceptions to the warrant requirement.’ ” State v. George, 

,

 (2017), rev den, 

 (2018) (quoting
State v. Bridewell, 

, 

 (1988)).
Whereas a search warrant carries a presumption of regularity, placing the burden of proving the unlawfulness of
a warranted search or seizure on the defendant, the state
bears the burden of proving the lawfulness of a warrantless
search. State v. Walker, 

, 

(2011); see ORS 133.693.
         As noted, the state does not cross-assign error to
the trial court’s ruling that exigent circumstances did not
justify the pre-warrant seizure of defendant’s house and
that the seizure was therefore unlawful. Accordingly, the
state does not challenge the suppression of Penrod’s statements.4 Rather, the state argues that, despite the court’s
conclusion that the pre-warrant seizure of defendant’s house
was unlawful, it correctly ruled that the discovery of drug
evidence during the warranted search was lawful. Thus, the
issue before us is whether the unlawful pre-warrant seizure
of defendant’s home somehow also rendered the results of
the warrant search unlawful; that is, whether that earlier
illegality “tainted” the later warrant search.
         It is well established that a finding of unlawful
police conduct does not invariably require the suppression
of any evidence that the police discover after engaging in
such conduct. State v. Unger, 

, 

(2014). Rather, suppression is required only if the discovery
of evidence is shown to be the product of the constitutional
violation, i.e., when the police have exploited that illegality
to obtain the evidence. 

; State v. Sargent, 

, 

 (1996); see also State v. Smith, 

, 

 (1998) (stating that “it is sufficient

    4
      Given the state’s concession, we assume for purposes of this decision that
the trial court’s ruling regarding the initial seizure was correct, but we express
no opinion as to that issue.
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to suppress only evidence that is actually obtained out of an
illegal search or seizure” (emphasis in original)).
         In Unger, the Supreme Court reexamined the
exploitation analysis that it had articulated in State v. Hall,

, 

 (2005), in which a defendant seeking to suppress evidence was required to show a “minimal
factual nexus” between unlawful police conduct and the evidence that the defendant sought to suppress. Unger, 

. As the Unger court explained, Hall had drawn the
“minimal factual nexus” requirement from State v. Johnson,

, 

 (2003):
       “In [Johnson], the defendant sought to 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.’ 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. 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.
   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.’ ”
Unger, 

 (brackets in original; citations omitted).
         Ultimately, the Unger court concluded that Hall’s
reliance on Johnson was misplaced, because Johnson had
involved a warrant search, while Hall—like Unger—had
involved a warrantless search, meaning that, by statute, the
burden of proving the validity of the search was on the state.

; ORS 133.693(4). Thus, reasoning that the rationale
of Johnson was not applicable when the police did not have
a warrant, the court overruled Hall’s requirement that, in
334                                           State v. DeJong

all instances, a defendant must establish a “minimal factual nexus” between unlawful police conduct and evidence
sought to be suppressed. Unger, 

 (“When the
police perform 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 defendant to shift the burden to the state.”). Unger did not, however, overrule Johnson, nor, in our view, did it cast doubt
on Johnson’s rationale for requiring a defendant in a search
warrant case to establish a “minimal factual nexus.” We
proceed with that understanding.

         This case, like Johnson, involves evidence (the
house and its contents) that was initially seized unlawfully,
then later “reseized” and searched pursuant to a duly issued
search warrant. 

. Thus, as defendant acknowledges and the state agrees, defendant bore the initial burden of establishing a factual nexus between the evidence
obtained during the search and the unlawful seizure that
preceded it. 

. If defendant established that
nexus, then the burden was on the state to show that the
evidence was untainted, i.e., that it was not the product of
that unlawful police conduct. 

 Put somewhat differently,
“in suppression hearings involving a search pursuant to a
warrant allegedly tainted by earlier police illegality, the
defendant bears the initial burden of production, while
the state bears the ultimate burden of persuasion.” State v.
James, 

, 

 (2005) (emphasis in
original).

         In light of Johnson, the trial court correctly concluded that, although the initial seizure of the house had
been unlawful, “only the evidence gained from the illegal
conduct should be suppressed.” The court first explained
that Penrod’s statements had been obtained as a result of
the illegal seizure and that they, therefore, had to be suppressed. Turning to the drug evidence found in the warrant
search, however, the court concluded that suppression was
not required. As the state observes, in reaching that conclusion, the trial court implicitly found that the discovery of
evidence during the warrant search did not result from the
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pre-warrant seizure of the house. See Brownlee, 

 (“If the trial court did not make findings of fact on all
pertinent issues and there is evidence from which the trial
court could have found a fact in more than one way, we will
presume that the trial court decided the facts consistently
with the trial court’s ultimate conclusion.” (Internal quotation marks omitted.)). In other words, the court implicitly
found that there was no factual nexus between the evidence
obtained during the search and the unlawful seizure that
preceded it.
         As noted, defendant makes two arguments as to
how, notwithstanding the trial court’s implicit finding to the
contrary, a factual nexus linked the unlawful seizure of her
home to the evidence that the officers found inside it. First,
citing State v. Dimmick, 

, 

 (2012),
defendant argues that the inclusion of Penrod’s statements
in the search warrant affidavit contributed to the issuing
judge’s probable cause determination, thereby establishing
the required nexus. We disagree.
         In Dimmick, the defendant was subject to a traffic stop. 

. Because his car was not insured, the
officer conducting the stop impounded it and, as part of an
inventory search, seized a backpack found in the car, even
though the defendant had tried to retrieve it before leaving
the scene. 

. The officer patted down the backpack and felt what he thought was probably drug paraphernalia. 

. The officer later applied for and obtained a
warrant to search the backpack. 

 In his supporting affidavit, the officer described what he had felt when he patted
down the backpack. 

 The officer’s ensuing search of the
backpack led to his discovery of several methamphetamine
pipes and baggies containing white residue. 

. As a
result, the defendant was charged with unlawful possession
of methamphetamine. 

         On appeal, we concluded that the seizure of the
backpack was unlawful because it was not authorized under
the applicable inventory policy; we further determined that
the defendant had established a factual nexus between
that unlawful seizure and the subsequent warrant search.

. We observed that, but for the unlawful seizure,
336                                          State v. DeJong

the backpack would not have been in the possession of the
police. 

. Furthermore, without the information
that the officer had obtained unlawfully patting down the
backpack, the affidavit would not have supported a search
warrant. 

 Under those circumstances, the defendant had
established the requisite factual nexus, and the burden was
on the state to show that the evidence was not tainted by
those prior illegalities. 

         Defendant’s reliance on Dimmick is misplaced. As
the trial court correctly understood in this case, “when an
application includes constitutionally tainted information,
the proper remedy is for the reviewing court to excise all
the tainted information from the application and determine
whether the remaining information in the affidavit is sufficient to establish probable cause.” State v. Gardner, 

, 

, rev den, 

 (2014).
Dimmick does not suggest otherwise. There, the search warrant affidavit did not establish probable cause without the
illegally obtained information. Dimmick, 

.
Here, on the other hand, the trial court expressly conducted
the analysis that Gardner and similar cases contemplate—
it excised Penrod’s unlawfully obtained statements and
determined whether the information that remained established probable cause to search defendant’s house. In the
trial court’s view, it did, and defendant does not challenge
that conclusion.
         We likewise reject defendant’s second “factual
nexus” argument. Defendant argues that, “[w]ithout the
police seizing the house, there was no guarantee that the
challenged evidence would have remained in place, such
that it would have been there for the police to discover hours
later upon issuance of the warrant.” It is true that when the
police secured defendant’s house, they obtained substantial
control over the house and its contents. We are unpersuaded,
however, that the record contains any nonspeculative basis
on which to find that the unlawful seizure of the house was
causally related to the ultimate discovery of the drug evidence inside.
        The Supreme Court’s decision in Smith is instructive. In that case, the court recognized that there are
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circumstances in which “the act of securing certain property may permit the police to obtain evidence that otherwise
would not be available to them”; in those instances, suppression is required. Smith, 

. Suppression is
not required, however, if the record does not establish that
the unlawful securing of the property contributed to the discovery of evidence. 

 In Smith, the police had unlawfully
seized, or “secured,” the defendant’s storage unit by placing
a padlock on it in anticipation of obtaining a search warrant.

. Once they had procured a warrant, the police
searched the unit and discovered incriminating evidence.

. Notwithstanding that course of events, suppression was not appropriate. 

. The court reasoned that
“the padlock, although unlawful, was irrelevant,” because
the defendant had presented no evidence that anyone had
attempted to gain access to the storage unit or remove the
evidence before the warrant was executed. 

. Thus,
although the padlock had unquestionably secured the unit,
it had not contributed to the ultimate discovery of evidence.

         Conversely, in Dimmick, there was evidence that
the defendant had unsuccessfully attempted to retrieve the
backpack before the officer unlawfully seized it. 

. Thus, had the officer acted lawfully, the backpack
would not have been in the possession of the police or available to be searched pursuant to warrant. As a result, suppression was required. 

.

         Here, as in Smith, nothing in the record suggests
that anyone who had the ability and authority to remove
items from defendant’s home either attempted to do so or
would have done so had the officers not secured the premises. Defendant observes that there is “no guarantee” that
the evidence would have remained at the house absent the
unlawful seizure. However, defendant offered no evidentiary support for her theory that evidence might have been
removed had the house not been seized; without evidence to
that effect, defendant’s theory is mere speculation. Seeking
to avoid that conclusion, defendant points to the state’s
argument to the trial court that an exigency had justified
the pre-warrant seizure of the house because Penrod could
338                                        State v. DeJong

otherwise have removed or destroyed evidence. Whatever
merit that argument—which, in any event, the trial court
rejected—may have had, it cannot satisfy defendant’s burden of producing evidence that Penrod or anyone else might
otherwise have attempted to remove evidence from defendant’s home. As a result, defendant has not established the
requisite minimal factual nexus between the unlawful seizure of her house and the ensuing warrant search. Without
that nexus, the state was under no obligation to establish
that the police had not exploited their unlawful conduct
when they searched defendant’s home pursuant to warrant.
Accordingly, the trial court did not err in denying defendant’s motion to suppress.
        Affirmed.