State v. Jordan

                                       547

   Submitted April 29, 2020; conviction on Count 1 reversed and remanded,
      remanded for resentencing, otherwise affirmed January 21, 2021


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                     DONALD LEROY JORDAN,
                        Defendant-Appellant.
                      Lane County Circuit Court
                        18CR18044; A169117
                                   

     Defendant challenges a judgment of conviction for possession of methamphetamine and failure to appear on a criminal citation. He argues that the trial
court erred in denying his motion to suppress because his consent to the search
was not voluntary. He further contends that he is entitled to suppression of the
methamphetamine that was discovered in the search and the criminal citation
that was issued, as evidence produced from the unlawful search. Held: The state
failed to meet its burden to establish that defendant’s consent was voluntary
when considering the coercive nature of the encounter and defendant’s words
and conduct, and the trial court erred in denying defendant’s motion and failing
to suppress the methamphetamine. However, defendant was not entitled to the
suppression of the citation because his decision to fail to appear on the court date
listed in the citation, which constituted a criminal offense, attenuated the taint
from the unlawful police conduct.
    Conviction on Count 1 reversed and remanded; remanded for resentencing;
otherwise affirmed.



    Maurice K. Merten, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
    ORTEGA, P. J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
548                                          State v. Jordan

        ORTEGA, P. J.
          Defendant was stopped by a police officer and
eventually assented to a search, which led to the discovery of methamphetamine in his pants pocket. The officer
cited defendant for methamphetamine possession, and the
citation included a date for defendant to appear in court.
Defendant failed to appear and ultimately was convicted
of methamphetamine possession, ORS 475.894 (Count 1),
and failure to appear on a criminal citation, ORS 133.076
(Count 2). In a single assignment of error, defendant challenges that judgment and argues that the trial court erred
in denying his motion to suppress because his consent to the
search was not voluntary. Defendant further contends that
he is entitled to suppression of the methamphetamine that
was discovered in the search and also the criminal citation
that was issued, as evidence produced from the unlawful
search. We conclude that defendant’s consent to the search
was not voluntary and that the methamphetamine evidence
should be suppressed. However, we disagree that defendant
is entitled to suppression of the criminal citation. We therefore reverse and remand on Count 1 and affirm on Count 2.
         Detective Sites, the arresting officer, testified at
the pretrial hearing on defendant’s motion to suppress, and
a dashboard-camera video which captured his interaction
with defendant was admitted into evidence. We recite the
evidence based on Sites’s testimony at the hearing and the
dash-cam video. The trial court relied on both Sites’s testimony and the video, and the parties’ dispute about defendant’s voluntary consent centers on the conclusions that can
be drawn from that evidence.
        At around 1:30 a.m., Sites was patrolling downtown
Eugene when he saw defendant, who was wearing a rain
poncho and standing by a shopping cart in a covered residential parking garage posted with no-trespassing signs. The
parking area is a known drug area, and residents regularly
complained to police about drug activity. Sites, in uniform,
stepped out of his patrol car, approached defendant, and
informed him that he was trespassing. Sites knew defendant from previous contacts and noticed that defendant’s
demeanor was more agitated and tense than usual. Sites,
Cite as 

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a trained Drug Recognition Expert, saw signs that defendant was impaired by a stimulant. He also noticed a syringe
plunger cap at defendant’s feet and believed that, in addition
to having probable cause for trespassing, he had reasonable
suspicion that defendant was in possession of drugs or drug
paraphernalia.
          Sites then asked defendant if he had any drugs on
him and if Sites could search him. Defendant responded
that he did not and searched his own pockets, which Sites
took to be the behavior of someone trying to hide something.
After 20 seconds had passed, Sites moved closer to and
leaned down over defendant and positioned himself to begin
searching while asking a second time, “All right, is it all
right if I check you out really quick?” Defendant responded
“Huh,” and Sites, while still positioned to search, moved in
even closer, leaned even further over defendant, and asked
a third time, “Is it all right if I check you out really quick?”
Defendant responded, “Like what?” As defendant pulled at
the front of his poncho while Sites’s hands were holding the
poncho, Sites asked a fourth time, “Is it all right if I check?”
Defendant responded that Sites could go ahead.1 Sites testified that defendant also “positioned himself to allow the
search” but did not remember whether defendant lifted his
arms. Sites began to search defendant and, while doing
so, confronted defendant about a prior methamphetamine
charge, which defendant denied having and they debated.
Approximately 35 seconds into the search, defendant stated,
“This is violating my rights.” Sites did not believe that defendant had withdrawn his consent but suspended the search
out of caution.
          Sites continued to discuss with defendant his belief
that defendant possessed drugs, pointing out the syringe
plunger cap at defendant’s feet. Defendant removed his poncho and jacket and displayed his arms to show Sites that he
was not an IV drug user. Sites asked defendant a fifth time
for his consent to search, and defendant responded, “No, I
ain’t fucking, no, you can arrest me then.” Sites responded,
    1
      Although defendant’s verbal response is noted as “(indiscernible)?” on the
video transcript and cannot be heard when listening to the video, Sites testified
that defendant responded by giving verbal consent, which was not disputed below
or on appeal.
550                                                         State v. Jordan

“Is that—if that’s how you want to do it.” Eventually, defendant said, “[Y]ou can search me if you want, but … that’s
violating my rights.” Up to that point, defendant sometimes
joked with Sites, including indicating that if Sites took him
to jail he wanted to take his TV with him. However, defendant also expressed frustration with Sites’s requests for consent to search, pacing back and forth and declaring, “This is
ridiculous, man, it is.”
         Sites then asked defendant what he had in his pockets, and defendant responded by holding his arms out to the
side, patting his pockets, and then lifting his arms in the
air. Sites then walked toward defendant while asking again,
“Can I check?” Defendant then dropped his arms. Sites
removed the glove from his right hand and walked toward
defendant’s backside while defendant turned his body away
from Sites so that his back was facing Sites’s front. Sites
removed his glove because he interpreted defendant turning away from him2 and holding his “arms out” as giving
nonverbal consent to search and because the glove was thick
and removing it enables him to “check a smaller pocket, like
the … coin pocket.” However, given that defendant had
recently asserted that Sites was violating his rights, he continued to seek verbal confirmation to search. For about five
seconds, Sites stood at defendant’s backside, in his “immediate proximity,” positioned to search and waiting for defendant’s verbal consent until defendant nodded his head up
and down. Sites asked, “Yeah?” and defendant responded,
“Do it, do it.” Sites did not have to reposition himself to reach
into defendant’s pockets, where he discovered methamphetamine. Sites served defendant with a citation to appear in
court 22 days later, but defendant failed to appear. He ultimately was indicted by a grand jury for methamphetamine
possession and failure to appear.
       Before trial, defendant filed a motion to suppress
“any and all evidence” from the search, arguing that

    2
      Although Sites’s testimony—that he removed his glove because he interpreted defendant turning away as communicating nonverbal consent—implies
that defendant turned away before the glove was removed, the video reveals that
Sites in fact removed his glove before defendant began to turn away. However, we
need not consider that discrepancy in our analysis because it would not affect the
outcome.
Cite as 

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defendant had merely acquiesced, not voluntarily consented
to the search. The trial court denied defendant’s motion
to suppress based on Sites’s testimony and viewing the
video, determining that “by words and conduct,” defendant
“clearly, voluntarily consented to the search of his person.”
Following a stipulated facts trial, defendant was convicted
of possession of methamphetamine and failure to appear on
a criminal citation.
         On appeal, defendant argues that the circumstances
surrounding his interaction with Sites, the words that Sites
used, and defendant’s responses all show that defendant did
not voluntarily consent to the search. Specifically, defendant
argues that Sites repeatedly accused him of trespassing,
communicated that he suspected defendant of drug possession, and persistently questioned and asked to search defendant despite his repeated expressions of frustration with the
encounter, including two complaints that Sites was violating
his rights. Thus, according to defendant, the surrounding
circumstances gave defendant “ample reason to believe that
his arrest and search was likely if not inevitable.” Further,
defendant argues that his words and actions showed that
he was not voluntarily cooperating with Sites, including
his multiple attempts to limit and control the search, twice
interrupting Sites’s attempts to search him by telling him
that Sites was violating his rights, telling Sites that he
could search him only if he arrested him, and that, despite
his initial resistance, he only reluctantly gave way following
Sites’s persistent conduct. Thus, defendant argues, the state
failed to establish that he actually intended to give consent.
See State v. Blair, 

, 

 (2017) (discussing “actual consent” as the “touchstone of the consent
exception under Article I, section 9”).
         The state disagrees that Sites’s words or conduct
communicated that the search was inevitable or required
and argues that, on the contrary, his words and conduct
communicated that he would not search without defendant’s
consent. The state emphasizes that Sites’s interaction with
defendant was polite, respectful, and calm and that Sites
did not raise his voice or draw his weapon and did not place
defendant in handcuffs or in his patrol car or take any other
actions that would arguably create a coercive atmosphere.
552                                             State v. Jordan

The state acknowledges that Sites “repeatedly asked for
defendant’s consent to search,” but argues that Sites also
“repeatedly made clear that he would not in fact search
defendant without that consent.” And, according to the
state, defendant first gave nonverbal consent by “positioning
himself so that Sites could pat him down” and then, before
Sites began the search, gave his verbal consent when he told
Sites, “Do it, do it.” Therefore, the state contends, the trial
court did not err in denying defendant’s motion to suppress.
         We review a trial court’s decision to deny a defendant’s motion to suppress for legal error. State v. Vasquez-Villagomez, 

, 

 (2009). In reviewing
the voluntariness of defendant’s consent, we are bound by
the trial court’s findings of historical fact if there is evidence
in the record to support them. State v. Venturi, 

, 

, rev den, 

 (2000). “Ultimately,
the determination about whether a consent to search is voluntary is a legal issue that we review independently, based
on the trial court’s findings that are supported by the evidence.” 

 (citing State v. Stevens, 

, 

 (1991)).
          Under Article I, section 9, warrantless searches
are unreasonable “unless falling within one of the few specifically established and well-delineated exceptions to the
warrant requirement.” State v. Baker, 

, 

 (2011) (internal quotation marks omitted). One such
exception is consent. State v. Paulson, 

, 

 (1992). Under that exception, the state has the
burden to prove by a preponderance of the evidence “that
someone having the authority to do so voluntarily gave the
police consent to search the defendant’s person or property.”

         “The test for voluntariness is whether, under the
totality of the circumstances, the consent was given by an
act of a defendant’s free will as opposed to resulting from
express or implied coercion.” State v. Jepson, 

, 

 (2012). Consent may be explicit, or it
“may be manifested by conduct.” State v. Martin, 

, 

 (2008), rev den, 

 (2009).
Further, the person must “actually intend[ ] to give consent
Cite as 

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to the intrusion.” Blair, 

 (emphasis in original). “[A] defendant’s mere acquiescence to police authority does not constitute consent.” Jepson, 

(internal quotation marks omitted). A person acquiesces
to police authority when the “individual is not given a reasonable opportunity to choose to consent or when he or she
is informed that a search will occur regardless of whether
consent is given.” 

 (internal quotation marks
omitted).
          In assessing whether defendant has voluntarily
consented or merely acquiesced to police authority, we consider the officer’s words to determine whether those words
provided the defendant with an opportunity to choose to
consent, or whether those words left defendant with the
impression that a search was inevitable. 

; State
v. Freund, 

, 

 (1990). A defendant’s response to an officer’s request to search also bears
on whether the consent was voluntary. See Martin, 

 (concluding that the defendant’s “actions
did not invite” the officers inside her home). In determining whether consent was voluntary, we also look to whether
physical force was used or threatened, whether weapons
were displayed, whether the consent was obtained in public, the officer’s tone of voice, whether the person giving consent is under investigation, the number of officers present,
and “whether the atmosphere surrounding the consent is
antagonistic or oppressive.” State v. Larson, 

, 

, rev den, 

 (1996).
         Here, in assessing the totality of the circumstances,
we conclude that the state failed to meet its burden to establish that defendant’s consent was freely and voluntarily
given. We begin by evaluating the circumstances surrounding Sites’s initial search of defendant, concluding that Sites’s
conduct up to that point communicated to defendant that
a search would occur regardless of whether defendant consented. We acknowledge that Sites’s choice of words—“Is it
all right if I check you out?” and “Do you mind if I check?”
which invited a “yes” or “no” response—would appear to be
questions seeking consent and not mere acquiescence. See
Larson, 

 (officer’s statement, “would
you please open the door of the car on the van” invited a “yes”
554                                           State v. Jordan

or “no” response and not mere acquiescence). And, we have
explained that “in the absence of compelling circumstances
to the contrary, an officer’s particular choice of language is
highly significant in assessing whether a reasonable person would understand the officer’s remarks to be so coercive
as to render refusal to consent futile.” State v. Ry/Guinto,

, 306 n 5, 

, rev den, 

(2007). However, we do not view the officer’s choice of words
in isolation in determining the voluntariness of consent to
search. See State v. Stanley, 

, 

 (2017) (test for voluntariness requires consideration of
the totality of the circumstances); Ry/Guinto, 

 n 5 (“[T]he particular phrasing of a purported request
is not necessarily dispositive[.]”); Freund, 

 (looking to officer’s preceding statements as context
in evaluating officer’s alleged request for consent).
          Although Sites’s choice of words could be interpreted as seeking voluntary consent and not mere acquiescence, those words viewed in the context of Sites’s conduct
communicated a distinctly different message. That is so
because each time Sites asked defendant if it was “all right
if [he] check[ed him] out,” Sites moved closer to, and leaned
further down over, defendant while positioning himself to
begin the search. By the time Sites made his fourth request
to search—the question that elicited defendant’s verbal
assent—his hands were already on defendant’s poncho. It
is unlikely that a reasonable listener in defendant’s position
would feel free to refuse Sites’s multiple requests for consent
to search when standing alone in the early morning hours of
a parking lot with an officer who, by the fourth request for
consent to search, had already taken such substantial steps
to begin the search. Rather, that conduct, viewed in context
of the entire interaction up to that point, including Sites
accusing defendant of committing crimes, communicated
“that a search [would] occur regardless of whether consent
is given.” Jepson, 

 (internal quotation
marks omitted).
         We come to a similar conclusion when evaluating
the circumstances leading up to the initiation of the second
search, which include the circumstances that preceded the
initial search that we previously discussed. Sites’s conduct
Cite as 

 (2021)                            555

after he ceased the initial search—but viewed in context of
what occurred preceding the initial search—communicated
to defendant that any refusal to consent would have been
futile. On that point, we make four observations.
        First, Sites communicated to defendant that he was
under investigation for a second crime—drug activity—
when he confronted defendant with accusations of prior drug
use during the initial search and then later questioned him
about the syringe cap at his feet. See Larson, 

 (noting a factor relevant to voluntariness includes
“whether the person who gives consent is the subject of an
investigation”).
        Second, although defendant twice communicated to
Sites that a search was violating his rights and that Sites
could only search him if he arrested him, Sites persisted in
seeking defendant’s consent.
         Third, Sites’s response—“if that’s how you want to
do it”—after defendant told him that he could search him if
he arrested him, communicated to defendant that, if he did
not consent to the search, he was likely to be arrested. See
State v. Guzman, 

, 

(1999), rev den, 

 (2000) (concluding that “[a]ny
consent was coerced by the possibility that [the] defendant
would be arrested for a violation of his probation if he did
not cooperate,” although the probation officer did not have
reasonable grounds to believe that the defendant was in
violation of his probation). We acknowledge that a threat
to do something that an officer has a legal right to do does
not necessarily create a coercive atmosphere such to render subsequent consent to a search involuntary. See State
v. Williamson, 

, 

 (1989) (Carson,
J., concurring) (“If the officers threaten only to do what the
law permits them to do, the coercion that the threat may
produce is not constitutionally objectionable.” (Internal quotation marks omitted.)). We also acknowledge that defendant appeared to make light of any possible arrest when he
joked that, if Sites did arrest him, he wanted to take his TV
with him, which the state argues shows that defendant was
not concerned that he would actually be arrested. However,
even assuming Sites had a lawful basis to arrest defendant,
556                                           State v. Jordan

an issue which the parties do not address and we do not
decide, and considering defendant’s playful response, those
factors do not mitigate the implication of Sites’s statement
that defendant could be arrested if he did not consent to the
search when that statement is viewed in the context of the
particularly coercive atmosphere of the entire interaction.
          Fourth, like he did during the initial search, Sites
physically dominated defendant’s space before obtaining
his verbal assent, “Do it, do it.” Sites positioned himself to
search before obtaining consent by moving directly behind
defendant and standing in his “immediate proximity.”
Sites’s physical location was close enough to defendant that,
as Sites testified, he did not have to reposition himself to
reach into defendant’s pockets after obtaining his verbal
assent. That conduct was particularly intimidating when
considering that Sites stood in that position for about five
seconds before defendant’s verbal assent, that Sites initiated
the first search under similarly coercive circumstances, and
that they were standing alone in a parking lot at 1:30 in the
morning. In other words, Sites’s physical positioning communicated that defendant did not have a real choice not to
consent to the search. Rather, Sites’s conduct, when viewed
in the context of the entire interaction, conveyed Sites’s
intent to begin the search regardless of defendant’s actual
consent. Cf. Freund, 

 (“[T]he officer’s statement told [the] defendant that she had no choice whether a
search would occur; her only option was whether the search
and seizure was to be ‘calm and efficient.’ Defendant merely
chose the option favoring calmness and efficiency.”).
        Defendant’s words and conduct also communicated
that he did not actually intend to consent to the search.
See Blair, 

 (“[O]ur decisions under Article I,
section 9, indicate that circumstances showing the defendant’s actual understanding and intent are relevant to
the voluntariness analysis.”). As already noted, defendant
tried to limit Sites’s first request to search by searching
his own pockets, told Sites that he could search him if he
arrested him, twice told Sites that searching him was violating his rights, and repeatedly expressed his frustration
with Sites’s requests for consent to search. Defendant’s
occasional attempts to make light of and potentially diffuse
Cite as 

 (2021)                             557

the situation do not persuade us that his submission to the
search reflected an intent to voluntarily relinquish his constitutional rights when viewed in context of the increasingly
coercive nature of the interaction and defendant’s repeated
expressions of frustration with it.
         Although Sites testified that, after he removed his
glove before beginning the second search, he understood
defendant to be giving nonverbal consent when defendant
held his “arms out” to his side, defendant’s conduct at that
point was not sufficient to communicate voluntary consent.
Although potentially ambiguous, defendant’s conduct of
holding his arms out to his side, lifting his arms up, and
then bringing them down, viewed in the context of the overall coercive nature of Sites’s conduct, does not satisfy the
state’s burden to prove more than passive acquiescence.
Martin, 

 (concluding that, although the
defendant opening her front door and running away while
leaving the door open may have sent an ambiguous message
as to whether she voluntarily consented to the officers walking inside her home, the state failed to meet its burden to
show her conduct was anything more than acquiescence).
          The state argues that Ry/Guinto, where we concluded that the officer’s conduct was not so coercive as to
render the consent of one of the two defendants involuntary,
is instructive. In that case, both defendants had argued that
the single defendant’s consent was not the product of free
will considering the officer’s “persistence” in seeking consent to search despite the defendant’s “repeated refusals.”

. We first concluded that, contrary to
the defendants’ assertions, neither defendant had “explicitly
refused to consent” in response to the officer’s requests to
search. 

. We next looked at the officer’s choice of
words when requesting consent, and concluded that the one
directive—that the officer would “like [the defendant] to step
out if [he] would please and let [him] search [his] vehicle
for a weapon”—was not problematic viewed in the context
of the requests to search that preceded and followed that
directive. 

. We ultimately concluded that the
officer’s “dogged persistence in trying to obtain consent” was
not so coercive as to render the defendant’s consent involuntary when considering the totality of the circumstances,
558                                           State v. Jordan

including that the defendant consented to the search of the
car while sitting unrestrained in the car for less than five
minutes; the stop was “lawful, albeit somewhat stressful”;
the encounter was on a public highway during daylight
hours; and the interaction was polite and did not include
weapons drawn or any threats or promises. 

.
         The state argues that the circumstances here are
less coercive than in Ry/Guinto. We disagree. Unlike in that
case, defendant here explicitly and implicitly refused Sites’s
persistent requests to search when defendant began searching his own pockets in response to Sites’s early request to
search, when he twice stated that the search was violating
his rights, and when he responded, “no, you can arrest me”
if Sites wanted to search him. Also dissimilar to Ry/Guinto,
Sites elicited defendant’s first verbal assent while standing
over him, positioned to search with his hands on defendant’s
poncho, and he similarly elicited defendant’s second verbal
assent after he had positioned himself to search by standing over and behind defendant in his “immediate proximity.” That conduct, in addition to the encounter having taken
place at 1:30 a.m. in a parking lot, Sites having confronted
defendant with committing two crimes and implying that
he could be arrested if he did not consent to the search, and
Sites’s persistence in seeking consent, created a more coercive atmosphere than the one at issue in Ry/Guinto.
         In sum, considering the totality of circumstances,
the state failed to meet its burden to show that defendant’s
consent was voluntary. Even though Sites’s verbal requests
for consent to search appeared to invite a response, his conduct, viewed in the context of the entire exchange, created
an atmosphere coercive enough to render defendant’s assent
to be mere acquiescence. Therefore, the trial court erred in
denying defendant’s motion, and the methamphetamine evidence should have been suppressed.
         We turn to defendant’s argument that the criminal citation should also have been suppressed. “[T]he right
to be free from unreasonable searches and seizures under
Article I, section 9, also encompasses the right to be free
from the use of evidence obtained in violation of that state
constitutional provision.” State v. Hall, 

, 115 P3d
Cite as 

 (2021)                              559

908 (2005), overruled in part on other grounds by State v.
Unger, 

, 

 (2014). The exclusionary
rule requires the suppression of both the primary evidence
discovered from illegal police conduct and also the secondary evidence subsequently derived from that prior police
illegality. State v. Cardell, 

, 

 (2002). “[I]n deciding the applicability of the Oregon
exclusionary rule, the critical inquiry is whether the state
obtained the evidence sought to be suppressed as a result of a
violation of the defendant’s rights under Article I, section 9.”
Hall, 

.

         Evidence obtained in violation of a defendant’s
Article I, section 9, rights “is presumed [to be] tainted by
the violation and must be suppressed.” State v. Jones, 

, 

 (2015) (internal quotation marks
omitted). “However, the state may rebut that presumption
by proving attenuation—that is, that the violation of [the]
defendant’s rights had such a tenuous factual link to the
disputed evidence that the unlawful police conduct cannot be properly viewed as the source of that evidence.” 

(internal quotation marks omitted). In determining whether
the state proved attenuation under the totality of the circumstances, we consider the temporal proximity between
the unlawful police misconduct and the discovery of the
evidence, the existence of any intervening or mitigating
circumstances, and the nature, purpose, and flagrancy of
the misconduct. Unger, 

; see also Jones, 

 (“We explained that, in determining whether the
state had met its burden to demonstrate attenuation under
Article I, section 9, we should apply the attenuation test set
forth in Unger.”). The focus of that inquiry is on whether
the evidence “was tainted because it was derived from or
was a product of the unlawful conduct,” or “whether police
exploited or took advantage of or traded on their unlawful
conduct” in obtaining the challenged evidence. Unger, 

 (internal quotation marks omitted).

        Defendant argues that, because the discovery of
methamphetamine directly resulted from the unlawful
search and must be suppressed, the citation that was issued
due to the discovery of the methamphetamine must also
560                                           State v. Jordan

be suppressed as the “direct and unattenuated product of
the illegality.” Defendant notes that “the citation expressed
Sites’s observation that defendant possessed methamphetamine, which was an observation that must be suppressed.”
         The state contends that, because defendant failed to
appear on the citation, “under such circumstances [it] is not
the ‘product’ of a search and it does not constitute derivative
evidence that is subject to suppression.” We understand the
state’s argument to be that defendant’s conduct of failing to
appear on the criminal citation attenuated the taint of the
unlawful search. We agree with the state.
          In State v. Suppah, the Supreme Court “considered
whether a defendant’s decision to commit a new crime after
being unlawfully seized will attenuate the taint of the seizure.” 

, 

 (2016). In that case,
the defendant was stopped in July for a traffic infraction
and gave the officer a fake name, date of birth, and address,
which turned out to be associated with a person whose driver’s license was suspended. The defendant was subsequently
cited for driving while suspended. 

. One month
later, in August, the defendant called the district attorney’s
office to report that he had given the officer a fake name in
July and that he was in fact the person who was driving the
vehicle that was stopped. 

. As a result, the state
charged the defendant with, along with another offense, giving false information to a police officer (FIPO). 

         Before trial, the defendant argued that the stop was
unlawful and moved to suppress both his July and August
statements as products of the unlawful seizure. 

 Although
the trial court agreed with the defendant that the stop was
unlawful, the trial court concluded that neither his July nor
August statements were the products of the unlawful seizure. 

. We reversed the trial court, holding that,
although the defendant’s August statements were sufficiently
attenuated from the unlawful stop and admissible, his July
statements should have been suppressed. We concluded that,
despite the defendant’s misrepresentation to the officer, the
state had failed to establish that the July statements were
attenuated from the unlawful stop. 

.
Cite as 

 (2021)                                             561

          Reviewing our ruling related to the defendant’s
July statements,3 the Supreme Court reversed. The court
first explained that it “has long recognized that ‘but for’
causation is insufficient, standing alone, to establish that
subsequently obtained evidence is the product of an illegality.” Id. at 578. The court continued, stating that “in determining whether evidence is the product of an illegal seizure,
the court has considered the temporal proximity between
the police conduct and the discovery of the evidence, the
existence of intervening circumstances, and the presence of
other circumstances—such as admonitions of constitutional
rights—that bear on attenuation,” the “ ‘nature, extent, and
severity of the constitutional violation,’ ” and the “ ‘purpose
and flagrancy of the misconduct.’ ” Id. (citing Unger, 

). The court went on to evaluate how a defendant’s
“voluntary decision” to commit a crime following unlawful
police conduct, such as by, for example, resisting arrest, factors into the attenuation analysis. The court stated:
   “Typically, what attenuates the act of resisting arrest (or
   other criminal conduct) from the unlawful seizure that preceded it is the defendant’s decision to engage in an act that
   goes beyond the consequences that ordinarily flow from
   the illegality. See [State v.] Crandall, 340 Or [645, 652-53,
   

 (2006)] (defendant’s act of hiding drugs under
   parked car after officers unlawfully had directed him to
   come over and talk to them attenuated taint of unlawful stop); State v. Kennedy, 

, 

 (1981)
   (defendant’s unsolicited invitation to search his luggage
   after officers unlawfully had stopped him attenuated taint
   of unlawful stop).”

. Thus, the court explained, “the commission of
a new crime in response to an illegality forms a relatively
sui generis class of attenuating circumstances.” 

.
The court ultimately held that the defendant’s choice to misrepresent himself in response to the deputy’s question was
a circumstance that sufficiently attenuated the taint of the
unlawful seizure. 

. The defendant’s response,
the court explained, “went beyond what ordinarily would

   3
     The defendant did not seek review of our decision holding his August statements were attenuated from the unlawful seizure.
562                                                          State v. Jordan

occur in much the same way that a defendant’s decisions to
resist arrest or to offer a bribe go beyond the consequences
that ordinarily flow from an arrest.” 

. Further, in
“giving the deputy a false name and address in violation of
[the FIPO statute], defendant knowingly chose to do something other than what the deputy had asked.” 

 The court
also noted that the unlawful seizure was not intrusive,
extended, or severe. 

.

          For the same reasons expressed by the Supreme
Court in Suppah, we conclude that defendant’s decision here
to fail to appear on his court date was a circumstance that
sufficiently attenuated the taint of the unlawful search. It
is undisputed that, after Sites located methamphetamine in
defendant’s pants pocket, Sites issued defendant a citation
instructing him to appear in court on that criminal charge
and that defendant did not show up to that court date.
Defendant’s voluntary decision to fail to appear to court
as instructed in the criminal citation, a violation of ORS
133.076,4 was a circumstance that created a tenuous factual
link between the unlawful search and the issuance of the
citation sufficient to attenuate the taint of Sites’s unlawful search. When a person is cited by an officer to appear
in court, the expectation is that the person will choose to
appear or face subsequent consequences, such as the court
issuing a warrant for the person’s arrest. In choosing to not
appear at the court date contained in the citation, defendant’s actions went “beyond the consequences that ordinarily flow from the illegality.” Suppah, 

.
    4
      In relevant part, ORS 133.076(1) provides:
   “A person commits the offense of failure to appear on a criminal citation if the
   person has been served with a criminal citation issued under ORS 133.055 to
   133.076 and the person knowingly fails to do any of the following:
        “(a) Make an appearance in the manner required by ORS 133.060.”
ORS 133.060 provides:
        “(1) A person who has been served with a criminal citation shall appear
   before a magistrate of the county in which the person was cited at the time,
   date and court specified in the citation, which shall not be later than 30 days
   after the date the citation was issued.
        “(2) If the cited person fails to appear at the time, date and court specified in the criminal citation, and a complaint or information is filed, the
   magistrate shall issue a warrant of arrest, upon application for its issuance,
   upon the person’s failure to appear.”
Cite as 

 (2021)                            563

          Additionally, the tenuous factual link between the
citation and the unlawful search is further supported when
considering the nature of the police conduct and the temporal proximity between the unlawful search and production
of the citation. That is so because it was defendant’s conduct
of failing to appear that transformed the citation, a document that simply initiated the criminal process at the time
it was issued, into evidence of a crime. See ORS 133.055(1)
(allowing a “peace officer” to deliver “a criminal citation to
a person if the peace officer has probable cause to believe
that the person has committed a misdemeanor or has committed any felony that is subject to misdemeanor treatment
under ORS 161.705,” and that the “criminal citation shall
require the person to appear” in court); Unger, 

 (question for purposes of attenuation is whether the
officers exploited their unlawful conduct to obtain the evidence). As Suppah explained, a defendant’s choice to commit a crime following unlawful police conduct is a relatively
unique class of attenuating circumstances. 385 Or at 579.
And, absent some factual circumstance indicating otherwise, a defendant’s decision to commit a new crime following
the unlawful police conduct will, in many cases, transform
the nature of the causal connection between the unlawful
police conduct and the disputed evidence such that it cannot be properly viewed as a product of the unlawful conduct. Considering the totality of the circumstances, defendant’s decision to fail to appear is such a circumstance here.
Therefore, although defendant is entitled to the suppression
of the methamphetamine evidence, he is not entitled to the
suppression of the criminal citation as a result of the unlawful search.
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.