State v. DeJong

                                       640

Argued and submitted June 22; decision of Court of Appeals reversed, judgment
   of circuit court reversed, and case remanded to circuit court for further
                         proceedings November 4, 2021


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                     KRISTI DeJONG,
                    Petitioner on Review.
          (CC 16CR52264) (CA A165504) (SC S068065)
                                    

    Officers unlawfully seized defendant’s residence. Based, in part, on information learned during the seizure, they obtained a warrant to search the residence where they discovered evidence of unlawful delivery of methamphetamine. Defendant moved to suppress the evidence obtained in the warranted
search, contending that it was inadmissible under Article I, section 9, of the
Oregon Constitution. The trial court denied that motion, and the Court of
Appeals affirmed, relying on State v. Johnson, 

, 

 (2003).
Held: (1) Under the burden-shifting framework in Johnson, defendant established
a minimal factual nexus between the unlawful seizure of her residence and the
evidence that the state discovered during the warranted search so as to shift the
burden to the state to prove that the evidence obtained during the warranted
search was untainted by the prior unlawful seizure; and (2) the record in this
case is legally insufficient to support a finding that the officers would have inevitably discovered the challenged evidence during the warranted search absent the
unlawful seizure of defendant’s residence.
    The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.



    En Banc
    On review from the Court of Appeals.*
   Mark Kimbrell, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
   Christopher R. Page, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
______________
    * On appeal from Baker County Circuit Court, Erin K. Landis, Judge (motion
to suppress), and Gregory L. Baxter, Judge (judgment). 

, 

 (2020).
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review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
  WALTERS, C. J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
642                                                         State v. DeJong

          WALTERS, C. J.
         Officers unlawfully seized defendant’s residence.
Based, in part, on information learned during the seizure,
they obtained a warrant to search the residence where they
discovered evidence of unlawful delivery of methamphetamine. Defendant moved to suppress the evidence obtained
in the warranted search, contending that it was inadmissible under Article I, section 9, of the Oregon Constitution.1
The trial court denied defendant’s motion to suppress that
evidence, and the Court of Appeals affirmed, relying on this
court’s decision in State v. Johnson, 

, 

(2003).
          In Johnson, this court adopted a burden-shifting
framework that applies when a defendant challenges the
admission of evidence obtained in a warranted search that
is preceded by an illegality. Under that framework, the
defendant has the initial burden to establish a minimal factual nexus between the illegality and the challenged evidence. 

. If the defendant does so, the burden
shifts to the state to establish that the challenged evidence
was untainted by the illegality. 

 In this case, the Court
of Appeals concluded that defendant’s challenge failed at
the first step—that is, that defendant failed to establish the
requisite factual nexus between the unlawful seizure of her
residence and the evidence the state discovered during the
warranted search. State v. DeJong, 

, 

 (2020). For reasons we will explain, we disagree with
that conclusion and hold that defendant established the necessary factual nexus. We further conclude that the record
in this case is legally insufficient to support a finding that
the state met its burden at the second step of the Johnson
analysis. Accordingly, we reverse the decision of the Court of
Appeals and the judgment of the circuit court and remand
the case to the circuit court for further proceedings.

   1
     Article I, section 9, provides:
       “No law shall violate the right of the people to be secure in their persons,
   houses, papers, and effects, against unreasonable search, or seizure; and no
   warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or
   thing to be seized.”
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         We review a trial court’s denial of a motion to suppress for errors of law and are bound by the court’s factual
findings if there is constitutionally sufficient evidence to
support them. State v. Maciel-Figueroa, 

,

 (2017) (citing State v. Ehly, 

, 

 (1993)). If the trial court did not make express findings as to all pertinent issues and there is evidence from
which the court could have found a fact in more than one
way, we will presume that the court found the fact that is
consistent with its ultimate conclusion. 

. With that
standard in mind, we set out the most basic facts and later
add those necessary to address the state’s argument that it
satisfied its burden under Johnson.
         Officer Daniel Pelayo had been investigating defendant’s involvement in an “illegal drug enterprise” for approximately 18 months when an informant, Tiffany Williams,
contacted him. Williams told Pelayo that defendant was
selling methamphetamine, that Williams had been at defendant’s residence earlier that day to purchase marijuana, and
that, while Williams was there, she had observed defendant
sell methamphetamine to Flora Penrod. Pelayo knew that
Penrod lived in the basement of defendant’s residence, and
he had Williams arrange to meet defendant at her residence
to make a purchase.
        Shortly thereafter, Pelayo and several other officers
went to defendant’s residence. Pelayo knocked on the door,
and defendant answered. She told Pelayo that Penrod was
in the residence but otherwise refused to speak with him.
Defendant was arrested and eventually taken to the county
jail.
         Officers “secured” the residence. In the course of
doing so, they found Penrod in the basement and interviewed her, first just outside the residence and later at
the police station. During those interviews, Penrod gave a
detailed account of her purchase of methamphetamine from
defendant earlier that day and disclosed that defendant had
given and sold methamphetamine to her in the past.
       Later that evening, Pelayo prepared an affidavit
and search warrant application. Among other things, the
644                                                        State v. DeJong

affidavit included the information that Williams had provided about defendant’s drug activities, the text messages
that Williams had exchanged with defendant arranging
to purchase methamphetamine, and the information that
Penrod had provided during her interviews with Pelayo. The
search warrant was issued and, in the subsequent search of
the residence, officers located and seized evidence, including
a bindle bag with methamphetamine, digital scales, a methamphetamine pipe, a glass pipe and small bottle with residue, half of a white pill, a cell phone, and a black sunglasses
bag with “syringes and meth baggies” and a pipe. Among
other crimes, defendant was charged with unlawful delivery
of methamphetamine.

        Defendant moved to suppress the evidence obtained
following the seizure of her residence. Relying on Article I,
section 9, she argued that, because exigent circumstances
did not exist, the warrantless seizure of her residence was
unlawful and that the subsequently discovered evidence
should be suppressed.2

          The trial court agreed with defendant that exigent
circumstances did not justify the warrantless seizure, and
that, “[i]f the officers had not illegally seized the residence,
cleared the residence[,] and located Penrod[,] the state would
not have her statements.” But the trial court did not grant
defendant’s motion in its entirety. Instead, the trial court
suppressed Penrod’s statements and excised them from the
search warrant affidavit.3 The court then reexamined the
affidavit, concluded that what remained still established
probable cause to issue the warrant, and denied defendant’s
motion to suppress the evidence obtained in the warranted
search.

         Defendant entered a conditional guilty plea to unlawful delivery of methamphetamine, reserving the right on
appeal to challenge, among other rulings, the trial court’s

     2
       Defendant also moved to controvert Pelayo’s affidavit submitted in support
of the warrant application. The trial court denied that motion, and that ruling is
not at issue.
     3
       The trial court also excised statements attributed to unnamed individuals
that failed to establish their basis of knowledge. That ruling is not at issue.
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denial of her motion to suppress.4 After accepting defendant’s plea, the trial court entered a judgment convicting defendant of unlawful delivery of methamphetamine
and dismissing all other charges as indicated in the plea
agreement.
         On appeal, defendant assigned error to the denial of
her motion to suppress, contending that the evidence discovered in the warranted search was tainted by the unlawful
seizure that preceded it. DeJong, 

. Both
defendant and the state acknowledged that our decision in
Johnson established the controlling framework for resolving the case. 

. Defendant did not challenge the
trial court’s conclusion that, after excising Penrod’s statements and other information, the search warrant affidavit
established probable cause. 

 at 331 n 2. And the state did
not challenge the trial court’s ruling that the warrantless
seizure of defendant’s residence was unlawful because it
was not justified by exigent circumstances. 

 at 331 & n 3.
Thus, the issue on appeal was a narrow one—viz., whether,
under Johnson, defendant had established a minimal factual nexus between the unlawful seizure of her residence
and the evidence discovered in the warranted search so as
to shift the burden to the state to establish that the challenged evidence was untainted by the preceding illegality.
Defendant contended that she had satisfied her burden, and
the state disagreed.
         The Court of Appeals concluded that defendant had
failed to establish the requisite factual nexus and, therefore,
that the trial court had not erred in denying defendant’s
motion to suppress the evidence obtained in the warranted
search. In reaching that conclusion, the court specifically
rejected two arguments that defendant had made.
         In her first argument, defendant had asserted 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.”

    4
      See ORS 135.335(3) (providing, in part, that, “[w]ith the consent of the court
and the state, a defendant may enter a conditional plea of guilty … reserving, in
writing, the right, on appeal from the judgment, to a review of an adverse determination of any specified pretrial motion”).
646                                                        State v. DeJong

. In rejecting that argument, the Court of Appeals
concluded that the trial court’s remedy of excising the tainted
information from the affidavit and assessing whether the
balance of the affidavit established probable cause was sufficient. 

.
         In her second argument, defendant had asserted
that the challenged evidence was tainted by the preceding
illegality because, as a result of the unlawful seizure, the
evidence remained in place at the time of the search. 

. Defendant argued that the state had failed to demonstrate that the evidence would have remained in place even
if the officers had not seized her residence. 

.
In rejecting that argument, the Court of Appeals reasoned
that defendant had the burden to establish the necessary
nexus and to produce evidence that the challenged evidence
“might have been removed had the house not been seized.”

. Without such a showing, the court concluded,
defendant had not “established the requisite minimal factual nexus between the unlawful seizure of her house and
the ensuing warrant search.” 

. The court further
concluded that, “[w]ithout 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 [the] warrant.” 

          On review, defendant begins by asking us to disavow
the burden-shifting framework established in Johnson.5
Specifically, defendant asks us to hold, as we do with warrantless consent searches, that when the search is preceded
by unlawful police conduct, the defendant need not establish
a causal relationship between the unlawful conduct and the
evidence obtained in the search and the burden is on the
state to demonstrate that the evidence is untainted by the
prior illegality. Alternatively, defendant argues that, even if
Johnson’s burden-shifting framework applies, she met her

    5
      As noted, in the Court of Appeals, defendant acknowledged that Johnson
established the controlling framework. Any contrary argument in that court
would have been futile, because the Court of Appeals cannot overrule this court’s
precedent. See Farmers Ins. Co. v. Mowry, 

, 

 (2011)
(explaining that this court is “the body with the ultimate responsibility for construing our constitution, and if we err, no other reviewing body can remedy that
error” (internal quotation marks omitted)).
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burden—that is, she demonstrated the necessary factual
nexus and shifted the burden to the state to demonstrate
that the challenged evidence was untainted by the prior
unlawful seizure.
         The state responds that principles of stare decisis
counsel adherence to the Johnson framework.6 The state
contends that, under that framework, the Court of Appeals
correctly concluded that defendant did not make the necessary showing of a factual nexus between the seizure of
her residence and the evidence obtained in the warranted
search and, alternatively, that, if defendant made the showing necessary to shift the burden to the state, then the state
produced evidence sufficient to demonstrate that the challenged evidence was not tainted by the seizure. The state
argues that, even without the seizure, officers inevitably
would have discovered the challenged evidence during the
warranted search.
         We take each argument in turn, beginning with
defendant’s request that we disavow the analytic framework
that we adopted in Johnson. In doing so, “we begin with the
assumption that issues considered in our prior cases are correctly decided, and the party seeking to change a precedent
must assume responsibility for affirmatively persuading us
that we should abandon that precedent.” Farmers Ins. Co. v.
Mowry, 

, 

 (2011) (internal quotation marks omitted).
        Defendant gives two reasons for her request. First,
she contends that we adopted the factual nexus requirement in Johnson without considering the purpose of
Oregon’s exclusionary rule, which is to vindicate a defendant’s personal right to be free from unreasonable searches
and seizures. See, e.g., State v. Smith, 

,

 (1998) (so stating). We reject that argument.
By the time we decided Johnson, that purpose was clearly

     6
       “[S]tare decisis is a prudential doctrine that is defined by the competing
needs for stability and flexibility in Oregon law.” Farmers Ins. Co., 

. “[W]hether a case should be overruled cannot be reduced to the mechanical application of a formula but requires instead an exercise of judgment that
takes all appropriate factors into consideration.” Horton v. OHSU, 

, 

 (2016).
648                                                          State v. DeJong

established.7 Moreover, as we understand Johnson, its analytic framework protects, and does not burden, a defendant’s
right to be free from the use of evidence obtained in violation of that constitutional provision.
         To explain our reasoning, it is helpful to set out our
decision in Johnson in more detail and to home in on the
application of the Johnson analysis to the facts of this case.
Doing so demonstrates that that decision reflects an understanding of and adherence to the purpose of Oregon’s exclusionary rule.
         Johnson concerned whether evidence seized during
a warranted search was tainted by the prior unlawful seizure of the same evidence. 

. In that case, the
police became interested in the defendant as a suspect in
an aggravated murder investigation. 

 When the defendant was arrested for an unrelated probation violation, an
officer noticed that he wore a pair of boots consistent with a
boot print found at the murder scene. 

. Detectives
interviewed the defendant at the police station and, without
a warrant, seized his clothing and boots and secured them
in an evidence locker. 

 Thereafter, as the defendant was
being released in the probation matter, he was arrested for
the murder. 

    7
      Before we decided Johnson, we had decided three cases addressing whether
to suppress evidence obtained during a valid warranted search that was preceded
by unlawful police conduct: State v. Hansen, 

, 

 (1983);
State v. Sargent, 

, 

 (1996); and Smith, 

. Those
cases reflected an evolution from the use of federal, deterrence-based principles
in Hansen to the use of vindication-of-rights principles in Smith that further the
purpose of Article I, section 9. As we explained in Smith,
         “[t]hat we no longer adhere to the view in Hansen should not be surprising. Hansen was decided in an era when this court made little effort to evaluate Oregon’s constitutional guarantees as separate from those in the United
    States Constitution. Hansen thus appears to have been an attempt to vindicate the ‘police deterrence’ rationale of the Fourth Amendment—that is, to
    prevent the police from deriving any benefit from the unlawful practice of
    seizing a residence in mere anticipation of obtaining a warrant to search for
    evidence of suspected crimes. This court since clearly has rejected that deterrence rationale as foreign to the Oregon search and seizure provision, holding, instead, that the Oregon exclusionary rule exists to vindicate a personal
    right to be free from unlawful searches and seizures. See … Sargent, 

 n 4 [(so stating)]. To support that purpose, it is sufficient to suppress
    only evidence that is actually obtained out of an illegal search or seizure.”

 (emphases in original).
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          In the trial court, the defendant moved to suppress
the clothing and boots under Article I, section 9. 

 After
the trial court granted that motion, the state appealed and
simultaneously applied for and obtained a search warrant
authorizing the seizure of the evidence. Id. at 515. The Court
of Appeals affirmed the trial court’s suppression order, and
the state did not seek review of that decision. Id. at 515-16.
Instead, the state sought to again admit the evidence in the
trial court on the theory that it had been legally seized pursuant to the warrant. Id. at 516. The defendant again moved
to suppress, contending that “the evidence was tainted by
the first, unlawful seizure and that the belated warrant did
not purge that taint because it was not a genuinely independent source of the evidence.” Id. The trial court determined
that the seizure of the evidence pursuant to the warrant was
not independent of the unlawful seizure because “[t]he State
… failed to prove that if the State had not seized defendant’s property that the State would have been able to locate
and seize defendant’s property pursuant to a valid search
warrant.” Id. at 518 (internal quotation marks omitted).
          On direct appeal to this court, the state contended
that, “under Oregon law, defendant’s clothes would not be
subject to suppression if, after the initial illegal seizure,
they were reseized pursuant to a lawful warrant that was
entirely independent of, and was not obtained by exploitation of, the previous illegality.” Id. at 519. In considering the
state’s contention, we addressed an issue of first impression
in Oregon—that is, “which party carries the burden of proof”
when “the evidence in question first was seized unlawfully
and without a warrant and the defendant asserts that a
later, warranted ‘reseizure’ is tainted by the unlawful, warrantless seizure.” Id. at 520. We acknowledged that placing
the burden of persuasion on the state in those circumstances
“might seem contrary to the oft-cited rule that, when state
agents have acted under authority of a warrant, the burden is on the party seeking suppression (i.e., the defendant) to prove the unlawfulness of a search or seizure.” Id.
However, noting a similar approach taken by federal courts
that was not inconsistent with the presumption of regularity that arises in a warranted search where an independent
magistrate has determined that probable cause exists, we
650                                               State v. DeJong

ultimately established the burden-shifting framework that
defendant challenges in this case:
   “[E]ven assuming that the issuance of the warrant was
   proper, if the defendant is able to show that the evidence
   obtained therefrom is connected to some prior governmental misconduct, the presumption of regularity is undermined and the burden of proof fairly may be shifted to the
   government to show that the evidence is not tainted by the
   misconduct.”
Id. at 521.
        Applying that construct in Johnson, we held that
the defendant had satisfied his burden of showing a factual nexus between the challenged evidence and the prior
unlawful conduct:
      “In so holding, we rely on the fact that the police used
   information derived from that earlier unlawful seizure, viz.,
   the fact that the clothes could be found in a police evidence
   locker, when they later applied for a search warrant. The
   existence of that factual connection is sufficient to shift the
   burden of persuasion regarding taint to the state.”
Id. Turning to whether the state had satisfied its burden of
showing that the challenged evidence was not tainted, the
issue reduced to whether the state had established that it
was more likely than not that it “would have obtained the
[evidence] in any event.” Id. at 522. We concluded that evidence in the record supported the trial court’s ruling that
the state had not carried its burden, and we affirmed the
court’s suppression order. Id. at 526.
         Thus, in Johnson, the defendant met the factual
nexus requirement by showing that “the police used information derived from that earlier unlawful seizure …
when they later applied for a search warrant.” 

. In this case, defendant submits that she met her burden by doing the same—that is, by showing that the officers
used information that they obtained during the seizure of
her residence when they applied for a warrant to search it.
In defendant’s view, that showing is sufficient to shift the
burden to the state to demonstrate that the officers would
have obtained the challenged evidence even if they had
not unlawfully seized the residence. The state disagrees; it
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contends that defendant was required to establish that “but
for the unlawful seizure of the residence the officers would
not have obtained the drug evidence.”8
         Defendant is correct in her understanding of the
“minimal factual nexus” required by Johnson. As noted,
this court required that the defendant show only that the
evidence obtained “is connected to some prior governmental misconduct.” Id. at 521 (emphasis added). We explained
that it was “reasonable” to require that a defendant establish that connection to rebut the presumption of regularity
attendant to warranted searches, id., but we did not place a
burden on the defendant to show, as the state contends the
defendant must, that “but for the unlawful [act] the [government] would not have obtained the [challenged] evidence.”
Johnson places the obverse burden—the burden to show
that “the evidence is not tainted by the misconduct,” id.—on
the state, and, if we were to accept the state’s argument, we
would be shifting that burden to the defendant. So understood, Johnson is consistent with the purpose of Article I,
section 9, to protect a defendant’s right to be free from the
use of evidence obtained in violation of that constitutional
provision. See Smith, 

 (discussing the nature of
a defendant’s Article I, section 9, rights).
         Defendant’s second argument is that the “minimal
factual nexus” analysis in Johnson cannot be reconciled
with our reasoning in State v. Unger, 

, 

 (2014), a case in which we considered the effect of a
preceding illegality on a warrantless search conducted pursuant to the defendant’s voluntary consent, and, in that context, disavowed the burden-shifting framework.
        In Unger, the defendant sought to suppress evidence
obtained in a warrantless search to which he voluntarily

    8
      In support of its argument, the state cites U.S. v. DeLuca, 

(10th Cir 2001), a federal case cited in Johnson. In DeLuca, the court said that
the demonstration of a factual nexus requires, at a minimum, that a defendant
“adduce evidence at the suppression hearing showing the evidence sought to
be suppressed would not have come to light but for the government’s unconstitutional conduct.” 

 (internal quotation marks omitted). We do
not understand Johnson as having adopted the heightened factual nexus test
described by the state; in fact, that test would subvert the framework established
in Johnson.
652                                                       State v. DeJong

consented, contending that the search had been tainted by
preceding unlawful police conduct. In an earlier case, State
v. Hall, 

, 

 (2005), we had “described a
two-step analysis to determine whether evidence obtained
pursuant to voluntary consent must nonetheless be suppressed.” Unger, 

. Under Hall, a defendant was
required to establish a “minimal factual nexus” between
the prior unlawful police conduct and the evidence that the
defendant sought to suppress. Unger, 

. If the
defendant made that showing, then the state was required
to show that the search was not tainted by the preceding
conduct. 

 In Unger, the state urged us to overrule Hall by
eliminating the exploitation analysis and to hold, instead,
that evidence obtained during a voluntary consent search is
admissible despite prior unlawful police conduct. 

.
Although we rejected the state’s argument, we agreed that
Hall’s exploitation analysis was “flawed in some respects”
and required “refinement.” 

. As relevant here, we
disavowed the first step in the Hall analysis—that the
defendant establish a “minimal factual nexus” between the
illegality and the challenged evidence—because that step
in the analysis was “drawn from a case that arose in a significantly different procedural context,” failed to consider a
relevant statute, had been unevenly applied, and had proved
to be confusing. 

.
          The case that we referenced in Unger as the case
from which the Hall analysis was drawn was Johnson. In
Unger, we distinguished Johnson and held that our reliance
on it in Hall had been misplaced because warranted and
warrantless searches are governed by different principles:
By statute, when a defendant challenges a warrantless
search (e.g., Hall and Unger), the state bears the burden of
proving the validity of the search.9 Unger, 

. In
contrast, when a search is conducted pursuant to a warrant
(e.g., Johnson), the presumption of regularity—arising from
an independent magistrate’s determination that probable
cause supports the issuance of the warrant—applies and
the defendant must establish the requisite factual nexus
    9
      See ORS 133.693(4) (“Where the motion to suppress challenges evidence
seized as the result of a warrantless search, the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.”).
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before the burden shifts to the state to prove the validity of
the search. Id. at 75 (describing Johnson). As we explained
in Unger, when police search without a warrant, “there is no
presumption of regularity to overcome” and, therefore, “no
need for a threshold showing by the defendant to shift the
burden to the state.” Id. In addition, we explained that, in
that context, the “minimal factual nexus” test is not analytically significant. We said that the
   “exploitation analysis already considers the existence of a
   ‘minimal factual nexus,’ because determining whether the
   police exploited their unlawful conduct to gain the disputed
   evidence necessarily requires an examination of the causal
   connection between the police conduct and the defendant’s
   consent. Accordingly, the ‘minimal factual nexus’ test is
   not analytically significant in determining whether the
   consent to search was the product of the illegal police conduct, such that evidence obtained pursuant to that search
   must be suppressed.”
Id. at 76.
         Defendant acknowledges that the statute that
applies to warrantless searches and that places the burden
on the state to prove the validity of such a search does not
apply to warranted searches. Nevertheless, she contends,
the same analysis should apply where a warranted search is
preceded by an illegality—here, the warrantless seizure of
defendant’s residence. Defendant argues that, when police
officers engage in unlawful conduct, evidence obtained in a
subsequent warranted search should be suppressed, unless
the state establishes that the evidence obtained was not
tainted by the prior unlawful conduct.
        Defendant also acknowledges that the issuance of a
warrant gives rise to a presumption of regularity. However,
she contends that the presumption of regularity “does not
and cannot speak to whether the warrant or the warrant
search is tainted by prior police misconduct.”
         Finally, defendant acknowledges that, in Unger, we
disavowed Hall, and not Johnson. Nevertheless, defendant
argues, the reasons that persuaded the court to eliminate the
“minimal factual nexus” test in Unger are equally applicable in the present context. In defendant’s view, determining
654                                             State v. DeJong

whether police officers exploited their unlawful conduct to
gain disputed evidence necessarily requires an examination
of the causal connection between the police conduct and the
evidence obtained.
           Defendant’s arguments have some merit. Defendant
is correct that, when police officers engage in illegal conduct,
it is the effect of that illegality on the subsequent discovery of
evidence that is at issue. In some instances, the illegal conduct may be followed by an act that provides lawful authority to search (e.g., obtaining voluntary consent to search or
obtaining a valid warrant to search). When a defendant
seeks to suppress evidence discovered in a legally authorized search on the basis of a prior illegality, the focus of the
inquiry is not on the legality of the act providing authority
to search, it is on the effect that the prior illegality may have
had on the authorized search. That is true whether or not
a statute addresses the requisite burden, and it is also true
even if we presume that the issuance of a warrant gives rise
to a presumption of regularity. Defendant’s final argument,
though, cuts in favor of our retention of the Johnson framework. In Unger we recognized, in the context of a warrantless search, that the showing that is necessary at the first
step of the burden-shifting analysis is so minimal that it
may be analytically insignificant and ultimately subsumed
in the exploitation analysis. Even if the same may be true in
the present context, the minimal nature of the requirement
weighs against its disavowal here.
         In Johnson, we held that a defendant who seeks to
exclude evidence that was obtained in a warranted search
must establish a minimal factual connection between the
illegality asserted as a basis for suppression and the challenged evidence. 

. Given our understanding
of the nature of that connection and the fact that we had
the opportunity, in Unger, to disavow Johnson as well as
Hall, and did not do so, we decline defendant’s invitation to
act now. Instead, we turn briefly to the question of whether
defendant in this case successfully established the minimal
factual nexus required by Johnson.
        For reasons already stated, resolution of that issue
requires little discussion. Defendant’s burden of establishing
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a factual nexus is minimal and intended merely to rebut the
presumption of regularity attendant to warranted searches.
Contrary to the state’s assertions, satisfying that minimal
standard does not require a defendant to identify and produce evidence related to discrete factual theories connecting
the unlawful conduct with the challenged evidence. Here,
defendant established that, as a result of the unlawful seizure of her residence, Pelayo obtained Penrod’s statements
and used them to obtain the warrant. As in Johnson, that
is sufficient to establish defendant’s burden and to shift
the burden to the state to prove that the evidence obtained
during the warranted search was untainted by the prior
unlawful seizure of defendant’s residence. See Johnson, 

 (stating that, in holding that the defendant established the burden of showing a factual nexus, “we rely on
the fact that the police used information derived from that
earlier unlawful seizure … when they later applied for a
search warrant” and that “[t]he existence of that factual
connection is sufficient to shift the burden of persuasion
regarding taint to the state”).

        The Court of Appeals reached a contrary result,
holding that defendant failed to establish the requisite factual nexus because (1) the balance of the warrant affidavit
established probable cause to search defendant’s residence
even after the trial court suppressed and excised Penrod’s
statements, among others; and (2) defendant failed to produce evidence to support her theory that, if the police had
not unlawfully seized the residence, there was no assurance
that the challenged evidence would have been there during
the warranted search. DeJong, 

.

        We disagree with that analysis. Whether the warrant was ultimately determined to be valid and supported
by probable cause to search is immaterial to whether defendant satisfied her burden to connect the preceding illegality with the issuance of the warrant and thereby with the
discovery of the challenged evidence. And, by requiring
defendant to produce evidence proving that the challenged
evidence would not have been found during the warranted
search, the court essentially required defendant to disprove that the state inevitably would have discovered the
656                                                          State v. DeJong

challenged evidence, thus misallocating the state’s burden
to defendant.
         The final question for our consideration is whether,
as the state contends, it established that the evidence discovered during the warranted search was untainted by the
preceding unlawful seizure of defendant’s residence. The
state argues that, absent the unlawful seizure, officers inevitably would have discovered the challenged evidence. See
State v. Miller, 

, 

 (1985), cert den,

 (1986) (explaining that “[t]he inevitable discovery doctrine permits the prosecution to purge the taint of
illegally obtained evidence by proving, by a preponderance
of the evidence, that such evidence inevitably would have
been discovered, absent the illegality, by proper and predictable police investigatory procedures”); see also id. at 227
(explaining that, “[i]n the case of a warrantless entry into
premises,” the court should consider “the possibility, that,
if police had not made the illegal entry into the premises,
evidence might have been disposed of or hidden”).
          As both parties acknowledge, the crux of their dispute on this issue is whether the challenged evidence would
have been discovered during the warranted search if the
officers had not unlawfully seized defendant’s residence. The
trial court did not make express or implied factual findings
on that question.10 Thus, the proper resolution of this case
depends on whether there is sufficient evidence from which

    10
       As noted, the trial court denied defendant’s motion to suppress the evidence seized pursuant to the warranted search after suppressing and excising
Penrod’s statements from the warrant affidavit and concluding that the warrant
was nonetheless supported by probable cause. Given that analysis and disposition, we do not understand the trial court to have determined whether, despite
the ultimate validity of the warrant, the state would have inevitably discovered
the challenged evidence absent the unlawful seizure of defendant’s residence.
Accordingly, we do not agree with the state that, in ruling that exigent circumstances did not justify the warrantless seizure of defendant’s residence, the trial
court implicitly found that “Penrod would not have disposed of or otherwise prevented the officers from finding the drug evidence.” We also do not agree with
defendant that, when the trial court stated that “[l]aw enforcement created further exigency by going to the defendant’s door and confronting [her],” it implicitly
found that “the drug evidence was at risk of being moved or destroyed following
defendant’s arrest.” See Pereida-Alba v. Coursey, 

, 

(2015) (reasoning that a reviewing court will not presume that a trial court made
implicit factual findings when such findings are not necessary to the trial court’s
ultimate conclusion or the record does not support them).
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 (2021)                                657

the trial court, as a reasonable factfinder, could have found
that no one would have removed or destroyed the drug evidence even absent the seizure. See Johnson, 

-26
(examining whether, absent the unlawful conduct, evidence
would have been available later for seizure pursuant to a
valid warrant); Smith, 

 (same).
         If there is legally sufficient evidence in the record
to support such a finding, the proper disposition would be
to remand to the trial court to engage in the necessary fact
finding in the first instance. See State v. Ryan, 

, 

 (2017) (remanding to the trial court to
make factual findings in the first instance where there was
an indication that the court misapprehended the import of
the defendant’s argument and, as a consequence, failed to
make related factual findings); State v. Blair, 

, 

 (2017) (remanding case to the trial court to
make factual findings in the first instance under the correct
legal standard). Thus, we turn to the evidentiary record.
         As noted above, Pelayo had been investigating
defendant’s involvement in an “illegal drug enterprise” for
approximately 18 months. On the day the residence was
secured, there had been high-volume, short-stay bicycle and
vehicle traffic there. Pelayo and several other officers went
to defendant’s residence with the intention to contact her
and, if she did not want to cooperate, to remove any occupants and secure the residence while obtaining a warrant.
Following defendant’s arrest, the residence was secured
with caution tape placed around its perimeter and officers
posted around it to ensure that no one entered. According to
Pelayo, following an arrest such as this, “it’s pretty common”
for the arrestee’s friends to “come and clean them out.”
         No one entered the residence during the approximately five hours that it was secured, and the officers did
not permit anyone to do so. Penrod was in an RV on the
property caring for her dogs; however, Pelayo testified that
she was not and would not have been allowed in the residence. Another man, who Pelayo suspected of involvement
“in the drug trade,” stopped in a vehicle that had been previously seen at the residence to inquire about the circumstances, despite the officers’ presence and the caution tape
658                                                          State v. DeJong

surrounding the residence. He left after Pelayo asked him
about whether he possessed drugs. Finally, a second man
“came and wanted a bicycle that he said was his.” Pelayo
“ran the guy,” and another officer arrested him on an outstanding warrant. Pelayo testified that that man would not
have been allowed in the house, because Pelayo did not know
whether the bicycle belonged to him and he was not going to
let the man “take [defendant’s] stuff, potentially.”
         Against that evidentiary backdrop, the state contends that, as in Smith and State v. Sargent, 

,

 (1996), “the evidence showed that no one would
have removed or destroyed the drug evidence if there were
no seizure.”11 Specifically, the state argues that, even though
Pelayo expressed concern that someone would enter defendant’s residence and steal her property after her arrest, the
state’s obligation was to demonstrate that those “concerns
were unfounded because the four individuals who could
have accessed the house would not have removed the drug
evidence.” To that end, the state argued:
    “Defendant could not access the drug evidence. The first
    unidentified man did not say or do anything suggesting
    that he wanted to access the house. The second unidentified man sought to access an outbuilding on the property
    to retrieve a bicycle, not the drug evidence or something
    within its vicinity in the house, before he was arrested.
    And finally, the evidence of … Penrod’s cooperation with
    … Pelayo during questioning and the absence of any indication that she would have removed or destroyed the drug
    evidence showed that she would not have made unavailable
    the drug evidence.”

     11
        In both Smith and Sargent we concluded that evidence obtained during
a warranted search that was preceded by unlawful police conduct was not subject to suppression. In Smith, after a drug-sniffing dog alerted at the defendant’s
storage unit, the manager of the storage facility put a padlock on the unit at
the request of the officers. 

. In concluding that suppression was
not required, we reasoned that “[n]o one attempted to gain access to the unit to
remove the evidence before the search warrant was executed”; thus, “the padlock, although unlawful, was irrelevant” because “[t]he evidence would have been
obtained even in the absence of the unlawful police conduct.” 

. Similarly,
in Sargent, we assumed that an unlawful seizure of the defendant’s apartment
had occurred but concluded that suppression of the evidence found during the
subsequent warranted search was not required where no one attempted to enter
the apartment between the time that the defendant had left and the time that the
warranted search began. 

.
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 (2021)                                 659

          The fundamental problem with the state’s position is that this case is not like Smith, in which no one had
approached the defendant’s storage unit before the warranted search, or Sargent, in which no one had attempted
to enter the apartment before the warranted search began.
Instead, during the unlawful seizure of defendant’s residence, “the second unidentified man” sought to access the
residence. At least as to him, the record is devoid of any
evidence that he would not have removed or destroyed the
challenged evidence, and the state, which has the burden
of proof on that issue, bears the consequence of that omission. Although the state contends that this individual did
not seek access to the house but only access to an “outbuilding,” it relies for that argument on statements included in
Pelayo’s affidavit and those statements were suppressed.

         Accordingly, we conclude that the record in this case
is legally insufficient to support a finding that the officers
would have inevitably discovered the challenged evidence
during the warranted search absent the unlawful seizure
of defendant’s residence. See Miller, 

 (“It is not
enough to show that the evidence ‘might’ or ‘could have been’
otherwise obtained.”). Thus, remanding this case to the trial
court for that purpose is unnecessary. Cf. Pereida-Alba v.
Coursey, 

, 

 (2015) (reasoning that,
where there is evidence in the record that would permit a
trial court to make a factual finding, a remand for that purpose is appropriate).

          Nonetheless, we conclude, for an independent reason, that the appropriate disposition of this case is to remand
it to the trial court for further proceedings. As noted, defendant entered a conditional guilty plea, reserving her right
to challenge the trial court’s denial of her motion to suppress. ORS 135.335(3) provides that a defendant who enters
such a plea and prevails on appeal “may withdraw the
plea.” Because we agree with defendant that the trial court
erred in denying her motion to suppress the evidence seized
during the warranted search, she has prevailed on appeal
and may withdraw her plea. We remand to the trial court
to allow her the opportunity to do so. See State v. Tannehill,

, 

 (2006) (concluding that ORS
660                                        State v. DeJong

135.335(3) “permits the defendant to withdraw the entire
plea and rescind the agreement if one of the premises on
which the parties entered into the plea agreement is no longer valid”).
        The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.