Majority: Evidence OK, despite unlawful search, if defendant's consent is truly voluntary.

A split Oregon Supreme Court decided Thursday when incriminating evidence can be admissible in court after police make an unlawful stop, but the defendant consents to the search that turned up the evidence.

The majority's response is "sometimes."

Led by Chief Justice Thomas Balmer, four justices decided once again that it depends on the “totality of the circumstances” — and whether the defendant’s consent was truly voluntary, or whether police maneuvered to gain an advantage to obtain consent.

The decision modifies a legal test that courts use to respond to those questions. Balmer says contrary to a 2005 decision, a defendant no longer has to establish a link between the unlawful police conduct and the evidence sought to be excluded from trial.

“Instead, we hold that … the state bears the burden of demonstrating that (1) the consent was voluntary, and (2) the voluntary consent was not the product of police exploitation of the illegal stop or search,” he writes.

But three justices wrote separate dissents, arguing that the court’s decision undercuts the state constitutional guarantee against “unreasonable” searches and seizures.

Justice Martha Walters writes that the decision is “wrong.”

She adds: “From today, when a police officer violates the Oregon Constitution, a court no longer must presume that the officer gains an advantage, and the state no longer has the burden to prove that the evidence that the officer obtains by pressing that advantage should be admitted.”

Counting a concurrence — when a justice agrees with the result but not necessarily the legal basis for it — there were five separate opinions, a rare split for the seven-member court. But a similar 1987 case, which involved none of the sitting justices, also produced five opinions.

The decision also disappointed prosecutors and defendants.

The state Department of Justice argued that such evidence should be admissible in most circumstances, and the Supreme Court should reverse its 2005 decision that it was generally not admissible. The court did not do so, although the dissenters hold a differing view.

Three criminal defendants urged the justices to uphold the Oregon Court of Appeals, which in 2012 reversed their convictions on the basis that the evidence was not admissible.

But the justices upheld one of the convictions, overturned another on grounds that police went too far, and sent the third case back to the Court of Appeals for further proceedings.

Why the cases arose

The cases represent the latest attempt by the Oregon Supreme Court to interpret the much-debated ban on “unreasonable” searches and seizures.

In the majority in addition to Balmer were Justices Rives Kistler, Jack Landau and Virginia Linder, although Landau wrote a separate opinion agreeing with the result but offering a different basis for legal reasoning.

In the minority in addition to Walters were Justices Richard Baldwin and David Brewer. Each wrote separately, although Baldwin and Walters joined each other’s opinions.

All the justices in the majority once worked for the Oregon Department of Justice. Balmer and Landau were deputy attorneys general, the No. 2 position in the agency; Kistler was an assistant attorney general handling civil and criminal appeals, and Linder was solicitor general, the official representing the state in appellate courts.

The justices decided a trio of cases argued Sept. 17.

They accepted the cases because of an unusual circumstance.

The court heard a similar case in November 2011 and handed down a 5-2 decision on Jan. 10, 2013. But the justices vacated that decision a few months later, because the defendant in the case had died a few months earlier, although they were unaware of it, so the case was moot — and the court started over.

Baldwin and Brewer succeeded two retiring justices three days before the 2013 decision was released.

The Unger case

The main case stems from an incident on the morning of April 17, 2009, when four detectives from the Marion County Sheriff’s Office, Woodburn and Canby police came to the home of Mark Lawrence Unger in Woodburn after receiving reports of drug activity.

Police knocked on front doors at the split-level house but got no answer. A sheriff’s detective, Kevin Roberts, then went to the backyard and knocked on a sliding-glass door that led to Unger’s bedroom. He asked permission to enter, and Unger allowed all four officers to come in. One officer saw a torn piece of a baggie with white powder and some crystals; a field test was positive for methamphetamine.

Unger was asked to sign a “consent to search” card, but he refused. He gave officers consent to search further, but then asked them to leave after consulting with his lawyer. The officers arrested Unger based on the field test. They returned, after obtaining a warrant, for a search that turned up evidence of other drug crimes.

A Marion County judge denied a motion to suppress the evidence, and a jury convicted Unger six months later of two counts of manufacturing cocaine and two counts of endangering the welfare of a minor.

But the Court of Appeals reversed Unger's conviction in 2012.

How the justices split

In Thursday’s decision, a majority of the Supreme Court ended up reversing the Court of Appeals, but also returning Unger’s case to that court for further proceedings.

Balmer writes that the state — representing the police — never challenged that the search was unlawful, and Unger never challenged that his consent was anything but voluntary.

He says both sides, given those assumptions, should have a chance to argue the case again.

“Whether the voluntary consent is sufficient — or whether the police exploited their illegal conduct to obtain consent — will depend on the totality of the circumstances,” he writes.

Landau agreed with the result, but writes separately that the court should not abandon deterrence of unlawful police conduct as a legal basis for the court to exclude evidence obtained by such searches.

Walters, in her dissent joined by Baldwin, says the majority essentially sidestepped the central issue.

“This case begins with a conceded violation of the Oregon Constitution and ends without legal consequences,” she writes. “That is wrong, and respectfully, I dissent.”

Walters and the other dissenting justices say that the presumption should be to exclude evidence obtained from unlawful police searches, no matter whether the defendant truly gave voluntary consent.

“The majority’s new rule removes a solid brick from the constitutional wall that prohibits the state from benefiting from its illegality,” she writes.

Baldwin, in his dissent joined by Walters, says police now face no consequences even if their unlawful search turns up no incriminating evidence.

“The occupants will simply be required to endure the unreasonable governmental intrusion without a legal remedy,” Baldwin writes. “The (constitutional guarantee against unreasonable searches) now provides no protection against such a warrantless search if the officers are well-mannered and courteous as they violate the constitutional rights of the occupant.”

In his dissent, Brewer writes that he was not convinced under the circumstances that Unger’s consent was truly voluntary.

“I would conclude that the state failed to meet its burden to show by a preponderance of the evidence that the police trespass did not significantly affect defendant’s consent to the entry into and search of his residence,” he writes. “Suppression (of the evidence) was required in these circumstances…”

The other cases

In related decisions, a court majority upheld the conviction of Jeffery Lorenzo of Beaverton on counts of manufacturing and delivering marijuana and a felon in possession of a firearm.

Lorenzo argued that evidence should have been suppressed because a police officer entered the front door of an apartment he was sharing, then into his bedroom, where the officer smelled the odor of marijuana. Police were summoned originally to deal with his roommate, who was threatening suicide downstairs.

But the court unanimously overturned the conviction of Deborah Ann Musser, who was arrested by Springfield police in 2010 while on a walkway between the rear and front of a shopping center.

She consented to a search of her purse, which yielded a baggie containing methamphetamine, and was convicted of possession of the drug. But the court concluded police did not have reasonable suspicion to stop her, other than for trespassing, or to search her.

To read the Oregon Supreme Court opinions in the main case, Oregon v. Unger:

In Oregon v. Lorenzo:

In Oregon v. Musser:

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Adds details about background of cases, excerpts from justices' opinions, actions affecting defendants.

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