This post examines an opinion from the Court of Appeals of Oregon: State v. Lowell, 2015 WL 8349916 (2015). The court begins by explaining how the case arose:
This criminal appeal concerns defendant's motion to suppress evidence. After defendant crashed his bicycle into a car and was injured, he separately interacted with two police officers. A police officer at the accident scene ordered him to go to the hospital. A second police officer, who was investigating the accident, arrived after defendant requested treatment at the hospital, entered his treatment room, and smelled marijuana. That officer asked for and obtained defendant's consent to search the backpack and discovered in it marijuana and other related paraphernalia, including a digital scale. The officer informed defendant of his Miranda rights, and defendant admitted that he regularly sold marijuana. Then the officer seized defendant's cell phone and reviewed incriminating text messages. Ultimately, defendant was prosecuted and unsuccessfully moved to suppress the evidence from his backpack, his statements, and the text messages. Defendant was then convicted of one count of delivery of marijuana for consideration, [Oregon Revised Statutes] 475.860(2)(a), based on a conditional guilty plea.
In three combined assignments of error, defendant challenges the trial court's denial of his motion to suppress the evidence. He argues that the police seized him by compelling him to seek medical treatment at the hospital and, in doing so, violated his right to be free from unreasonable seizures under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Based on that premise, defendant argues that all evidence obtained after the bicycle crash was unlawfully obtained and, therefore, should have been suppressed.
State v. Lowell, supra.
Next, as appellate courts often do, the Court of Appeals explained how, and why, the prosecution arose, but only after providing a brief preface:
When reviewing a trial court's denial of a motion to suppress, we are bound by the trial court's findings of historical fact provided that there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (Oregon Supreme Court 1993). If the trial court did not make detailed findings on disputed issues of historical fact, we infer that the trial court made findings consistent with its ultimate conclusion. State v. Watson, 353 Or. 768, 769, 305 P.3d 94 (Oregon Supreme Court 2013). We present the following facts with that standard in mind.
State v. Lowell, supra.
The court then presented the relevant facts, separated into sections that described what occurred at different stages in the circumstances that led to the prosecution:
A. The Alleged Seizure of Defendant at the Accident Scene
While riding his bicycle the wrong way in a bicycle lane, defendant crashed into a car and flew over the handlebars. Defendant hit the vehicle with enough force to break his bicycle at the handlebars, rendering it inoperable. He suffered a cut on his forehead, and he had blood on his face.
Paramedics and Officer Riddle were the first responders at the accident. Riddle, who was ending his shift, chose to respond in case emergency medical assistance was necessary; he knew that other officers beginning their shifts would be dispatched to actually investigate the accident. The paramedics tried to persuade defendant that he needed to go to the hospital, but he did not have medical insurance and refused. The paramedics enlisted Riddle's help in persuading defendant to seek medical treatment.
Riddle tried to “convince” defendant that he needed to go to the hospital. Riddle was concerned that defendant was injured, based on the paramedics' statements, the blood running down defendant's face, and his `common sense’ that bicycle-car crashes can result in serious injuries to bicyclists. He also believed that defendant, who `looked very young,’ was a `kid,’ and he was concerned about his `community care taking’ `obligation’ to help an injured minor, although he did not inquire as to defendant's age.
Riddle testified that he stressed his concern during his conversation with defendant: `[The paramedics] are concerned about you. I am concerned about you. You need to go to the hospital.’ He testified, `I essentially gave him a choice. I said, you can voluntarily go down with the paramedics, or I will take you to the hospital, but you need medical treatment.’
Their conversation lasted one to two minutes. Riddle described his tone as `encouraging’ and `out of concern and convincing.’ He testified that he routinely interacts with injured community members who are reluctant to seek medical treatment because of the expense. He tries to reassure those people that they `are not in trouble’ and that, even though medical treatment is expensive, their immediate health is more important than the cost. Riddle characterized his conversation with defendant as typical of those conversations, which he perceived to be part of his `community care taking’ obligation to `force people to go get medical treatment’ in certain circumstances. Riddle and defendant never discussed a criminal investigation, and he was `completely shocked’ when he later received the subpoena in this case. In his words, `I thought it was a kid riding a bicycle that got hit by a car and needed to go to the hospital. And that was the end of it.’
Defendant had decided to go to the hospital and was in the ambulance when the second officer, Officer Folkerte, arrived. Folkerte took over as the primary officer at the scene because Riddle's shift was ending. Folkerte spoke with Riddle regarding the details of the crash and learned that defendant would be transported to the hospital in the ambulance.
At the accident scene, Folkerte began to suspect that `other things [were] going on.’ A paramedic told Folkerte defendant was acting `very guarded’ and `extremely paranoid’ and that defendant had made the unusual request to drop off his backpack at a friend's house on the way to the hospital. The paramedic asked Folkerte to follow the ambulance to the hospital, which he did a few minutes later, after he finished interviewing witnesses at the scene. Folkerte did not interview defendant at the accident scene, but Folkerte intended to interview defendant and also to issue him a traffic citation once Folkerte got to the hospital.
B. The Search of Defendant's Backpack at the Hospital
The paramedics dropped defendant off at the hospital, a few minutes away. Defendant went in and signed a voluntary consent-to-treatment form before Folkerte arrived. Folkerte then entered defendant's treatment room and immediately smelled marijuana. That put defendant's concern about his backpack in context for Folkerte, who suspected defendant possessed marijuana. During the exchange that followed, medical personnel filtered in and out of defendant's treatment room, and Folkerte stood next to defendant, who was in a chair. Folkerte testified that his tone was `[p]rofessional,’ that there was `nothing exceptional about’ the `dialogue’ that ensued, and that there were `no raised voices’ or `unnecessary high emotions.’ Folkerte did not threaten to arrest defendant if he refused to cooperate.
Folkerte inquired whether the backpack contained marijuana, and defendant stated that it contained `a couple of pipes’ and a `small amount of marijuana.’ Then, Folkerte asked defendant for consent to search his backpack, which defendant orally gave. Folkerte then read a department-prepared consent card to defendant, informing defendant that he had the right to refuse consent. Folkerte again asked defendant if he consented to the search and defendant again orally consented to the search. Defendant signed the card. Folkerte asked defendant to open his backpack and hand over the pipes and the `small amount of marijuana’ that he had identified. While defendant complied, Folkerte could see that defendant was attempting to hide a brown wooden cigar box within the backpack. Folkerte asked defendant about the cigar box, which defendant removed from the backpack and opened to reveal two clear plastic bags containing marijuana, later weighed at 1.45 ounces. Folkerte questioned defendant again about any additional items in the backpack, and defendant removed a digital scale and a small pill container containing small amounts of crushed marijuana.
C. The Questioning After the Backpack Search
After seeing the marijuana, scale, and pill container, and considering defendant's earlier request to drop off his backpack, Folkerte suspected defendant was delivering marijuana. Folkerte estimated that, at that point, about 20 minutes had passed since Folkerte had arrived at the hospital room. Folkerte read defendant his Miranda rights from a department-prepared card, and defendant stated that he understood his rights. Folkerte then began questioning defendant about delivering marijuana. Defendant stated that he delivered marijuana to friends who require it for medical purposes. Defendant also stated that he intended to sell the marijuana in his backpack to a friend and that he typically sold marijuana about once a week. Defendant admitted that he had last sold marijuana earlier that afternoon.
D. The Search of Defendant's Cell Phone
At some point after questioning defendant about his marijuana dealing, Folkerte seized defendant's cell phone, although Folkerte could not remember how he acquired the phone or verified that it was defendant's. Based on defendant's statements and the evidence previously identified, Folkerte believed that he had probable cause to search defendant's text messages for evidence of marijuana dealing. He read defendant's text messages and identified text messages confirming that defendant had sold marijuana earlier in the day.
Folkerte issued defendant a criminal citation for the marijuana but did not take defendant into custody. Defendant, who was charged with delivery of marijuana for consideration and marijuana possession, then moved to suppress `any reference to, any evidence seized during, and any derivative evidence flowing from the search of defendant's [backpack].’ The trial court denied defendant's motion, concluding that (1) defendant was not seized; (2) there was `probable cause throughout’ to support the police officers' actions; (3) defendant voluntarily consented to the search of his backpack; and, (4) if defendant had been unlawfully seized, defendant's consent did not result from police exploitation of defendant's unlawful seizure. The trial court explained that the questioning that took place at the hospital `simply was an opportunity that occurred because of the police utilizing their community caretaking function. There certainly was no intent for a criminal investigation when that request and direction [that defendant seek medical attention] was given.’ The trial court also addressed the lawfulness of the questioning at the hospital, stating that, `when the second officer got to the hospital room to give the citation for the incident that initiated all of this conduct, then the overwhelming smell of marijuana, as well as the information he had been given’ before he contacted defendant resulted in a lawful investigatory process and `then a lawful consent process as well.’ The trial court also concluded that defendant's cell phone was lawfully seized and searched incident to his arrest.
State v. Lowell, supra.
The Court of Appeals then began its analysis of Lowell’s motion to suppress:
Defendant's arguments for suppression build upon the assumption that defendant was seized at the accident scene. Therefore, although we do not decide that issue, we summarize the parties' arguments to provide analytical context.At the suppression hearing and in his brief on appeal, defendant argued that he was subject to ongoing police control from at least the moment that Riddle issued the ultimatum until Folkerte left the hospital. The state, on the other hand, frames defendant's interactions with Riddle and Folkerte as separate events. The state concedes that defendant's theory that he was seized at the accident scene `presents a close question, particularly in light of defendant's liberty interest in refusing medical treatment,’ and it notes cases from other jurisdictions addressing that issue. See, e.g., Peete v. Metropolitan Government of Nashville, 486 F.3d 217 (U.S. Court of Appeals for the 6th Circuit 2007) (local government paramedics did not unreasonably seize individual under the Fourth Amendment by physically restraining him to administer treatment for epileptic shock); Green v. City of New York, 465 F.3d 65 (U.S. Court of Appeals for the 2d Circuit 2006) (assuming that the jury accepted the plaintiffs' version of the facts, under the Fourth Amendment, police seized man with ALS who repeatedly communicated his intent not to be transported to the hospital, when an officer argued with the man's family about his need for medical assistance for more than an hour, his family constructed a barrier of furniture to prevent the police from removing the man, an officer or a paramedic knocked down the man's wife to reach the man, and an officer said, `We are going to the hospital whether you like it or not’); see also, e.g., Schreiner v. City of Gresham, 681 F.Supp.2d 1270, 1273 (U.S. District Court for theDistrict of Oregon 2010) (woman experiencing diabetic shock was seized under the Fourth Amendment when a police officer tased her and handcuffed her to force her to submit to medical treatment). However, in the state's view, even if Riddle did seize defendant, that seizure ended before Folkerte arrived at the hospital and began his investigation.As does the state, the trial court implicitly conceptualized defendant's interactions with Riddle and Folkerte as two separate events. We agree that Riddle's interaction with defendant should be analyzed separately from Folkerte's interaction with defendant, because any seizure by Riddle ended before Folkerte arrived at the hospital.A `seizure’ of a person occurs under Article I, section 9, `if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement’ or `if a reasonable person under the totality of the circumstances would believe’ that such a restriction has occurred. State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (Supreme Court of Oregon 2010) (emphasis omitted). A seizure ends when a reasonable person under the totality of the circumstances would no longer believe that his or her liberty is being restricted. See State v. Ashbaugh, supra (unlawful seizure ended when police returned the defendant's identification and told her they were arresting her husband only).In this case, even if Riddle seized defendant at the accident scene, that seizure ended, at the latest, when the paramedics dropped defendant off at the hospital and defendant signed a voluntary consent-to-treatment form. Defendant sought treatment with no police present, under normal circumstances at the hospital. Neither of the officers at the accident scene communicated to defendant that he intended to follow defendant to the hospital. By the time defendant was being transported, Riddle, the officer with whom defendant had directly interacted, had left the accident scene, and he did not interact with defendant again. And, Folkerte did not follow directly behind the ambulance on its way to the hospital, but instead left for the hospital a few minutes after the ambulance had left the accident scene. He arrived at the hospital after defendant had made the choice to receive medical treatment. A reasonable person, under the totality of the circumstances, would not have felt that he or she was subject to ongoing police control at the time that defendant entered the hospital and sought medical treatment.
State v. Lowell, supra.
The Court of Appeals then took up Lowell’s argument that
the physical evidence found in his backpack should be suppressed because, even though he voluntarily consented to Folkerte's search of the backpack, his consent resulted from police exploitation of his earlier illegal seizure by Riddle at the accident scene and Folkerte's alleged continuation of that seizure. Thus, even though we have determined that any unlawful seizure (if there was one) had ended at the time that defendant entered the hospital, we nonetheless must address defendant's argument that Folkerte exploited that allegedly unlawful seizure to obtain defendant's consent to the search of his backpack. We reject that argument. . . .
Based on the totality of the circumstances—including that Riddle had a noninvestigative, community-caretaking purpose to interact with defendant; defendant chose to seek medical treatment once he was dropped off at the hospital when no police were present; Folkerte had an independent lawful basis to question defendant about marijuana possession; and Folkerte fully informed defendant he could refuse consent—we conclude that the state met its burden to prove that defendant's consent was sufficiently attenuated from any preceding unlawful police conduct that may have occurred. Therefore, we conclude that the trial court did not err in admitting the physical evidence seized as a result of a lawful consent search of defendant's backpack.
State v. Lowell, supra.
Lowell also argued that his statements should be suppressed because “he received late and ineffective Miranda warnings”, an argument the court rejected. State v. Lowell, supra. It explained that Folkerte
issued defendant Miranda warnings before questioning him about drug sales, reading them from a department-prepared card. . . . [T]he Miranda warnings notified defendant that he did not have to speak to the police and served to mitigate the taint of any preceding unlawful seizure. . . . Accordingly, we conclude that the trial court did not err in denying defendant's motion to suppress as to his statements regarding drug sales.
State v. Lowell, supra.
Finally, the court addressed the seizure of Lowell’s cell phone, noting that the
Oregon and federal search incident to arrest doctrines are independent exceptions to the warrant requirements under Article I, section 9, and the Fourth Amendment. The trial court concluded that defendant's cell phone was lawfully seized and that Folkerte's warrantless search of defendant's text messages was lawful as a search incident to a lawful arrest. Defendant argued to the trial court that both Article I, section 9, and the Fourth Amendment required suppression of the text messages, and renews both arguments on appeal. Federal law concerning police officer searches of cell phone data has developed since defendant appealed, and it is now apparent, based on Riley v. Calfornia,134 S.Ct. 2473 (2014), that the court erred in admitting the text messages under the Fourth Amendment's search incident to arrest exception to the warrant requirement.
After oral argument in this case, the United States Supreme Court held in Riley that the search incident to arrest exception under the Fourth Amendment categorically does not apply to digital data stored on cell phones. Riley v. Calfornia, supra. Defendant supplied a memorandum of additional authorities, arguing that under Riley, he prevails under the Fourth Amendment. Neither party has briefed whether Article I, section 9, compels a different result.
Ordinarily, the `first-things-first’ doctrine directs us to resolve state constitutional law claims before reaching federal law claims. State v. Babson, 355 Or. 383, 326 P.3d 559 (Oregon Supreme Court 2014) (acknowledging without accepting or rejecting an argument that we may not be required to resolve state law claims first, but observing that, at the very least, there are `sound [policy] reasons for doing so’); State v. Babson, 249 Or.App. 278, 307 n. 6, 279 P.3d 222 (2012), aff'd, 355 Or. 383 (2014) (stating that, until the Supreme Court repudiates the first-things-first doctrine, we will generally choose to follow it). However, `in some instances, where a rights claimant obviously prevails under the federal constitution regardless of whether the state law vindicates the claim, we will, as a matter of judicial efficiency, decide the case under the federal constitution without treating the state law issue.’ State v. Babson, supra.
State v. Lowell, supra (emphasis in the original).
The Court of Appeals went on to explain that
[a]s a matter of judicial efficiency, we decide defendant's challenge to the admission of the text messages from his cell phone under the Fourth Amendment. We conclude that the trial court erred by admitting the text messages, because it incorrectly reasoned that the warrantless search of defendant's cell phone was valid under the federal search incident to arrest doctrine. We so conclude based on only federal law for three reasons.
First, the Court's holding in Riley could not be clearer: `[A] warrant is generally required before’ a search of data on a cell phone, `even when a cell phone is seized incident to arrest.’ Riley v. Calfornia, supra. Second, the parties have not briefed how we should interpret Article I, section 9, as it applies to warrantless searches of cell phone data. And third, although we might in other circumstances ask the parties to brief the state constitutional issue, see State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (stating that, `[w]hen a court is confronted with a mere unexplained citation of an Oregon source tacked on as an ‘afterthought,’ * * * the court * * * may request counsel either to explain the claim under state law or to abandon it’), such briefing would be an inefficient use of the parties' and our resources.
Our disposition would ultimately be the same, even if we were to prolong this appeal by requiring the parties to brief the state constitutional grounds. Therefore, in the interest of judicial efficiency and a final resolution of this case, we address only defendant's Fourth Amendment authorities and conclude that the trial court erred in admitting the text messages.
State v. Lowell, supra.
The Court of Appeals therefore reversed Lowell’s conviction and remanded the case to the trial court for further proceedings. State v. Lowell, supra.