148 August 28, 2014 No. 60
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
DEBORAH ANN MUSSER,
Respondent on Review.
(CC 201001347; CA A145540; SC S060868)
En banc.
On review from the Court of Appeals.*
Argued and submitted September 17, 2013.
Rolf Moan, Assistant Attorney General, Salem, argued
the cause for petitioner on review. With him on the briefs
were Ellen F. Rosenblum, Attorney General, and Anna M.
Joyce, Solicitor General.
Peter Gartlan, Chief Defender, Salem, argued the cause
and filed the brief for respondent on review.
BALMER, C. J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
Walters, J., specially concurred and filed an opinion, in
which Baldwin, J., joined.
Brewer, J., specially concurred and filed an opinion.
Baldwin, J., specially concurred and filed an opinion.
______________
* Appeal from Lane County Circuit Court, Debra K. Vogt, Judge. 253 Or App
178, 289 P3d 340 (2012).
Cite as 356 Or 148 (2014) 149
Defendant moved to suppress evidence obtained pursuant to a voluntary con-
sent search, arguing that her consent had been derived from a prior unlawful
stop. The trial court denied the motion and found defendant guilty at a stipulated
facts trial. The Court of Appeals reversed. Held: (1) The court adhered to its hold-
ing in State v. Unger, 356 Or 59, __ P3d __ (2014) (decided this date), modifying
part of the exploitation analysis first described in State v. Hall, 339 Or 7, 115
P3d 908 (2005); and (2) applying that modified analysis, the police improperly
exploited their unlawful stop of defendant to obtain her consent to the search.
The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
150 State v. Musser
BALMER, C. J.
This is one of three cases that we decide today in
which we examine when evidence obtained pursuant to a
voluntary consent search must be suppressed on the the-
ory that the consent was the result of exploitation of prior
illegal police conduct. In the first of the three cases, State
v. Unger, 356 Or 59, ___ P3d ___ (2014), we modified part
of the exploitation analysis announced in State v. Hall, 339
Or 7, 115 P3d 908 (2005). We disavowed the requirement
in Hall that a defendant must establish a “minimal fac-
tual nexus” between the unlawful police conduct and the
disputed evidence, and we instead held that, when a defen-
dant challenges the validity of his or her consent based on a
prior police illegality, the state bears the burden of demon-
strating that the consent was voluntary and was not the
product of police exploitation of that illegality. Unger, 356
Or at 74-75. We also emphasized that the determination of
whether the police have exploited their unlawful conduct
to obtain a defendant’s consent depends on the totality of
the circumstances. That analysis, we stated, should recog-
nize the importance of the voluntariness of the consent and
should consider not only the temporal proximity between
the unlawful conduct and the consent and any intervening
or mitigating circumstances—factors emphasized in Hall—
but also the nature of the unlawful conduct, including its
purpose and flagrancy. Id. at 93.
In this case, a police officer on patrol encountered
defendant at 10:00 p.m. in an area behind a shopping cen-
ter where criminal activity frequently occurred. The offi-
cer stopped defendant and obtained her consent to search
pouches that he saw inside her purse, as well as the remain-
der of her purse. During those searches, the officer found
drugs and drug paraphernalia. Defendant sought to sup-
press that evidence at trial, arguing, among other things,
that the stop had been unlawful and that defendant’s con-
sent had been derived from the unlawful stop in violation
of Article I, section 9, of the Oregon Constitution. The trial
court denied that motion, and defendant was convicted of
unlawful possession of methamphetamine at a stipulated
facts trial. The Court of Appeals reversed, concluding that
the officer had stopped defendant unlawfully and that the
Cite as 356 Or 148 (2014) 151
incriminating evidence had derived from that stop. State v.
Musser, 253 Or App 178, 184, 289 P3d 340 (2012). For the
reasons discussed below, we affirm the decision of the Court
of Appeals.
A police officer was patrolling an alley behind a
shopping center around 10:00 p.m., because he often had
encountered people engaging in illegal activity in that area.
At that time of night, the majority of the businesses in the
shopping center were closed. The businesses that remained
open were in the front of the complex, but they were near a
walkway that connected the front of the shopping center to
the alley that the officer was patrolling. As he drove through
the alley, the officer saw defendant and a male compan-
ion on the walkway. Because the alley was a place “where
people frequently engage[d] in criminal activity,” the offi-
cer approached defendant and her companion “basically, to
make sure they were not doing anything wrong.”1 The officer
also believed that they were trespassing because of the time
of night.
As the officer approached in his car, which had
its spotlight and alley lights on, defendant started to walk
towards the front of the shopping center. The officer got out
of his car and said “Hey, I need to talk to you.” Instead of
talking to the officer, however, defendant continued walk-
ing toward the front of the shopping center, prompting the
officer to say “in a more direct, firm tone,” “Hey, come back
here. I need to talk to you.” Defendant came back to speak
to the officer, but told him that she wanted to return to the
front of the shopping center where her friends were.
The officer requested defendant’s identification. Defen-
dant was “nervous” and “fidgety.” Based on defendant’s
“inability to stand still” and her “nervousness as compared
to the male, who was completely calm,” the officer suspected
that defendant had recently used methamphetamine or
some other stimulant.
While defendant was looking through her purse for
identification, the officer noticed two Crown Royal pouches
in her purse. Based on his suspicion that she had recently
1
The quotations in the factual summary are from testimony below.
152 State v. Musser
used methamphetamine, the officer “thought it was more
likely than not that she probably had some controlled
substances in her purse.” After the officer ran the name
on defendant’s identification, he “asked for her consent to
search the two Crown Royal pouches that were in her purse,
and she agreed.” Inside one of the pouches, the officer dis-
covered a metal spoon with burn marks on it, a small metal
scraping tool, and a small black pouch with white residue
inside. The officer believed that the spoon and the scraping
tool had been used in connection with methamphetamine,
and he therefore suspected that the white residue was
methamphetamine.
After the officer searched the Crown Royal pouches,
a second officer arrived to assist with the investigation. The
first officer then asked for defendant’s consent to search the
remaining contents of her purse, and defendant agreed.
During that search, the officer discovered a third pouch con-
taining a bag with a white crystalline substance inside that
later tested positive for methamphetamine. The whole inter-
action, from when the officer initially contacted defendant to
when he wrote her a citation, lasted about an hour.
The state charged defendant with unlawful posses-
sion of methamphetamine, and defendant moved to suppress
her statements and the items found in her purse. Defendant
argued, among other things, that the officer had stopped her
unlawfully and that, to the extent that she had consented,
her consent had been “derived from” the unlawful stop.2 The
trial court denied defendant’s motion to suppress, reasoning
that the officer had “reasonably suspected that some crim-
inal activity was afoot” when he had stopped defendant.
The case proceeded to a stipulated facts trial, and the court
found defendant guilty.
On appeal, the parties focused their arguments on
whether the officer had had reasonable suspicion to stop
2
In her memorandum in support of the motion to suppress, defendant also
argued that her consent was “not knowing or voluntary.” The trial court did not
address that issue, and defendant did not raise it on appeal or in her brief before
this court, instead focusing on the exploitation prong of the analysis. At oral
argument, defense counsel “acknowledge[d] that the consent [had been] volun-
tary,” so we do not address that issue.
Cite as 356 Or 148 (2014) 153
defendant, and the Court of Appeals likewise focused its
opinion on that issue. See Musser, 253 Or App at 181 (stating
that the “issue on appeal is whether [the officer] had rea-
sonable suspicion to stop defendant for criminal trespass”).
The court addressed defendant’s exploitation argument in
a single sentence: “Because [the officer] stopped defendant
without reasonable suspicion and there is no dispute that
the evidence he subsequently obtained derived from that
stop, the trial court erred by denying defendant’s motion to
suppress.”3 Id. at 184.
The state sought review. On review, the state con-
cedes that the officer stopped defendant without reason-
able suspicion, in violation of Article I, section 9. The state
argues that, despite that illegality, the evidence discovered
in defendant’s purse should not be suppressed. As in Unger,
the state argues that, if a police illegality is followed by a
voluntary consent to search, then any evidence obtained as
a result of that search is admissible. The state acknowledges
that that result would require this court to overrule Hall.
Alternatively, the state argues that this court should mod-
ify Hall as it did in State v. Hemenway, 353 Or 129, 295
P3d 617, vac’d as moot, 353 Or 498, 302 P3d 413 (2013), by
emphasizing that the exploitation analysis set forth in Hall
overvalued the temporal proximity between the illegality
and the consent, while undervaluing the defendant’s volun-
tary consent.
Under either test, the state argues, the evidence in
this case should not be suppressed. Under its proposed rule,
the state argues, defendant’s consent to both searches was
voluntary, and that fact—in and of itself—provides a basis
for denying a motion to suppress. Even if this court rejects
that approach, the state argues that, under its alternative
3
The state had conceded that, under the Court of Appeals’ prior applications
of Hall, the evidence was the product of the stop. The state noted, however, that
in its view, Hall did not set forth the proper test for when a prior police illegality
requires suppression of evidence obtained pursuant to a consent search. Instead,
the state argued, as it does here, that the only relevant inquiry was whether the
consent was voluntary. Nonetheless, the state acknowledged that only this court
could modify or overrule Hall, and the state noted that this court likely would
address the issue in State v. Hemenway, 353 Or 129, 295 P3d 617, vac’d as moot,
353 Or 498, 302 P3d 413 (2013), which was pending before this court at that time.
154 State v. Musser
proposed rule, nothing about the interaction “significantly
affected” defendant’s decision to consent because the inter-
action was short, the officer did not physically restrain
defendant, and the officer was not otherwise aggressive or
intimidating.
Although defendant agrees that this court should
disavow the minimal factual nexus test from Hall, as the
court did in Hemenway, defendant argues that this court
should retain the remaining exploitation analysis set forth
in Hall, rather than modifying it as we did in Hemenway.
Defendant argues, however, that the evidence must be
suppressed under the analysis articulated in either Hall
or Hemenway because the officer requested consent to
search shortly after the unlawful stop, there were no inter-
vening or mitigating circumstances, and the interaction
never deescalated from a criminal investigation into mere
conversation.
In Unger, today we held that the determination as
to whether evidence found in a search should be suppressed
because police exploited their violation of a defendant’s
Article I, section 9, rights to obtain consent to the search
requires consideration of the totality of the circumstances
surrounding the police-defendant encounter. In reaching
that conclusion, we rejected both the state’s view that vol-
untary consent generally cures any taint that might have
arisen from prior police misconduct and the defendant’s view
that voluntary consent that follows unlawful police conduct
generally is the product of exploitation and must lead to sup-
pression, in the absence of mitigating or intervening circum-
stances, such as Miranda warnings or an admonition that
consent need not be granted. As part of the totality of the
circumstances, we described the considerations relevant to
determining whether the police improperly “took advantage
of” or “exploited” their unlawful conduct to gain the defen-
dant’s consent to search. We noted that voluntary consent
was an important, but not dispositive consideration, and we
examined the nature of the unlawful conduct, including its
purpose and flagrancy, the temporal proximity between the
unlawful conduct and consent, and the presence of inter-
vening or mitigating circumstances. We also recognized,
Cite as 356 Or 148 (2014) 155
as we had in Hall, that evidence should not be excluded on
exploitation grounds if it inevitably would have been discov-
ered or if the police discovered the evidence though a source
independent of the illegality. See Unger, 356 Or at 64.
We applied those considerations in Unger and con-
cluded that the evidence in that case did not have to be
suppressed. There, four detectives went to the defendant’s
house in response to a complaint about drug activity and
information from an informant that there were children at
the house with access to drugs and guns. When knocking
on two front doors failed to elicit any response, detectives
trespassed onto the defendant’s property by following a path
around to the back of the house, where they knocked on a
sliding glass door. Defendant came to the door and, after
the detectives explained why they were there, the defendant
consented to the detectives entering the home, then agreed
to show them around the house. While walking through the
house, one detective discovered a bag with methamphet-
amine residue. There, we concluded that the misconduct
was limited in extent, nature, and severity because the offi-
cers had followed a path around the house without cross-
ing any barriers and the detectives had interacted with the
defendant just as they would have at the front door. Id. at
89-90. Moreover, the detectives’ purpose in going to the back
door was to contact the defendant, not to make the defen-
dant more likely to consent. Id. at 91. Although the consent
had been given in close temporal proximity to the illegality,
and there were no intervening or mitigating circumstances,
under the totality of the circumstances, the state met its
burden of showing that the detectives’ minimal intrusion
did not require suppression. Id. at 92.
Similarly, in State v. Lorenzo, 356 Or 134, ___ P3d
___ (2014), which we also decided today, we affirmed the
trial court’s denial of a motion to suppress evidence obtained
pursuant to a voluntary consent search that followed an offi-
cer opening the defendant’s apartment door and reaching
into the apartment to knock on his bedroom door. There,
because the officer was concerned for the defendant’s safety,
the officer had made repeated attempts to contact the defen-
dant before reaching inside the apartment to knock on the
156 State v. Musser
bedroom door. After knocking on the defendant’s bedroom
door, the officer waited outside the apartment until the defen-
dant came to the door and consented to allowing the officer
to enter the apartment. When he entered the apartment, the
officer smelled marijuana, and the defendant then consented
to a search of his bedroom. Applying the Unger analysis, we
noted that there was temporal proximity between the ille-
gality and the consent, but that other considerations cut in
the opposite direction. Id. at 143. In particular, we reasoned
that the search was limited in extent and severity and was
not an effort to direct or control the defendant. Id. at 144.
Moreover, although there were no intervening or mitigating
circumstances, the purpose of the search was to check on
the defendant’s welfare and not to conduct an investigation.
Id. at 144, 145. As to flagrancy, we acknowledged that entry
into the defendant’s apartment was unlawful, but explained
that the officer’s conduct was restrained, without threats
or intimidation. Id. at 145-46. Based on all those consider-
ations, we concluded that the state had met its burden of
showing that the police did not exploit their unlawful con-
duct to obtain the consent.
We now apply the principles set out in Unger to
the facts here. A police officer saw defendant on a walkway
behind a shopping center at a time when most of the busi-
nesses were closed. The area was one where the officer knew
that illegal conduct took place. The officer directed defen-
dant to come speak to him, saying, “Hey, I need to talk to
you.” When defendant continued walking, the officer stated,
in a “more direct, firm tone,” “Hey, come back here. I need to
talk to you.” Defendant complied. As the state concedes, the
officer lacked reasonable suspicion that defendant had com-
mitted a crime, and the officer’s conduct was an unconsti-
tutional stop of defendant. The stop continued for about an
hour until defendant was cited and released. In our view, the
stop here was a more severe violation of defendant’s rights
than the violation in Unger, which was a daytime trespass
onto the defendant’s property that allowed the police to con-
tact the defendant at his back door, or the similar conduct
in Lorenzo, where the officer reached into the defendant’s
apartment to knock on the defendant’s bedroom door in an
effort to contact him because of concern for his safety. Here,
Cite as 356 Or 148 (2014) 157
the police order to defendant to return and talk to the police,
rather than to continue in the direction she was heading,
clearly indicated to defendant that she had no choice but to
respond to the order, bringing her significantly under the
control of the police.
Defendant also is correct—and the state does not
dispute—that the request to defendant to consent to the
search of her purse occurred during the unlawful stop,
thus establishing the “temporal proximity” that our cases,
including Unger and Hall, have indicated is a relevant con-
sideration in the exploitation analysis. The state does not
argue that the evidence found in defendant’s purse would
have “inevitably” been discovered or that it would have been
(or was) discovered by a means independent of defendant’s
consent.
Neither does the state argue that intervening or
mitigating circumstances—other than defendant’s volun-
tary consent to the search—occurred between the unlawful
stop and the discovery of the evidence. Rather, the state’s
central argument is that defendant’s consent to the request
to search the pouches and her purse, because it was vol-
untary, was sufficient to vindicate defendant’s rights. Put
differently, the state argues that, because a voluntary-
consent search is “reasonable,” defendant’s right to be free
from “unreasonable” searches was not violated. In Unger,
we accepted the state’s argument that this court in Hall
had failed to give sufficient weight to an individual’s volun-
tary consent to a search. We did not, however, suggest that
voluntary consent always would “trump” the effect of prior
police misconduct; rather, we identified a number of nonex-
clusive considerations that should be considered in review-
ing the totality of the circumstances to determine whether
the police “exploited” or “took advantage” of their unlawful
conduct to obtain the consent. See Unger, 356 Or at 79-80.
We return to a discussion of those considerations in
this case. We observed in Hall and reaffirmed in Unger that
exploitation of police misconduct may exist if the police seek
the defendant’s consent solely as a result of knowledge of
inculpatory evidence obtained from their unlawful conduct.
Hall, 339 Or at 35; Unger, 356 Or at 76. The facts support
158 State v. Musser
defendant’s argument that such exploitation occurred here,
because the officer pursued several lines of inquiry “spurred
by his observations of the contents of defendant’s purse
during the unlawful seizure.” After defendant, at the offi-
cer’s direction, came towards him, he asked for identifica-
tion. While defendant was looking through her purse for
identification, the officer saw the two Crown Royal pouches.
Because of his observation that she was nervous and fidgety,
and his suspicion that defendant had drugs in the purse,
when the officer saw the Crown Royal pouches—in which,
as the trial court observed, drug users often carry their
drugs—he asked for consent to search them. In contrast to
the facts in Unger, where the trespass onto defendant’s prop-
erty only brought the police into contact with the defendant,
or the similar circumstances in Lorenzo, the unlawful police
conduct here led directly to observations, including obser-
vation of the pouches that the officer suspected contained
drugs, and then to the request for consent to search. Here,
there was not simply “but for” causation—unlawful police
conduct and then a request for consent. Instead, the unlaw-
ful conduct led to the request for identification, which led to
observation of pouches that the officer believed contained
drugs, which led to the request to search and the evidence
ultimately obtained. That evidence was the product of the
initial unlawful stop.
In Unger, we also identified the “purpose and fla-
grancy” of the misconduct as relevant to determining
exploitation. As we discussed there, the inquiry into “pur-
pose” is not focused on the officer’s subjective intent, but on
the objective circumstances, including verbal and nonverbal
conduct, that may indicate whether police took advantage of
the prior illegality to obtain defendant’s consent. 356 Or at
82-83. Here, without—the state concedes—probable cause
or reasonable suspicion to believe that defendant was com-
mitting any crime, the officer violated the constitutional
rights of defendant and her friend for the purpose of “basi-
cally [making] sure they were not doing anything wrong:
Breaking the law, damaging any property.”
Police obviously need reasonable leeway to inves-
tigate and prevent crimes, and monitoring locations where
criminal activity frequently occurs and where trespassers
Cite as 356 Or 148 (2014) 159
are often found is part of good police work. But police are
not authorized to detain and question citizens merely to
“make sure they [are] not doing anything wrong.” The pur-
pose of the unlawful stop here—in contrast to the “knock-
and-talk” in Unger, which was precipitated by information
about the presence of drugs, guns, and children in a partic-
ular house—apparently was a “shot in the dark” to check for
criminal activity.4 But here, even that generalized concern
about trespassing and criminal activity gave way as the
encounter developed, with the officer eventually focusing—
as defendant well understood—on drug possession. The ini-
tial and developing purpose of the police misconduct in con-
tinuing to detain defendant while inquiring about various
possible crimes shows the state taking advantage of that
misconduct in a way that likely had an effect on defendant’s
decision to consent.
As to the flagrancy of the police conduct, the state
argues that the seizure was only “minimally restrictive,”
that defendant was never handcuffed, and that the police
were not—and were not perceived by defendant to be—
aggressive or intimidating. All that may be true. But fla-
grancy is simply one consideration in the larger exploitation
analysis. We agree with defendant that police may not pur-
posefully and severely interfere with a person’s Article I,
section 9, rights—even if they do so politely.
For the reasons set out above, and applying the
analysis described in Unger, we conclude that the police
improperly exploited their unlawful stop of defendant to
obtain her consent to the search. We agree with the Court
of Appeals that the resulting evidence should have been
suppressed.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
4
The purpose of the unlawful stop here also stands in contrast to Lorenzo,
where the officer went to the defendant’s apartment to check on him after learn-
ing that the defendant’s roommate, who had just tried to commit suicide, owned
a gun. Nothing in the record there indicated that the officer was concerned about
any criminal activity on the part of the defendant when the officer knocked on the
defendant’s interior bedroom door.
160 State v. Musser
WALTERS, J., specially concurring.
I concur in the judgment of the court and its rea-
soning that, because the unlawful stop “led to the request
for identification, which led to the observation of pouches
that the officer believed contained drugs, which led to the
request to search and the evidence ultimately obtained,” the
“evidence was the product of the initial unlawful stop” and
must be suppressed. State v. Musser, 356 Or 148, 158, ___
P3d ___ (2014). I also agree that the officer took advantage
of the unlawful stop “in a way that likely had an effect on
defendant’s decision to consent.” Id. at 159. I write, however,
with a plea for consistency and simplicity.
In State v. Unger, 356 Or 59, ___ P3d ___ (2014),
the majority specifically declared that it was adhering to
the following principle articulated in State v. Hall, 339
Or 7, 115 P3d 908 (2005), and other cases: “A causal
connection requiring suppression may exist because the
police sought the defendant’s consent solely as a result of
knowledge of inculpatory evidence obtained from unlaw-
ful police conduct.” Unger, 356 Or at 86. The majority
described the connection between the illegality and the
consent to search as “a direct causal connection.” Id. The
majority then went on to discuss “less direct exploitation,”
which, it said, requires consideration of the totality of
the circumstances to determine whether the consent was
sufficiently related to the unlawful police misconduct to
require suppression. Id.
To me, this case is a perfect example of the “direct
causal connection” described and adhered to in Unger, and
the court apparently does not disagree. Musser, 356 Or at
157-58. However, the court nevertheless goes on to discuss
whether the constitutional violation was severe, purposeful,
or flagrant. When previously describing the exploitation
that occurs in circumstances of “direct causal connection,”
the court has not considered the factors applicable in “less
direct exploitation” cases, and I question whether that com-
plexity is necessary or desirable. The cause of consistency
and simplicity would be advanced if the court were to con-
clude, without adjectival measuring, that, in this case, the
evidence must be suppressed because the officer violated
Cite as 356 Or 148 (2014) 161
the constitution, obtained an advantage that he otherwise
would not have had, and then exploited that advantage to
obtain consent to search.
The cause of consistency also would be advanced if
the court were to recognize that the same reasoning that
requires exclusion of the inculpatory evidence in this case
requires exclusion of the inculpatory evidence at issue in
Unger. In both cases, the officers approached the defen-
dants to try to ascertain whether criminal conduct was tak-
ing place. In this case, the officer violated the constitution
because he stopped defendant without reasonable suspicion.
In Unger, the officers violated the constitution because they
invaded the defendant’s property and privacy without his
permission. In both cases, the officers gained an advantage
that they would not have had had they operated within the
law. In this case, the unconstitutional stop permitted the
officer to get defendant’s attention, see pouches, and ask for
consent to search. In Unger, the unconstitutional intrusion
permitted the officers to get the defendant’s attention and
ask for consent to search. To be consistent, the court, in both
cases, should require the suppression of the evidence that
the officers obtained by pressing their advantage.
I am heartened that, in this case, the court recog-
nizes the causal link between the constitutional violation and
the inculpatory evidence and orders its suppression. I take
hope from the fact that, in State v. Ayles, 348 Or 622, 636, 237
P3d 805 (2010), State v. Rodgers/Kirkeby, 347 Or 610, 629-30,
227 P3d 695 (2010), and State v. Hall, 339 Or 7, 34-35, 115
P3d 908 (2005), the court recognized the same causal link
and also ordered suppression, and that, in the trilogy of cases
decided today, this court did not explicitly overrule those
cases. My plea is that, in the years to come, courts will con-
tinue to adhere to the reasoning in this and those cases and,
in doing so, will make the law more consistent, more easily
applied, and more true to its constitutional purpose.
Baldwin, J., joins in this opinion.
BREWER, J., specially concurring.
I concur in the judgment of the court but, for the
reasons stated in my dissenting opinion in State v. Unger,
162 State v. Musser
356 Or 59, 121-22, ___ P3d ___ (2014) (Brewer, J., dissent-
ing), I am unable to join in the opinion of the court in this
case.
BALDWIN, J., specially concurring.
I concur in the judgment of the court but, for the
reasons I explained in my dissenting opinion in State v.
Unger, 356 Or 59, 133, ___ P3d ___ (2014) (Baldwin, J., dis-
senting), I do not join the majority’s reasoning in this case.