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Oregon Supreme Court, November 4, 2021

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by: Rankin Johnson • November 5, 2021 • no comments

 

Summarized by Rankin Johnson, OCDLA

SEARCH AND SEIZURE - Exploitation
Importance: 4/5

Where evidence obtained through the violation of defendant's rights was included in search-warrant application, state had burden to show warrant was not exploitive, but the state did not carry that burden. Reversed.

Police located a witness during an illegal search of defendant's house, and included the witness's statements in a warrant application.

The Supreme Court upheld the requirement that a defendant show the connection between a warrant and a prior illegal search before the state is assigned the burden to show that the warrant was not exploitive of the prior search. The court emphasized that the defendant's initial burden is minimal, and it was met in this case.

The Court of Appeals had excised the questionable statements from the warrant affidavit and affirmed on the theory that the resulting affidavit still stated probable cause and defendant failed to prove that the unlawful search led to the warranted search. The Supreme Court held that the sufficiency of the warrant was not part of the analysis, and the Court of Appeals had misallocated the burden. The Supreme Court further held that, on this record, the trial court could not properly have held that the state met its burden.

State v. DeJong 368 Or 640 (November 4, 2021) (Walters) (Baker County, Baxter)