Oregon Supreme Ct - Aug. 28, 2014

Latest revision as of 20:47, September 2, 2014

"When a defendant has established that an illegal stop or an illegal search occurred and challenges the validity of his or her subsequent consent to a search, 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." In determining whether an officer exploited his illegal conduct to obtain consent, a court should look at the totality of the circumstances, including: 1) the purpose and flagrancy of the violation, 2) the temporal proximity between the “unlawful conduct and consent, and 3) the presence of any “intervening or mitigating circumstances.” In articulating this new rule, the Supreme Court "disavows" the minimal factual nexus test from State v Hall. The court applies the new test in 3 cases:

• In State v. Musser, 356 Or 148 (2014), the officer exploited an illegal stop to obtain defendant’s consent to search items in her purse when the office stopped defendant without reasonable suspicion by saying, “Hey, I need to talk to you.” While the defendant was reaching for her ID, the officer spotted two Crown Royal pouches and asked for defendant’s consent to search the pouches. Because the stop was generalized and without reasonable suspicion, and the conduct of the officer was such a severe interference with defendant’s Article I, section 9 rights, there was an exploitative connection between the illegality and the consent, "notwithstanding the fact that the police conduct was restrained and courteous." (quote from State v Unger at 85).

• In State v. Unger, 356 Or 59 (2014), detectives did not exploit their illegal conduct to obtain consent to enter defendant’s home when after knocking on the front door and receiving no answer, the detectives followed a path to the backyard and contacted defendant after knocking on the back door. Because the detectives interacted with defendant just as they would have at the front door, the severity of the misconduct was low.

• In State v. Lorenzo, 356 Or 134 (2014). the officer did not exploit his misconduct to obtain consent where the officer’s illegal action was limited to opening an apartment door and reaching inside to knock on defendant’s door to ask if defendant was “okay.” Because the purpose was to check on the defendant’s safety, the resulting unlawful reaching into the door was of low severity, and the officer obtained no information about criminal activity from the unlawful search itself, the subsequent consent was not vitiated.

J. Landau concurs to argue that the Oregon Constitution's exclusionary rule has twin rationales: deterrence of illegal police action and the vindication of the defendant's constitutional rights. And that there is no particularly good reason for the court to continue to paint itself into a doctrinal corner by adhering to individual rights as the sole rationale.

J. Walters dissents (joined by J. Baldwin), articulating why the result and reasoning in Unger is only consistent with a much more significant and disturbing shift of law than the court will admit. Specifically, "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. I concede that the majority does not acknowledge those fundamental shifts. . . In fact, the majority specifically disavows them." "This court has an obligation to demonstrate to the people of Oregon that our constitution is enduring: That it is made of sterner stuff than four votes represent; that it can withstand the forces of the day that call, always call, for understanding and flexibility to permit the government to act. Surely government must act; but when it violates the constitution in doing so, it should not benefit."

J. Brewer separately dissents, particularly objecting to the majority's rejection of "the fundamental premise of Hall that the factors of purpose and flagrancy are immaterial to a rights-based analysis under Article I, section 9.

J Baldwin dissents (joined by J. Walters): "According to the rule now adopted by the majority, police officers may deliberately violate the privacy rights of citizens in their homes when, as here they knock on a private back door, startle an occupant, ask to search the occupant’s home, and then exploit the fiction of a consensual search if evidence of a crime is found in the home. If no evidence of a crime is found, the occupants will simply be required to endure the unreasonable governmental intrusion without a remedy."