Oregon Appellate Ct - Dec. 2, 2015

by: Abassos and Alisa Larson-Xu • December 2, 2015 • no comments

Exploitation - When the Purpose of Police Misconduct Is To Procure Consent, the State Is Unlikely to Be Able to Prove There Was Not Exploitation

On reconsideration, in light of State v Unger, Musser and Lorenzo, the court finds that the state failed to establish that defendant's consent to search was not the product of police exploitation of an illegal seizure that had just occurred. More specifically, the police inquired about drugs and requested consent to search at the beginning of an otherwise legal traffic stop and not during an unavoidable lull. Defendant then admitted that he had heroin in his pocket and consented to further searches. Thus, the stop was unlawfully extended for the exact purpose of acquiring defendant's consent. That is the temporal proximity of the consent to the illegality was immediate. There was a direct causal link between the illegality and the consent. There were no intervening or mitigating circumstances to mitigate or cut off the causal link. While nothing about the police behavior was threatening, the misconduct was "at least moderately flagrant" because the "prohibition against extending stops by way of gratuitous investigatory inquiries" was well established. Ultimately though, the most important factor for the court is that the purpose and the intended consequence of the police misconduct was to procure consent to an exploratory search for drugs. State v Pichardo, 275 Or App 49 (2015).