Oregon Supreme Court encourages police misconduct

In a shameful decision today, the Oregon Supreme Court overruled its own precedent and gutted an important part of the Oregon Constitution's guarantee to all Oregonians that they be free from unreasonable searches and seizures.

Until today if the police unlawfully stopped you and during or shortly after that unlawful detention you agreed to a search of yourself, your car or your home, (a "consent search") you would most likely be able to have any evidence found during that search excluded from your case. This was so because the Oregon Constitution's protections against unreasonable searches and seizures are there to vindicate our rights as Oregonians to be free from unreasonable searches and seizures. Put another way, the constitutional protections are there to put us in the position we would have been in had the police obeyed the law in the first place. Unless the state could "wash" your consent from the taint of their own unlawful seizure of you, you won your case.

For years this meant that the state had an extraordinarily difficult row to hoe when it sought to admit evidence from an otherwise valid consent search if the consent of the person was given close in time or during an unlawful encounter with police. For years these decisions served as a prophylactic barrier between the citizenry and overreaching or unscrupulous law enforcement agents. The law discouraged bad behavior on the part of the police.

No longer. Today's decision effectively overrules years of prior case law and analysis in holding that even if the police encounter leading to the consent to search is unlawful, the evidence from the search is admissible unless the police exploited their unlawful conduct to gain the consent. Whereas it used to be that unless the state could point to some intervening circumstance, consent searches that occurred during or after unlawful police detentions were presumed invalid, the effect of today's ruling will be an 180-degree reversal. Now, unless their unlawful actions actually cause you to consent to a search (or cause them to ask you to consent), you most likely lose.

The case provides the police with a road-map for the trampling of our rights. They can now stop and detain you for any reason and so long as the first polite words out of their mouths after illegally detaining you are "mind if we look in..." you are screwed.

The case also guarantees years of legal fallout for the way in which it was decided. While abandoning the reasoning of its prior case law, the majority in today's case refused to expressly overrule those prior cases - even going so far as to deny that they had, in fact, overruled them.

The only bright line rule Oregonians can take from this awful decision is never, under any circumstances should you agree to allow the police to search you or your belongings. You can't rely on Oregon Courts to vindicate your rights anymore. You'll have to do it yourself. We agree with the lone dissenting Judge in saying "the majority changes the exclusionary rule as Oregon has known it and, in my view, does so to the detriment of Oregonians."


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