State v. Douglas (1971)

See e. g., United States v. Savage, 459 F.2d 60, 61 (5 Cir. 1972) ; United States v. Curiale, 414 F.2d 744, 747 (2 Cir. 1969), cert. denied, 396 U.S. 959 , 90 S.Ct. 433 , 24 L.Ed.2d 424 ; United States v. Boukater, 409 F.2d 537, 538-539 (5 Cir. 1969) ; United States v. Manarite, 314 F.Supp. 607, 612-613 (S.D.N.Y. 1970), aff’d, 448 F.2d 583 (2 Cir. 1971), cert. denied, 404 U.S. 947 , 92 S.Ct. 281 , 30 L.Ed.2d 264 ; United States v. Fitzpatrick, 289 F.Supp. 767 (N.D.Utah 1968)…

In State v. Warner, 284 Or 147 , 585 P2d 681 (1978), we noted our uneasiness with the quantum of proof required by State v. Douglas, 260 Or 60, 68, 488 P2d 1366, 1370 (1971), to establish the "consent” exception to the need for a warrant.

In State v. Douglas, 260 Or 60, 68 , 488 P2d 1366, 1370 (1971), this court said that the state’s burden was to prove valid consent by "clear and convincing evidence.” Whether that degree of probability, as defined in Cook v. Michael, 214 Or 513 , 330 P2d 1026 (1958), is required we need not consider here.

As Chief Justice O’Connell explained in Douglas : “If the officers threaten only to do what the law permits them to do, the coercion that the threat may produce is not constitutionally objectionable.” State v. Douglas, supra, 260 Or at 81 (O’Connell, C.

See, e.g., State v. Hirsch, 267 Or. 613, 622 , 518 P.2d 649 (1974) (quoting with approval Chief Justice O'Connell's observation in dissent in State v. Douglas, 260 Or. 60, 81 , 488 P.2d 1366 (1971): "But not all coercion inducing consent to a search is constitutionally impermissible.

See, e.g., State v. Douglas, 260 Or 60 , 488 P2d 1366 (1971); see generally 1 LaFave & Israel, Criminal Procedure 340-59, § 3.10 (1984).

See State v. Douglas, 260 Or 60 , 488 P2d 1366 (1971), holding that a “Miranda warning” is not required before a so-called “consent search” — a rule later ap proved by the United States Supreme Court in Schneckloth v. Bustamonte, 412 US 218, 231 , 93 S Ct 2041 , 36 L ed 2d 854, 865 (1973).

See, e.g., State v. Amaya, 336 Or 616, 627 , 89 P3d 1163 (2004) (explaining necessity of considering legality of stop in deciding admissibility of defendant’s presumably voluntary statements by stating that, “if [the officer] had seized [the] defendant in violation of her Article I, section 9, rights before he questioned her about the bag, then his questions about the bag also were unlawful, and the evidence that the state obtained as a result of those questions must be supp…

See State v. Douglas, 260 Or 60, 63 , 488 P2d 1366 (1971).

See, e.g., State v. Douglas, 260 Or. 60, 81 , 488 P.2d 1366 (1971), cert. den., 406 U.S. 974 , 92 S.Ct. 2420 , 32 L.Ed.2d 674 (1972) (O'Connell, C.J., dissenting on other grounds) (threat to obtain warrant does not necessarily render subsequent consent coerced "[i]f the officers threaten only to do what the law permits them to do").

See, e.g., State v. Douglas, 260 Or 60, 81 , 488 P2d 1366 (1971), cert den, 406 US 974 (1972) (O’Connell, C.

See State v. Douglas, 260 Or 60, 81 , 488 P2d 1366 , cert den 406 US 974 (1971) (O’Connell, C.

See Harris v. United States, 390 US 234, 236 , 19 L Ed 2d 1067 , 88 S Ct 992 (1968) (per curiam.) * * 61 L Ed 2d at 245, n 13 . 5 We note that the instant case does not present the situation of State v. Douglas, 260 Or 60 , 488 P2d 1366 (1971), cert den, 406 US 974 (1972), /herein defendant consented to a search of his suitcase after he was iformed by the police that if he did not consent, they would apply for a earch warrant.

See Simmons v. United States, 390 US 377 , 88 S Ct 967 , 19 L Ed2d 1247 (1968). 3 Defendant argues that State v. Douglas, 260 Or 60 , 488 P2d 1366 , cert denied 406 US 974 (1971), is distinguishable in that there the police officers actually had probable cause to obtain a warrant whereas in this case there is no indication that the police officers had probable cause to search the knapsack.