Fourth Amendment exclusionary rule in Oregon

2005“This court has stated that, ‘unlike the Fourth Amendment exclusionary rule, which has been based on deterring police misconduct, exclusions under Article I, section 9, have been based on the personal right to be free from an unlawful search and seizure.’ State v. Kosta, 304 Or 549, 553 , 748 P2d 72 (1987).

2005“This court has stated that, ‘unlike the Fourth Amendment exclusionary rule, which has been based on deterring police misconduct, exclusions under Article I, section 9, have been based on the personal right to be free from an unlawful search and seizure.’ State v. Kosta, 304 Or 549, 553 , 748 P2d 72 (1987).

2014Citing Davis and McMurphy, the court declared that, “[u]nlike the Fourth Amendment exclusionary rule, which has been predicated in recent years on deterrence of police misconduct * * * the exclusionary rule of [Article I,] section 9 is predicated on the personal right of a criminal defendant to be free from an ‘unreasonable search, or seizure.’ ” Id. at 315 .

2014Citing Davis and McMurphy, the court declared that, “[u]nlike the Fourth Amendment exclusionary rule, which has been predicated in recent years on deterrence of police misconduct * * * the exclusionary rule of [Article I,] section 9[,] is predicated on the personal right of a criminal defendant to be free from an ‘unreasonable search, or seizure.’ ” Id. at 315 .

2005As discussed further below, 339 Or. at ___ _ ___, 115 P.3d at 916 , however, that difference is of no consequence here, because the parties do not dispute that Deese lacked a reasonable suspicion that defendant either had been involved in, or was about to become involved in, any criminal activity at the time of the encounter at issue in this case. [11] ORS 131.605 defines the term "reasonably suspects" as "a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts * * *." [12] In Wong Sun , the Supreme Court refined the "fruit of t

2005As discussed previously, 339 Or. at ___ -___, 115 P.3d at 919-920 , the Brown factor of "purpose and flagrancy of the official misconduct" relates to only the deterrence rationale of the Fourth Amendment exclusionary rule and has no applicability to the exclusionary rule under Article I, section 9.

2005Thus, when the government violates an individual’s Article I, section 9, rights by conducting an unreasonable search or seizure in obtaining evidence, the individual’s state constitutional right to be secure against that unlawful search or seizure is protected ‘through the sanction of [the] suppression of evidence,’ State v. Davis, [ 313 Or 246, 253 , 834 P2d 1008 (1992)].

2005Thus, when the government violates an individual’s Article I, section 9, rights by conducting an unreasonable search or seizure in obtaining evidence, the individual’s state constitutional right to be secure against that unlawful search or seizure is protected ‘through the sanction of [the] suppression of evidence,’ State v. Davis, [ 313 Or 246, 253 , 834 P2d 1008 (1992)].

2021Dept. v. Rogers, 314 Or 114, 119 , 836 P2d 127 (1992) (quoting State v. Kosta, 304 Or 549, 553 , 748 P2d 72 (1987)).

2021Dept. v. Rogers, 314 Or 114, 119 , 836 P2d 127 (1992) (quoting State v. Kosta, 304 Or 549, 553 , 748 P2d 72 (1987)).

2014In this context, “indirect” fruit refers to “evidence [that] was acquired by the police after some initial Fourth Amendment violation.” United States v. Crews, 445 US 463, 471 , 100 S Ct 1244 , 63 L Ed 2d 537 (1980) (emphasis in original). *496 There are three recognized exceptions to the Fourth Amendment exclusionary rule: (1) the inevitable discovery exception; (2) the independent source exception; and (3) the attenuation exception. 4 United States v. Smith, 155 F3d 1051, 1060 (9th Cir 1998).

2014In this context, “indirect” fruit refers to “evidence [that] was acquired by the police after some initial Fourth Amendment violation.” United States v. Crews, 445 US 463, 471 , 100 S Ct 1244 , 63 L Ed 2d 537 (1980) (emphasis in original). *496 There are three recognized exceptions to the Fourth Amendment exclusionary rule: (1) the inevitable discovery exception; (2) the independent source exception; and (3) the attenuation exception. 4 United States v. Smith, 155 F3d 1051, 1060 (9th Cir 1998).

2006State v. McMurphy, 291 Or. 782, 785 , 635 P.2d 372 (1981). "[T]here is no presumption that interpretations of the Fourth Amendment by the Supreme Court of the United States are correct interpretations of Article I, section 9." Campbell, 306 Or. at 164 n. 7, 759 P.2d 1040 .

2006State v. McMurphy, 291 Or. 782, 785 , 635 P.2d 372 (1981). "[T]here is no presumption that interpretations of the Fourth Amendment by the Supreme Court of the United States are correct interpretations of Article I, section 9." Campbell, 306 Or. at 164 n. 7, 759 P.2d 1040 .

2006Even the court's incidental discussion of the exclusionary rule, id. at 409 n. 2, 438 P.2d 1002 , indicates that the rule has a deterrent rationale and not a remedial one — an observation that is true of the Fourth Amendment exclusionary rule but not the Article I, section 9, exclusionary rule.

2006Even the court's incidental discussion of the exclusionary rule, id. at 409 n. 2, 438 P.2d 1002 , indicates that the rule has a deterrent rationale and not a remedial one — an observation that is true of the Fourth Amendment exclusionary rule but not the Article I, section 9, exclusionary rule.

2006State v. McMurphy, 291 Or. 782, 785 , 635 P.2d 372 (1981). "[T]here is no presumption that interpretations of the Fourth Amendment by the Supreme Court of the United States are correct interpretations of Article I, section 9." Campbell, 306 Or. at 164 n. 7, 759 P.2d 1040 .

2006State v. McMurphy, 291 Or. 782, 785 , 635 P.2d 372 (1981). "[T]here is no presumption that interpretations of the Fourth Amendment by the Supreme Court of the United States are correct interpretations of Article I, section 9." Campbell, 306 Or. at 164 n. 7, 759 P.2d 1040 .

2005Rev. 697 (1989). [14] Before the Supreme Court held in Mapp, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 , that the Fourth Amendment exclusionary rule applies to the states, this court had approved of the use of that rule in Oregon state courts based upon its agreement with the Supreme Court in Weeks v. United States, 232 U.S. 383 , 34 S.Ct. 341 , 58 L.Ed. 652 (1914), that such a rule was necessary to effectuate constitutional protections against unreasonable searches and seizures.

2005Before the Supreme Court held in Mapp, 367 US 643 , that the Fourth Amendment exclusionary rule applies to the states, this court had approved of the use of that rule in Oregon state courts based upon its agreement with the Supreme Court in Weeks v. United States, 232 US 383 , 34 S Ct 341 , 59 L Ed 652 (1914), that such a rule was necessary to effectuate constitutional protections against unreasonable searches and seizures.

2005Rather, the more apt question in such a case is `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.'" 371 U.S. at 487-88 , 83 S.Ct. 407 (quoting Maguire, Evidence of Guilt, 221 (1959)).

2005Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ” 371 US at 487 -88 (quoting Maguire, Evidence of Guilt, 221 (1959)).

2005Lower federal courts also have presumed that the analysis from Wong Sun and its progeny concerning the admissibility of confessions under the Fourth Amendment exclusionary rule, see, e.g., Brown v. Illinois, 422 US 590 , 95 S Ct 2254 , 45 L Ed 2d 416 (1975), applies equally in the context of consent searches.

2005Lower federal courts also have presumed that the analysis from Wong Sun and its progeny concerning the admissibility of confessions under the Fourth Amendment exclusionary rule, see, e.g., Brown v. Illinois, 422 US 590 , 95 S Ct 2254 , 45 L Ed 2d 416 (1975), applies equally in the context of consent searches.

2002Today's decision, although it distinguishes the case, does nothing to imply that, were the court required to address the issue, we would adhere to the Quinn search and seizure analysis." Weaver, 319 Or. at 224 , 874 P.2d 1322 (Gillette, J., concurring). [3] I note that the Oregon Supreme Court "has stated that, `unlike the Fourth Amendment exclusionary rule, which has been based on deterring police misconduct, exclusions under Article I, section 9, have been based on the personal right to be free from an unlawful search and seizure.'" State ex. rel .

2002Today's decision, although it distinguishes the case, does nothing to imply that, were the court required to address the issue, we would adhere to the Quinn search and seizure analysis." Weaver, 319 Or. at 224 , 874 P.2d 1322 (Gillette, J., concurring). [3] I note that the Oregon Supreme Court "has stated that, `unlike the Fourth Amendment exclusionary rule, which has been based on deterring police misconduct, exclusions under Article I, section 9, have been based on the personal right to be free from an unlawful search and seizure.'" State ex. rel .

1987See Weeks, 232 U.S. at 398 , 34 S.Ct. at 346 ; Gouled v. United States, 255 U.S. 298, 312-13 , 41 S.Ct. 261, 266 , 65 L.Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 , 40 S.Ct. 182, 182-83 , 64 L.Ed. 319 (1920); Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 Creighton L Rev 565 (1983); Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn L Rev 251 (1974).

1987See Weeks, 232 U.S. at 398 , 34 S.Ct. at 346 ; Gouled v. United States, 255 U.S. 298, 312-13 , 41 S.Ct. 261, 266 , 65 L.Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 , 40 S.Ct. 182, 182-83 , 64 L.Ed. 319 (1920); Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 Creighton L Rev 565 (1983); Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn L Rev 251 (1974).

1987See Weeks, 232 U.S. at 398 , 34 S.Ct. at 346 ; Gouled v. United States, 255 U.S. 298, 312-13 , 41 S.Ct. 261, 266 , 65 L.Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 , 40 S.Ct. 182, 182-83 , 64 L.Ed. 319 (1920); Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 Creighton L Rev 565 (1983); Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn L Rev 251 (1974).

1987See Weeks, 232 U.S. at 398 , 34 S.Ct. at 346 ; Gouled v. United States, 255 U.S. 298, 312-13 , 41 S.Ct. 261, 266 , 65 L.Ed. 647 (1921); Silverthorne Lumber Co. v. United States, 251 U.S. 385, 391-92 , 40 S.Ct. 182, 182-83 , 64 L.Ed. 319 (1920); Kamisar, Does (Did) (Should) the Exclusionary Rule Rest on a "Principled Basis" Rather Than an "Empirical Proposition"?, 16 Creighton L Rev 565 (1983); Schrock & Welsh, Up From Calandra: The Exclusionary Rule as a Constitutional Requirement, 59 Minn L Rev 251 (1974).

1981Indeed, in United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980), the court opted for a narrow application of the exclusionary rule because a broader application was not necessary to achieve deterrence.

1981Indeed, in United States v. Salvucci, 448 U.S. 83 , 100 S.Ct. 2547 , 65 L.Ed.2d 619 (1980), the court opted for a narrow application of the exclusionary rule because a broader application was not necessary to achieve deterrence.