As it turns out, according to the Oregon Supreme Court in State v. Hall (Carson, J.), an officer who engages in this conduct conducts an unlawful stop in violation of ORS 131.615(1) and, thus, an unlawful seizure in violation of Article I, section 9. Further, Article I, section 9 requires the suppression of any evidence obtained in a subsequent consent search of the stopped party unless the state proves that the consent was "independent of" or "tenuously related to" the unlawful stop/seizure:
After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant's consent, then the state has the burden to prove that the defendant's consent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant's consent. A causal connection requiring suppression may exist because the police sought the defendant's consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct. A causal connection requiring suppression also may exist because the unlawful police conduct, even if not overcoming the defendant's free will, significantly affected the defendant's decision to consent. Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant's consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances -- such as, for example, a police officer informing the defendant of the right to refuse consent -- that mitigated the effect of the unlawful police conduct.
Dissenting, Justice Durham, joined by Justice Gillette, agreed that the officer's conduct constituted an unlawful stop/seizure but argued that the majority's approach is analytically flawed because it disregards a key fact: the voluntariness of the defendant's consent:
The majority's approach is erroneous because it accords no analytical weight to the key fact of defendant's voluntary consent to the search. Instead, the majority's analysis turns on whether the fact that allowed the search to occur -- defendant's voluntary consent -- was the "product" of (that is, whether the consent is the causal result of) the unlawful stop. According to the majority, because that causal relationship exists (or, rather, because the state failed to prove that that relationship did not exist), the resulting search is unconstitutional notwithstanding the voluntariness of defendant's consent to the search. But that reasoning blurs the distinction between the circumstances of the stop that have a mere "but for" causal link with the search and the one fact that was the genuine cause of the search. Because its view of the causation inquiry is faulty, the majority simply fails to assess the significance of the fact that triggered the search of defendant's pocket: defendant voluntarily consented to the search. The majority's resulting conclusion -- that Deese's search of defendant's pocket was unreasonable and, thus, unlawful even though defendant voluntarily consented to the search -- is a difficult pill to swallow.
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