OR follows Brown v. Illinois on attenuation

Oregon follows Brown v. Illinois on attenuation analysis. State v. Bailey, 356 Ore. 486, 2014 Ore. LEXIS 813 (November 6, 2014):

The circuit court and the Court of Appeals rejected defendant’s arguments and applied a per se rule to the attenuation analysis: The discovery and execution of a valid arrest warrant necessarily break the connection between preceding unlawful police conduct and a search incident to the arrest. State v. Bailey, 258 Or App 18, 308 P3d 368 (2013). The Court of Appeals drew that rule from this court’s decision in State v. Dempster, 248 Or 404, 434 P2d 746 (1967). Bailey, 258 Or App at 21-29. For the reasons explained below, we conclude that Dempster’s per se rule is inconsistent with the subsequent development of the Fourth Amendment attenuation exception set out in Brown v. Illinois, 422 U.S. 590, 95 S Ct 2254, 45 L Ed 2d 416 (1975), where the United States Supreme Court rejected such an approach. Id. at 603. Instead, Brown requires courts to consider three factors in the attenuation analysis: (1) the temporal proximity between unlawful police conduct and the discovery of challenged evidence; (2) the presence of intervening circumstances; and (3) “particularly, the purpose and flagrancy of the official misconduct.” Id. at 603-04. Applying those factors in this case, we conclude that the circuit court erred in denying defendant’s motion to suppress.