OR: Refusal to consent to a search of purse can’t even be a factor in reasonable suspicion

Defendant’s refusal to consent to a search of her purse can’t even be a factor in reasonable suspicion. Moreover, information about past or even recent drug use isn’t reasonable suspicion of drug use at a later time. State v. Barker, 271 Or. App. 63, 2015 Ore. App. LEXIS 580 (May 13, 2015):

When an individual seeks to protect an item and openly asserts his or her privacy rights, that behavior and assertion is neither innately shifty nor sinister—rather, it is constitutionally protected. And, “[a]llowing the police to conduct a search on the basis of the assertion of a privacy right would render the so-called right nugatory.” State v. Brown, 110 Ore. App. 604, 611, 825 P2d 282 (1992). Although furtive behavior may contribute to probable cause, asserting a constitutionally protected privacy right cannot.3 Defendant’s protective behavior to safeguard the privacy of her purse and her statement that she did not want it searched are not properly considered as part of the totality of the circumstances and may not contribute to probable cause.