{"id":2817,"date":"2009-03-04T13:38:54","date_gmt":"2008-12-29T07:52:38","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-12-28T18:50:35","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2817","title":{"rendered":"OR: Refusal to consent cannot be considered in RS"},"content":{"rendered":"

Defendant’s refusal to permit officer who felt a circular tin and asked what was in it to search could not form the basis of reasonable suspicion. State v. Foland<\/a>, 224 Ore. App. 649, 199 P.3d 362 (2008):<\/p>\n

A person’s reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity. As here, where a person has the right to refuse consent, the<\/p>\n

“refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of one’s constitutional rights, can play no part in creating probable cause for a search.” <\/p><\/blockquote>\n

State v. Gressel, 276 Or 333, 338-39, 554 P2d 1014 (1976). We view defendant’s reaction to the inquiries concerning the patdown and the contents of the tin as “merely an unsophisticated attempt to assert his right of privacy.” Id. at 338. Defendant’s reaction to a request for consent that he is constitutionally entitled to refuse cannot form the basis of reasonable suspicion. To hold otherwise and “allow[ ] the police to use defendant’s assertion of a privacy right as the basis for depriving him of that right would render the promise of Article I, section 9, illusory.” State v. Brown, 110 Or App 604, 611-12, 825 P2d 282 (1992) (holding that defendant’s “excited and belligerent” demeanor and his action of grabbing his car keys was a clumsy effort to assert his right to the privacy of his cars and refuse consent and could not be a basis for reasonable grounds to believe the cars contained evidence of a parole violation).<\/p><\/blockquote>\n

AUSA was entitled to qualified immunity on a claim of an overbroad search warrant in a fraud case. Slaey v. Adams, 2008 U.S. Dist. LEXIS 103903 (E.D. Va. December 23, 2008).*<\/p>\n

Rental property inspection ordinance was constitutional because it provided for a warrant or consent, and there was no penalty for refusing consent. McLean v. City of Kingston<\/a>, 2008 NY Slip Op 10088, 2008 N.Y. App. Div. LEXIS 9810 (3d Dept. December 24, 2008).*<\/p>\n

Defendant would have felt free to leave, so he was not detained coercively when he consented to a search of his car. United States v. Crossley<\/a>, 2008 U.S. App. LEXIS 26335 (11th Cir. December 23, 2008) (unpublished)* (I’m not convinced.)<\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-2817","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/2817","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=2817"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/2817\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=2817"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=2817"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=2817"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}