{"id":2833,"date":"2009-02-17T09:56:34","date_gmt":"2009-01-04T12:26:27","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-01-04T12:26:27","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2833","title":{"rendered":"OR: When defendant shows “but for,” burden shifts to state"},"content":{"rendered":"

When defendant shows “but for,” the burden shifts to the state to explain it away. Here they did. State v. Ashbaugh<\/a>, 225 Ore. App. 16 (2008):<\/p>\n

In order to establish a “minimal factual nexus,” the defendant must show that there is at least a “but for” relationship between the unlawful stop and the consent. Id. at 25. The burden then shifts to the state. If the state cannot establish “independence”–that is, that the evidence inevitably would have been discovered through the exercise of lawful procedures (such as a mandatory inventory policy), or that it was obtained not only as a result of the illegality, but also as the result of a chain of events that did not include an illegality (that is, an “independent source”)–it must prove “attenuation.” State v. Tyler, 218 Ore. App. 105, 110, 178 P.3d 282 (2008). Factors on which the state might rely to make that showing include the amount of time that elapsed between the illegality and the request for consent and the presence of any intervening or mitigating circumstances. Id.<\/p>\n

In accordance with those principles, we must first determine whether defendant has established the requisite “but for” relationship. Hall, 339 Ore. at 25. We have explained that relationship, albeit in the civil context, as follows: one event is the “but for” cause of a second event if the second event would not have occurred if the first event had not occurred. Wallach v. Allstate Ins. Co., 206 Ore. App. 137, 143, 135 P.3d 404 (2006), aff’d, 344 Ore. 314, 180 P.3d 19 (2008); see also Blacks Law Dictionary 213 (8th ed 2004) (defining “but-for test” as “[t]he doctrine that causation exists only when the result would not have occurred without the party’s conduct”). The state asserts that, although the request for consent occurred after the unlawful stop, defendant has failed to show that the request occurred as a result of it. Defendant’s position is that, if her interaction with the officers had ended before they took her identification and began a warrant check, the subsequent series of events culminating in the officers’ request for consent to search would never have occurred. Instead, the encounter would have ended and, presumably, the officers would have moved on.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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