{"id":8217,"date":"2013-03-28T08:11:31","date_gmt":"2013-01-12T11:41:21","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2013-01-12T11:41:21","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=8217","title":{"rendered":"OR: A false promise of immunity (a \u201cbait-and-switch\u201d) to get defendant to consent invalidated the consent"},"content":{"rendered":"

A false promise of immunity (a \u201cbait-and-switch\u201d) to get defendant to consent invalidated the consent. State v. Marshall<\/a>, 254 Ore. App. 419, 295 P.3d 128 (2013):<\/p>\n

The touchstone of three of those “consent-to-search” genres (all except “authority”) is autonomous choice: The lawfulness of the warrantless search derives from, and is innately circumscribed by, the unimpaired autonomous choice of the person giving consent. Here, defendant posits that his “consent” was elicited by “bait-and-switch” tactics of the investigating officer\u2014viz., the giving of an illusory promise of immunity\u2014and, thus, was not the product of autonomous choice. That is, his “consent” was not consent at all.<\/p>\n

While defendant forthrightly acknowledges that there is no Oregon appellate decision holding that an illusory inducement abrogates an ostensible consent to search, he invokes our precedents addressing the effect of promises of leniency on the voluntariness of admissions elicited during police interviews. We agree with defendant that those cases are highly instructive in that they are grounded substantively, albeit not exclusively, on the imperatives of autonomous choice.<\/p>\n

. . .<\/p>\n

In sum, as in Pollard, 132 Ore. App. at 549, “[t]he quid pro quo was apparent”: But for Wilson’s promise that he would not be held responsible for the contents of the RV, defendant would never have consented to the search of the RV. That promise proved to be false, as defendant was charged with evidence discovered during that search. Under those circumstances, defendant’s “capacity for self-determination was critically impaired,” Tanner, 236 Ore. App. at 431, abrogating his purported consent. The warrantless search of the RV did not fall within the consent exception.<\/p><\/blockquote>\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-8217","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/8217","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=8217"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/8217\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=8217"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=8217"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=8217"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}