{"id":5422,"date":"2011-12-28T11:11:40","date_gmt":"2011-04-12T00:12:45","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-04-11T07:06:54","slug":"en-US","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=5422","title":{"rendered":"OR: Even though stop was invalid, consent was [somehow] attenuated"},"content":{"rendered":"

Defendant\u2019s stop was unlawful, but his admission that he had recently smoked meth was [somehow] attenuated from the unlawful stop 30 minutes into it such that the search of the car was valid. State v. Lay<\/a>, 242 Ore. App. 38, 252 P.3d 850 (2011)*:<\/p>\n

Here, defendant\u2019s initial statement that the drugs in the car were his occurred nearly 30 minutes after Powers obtained and ran defendant\u2019s driver\u2019s license, returned the license, and thanked defendant for his cooperation. Thus, the \u201ctemporal proximity\u201d between initiation of the stop and defendant\u2019s statement was not close. In addition, several \u201cintervening circumstances\u201d serve to attenuate the stop from the statements. First, as discussed above, an intervening lawful stop occurred. Second, the drugs at issue were discovered as the result of an undisputedly lawful search based on the consent of the driver of the vehicle. That search was entirely independent of the unlawful stop\u2014it was not based on any information acquired from the taking of defendant\u2019s identification and would have occurred even in the absence of the stop of defendant. Finally, we think it particularly significant that, without prompting of any kind from the officers, defendant volunteered the statements which are the evidence at issue. … Immediately after seeing the drugs that were discovered in the vehicle, defendant made the unsolicited statement that the drugs were his. The unsolicited nature of the statement, taken together with the other intervening circumstances, convinces us that the evidence at issue was sufficiently attenuated from the unlawful stop. Further, because the chain of causation between the un-Mirandized statements and the unlawful seizure was too attenuated to justify suppression, a priori the connection between the subsequent Mirandized statement was as well. Accordingly, we conclude that the state met its burden to show that both statements were so tenuously related to the unlawful conduct that suppression was not required.<\/p><\/blockquote>\n

Where the testimony was in conflict as to whether defendant consented because of a promise made to him, the trial court erred in not making written findings on the conflict, so the case is remanded for a hearing. State v. Neal<\/a>, 2011 N.C. App. LEXIS 642 (April 5, 2011).*<\/p>\n

The record supports the district court\u2019s finding of consent to search. United States v. Gardner<\/a>, 422 Fed. Appx. 245 (4th Cir. 2011) (unpublished).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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