State v. Weaver
124 Or.App. 615, 1993 Ore. App. LEXIS 1877, 863 P.2d 1273 (1993)
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Rule of Law:
When a search begins unlawfully without a warrant or consent, and consent is subsequently obtained, the state bears the burden of proving which specific items of evidence were seized after consent was granted. Failure to meet this burden of proof will result in the suppression of all evidence seized during the continuous search.
Facts:
- Police officers conducted a compliance check at the defendant's secondhand business, which was regulated by a county ordinance.
- During the check, officers discovered that transfer forms for used firearms were missing, as required by state law.
- At approximately 1:00 p.m., the officers began searching for and seizing evidence from the business without a warrant or consent.
- The store manager telephoned the defendant, who owned the business.
- The defendant and his attorney met with an officer to discuss and negotiate the terms of a search.
- At 2:00 p.m., the defendant signed a written consent form authorizing a search limited to 'used firearms' and 'jewelry' along with 'corresponding paper work'.
Procedural Posture:
- The defendant was charged in a state trial court based on evidence seized from his business.
- The defendant filed a motion to suppress the evidence, arguing the search was unconstitutional.
- The trial court granted the defendant’s motion to suppress.
- The state, as the appellant, appealed the trial court's suppression order to the Court of Appeals of Oregon.
- The Court of Appeals affirmed the trial court's ruling in its initial opinion.
- The state then filed a motion for reconsideration with the Court of Appeals.
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Issue:
Does a defendant's subsequent consent to a search validate an entire search that began unlawfully before consent was given, where the state cannot prove which specific items were seized after consent was granted?
Opinions:
Majority - De Muniz, J.
No. A defendant's subsequent consent does not retroactively validate a search that was unlawful at its inception when the state fails to prove which evidence was seized after consent was lawfully obtained. The state has the burden of proving that the evidence it seeks to admit was seized lawfully, and in this case, it failed to do so. The trial court found as a matter of fact that the search and seizure began before the defendant signed the consent form. The state's record does not differentiate between evidence seized before consent was given at 2:00 p.m. and evidence seized after. This case is distinct from precedents like State v. Quinn and State v. Rodriguez, which apply when police exploit prior unlawful conduct to obtain consent for a subsequent search. Here, the evidence was seized during a single, continuous search that was unlawful from its start, and the state failed to meet its burden of proving which, if any, evidence was seized legally after consent was granted.
Dissenting - Edmonds, J.
Yes. A consent to search can be valid even if it is given after a search has begun; the proper analysis is whether the consent was voluntary under the totality of the circumstances. The majority creates a new, rigid rule that consent must always precede a search, which is not supported by precedent. The fact that the search began before consent was given is merely one factor to consider in determining voluntariness. Here, the defendant’s consent was negotiated by his attorney, which is strong evidence that it was voluntary. The constitutional protection against unreasonable searches can be waived at any time, and nothing prohibits such a waiver from applying retroactively. The case should be remanded for the trial court to apply the correct 'totality of the circumstances' test to determine if the consent was voluntary.
Analysis:
This decision solidifies the state's burden of proof in cases involving consent searches that begin prior to obtaining valid consent. It establishes a clear requirement for the prosecution to segregate evidence seized pre-consent from that seized post-consent. The ruling places a significant evidentiary burden on law enforcement to meticulously document the timeline of searches and seizures to avoid the suppression of all evidence. This holding distinguishes between exploiting prior illegality to obtain consent for a new search versus continuing an already illegal search after consent is granted, clarifying that the latter scenario requires the state to parse the evidence.
