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State v. Shirk

Summarized by: 

Date Filed: 02-23-2012
Case #: A142471
Ortega, P.J. for the Court; Wollheim, J.; and Sercombe, J.
Full Text Opinion: http://courts.oregon.gov/sites/Publications/A142471.pdf

Criminal Procedure: If consent for a search is acquired during an unlawful custodial interrogation, evidence from that search should be suppressed if there are no circumstances that attenuate the link between the consent and the interrogation.

Defendant was found in violation of a condition of her probation for endangering the welfare of a minor based on evidence found when the defendant consented to a search of her motel room. She appeals, arguing that the trial court erred for failing to suppress the evidence because her consent was a result of being unlawfully seized and subjected to an unlawful custodial interrogation. The police went to arrest defendant's boyfriend at their motel room. Upon searching him, they found a glass pipe with meth residue. Because defendant's baby was in the room, the police requested consent to search the room. The defendant denied consent and tried to close the door on them. Defendant was subsequently seized and handcuffed without Miranda warnings. She was then asked questions about drug use and was presented with a consent form, which she signed. The consent form had a provision explaining she could refuse to consent. The state asserts that she was lawfully seized and that her consent was sufficiently attenuated from the unlawful interrogation that suppression was not required. Alternatively, the state argues that the search was valid under the emergency aid exception. The Court disagreed, and found that the defendant was unlawfully seized because the police lacked probable cause to arrest her. Secondly, due to the unlawful seizure, the defendant’s consent to search was invalidated. Finally, the Court found that the facts of the case did not support the emergency aid exception to the warrant requirement for immediate entry because there was no evidence the baby was about to suffer immediate serious physical harm. Reversed and remanded.