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State v. Hemenway

Summarized by: 

Date Filed: 01-10-2013
Case #: S059392
Balmer, C.J. (Majority); Landau, J. (Concurring); and Walters, J. (Dissenting) in which De Muniz, S.J. joined.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/S059085.pdf

Evidence: The Supreme Court disavowed the minimum factual nexus test in "State v. Hall" because of the test's uneven interpretation throughout the state and established a new test. Once the defendant established there was an illegal stop and challenged his consent to search, the state shall demonstrate: 1) the consent was voluntary and; 2) that the consent was not due to the illegal stop.

On review from the Court of Appeals, which found that the Defendant’s consent to search were not attenuated from the police officer’s illegal stop and therefore the evidence should be suppressed. Two police officers were called to the Defendant’s residence. The Defendant asked if he could smoke a cigarette. The officer replied that he could, provided he searched the Defendant first. The Defendant agreed to the search and the officer found a mint tin. The officer asked for and was granted permission to open the tin where he found a methamphetamine pipe and a bag which the officer believed contained methamphetamine residue. The Defendant argued that he was “unlawfully stopped” when the officer began to converse with him and that any search after that point was an illegal seizure because the officers exploited an unlawful stop. The State argued that the Defendant was not unlawfully stopped and that any search that the Defendant consented to was legal. The Supreme Court disavowed the minimum factual nexus test in “State v. Hall” because of the test’s uneven interpretation throughout the state and established a new test. Once the defendant established there was an illegal stop and challenged his consent to search, the state shall demonstrate: 1) the consent was voluntary and; 2) that the consent was not due to the illegal stop. Justice Landau concurred opining that the Court should review Article I, section 9 of the Oregon Constitution. Justice Walters and Senior Judge De Muniz dissented arguing that the majority ignored stare decisis and are jeopardized numerous cases relied on by “Hall.” Reversed; Judgment of the circuit court is affirmed.