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OR: When defendant shows "but for," burden shifts to state

By John Wesley Hall, Jr.

When defendant shows "but for," the burden shifts to the state to explain it away. Here they did. State v. Ashbaugh, 2008 Ore. App. LEXIS 1918 (December 31, 2008): In order to establish a "minimal factual nexus," the defendant must show that there is at least a "but for" relationship between the unlawful stop and the consent. Id. at 25. The burden then shifts to the state. If the state cannot establish "independence"--that is, that the evidence inevitably would have been discovered through the exercise of lawful procedures (such as a mandatory inventory policy), or that it was obtained not only as a result of the illegality, but also as the result of a chain of events that did not include an illegality (that is, an "independent source")--it must prove "attenuation...continue to full post

Full post as published by Fourth Amendment on January 04, 2009 (boomark / email).