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What is a Search: Under Article I, Section 9, a search occurs when:
A government agent intrudes upon a person's protected privacy interests.
State v. Wacker. "No search occurs unless the police invade a protected privacy interest."
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What is a Search: In determining whether a "search" occurred, two issues are present:
1. Does a constitutionally protected privacy interests exist in the area or object? and
2. Did the police conduct intrude upon that interest?
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What is a Search: Does a privacy interest exist? State vs Morton.
A defendant asserting a protected privacy interest in property that was searched or seized must have a personal interest in the property.
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What is a Search: The privacy interests protected from unreasonable searches under Article I, Section 9, are defined by an objective test of:
An objective test of whether the government's conduct would significantly impair an individual's interest in freedom from scrutiny, i.e., his privacy.
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Consent search: a valid search may be made without a warrant and without probable cause if:
The person to be searched or the person in control of the property to be searched gives voluntary consent for the search.
Article I, Section 9, is more restrictive than the fourth amendment. It requires that the person who provides the consent to have actual rather than apparent authority.
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Consent Searches: Under the consent exception to the search warrant requirement, the state must prove by a:
A preponderance of the evidence that someone having the authority to do so voluntarily gave the police consent to search the defendant's person or property.
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Third Party Consent: The Fourth Amendment standard for a valid third-party consent includes:
"Apparent authority" - a reasonable belief by the government agent that the person giving consent has authority to do so, even if the person actually did not have authority to give consent.
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Third Party Consent: Under the Fourth Amendment, if a cotenant or a residence is present and objects to the entry:
The other cotenant cannot override that objection, and any entry cannot be justified as reasonable as to the nonconsenting resident.
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Third Party Consent: an officer, having received consent, is not required to:
First contact other cotenants who might object but otherwise are absent, asleep, or unavailable.
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Third Party Consent: Common authority is:
Of course, not to be implied from the mere property interest a third party has in the property. The authority which justifies the third party consent does not rest upon the law of property, with its attendant historical and legal refinements, but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the cohabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common are to be searched.
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What is a Seizure: a Seizure of a person occurs when there is:
A significant interference with an individual's liberty of movement.
A person is not "stopped" or "seized" unless police engage in conduct significantly beyond that accepted in ordinary social contact.
An arrest and a stop is a seizure.
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What is a Seizure: The test for determining whether a Seizure of a person has occurred is set forth in State v. Holmes:
We hold that a 'seizure' of a person occurs under Article I, Section 9, of the Oregon Constitution (a) if a law enforcement officer intentionally and significantly restricts, interfers with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.
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What is a Seizure: The Court of Appeals has held that an officer will effectuate an Article I, Section 9, Seizure under the following circumstances:
1. The officer communicates a belief that the citizen has committed a crime.
2. The officer communicates that law enforcement is currently conducting a criminal investigation and then asks the citizen for his/her identification.
3. The officer asks a person if he/she is on probation and then asks for his/her identification.
4. The officer asks or orders a passenger out of a stopped vehicle and makes a criminal inquiry without first informing passenger that he/she was free to leave or the reason of the contact.
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In State vs Campbell, the court clarified that "the privacy protected by Article I, Section 9, is:
Not the privacy that one reasonably expects but the privacy to which one has a right.
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In State vs Tanner suppression is warranted only if:
Police invade the personal rights of the person who seeks suppression; the violation of someone else's rights is not enough.
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What is a Seizure - For example, the Court of Appeals has held that an officer will effectuate an Article I, section 9, seizure under the following circumstances:
Because the officer's inquiry would cause a reasonable person to believe he/she was a subject to a pending criminal investigation and, as an automatic result, not free to leave.
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