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OR: Refusal to consent cannot be considered in RS

By John Wesley Hall, Jr.

Defendant's refusal to permit officer who felt a circular tin and asked what was in it to search could not form the basis of reasonable suspicion. State v. Foland, 2008 Ore. App. LEXIS 1801 (December 24, 2008): A person's reaction to a request for consent to search is not sufficient as a matter of law to support an objectively reasonable belief of criminal activity. As here, where a person has the right to refuse consent, the "refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such a suspicion, however well founded, having been aroused merely on the basis of an assertion of one's constitutional rights, can play no part in creating probable cause for a search...continue to full post

Full post as published by Fourth Amendment on December 29, 2008 (boomark / email).