State v. DeJong

Under Johnson, if the defendant establishes a factual nexus between the challenged evidence and the unlawful seizure the burden shifts to the state to establish that the challenged evidence was not tainted by the unlawful police conduct.

Defendant appealed the lower court’s ruling denying her motion to suppress evidence that led to her conviction of unlawful delivery of methamphetamine. Defendant assigned error to lower court’s denial of her motion to suppress evidence on grounds that the evidence obtained during a warranted search was tainted by police misconduct preceding the warranted search. Defendant argued that the burden-shifting formula set out in Johnson be overturned. The State responded by asking the court to affirm the method set forth in Johnson and to require the Defendant prove a but-for relationship between the challenged evidence and the proceeding police misconduct. Under Johnson, if the Defendant establishes a factual nexus between the challenged evidence and the unlawful seizure the burden shifts to the state to establish that the challenged evidence was not tainted by the unlawful police conduct. The Court denied overturning Johnson and rejected the State’s but for application. The Court reasoned that the burden-shifting formula was consistent with Oregon’s exclusionary rule and did not burden the Defendant’s right to be free from the adverse use of unlawfully obtained evidence. The Court explained that the burden placed on the Defendant to establish a factual nexus is minimal and a low threshold to meet. The Court then found that the Defendant met that standard. Reversed and remanded.