OR: Detention at gunpoint wasn’t attenuated from statement

Defendant’s stop and detention was with a show of force, and his statement wasn’t attenuated from his de facto arrest. Suppression order affirmed. State v. Pichardo, 360 Ore. 754 (Jan. 20, 2017), aff’g 275 Ore. App. 49, 364 P.3d 1 (2015) (posted here):

In our view, the dispositive factor in this case is the nature of the officers’ conduct during the stop. This was not a case like Unger where the officer went to the back of the defendant’s house, knocked on the door, identified himself as “Kevin ***with the sheriff’s office,” and explained that there had been a complaint about the house, which he was investigating. 356 Ore. at 62. Nor is it a case like State v. Lorenzo, 356 Ore. 134, 335 P3d 821 (2014), where the officer went to the defendant’s apartment to check on the defendant’s welfare, knocked on the defendant’s bedroom door, and said, “Police, Jeff, are you okay?” Id. at 137. Instead, in this case, within 10 seconds after Hamilton got into defendant’s car, two police cars with their overhead lights flashing surrounded defendant’s car and blocked it from moving. Three officers took Hamilton out of defendant’s car at gunpoint, while the fourth officer (Long) approached defendant and directed him to remain in the car with his hands on the wheel until Hamilton had been placed under arrest. Long’s request for consent both extended the stop unconstitutionally and followed immediately on the officers’ show of force.

Given that show of force, we are not persuaded that defendant’s consent, while voluntary, was sufficient to attenuate the taint of the illegal extension of the stop. Cf. Unger, 356 Ore. at 73 (distinguishing exploitation from voluntariness). As we explained in Musser,

“Police obviously need reasonable leeway to investigate and prevent crimes, and monitoring locations where criminal activity frequently occurs *** is part of good police work. But police are not authorized to detain and question citizens merely to ‘make sure they are not doing anything wrong.'”

356 Ore. at 158-59. What occurred here was not substantially different. In this case, Long extended the stop, not to ask a question that was reasonably related to the stop but to ask an unrelated question about other criminal conduct for which he had no reasonable suspicion. Given that act and the officers’ show of force, we conclude, as we did in Musser, that defendant’s consent was not sufficient to attenuate the taint of the illegality.

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