Telling the defendant he was free to go, then asking for consent to search his car, taken over by a second officer, was a continuation of the stop and made the consent invalid. State v. Alvarez, 234 Ore. App. 544, 228 P.3d 683 (2010):
The check came back clear. Boyd walked back to defendant’s car, returned defendant’s documents, gave defendant a warning for not having license plates, told defendant that he was “free to leave,” and stepped back from the vehicle. At that point, the “forward-facing red and blue lights” on Boyd’s police car had been turned off and nothing “block[ed] [defendant’s] pathway or his ability to leave the scene.”
“[A] few seconds” after telling defendant that he was free to go, Boyd asked defendant, in a “relaxed” manner, for his consent to search the car and if he “[had] anything with you that [Boyd] need[ed] to know about.” Defendant asked why a search was necessary. McGladrey, who had been watching Boyd and defendant from his position behind defendant’s car, then approached the driver’s side and “[took] over the discussion,” while Boyd “stepped back” but remained on the scene behind defendant’s car. In a “calm and professional” manner, McGladrey answered defendant’s question by telling him that there was “a high incidence of *** drug use and trafficking in [the] area.” He then
“pointed out the fact that there were no license plates on the vehicle. Uh, it was, it was night. It was dark outside. Um, it was basically suspicious activity. And I asked [defendant] if he could understand that from our perspective, from our position. That, uh, we’re a little concerned about, uh, his activity that night. And I asked if he’d be willing to let us search the vehicle for those reasons[.]”
The factual scenario in this case is not materially different from the one in Toevs. Here, as in Toevs, defendant was lawfully stopped for a traffic infraction and, as in Toevs, the officer returned defendant’s documents, told defendant that he was free to go, and then immediately asked for consent to search defendant’s vehicle. And, just as the back-up officer in Toevs interrupted the conversation between the first officer and the defendant and pressured the defendant in that case to consent, here, McGladrey, the back-up officer, “[took] over” the discussion between defendant and Boyd, informed defendant that he appeared “suspicious,” explained that defendant was in a high crime area at night, and asked a second time for defendant’s consent. That “continuous show of police authority,” id. at 536-37, constitutes conduct “significantly beyond that accepted in ordinary social intercourse,” Holmes, 311 Ore. at 410, and served to “negate” Boyd’s statement that defendant was free to go. Moreover, nothing in Toevs indicates that the defendant’s path was blocked in that case, and the court did not consider that fact in its analysis. Further, as in Toevs, the encounter occurred after a traffic stop and, as the Supreme Court has recently explained, in such situations, a person’s belief that he or she is not free to leave the scene is inherently more reasonable than it is in other types of citizen-police encounters. State v. Rodgers/Kirkeby, 347 Ore. 610, 623, ___ P3d ___ (2010). Thus, we conclude that defendant was stopped, for purposes of Article I, section 9, when the officers asked for his consent.
Apparently ganging up on the defendant changes the dynamic. Compare State v. Deneen, 234 Ore. App. 582, 228 P.3d 680 (2010) noting Alveraz decided the same date, holding that one officer was not coercive:
Here, however, Gandy’s request to speak with defendant did not involve a continuous show of authority of the type that occurred in Toevs. In contrast to the officers’ immediate and repeated requests for consent to search in Toevs, Gandy’s conversation with defendant was low-key and casual. After defendant began pedaling away at the conclusion of the traffic stop, Gandy asked if he could speak with defendant again, a request that would be perceived as nonoffensive conduct if it occurred between ordinary citizens. The previous stop for a traffic violation does not change that analysis: Gandy had said that defendant was free to go at the conclusion of that stop, and Gandy’s subsequent conduct did not negate that statement.
The conversation that followed Gandy’s request to speak with defendant again was similar to that in State v. Bretches, 225 Ore. App. 602, 604, 202 P3d 883, rev den, 346 Ore. 361, 211 P.3d 930 (2009). There, the defendant had been stopped for traffic infractions. After being told that he was free to go, the defendant stood and continued to converse with the police officer. During that conversation, the officer asked if the defendant had anything illegal, and the defendant acknowledged possessing marijuana and consented to a search of his person and his truck. Id. Rejecting the defendant’s argument that he had been illegally stopped, we explained that, despite the lack of a break between the statement that the defendant was free to go and the continuation of the conversation, other factors weighed against the existence of a stop. Id. at 608. The defendant was questioned by only one officer, not in a tag-team fashion, and did not face immediate and repeated requests for consent to search that would prevent him from driving away. We emphasized that the defendant “was not subjected to multiple requests to search, never refused consent, and, when asked, never denied that he had drugs on him” and that the officer did not engage in physical conduct that would unlawfully effect or extend a traffic stop. Id. at 609.
Here, likewise, defendant was questioned by only one officer, Gandy, who did not engage in any physical control over defendant’s movements or press defendant with repeated requests for consent to a search. …
