OR: During the “unavoidable lull” in a traffic stop, state constitution prohibits asking for consent without justification

During the “unavoidable lull” in a traffic stop, the state constitution prohibits asking for consent without further justification. State v. Arreola-Botello, 365 Ore. 695, 2019 Ore. LEXIS 794 (Nov. 15, 2019), aff’g 292 Ore. App. 214, 418 P.3d 785 (2018) (per curiam):

Here, the state argues that we should conclude that defendant’s Article I, section 9, rights were not violated because Faulkner’s request for consent to search defendant’s vehicle did not impose any restraint beyond the stop itself. To support that argument, the state makes two points. First, the state contends that the right to be free from unlawful seizure is a right that protects only the freedom of movement. Article I, section 9, protects at least the right to move freely, and we agree that our test to determine when a seizure has occurred is based on the degree to which an officer has interfered with an individual’s freedom of movement. For example, in Rodgers/Kirkeby, we stated that a person is seized when an officer “intentionally and significantly interferes with the person’s freedom of movement.” 347 Ore. at 621. However, the question here is not whether defendant was seized—he was. The question, rather, is whether the officer who seized defendant was limited by Article I, section 9, in the inquiries he could make during that seizure.