OR: “[J]ust keep your hands where I can see them” is a seizure

“[J]ust keep your hands where I can see them” is a seizure under the Oregon Constitution. State v. Soto-Navarro, 309 Ore. App. 218 (Feb. 10, 2021):

“[J]ust keep your hands where I can see them,” Officer Leininger ordered defendant as he stood next to her car door armed and in uniform, his patrol car with its lights flashing not far behind, his partner, Deputy Gravel, at the driver’s door of the Volkswagen Jetta in which defendant had been riding on the passenger side. She complied. Was defendant seized for purposes of Article I, section 9, of the Oregon Constitution?

We took this matter into full court to consider that question, a question we answer yes. That answer, combined with the Supreme Court’s recent rejection of our longstanding Article I, section 9, “unavoidable lull” doctrine, in State v. Arreola-Botello, 365 Ore. 695, 451 P3d 939 (2019), means that the evidence supporting the conviction that defendant challenges on appeal should have been suppressed. Because the trial court, correctly applying the unavoidable lull doctrine later displaced by Arreola-Botello, concluded otherwise, we reverse and remand.

In a stop so pretextual the pretext got lost, Gravel and Leininger pulled over the Jetta in which defendant was a passenger. Gravel and Leininger were on a “street crimes mission” that night, “looking for narcotics and guns, and that kind of thing in the Cornelius area.” As “part of the mission,” they “had a dog attached to us to come to our traffic stops.”

See Techdirt: Oregon Court: A Stop So Pretexual Cops Forgot About The Pretext Is A Rights Violation by Tim Cushing