OR: Officer’s actions toward defendant passenger would have indicated she was not free to leave at time of consent

On remand from State v. Singer, 349 Ore. 663, 249 P.3d 1281 (2011), the court concludes the defendant would not know she was free to leave and was thus detained when the officer directed her out of the car rather than the driver. [A passenger also has to communicate to the driver that he or she wants to leave, but societal understandings require that they stand by while the officer does whatever he is going to do.] State v. Singer, 245 Ore. App. 568, 262 P.3d 1172 (2011)*:

We conclude that Kirkpatrick’s conduct toward defendant would lead a reasonable person in defendant’s position to believe that she was the subject of a criminal investigation and, hence, that Kirkpatrick had seized defendant for purposes of Article I, section 9, before he requested consent to search her and her purse. Although the record does not establish that defendant knew that Kirkpatrick had requested her name and date of birth in order to run a warrant check on her, Kirkpatrick’s actions after completing the check would reasonably lead defendant to believe that she was the subject of an investigation. Rather than returning from the warrant check to speak with the driver, whose unlawful turn had led to the stop, Kirkpatrick went to the passenger side of the stopped car and asked defendant to get out of the car, which she did. Kirkpatrick then told her that he knew that she was on probation for a drug offense and asked her to remove her sunglasses, which she also did. Those actions by Kirkpatrick constituted a show of authority that would lead a reasonable person in defendant’s position to believe that Kirkpatrick had significantly restricted her freedom of movement. Therefore, under the test articulated in Ashbaugh, Kirkpatrick had seized defendant for purposes of Article I, section 9, before he asked her for consent to search her and her purse.

Where only one person testified to consent, the officer, how can the appellate court question the district court’s finding of voluntariness? United States v. Lopez, 445 Fed. Appx. 190 (11th Cir. 2011).*

No special showing of reliability of information from another officer is required; just knowledge. United States v. Johnson, 2011 U.S. Dist. LEXIS 107617 (N.D. Ill. September 20, 2011).*

The video raised sufficient question of the lawfulness of defendant’s detention that he was entitled to a jury instruction on that under Texas law. Hamal v. State, 352 S.W.3d 835 (Tex. App.—Ft. Worth 2011).*