{"id":2818,"date":"2009-02-17T10:03:16","date_gmt":"2008-12-29T08:54:55","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2008-12-28T19:02:27","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=2818","title":{"rendered":"OR: Confronting person leaving drug house was a stop without RS"},"content":{"rendered":"

Officer’s statement to the defendant who was coming out of a drug house that if she surrendered the dope she would not be arrested (but cited) was tantamount to an arrest because no reasonable person would feel free to leave. Since there was no reasonable suspicion, the stop was unreasonable. State v. Allen<\/a>, 224 Ore. App. 524, 198 P.3d 466 (2008):<\/p>\n

This case is akin to Terhear\/Goemmel, not Baker. Brown’s statements to defendant that he “knew she was coming from a dope house” and “that if she was honest and gave [him] the dope [he] would give her a citation” (emphasis added) are tantamount to the announcement in Terhear\/Goemmel that the officer had just seen defendant break the law. Indeed, as Brown candidly acknowledged, his statement implicitly conveyed to defendant that, by surrendering “the dope,” she could avoid arrest. That implied threat of arrest was–as the state does not dispute–unsupported by reasonable suspicion, much less by probable cause. Those circumstances stand in stark contrast to Baker, where the officer merely inquired whether the defendant had bought drugs.<\/p>\n

Here, as in Terhear\/Goemmel, “[a]n ordinary citizen, faced with such a statement by a uniformed police officer, would not believe that he or she was free to leave.” 142 Or App at 458. Rather, a person in defendant’s position “would reasonably believe that he or she was not free to go until the officer took some further action, such as issuing a citation or telling the individual that he or she could move on. Common experience and common sense admit no other answer.” Id.; see generally State v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991) (“The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself [or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”). Accordingly, defendant was seized when Brown told her that he “knew she was coming from a dope house” and “that if she was honest and gave [him] the dope [he] would give her a citation.”<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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