{"id":3631,"date":"2010-03-24T05:42:49","date_gmt":"2009-12-14T02:01:59","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2009-12-13T19:03:10","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=3631","title":{"rendered":"OR: Telling the defendant a drug dog was coming meant to him he was detained"},"content":{"rendered":"

Telling the defendant that a drug dog was coming, it was apparent that the defendant would not have felt free to leave, so he was detained. State v. Mathis<\/a>, 232 Ore. App. 286, 222 P.3d 39 (2009):<\/p>\n

In the totality of those circumstances, after Banks told defendant that a drug dog was on its way, no objectively reasonable person in defendant’s position would have believed that she was free to leave pending the drug dog’s arrival. See, e.g., Hall, 339 Ore. at 19 (concluding that “it [is] difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check”). Regardless of the imprecision and uncertainty inherent at the margins of the Holmes formulation, the totality of Banks’s conduct so transcended “ordinary social intercourse,” Holmes, 311 Ore. at 410, as to unambiguously communicate to defendant that a search was bound to occur and that she had no choice in the matter. See State v. Dahl, 323 Ore. 199, 207-08, 915 P2d 979 (1996) (police order to the defendant to come out of his house with his hands up constituted a show of authority, and an unlawful seizure under Article I, section 9, in that it effectively “deprived [the] defendant of any choice in the matter”); State v. Shaw, 230 Ore. App 257, 263, 215 P3d 105 (2009) (officer’s request that the defendant come over and speak with him was not a stop where officer did not engage in a show of authority “that would have indicated to defendant that he had no choice but to talk to him”).<\/p><\/blockquote>\n

A black drawstring bag found under the seat of defendant\u2019s car that had been lawfully impounded could be inventoried under the local inventory policy, an ordinance. State v. Stone<\/a>, 232 Ore. App. 358, 222 P.3d 714 (2009).*<\/p>\n

Defendant\u2019s stop was potentially unlawful, and the trial court failed to make a specific finding on the question of whether he was subjectively free to leave when he consented, so a remand was required. State v. Hemenway<\/a>, 2009 Ore. App. LEXIS 1954 (December 9, 2009).*<\/p>\n","protected":false},"excerpt":{"rendered":"

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