{"id":4023,"date":"2010-05-24T12:34:32","date_gmt":"2010-04-03T16:49:29","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2010-04-03T16:49:29","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=4023","title":{"rendered":"OR: Telling defendant he was free to go and back up officer asking for consent was unreasonable, but one officer OK"},"content":{"rendered":"

Telling the defendant he was free to go, then asking for consent to search his car, taken over by a second officer, was a continuation of the stop and made the consent invalid. State v. Alvarez<\/a>, 234 Ore. App. 544, 228 P.3d 683 (2010):<\/p>\n

The check came back clear. Boyd walked back to defendant\u2019s car, returned defendant\u2019s documents, gave defendant a warning for not having license plates, told defendant that he was \u201cfree to leave,\u201d and stepped back from the vehicle. At that point, the \u201cforward-facing red and blue lights\u201d on Boyd\u2019s police car had been turned off and nothing \u201cblock[ed] [defendant\u2019s] pathway or his ability to leave the scene.\u201d<\/p>\n

\u201c[A] few seconds\u201d after telling defendant that he was free to go, Boyd asked defendant, in a \u201crelaxed\u201d manner, for his consent to search the car and if he \u201c[had] anything with you that [Boyd] need[ed] to know about.\u201d Defendant asked why a search was necessary. McGladrey, who had been watching Boyd and defendant from his position behind defendant\u2019s car, then approached the driver\u2019s side and \u201c[took] over the discussion,\u201d while Boyd \u201cstepped back\u201d but remained on the scene behind defendant\u2019s car. In a \u201ccalm and professional\u201d manner, McGladrey answered defendant\u2019s question by telling him that there was \u201ca high incidence of *** drug use and trafficking in [the] area.\u201d He then<\/p>\n

\u201cpointed out the fact that there were no license plates on the vehicle. Uh, it was, it was night. It was dark outside. Um, it was basically suspicious activity. And I asked [defendant] if he could understand that from our perspective, from our position. That, uh, we\u2019re a little concerned about, uh, his activity that night. And I asked if he\u2019d be willing to let us search the vehicle for those reasons[.]\u201d<\/p><\/blockquote>\n<\/blockquote>\n

The factual scenario in this case is not materially different from the one in Toevs<\/a>. Here, as in Toevs<\/a>, defendant was lawfully stopped for a traffic infraction and, as in Toevs<\/a>, the officer returned defendant\u2019s documents, told defendant that he was free to go, and then immediately asked for consent to search defendant\u2019s vehicle. And, just as the back-up officer in Toevs<\/a> interrupted the conversation between the first officer and the defendant and pressured the defendant in that case to consent, here, McGladrey, the back-up officer, \u201c[took] over\u201d the discussion between defendant and Boyd, informed defendant that he appeared \u201csuspicious,\u201d explained that defendant was in a high crime area at night, and asked a second time for defendant\u2019s consent. That \u201ccontinuous show of police authority,\u201d id. at 536-37, constitutes conduct \u201csignificantly beyond that accepted in ordinary social intercourse,\u201d Holmes, 311 Ore. at 410, and served to \u201cnegate\u201d Boyd\u2019s statement that defendant was free to go. Moreover, nothing in Toevs indicates that the defendant\u2019s path was blocked in that case, and the court did not consider that fact in its analysis. Further, as in Toevs, the encounter occurred after a traffic stop and, as the Supreme Court has recently explained, in such situations, a person\u2019s belief that he or she is not free to leave the scene is inherently more reasonable than it is in other types of citizen-police encounters. State v. Rodgers\/Kirkeby, 347 Ore. 610, 623, ___ P3d ___ (2010). Thus, we conclude that defendant was stopped, for purposes of Article I, section 9, when the officers asked for his consent.<\/p><\/blockquote>\n

Apparently ganging up on the defendant changes the dynamic. Compare State v. Deneen<\/a>, 234 Ore. App. 582, 228 P.3d 680 (2010) noting Alveraz decided the same date, holding that one officer was not coercive:<\/p>\n

Here, however, Gandy’s request to speak with defendant did not involve a continuous show of authority of the type that occurred in Toevs<\/a>. In contrast to the officers’ immediate and repeated requests for consent to search in Toevs<\/a>, Gandy’s conversation with defendant was low-key and casual. After defendant began pedaling away at the conclusion of the traffic stop, Gandy asked if he could speak with defendant again, a request that would be perceived as nonoffensive conduct if it occurred between ordinary citizens. The previous stop for a traffic violation does not change that analysis: Gandy had said that defendant was free to go at the conclusion of that stop, and Gandy’s subsequent conduct did not negate that statement.<\/p>\n

The conversation that followed Gandy’s request to speak with defendant again was similar to that in State v. Bretches<\/a>, 225 Ore. App. 602, 604, 202 P3d 883, rev den, 346 Ore. 361, 211 P.3d 930 (2009). There, the defendant had been stopped for traffic infractions. After being told that he was free to go, the defendant stood and continued to converse with the police officer. During that conversation, the officer asked if the defendant had anything illegal, and the defendant acknowledged possessing marijuana and consented to a search of his person and his truck. Id. Rejecting the defendant’s argument that he had been illegally stopped, we explained that, despite the lack of a break between the statement that the defendant was free to go and the continuation of the conversation, other factors weighed against the existence of a stop. Id. at 608. The defendant was questioned by only one officer, not in a tag-team fashion, and did not face immediate and repeated requests for consent to search that would prevent him from driving away. We emphasized that the defendant “was not subjected to multiple requests to search, never refused consent, and, when asked, never denied that he had drugs on him” and that the officer did not engage in physical conduct that would unlawfully effect or extend a traffic stop. Id. at 609.<\/p>\n

Here, likewise, defendant was questioned by only one officer, Gandy, who did not engage in any physical control over defendant’s movements or press defendant with repeated requests for consent to a search. … <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

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