Oregon Supreme Court 05-05-11

by: Abassos • May 4, 2011 • no comments

Read the full article for details about the following new cases:

• Protective Sweeps - Reasonable Suspicion of Danger

The Oregon Supreme Court finds that police officers were not justified in conducting a protective sweep of a house because the officers did not have reasonable suspicion that there was an immediate threat of physical injury. The Court addresses each relevant fact and finds that individually and as a whole they are too vague to support a protective sweep.

The officers went to a house to conduct a knock and talk based on information they receieved from unnamed informants that the house was a drug house and "wanted persons" were staying there. While in the house with the consent of the person who answered the door, the officers allegedly became concerned for their safety because defendant and another person walked out of the house without obeying an order to stop. They are stopped by an officer outside and are thereafter cooperative. The officers had been told by the person who answered the door that there was only one other person in the house. Such evidence does not amount to a reasonable suspicion of immediate danger:

• There was nothing in the record about the reliability or credibility of the informants.
• The fact that two people walked out of the house in a manner that "resembled" fleeing was at most suspicious, not indicative of danger.
• The fact that at least one more person was present than indicated by the person who answered the door was also not indicative of danger.
• The state's allegation that the house was "associated with" another house known as a drug house was not supported by articulable facts and, in any case, also would not indicate immediate danger.
• The state's allegation that the person who answered the door was "associated with" people who reside at a known drug house was also too vague since there was neither evidence that those other people were dangerous nor that they had ever been in the instant house.

Either alone or together such "facts" do not support a protective sweep. Thus, when the officer saw drugs in defendant's bedroom during the sweep, it did not fall under the plain view exception. And when the officer used that information during a suspicionless stop to gain consent to search from defendant, it was not a voluntary consent.

DeMuniz, Durham, Walters and Balmer in the majority. Kistler and Linder dissent. Gillette and Landau didn't participate in the decision. State v. Guggenmos