Retention of Property as a Stop
by: James Aaron • June 19, 2011 • no comments
One might suppose that it is difficult to argue that an interaction with police is a stop when an officer actually says, "You are free to leave." However, there are a number of circumstances where an officer's actions override that very explicit statement. One circumstance is when the officer retains the suspect's property without at least giving a receipt for it. This is most obvious in the case of a stop where the officer takes and retains the suspect's ID or driver's license. See, e.g. State v. Starr, 91 Or App 267 (1988). In such a situation, a reasonable person would infer that the officer is retaining the ID to conduct an investigation and the person cannot reasonably leave without it.
When it comes to other property, the case law is somewhat less clear and rather thin. The court suggests in State v. Hammond, 99 Or App 293 (1989) that retaining a fishing license does not extend a stop, since "a person does not need a fishing license to drive away." However, the court clarified in State v. Bailey, 143 Or App 285 (1996) that this was not a pronouncement of doctrine. In that case, the officer told the defendant he was free to leave, but retained his firearm. The court held that retaining this property, at least without providing a receipt for it, extended the stop. While it is certainly possible to drive away without a firearm, that is not the proper inquiry. The inquiry is whether a reasonable person in the circumstances would feel free to leave, notwithstanding the fact that the officer retained his/her property.
Since there is so little case law delineating particular types of property being retained, cases following these fact patterns will come down to an analysis of what property was retained and how the retention of that property would affect a reasonable person's beliefs about their freedom to leave. The case law as it stands seems separable into three general categories:
- Items, like a fishing license, that one would somewhat easily part with and that do not suggest an ongoing investigation
- Items, like a firearm, without which one could leave, but the retention of which suggests an ongoing investigation
- Items, like an ID, without which one cannot leave and the retention of which also suggests an ongoing investigation
Most items police would bother to retain would seem to fall under either the second or third category, meaning their retention elevates an encounter to a stop or extends it, despite statements to the contrary.
