Oregon Appellate Court - May 21, 2014
by: Abassos and Samantha Robell • May 22, 2014 • no comments
Consent Given in Response to a Stop Extension Does Not Create Attenuation
Consent given in response to an officer’s question that illegally extends a stop does not attenuate the search from the illegal extension. Police who question defendant, during a stop, about unrelated activities without reasonable suspicion of criminal activity have unlawfully extended the stop. When those questions elicit consent, the consent will not cure the illegal extension. Here, the police stopped defendant to arrest a known fugitive in defendant’s car and discovered during the stop that defendant had no driver’s license. The police then asked defendant for consent to search for drugs, defendant consented to the search and admitted possessing heroin. The court holds that the unlawful extension of a stop is properly viewed as the source of defendants’ consent and admissions and physical evidence. Reversed and remanded. State v. Pichardo, 263 Or App ___ (May 2014). Preservation – Right to Counsel
Defendant’s argument to the trial court that he did not waive his right to counsel did not preserve his appellate argument that officers did not properly advise him regarding his right to counsel. “At the suppression hearing, defendant’s argument focused on whether he had told the officers that he no longer wanted an attorney. He never argued separately that, even if he had told the officers that he no longer wanted an attorney, that statement did not constitute a valid waiver because the officers did not inform him of his ‘right to private consultation.’” Affirmed. State v. Hernandez, 263 Or App ___ (May 2014).
Walking Stops May Not Be Extended; Just Like Vehicle Stops
“[W]hen a person is approached by a police officer—whether the person is in an automobile, on a bicycle, or on foot—for committing a noncriminal traffic violation, and the police officer and the person know that is the basis of the stop, then the officer who has approached the person must proceed to process the traffic violation, and may not launch an investigation into unrelated matters unless the inquiries are justified by reasonable suspicion of the unrelated matter, the inquiry occurred during an unavoidable lull in the citation-writing process, or some exception to the warrant requirement applies.” Here, the defendant was confronted for jay-walking and the officers suspected defendant was in a gang. The court rules that the police officer had no reasonable suspicion that defendant posed a risk to officer safety, and therefore had no reason to extend the scope of the stop by inquiring about gun possession. Reversed and remanded. State v. Jimenez, 263 Or App ___ (May 2014).
Attorney Contribution Orders Are Judgments that Start the 30 Day Appellate Clock
An order for a court-appointed attorney contribution is a limited judgment from a separate and distinct proceeding that starts the 30 day time limit for appeals. See State v. Shank. Affirmed. State v. Mannix, 263 Or App ___ (May 2014).
No Show of Authority when Defendant Consented to a Records Check
It was not a show of authority, and therefore not a stop, when defendant consented to a records check during a casual encounter, and the police retained the defendant’s identification briefly for the check. Here, defendant had fallen asleep behind the wheel of a parked car when police woke him, inquired about the smell of alcohol on his breath, and asked in a casual tone for defendant’s identification. The court found “that a reasonable person would not have felt that the officer was exercising his authority to significantly restrain” defendant. Affirmed. J. Duncan dissents, stating that the police officer did in fact initiate a traffic stop and, in any case, a reasonable person would have believed the officer initiated a traffic stop. State v. Beasley, 263 Or App ___ (May 2014).
