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2009 Oregon Court of Appeals Upholds Protection Against Unlawful Search and Seizure


Every day in Oregon police officers have encounters with drivers and passengers of vehicles during routine traffic stops. Often the police will develop a suspicion that the stopped drivers or passengers have drugs in their possession either in the vehicle, on their persons or in their belongings (backpacks, suitcases etc). The police officers may try various tactics to get people to give permission to search to search the vehicle, their property or their persons for drugs.

There are State and Federal constitutional protections of a person’s right to privacy – the right to be left alone – including the right to be free from unreasonable searches and seizures. If the police violate those rights the State cannot use whatever they find as evidence in court.

On December 9, 2009, the Oregon Court of Appeals issued its decision in State v. Mathis, which was a case which involved a traffic stop that turned into a drug investigation. In that case, the police violated the passenger’s right to not have her person seized and the drugs the police found in her purse were not allowed into evidence because her consent to the search was given in the during an unlawful seizure. Since the drugs were not allowed into evidence, there was no evidence to convict her of a drug possession crime.

The defendant was a passenger in a car stopped by the police in Salem. Officer Simons initiated the stop after he observed the driver commit several traffic violations. Ultimately, Simons arrested the driver for driving under the influence of intoxicants. Meanwhile, the passenger remained in the car. She was not ordered out of the car nor told to remain in the car.

Other officers arrived, and one of them tried to determine if the passenger was impaired by drugs. He asked her to get out of the car. Although the passenger did not appear to be under the influence of controlled substances, Banks was “curious” to see if the passenger possessed any illegal drugs on her and asked her if she had any drugs. The passenger replied that she did not. Banks then asked permission to frisk the passenger. She told Officer Banks that she did not want to be touched, but turned out her pockets to show Banks their contents. At that point, Banks decided that he would not let her go until he determined whether or not she possessed drugs.

Banks next requested permission to search her purse. Without responding, the passenger started to rifle through her purse. Banks, fearing that she may have had a weapon in her purse, told her to stop and asked again if he could search her purse. The passenger said, “[N]o.” Banks then asked her, “If I call a drug dog here[,] is he going to alert on your purse?” The passenger told Banks to “[c]all a drug dog.”

Banks arranged to have a drug detection dog brought to the scene from The Dalles. He told the passenger that a drug dog was en route, but did not tell her how long it would take to arrive. Banks then told her that, “if she had a small amount of drugs in her purse and if she was cooperative and provided them to us[,] that she would be treated more than fair.” The passenger said “okay,” handed her purse to Banks, said that she thought she had some methamphetamine in her purse. Banks found a small amount of methamphetamine in her wallet.

The Court of Appeals said that Officer Banks’ search of the passenger’s purse was unlawful. His conduct of informing the passenger that a drug dog was on its way was a show of authority such that any reasonable person would believe that he or she was not free to leave. Accordingly, defendant had been unlawfully “seized” for purposes of Article I, section 9, of the Oregon Constitution by the time that she handed her purse to Officer Banks and indicated that there was methamphetamine inside.

Drug charges are serious matters in Oregon. Consult with an experienced Portland Criminal Attorney before you make any decisions about pleading guilty to a drug crime charge.

By James F. O’Rourke Jr.

The post 2009 Oregon Court of Appeals Upholds Protection Against Unlawful Search and Seizure appeared first on JFO Law.

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