State v. Bertsch
251 Or. App. 128
Or. Ct. App.2012Background
- Informant reported Kara Williams frequenting two Bend Riverside apartments involved in drugs; sergeant surveilled in plainclothes conducting observation.
- Defendant and Sanders left the apartment in defendant's car; sergeant followed and requested a traffic stop for a right-of-way infraction to identify Kara Williams.
- Two marked officers stopped the vehicle; defendant's license and Sanders' warrant status were checked; defendant not found to be Williams.
- Husband, after determining not Williams, approached defendant and discussed apartment-area drug activity; asked about probation; defendant denied drugs or weapons.
- Husband sought consent to search; after initial discussion, defendant consented to a search; meth pipe found in defendant’s purse during the search; defendant allowed to leave.
- Defendant moved to suppress evidence as the product of an unlawful extension of the stop; trial court denied; on appeal, court held suppression appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the stop was unlawfully extended beyond the traffic violation | State argues extension was supported by reasonable suspicion. | Sercombe contends no reasonable suspicion; extension invalid. | Unlawful extension; suppression required |
| Whether defendant's consent was attenuated from the illegality | State asserts attenuated consent due to rights advisement and intervening circumstances. | Sercombe contends taint from unlawful stop remained; consent not attenuated. | Consent not attenuated; evidence suppressed |
| Does informing of the right to refuse consent sever the taint in this context | State relies on Hinds that right to refuse may mitigate taint. | Shirk and related cases show it is not automatic attenuation. | Informing rights alone insufficient to purge taint |
Key Cases Cited
- State v. Huggett, 228 Or. App. 569 (Or. App. 2009) (extension requires reasonable suspicion)
- State v. Rutledge, 243 Or. App. 603 (Or. App. 2011) (reasonable suspicion standard for detentions)
- State v. Ayles, 348 Or. 622 (Or. 2010) (minimal factual nexus and attenuation analysis)
- State v. Rodgers/Kirkeby, 347 Or. 610 (Or. 2010) (minimal nexus and attenuation framework)
- State v. Hall, 339 Or. 7 (Or. 2005) (totality-of-circumstances attenuation test)
- State v. Shirk, 248 Or. App. 278 (Or. App. 2012) (rights advisement must be weighed with ongoing illegality)
- State v. Hinds, 225 Or. App. 470 (Or. App. 2009) (information of right to refuse may mitigate taint, not determinative)
- State v. Zumbrum, 221 Or. App. 362 (Or. App. 2008) (associational proximity without individualized suspicion insufficient)
- State v. Regnier, 229 Or. App. 525 (Or. App. 2009) (group participation vs individualized suspicion)