State v. Kinkade
247 Or. App. 595
Or. Ct. App.2012Background
- Officer Roberts surveilled defendant for over an hour based on suspected drug activity but lacked reasonable suspicion to stop.
- Roberts approached defendant on a crosswalk, asked to talk, then requested consent to pat him down for weapons or contraband.
- Defendant consented; during the patdown, Roberts located a marijuana pipe in the pocket and later retrieved methamphetamine from a coin pocket.
- Defendant admitted to drug selling and consented to a search of nearby apartment, where packaging materials and drug paraphernalia were found.
- Defendant moved to suppress all evidence obtained after the patdown, arguing illegal seizure under Article I, section 9 of the Oregon Constitution.
- Trial court denied suppression; defendant appealed, arguing pre-patdown and during-patdown seizures; Ashbaugh decision issued after opening brief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was there a seizure when consent to pat down was requested? | Kinkade argues request to pat down without reasonable suspicion violated Article I, section 9. | Kinkade contends the encounter was an illegal stop and search. | Ashbaugh controls; not a seizure when consent to pat down was requested. |
| Was there a seizure during the patdown after consent was given and items were found? | If seized during patdown, suppression of evidence is required. | Consent persisted; no withdrawal or coercive restraint occurred. | No seizure during patdown; consent remained valid. |
| Does Ashbaugh govern whether the initial encounter was a seizure under Article I, section 9? | Ashbaugh shows such questions may constitute a seizure. | Ashbaugh supports treating the encounter as mere conversation unless show of authority. | Ashbaugh applies; initial consent request was not a seizure. |
Key Cases Cited
- State v. Ashbaugh, 349 Or. 297 (2010) (redefines seizure; eliminates subjective component; consent request not a seizure)
- State v. Hall, 339 Or. 7 (2005) (defines Article I, section 9 standards and history)
- State v. Holmes, 311 Or. 400 (1991) (seizure definition under Oregon Constitution)
- State v. Rodgers/Kirkeby, 347 Or. 610 (2010) (show of authority analysis in encounters)
- State v. Warner, 284 Or. 147 (1978) (risk/authority in encounters)
- Ashbaugh v. State, 349 Or. 297 (2010) (see above; used in current decision)