304 P.3d 759
Or. Ct. App.2013Background
- Defendant was a passenger in a pickup stopped by police for an obstructed license plate in Salem after midnight.
- Officer Sommer observed driver nervous, vehicle clutter, and asked questions; backup was summoned after a checkout.
- Driver revealed knowledge of being stopped; driver and two other occupants stated they did not know anyone at the complex.
- Officer obtained driver’s license, learned of a prior burglary conviction; consent to search was sought and granted by the driver.
- Defendant was asked to step out; he refused a pat-down but cooperated; defendant moved toward the coat to retrieve it, prompting concern about weapons.
- A coat retrieved by another officer revealed marijuana; methamphetamine was later found in the same pocket; a separate bag search recovered a scale with white powder.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether defendant was seized under Article I, section 9 during the stop. | State argues no seizure occurred as a passenger not subjected to show of authority. | Knapp/ Presley style argument that passenger is seized when the stop is extended unlawfully to search. | No seizure of defendant; passengers not seized absent a show of authority. |
Key Cases Cited
- State v. Ashbaugh, 349 Or. 297 (Or. 2010) (seizure defined by show of authority or restraint on liberty)
- State v. Rodgers-Kirkeby, 347 Or. 610 (Or. 2010) (passenger rights during lawful traffic stop; extension issues)
- State v. Thompkin, 341 Or. 368 (Or. 2006) (passengers may not be seized without show of authority)
- State v. Knapp, 253 Or. App. 151 (Or. App. 2012) (defendant passenger may challenge unlawful extension when independently seized)
- State v. Presley, 181 Or. App. 296 (Or. App. 2002) (stop of a driver can implicate a passenger)
- State v. Stearns, 196 Or. App. 272 (Or. App. 2004) (unrelated to possession of property inventoried; limitations on passenger seizure)