State v. Kuschnick

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Constitutional Law
  • Date Filed: 02-19-2015
  • Case #: A151805
  • Judge(s)/Court Below: Sercombe, P.J. for the Court; Hadlock, J., & Tookey, J.
  • Full Text Opinion

Even if officers lawfully extended a stop to investigate the passenger’s involvement in another crime, once that investigation end and the officers are prepared to give defendant his citation, the officers violated Article I, section 9, when they do not issue the citation and instead continued to seize defendant without justification.

Defendant appeals a conviction of delivery of methamphetamine, assigning error to the trial court’s denial of his motion to suppress evidence. The facts are as follows: Defendant was driving late at night, an officer stopped defendant’s car after observing a traffic violation, and, in the course of the stop, discovered that defendant was driving with a suspended license and that defendant’s passenger resembled a suspect in an unsolved identity theft. Ultimately, the officer, who was joined by another officer, could not find any information about the identity theft. The officer drafted a citation for the traffic violation but instead of giving the citation to defendant the officers stood on either side of the stopped car, directed defendant and the passenger to get out of the car to switch places, and asked defendant and the passenger each to consent to a pat down search. Defendant gave consent, and the search revealed brass knuckles, leading to defendant’s arrest for felon in possession of a restricted weapon, a search of his car, and, ultimately, after a warrant was obtained, a search of a bag. First, defendant argued that the officer unlawfully extended the stop when, instead of processing and issuing the citation, he investigated the identity theft case. Defendant argued that the officer knew that the defendant was not involved in the identity theft and thus lacked reasonable suspicion. The state responded that the officer had reasonable suspicion and Art. 1 Sec. 9 allows an officer to temporarily shift from investigating a driver’s traffic infraction to investigating a passenger’s criminal activity, when the officer has reasonable suspicion of criminal activity as to the passenger but not the driver. The court held that even if the officers lawfully extended the stop to investigate the passenger’s involvement in the identity theft, once that investigation ended and the officers were prepared to give defendant his citation, there was no basis for their continued seizure of defendant. Next, defendant argued that the unlawful conduct tainted the officers’ discovery of the subsequent evidence. The court held that because the state has not shown, under the totality of the circumstances, that defendant’s consent to search was only tenuously related to that misconduct, the illegality tainted that consent search and the subsequent searches of the car and the bag found therein. Reversed and remanded as to count 1 otherwise affirmed.

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