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State v. Kinkade

Summarized by: 

Date Filed: 01-05-2012
Case #: A144173
Schuman, P.J. for the Court; Wollheim, J.; & Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/A144173.pdf

Criminal Procedure: Under State v. Ashbaugh, a seizure occurs when law enforcement intentionally and significantly restricts an individual’s liberty and under the totality of the circumstances that person believes he lost his liberty.

Defendant was approached by a police officer that requested, and was granted, a patdown of his person. Prior to his drug related conviction, defendant argued that the drug paraphernalia found in his pocket ought to be suppressed because the police officer illegally requested to search him without reasonable suspicion, or, alternatively, that he was illegally seized during the officer’s patdown. Like the trial court, the Court of Appeals concluded that under State v. Ashbaugh the defendant was not seized. Under Ashbaugh a seizure occurred when, under the totality of the circumstances, law enforcement intentionally and significantly restricted an individual’s liberty such that the person believed he lost his liberty. In the present scenario, the defendant cannot point to any show of authority used by the officer that would make a reasonable person believe their liberty was restrained. Moreover, under Ashbaugh a weapons patdown, like that requested by the officer, was only a “mere conversation” and not an illegal seizure Lastly, the defendant consented and did not withdraw his consent during the patdown. Affirmed.