concluding that the defendant, who was asked following a completed traffic stop whether he possessed any weapons and would agree to permit a patdown, “had no way of knowing that [the] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the] investigation was not required to continue”
How later courts described this case
- concluding that the defendant, who was asked following a completed traffic stop whether he possessed any weapons and would agree to permit a patdown, “had no way of knowing that [the] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the] investigation was not required to continue”
- concluding, in Kirkeby, that when after an officer’s justification for traffic stop ended, the officer’s subsequent verbal inquires — a request for consent to conduct a patdown and request *210 for consent to search the contents of the defendant’s pockets — represented an unlawful continuation of the seizure
- explaining that evidence may be excluded where “a defendant’s [voluntary] consent was derived from, or was the product of, the prior police illegality” and concluding that consent given during unlawful extension of traffic stop was the product of that unlawful seizure (emphases added)
- explaining that the officers’ questions in both cases extended the stops because their questions occurred after the traffic stops had been completed, were unrelated to the stop, and were not inde- pendently justified
Written by the judges who cited it.
The opinion
GILLETTE, J.,
concurring.
I concur in the analysis and conclusions of the lead opinion, including its reliance on State v. Hall, 339 Or 7 , 115 P3d 908 (2005). I do so for a reason sufficiently important (at least to me) that I choose to state it separately.
In Hall , a majority of this court announced the rule of law that we apply today. Justice Durham offered a spirited and extensive dissent from that rule, id. at 37-52 (Durham, J., dissenting), which I found persuasive. I therefore joined it. In the present cases, the dissent makes the same analytical and interpretive points that were made in the Hall dissent. *631 Were we writing on a clean slate, I might still find that message persuasive. But we are not writing on a clean slate. The dissent’s points, therefore, are — for me — an echo of an argument fairly waged, but lost. The spirit — the idea — of stare decisis calls for us to accept Hall , get behind it, and make it work. I understand that others feel differently (as they have every right to do) but I hear that call. I therefore join the lead opinion. See North Carolina v. Pearce, 395 US 711, 744-45 , 89 S Ct 2072 , 23 L Ed 2d 656 (1969) (Harlan, J., concurring in part and dissenting in part) (explaining a similar approach).