Opinion

State v. Kennedy

  • 45 Or. App. 911
  • 609 P.2d 438
  • 1980 Ore. App. LEXIS 2618
Court
Court of Appeals of Oregon
Filed
Apr 14, 1980
Status
Published
Author
Tanzer
On the bench
Thornton, Tanzer, Tempore, Campbell, Schwab, Gillette
Cited by
4 cases
Authority
More cited than 7.0%

Reversed on other grounds by State v. Kennedy, 290 Or. 493 (1981)

unjustified "stop" tainted consent to search, so resulting evidence must be suppressed

How later courts described this case

  • unjustified "stop" tainted consent to search, so resulting evidence must be suppressed

Written by the judges who cited it.

The opinion

TANZER, J., Pro Tempore,

dissenting.

I regard the contact to have been of the third type categorized in State v. Warner, 284 Or 147, 161 , 585 *921 P2d 681 (1978): "questioning without any restraint of liberty (mere conversation), requiring no justification.” Police are as free as others to ask people to speak to them. Only when request becomes command, does the Fourth Amendment come into play. State v. Evans, 16 Or App 189 , 517 P2d 1225 (1974). The police conduct in this case was consistently in terms of request rather than command and there is no objective basis upon which to find that defendant could not leave. This contact did not involve a use of authority of sufficient magnitude as to be a stop or detention within the meaning of Terry v. Ohio, 392 US 1 , 88 S Ct 1868 , 20 L Ed 2d 889 (1968).

Schwab, C. J., and Gillette, J., join in this dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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