Court: Warrant discovery justifies illegal search

Of the Associated Press

PORTLAND — A divided Oregon Court of Appeals panel has affirmed that the discovery of an outstanding warrant can justify an illegal police search.

The court ruled in a decision handed down Wednesday on the legality of a search in which police held a suspected gang member in a car until they found an officer who could identify him. Once they did, they found an outstanding warrant and searched him, uncovering a baggie of cocaine under his tongue.

Two justices found that the discovery of the warrant “cured” the illegality of the original stop, which even prosecutors conceded was unconstitutional.

Justice James Egan dissented.

“The facts of this case leave no room to conclude other than that the police were detaining defendant for the very purpose of identifying him and running a warrant check on him,” Egan wrote. “The existence of the warrant was thus discovered through ‘means that are indistinguishable from the illegal stop.’ ”

The case began in 2010, during a period of intense gang violence in Portland. Fearing further violence after a funeral attended by suspected gang members, police staked out a house in north Portland, where they waited as four men entered what police believed was a rental car, which police testified at trial are often used for drive-by shootings.

An officer in an aircraft watching the house directed a squad car to stop the vehicle. It didn't take long for the driver to fail to signal 100 feet before a turn.

In the car were two passengers in the backseat and the driver, who couldn't find his insurance card. While waiting for the driver's insurance company to confirm the driver's insurance, two backup officers arrived and one recognized one of the passengers as a suspected gang member, but couldn't remember his name.

Thirty minutes passed before the police were able to find an officer who could identify the suspected gang member, Clark Bailey, who had an outstanding felony warrant. During a search officers found a bag of cocaine under his tongue and $700 in cash.

Bailey argued that he was unlawfully detained and the search was illegal.

A trial court found that the stop and search was illegal, but it didn't matter because the discovery of the outstanding warrant “served to cure any prior illegality.”

Egan said the half-hour after the stop was mostly unnecessary: Police officers could have cited the driver within five minutes.

“Another 25 minutes then elapsed — during which time defendant was seized without reasonable suspicion of his involvement in criminal activity — until officers were able to obtain the information they were after,” Egan wrote.

That, Egan said, is plainly unconstitutional.

“The police misconduct in this case,” Egan wrote, “produced exactly the result that the officers hoped to obtain when they engaged in it.”


Reach reporter Nigel Duara on Twitter at http://www.twitter.com/nigelduara

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