State v. Bales

183 P.3d 228 (2008) 219 Or. App. 487

STATE of Oregon, Plaintiff-Respondent,
v.
Benny Jay BALES, Defendant-Appellant.

060130316; A133005.

Court of Appeals of Oregon.

Submitted March 7, 2008. Decided April 23, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and Jamesa J. Drake, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

PER CURIAM.

Defendant appeals from a judgment of conviction for unlawful possession of a controlled substance, former ORS 475.992 (2003), arguing that the trial court erred in denying his motion to suppress evidence. The state concedes that the trial court erred. As explained below, we conclude that the concession is well taken. Consequently, we reverse and remand.

Defendant was stopped by a police officer who subjectively believed that he had reasonable suspicion that defendant was frequenting a place where controlled substances were used, ORS 167.222. In the course of the stop, the officer requested defendant's identification and retained the identification while he asked for defendant's consent to a search. The search produced the evidence that defendant sought to suppress. The state concedes that the officer lacked reasonable suspicion that defendant had violated ORS 167.222 and, consequently, under State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), the stop was unlawful; the state further acknowledges that no intervening circumstances attenuated the illegality from the consent. We agree.

Reversed and remanded.