842 P.2d 807 (Or.App. 1992), CA A66689, State ex rel. Juvenile Dept. of Multnomah County v. Fikes
|Docket Nº:||83306; CA A66689.|
|Citation:||842 P.2d 807, 116 Or.App. 618|
|Opinion Judge:||DEITS, J.|
|Party Name:||In the Matter of Anthony Fikes, a child. STATE ex rel. JUVENILE DEPARTMENT OF MULTNOMAH COUNTY, Respondent, v. Anthony FIKES, Appellant.|
|Attorney:||Vicki R. Vernon, Portland, filed the brief for appellant. Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Yuanxing Chen, Assistant Attorney General, Salem, filed the brief for respondent.|
|Case Date:||December 02, 1992|
|Court:||Court of Appeals of Oregon|
Submitted on Record and Briefs Jan. 17, 1992.
[116 Or.App. 619] Vicki R. Vernon, Portland, filed the brief, for appellant.
Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Yuanxing Chen, Asst. Atty. Gen., Salem, filed the brief, for respondent.
Before RICHARDSON, P.J., and DEITS and DURHAM, JJ.
[116 Or.App. 620] DEITS, Judge.
Child appeals from a juvenile court order finding him to be within the court's jurisdiction because of conduct that would constitute the crime of possession of a controlled substance if committed by an adult. ORS 475.992(4). He assigns error to the court's denial of his motion to suppress evidence obtained when the police searched him after an allegedly unlawful stop. On de novo review, ORS 419.561(4), we affirm.
The facts are not in dispute. While Officers Hendricks and Kruger were patrolling a North Portland neighborhood near Unthank Park at approximately 10 p.m., they noticed child standing on a sidewalk with a group of five or six other youths. Suspecting drug activity, the officers parked their patrol car on the other side of the block, got out of the car and approached the group on foot from opposite sides "to surprise the people, take them off guard." Hendricks approached child from behind, startling him, and noticed that child was visibly nervous as Hendricks told him of neighbors' complaints of drug dealing. Hendricks then asked for permission to search child. Child responded, "Yeah, go ahead." Child did not notice that Kruger was also there until approximately two minutes after Hendricks had begun his search. While searching child's pockets, Hendricks found $309 in cash and a canvas pouch. He asked for permission to open the pouch, which child granted. The pouch contained a white residue that Hendricks testified appeared to be cocaine.
Child filed a motion to suppress the evidence obtained in the search, arguing that the search was unlawful because it followed an unlawful stop and because his consent to search was not validly obtained. The trial court denied the motion, concluding that there was no stop and that child knowingly and voluntarily gave Hendricks consent to search:
"Based on the testimony of the officers and some extremely candid testimony by [child], I am finding that this was not a stop. I think the officers had every right to make the inquiry. And even considering--and it's hard to--the reasonable person standard is hard when we're dealing with a juvenile. [Child] has testified, so the record at least shows some background for [child], some experience
level for [child] [116 Or.App. 621] and some maturity level for [child] that I guess all fit into that reasonable person.
"And I will rule apart from the stop issue that in either scenario that this is a valid--that it was a valid consent. I find it, after having heard [child], real hard to imagine that [child's] free will was overborne by these officers. I don't think that happened."
Child argues that his encounter with Hendricks was a stop and, therefore, a seizure of his person. 1 The state contends...
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