Free your ass and your kind will follow

Cody Gean Canfield could have just walked away. He wasn't under arrest and he was free to leave. The police officer who asked to search him even told him so. Nonetheless, and despite the fact that he had a marijuana pipe stuffed with burnt marijuana on him, Mr. Canfield allowed that officer to search him. This unfortunate decision on Cody's part started a sequence of events that led to his conviction for the felony drug crime of unlawful delivery of marijuana which the Oregon Court of Appeals upheld today here.

One fine day in Beaverton, a police officer noticed Cody strolling along, crossing a street and headed toward the mall. His suspicions aroused, the officer turned his car around and began to follow Cody. Cody got into a car in the mall parking lot driven by someone else and the two drove a bit in the parking lot before stopping and getting out to go into a fast food joint.

The officer went up to the both of them and asked them if he could speak to them. Of course, Cody should have said "No, I'm on my way to Hometown Buffet..." and gotten the heck out of there, but he didn't. The policeman then told them he thought they had been acting strange, took their ID's, wrote down their info and then asked the both of them if he could search them.

Again Cody and his buddy should have politely declined but alas did not. The cop put them "in the search position," and critically it turns out, told them both they were not under arrest and were free to go. Here Cody should have listened to the police officer and exercised his feet and his right to walk away. He didn't, and the searches of himself and his buddy led ultimately to his felony arrest and conviction.

On appeal Cody unsuccessfully argued that the officer "stopped" him unlawfully and that the evidence the officer recovered against him as a result of this unlawful stop should be suppressed. While noting that the legal question of whether a person has been "stopped" by the police is answered in a case by case analysis of the "totality of the circumstances," the court quickly concluded that once the officer told Cody he was free to go any reasonable person would have believed they were free to leave, and therefore he was not stopped. Poor Cody, all he wanted was a Pepsi, and maybe a cheeseburger. All he had to do was politely walk away and get on with his lunching. Now he is a convicted felon.

All Oregonians have the right to be free from unreasonable searches and seizures. If more people chose to exercise those rights when first contacted by police, they would not need experienced criminal defense lawyers to argue later on that their searches or seizures were performed unlawfully.

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