State v. Ortega

FILED: February 11, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

STACIE LYNN ORTEGA,

Defendant-Appellant.

Lane County Circuit Court
200622699
A135552

Eveleen Henry, Judge.

Submitted on December 05, 2008.

Peter Gartlan, Chief Defender, and Rebecca A. Duncan, Assistant Chief Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant appeals a judgment of conviction for possession of a methamphetamine.  ORS 475.894.  She assigns error to the denial of her motion to suppress evidence discovered by an officer during a traffic stop after the officer obtained consent to search defendant as a result of a threat to arrest her.  Defendant argues that, because the officer lacked probable cause to arrest her, her consent in response to the threat was involuntary.  The state concedes that the officer lacked probable cause to arrest and that, as a result, the threat rendered defendant's consent involuntary.  We conclude that the concession is appropriate.  See, e.g., State v. Coen, 203 Or App 92, 103, 125 P3d 761 (2005), rev den, 341 Or 141 (2006) (if officer lacked probable cause to arrest the defendant, the officer's threat was unlawful, and the defendant's consent was involuntary). 

Reversed and remanded.