State v. Peek

Under State v. Sholedice/Smith, 364 Or 146, 162 (2018), removing “property obstructing a public thoroughfare” outside the owner’s presence does not interfere with the owner’s property rights to constitute a seizure. Under State v. Faulkner, 102 Or App 417, 420-21 (1990), using a flashlight to see what one could otherwise see in daylight does not constitute a search.

Defendant appealed a conviction for, in relevant part, felon in possession of a firearm. Defendant assigned error to the denial of his motion to suppress by the trial court. On appeal, Defendant argued that police illegally seized his jacket from a bike path after a motorcycle accident and unlawfully searched that jacket by illuminating the pocket with a flashlight. In response, the State argued that moving belongings was not a seizure and that the use of a flashlight does not show an illegal search. Under State v. Sholedice/Smith, 364 Or 146, 162 (2018), removing “property obstructing a public thoroughfare” outside the owner’s presence does not interfere with the owner’s property rights to constitute a seizure. Under State v. Faulkner, 102 Or App 417, 420-21 (1990), using a flashlight to see what one could otherwise see in daylight does not constitute a search. The Court reasoned that moving scattered belongings out of the way, particularly when the owner cannot do so themselves, does not “significantly interfere[] with a person’s possessory or ownership interest in property” as required for a seizure. The Court found that the way the officer used the flashlight was a factual issue and accepted the trial court’s conclusion that the use was lawful. Affirmed.