United States v. Bennie Demetrius Washington

On the night that led to the conviction of Bennie Demetrius Washington (“Washington”) and .this appeal, Washington was seated in his lawfully parked car, on a dark Portland street not long before midnight. Portland police officer Daryl Shaw (“Shaw”) decided to initiate investigatory contact with Washington, though he lacked reasonable suspicion or probable cause of criminal activity. During this encounter, Washington consented to a search of his person, was ordered out of and directed away from his car, and was searched. Washington thereafter consented to a search of his car, where officer Troy Pahlke (“Pahlke”) discovered a firearm. Washington moved to suppress the firearm, but the district court denied his motion, and Washington subsequently pled guilty to, and was convicted of, being a felon in possession of a firearm.

Although Washington voluntarily consented to the search of his person, we conclude that the encounter then escalated into an impermissible seizure. And even though Washington thereafter consented to the search of his car, during which the firearm was discovered, we conclude, contrary to the district court, that Washington’s consent was not voluntary.…