State v. Ortega , 225 Or. App. 682 ( 2009 )

202 P.3d 912 (2009) 225 Or. App. 682

STATE of Oregon, Plaintiff-Respondent,
v.
Stacie Lynn ORTEGA, Defendant-Appellant.

200622699, A135552.

Court of Appeals of Oregon.

Submitted December 5, 2008. Decided February 11, 2009.

Lane County Circuit Court; Eveleen Henry, Judge.

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.

Defendant appeals a judgment of conviction for possession of 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 P.3d 761 (2005), rev. den., 341 Or. 141, 139 P.3d 259 (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.