State v. Najar, 401 P.3d 1205

Deputies approached a parked car with its passenger door ajar at dawn and found defendant in the driver’s seat; they asked for identification.
Defendant made furtive movements toward his waistband and then reached into the center console with both hands; the officer asked him to keep his hands visible and told him to reach for his wallet with one hand.
Defendant produced a work ID, then again reached toward his waistband twice; he refused a frisk, was removed forcefully from the car, handcuffed, and patted down.
Officer found a pocket knife and a small container in defendant’s right pocket; defendant volunteered the container held “crystal” (methamphetamine).
Defendant moved to suppress, arguing the moment the officer directed how to retrieve the ID constituted a seizure under Article I, §9, and that subsequent consent and statements were fruit of the unlawful seizure. Trial court denied suppression, finding seizure occurred later and was justified by officer safety; defendant was convicted after stipulated-facts trial.
On appeal, the court held the officer’s direction to use one hand constituted a seizure; alternative justifications raised by the state on appeal were not considered because they were not raised below and the record did not support affirmance on those bases.

Issue	Plaintiff's Argument (State)	Defendant's Argument	Held
Whether officer’s direction to use one hand to retrieve wallet was a seizure under Article I, §9	Not a seizure; officer merely requested cooperation and to keep hands visible	Direction was an exercise of authority that a reasonable person would construe as coercive and thus a seizure	Court held it was a seizure when officer dictated how to move hands
Whether officer safety justified seizure at that earlier point	Argues safety concerns justified seizure (raised on appeal)	Seizure was not supported by specific, articulable facts at that moment	Court would not affirm on that basis because state failed to prove it below and record does not resolve the factual question
Whether evidence/consent were attenuated from any prior illegality	Argues consent and admission were independent of earlier seizure (raised on appeal)	Consent was product of prior illegal conduct, so evidence should be suppressed	Court declined to consider attenuation because state did not raise it below and record is inadequate
Whether trial court could be affirmed on alternative bases not addressed below	State asks appellate affirmance on alternative theories	Defendant contends parties should have been allowed to litigate those theories below	Court rejected affirmance on unraised alternatives given Outdoor Media/Booth criteria; reversed and remanded

State v. Ashbaugh, 349 Or 297 (discusses seizure analysis under Article I, §9)
State v. Backstrand, 354 Or 392 (totality-of-circumstances approach; police encounters vs seizures)
State v. Ruiz, 196 Or App 324 (en banc) (officer ordering hand out of pocket constitutes seizure)
State v. Shaw, 230 Or App 257 (officer ordering show-me-hands constituted a seizure)
State v. Rudnitskyy, 266 Or App 560 (ordering occupants to place hands on dashboard constituted seizure)
State v. Unger, 356 Or 59 (attenuation/independence of consent from prior illegality)