State v. Parker
242 Or. App. 387
Or. Ct. App.2011Background
- Parker was a passenger in a pickup stopped for expired tags by Portland officers; officer Cioeta asked for his name and birth date and wrote down his information, then returned to the vehicle and ran a warrant check.
- An additional officer arrived; the driver and another passenger were cited/arrested for outstanding warrants; Cioeta asked Parker to exit the truck and asked about weapons; Parker denied; Parker consented to a search after Cioeta asked for permission.
- A patdown of Parker occurred and a switchblade was retrieved; Parker was arrested and charged with carrying a concealed weapon; Parker moved to suppress the evidence, which the trial court denied.
- On appeal, Parker challenged whether the initial encounter with police constituted a seizure under Article I, section 9; Parker relied on Ashbaugh I’s subjective framework, which Ashbaugh II later rejected.
- The Oregon Supreme Court remanded for reconsideration in light of Ashbaugh II; Parker I’s remand directed findings on Parker’s subjective belief about freedom of movement, which Ashbaugh II abandoned in favor of a totality-of-the-circumstances seizure test.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the encounter was a seizure under Article I, §9. | State: no seizure occurred since Parker was not the focus of the stop. | Parker: he was the investigatory subject and not free to leave. | Yes, the encounter was a seizure under Article I, §9. |
| If seized, whether Parker's consent to search was tainted by the seizure. | State: consent was independent or only tenuously related to the seizure. | Parker: consent was product of unlawful seizure. | Held: suppression error reversed; seizure tainted the search. |
| Whether the trial court erred in denying suppression based on the seizure finding. | State: reasonable basis to deny suppression. | Parker: suppression should have been granted. | Reversed and remanded for further proceedings consistent with Ashbaugh II. |
Key Cases Cited
- State v. Holmes, 311 Or. 400 (1991) (defines seizure under Article I, §9 via show of authority and restraint)
- Ashbaugh v. State, 349 Or. 297 (2010) (abandons subjective component; adopts totality-of-circumstances seizure test)
- Ashbaugh II, 349 Or. 297, 244 P.3d 360 (2010) (2010) (reiterates seizure test: show of authority or reasonable belief of restraint)
- State v. Highley, 219 Or.App. 100 (2008) (pre-Ashbaugh II analysis; whether defendant felt investigated based on conduct)
- State v. Radtke, 242 Or.App. 234 (2011) (application of Ashbaugh II to voluntary statements and searches; running checks indicate continued investigation)