State v. Wabinga, 333 P.3d 1213

Troopers Fromme and Richardson, in an Oregon State Police vehicle, patrolled the Sandy River area enforcing fish and wildlife laws and checking licenses.
They parked behind a Nissan 280Z that appeared empty; the car’s plate was run before a head appeared in the driver’s seat.
Defendant exited his car and talked with the officers; the encounter remained nonconfrontational as they discussed various topics, including fishing.
Defendant displayed nervousness, avoided eye contact, drank from an apparently empty soda, and kept a hand in his pocket.
Fromme observed a thick plastic tube on the driver’s floorboard, which he believed could be used to smoke narcotics and would show drug residue if so used.
Defendant consented to a patdown; Fromme opened the door, retrieved the tube, and observed a brownish crystalline substance; defendant then discarded a white object toward the river.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a seizure occurred before the tube was seen	State argues seizure occurred only when Fromme identified the tube via window view.	Fromme’s continued questioning and actions constituted a seizure before the tube sighting.	No seizure before tube identification; no coercive show of authority prior to that point.
Whether the patdown/search based on defendant’s consent effected a seizure	State asserts consent to patdown did not constitute a seizure because consent was voluntary and non-coercive.	Defendant contends the patdown/search plus requests to consent to search should be considered a seizure.	Consent to patdown did not create a seizure; no show of authority prior to stop.
Whether the stop was supported by reasonable suspicion	State contends objective reasonable suspicion existed due to tube’s appearance and defendant’s conduct.	Defendant contends there was no reasonable suspicion to stop.	There was reasonable suspicion; tubing observed, disposal attempt, and prior observations supported a stop.

State v. Backstrand, 354 Or 392 (Or. 2013) (encounters vary; not all rise to seizures; show of authority requires more than questions)
State v. Ashbaugh, 349 Or 297 (Or. 2010) (definition of seizure under Oregon Constitution; totality of circumstances)
State v. Anderson, 354 Or 440 (Or. 2013) (show of authority analysis includes context and manner of contact)
State v. Highley, 354 Or 459 (Or. 2013) (approach without per se coercion; probation questions allowed in nonconfrontational encounters)
State v. Beasley, 263 Or App 29 (Or. App. 2014) (casual language and questions about probation/records checks; not seizure)
State v. Charles, 263 Or App 578 (Or. App. 2014) (analyze totality of circumstances; not examine actions in isolation)
State v. Maciel, 254 Or App 530 (Or. App. 2013) (consent to patdown can occur without seizure; voluntariness not challenged)
State v. Hiner, 240 Or App 175 (Or. App. 2010) (reasonable suspicion based on observed suspicious behavior and inferences)
State v. Ehly, 317 Or 66 (Or. 1993) (objective facts and articulable inferences required for stop)
State v. Kinkade, 247 Or App 595 (Or. App. 2012) (patdown consent does not by itself create seizure when nonconfrontational)