261 P.3d 1287
Or. Ct. App.2011Background
- Defendant Zaccone was a passenger in a car stopped for a traffic violation.
- Officer Rilling asked for identification; Zaccone struggled with providing a clear name and date of birth.
- Warrant checks revealed the driver had a suspended license, leading to impoundment of the car.
- During inventory, officers found a backpack and fanny pack; Zaccone consented to searches.
- Forensic items found included burglary tools, methamphetamine, and personal information; Zaccone was taken into custody.
- On remand, the Supreme Court’s Ashbaugh standard replaced the prior Holmes framework for determining whether a seizure occurred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was Zaccone seized under Article I, §9 when asked for consent to search? | State contends no seizure under the totality of circumstances. | Zaccone argues he was seized by a show of authority. | Yes; defendant was seized. |
| Does the Ashbaugh totality-of-circumstances test support a finding of seizure here? | Ashbaugh supports seizure given ongoing investigation and show of authority. | No seizure under the circumstances. | Seizure occurred under Ashbaugh. |
Key Cases Cited
- State v. Holmes, 311 Or. 400 (1991) (original Holmes seizure framework (intentional restriction or reasonable belief))
- Ashbaugh v. State, 349 Or. 297 (2010) (redefined seizure, totality of circumstances test; removal of subjective component)
- State v. Rodgers/Kirkeby, 347 Or. 610 (2010) (show of authority can establish seizure under Ashbaugh framework)
- State v. Levias, 242 Or.App. 264 (2011) (illustrates showing of authority and investigation creating seizure)
- State v. Radtke, 242 Or.App. 234 (2011) (recognizes when warrant checks contribute to seizure analysis)