Lead Opinion
In two recent cases, we have held that officers who had lawfully seized individuals for purposes of investigation also could, consistently with Article I, section 9, of the Oregon Constitution, request and verify the individuals’ identifications. In particular, in State v. Fair,
This case presents yet a third variation on the issues that arise when police seek identification from persons with whom they deal in the course of their work: Does an officer’s request for and verification of a person’s identification, in and of itself, convert an encounter that is not a seizure for constitutional purposes into one that is? As we explain, we hold that the answer is no. Consequently, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.
I. FACTS AND PROCEDURAL HISTORY
Deputy Gerba was monitoring a “triple-X” store that sells adult sexual materials (toys, videos, clothing, etc.). The store had been robbed several times in the recent past, and law enforcement had made frequent security checks on it as a result. On the particular night involved in this case, Gerba was “sitting on” the store, meaning that he was monitoring it from outside and across the street, as well as by occasionally going inside.
At about 1:00 a.m., Gerba was inside the store at the same time that defendant and his girlfriend were inside
Gerba had not asked dispatch to check on anything other than the validity of the licenses, such as outstanding warrants. Even so, dispatch called Gerba back to advise him that defendant’s license was suspended and defendant was on probation in another county. That call came about a minute after Gerba returned the licenses, as Gerba was leaving the store. Gerba continued across the street, where he maintained his security watch on the store. After about five minutes, defendant and his girlfriend walked out of the store, got in their car, and left, with defendant driving. Based on his belief that defendant was driving with a suspended license, Gerba pursued them, initiated a traffic stop, and arrested defendant. Defendant was later tried for driving
Before trial, defendant moved to suppress all evidence from his encounter with Gerba in the store {i.e., his identity and the status of his driving privileges), arguing that Gerba had unlawfully “stopped” defendant either when he requested defendant’s identification or, in the alternative, when he called dispatch to verify defendant’s identification. The state responded that the encounter between Gerba and defendant had not amounted to a seizure or, if it had, Gerba’s actions were supported by his reasonable suspicion that defendant was not old enough to be inside the age-restricted store.
The trial court denied defendant’s motion, concluding that Gerba had not seized defendant. The trial court reasoned that the time involved — 10 to 15 seconds — was de minimis and Gerba had not investigated defendant for any possible wrongdoing on his part, but rather, had attempted to determine if he was a minor as a protective measure, in which case he should not have been in the adult-only store.
A concurring opinion took a different view on the “timing of the operative ‘stop.’” Id. at 633 (Haselton, P. J., concurring). According to the concurrence, Gerba seized defendant “when, in response to Gerba’s inquiries, defendant produced, and Gerba took, defendant’s driver’s license.” Id. Under that view, the concurrence agreed that suppression was required if defendant subjectively felt restrained once he handed his license to Gerba. Id. at 642. Finally,
Both defendant and the state sought review, and we originally held the petitions pending our decision in State v. Ashbaugh,
II. ANALYSIS
A. General Principles Governing Seizures
As we explained at the outset, the central question that this case presents is: Does an officer’s request for and verification of a person’s identification, in and of itself, convert an encounter that is not a seizure for constitutional purposes into one that is? The general principles that guide our answer to that question are well-settled and were discussed at some length in our two most recent “stop” cases, Fair,
Article I, section 9, guarantees individuals the right to be “secure in their persons * * * against unreasonable search, or seizure.” As this court has long recognized, encounters between law enforcement officers and citizens are of an “infinite variety.” State v. Holmes,
“Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed ‘stops,’ which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.”
Fair,
What distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter “is the imposition, either by physical force or through some ‘show of authority,’ of some restraint on the individual’s liberty.” Ashbaugh,
Although close cases can — and frequently do— arise, beginning with Holmes, this court has remained steadfast in recognizing that the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens. In an oft-cited and oft-quoted passage, Holmes stressed that “law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful.”
“if ‘the moral and instinctive pressures to cooperate are in general sound and may be relied on by the police,’ then a street encounter does not amount to a * * * seizure merely because of those pressures — that is, merely because the other party to the encounter is known to be a policeman.”
Wayne R. LaFave, 4 Search and Seizure § 9.4(a), 581 (5th ed 2012) (quoting Model Code § 110.1 at 258 (footnote omitted)).
Consistently with Holmes’s declaration that officers remain free to approach citizens, request or impart information, and seek assistance, this court has cautioned that “verbal inquiries [by officers] are not *** seizures.” State v. Rodgers/Kirkeby,
Several of our cases illustrate that principle in practice. One of the earliest is Ehly, which was decided about two years after Holmes first articulated the standard for distinguishing “mere encounters” from police conduct that results in a seizure for constitutional purposes. In Ehly, two officers confronted the defendant in a motel room after he refused to leave at check out and return the room key to the manager. The officers immediately told the manager to “stand back” and advised the defendant that he had to leave. When the defendant picked up two bags and started to leave, the officers asked him to return the key to the manager. The defendant replied that the key might be in one of the bags, but that the bags did not belong to him. One officer then asked him to find the key. The defendant tried, rummaging through one of the bags unsuccessfully, at which point the officer encouraged him to dump the bag’s contents onto the bed because both of the defendant’s hands were concealed within the bag as he searched for the key. When the defendant continued to search the bag, the officer, concerned that a weapon was in the bag, put her hand on her gun and ordered the defendant to “back up,” which he did; the officer then grabbed the bag herself and dumped the contents out. Ehly,
This court concluded in Ehly that the defendant was seized for purposes of Article I, section 9, at the point that the officer ordered the defendant to back up. Id. at 79. The officers’ requests before that point, individually and in combination, to leave, to find the key, and to dump out the contents of the bag did not, however, result in seizing him. Rejecting the defendant’s argument that the requests were “‘poorly disguised commands,”’ the court reasoned that — in light of the trial court’s factual findings — “nothing about the officers’ demeanor, their tone of voice, the nature of their language, or the time, place, or manner of the encounter” supported a conclusion that a reasonable person would have believed that his liberty had been significantly restrained
Ashbaugh involved a similar conclusion on much different facts. In Ashbaugh, two officers on bicycles approached the defendant and her husband while they were sitting in a public park in the middle of the day. The officers investigated their identities and checked to see if either of them was wanted on outstanding warrants. When the officers learned that the defendant’s husband was subject to a restraining order that prevented him from having contact with the defendant, the officers arrested him for violating that order and took him to a requested patrol car. About five minutes later, the officers returned to the defendant, who had not left the park, to tell her that her husband wanted her to take his belongings with her. On impulse, one of the officers asked the defendant if she had anything illegal in her purse. When she said she did not, he asked if he could search her purse, and she agreed. Ashbaugh,
Given the state’s concession, the seizure question before this court was limited to whether the officers had seized the defendant when they recontacted her, asked her about the contents of her purse, and asked if she would permit them to search her purse. Id. at 306, 308. In concluding that the defendant was not seized at that point, this court acknowledged that “it is possible to restrict a person’s liberty and freedom of movement by purely verbal means.” Id. at 317. But we reasoned that nothing in the content of the questions asked, or in the officers’ manner or actions, involved a “show of authority” that the defendant could reasonably construe as a threat or an exercise of authority to coercively restrain. The court observed that, “while it may have been true that [the] defendant had been unlawfully detained by
In other cases, the circumstances accompanying verbal questions or requests have led this court to conclude that the defendant was seized, not by an officer’s questions per se, but given the context in which they were asked and the totality of the circumstances otherwise involved. Rodgers/ Kirkeby, in particular, emphasized the importance of context. Rodgers/Kirkeby involved two cases consolidated for purposes of the court’s opinion. Both involved lawful stops of vehicles for traffic offenses. In Rodgers, officers completed their investigation of the offense, but did not issue a citation. Then, although he lacked reasonable suspicion, one of the officers proceeded to question the defendant about possible drug activity and to ask for consent to search without advising the defendant that he was free to leave.
This court determined that, in each instance, the questions and request for consent resulted in an unlawful seizure. Id. at 627-28. In explaining that conclusion, the court first acknowledged that, in general, “verbal inquiries are not searches and seizures,” even when made in the course of, and unrelated to, a traffic stop. Id. at 622. The problem in Rodgers/Kirkeby was that the unrelated inquiries at issue were not in the due course of the traffic stop, but came afterwards — that is, they came at a point when the officers no longer had authority to detain the defendants. Id. at 623. As the court explained, “in contrast to a person on the street” or otherwise in public who has not been stopped for a traffic offense, a person detained for a traffic offense has a legal obligation to stop at the officer’s direction and remain; the person may not unilaterally end
Finally, State v. Jacobus,
C. Police Requests for Identification and Verification of Identification
Police requests for identification are a subset within the general category of police requests for information or cooperation. But asking for and verifying identification is not unique to police-citizen encounters. Rather, as other courts have observed, in this day and age, requests for valid government-issued identification are commonplace in ordinary dealings in society, both between private citizens as well as in a variety of citizen-government contexts (such as entering public buildings). See, e.g., Golphin v. State, 945 So 2d 1174, 1189-90 (Fla 2006), cert den,
Until now, this court has not been asked to decide— and has not in fact decided — whether an officer effectively seizes an individual simply by asking for an individual’s identification. Where the issue is that straightforward— based on the request alone and nothing more — the circumstance comes well within the bounds of a “mere encounter,” which, as we held in Holmes, police remain free to have with citizens without implicating Article I, section 9.
We have, however, decided cases in which we concluded, from the totality of circumstances, that police conduct that included a request for identification was sufficiently coercive to result in a seizure. The first of those cases was State v. Warner,
A final illustrative case is State v. Hall,
This court concluded that the encounter began as a noncoercive engagement between the officer and the defendant, but evolved into a seizure in the course of the officer’s investigation. The court explained that the officer’s “initial actions of stopping his vehicle next to [the] defendant and then gesturing for [the] defendant to approach him did not intrude upon [the] defendant’s liberty of movement [.}” Id. at 19. But the court concluded that the nature of the encounter changed when the officer took the defendant’s identification
“did nothing to dispel what would have been an objectively reasonable belief that defendant was restrained from leaving until [the officer] had received the results of the warrant check. Instead, immediately upon returning [the] defendant’s identification card, [the officer] questioned [the] defendant about whether [the] defendant was carrying any weapons, knives, or illegal drugs, and he asked [the] defendant for consent to search [his] person.”
Id.
In combination, Warner, Painter, and Hall confirm, at least implicitly, our holding today. Police remain free to approach citizens and to ask for or impart information and to seek their cooperation. Asking a citizen to identify himself or herself and to show police a formal piece of identification is a form of cooperation and involves the kind of information that, as a general proposition, police are free to request. But when the content of the questions, the manner of asking them, or other actions that police take (along with the circumstances in which they take them) would convey to a reasonable person that the police are exercising their authority to coercively detain the citizen, then the encounter rises to the level of a seizure, the lawfulness of which must be analyzed as such.
The purely legal issue that remains is whether verification of identification is a further circumstance that elevates a mere encounter to a seizure. We see no principled basis for concluding that, when an officer checks the validity of a proffered identity or piece of identification, such an action per se conveys to a reasonable person — who is not otherwise restrained and who has willingly tendered the information to the officer — that the officer is now exercising his or her authority to coercively restrain the person’s liberty or freedom of movement. To be sure, as we have already discussed, a
D. Analysis of the Circumstances of this Case
With those conclusions in place, we turn to the specific circumstances of this case to determine whether Gerba, either by requesting defendant’s identification or by verifying
As we previewed, defendant first argues that Gerba seized him by asking defendant his age and asking to see his identification. In making that argument, defendant focuses on the context in which Gerba made the request. In particular, defendant points to the fact that defendant was in an age-restricted store when Gerba approached him and made those requests. In that setting, defendant reasons, a reasonable person in defendant’s position would have believed that Gerba was investigating him to determine if he should be in the store, and he therefore was required to remain and interact with Gerba.
We agree that the age-restricted nature of the store provided significant context for determining whether anything in the content of Gerba’s questions made what would otherwise be a “mere encounter” an exercise of police coercion. Asking a person his or her age in such a setting with no accompanying exercise of authority to restrain, however, would not cause a reasonable person to believe that the officer had significantly restricted his or her liberty.
Equally important, a reasonable person engaged in an age-restricted activity would expect to be questioned about his or her age, particularly if the person objectively appears close to the minimum age or within an age range where it is customary (as for purchasing alcohol) to request proof of age. Proof-of-age requests and examinations are customarily made in those settings, by private proprietors of businesses (bartenders, clerks of stores where alcohol or tobacco are sold) as well as by law enforcement personnel. Asking a person’s age and requesting proof of it is not conduct “significantly beyond that accepted in ordinary social intercourse” in that setting. Holmes,
Thus, consistently with the general rule that verbal inquiries ordinarily are not seizures, there was nothing distinctive about the content of Gerba’s questions that caused
Defendant nevertheless argues that, even if the deputy’s questioning did not have the effect of seizing him, he was seized once Gerba had obtained his identification. Citing Painter,
III. CONCLUSION
In summary, we reaffirm that police requests for information or cooperation do not implicate Article I, section 9, as long as the officer does no more than seek the individual’s cooperation through noncoercive questioning and conduct. A request for identification, in and of itself, is not a seizure. Nor is an officer’s act of checking the validity of that identification, in and of itself, a seizure. For a request and verification of identification to amount to a seizure, something more is required on an officer’s part. Either through the context, the content or manner of questioning, or the other circumstances of the encounter, the officer must convey to a reasonable person that the officer is exercising his or her authority to significantly restrain the citizen’s liberty or freedom of movement.
Here, defendant was not seized either by Gerba’s request to see defendant’s identification or by Gerba’s call to dispatch to check the validity of that identification. No other
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Notes
It is a misdemeanor offense for the owner, operator, or manager of a business to permit minors, if not accompanied by a parent or lawful guardian, to enter or remain where obscene materials are displayed. ORS 167.080.
Gerba testified that, although he could have determined both defendant’s and the girlfriend’s age from the face of the licenses, he ran the licenses through dispatch to make sure that they were not “fake.” He explained, “[w]hen somebody has a fake ID, if we run it, it comes back unable to locate.”
Defendant’s girlfriend testified at the suppression hearing, but defendant did not. According to her, Gerba asked for their IDs, and they gave them to him. After Gerba called to verify them, he handed them back, explaining to the two that they “looked awful young.” He then said, “thank you.” The only significant difference between Gerba’s and the girlfriend’s testimony was that the girlfriend described Gerba as holding the licenses for “several minutes” before returning them. The trial court, however, expressly found the historical facts to be as Gerba had related them and made the specific factual finding that Gerba had possessed the licenses for only 10 to 15 seconds.
Justice Walters’s concurring opinion characterizes Gerba’s interaction with defendant as conduct that “would cause a reasonable person in defendant’s position to believe that he was the subject of a criminal investigation and therefore that he must stop, respond, and remain.” See, e.g.,
After the Court of Appeals issued its decision, this court decided State v. Ashbaugh,
The lead opinion reasoned that any seizure of defendant would be unlawful because the officer had no reasonable suspicion that defendant was engaged in criminal activity. We recently held in Fair, however, that an officer may, in appropriate circumstances, constitutionally stop and detain a person on reasonable suspicion that the person is a material witness to or victim of a crime.
Because we decide that defendant was not seized, we do not describe the Court of Appeals’ various views on whether suppression was required.
In clarifying the test in Ashbaugh, we described it as having two prongs, either of which can result in a constitutionally significant seizure.
Justice Walters, in her concurrence, relegates her discussion of the analytical construct adopted in Holmes to a footnote and essentially treats Holmes as superfluous to the analysis.
Our adherence to Holmes in this case does not mean that our work in refining what constitutes a “seizure” for purposes of Article I, section 9, is done. But Holmes has been a settled part of our Article I, section 9, jurisprudence for more than two decades, and we have reembraced it as recently as Watson,
See also United States v. Tavolaaci, 895 F2d 1423, 1424 (DC Cir 1990) (federal seizure test “assumes that the citizen is aware of police duties to keep the peace and prevent crime, and that that awareness, coupled with feelings of civic duty, moral obligation, or simply proper etiquette, will often lead a reasonable person to cooperate” (internal quotations omitted)).
The federal test under the Fourth Amendment is often described as whether a reasonable person would feel or believe himself to be “free to leave.” See, e.g., United States v. Mendenhall,
“states a necessary, but not a sufficient, condition for :i: * * [a] seizure effected through a ‘show of authority.’ * * * [T]he test for existence of a ‘show of authority is an objective one: not whether the citizen perceived that he was being ordered to restrict his movement, but whether the officer’s words and actions would have conveyed that to a reasonable person.”
California v. Hodari D,
We decline to distill the test under Article I, section 9, to a feel-free-to-leave formulation. That formulation tends to direct the focus to a citizen’s internal feelings, beliefs, and thoughts, while simultaneously distracting from the correct focus, which is the officer’s words and actions and what they would convey to a reasonable person. We instead adhere to the test as we stated it in Holmes and revised it in Ashbaugh, which requires a show of authority by an officer that would cause a reasonable person to believe that the officer intentionally and significantly has restricted, interfered with, or otherwise deprived the citizen of the citizen’s liberty or freedom of movement. Ashbaugh,
As Ehly emphasized, the legality of a particular search depends significantly on the facts of a particular case, and what “actually happened is a question of fact for the trial court.”
The court analyzed the circumstances in Jacobus to determine if they constituted a stop for purposes of ORS 131.615(1). Well before that decision, this court had recognized that statute as codifying both the state and federal constitutional standards for a lawful investigatory stop based on reasonable suspicion of criminal activity. See State v. Valdez,
See also State v. Martin, 2011-0082, p 9 (La 10/25/11); 79 So 3d 951, 957 (individual is “practically immobilized” in modern society without adequate identification); People v. Jackson,
The United States Supreme Court has adhered to that holding. See, e.g., Hiibel v. Sixth Judicial Dist Court of Nev,
Social science studies confirm what courts and others have long recognized— that citizens often feel an internal inclination to cooperate with police officers.
When Gerba contacted dispatch to verify the validity of defendant’s license, he did not ask dispatch to check anything else. That verification occurred swiftly — Gerba returned the licenses within 10 to 15 seconds, defendant and his girlfriend then continued their shopping, and Gerba left the store to continue his security watch outside. Although Gerba did not ask dispatch to check anything else, dispatch did so, and as Gerba was leaving the store dispatch called him to tell him that defendant’s license was suspended (it was, in fact, revoked) and that defendant was currently on probation. Because Gerba neither requested that later-provided information nor did so in defendant’s presence, we do not have the occasion in this case to decide whether and under what circumstances additional checks (such as one for outstanding warrants) might convert the encounter into a seizure.
The trial court explicitly found that Gerba made the inquiries that he did in an effort to determine whether defendant was under the minimum age required to be in the store. The trial court also found that Gerba’s purpose was protective — he wanted to make sure that defendant was not exposed to the explicit materials on display in the store if, as Gerba suspected from defendant’s physical appearance, defendant was too young to be in the store. Those findings on the officer’s subjective intent and state of mind do not control the analysis. They have some relevance, however, insofar as they reflect a state of mind consistent with the officer’s objective actions, his behavior, and the overall context of the encounter.
Justice Walters, in her concurrence, misunderstands the point of our preceding discussion. The point is not that the test for a seizure depends on whether the officer’s “show of authority was expected, appropriate, or reasonable.”
Concurrence Opinion
concurring in the judgment.
The majority holds that Article I, section 9, does not apply to the encounter in this case, in which a police officer approached defendant, asked for and obtained his identification, and investigated its validity. State v. Backstrand,
In my view, Article I, section 9, applies to the encounter in this case because the officer’s communication and conduct would cause a reasonable person in defendant’s position to believe that he was the subject of a criminal investigation and therefore that he must stop, respond, and remain until the immediate investigation was complete.
My analysis does not end there, however. In my view, Article I, section 9 also permits such seizures when officers have constitutionally sufficient reasons for imposing such restraint. When, for instance, an officer has probable cause to believe that an individual has committed a noncriminal traffic infraction, the officer is permitted to stop the individual and investigate whether he or she in fact committed the infraction. Such investigation may include reasonably
In this case, I would hold that the police officer’s conduct was constitutionally justified. Article I, section 9, permitted the officer to detain defendant for a brief period under Fair, or, perhaps, pursuant to his community caretak-ing responsibilities, and, therefore, the officer did not violate the Oregon Constitution.
The majority’s reasoning is different. The majority concludes that the encounter in this case was not a seizure. Consequently, the majority permits officers to initiate similar encounters without constitutional justification. Article I, section 9, has not before, and should not now, give officers that latitude.
In State v. Hall,
In the present case, police officers similarly asked defendant for his identification, retained it briefly, and investigated its validity. Defendant similarly and reasonably would have believed that he was the subject of a criminal
The majority disagrees. The majority characterizes the officer’s inquiries and actions as “no more than seeking]
The change in analysis from Hall to Backstrand is striking. Not only does it break faith with Hall, it does not meet the challenge that Justice Harlan set and that this court quoted in State v. Campbell,
“[I]t is the task of the law to form and project, as well as mirror and reflect, [and] we should not, as judges, merely recite the expectations and risks without examining the desirability of saddling them upon society.”
Article I, section 9, prohibits unreasonable seizure. The first step in an analysis under that provision, therefore, is whether a police officer has restrained an individual’s liberty and thereby effected a seizure. See State v. Ashbaugh,
In Fair, also decided this year, the court explained that a seizure occurs when an officer engages in a “show of authority that would cause a reasonable person in [the] defendant’s circumstance to believe that [his or] her liberty had been significantly restricted.”
As noted, the majority explains that no seizure occurred because a young person present in an age-restricted shop reasonably “expectfsj’ questions about his or her age and finds them “appropriate,” id. at 415, and reasonably “expectfsj’ that if he or she produces identification, a police officer will examine it and take steps to verify its validity, id. at 417 (emphases added). The majority concludes that the officer’s retention of defendant’s identification was of “reasonable” duration and did not constitute a “significant” restraint on defendant’s liberty. Id. at 416 (emphasis added). The majority thereby determines whether a seizure occurred, not by analyzing whether a reasonable person would believe that an officer had restricted his or her liberty, but by determining whether a person subject to such restraint would believe the officer to have acted reasonably.
In the circumstance in which a police officer does not explicitly order an individual to halt and produce identification, but approaches the individual and requests, obtains, and investigates the individual’s identification, the question should be whether the officer nevertheless communicates that the individual is not free to leave. See Nadler, 2002 Sup Ct Rev at 188 (“For example, citizens generally do not interpret ‘Can I please see your license and registration?’ as spoken by a police officer as a genuine request; it is a command, and everyone understands this.”).
In urging that analysis, I do not challenge the majority’s statement of an objective test — whether the officer conveys a message that would cause a reasonable person to believe that the officer had restricted the person’s freedom of movement. I also do not mean to imply that a seizure occurs whenever “an individual — for reasons personal to that individual — feels obliged to cooperate with the officer simply because of the officer’s status.”
I am not sure why the majority focuses its inquiry on reasonableness rather than restraint.
In the search context, consent makes a search constitutionally permissible by demonstrating that the search, even though warrantless, is reasonable. State v. Paulson,
The majority also errs in three other ways. First, the majority errs in concluding that, in the circumstances presented here, asking a person’s age and requiring proof of age is not “significantly beyond that accepted in ordinary social intercourse.”
Second, the majority fails to consider the ways in which its decision may encourage both the public and the police to act in ways that are contrary to societal interests. It is in the best interest of society that the public cooperate with police investigations and stop, respond, and remain until such an investigation is complete. By holding that an individual who reasonably believes that he or she is being subjected to such investigation is, instead, free to leave, the majority encourages public conduct that is contrary to that interest. It also is in the best interest of society that the public respect the police. By holding that officers are permitted to approach members of the public and ask for, obtain, and investigate their identification without constitutionally sufficient justification for that conduct, the majority encourages officers to act in ways that could diminish the esteem in which they are and should be held.
Third, the majority fails to state a standard for determining whether a seizure has occurred that all can understand and follow. In Hall, the police officer requested that the defendant produce identification, and then conducted a warrants check. The court nonetheless held that the officer had seized the defendant.
Because I believe that, in the circumstances presented in this case, Article I, section 9, required that the police officer have a constitutionally sufficient justification to approach defendant and ask for, obtain, and investigate the validity of his identification, I cannot join in the majority’s reasoning. However, because I believe that the officer in this case was constitutionally justified in temporarily seizing defendant, I respectfully concur in the judgment.
I understand that the trial court found that the officer was not investigating defendant for any wrongdoing, but was investigating whether a business owner was committing a crime by permitting defendant to enter or remain in the business and whether defendant was a potential victim of that crime. However, the officer did not explain the nature of his investigation to defendant.
I do not cite this research to demonstrate that many people feel an internalized inclination to cooperate with police officers, but to demonstrate that, in a circumstance in which an officer asks for, obtains, and investigates a person’s identification, reasonable people would conclude that the officer had restrained their liberty.
It could be that what I perceive as a shift in focus is not so much a shift from Hall, but a return to Holmes and its discussion of what is “accepted” in social intercourse. Holmes,
The majority also states that “[t]he person who waits while a consent search is completed is not thereby seized for purposes of Article I, section 9.”
I understand that an individual could still feel, as a result of his or her own internal belief system, that he or she should remain. However, whether a seizure occurs depends on the message that an officer conveys to a reasonable person, and, when an officer explicitly informs an individual that he or she is free to go, contrary feelings are not reasonable in the constitutional sense.
Concurrence Opinion
concurring in the judgment of the court.
When, albeit politely, a uniformed police officer approaches a person on the street and requests the person’s identification, it is a fiction to suggest that most people would believe that they have a right to refuse the request or that, if they did, it would be prudent or safe to do so. When they comply with such requests, as most law abiding persons
Article I, section 9, provides, in part:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]”
Unlike the protections of the Fourth Amendment to the United States Constitution, the protections afforded by Article I, section 9, including the right to exclude unlawfully obtained evidence, are not aimed at deterring police misconduct; instead, they safeguard liberty rights that inhere in the people. State v. Thompkin,
The first question here — which is where the majority begins and ends its analysis — is whether defendant was seized when the police officer requested or later held, for a brief period, his identification. This court has struggled earnestly to give meaningful content to the inquiry
“[L]aw enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9[,] ‘seizure’ merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a ‘seizure’ if it is a normal means of attracting a person’s attention (e.g., policeman tapping citizen on the shoulder at the outset to get a citizen’s attention). See LaFave, 3 Search and Seizure, A Treatise on the Fourth Amendment 413, § 9.2(h) (2d ed 1987). Rather, the encounter is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”
For some time, courts in Oregon and elsewhere wrestled with a formulation of the Holmes test that asked whether a reasonable person, in the position of the subject citizen, would feel free to terminate or leave the encounter. State v. Ashbaugh,
*429 “[I]f [the free to walk away language] is taken to mean that a pedestrian whose movements have been interrupted and who is questioned is likely to feel free to depart without responding, it is a highly questionable conclusion. As noted in Illinois Migrant Council v. Pilliod[,398 F Supp 882 (ND Ill 1975)]: ‘Implicit in the introduction of the [officer] and the initial questioning is a show of authority to which the average person encountered will feel obliged to stop and respond. New will feel that they can walk away or refuse to answer.’ This, it is submitted, is an accurate characterization of the great majority of situations in which an officer approaches a pedestrian and seeks an explanation for his activities or even identification. Thus, if the ultimate issue is perceived as being whether the suspect ‘would feel free to walk away,’ then virtually all police-citizen encounters must in fact be deemed to involve a Fourth Amendment seizure. The [standard] should not be given such a literal reading as to produce such a result.”
LaFave, 4 Search and Seizure § 9.4(a) at 579-80.
In an effort to clarify the limits of police inquiries that do not amount to a seizure, this court has recently explained:
“[A] law enforcement officer constitutionally may halt and briefly detain a person passing through a public area as a means to engage the citizen long enough to impart information or seek the citizen’s cooperation or assistance. As Holmes emphasized, police are free to ‘approach persons on the street or in public places, question them, and even accompany them to another location without the encounter necessarily constituting a ‘seizure’ of a person [.]’311 Or at 409 . As [State v. Gerrish,311 Or 506 ,815 P2d 1244 (1991),] emphasized, especially in the case of a motorist, halting and briefly detaining a citizen, even when done pursuant to an officer’s show of authority, is often a nonintrusive and socially inoffensive way to seek a citizen’s cooperation or impart information.311 Or at 513 . The important distinction in both cases was the public nature of the encounter and the practical reality that authoritatively halting the passing motorists is often the only practical means for police to have an exchange with them. No seizure occurs because the police conduct is not a socially intrusive exercise of police authority in those particular settings and circumstances.”
State v. Fair,
I would be remiss in failing to acknowledge that this court in Holmes and in later decisions, including Fair, appears to have rejected concerns similar to the ones that I have just expressed. In Ashbaugh4 for example, the court stated that, even though the officer “asked defendant a question that one private citizen ordinarily would not ask another,” there was nothing about the officer’s words that would be perceived as a show of authority that restricted her freedom of movement.
“The critical factor is whether the [police officer], even if making inquiries a private citizen would not, ha[ve] otherwise conducted [themselves] in a manner which would be perceived as a nonoffensive contact if it occurred between two ordinary citizens.”
LaFave, 4 Search and Seizure § 9.4(a) at 582-83.
That approach should entail narrowing to a more straightforward and realistic scope what we mean by “mere conversation” between citizens and police officers and then assessing the constitutionality of seizures that exceed that threshold under the reasonableness standard that the text of Article I, section 9, imposes. Under such an approach, police are authorized to use ordinary means of communication to divert or restrict others in their activities or paths of travel in public places to the same extent that anyone else would, even if it involves a request for help in doing their jobs. But a request for identification transcends that type of ordinary interaction. Where, as here, a police officer makes such a request in an investigatory capacity, a citizen likely will believe that he or she cannot safely or prudently refuse and, thus, merely yield to an intrusion that otherwise would not be acceptable in ordinary social intercourse. And,
It follows that police conduct that would suggest to a reasonable person that the person is the focus of a police investigation, and that the person is obligated to cooperate until the investigation is completed, should be understood for what it is: a constitutionally significant interference with the person’s freedom of movement. See, e.g., State v. Hall,
The question remains whether the seizure was “unreasonable” for purposes of Article I, section 9. “Unreasonable” means “not governed by or acting according to reason * * * exceeding the bounds of reason.” Webster’s Third New Int’l Dictionary 2507 (unabridged ed 2002). “Reason,” in turn, is defined as “[a] statement offered as *** a justification of an act,” “a rational ground or motive,” or “a sufficient ground of explanation or of logical defense.” Id. at 1891. Thus, a particular action such as the seizure of a person is “unreasonable” when there is no rational justification for it. I am aware of no relevant context or historical evolution in the meaning of the word “unreasonable” or its roots that suggests that the framers of the Oregon Constitution would have
At first blush, it might seem odd — indeed, unnecessary — to reach that issue in this case. After all, if, having unmasked the fiction that the interaction in this case involved mere conversation, the court were to conclude that a seizure occurred, then there is little room for the state to maneuver under the three-category model of police-citizen encounters that the court recognized in Holmes. As the court recently reiterated:
“Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen’s liberty with the degree of justification required for the intrusion * * * At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed ‘stops, which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.”
Fair,
Defendant and his companion were in an adult bookstore when the officer encountered them. The owner, operator, or manager of such an establishment has a statutory duty under the criminal code not to knowingly or recklessly permit an unaccompanied minor to enter and remain on such premises. ORS 167.080. The officer testified that he suspected, based on their appearances, that defendant and his companion were both under the age of 18. As explained below, under those circumstances, the request for identification was reasonable, not because the officer believed that defendant had committed a crime, but because the officer had a duty to protect minors from an unlawful display of obscene materials.
I acknowledge that there is no generic “community caretaking function.” Whether law enforcement officers have specific functions is a matter of statutory law. ORS 133.033 provides:
“(1) Except as otherwise expressly prohibited by law, any peace officer of this state is authorized to perform community caretaking functions.
“(2) As used in this section, ‘community caretaking functions’ means any lawful acts that are inherent in the duty of the peace officer to serve and protect the public. ‘Community caretaking function’ includes, but is not limited to:
“(a) The right to enter or remain upon the premises of another if it reasonably appears to be necessary to:
“(A) Prevent serious harm to any person or property;
“(B) Render aid to injured or ill persons; or
*435 “(C) Locate missing persons.
“(b) The right to stop or redirect traffic or aid motorists or other persons when such action reasonably appears to be necessary to:
“(A) Prevent serious harm to any person or property;
“(B) Render aid to injured or ill persons; or
“(C) Locate missing persons.
“(3) Nothing contained in this section shall be construed to limit the authority of a peace officer that is inherent in the office or that is granted by any other provision of law.”
In this case, protecting a minor from being the victim of a crime is properly inherent in the duty of a peace officer to serve and protect the public. Therefore, the officer in this case was authorized by statute to ascertain the age of defendant and his companion if the officer reasonably believed that they were underage. However, the mere exercise of an activity under ORS 133.033 does not ensure compliance with Article I, section 9. In particular, a warrantless seizure must be justified by an exception to the warrant requirement. Holmes,
This court has not had an occasion to fully explore the relationship between the range of community caretak-ing functions that ORS 133.033 authorizes and any particular exception to the warrant requirement under Article I, section 9. However, in assessing the constitutional reasonableness of warrantless seizures, other courts have concluded that police requests for identification in furtherance of lawfully prescribed community caretaking functions — as opposed to the detection or investigation of evidence relating to a crime — do not violate constitutional guarantees against unreasonable searches and seizures. In State v. Vistuba, 251 Kan 821,
The concept of a community caretaking or public safety function stems from a recognition that “ [1] ocal police have multiple responsibilities, only one of which is the enforcement of criminal law[.]” State v. Acrey, 148 Wash 2d 738,
For those reasons, performance of a community caretaker function permits, in proper circumstances, police requests for, and the reasonable retention of, identification from people whom they encounter in the performance of their duties. State v. Ellenbecker,
Of course, community caretaking authority is not an excuse for carrying out a criminal investigation of the person being assisted. Rather, such an encounter must be based upon specific, articulable facts establishing the need for intervention by an officer. See State v. Page,
Following an in-depth analysis of various concerns informing the community caretaking doctrine, the Supreme Court of Montana adopted the following three-part test to ensure its proper application:
“First, as long as there are objective, specific and articula-ble facts from which an experienced officer would suspect that a citizen is in need of help or is in peril, then that officer has the right to stop and investigate. Second, if the citizen is in need of aid, then the officer may take appropriate action to render assistance or mitigate the peril. Third, once, however, the officer is assured that the citizen is not in peril or is no longer in need of assistance or that the peril has been mitigated, then any actions beyond that constitute a seizure implicating * * * the protections provided by the Fourth Amendment, but more importantly, those greater guarantees afforded under [the state constitution].”
State v. Lovegren,
That test and the principles underlying it make good sense to me. They have the advantage of being practical in relation to a rational understanding of police duties
So, where does that leave things in this case? The trial court found that, if anything, the officer was investigating whether defendant was the victim of a crime. The supporting evidence showed that, based on their appearances, the officer believed that defendant and his companion were underage. If defendant had been underage, and if the operator of the bookstore had recklessly or knowingly disregarded that fact, then defendant would have been the victim of a violation of ORS 167.080. As part of his community caretaking function, the officer’s request, taking, and brief examination of defendant’s identification to make that determination were reasonable under the circumstances. Because no unlawful seizure occurred, I respectfully concur in the judgment of the court.
I am aware that this definition of seizure omits parts of the longer and more convoluted definition set out in Holmes, and as later modified in State v. Ashbaugh,
From the unpaginated 1828 Webster’s Dictionary of American English:
“Unreasonable: 1. Not agreeable to reason. 2. Exceeding the bounds of reason; claiming or insisting on more than is fit; as an unreasonable demand. 3. Immoderate; exorbitant; as an unreasonable love of life or money. 4. Irrational.”
As pertinent here, the same source defined “reason” as:
“The cause, ground, principle or motive of any thing said or done; that which supports or justifies a determination, plan or measure ***. A faculty of the mind by which it distinguishes truth from falsehood, and good from evil, and which enables the possessor to deduce inferences from facts or from propositions.”
Nor is the community caretaking function a basis for police stop and frisk practices that are not based on reasonable suspicion that the person accosted has committed or is about to commit a crime. Police officers serve as community caretakers only when their actions are “totally divorced” from the detection,
The New York court has adopted the following four-category model for permissible encounters:
“If a police officer seeks simply to request information from an individual, that request must be supported by an objective, credible reason, not necessarily indicative of criminality. The common-law right of inquiry, a wholly separate level of contact, is ‘activated by a founded suspicion that criminal activity is afoot and permits a somewhat greater intrusion.’ Where a police officer has reasonable suspicion that a particular person was involved in a felony or misdemeanor, the officer is authorized to forcibly stop and detain that person. Finally, where the officer has probable cause to believe that a person has committed a crime, an arrest is authorized.”
People v. Hollman,