Twо law enforcement officers, believing that defendant was being assaulted, responded to an incomplete 9-1-1 call that had been traced to defendant’s home. One officer took defendant’s husband into custody, while the other officer proceeded to interview defendant on the porch of her home. While interviewing defendant, the officer made an observation that caused him to reasonably believe defendant might be in possession of drugs. The officer asked defendant if he could search her, and she agreed. During the search, the officer discovered a glass pipe with drug residue on it. Defendant was subsequently charged with possession of a controlled substance.
The issue that this case presents is whether the officers’ actions, commands, and inquiries in investigating the possible domestic assault resulted in a seizure of defendant within the meaning of Article I, section 9, of the Oregon Constitution and, if so, whether that seizure was constitutionally permissible. As we will explain, we conclude that defendant was seized for constitutional purposes, but we further conclude that the seizure was lawful. We accordingly reverse the decision of the Court of Appeals and affirm the trial court’s judgment.
I. FACTS AND PROCEDURAL HISTORY
Lieutenant Utter and Deputy Mendoza were dispatched to defеndant’s house to investigate an incomplete 9-1-1 call traced to that address. The dispatch operator had reported that, during the call, a woman was overheard saying “stop it” and “get off me,” a man was heard yelling in the background, and then the call was disconnected. While the officers were en route to the house, dispatch made several attempts to call the number from which the 9-1-1 call had been initiated, but no one answered.
After arriving at the house, Utter and Mendoza circled it on foot. Through a sliding glass door at the back of the house, Mendoza observed an angry-looking man. Mendoza “command[ed]” the man to come to the door and to keep his hands where Mendoza could see them, but the man moved farther into the house, out of Mendoza’s sight. Utter and Mendoza went to the front of the house and knocked on the door. Within a few moments, defendant and the man, later identified as defendant’s husband, answered the door together. Utter observed a large swollen area over defendant’s right eye, but no signs of injury to her husband. Mendoza ordered both defendant and her husband to come out of the house and onto the porch. As they did so, Mendoza handcuffed the husband and moved him to the far side of the porch, approximately 20 feet away from defendant. The husband called out to defendant as he was moved, telling her not to say anything. Utter “instructed” defendant to stay where she was on the porch, and the officers positioned themselves between defendant and her husband. Defendant’s husband continued to call out to defendant intermittently during the ensuing interview, telling her not to talk to Utter.
After Mendoza took defendant’s husband into custody, Utter conversed with defendant. Utter explained that he and Mendoza were there because of the incomplete 9-1-1 call received by dispatch that was traced to the address. Defendant initially denied making the call, but then said that she had done so accidentally. When Utter continued to ask defendant about the call, defendant admitted that she had been arguing with her husband and had called 9-1-1 when the argument escalated. Utter asked defendant for identification. She said she did not have any. Defendant told Utter her name and birth date and said that she and her husband were recently married. When asked, defendant also provided her maiden name. When Utter ran defendant’s married and maiden names through dispatch, the dispatch operator told him that there were no “wants” for defendant and no driving record for her. Because there was no driving record for her,
Utter then turned his questioning to the argument leading up to the 9-1-1 call and asked defendant in particular about the evident injury above her eye. Defendant told him that it was accidentally inflicted when items she was loading on top of a vehicle slipped. As Utter began asking whether defendant felt threatened by her husband during the argument, Utter observed an orange plastic syringe cap fall out of defendant’s pant leg. That observation prompted Utter to question defendant about her drug use. Defendant admitted to using intravenous drugs and ultimately consented to Utter’s search of her person. In the back pocket of defendant’s pants, Utter discovered a wadded-up napkin containing a broken glass pipe with drug residue on it. Utter alerted Mendoza to his discovery, and Mendoza placed defendant under arrest for possession of a controlled substance.
Before her trial оn that charge, defendant moved to suppress the pipe, arguing that, under Article I, section 9, of the Oregon Constitution, the officers’ conduct and commands before Utter observed the syringe cap fall from defendant’s pant leg, had resulted in the officers unlawfully “seizing” defendant. Defendant urged that her consent to search was a product of that illegality, with the result that the pipe discovered during the search should be suppressed. The state countered that “[t]here was no unlawful stop” because none of the officers’ actions or commands amounted to a seizure for constitutional purposes. According to the state, defendant was lawfully searched based on Utter’s observation of the syringe cap, which gave him a reasonable basis to believe defendant was in possession of drugs at that time, at which point Utter requested, and defendant voluntarily gave, consent to the search.
The trial court denied defendant’s motion to suppress, agreeing with the state that defendant had not been seized. Defendant entered a conditional plea of guilty, reserving her right to challenge the trial court’s denial of her suppression motion. She later appealed, and the Court of Appeals reversed. On appeal, the court observed that defendant was “ordered — not requested — to come out of her house and was told to remain outside with the officer while an investigation occurred.” State v. Fair,
II. ANALYSIS
A. Was Defendant Seized Under Article I, Section 9?
The threshold question is whether the officer, in the course of investigating the possible domestic assault, seized defendant within the meaning of Article I, section 9.
As this court has observed, “[t]here potentially is an infinite variety of encounters between law enforcement officers and citizens [,]” and “ [n] ot every such encounter constitutes a ‘seizure’ of the citizen” for constitutional
This court recently clarified the standard for determining when a police-citizen encounter rises to the level of a constitutional seizure. Specifically, we held that a seizure occurs
“(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”
State v. Ashbaugh,
“Under these ‘seizure’ standards, 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. 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 сitizen 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. See id.”
Id. at 410. Although the standard to be applied can be readily articulated, in practice, the line between a “mere encounter” and something that rises to the level of a “seizure” does not lend itself to easy demarcation. Depending on the circumstances involved, “[i]n many cases it is clear that a
In this case, in arguing that she was seized, defendant focuses on what she characterizes as an “escalating show of authority” by the law enforcement officers that began with them entering the backyard without permission and commanding defendant’s husband to come to the sliding glass door, keeping his hands visible. When defendant’s husband retreated farther into the house and out of view, the officers went to the front door and knocked. After a few moments, defendant and her husband opened the door, at which point Mendoza ordered them to step out onto the porch. Mendoza handcuffed defendant’s husband and moved him to the far end of the porch, while Utter told defendant to stay where she was, and began to question her. Relying on the totality of those facts, defendant argues that when Mendoza ordered her out of her home and Utter ordered her to stay where she was on the porch while he questioned her, those actions amounted to a clear show of authority that restrained defendant’s liberty and freedom of movement. Citing State v. Dahl,
The state responds by agreeing that, if the officers had detained defendant and investigated her as someone who had possibly committed a crime, their conduct would have amounted to a seizure. The state argues, however, that the intrusiveness of the officers’ conduct was significantly lessened because they detained defendant as a potential victim who might need emergency assistance and who could provide information about the possible assault on her by her husband. The state relies on State v. Gerrish,
The state, however, reads Gerrish too broadly. To better explain the limits of our holding in Gerrish, we begin with a more detailed description of our holding in Holmes, on which Gerrish relied.
Holmes involved a detour set up by a deputy sheriff at one side of a bridge to reroute traffic around the scene of a motor vehicle accident. The deputy had placed flares on the highway and had activated the overhead lights on his patrol car. He was in uniform, holding a flashlight, and directing traffic. The defendant drove a few feet beyond where the deputy had directed the defendant to stop, then spoke to the deputy though the rolled-down window of the defendant’s car. While the deputy was explaining to the defendant the need to take the detour, the deрuty made observations that gave him probable cause to believe that the defendant was intoxicated. The defendant was ultimately arrested and charged with driving under the influence of intoxicants. Before trial, he sought to suppress evidence of his intoxication on the ground that he had been unlawfully seized when the deputy ordered him to stop. Holmes,
Gerrish, which was decided only two months after Holmes, involved similar facts, and led to a similar holding. There, a state police officer was stoрping all vehicles on the only road exiting a coastal resort where a robbery and shooting had recently occurred. The purpose of the stops was “to determine whether any of these persons witnessed the shooting/robbery, or to possibly find the perpetrator.” Gerrish,
“[T]he officer’s initial actions of flagging defendant down and directing him to stop were the only means available to get [the] defendant’s attention long enough to request information. These actions are analogous to ‘tapping [a] citizen on the shoulder at the outset to get a citizen’s attention.’ This is not a significant restriction upon or interference with an individual’s liberty or freedom of movement; nor would a reasonable individual believe that it was.”
Id. (quoting Holmes,
Together, Holmes and Gerrish stand for the limited proposition that 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 а ‘seizure’ of a person[.]”
In our view, this is one of those instances, referred to in Holmes, that presents a close question as to whether the police-citizen encounter is a “seizure” for constitutional purposes.
We therefore agree with the Court of Appeals, which concluded that the officers’ conduct here went beyond that in Holmes and Gerrish and amounted to a significant restraint on defendant’s liberty within her own home sufficient to constitute a seizure:
“The ‘mere encounters’ in Holmes and the cases underlying it occurred in streets or other public places. There is a significant difference between the typical circumstances of a police officer approaching a person on a public street — for example, by flagging down a motorist in order to conduct a brief exchange of information, as was the case in Holmes[ and] Gerrish *** — and a police officer going to the door of a person’s home, ordering the person out of the home, and instructing the person to remain with the police officer, which is what occurred in this case.”
Fair,
B. Was the Seizure Lawful?
With that conclusion in place, the next question is whether defendant’s seizure was lawful under Article I, section 9. By its terms, Article I, section 9, does not prohibit all searches and seizures. Rather, it guarantees citizens the right to be “secure in their persons * * * against unreasonable search, or seizure.” Or Const, Art I, § 9. Although the syntax differs, the guarantee of the Fourth Amendment to the United States Constitution is substantively the same: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, * * * ” Both provisions impose limitations on searches and seizures “in order to prevent arbitrary and oppressive interference by [law] enforcement officials with the privacy and personal security of individuals.” Tourtillott,
Consequently, for purposes of Article I, section 9, this court has embraced the analysis that originated under the Fourth Amendment, which distinguishes between temporarily detaining for investigation and arresting on probable cause. In particular, this court has recognized that “there is nothing ipso facto unconstitutional in the brief detention of citizens under circumstances not
Relying on those precepts, the state urges that the same “due regard for the practical necessities” of law enforcement and the same lesser intrusion on liberty entailed by a temporary detention that justify detaining a potential suspect equally justify the temporary detention of a potential witness who can provide information about a crime. The state proposes a rule that would recognize temporary investigatory detentions of witnesses to be lawful if (1) the officer reasonably believes that an offense involving danger of forcible injury to a person has recently been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime.
Defendant’s argument, in response, proceeds from a different premise. Defendant asserts that, under Article I, section 9, all searches and seizures must be authorized by a constitutionally sufficient warrant or fall within an exception to the warrant requirement. In defendant’s view, therefore, law enforcement officials who seek to question a potential witness to or victim of a crime have only two choices. One is to engage a citizen in a noncoercive ie.g., nonseizure) fashion, as occurred in Holmes, which is conduct that falls outside of Article I, section 9, altogether. Alternatively, officers may use the procedures established by statute to subpoena a witness or hold a material witness pursuant to judicial order,
Contrary to the premise of defendant’s position, however, the warrant requirement traditionally has not extended to
Indeed, were a warrant, or an exception to a warrant, required for a seizure of a person outside the home, no Cloman- or Terry-like stop of a criminal suspect based on reasonable suspicion would be constitutionally permissible. The only warrant known to the law for a seizure of a criminal suspect is an arrest warrant. There is not, nor could there be, a warrant to detain on reasonable suspicion; a constitutionally sufficient warrant must be supported by probable cause. See Or Const, Art I, § 9 (“no warrant shall issue but upon probable cause”); US Const, Am IV (same). Exceptions to the warrant requirement excuse the necessity of obtaining a warrant from a neutral magistrate in advance of a search or seizure; they do not change the requirement that police have probable cause to support their action. In other words, the very premise of defendant’s position runs counter to the developed law regarding temporary detentions of citizens for investigatory purposes.
The question here accordingly narrows to whether it is reasonable for a law enforcement officer to take an intermediate step that is short of arrest, but that still entails significantly restricting the citizen’s freedom to lеave, in order to question the citizen as a potential witness to or victim of a crime. With apparent unanimity, other courts and authorities examining that question under the Fourth Amendment and parallel state constitutional provisions have concluded that the answer is yes, although the circumstances in which such stops have been found reasonable are sometimes more limited than those that justify stops of criminal suspects. See generally Wayne R. LaFave, 4 Search and Seizure § 9.2(b), 377-81 (5th ed 2012) (discussing principles and citing representative cases).
In reaching that conclusion, many have followed, to one extent or another, the lead of the Model Code of PreArraignment Procedure, which identifies various circumstances in which a law enforcement officer may “order a person to remain in the officer’s presence near such place for such period as is reasonably necessary” to accomplish certain authorized purposes in the investigation of crimes. American Law Institute, A
The commentary to the Model Code discusses the rationale for section 110.2, explaining that law enforcement officers often are confronted with situations in which an officer needs “to acquire some further information from or about a person whose name he does not know, and whom, if further action is not taken, he is unlikely to find again.” § 110.2 at 270 (footnote omitted). Such a person may not appear to be involved in any criminal activity, but having been found near the scene of a crime, may be a “potential source of information.” Id. The commentary concludes that it would be “irrational” not to authorize officers responding to “confused, emergency situations” to “freeze the situation for a short time, so that [they] may make inquiry and arrive at a considered judgment about further action to be taken.” Id. at 272 (quotation marks omitted). Professor LaFave generally agrees, asserting that the Model Code takes “the sensible position that the power to stop may constitutionаlly be extended so as to encompass the brief detention of potential witnesses in at least certain situations.” LaFave, 4 Search and Seizure § 9.4(b) at 377. As noted, courts considering the question have reached the same conclusion with apparent unanimity, although with some variation in the circumstances in which temporary detention of a potential witness will be considered reasonable for constitutional purposes.
We likewise conclude that, in appropriate circumstances, it is permissible under Article I, section 9, for officers to stop and detain someone for on-the-scene questioning whom they reasonably suspect can provide material information about a crime’s commission. Both potential witnesses to and victims of a crime can be sources of valuable information that can aid officers in the field in making better informed, on-the-spot investigatory decisions about whether and who to temporarily detain or arrest, what leads to pursue, and even which physical or other tangible evidence to gather. Persons who possess material information about a crime are also sources of evidence — testimonial evidence, to be sure, but evidence just the same. Such evidence is potentially as beneficial to the defense as to the prosecution, a fact reflected in the value our legal system places on a criminal defendant’s constitutional right to compulsory process and statutory subpoena powers. See Or Const, Art I, § 11 (accused in criminal case has right to compulsory process for obtaining witnesses in his favor); ORS 136.567 (defendant in criminal action entitled to subpoena witnesses at state expense). Knowing the identity of and the information to be provided by a witness to or a victim of a crime is as fundamental to our criminal justice system as is apprehension of a potential offender. Consistently with Cloman,
We therefore hold that officers constitutionally may, in appropriate circumstances, stop and temporarily detаin for questioning a person whom they reasonably believe is a potential material witness to a crime. We further agree with the basic test that the state has proposed for determining the circumstances in which such a temporary detention will be reasonable. In particular, we agree that the stop and temporary on-the-scene detention of a likely material witness will be constitutional if: (1) the officer reasonably believes that an offense involving danger of forcible injury to a person recently has been committed nearby; (2) the officer reasonably believes that the person has knowledge that may aid the investigation of the suspected crime; and (3) the detention is reasonably necessary to obtain or verify the identity of the person, or to obtain an account of the crime. In adopting those factors, we do not foreclose refinement of them in future cases involving other factual circumstances. But for purposes of analysis of this case, those considerations suffice.
The officers then ordered defendant and her husband onto the porch of their home, where the officers separated them by directing defendant to stay where she was on the porch, while arresting and moving her husband to the far side porch, about 20 feet away. In taking that action, the officers had probable cause (not just reasonable suspicion) to believe that defendant’s husband had assaulted her. Ordering the two from their home not only significantly intruded on their liberty interests, but also invaded their privacy interests in the sanctity of their home. As such, under Dahl, the officers’ conduct not only was a seizure, but it was one that, to be rеasonable, ordinarily requires a warrant.
We further conclude that the officers, having taken that lawful action, could also detain defendant temporarily for purposes of investigation. The officers’ observations and information up to that point gave them an objectively reasonable basis to believe that defendant was a victim of a domestic assault that had just occurred at the home and likely possessed information material to that crime. The officers did not know defendant’s identity. They did not know what defendant could tell them about the circumstances of the aborted 9-1-1 call. They did not know any number of things relevant to their investigation that defendant
Defendant argues, however, that even if officers could constitutionally stop and detain her for questioning as a potential witness to and victim of a crime, the stop was nevertheless unlawful for two reasons. First, defendant argues, there was no emergency that called for the officers to have defendant stay where she was on the porch for questioning once her husband had been “neutralized.” At that point, according to defendant, the officers had no reason to believe that defendant would flee or that defendant’s memory would fade. Nor did defendant appear to have an injury requiring aid or assistance. In defendant’s view, therefore, there was no reason for the officers not to simply “come back later to talk to defendant” and seek her voluntary cooperation. Defendant therefore argues that, once her husband was isolated at the far end of the porch, the officers could not reasonably detain and question defendant at all.
That argument disregards the essential rationale that makes such a stop constitutionally permissible, however. The officers did not know defendant’s identity; they did not know what she could tell them about the aborted 9-1-1 call or her аpparently recent injury. The officers were, in the words of the Model Code commentary, confronted with a “confused, emergency situation[.]” § 110.2 at 272. Moreover, whatever the officers’ initial observations, and however objectively reasonable their initial beliefs about what had occurred and defendant’s and her husband’s respective roles, officers are not constitutionally compelled to halt an on-the-scene investigation when their suspicions rise to a particular level. See State v. Taylor,
To that end, it was reasonable for the officers to “freeze the situation for a short time, so that [they could] make inquiry and arrive at a considered judgment about further action to be taken.” Model Code § 110.2 at 272 (internal quotation marks omitted). As the United States Supreme Court has cautioned, the Fourth Amendment protection against unreasonable seizures of a person “is not well served by standards requiring sensitive, case-by-case determinations of government need, lest every discretionary judgment in the field be converted into an occasion for constitutional review?’ Atwater,
Defendant also argues that the officers exceeded the scope of a reasonable investigation by checking law enforcement records for any outstanding warrants and asking defendant whether she had been previously arrested and then, when she said yes, asking her on what charge. Under the particular facts of this case, however, those inquiries were reasonably necessary to determine defendant’s identity. The officer who questioned defendant had difficulty verifying her identity. She did not have any form of identification to show him. Nor could dispatch identify her as a licensed driver; in fact, as she confirmed for the officer, defendant had never had a driver’s license. Dispatch could tell the officer only that their records showed that law enforcement had had “some form of contact” with a person with defendant’s maiden name. Asking defendant if she had ever been arrested thus served two purposes reasonably related at that point to the reasons for temporarily detaining defendant. First, it potentially validated defendant’s identity by verifying the information in the database. Second, asking what the arrest had been for was a reasonable way to ascertain whether defendant had a prior history of domestic violence. See ORS 133.055(2)(c) (discussed earlier,
III. CONCLUSION
In summary, we hold that defendant was seized by the officers’ directives to step out of her home and remain on her front porch because those directives were a show of authority that would cause a reasonable person in defendant’s circumstances to believe that her liberty had been significantly restricted. We also hold, however, that the
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
Notes
Article I, section 9, of the Oregon Constitution provides:
“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”
As this court explained in Holmes, “[t]he three categories are guidelines only. They are neither exhaustive nor conclusive as to what police action is a ‘seizure’ of a person.”
The constitutional standard for a seizure was originally announced in Holmes and included consideration of the citizen’s subjective belief that police were depriving the citizen of her or his freedom or liberty of movement.
The court in Holmes also remarkеd that “[i]t would be anomalous to guarantee a motorist greater freedom of movement than is afforded a pedestrian.”
As the state points out, the court in Gerrish acknowledged in a footnote that the officer, in stopping all cars leaving the resort, had the dual purpose of questioning witnesses and possibly apprehending a suspect. The court declined to analyze whether the defendant was lawfully stopped as a criminal suspect because “the officer was justified in stopping [the] defendant as a potential witness].]” Gerrish,
A later footnote in Gerrish underscored the limits of its rationale. In rejecting the defendant’s argument that he was seized for purposes of the Fourth Amendment of the United States Constitution, this court observed that the American Law Institute’s Model Code of Pre-Arraignment Procedure (1975) would authorize officers to detain a potential witness for questioning under specified circumstances. Gerrish,
Our focus on the significance of the setting in this case should not be understood to mean that police conduct in halting, detaining, and directing the actions of citizens in public settings, as opposеd to private homes, cannot constitute a seizure when done to engage those citizens as potential witnesses or victims, either to impart information, seek cooperation, or to offer emergency aid. We have no occasion in this case to explore those different factual scenarios, other than that to point out that, consistently with the holdings in Holmes and Gerrish, there at least are circumstances in which law enforcement efforts to engage citizens are not sufficiently intrusive on an objective basis as to rise to the level of a seizure. Beyond that, other cases will have to be resolved on their individual facts.
Cloman was not explicitly based on Article I, section 9, but the length to which it went to explain its “approval” of the federal analysis, rather than merely follow it, suggested implicitly that the court was deciding the case as a state law matter. Both this court and the legislature so understood Cloman. After Cloman, the legislature enacted the Oregon stop statutes (ORS 131.605 to 131.625) and, in doing so, sought to codify both this court’s decision in Cloman and the United States Supreme Court’s decision in Terry. See State v. Valdez,
See, e.g., ORS 136.557 to 136.570 (providing for subpoenas to compel attendance of witnesses at preliminary hearings, grand jury proceedings, and trial); ORS 136.608 (providing for district attorney or defendant to apply to court for a material witness order; requiring sworn application establishing, inter alia, that person subject to order possesses information material to pending charge or grand jury pi'oceeding and will not appear when attendance is required).
The Model Code authorizes an officer to stop and detain a person when:
“(i) The officer has reasonable cause to believe that a misdemeanor or felony, involving danger of forcible injury to persons or of appropriation of or danger to property, has just been committed near the place where he finds such person, and
“(ii) the officer has reasonable cause to believe that such person has knowledge of material aid in the investigation of such crime, and
“(in) such action is reasonably necessary to obtain or verify the identification of such person, or to obtain an account of such crime.”
§ 110.2(l)(b) at 6. The note following section 110.2 of the Model Code explains that subsection (l)(b)
“allows an officer coming upon the scene of a recently committed crime to ‘freeze’ the situation and obtain identifications and an account of the cirсumstances from the persons present. Thus this paragraph *** is applicable to witnesses as well as suspects. The officer may only stop for this purpose if he has reasonable cause to believe that the crime has been committed and that the persons whom he stops have knowledge of material aid to the investigation of it.”
§ 110.2 at 9-10.
Cases that have followed the Model Code approach in the context of violent crimes include: People v. Hernandez,
Other cases have approved of stops in circumstances in which it is less clear that the crime committed would qualify under the Model Code. See, e.g., State v. Pierce, 173 Vt 151, 157,
Finally, consistently with the Model Code, a few courts have invalidated stops where the crime was too remote. People v. Spencer,
We do not decide in this case whether a temporary detention to question someone who potentially has information material to the commission of a crime is reasonable only for certain levels of offenses or ones involving personal injury or property damage. See Model Code § 110.2(l)(b)(i) at 6 (approving of witness detentions for crimes involving appropriation of or damage to property, as well as for forcible injury). Nor need we resolve more specifically how close the stop must be, temporally or geographically, to the commission of the crime. See id. (offense must have “just” been committed “near the place” where potential witness is found). Those issues are better resolved on facts that present them or pose close questions on their resolution. Here, the potential crime was an assault involving forcible personal injury, and it was either on-going when police arrived at the sсene or had been very recently committed.
Worth noting is that, until the officers arrived at the scene and gained those confirming observations, either of two crimes might have been involved: a domestic assault (which, depending on the circumstances and severity, could violate any of several statutes) or initiating a false report, ORS 162.375, a Class C misdemeanor. If the officers’ observations had immediately dispelled any reasonable suspicion that a domestic assault had occurred or was occurring, and instead had provided only a basis to believe that a false report had been made, under the Model Code approach, the officers would not have been able to temporarily detain and question either defendant or her husband to investigate that possible crime because it would not have been a crime involving injury to person or property, as the Model Code requires. § 110.2(l)(b)(i) at 6. We need not decide whether our constitutional provision requires that same limitation, however, because here, the officers in fact had reasonable suspicion that the crime committed was a personal assault.
In this particular context, the general reasonableness of those and similar inquiries is bolstered by the special duties that the legislature has placеd on officers responding to incidents of domestic abuse. By the time the officers ordered defendant and her husband to step out of their home and onto their porch, the officers had probable cause to believe that there had been an assault between household members, and probable cause to believe that defendant’s husband was the assailant. But that does not mean that a responsible on-the-scene investigation could not continue in an effort to confirm or dispel what the officers reasonably suspected or had probable cause to believe had happened. In domestic violence situations, ORS 133.055(2)(c) specifically charges investigating officers with making “every effort” to determine who was “the assailant or potential assailant,” even after an arrest has been made. In doing so, officers have a duty to consider, if the information is “reasonably ascertainable,” the history of domestic violence between the persons involved; whether any alleged crime was committed in self-defense; and the potential for future assaults. ORS 133.055(2)(e)(A) - (D). Officers are further required to “use all reasonable means to prevent further abuse” of a person they believe to be a victim of domestic abuse, “including advising еach person of the availability of a shelter or other services in the community and giving each person immediate notice” in writing of an extensive list of rights and remedies as specified by statute. ORS 133.055(3).
The Court of Appeals did not consider the lawfulness of the seizure as an independent inquiry. Instead, the court appeared to proceed from the premise that any seizure of a person as a potential witness rather than as a criminal suspect— even if brief and for limited questioning — was per se unlawful under Article I, section 9. With our holding in this case, we reject that apparent implicit premise of the court’s analysis.
After attempting to determine and verify defendant’s identification, the officer continued his interview by asking defendant about the circumstances of the assault and the 9-1-1 call. The orange syringe cap fell from defendant’s pant leg as the officer asked defendant if she felt threatened by her husband during their argument. Because we conclude that the officer’s inquiries were lawful, we need not determine whether there was a sufficient relationship between them and the evidence that the officer later discovered. See generally State v. Rodriguez,