Dеfendant was convicted of possession of a controlled substance, former ORS 475.992 (2003), and appeals his conviction, assigning error to the trial court’s denial of his motion to suppress evidence. Defendant also raises an evidentiary issue in a supplemental assignment of error. As explained below, we conclude that defendant was stopped unlawfully and that the evidence that he sought to suppress was gained as a result of that unlawful stop. Accordingly, we reverse and remand on that basis and do not reach defendant’s supplemental assignment of error.
On review of the denial of a motion to suppress, we are bound by the trial court’s factual findings if there is constitutionally sufficient evidence in the record to support them.
State v. Ehly,
Desmond was aware that both the driver and defendant had been involved in drug activity in the past. Desmond explained that he was chеcking the driver’s probationary status because “most probationers have a clause in their probation that they’re not to hang out with other, what is referred to in their probation, [as] other druggers or other drug associates. And, based on the circumstances, he was associating with people that I believe were other drug associates.” Desmond also was aware that several people known to him to be involved in drug activity had resided in the apartment where defendant and Sears had knocked on the door. When defendant returned to the car, and while Desmond was waiting for dispatch personnel to contact him *103 about the driver’s probationary status, Desmond asked defendant if he was on probation. Defendant replied that he was not. Because Desmond doubted defendant’s veracity about whether he was on probation, he requested defendant’s identification, wrote down information obtained from his driver’s license, and returned the license. Desmond retained defendant’s identification fоr approximately 30 seconds to a minute. Desmond then returned to his car, ran a check, and “was surprised to learn” that defendant was not on probation. (Desmond also requested Sears’s license, wrote down information, and checked his probationary status at the same time.) Desmond may have told defendant that he had verified that defendant was not on probation.
Desmond then spoke with Sears and obtained consent to search him. While Desmond was searching Sears, a second officer, Fessler, arrived and acted “as a cover officer.” At that point, defendant was standing by the open trunk of the car. Desmond then asked for permission to search defendant. Defendant replied that he would empty his pockets. Defendant pulled a container out of his pocket. Desmond asked defendant if he would open the container, and defendant carefully extracted some jewelry from it, without allowing Desmond to see what remained in the container. Defendant returned the containеr to his pocket and moved his hand around in the pocket in a way that made Desmond suspect that defendant was emptying something from the container. Fessler was under the impression that defendant may have been trying to conceal something from his pocket in the car’s trunk. Desmond asked if he could look at the container. Defendant pulled the container from his pocket and concealed something from the container in his hand before showing Desmond the container, which was empty. Fessler thеn grabbed defendant’s hand, saw what appeared to be a portion of a baggie in it, and ordered defendant to drop it. After a short struggle, defendant dropped a baggie that was later determined to contain methamphetamine.
Desmond testified at the suppression hearing that, at the point when defendant had returned to the car from knocking on the apartment door, he believed that he had reasonable suspicion to stop defendant, based on defendant’s drug history and Desmond’s awareness that the apartment *104 was associated with drug activity. He further testified that he asked for consent to search defendant because he “believed that there was a good possibility that he would have a controlled substance in his possession.” Fessler testified that, at the point when he grabbed defendant’s hand, he believed that defendant was in possession of drugs or drug packaging materials. He testified that defendant was not free to leave at that point.
The trial court concluded that, given Desmond’s knowledge of defendant’s criminal history and the fact that defendant had gone to the apartment, Desmond had reasonable suspicion that defendant was involved in criminal activity, and thus had a sufficient basis for asking defendant for his identification. The trial court further concluded that, although the taking of defendant’s identification constituted a stop, after Desmond had returned defendant’s identification to him, defendant was free to go, and then voluntarily consented to a search. Finally, the court concluded that, when Fessler saw what he believed to be a baggie in defendant’s hand, “under the circumstances it was reasonable to believe that it contained contraband,” and because it was in plain view, “the officers were justified in seizing what was from his hand.”
On appeal, defendant challenges virtually every aspect of the court’s conclusions regarding the encounter. More particularly, defendant argues that there was no reasonable suspicion before Desmond asked for defendant’s identificatiоn, the stop did not end when Desmond returned the identification, the consent was not valid because it turned on the exploitation of the prior illegal stop, and in any event, the court erred in ultimately concluding that the item forced from defendant’s hand during the search was in plain view.
The state responds that defendant did not adequately preserve a number of his arguments, including whether the police exploited a prior illegality to obtain defendant’s consent to search. After review of the record, wе conclude that the issues we address below were adequately preserved. Although it is true that some of the challenged conclusions stemmed from the prosecutor’s advancement of various bases for upholding the search, i.e., that the police did *105 not exploit the prior illegality, and that the seizure of the baggie was justified because it was in plain view, those issues were fairly before the trial court, and hence defendant is entitled to raise them on appeal. 1
The state also makes а preliminary argument that, contrary to the trial court’s explicit conclusion otherwise, defendant was not stopped when Desmond requested his identification and ran a check to determine his probation status. In particular, the state contends that
State v. Hall,
For purposes of Article I, section 9, of the Oregon Constitution, a stop occurs when a police-citizen encounter goes beyond a mere conversation that involves no restraint on liberty, and the officer temporarily restrains the citizen’s liberty. Such a stop requires reasonable suspicion of the citizen’s criminal activity.
State v. Holmes,
When an officer is issuing a citation to the driver of a car, passengers in the car may be stopped in the physical sense but are not necessarily seized in the constitutional sense, although a “ ‘further exercise of coercive authority over the passengers’ by officers ‘may, in certain circumstances, constitute a seizure.’ ”
State v. Thompkin,
In numerous other cases both before and after
Hall,
Oregon appellate courts have concluded that an officer’s action in requesting a defendant’s identification and running a records check was a stop for purposes of Article I, section 9.
See State v. Painter,
The state maintains that Hall (and presumably our numerous cases cited above following Hall) are matеrially different from the present case. As explained below, we conclude that the differences in the facts here are not significant enough to lead to a contrary conclusion.
We begin with a review of Hall. In that case, the defendant was stopped by a police officer, Deese, who asked for the defendant’s identification and ran a warrant check. Deese returned the identification before receiving information from dispatch personnel and began inquiring about weapons and seeking permission to search the defendant. After receiving such permission, Deese located a glass vial during a pat-down search, opened it, and discovered a controlled substance. Id. at 10-11. The Supreme Court began its analysis by noting that neither probable cause nor reasonable suspicion supported a stop, and thus the only question was whether the trial court had correctly concluded that the defendant had not been stopped. The court concluded that the defendant had been stopped:
“In this case, Deese’s initial actions of stopping his vehicle next to defendant and then gesturing for defendant to approach him did not intrude upon defendant’s liberty of movement, because, even if Deese inconvenienced defendant, his actions did not constitute a show of authority involving conduct ‘significantly beyond that accepted in ordinary social intercourse.’ [State v. Holmes,311 Or 400 , 410,813 P2d 28 (1991).] When Deese took defendant’s identification card and radioed the police dispatch for a warrant check, however, the consensual nature of that encounter dissipated, and the encounter evolved from a ‘mere conversation’ encounter into a restraint upon defendant’s liberty of movement. It is true that * * * Deese promptly returned defendant’s identification card. Nevertheless, when Deese did so, defendant was cognizant that Deese was investigating whether defendant was the subject of any outstanding warrants. Although the state insists to the contrary, we find it difficult to posit that a reasonable person would think thаt he or she was free to leave at a time when that person is the investigatory subject of a pending warrant *108 check. We further observe that, in this case, Deese did nothing to dispel what would have been an objectively reasonable belief that defendant was restrained from leaving until Deese had received the results of the warrant check. Instead, immediately upon returning defendant’s identification card, Deese questioned defendant about whether defendant was carrying any weapons, knives, оr illegal drugs, and he asked defendant for consent to search defendant’s person.”
Id. at 19.
The state argues that Hall is distinguishable because its holding is, in the state’s view, “expressly based upon the defendant’s knowledge that he was the subject of a pending investigation.” Here, the state argues, no evidence supports a conclusion that defendant knew that he was the subject of an investigation, despite the fact that the officer took defendant’s identification, wrote down defendant’s license number, then returned to the patrol car to radio the dispatcher. The state argues that, under the totality of the circumstances, “there is no evidence that defendant knew that he was the subject of a records request, and there is no other evidence from which a reasonable person would have felt unable to leave.” Moreover, the state notes that, because Desmond had not concluded his stop of the driver, the driver remained Desmond’s primary focus and thus defendant was not the “investigatory subject” as was the defendant in Hall. Id.
First, we disаgree that a reasonable person whose identification information has been written down by a police officer who has just inquired about the person’s probationary status would not understand that he or she was the subject of an investigation. Given that defendant was a passenger rather than the driver of the car and thus not the subject of the traffic violation investigation, and further, that the officer had just inquired about defendant’s probationary status, a reasonable person in defendant’s position would believe that the officer wrote down the identifying information and then immediately returned to his car with that information in order to run some type of records check.
*109
That Desmond retained defendant’s identification only for a short time is not dispositive.
State v. Rider,
As to the state’s argument that the driver, not defendant, was the primary target of Desmond’s investigation, the point is not well taken. We do not believe that
Hall
suggests that an analysis of a stop hinges on how many suspects are stopped or under investigation. Certainly, in none of the numerous cases cited above concerning passengers in cars that had been stopped for traffic violations did we suggest that an officer’s attention to issuing a traffic citation to a driver was significant in determining whether the passenger also had been stopped.
See
On these facts, it may be inferred under the totality of the circumstances that (a) defendant understood that Desmond was investigating him when he sought defendant’s identification and continued to investigate him through the time that the drugs were discovered, (b) defendant did not believe that he was free to leave, and (c) defendant’s belief was objectively reasonable. The trial court correctly concluded that, under Hall, the request for defendant’s identification, closely followed by the check of defendant’s probationary status, and the request for consent to search defendant, constituted a stop.
As noted, the trial court concluded that the stop was justified by reasonable suspicion of criminal activity. Defendant contends that it was not, and the state concedes that point. We accept that concessiоn: the record in this case reflects no more than that Desmond had generalized knowledge that defendant and the driver had a criminal history relating to drugs and was seen knocking at the door of an apartment where people known for drug activities had lived at some point.
See generally State v. Valdez,
In sum, defendant was stopped without reasonable suspicion. That was an unlawful stop under Article I, section 9, of the Oregon Constitution. Whether the unlawful stop was ongoing at the time when the drugs were found is not dispositive of whether defendant is entitled to suppression. Under Hall, even if a defendant has established a “minimal factual nexus” between evidence sought to be suppressed and unlawful police conduct,
*111 “the state nevertheless may establish that the disputed evidence is admissible under Article I, section 9, by proving that the evidence did not derive from the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant’s rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant’s rights under Article I, section 9; or (3) the preceding violation of the defendant’s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that the unlawful police conduct cannot be viewed properly as the source of that evidence.”
The state argues, first, that defendant failed to establish the preliminary minimal factual nexus between the seizure of the methamphetamine and Desmond’s prior unlawful stop of defendant. The state argues that the “temporal proximity between the unlawful stop and the consent was relatively long.” We are unsure what the state means by “relatively long.” Neither officer testified in great detail about the timing of the stop, but what little is in the record on this point indicates that Desmond first approached the car at “approximately 8:30 a.m.” Within “about a minute or two” of the stop, defendant and Sears had gone to the apartment, then returned to the car. According to Desmond, he asked defendant for his identification “sometime within the next couple of minutes.” Shortly after Desmond had requested defendant’s identificаtion and checked his probationary status — at which point defendant was illegally stopped— Fessler arrived. Fessler testified that he arrived at 8:33 a.m. When Fessler arrived, Desmond was searching Sears, after which he immediately sought consent to search defendant. That is, the illegality occurred shortly before 8:33 a.m., and the consent to search was obtained very soon thereafter. We conclude that there was no significant temporal break between the illegality and the consent. We also conclude that defendant established the requisite minimal factual nexus between the illegality and the seizure of the evidence sought to be suppressed.
*112
The state also argues that there was a “tenuous factual link,”
Hall,
“(1) the temporal proximity between the unlawful police conduct and the defendant’s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances — such as, for example, a police officer informing the defendant of the right to refuse consent— that mitigated the effect of the unlawful police conduct.”
Id. at 35.
Here, as noted, we have rejected the argument that there was no close temporal proximity between the unlawful conduct and the consent. As to “intervening circumstances,” we do not think that an officer’s search of another passenger
who also had been stopped without reasonable suspicion at the same time as defendant
is the type of intervening circumstance that the court had in mind as severing the causal connection between an initial illegality and a later consent.
Cf. Thompkin,
In sum, dеfendant was stopped illegally when Desmond took his identification, wrote down identifying data, and conducted a check of his probationary status. Defendant’s subsequent consent to a search that eventually *113 led to the seizure of methamphetamine has a factual nexus to the prior illegality, and intervening circumstances did not sever the causal connection between the illegality and the seizure of the evidence.
Reversed and remanded.
Notes
In particular, we note that the prosecutor specifically addressed the potential applicability of
State v. Hall,
The state makes no arguments concerning inevitable discovery or independent source.