*1 Argued 8, 2011; January Court of and submitted June resubmitted decision of 21, 2013 Appeals reversed; judgment court of circuit affirmed November OREGON,
STATE OF Review, Petitioner on HIGHLEY, JOHN ELDON Respondent on Review.
(CC S056079) CR050560; A130716; CA SC
313 P3d Anna Marie Joyce, Assistant General, Salem, Attorney argued petitioner the cause for on On review. the brief were John R. Kroger, Attorney General, Mary H. Williams, General, Solicitor Jeff Payne, J. Attorney Assistant General. A.
Ingrid MacFarlane, Deputy Defender, Public Office of Services, Public Salem, Defense argued the cause for respon- dent review. With her on the Gartlan, brief was Peter Chief Defender.
LINDER, J. judgment filed and
Brewer, J., concurred opinion. *2 opinion in which and filed an
Walters, J., dissented joined. Baldwin, J.,
LINDER, J. today is we
This
the third
three cases that
decide
police request
in which we examine whether a
and verifica
tion of
is a
under Article
identification
seizure
Oregon
analysis
explain,
Constitution.1 As will
largely
our
we
today
this case
our
controlled
decision
State
(2013),
Backstrand,
412-13,
354 Or
BACKGROUND County Officer Desmond is a member of the Yamhill Interagency years Narcotics Team. For about two and a half arose, case before this he had been member of that team *3 drug investigations and involved in and around the particular occasion, McMinnville area. On this Desmond was patrol morning on someone he knew from 8:30 at in the when Williamson, he saw
past drug
investigations,
arrests and
parking
apartment
drive a car into a
lot between two
com-
plexes in McMinnville. Desmond knew that Williamson’s
suspended,
parking
license was
so he followedthe car into the
parked
angled parking space
lot. Williamson
in an
near one
apartment complexes;
parked
of the
Desmond
in the middle
(and
parking
away
patrol
lot some distance
so that his
blocking
leaving)
car was not
car
Williamson’s
from
without
activating
lights.
his overhead
Desmond saw Williamson
passengers
get
and two
and
of
out
the
—defendant
Sears —
got
something
get
car.
of
Desmond
out
his car and “said
to
[Williamson’s]
knowing
attention,”
that Williamson would
recognize
something
Desmond if Desmond said
to him.
1
Backstrand,
392,
The
two
other
cases are State v.
Or
354
In addition involving past arrests contacts and nized from defendant drug At that name. activities, and knew say anything point, the defendant or did not to Desmond only purpose pulling passenger Desmond’s other because parking As Desmond was to talk to Williamson. into the lot talking, began and Sears walked and Williamson away apartments. the door of went the one and Sears later, defendant and Less than a minute apparently one because no car, to Williamson’s returned apartment. returned, the door at the When answered “just milling were, words, around” the two Desmond’s dealing Williamson, meanwhile, still with Desmond, car. was thought probation. had on Desmond who Desmond verify dispatch license status. called Williamson’s probation department check also called the Desmond any probation had “interest” whether officer Williamson’s apartments was in area of fact Williamson activity company peo- drug was in the known to have drugs gone ple had to an with and who known be involved likely history drug activity, apartment all of which with probation. of Williamson’s violated the conditions pro- response waited for from the While Desmond were “kind of officer, bation and while defendant Sears spoke briefly just hanging out car,” Desmond probation.” him he was defendant and asked if “still then Defendant told Desmond that he was not. Desmond asked both defendant and Sears whether they had iden- their on them and whether Desmond could at that tification look defendant and handed Desmond identification. Both their Sears them, took down license licenses. Desmond wrote numbers, and handed the licenses back. Desmond estimated 30 sec- that he had licenses “at most” between returning to defendant and onds and a minute before them Sears. *4 case,
In defendant’s Desmond wanted to confirm probation done that defendant was not on and could have already alone, defendant’s name which Desmond with identifi- knew. But Desmond nevertheless asked dispatch can check information more cation because quickly with information from the license. As soon as Desmond handed the licenses Sears, back to defendant and patrol leaving he walked over to his vehicle, defendant and by dispatch Sears Williamson’s car. Desmond called and confirmed as defendant had him, told defendant was longer probation. patrol no While Desmond was his just standing car, defendant, Williamson, and Sears “were they just vehicle, around the before, as were kind of walk- ing [.]” around making dispatch,
After the call to Desmond returned standing. to where the three were Desmond asked Sears if agreed. he would consent to be searched. Sears Desmond only was interested in a “non-intrusive” search and asked empty pockets, Sears if he would which “he did will- ingly.” During search, officer, second Officer Fessler only simply arrived. Fessler was there as a “coverofficer”and by, observing, assisting stood without otherwise Desmond. only pock- The item of interest that Sears took from his ets was a film black canister. Desmond asked Sears if he response, opened it, could look inside Sears, and appeared just canister for Desmond. It to have water in it. Sears told Desmond that he had found the canister on the ground way apartment complex.” “on the to the Desmond drug carry knew that intravenous users often water nothing illegal them, but there was about the canister what it contained, and Desmond was not concerned with it. pockets, While Desmond examined what Sears had in his pay Desmond did not close attention to defendant or to what doing. he was examining
When Desmond was done film canis- searching pockets, briefly ter and Sears’s Desmond returned patrol to his Defendant, car. He then walked back to Williamson’s car. then, had trunk moved to the area of the car looking open getting was either trunk or some- thing thought get- out of it. Desmond that defendant was ting something from the trunk because he realized —and may Desmond himself have told defendant —that the car going to be towed. Sears, Willamson and meanwhile, passenger’s remained on the side towards the front of “chitchatting” car, where were—to use Fessler’s term — with Fessler. *5 approached told defen- defendant and
Desmond probation right status. Desmond about his dant that he was him. Defendant for consent to search then asked defendant empty by telling responded pockets his that he would Desmond was first showed Desmond what him. Defendant nothing right pocket; in it of interest to Desmond. was in his oval-shaped, plastic con- small, then removed a Defendant pocket. asked defendant what left Desmond tainer from his diamonds.” Desmond it, in and defendant said “some was simply open Rather than show if would it. asked defendant by opening responded contents, defendant Desmond the “just slightly” cupping hand, it in his so that and container could fall out. What fell not all of what was inside some but jewelry-type mostly items” and what some “odd out was (Desmond could not tell if have diamonds could been real). concealing something appeared to be were Defendant letting it fall out. Defendant in the container else put pocket. the container back in his left then if he would let Desmond
Desmond asked defendant pocket, in left where defen- look in the container and his agreed, put and reached dant had the container. Defendant pocket. out imme- He did not take the container into pocket. diately, hand around in the instead moved his but doing, him he was defendant When Desmond asked what jewelry there no more said that he wanted to make sure was again Desmond asked if he could see in the container. When pulled pocket. container, it out of his While away keeping left, to his defendant turned from Desmond something from his left Desmond and seemed to transfer right keeping left hand to his while the container his opened hand. Defendant then and showed the container to empty. proving that it Desmond, standing during on defen- Fessler time was away, right side, five six feet near the rear dant’s quarter panel about Although conversing the car. he had been only occasionally glancing and Williamson and with Sears defendant, Fessler fixed his attention on Desmond defendant when he noticed some of the odd movements making. particular defen- defendant was Fessler saw body away right Desmond, from dant side of his “blade” blocking right Desmond’s view of defendant’s side. Fessler put right right pocket then saw defendant his hand in his pull it out a fist. As defendant did Fessler *** plastic [b]aggie sticking noticed “a little small clear the bottom” of defendant’s fist. Fessler out
suspected that the baggie illegal drugs contained and asked defendant what away inwas his hand. Defendant started to move from responded by grabbing right Fessler, who wrist. struggle, finally opened After a hand, which discovery plastic baggies led to the officers’ of two contain- ing methamphetamine. suppress stated,
As defendant moved to all evi- *6 arguing dence discovered search, as a result of the that he unlawfully had been seized and that his consent to search product responded was a of the unlawful seizure. The state asking that Desmond’s conduct in defendant for identifica- running probationary tion and a check on his status after giving stop the license back to defendant was and, stop, thus, not a seizure. If, however, it was a the state con- reasonably suspected tended that Desmond had that defen- might possession dant, under the circumstances, inbe of drugs. argued any The state that, event, also the completed ended when Desmond check on defendant’s license, returned the probation, and then “broke contact” pursuant with defendant to search Sears to Sears’s consent. point At the that Desmond returned his attention to defen- urged, gave voluntary dant, the state defendant consent to acquired search, and the officers cause to detain defendant reasonably appeared packaging once Fessler saw what to be drugs concealed in defendant’s hand. response, dispute defense counsel did not that voluntary defendant’s consent to search was or that acquired officers sufficient cause to seize defendant when plastic baggie Fessler saw the concealed in defendant’s hand. argued only gave Defendant that, before defendant his con- unlawfully by sent to search, Desmond had detained him asking taking possession him for his identification and briefly, by asking license, that however for consent to urged search. Defense counsel that “there never should have any inquiry [defendant]. been And this matter should have been over when the w;as contact with the driver over.” suppress on denied the motion
The trial court concluded that First, the trial court theories. two license and his driver’s Desmond obtained seized when was that seizure information, but that the license wrote down suspicion justified was that defendant reasonable was drug suspected activity use related in criminal involved approached. apartment The trial had that defendant at the any the seizure ended event, also concluded court and walked license returned defendant’s when Desmond according patrol court, to the trial Thus, car. back to lawfully pockets based on of defendant’s the search argued Although defendant had not consent. defendant’s contrary, that, when further concluded the trial court sticking plastic aggie [b] out “what looked like Fessler saw of [defendant’s] circumstances, “it fist[,]” hand or under aggie may [b] that contain that was reasonable believe pro- belief, turn, That reasonable controlled substance.” grabbing justification vided Fessler with baggie] [the “obtaining from his hand.” wrist challenged appeal, the denial of his On unlawfully arguing Desmond that he was seized when motion, requested, number to retained, and then ran his license argued probationary Defendant also check on his status. had amounted to a for consent to search urged evidence discovered Defendant seizure. illegal “exploitation in the search was the result “indepen- was not and that his consent to search detention” dent of the *7 responded illegal that the The state detention.” there was check did not amount to a seizure because records no evidence that defendant knew subject that he was the request have and no other evidence that would of a records person that he or she was caused a reasonable believe leaving. argued in the alterna- The state restrained from seizure, a Desmond did not that, even if there had been tive gain exploit defendant’s consent to search. that seizure to suspi- that Desmond had no reasonable The state conceded plastic the defendant before Fessler observed cion to seize baggie in defendant’s hand. agreed Appeals with defendant that
The Court of closely request followed identification, “the for defendant’s probationary status, and the the check of defendant’s
467 request stop.” a defendant, for consent to search constituted Highley, App at 110. The court decision based its “Oregon appellate on cases in which courts have concluded requesting that an officer’saction in identifi- running purposes cation and records check was a cases). (citing I, of Article 9.” Id. 106 section at The court person position concluded that “a reasonable in defendant’s identifying would believe that the officer wrote down the immediately information and then returned his car with type that information in order to run some check.” records According Appeals, Id. at 108. to the Court of that consti- tuted a seizure because reasonable the circum- investigation stances “that or would believe she is under ultimately and is not free to leave.” Id. at 109. The court challenged concluded that the evidence was obtained as a result of the unlawful seizure and defendant was therefore suppression. parties entitled to Id. at 111-13. review, On largely arguments, focusing renew those defen- on whether any point dant was seized at in his encounter with Desmond drugs before the were discovered.2
ANALYSIS
noted,
As we earlier
this case is
third of three
today
police
decided
in which we examine whether a
verification of identification is a seizure
Backstrand,
under Article
9. In
of the
first
length
principles
cases,
three
that
we discuss at
that inform
analysis.
As Backstrand
encounter rises to the level
aof
seizure for constitutional
purposes. 354
Rather,
Or at 400.
“law enforcement officers
approach persons
pub-
remain free to
on the street or in
places,
cooperation
lic
seek
assistance,
their
or
2
Anderson,
urges
As in Backstrand and
also
us to
state
further revise the
two-part
recently
Ashbaugh,
“seizure” test that we
modified in State
Or
(2010).
cases,
468 called information, being or them without question
impart
suspicion
justification
a certain level
articulate
upon
Holmes,
fruitful.”
State
proves
if a
encounter
particular
(1991).
per
28
An
a
P2d
officer seizes
Or
con
manner, or actions would
words,
if the officer’s
only
son
his
exercising
the officer is
person
to a reasonable
vey
freedom
or
liberty
her
to restrict
the
authority
person’s
or
is,
way
in a
way
in a significant
of movement
—that
Id. at
Verbal
social boundaries.
409-10.
ordinary
exceeds
themselves,
Backstrand,
not,
seizures.
are
police inquiries
Rodgers/
from State v.
(citing propositions
“We no basis for validity identity piece or proffered officer checks the of a identification, conveys an reason- per such action se to a has person able is not otherwise restrained and who —who willingly to the the tendered information officer—that authority coercively exercising officer is or her now liberty restrain freedom of To person’s movement. sure, already discussed, person tendering have be identification to an officer as we
may subjectively feel com- Instead, any refusing request. fortable number of unwilling officer’s instincts, may reasons or be personal person request. to decline the officer’s Those internalized feelings test for there motivations and is a seizure under Article are not the whether
I, A person section 9. who turns reasonably to a law over identification enforcement officer expect steps verify would that the will take its officer validity. convey not objectively For the officer do so does authority person’s officer’s to restrain an exercise of the liberty or The is akin freedom movement. circumstance a person gives to when parcel tion that by valid consent to search. Part and person’s expecta- giving consent is a reasonable likely or she will either need or want to stand performs while the search. who person the officer The thereby completed waits while a consent search is is not So, too, 9. with a seized for of Article purposes setting, gives who,in a noncoercive his or officer her identificationforthe officer’sexamination.The fact that not, itself, of encoun- officerconductsthat examinationis *9 a basis to concludethat the otherwisenoncoercive person’sliberty.” ter has becomea coerciverestraint on (footnote omitted). (emphasis original) at Id. 412-13 brings Here, point That us to this case. defendant does stopped any not assert at that was before Desmond asked him availing. Nor for identification. would contention be parking parking
Desmond, lot, after called only proceeded Williamson, driver, out to and to talk him. While Desmond did defendant and Sears were go they free to their unrestrained, about activities and did They away so. walked from car where Williamson’s was parked, apartment, went to an and then returned of their nothing own accord. Desmond them said and did not even pay throughout much attention to them that time. they
After defendant and
returned,
Sears
chose
“mill”
car,
around the
where Desmond remained with
Williamson. As
milled around, Desmond asked defen-
probation;
dant if he
still
on
defendant said that he was
not.
then
Desmond
asked both
for
Sears and defendant
iden-
request was,
tification. That
as we
conclude Backstrand
straightforward request
in Anderson,
and reaffirm
a
for
cooperation
information
of
court,
the kind that
this
police
may
Holmes,
since
has continued to affirm
officers
implicating
make without
Article
9. Backstrand,
Nor what after that result in a seizure of defendant. held Desmond defendant’s only briefly -just long enough and Sears’s licenses to write — down the license numbers. Within a minute, 30 seconds to most, Desmond handed the licenses back. The Court of Appeals, length in its discussion, declined to consider “the *** [person’s] retention of a identification the touchstone” dispositive or otherwise whether has occurred. agree. App Highley, As we observed at 109. We Or cooperate an Backstrand, who decides reasonably expect can identification officer’s something identification, with that will do officer verify identity person’s or status. See as seek to such (officer validity of Backstrand, at 412-13 verified 354 Or (2013) license); Watson, 305 P3d State v. (verification driving privileges). stopped driver’s of status the identification for rea- That the officer either retains doing swiftly so, returns the identifi- time sonable while purposes, information it for those are cation uses from into transform a encounter one not actions that in which through noncoercive significantly liberty restrained individual’s police authority. of coercive Id. exercise convey lib- Rather than a restraint affirmatively conveyed opposite. erty, actions Desmond’s engaged away him, Defendant, Desmond had walked until part, Desmond, after and returned of his own accord. *10 away, writing numbers, license turned and walked down the reasonably convey anything doing that that without would longer liberty Indeed, no to leave. defen- defendant was going to business, in fact then went about his own dant posses- apparently personal some car, trunk of to remove to because he knew the car was towed. When sions be checking pro- Desmond to the car after defendant’s returned bationary engage status, Desmond not at all. did Instead, had talked to Sears and examined what Sears in pockets cooperation. Defendant, consent and his Sears’s accord, of his own remained. When Desmond did turn his again, to attention Desmond told defendant that probation— he had confirmed that defendant was reasonably conveyed information that not that Desmond was authority exercising liberty. over defendant’s if defendant consent Desmond then asked would said search, and defendant that he would show Desmond might pockets. in what was his What ensued be best char- game mouse,” as “cat in acterized and which defendant willingness cooperate seemingly and took voiced cooperative surreptitiously attempting actions, while methamphetamine possession. that was in his conceal questions consent, and the that he Desmond’s during (e.g., asked defendant the search what defendant was doing pocket with his hand in his when he did not remove the time), only.They inquiries container the second were verbal (ver- Rodgers/Kirkeby, were not seizures. See 347 Or at seizures); inquiries Ashbaugh, at 316-17 bal are not 349 Or (defendant her if she had not seized when officers asked anything illegal purse requested and consent to search purse).3 actions, indi- short,
In
Desmond’s
considered both
vidually
combination,
did
defendant. In con-
not seize
they
cluding
and the Court
did,
both the trial court
Appeals
principally
Hall,
in State v.
relied
on our decision
(2005).
doing
In
so, however,
In an officer his vehicle next to defen- walking along dant as the defendant was a street. The officer approach for the motioned defendant to the officer’svehicle got and then out of his vehicle as the defendant neared. The officer asked to see the defendant identification. When the officer,
handed his identification to the the officer dispatch requested radioed a warrant check.While await- ing the check, results of the warrant the officer returned the proceeded question identification and the defendant about carrying any weapons, illegal drugs. whether he was knives, responded negative. response, The defendant person, officer asked the defendant for consent to search his and the defendant consented. The search revealed evidence of drug possession. unlawful Id. at 10-11.
The court in Hall concluded that
the encounter
began
engagement
as a noncoercive
between the officer and
defendant,
but evolved into seizure
the course of the
investigation.
explained
officer’s
The court
that the officer’s
*11
urges
by continuing
Defendant
that Desmond seized him
“consent
greater
appeared willing
Any
to a
than
search
to allow.”
such character
exchange
properly
presented
ization of the
more
a
should be
as
claim that defen
scope
dant’s consent was invalid because Desmond exceeded the
of the consent
Weaver,
gave.
generally
212, 219,
that defendant
See
State v.
319 Or
“initial actions of approach gesturing [the] defendant dant and then liberty [the] upon of move- intrude him did not ment[.]” the nature of concluded that Id. at 19. But the court changed took the defendant’s when the officer the encounter identification and conducted court
a warrant check. The acknowledged promptly returned the defen- that the officer point, the identification, that, maintained at that dant’s defendant but subject pending of a was aware that he was fact, it was “difficult to and, warrant check posit” because of person have felt free to leave. that a reasonable would further that the officer Id. The court observed objectively nothing dispel an what wouldhave been “did from that defendant was restrained reasonable belief leaving [the officer] until had received the results of the immediatelyupon returning [the] Instead, check. warrant questioned [the officer] card, defendant’s identification [the] [the] defendant whether defendant was car- about any illegal drugs, rying weapons,knives, or and he asked person.” [his] [the]defendant for consentto search Id. appears understood,
Hall should not be
as it
to have
by
understood
some advocates and
the Court of
been
Appeals,
proposition that an
to stand for the
officer’s
identification,
and a check of that
either to
for identification
validity
determine its
or the status of the
who tenders
stop.
e.g.,Highley,
App
(citing
per
See,
it,
a
219 Or
at 106
se
proposition
requesting
Hall for
that “an officer’saction
running
[is]
defendant’s identification and
a records check
9”).4
purposes
Article
Hall
a close
specific
observed,
case and turned on its
facts. As Holmes
diversity
potential police-citizen
encoun-
because
ters,
determining
when an encounter between
officer and
purposes
a citizen is a seizure for constitutional
is necessar-
ily fact-specific
requires
exercise and
an examination of the
totality of the circumstances involved.
That conclusionresolves this case.The trial court con- during attempt- cluded search, actions ing baggie palm to conceal the in the hand, ofhis and Fessler’s baggie, gave observations of the the officers sufficient cause grab forcefully open his wrist and it to determine whether concealing drugs, he as believed he was. Defendant challenged has never lenged that conclusion.Nor has defendant chal- gave the voluntariness ofthe consent that he Desmond pockets. to examine what was in his Defendant’s claim that exploited illegal stop Desmond of defendant to obtain his voluntary and otherwise valid consent falls with our conclu- any point sion that Desmond did not seize defendant at before gave his consent to search. Appeals is reversed. the Court decision of The judgment is affirmed. circuit court The concurring judgment in the J.,
BREWER, court. part majority OfficerDesmond’s no holds that
The
his
to a seizure —not
amounted
interaction
request
request that defen
initial
identification, not his
persistence
face
search, and not
to a
dant submit
*13
the contents of
to reveal
reluctance
obvious
of defendant’s
consequence,
pockets
in
that,
in his
containers
question
—and
analysis
My
does not arise.
of reasonableness
explained
reasons
First, for the
is different.
the interaction
today
my
Backstrand, 354 Or
State
concurrence
(2013),
that Desmond
I
conclude
would
The next is when the identification-related seizure ended. The trial court found that that seizure ended when Desmond returned defendant’s identification, and support there is evidence par- the court’s determination. In ticular, Desmond returned defendant’s identification almost immediately writing after down information contained in it. In addition, Desmond did not tell defendant to wait while he *14 verified probation. defendant’s statement that he was not on patrol When Desmond returned to his car with defendant’s perceived information, there is no indication that defendant being that he Instead, detained. defendant moved to a companion’s different area —near the trunk of his car—and Finally, got “milled around.” when Desmond back out of his engaged car, the car, driver of the defendant, in fur- only ther conversation, later came over to defendant’s location. Under those circumstances, I would conclude that support there is evidence to the trial court’s determina- tion that the initial seizure ended when Desmond returned defendant’s identification. remaining
The issue is whether an additional sei- engaged zure occurred when Desmond defendant in further specifically, requested and, conversation more defendant’s person. consent to search his Defendant asserts that he was support officer, Desmond a cover of when, with the seized thereafter, or, his if he could search asked seeking “persisted consent defendant’s Desmond when willing appeared allow.” greater than a search pertinent by the are this court decisions Several recent of that issue. resolution Rodgers/Kirkeby, 621-22, 227
State challenges (2010), searches to consent two involved P3d 695 Rodgers, stops. initially this traffic lawful in the context of an was seized when the defendant whether court considered suspicious questioned that the containers him about officer officer had observed at the end of defendant’s car concluding stop. that at 627. In traffic Id. lawful otherwise that seized, the court first observed had been the defendant police questioning during does not a traffic itself ordinarily implicate However, 9. Id. at 622. Article police questioning that is unrelated court held that the stop, an officer’sshow combined with for the when the basis authority, may seizure. Id. at in an unauthorized result of totality con- circumstances, the court the 624. Under Rodgers positions of sides that the officers’ both cluded in authority’ that, of car a sufficient ‘show the defendant’s “was concerning questions the unrelated in combination with request car, to search the resulted in the car and the items in a [the] significant freedom of restriction Id. at 627. movement.” Kirkeby,
Similarly,
law-
the defendant had been
investigation
fully stopped
Id. In
of a traffic infraction.
investigation,
conducting
asked
that
the officer
course
pat
and, fol-
to conduct a
down
for consent
the defendant
requested
lowing
pat
to exam-
down,
officer
consent
course of
he had detected
ine each of the items that
totality
pat
of the cir-
Based on the
down. Id.
628.
deputy’s
that “the
show
cumstances, the court concluded
authority
accompanied
defendant con-
subsequent
patdown
that defendant
to a
sent
consent to
the contents of defendant’s
an examination of
point
pockets
have
that defendant should
occurred after the
way.” Id.
a citation or sent on his
been issued
*15
In
resolving
cases,
two
the court explained that,
put
“[t]o
the matter
way, constitutionally,
I,
another
Article
9, protects persons
section
and effects from unreasonable
searches and seizures
requiring
judicially authorized
supported by
warrant
probable cause authorizing a search
are, however,
or seizure. There
certain
exceptions
limited
to the warrant and probable
requirements.
cause
One such
exception permits the police
stop
and briefly detain
investigation
motorists for
of noncriminal
traffic viola-
tions. Police conduct during a noncriminal
traffic
does
not further implicate
I,
Article
section
so long as the
detention is limited and
police
reasonably
conduct is
investigation
related to the
tion.
noncriminal
traffic viola-
However,
police
search of an individual or a vehicle
during
investigation
of a
violation,
noncriminal traffic
probable
without
cause and either a warrant or
excep-
tion to the warrant requirement,
I,
violates Article
9.
police inquiries
Because
during a traffic stop are neither
seizures,
searches
police
nor
inquiries in and of themselves
require
justification
no
and do
necessarily
implicate
I,
However,
Article
section 9.
police inquiries unrelated to
violation,
a traffic
when combined with physical restraint
or police
of authority, may
show
result in a restriction of
personal freedom that
violates Article
section 9.”
As the majority
out, Rodgers /Kirkeby
points
involved traffic stops where what amounted to
requests
search had occurred after the officers’ authority to detain
the defendants
had ended.
circumstances,
those
court concluded that
reasonable
people
the defendants’
positions would have inferred that
the underlying
stops
remained
progress and, thus, would feel constrained to
Id.
cooperate
the officers’
requests.
at 622-23. From
those decisions, a
majority
this court has distilled the
principle
“verbal inquiries”
are not
generally
searches
and seizures
although,
“distinctive context” of both
cases, “the verbal
alone
inquiries
continued the seizures.”
Backstrand,
I with the agree majority it was important the outcome of those cases that the bases for the had stops requests said, made. That to search were
ended when *16 compel my the conclusion— do not decisions view, in those police reasoning depends majority’s a on which the —that request a is the sort consent to search officer’s of “verbal other “show citizen-police any civilly inquiry” and without that, if made authority,” passes in a for mere conversation acknowledge noted, I However, as encounter. likely Ashbaugh subsequent in decision this court’s compel that conclusion. does approached Ashbaugh, police officers
In
two
public park,
their iden-
in a
took
and her husband
them. The
check on both of
tifications, and ran a warrant
restraining
between
an active
order
warrant check revealed
to
husband, which led the officers
the defendant and her
violating
after
Then,
the order.
the husband for
arrest
leaving
returning
to her and
the defendant’s identification
her
minutes while
arrested
her alone for about five
husband and
police
placed
returned
car,
him in a
the officers
eventually,
and,
asked her for
the defendant’s location
purse.
consented,
The
consent to search her
methamphetamine
purse.
an officer discovered
Ashbaugh acknowledged
that its “efforts
The court
explain
term ‘seizure’ embraces
to
ha[d]
what the constitutional
yet
explanations,
from
succeeded: Our various
/Kirkeby,
Rodgers
questions
have left
unanswered.”
Holmes
clarify
attempting
Ashbaugh,
In
310.
progress,
important
concept,
made some
but in
the court
my
job.
particular
respects,
In
it did not finish
—and
unfortunately
if
that,
court endorsed the fiction
view,
—the
request
manner,
made in a civil
person
for consent to search
obviously
investiga
criminal
in the context of
to mere conversation without constitutional
tion amounts
determining
significance. whether the officer had made
authority
seeking
constitutionally significant
show of
case,
in that
the court said:
consent to search the defendant
“
accompaniedby anyphysical
[Theofficer’s]
wasnot
threatening
construed as
or coercive—
actionthat couldbe
example,position
not,
fellowoffi-
did
himself and his
way
suggest defendant that she was
cer in a
surrounded.”
that would
Ashbaugh,
emphasized
portation may Thus, of her husband. while it unlawfully have been true that defendant had been detained policesome had minutes before and watched a clear show authority husband, directed at her those circumstances had ended.” Ultimately, “[although
Id. at 317.
the court concluded
*17
possible
person’s liberty
it is
to restrict a
and freedom of
by purely
means,”
movement
verbal
the officer did not do
anything
so when he asked the defendant whether she had
illegal
purse
in her
if
and
he could search it. Id. at 317.
totality
existing
Based on the
of the circumstances
when the
purse,
officers asked the defendant for consent to search her
person
the court concluded that a reasonable
believed that his or her
would not have
liberty
or freedom of movement had
intentionally
significantly
been
and,
restricted
accord-
ingly, the court concluded that the defendant had not been
seized.
Id.
317-18.1
1
separate dissent,
questioned
majority’s
In a
Justice Walters
failure
distinguish
significant previous decisions,
to address and
several of this court’s
Hall,
including
7, 19, 115
(2005),
State v.
P3d 908
where this court concluded
police
they
that
had seized the defendant when
took his identification
for war
check,
person
rant
because a reasonable
in that situation would believe that his or
Ashbaugh,
(Walters,
her freedom of movement had been restricted.
Ashbaugh important by treating this court crossed line consent search requests conversation,” inquiry,” like the one here as “mere a “verbal anor insuffi authority” significantly subject’s cient “show of to restrict its freedom of movement. Although always possible highlight any it is to factual differences between two cases, Ashbaugh present the differences between the in circumstances and those constitutionally significant sympathize impulse here are not to me. I with the distinctions, expect make such but it is unrealistic to officers and citizens in the split requests decisions, rely field who must make second consent on such view, my recognize Ashbaugh shades and subtleties. we need to for what it for, try distinguish way stands our around it. respect, question premises. I each of those
With though, Ashbaugh here, as the initial seizure in had Even second, fruitful, occurred, ended before a more seizure entire interaction between the defendant and officers Ashbaugh permeated police in ity with the sort of author investigation. many criminal
that attends a There are police permitted circumstances which officers should be annoy by making to inconvenience or even citizens “ver they inquiries” “requests cooperation” bal as con investigations Haling passersby duct of various sorts. ascertain whether have witnessed a recent crime is a example. However, salient a line should be drawn where it apparent person being is from the circumstances that the approached police is himself or herself the focus of a investi gation. circumstances, In such it is inaccurate to character police requests ize to for identification or for consent —whether inquiries. requests, mere Instead, search —as verbal such civilly ordinarily suggest made, however that the is suspected wrongdoing cooperate and that he or she must investigation implication until the fact, has ended. In is the foundation for most consent searches which evidence apart all, crime is found. After from a sense that the police encounter, are control of the there is little else to account for a choice that often certain is to lead to the sus pect’s prosecution. arrest and by many,
That most, view shared if not commen- tators who have considered the issue. Professor LaFave has say this to about consent in the searches context of traffic stops present era: multiple possible explanations, suggests There are but none that what is
going truly voluntary. puts on is As Professor Whorf it: plausible explanations ready acquiescence by “There are for the to search 1) ‘guilty’: stop the the overall coercive nature of the routine traffic turned 2) search; technique catching off-guard by consent the of the motorist the 3) quick stop investigation; possi- transition from traffic to contraband the by found; ble belief consentors well-concealed contraband will not be 4) possible by they readily acquiesce, police suspi- the belief consentors that if dispelled resulting cursory all; cion will be 5) in a search or in no search at likely by consent, police suspicion the belief if consentors refuse heightened resulting will be a forcible search.” Whorf, Following Stops: Robert H. Searches Consent Routine The Troubled Traffic Jurisprudence Drug 1, Technique, a Doomed Interdiction 28 Ohio NU L Rev (2001). commonly employed connection technique “Yet another stops seeking traffic is consent drug stops disguised with as Usually attempts get the officer to the to make a search. vehicle, to a search of the but sometimes driver to consent person. requested the consent will be for search yet become another Requesting apparently consent has stops,’ ‘routine’ ‘routine traffic and it is thus part of the by acknowledgments that the cases contain surprising requests frequency the of this tactic. These police about overwhelming major- responses result in affirmative innocent, Guilty stopped most motorists ity of cases. by consent to search their vehicles police and asked vehicles, give permission will to search their expressly resulting upon in thousands thousands of motor vehicle year. apparently searches of innocent travelers each This is training have received in the art police attributable to the consent, acquiring pass plus will the fact that what many present setting produce factors often in this an affir- response.”3 mative “Routine Start Stop” The LaFave, R. Wayne Traffic from “Routine,” Amendment, TooMuch Fourth Enough
Finish: Not (2004) 1843, 1891 omitted; 102 Mich L Rev inter (emphasis omitted). nal citations and marks quotation the LaFave, fiction of consent searches According in the traffic context taken its has toll constitutional limits: courts, dealing
“[T]he failure of most when with traffic-stop Ohio, [Terry searches, consent to adhere to the 392 US (1968)] 19-20, 88 S Ct 20 L Ed2d what limits on constitutes a temporary produced reasonable detention has very distressing longer results. Consent searches are no by suspect may occasional event which a crime advise the 3 In the words of Professor Whorf: ‘right’ technique likely frequent “The now well-established and is sub-
ject training ‘drug goes police of law enforcement interdiction.’ It like this: A stops speeding; police officer a vehicle for a routine traffic violation such as the vehicle; get police the chats in a officer asks driver out of officer and, sometimes, well; friendly way passengers with the driver as offense; police warning than officer issues rather a citation for the traffic illegal; then, right police anything officer asks if the vehicle contains denial, police permission on the heels of the inevitable officer asks for search vehicle.” Whorf, L 28 Ohio NU Rev 2-3.
482 in police of his or her wishes and for the to act reli-
police understanding, ance on that but are now a wholesale activ- ity great many stops, a traffic submitted to accompanying drivers, innocent, by guilty resulting most or in contin- interruption their a of period ued time while of travels for substantial wait the roadside as their vehicles are ransacked, beyond process question highly which is inva- Certainly dignitary sive of the interests of individuals. the Fort, way problem deal with this is as in State v. [660 best (Minn 2003)], stop which involved a traffic NW2d correctly cracked The court speeding quite and a windshield. *** inquiry beyond held that the officer’s‘consent went by any scope unsupported of traffic and was rea- 419,] meaning articulable at suspicion,’ [id. sonable dence obtained via the consent must be the evi-
suppressed,
without
regard
inquiry
subsequent
‘may
to whether the
search
stop.’”
also have extended the duration of the traffic
(footnotes omitted).
LaFave, 102 Mich
Rev
Law
at 1892-93
In the face of
concerns about
mounting
prev
alence of
consent
routine
searches
traffic
some
stops,
state courts have
looked to their
increasingly
own state con
stitutions
to set more meaningful
police activity
limits on
traffic
Some of those
during
stops.
courts have interpreted
their state constitutions
flatly forbid
from
police
pos
or
that are
ing questions
requests
unrelated to the under
lying reason for the traffic stop, unless the
or
questions
are
requests
supported by
reasonable
particularized
suspi
cion to believe that
the accosted person has committed or
some other
committing
crime.4 Another
state court has
interpreted
its constitution
to allow officers to
engage
some
degree
unrelated
even in the
questioning,
absence
of articulable
not if the
suspicion, but
officer’s
or
questions
requests change
fundamental nature of the stop. State v.
(2004).
McKinnon-Andrews,
19,
151 NH
1198, 1203
846 A2d
And New York has
a similar
as
imposed
requirement
a mat
ter of state common law.
Hollman,
See
79 NY2d
People
(1992)
181,
Here, defendant was a ain vehicle whose being investigated suspicion driving driver was suspended, while obviously police purpose
but an broader to activity uncover evidence criminal animated the encoun- passenger, briefly ter. Defendant, a was seized when Desmond requested, examined, and ran his discussed, identification. As approached that seizure ended before Desmond next defen- In meanwhile, dant. leave, defendant was free to he but apparently waiting passengers most would—for —as occupants Desmond to his conclude business with the other together. of the vehicle so that could leave After tell- ing defendant that had verified that defendant was no longer probation, on Desmond nevertheless asked defendant By person. time, consent to search his a cover officer request, “present.” response defen- In to the search
also was point agreed empty pockets. forward, From that his dant majority gambit that the recounts futile and mouse” “cat discovery delay attempted ensued, wherein per- drugs pocket politely Desmond, but in his while sistently, things go. to let refused my defen- search estimation, Desmond’s under Article because dant constituted seizure inquiry previous light of Desmond’s action, viewed concerning probation and his status identification, communicated to for defendant’s police of an that he was focus active for a second time investigation obligated cooperate until and therefore was investigation. Irrespective ofwhether Desmond concluded passenger,5 such an intrusive defendant was a motorist or and focused ordinary acceptable inquiry be in an would not writing a clean reasons, interaction. For those I if social in seek- slate, would conclude that Desmond’s actions person significantly ing search his defendant’s consent to I interfered defendant’s freedom of movement. would objectively further conclude that an reasonable position had would believe that Desmond done defendant’s so. *21 request Accordingly, I would conclude that Desmond’s to for for consent to search defendant amounted a seizure Oregon purposes I, 9, of Article section of the Constitution.6 justification no for the sei- Because there was articulable I also that it unlawful. zure, would conclude was 5 generally passengers stop We construe the initial detention of in a traffic as 368, 377, 143 merely Thompkin, State incidental to that driver. See v. (2006) (holding passenger lawfully stopped that a in a not auto P3d 530 matically vehicle is 9, meaning seized within the of Article but a “further exercise authority by may, circumstances, passengers coercive over the officers in certain of seizure”). here, unnecessary challenge assumption a It is to that but I constitute that, matter, emerging appreciation practical a it can he note that there is an as Comment, Flores, See, e.g., “People, Erica Not The Fiction erroneous. Places”: of Consent, Interest, Fallacy Objectivity and in the Force the Public the Police of of 1071, Passengers During Stops, Pa J L Encounters with 7 U Const 1080 Traffic (2005). Thompkin likely holding The in also is inconsistent with United States Amendment, purposes Supreme holding decisions for of the Fourth a Court passengers. Johnson, vehicle’s See v. traffic entails the seizure of the Arizona 323, 129 781, 172 (2009); California, 551 US Ct L Ed 2d 694 Brendlin US 555 249, 127 S (2007). 2400, 168 S Ct L Ed 2d 132 6 argument Accordingly, not alternative that Desmond’s I would reach defendant’s ensuing persistent to an seizure. efforts obtain consent constituted unlawful
485 hasten add can I that I envision circumstances request wherein an officer’s for consent to search a suspect that an unsupported by justification is articulable would not If, result in for the an unlawful seizure. officer were example, it clear need suspect comply make to a that or she not is request leave, the free to and the officer’s actions of actions other officers on the scene did not convey different then the show of that message, police authority request might otherwise inherent such a be sufficiently so as that dissipated dispel the conclusion an unlawful However, seizure had occurred.7 there is no indication the record that such a case, disclaimer was made in this so there is no occasion to further consider that here. issue
Finally, because the state
dispute
does not
that there
was a connection between Desmond’s
to search and
I
consent,
defendant’s
also would conclude that
the discov-
ery of the contraband
possession
product
was the
of an
However,
unlawful
seizure.8
this court’s decision in
Ashbaugh settles those issues in different way. Accordingly,
solely
based
on a proper
for the
of stare
respect
principles
decisis, I
concur in the
respectfully
of the court.
judgment
Supreme Court,
Supreme
On.remand from the United States
the Ohio
Court
Robinette,
(1997),
in State v.
St
80 Ohio
3d
685 NE2d
found that a
involuntary
motorist’s consent to search was
under the Ohio Constitution. The
emphasized
per
adopt
requirement
court
that it
not
did
se
that all motorists
right
leave,
totality
must be informed of their
it
but
held under the
of the cir
it, including
the
cumstances in
case before
the
failure
officer’s
to so inform the
defendant,
the
was
that
consent
invalid. Id.
analysis
especially problematic
The
has
attenuation
been
for this court when
Ashbaugh,
concurring justices
it comes to “consent” searches. In
three
of
were
opinion
voluntary
provided
independent
that
defendant’s
consent
basis
judgment
affirming
Ashbaugh,
the trial court’s
in that case.
WALTERS, J.,
explain
respectfully
that I
For the reasons
I
dissent.
today
Backstrand,
392, 418,
354 Or
In this
an officer
probation,
whether he was on
and obtained
tioned him about
approached
Then
and checked his identification.
defendant a second time.
the officer
The officer
to defendant
confirmed
probation,
signaled
that the
not on
but
investigation
complete:
another
officer’s
was not
With
officer
present,
to
officer
defendant for consent
search
asked
focusing
question
inquiry
defendant,
continued
pockets.
agree
I
with Justice
the items
independently,
that, when
each of
two
Brewer
viewed
those
I,
9,
under Article
section
of the
encounters were seizures
(Brewer,
Oregon
474,
J.,
Constitution.
The
that, Hall,
takes the
in
“none
(hailing
asking
of the officer’s actions
defendant,
for identi-
checking
asking
weapons
fication,
identification,
that
about
consent)
drugs, asking
individually
was sufficient
stop,”
to amount to a
but that in combination “those actions
began
crossed over the line and transformed what
as a mere
stop.”
majority
says
encounter into a
In this
defendant was not a
or a
bystander.
passenger
Defendant was a
in a car who reason
ably
go
way
could not
on his
until the driver of the car was
ready
Thompkin,
and able to leave. See State v.
(2006) (passenger
378-79,
the they However, Or at the rule the individual. 354 472.
seize police that, when officers that I take from Hall is an individual’s identification in circumstance and obtain would that or she which a reasonable believe investigation, subject of a the officers exer- is the criminal authority reasonably conveys that that the individual cise investigation respond, stop, and remain until the must thereby complete, and that the effect a seizure. That officers police understanding preclude seizing does not officers from requires only it individuals; have constitution- justification doing ally so. sufficient majority Because the holds Article *24 apply respectfully facts, I does not these dissent. joins dissenting opinion. J.,
Baldwin, in this