Defendant appeals a conviction, after a bench trial, of one count of unlawful possession of heroin, ORS 475.854, and one count of unlawful possession of cocaine, ORS 475.884. Defendant assigns error to the trial court’s denial of his motion to suppress evidence obtained after a consent search of his person, contending that he had been stopрed without reasonable suspicion, in violation of Article I, section 9, of the Oregon Constitution, 1 and that his consent to search was tainted by the illegal detention. We agree with defendant that the trial court erred in denying the motion to suppress and reverse.
Because defendant was convicted, we summarize the pertinent facts in the light most favorable to the state.
State v. Gibson,
At approximately 11:30 p.m., Officer Murphy was on patrol in a high-crime area. Murphy followed the car in which defendant was a passenger for about three blocks, until he saw the car commit a traffic infraction and activated his overhead lights. The car pulled over to the curb, and Murphy pulled in approximately 15 feet behind it.
Murphy got out of his patrol car, leaving his overhead lights activated. Defendant got out of the passenger side of the car and began walking on the sidewalk in the direction of Murphy’s patrol car. When defendant was approximately halfway between the two vehicles, and while Murphy was still standing near the driver’s door of his patrol car, Murphy asked defendant how his evening was going. Defendant responded, “Fine, thank you.”
Murphy testified that he then asked if defendant would mind talking to him, and defendant replied, “Sure, no ■ *119 problem.” Murphy testified that his tone of voice was calm and casual and that defendant’s response was polite and calm. He testified that, throughout his conversation with defendant, he believed that defendant was free to leave. Defendant testified that, when he got out of the car, he had intended to walk to a nearby store, but that when Murphy began to question him, he did not feel free to continue wаlking. The trial court found that defendant did not feel free to leave.
Murphy testified that, at that point, he called for backup on his lapel radio mike, requesting a “Code 1 cover” for his stop. Murphy explained that, because he was engaged in a conversation with defendant and still had not contacted the driver of the stopped car, his attention was divided, аnd he wanted another officer present for his safety. Murphy explained that a “Code 1 cover” means a nonemergency situation, a “calm, casual pace, not lights and siren or anything like that.” Murphy testified that defendant was close enough to hear his call for cover.
Murphy testified that, after he made the call for backup, he asked defendant if he hаd a crack pipe. At that time, Murphy and defendant were still standing in the same places they had been — Murphy was standing in the street, on the driver’s side of his patrol car, and defendant was standing several feet away on the sidewalk. Defendant replied that he did not have a pipe. Murphy then asked defendant if he had anything illegal on him; defendant looked at Murphy and did not reply. Murphy then asked defendant if he would mind if Murphy searched him, and defendant replied, “Yeah, you can search me. Go ahead.”
Murphy did not immediately search defendant because, by that time, the backup officer, Yee, had arrived. Murphy testified that he told Yee that defendant had not been patted down or searched and went to talk to the driver. Murphy testified thаt, at some point, but it is not clear when, he took defendant’s name and date of birth and conducted a records check.
Yee testified that, when he arrived, defendant was seated on the curb behind the stopped car. Two reserve officers were already at the scene standing outside of their patrol car, and their patrol car was parked bеhind Murphy’s. Yee *120 parked behind the reserve officers’ car with his overhead lights on.
Yee testified that he asked defendant if he had anything that the officer should be concerned about, and that defendant replied, “No.” Yee then asked defendant if he could search him, and defendant replied, “Sure, go ahead.” Yee testified that defendant was polite and coоperative. Yee asked defendant to stand up and then conducted a pat-down search, finding the drugs leading to the charges at issue in this case.
Defendant moved to suppress the evidence obtained during the search, contending that an unlawful stop occurred when Murphy continued to question defendant after he denied having a crack pipe. At that pоint, defendant contended that, considering the totality of the circumstances— including the time of the encounter, the presence of the overhead flashing lights, the high-crime location of the encounter, and the officer’s continued questioning — he was stopped for purposes of Article I, section 9.
The trial court struggled with its ruling. It found that defendant subjectively believed thаt he was not free to leave, stating, “I do believe both that the defendant believed he wasn’t free to go; that he would risk harm to try to leave; and that his view of the circumstances under the realities of the street was entirely reasonable.” However, the court held that the applicable appellate case law required the conclusion that defеndant was not “seized” in the constitutional sense, and it, therefore, denied defendant’s motion to suppress. 2 The court then tried defendant on stipulated facts and convicted him of the two charged offenses.
*121 On appeal, defendant asserts that, considering the circumstances (including the hour of the day, the flashing overhead lights, the officer’s call for backup, the high-crime location, and the direct questioning of defendant about criminal activity), defendant was stopped when Murphy asked him for consent to search. At that point, defendant contends, defendant reasonably believed that, in light of the circumstances, he was under investigation for criminal activity and therefore was not free to leave. In the state’s view, no stop occurred; rather, Murphy engaged defendant in mere conversation, and defendant subsequently voluntarily consented to the search of his person.
The parties have treated this case as a nontraffic, police-citizen encounter, and they have addressed the constitutional ramifications of Murphy’s conduct in that context. To be lawful, a stop must be justified by reasonable suspicion of criminal activity.
State v. Toevs,
Under Article I, section 9, of the Oregon Constitution, a stop occurs when “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) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.”
State v. Holmes,
There is no evidence that Murphy intentionally restricted defendant’s liberty of movement. Thus, we consider whether defendant was stopped in the second sense. In
State v. Parker,
Here, the trial court found that defendant subjectively believed that he was not free to leave. In assessing *123 whether “such a belief is objectively reasonable under the circumstances,” the operative inquiry is whether a reasonable person in defendant’s position could have believed that the officеrs had significantly restricted his liberty or freedom of movement. Id. at 25.
A consensual police-citizen encounter can become a stop if the encounter causes a person reasonably to believe that he is the subject of a criminal investigation and that, for that reason, his liberty of movement has been significantly restricted.
State v. Hall,
Defendant contends that this case is analogous to Hall, because defendant reasonably believed that, after Murphy asked for consent to search, he was subject to a criminal investigation and was not free to leave. In the state’s view, this case is distinguishable from Hall, because the officer in that case interfered with the defendant’s freedom of movement by taking his identification and using it to conduct a warrant check.
We agree with the state that this case is distinguishable from
Hall
on its facts, because here there was no request for defendant’s identification and no warrant check. However, as the lead opinion in
Ashbaugh
recently stated, there is “no meaningful distinction between situations in which awareness of the investigation derives from a warrant check * * * and those in which the awareness of the investigation derives from a request to search following a defendant’s denial of wrongdoing,” if the request results in a reasonable belief that the person’s liberty of movement is significantly restricted.
The state contends that this case is analogous to
State v. Baker,
Here, also, the circumstances were more coercive than in
Baker.
In
Baker,
the officer approached the defendant on foot аnd immediately asked him if he had bought any “good crack.”
Id.
Here, when Murphy began questioning defendant, patrol car overhead lights were activated and the car in which defendant had been riding had just been stopped. When Murphy asked defendant whether he could search him, Murphy had already asked defendant if he could speak with him, called for backup, and asked defendant if he was in possession of a crack pipe or anything illegal. Murphy never told defendant that he was free to decline the request for consent to search. Under those circumstances, a reasonable person could infer that Murphy believed that defendant was in possession of something illegal and wanted to investigate further. In light of the circumstances, Murphy’s request for consent to search gave rise to a stop; at that point, a reasonable person in defendant’s position could have believed that he was not free to leave.
Lovell,
233 Or App at
*125
388 (an officer stopped the defendant when asking for consent to search her backpack after the defendant denied that she possessed anything illegаl);
see Ashbaugh,
The state notes that, in
State v. Morgan,
Morgan is distinguishable from this case. As we said in Morgan, the officer thеre had a lawful reason to request the defendant’s license in order to determine whether she could drive the car. Unlike in this case, the officer had not inquired regarding unlawful activity and had not given the defendant reason to believe that she was being investigated for criminal activity and therefore was not free to leave.
We conclude for the reasons exрressed herein that, under the circumstances, defendant was stopped. The stop was not based on reasonable suspicion of criminal activity and was therefore unlawful. The state does not contend that, *126 if the stop was unlawful, defendant’s consent to search was nonetheless voluntary. We conclude that the evidence obtained as a result of the search should have been suppressed.
Reversed.
Notes
Article I, section 9, provides, in part, “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure!.]”
The trial court explained:
“The officers did what they were trained to do to keep the conversation just shy of the line that was a stop. They ** * * follоwed what they understood to be * * * the case law * * * and I think they did the correct job of that.
“That case law does, indeed, say that a reasonable person would have to feel that they were not free to go, but the case law also gives us a strong message as to what the Court of Appeals thinks is reasonable.
“And I kind of think they’re wrong about that. As a matter of fact, I think the defendant didn’t feel that he was free to leave. I think the circumstances of the neighborhood in which officers feel that it’s routine to ask people if they’ve got a crack pipe just because they’re there that goes to something of the circumstances.
*121 “There are overhead lights. The car in which the defendant is a passenger has been stopрed by show of authority even though it probably pulled into place by itself. The overhead lights constitute — make it a stop.
“So the overhead lights are on. The defendant is walking freely. He doesn’t have to change direction which is kind of significant under the cases and the officer said things which led the defendant to believe that he wasn’t free to go. And I believe that.
“And personally I think that was entirely reasonable under * * * the circumstances as he perceived them and there was nothing unreasonable about his perception.
"My understanding of the case law is that’s not enough to transport a mere conversation into a stop because the Appellate Courts, the Court of Appeals and the Supreme Court, have given us examрles of how much it takes to interfere with a person’s liberty and merely engaging them in conversation which has the effect of stopping their forward progress without changing their direction, without summoning them one way or another to move, is not enough to prevent the officer from extracting consent to search or to talk.
“That’s what happened here, I believe I’m constrained by appellate case law to deny the motion to suppress.
“However, I do believe both that the defendant believed he wasn’t free to go; that he would be risking harm to try to leave; and that his view of the circumstances under the realities of the street was entirely reasonable.
“So I’m frustrated by the disaccord between what the Appellate Courts think is reasonable and what I think is real. But I’m bound by the Appellate Courts in this area. I have not * * * seen a case which tells me I’m not, and, therefore, I deny the motion to suppress.”