Defendant challenges the trial court’s denial of his motion to suppress evidence that officers discovered after defendant consented to the inspection of a container that officers found during a “pat down” search. The trial court concluded that defendant was seized at the time of the search and that the seizure was authorized by officer safety concerns, rejecting defendant’s argument that he was seized much earlier during the encounter and that the state failed to prove any lawful basis for the earlier seizure. Defendant argues that he was seized when, during the course of a conversation between the officer and defendant, who was sitting in a parked car, the officer asked to see defendant’s license and then told defendant to reach for his wallet with only one hand. We have repeatedly held that similar directions to a citizen amounted to a seizure, and we conclude that defendant was, likewise, seized when the officer directed how defendant should move his hands to reach for his wallet. The state urges us to affirm the trial court on the alternative bases that the earlier seizure was also authorized by officer safety concerns or that defendant’s ultimate consent was sufficiently attenuated from any illegality that the evidence should not be suppressed. However, neither argument was raised or addressed below, and the criteria for affirming a trial court on an alternative basis are not satisfied. Accordingly, we reverse and remand.
We review the denial of defendant’s motion to suppress for legal error and, in doing so, “we are bound by the trial court’s factual findings if there is any constitutionally sufficient evidence in the record to support them.” State v. Maciel-Figueroa,
I. BACKGROUND
A. Historical Facts
Sheriffs deputies Hagan and Remmy were driving in a marked patrol car through an area with “a lot of stolen vehicles and cars that are broken into” when they noticed a car parked on the side of the road with the passenger door ajar. Hagan “thought it was a little unusual” because he had “found cars in that state before and they’ve been broken into.” At the time, the sun was still rising and it was a “little bit foggy,” so Hagan “couldn’t quite see into it to know one way or the other if anybody was inside.”
The deputies turned around, parked in front of the car, but on the opposite side of the street, and approached the car from both sides. Using flashlights to look inside the car, they saw two people—defendant in the driver’s seat, with the keys in the ignition, and a woman in the passenger seat. Hagan knocked on the driver’s side window, and defendant rolled it down. Hagan asked defendant what they were doing there and defendant responded, “Just talking. We sit here all the time.”
Defendant retrieved his wallet and gave Hagan a work ID, saying that he must have left his license at home. As their discussion continued, defendant reached twice more toward the right side of his waistband, which caused Hagan to be concerned that defendant “might have been trying to hide a weapon or access a weapon.” When defendant refused to consent to let Hagan search him for weapons, Hagan opened the car door and, ultimately, forcefully removed defendant from the car and placed him in handcuffs. Hagan then patted down the outside of defendant’s clothing and found a pocket knife clipped to defendant’s belt loop on the right side as well as two small objects in defendant’s right pants pocket. Hagan asked if defendant “had anything illegal” in his pocket and defendant replied, “Yeah, you can take it out.” Hagan then pulled out a small container, and defendant volunteered, “There’s some crystal inside.”
B. Procedural Background
The state charged defendant with one count of unlawful possession of methamphetamine, ORS 475.894. Before trial, defendant filed a motion to suppress. He argued that he was seized when Hagan told him how to use his hands to retrieve his identification. Defendant argued that the seizure at that point was not authorized by any exception to the warrant requirement and that all evidence obtained after Hagan unlawfully seized defendant should be suppressed “because defendant’s subsequent consent to the search of his person and incriminating statements were the product of the preceding unlawful police conduct.” The trial court ruled that defendant was not seized until later in the encounter and that the seizure was authorized by officer safety concerns, based on defendant repeatedly reaching toward his waistband even after being told not to do so. The trial court, thus, denied defendant’s motion to suppress, and defendant was later convicted of unlawful possession of methamphetamine after a stipulated facts trial.
II. DISCUSSION
On appeal, defendant again argues that he was seized when Hagan directed him to use his hands in a specific way to retrieve his identification, that the seizure was not authorized by the officer safety doctrine,
A. Seizure Under Article I, Section 9
For purposes of Article I, section 9, of the Oregon Constitution, which protects
Backstrand emphasizes the fundamental proposition that “the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens.” Id. at 400. Thus, officers are “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.” Id. (internal quotation marks omitted). An officer may also request a person’s identification and retain the identification long enough to check its validity without those actions, in and of themselves, creating a coercive restraint on the person’s liberty. Id. at 412-13. That is because “the fact that an individual *** feels obliged to cooperate with the officer simply because of the officer’s status is not the form or source of coercion that is of constitutional concern.” Id. at 402.
However, an encounter that involves “something more” than just a person with officer status “asking a question, requesting information, or seeking an individual’s cooperation” can become a seizure if “added factors would reasonably be construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request.” Id. at 403. A “‘show of authority’ can be inferred from ‘the content of the questions [asked by a police officer], the manner of asking them, or other actions that police take (along with the circumstances in which they take them).”’ State v. Charles,
Defendant argues that a reasonable person would construe Hagan’s directions to use his hands in a specific way to retrieve his identification as a show of authority requiring compliance. To support his argument, defendant relies on State v. Ruiz,
The trial court denied the defendant’s motion to suppress, concluding that the officer’s direction to the defendant was not a seizure, but we disagreed. Id. at 327. We concluded that when the officer told the defendant to remove his hand from his pocket, he exercised authority over the defendant that constituted a seizure, because “a person in defendant’s position would not reasonably believe that he could walk away from his encounter with [the officer] without first taking his hand from his pocket, as [the officer] ordered him to do so.”
We have continued to identify similar directions given during a police-citizen encounter as amounting to a seizure. In State v. Shaw,
The state argues that Ruiz and the cases like it are distinguishable because Hagan did not “request any specific affirmative act—like taking a hand out of a pocket—that defendant would have felt he was required to complete before he could leave the car.” Rather, he, “in effect, told defendant to refrain from doing something” while he reached toward his wallet. We can identify no constitutionally significant distinction, however, between the show of authority inherent in directing defendant to use his hands in a particular way to reach for his wallet and the show of authority inherent in directing a citizen to remove his hand from his pocket or to place his hands on the car dashboard. We conclude that Hagan’s direction to defendant, here, was no less an exercise of authority than the officers’ directions in the cases discussed above and was accompanied by circumstances that arguably contributed to a greater show of authority. The trial court found that, after defendant’s initial furtive movements when Hagan asked to see his license, Hagan “says to him in a kind of—according to him, a kind of regular tone, ‘Can I—keep your hands where I can see them. Go in with one hand,’ which he did.”
In addition, the encounter began when two officers approached, from either side, a parked car in which defendant was sitting with the driver’s-side door closed; shined their flashlights into the car; knocked on the window to get defendant’s attention; and asked him to produce his license. Although the circumstances through that point may not have amounted to a seizure, they provide context for the show of authority that followed. See Charles,
B. Officer Safety
The state argues that, if a seizure occurred at the point when Hagan directed defendant to use his hands in a specific way to retrieve his wallet, the seizure was justified by the same safety concerns that the trial court identified as authorizing Hagan to pull defendant from the car. “Officer safety” is one of the established exceptions “to the general rule that warrantless searches are per se unreasonable and therefore unlawful under Article I, section 9, of the Oregon Constitution.” State v. Davis,
‘“reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based on specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.’”
Id. (quoting State v. Bates,
The state recognizes that the trial court did not address whether the state proved that Hagan possessed an objectively reasonable belief that defendant “might pose an immediate threat of serious physical injury” at the point when Hagan told defendant how to reach for his wallet. Thus, we understand the state’s arguments on appeal to be a request that we affirm the trial court’s ruling as right for the wrong reason. Three considerations constrain our ability to affirm a trial court’s ruling on a basis other than those on which the court relied: “(1) ‘the facts of record [must] be sufficient to support the alternative basis for affirmance’; (2) ‘the trial court’s ruling [must] be consistent with the view of the evidence under the alternative basis for affirmance’; and (3) ‘the record [must] materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below.’” State v. Booth,
We disagree. The court’s finding that Hagan possessed the requisite subjective belief that defendant “might pose an immediate threat of serious physical injury” at the point when he removed defendant from the car is not equivalent to a finding that Hagan possessed the same subjective belief at the point when Hagan directed defendant to reach for his wallet with one hand. Indeed, Hagan’s testimony would support the competing inference that it was only later in the encounter that he developed a specific concern about safety. He testified that he became “more and more concerned there was a weapon” as defendant “kept reaching in that area.” He also testified that, although he had an “immediate concern” about weapons when defendant first touched his waistband, he “watch [es] everybody’s hands, so it wasn’t a real heightened event at that point.” As we articulated the obstacle in Booth, “the trial court did not engage in the fact-specific inquiry necessary to determine whether the state had carried its burden” of proving that Hagan’s belief that defendant might pose an immediate threat to safety began with defendant’s first suspicious movements. See
C. Exploitation
Finally, the state argues that the evidence need not be suppressed because, even if Hagan unlawfully seized defendant when he directed the manner in which defendant should retrieve his wallet, defendant’s ultimate consent to Hagan removing the container from defendant’s pocket, and his admission that it contained “crystal,” were “entirely independent of the purported illegality.” The state relies on State v. Unger,
This is an argument that the state did not raise below, and, again, the criteria identified in Outdoor Media, preclude us from reaching this alternative basis for affir-mance. See
Moreover, even if the record were sufficient to support this proposed alternative basis for affirmance, we are instructed not to consider affirming on an alternative basis, “if the losing party might have created a different record below had the prevailing party raised that issue.” Outdoor Media,
Reversed and remanded.
Notes
Defendant explained that he meant “crystal meth.”
Defendant also argues that the seizure was not justified by reasonable suspicion of criminal activity, anticipating a possible state position on appeal. However, the state did not advance that justification for a seizure below, nor does the state make that argument on appeal, so we do not address the reasonable suspicion doctrine.
Although Ruiz predates Backstrand and Ashbaugh, it analyzes the police-citizen encounter under the same standard that the subsequent cases identify as the proper standard for identifying a stop—whether the officer’s actions “would lead the person reasonably to believe that he or she is not free to leave.” Ruiz,
The description is essentially identical to Hagan’s testimony that, when defendant explained that his wallet was in the center console area, Hagan “asked him to keep his hands where [Hagan] could see them” and “told him he could reach for it with one hand.”
Although defendant relied on Ruiz in the trial court as well, the court’s ruling does not explain the basis on which the court understood Ruiz to be distinguishable.