Defendant appeals a judgment of conviction for possession of a controlled substance, former ORS 475.992(4) (2003), renumbered as ORS 475.840(3) (2005). Defendant contends that the trial court erred by denying his motion to suppress evidence found in a search of his person that was conducted in connection with what he reasonably believed to be a warrant check regarding him. Because we agree that defendant was stopped in violation of Article I, section 9, of the Oregon Constitution at the time of the search, we reverse and remand. 1
In reviewing the denial of a pretrial motion to suppress, we are bound by the trial court’s findings of fact if there is constitutionally sufficient evidence in the record to support them.
State v. Hall,
Two police officers, Frankus and Devlin, were in a marked patrol car just after midnight. They saw defendant walking through a store parking lot that was known to them for drug activity. While remaining in the patrol car, Frankus yelled out the window to defendant, and defendant stopped and turned to speak to Frankus. Neither the overhead lights nor the siren of the patrol car were activated, and the patrol car was not parked in such a way as to block defendant’s path.
Frankus spoke with defendant in a conversational tone. In response to Frankus’s questions, defendant stated that he was from The Dalles and was in Portland until the next day for a construction job. Intending to check for warrants, Frankus asked for defendant’s name and date of birth, which defendant provided. Frankus did not obtain defendant’s driver license or any other documents.
No one told defendant that he was being checked for warrants. It is, however, a typical police practice to run a *234 name for warrants after getting a name and birth date. Accordingly, while Frankus spoke to defendant, Devlin was using the patrol car’s computer, which is between the driver’s and passenger’s seats.
Defendant testified that, in previous encounters with police, officers had run his name and date of birth. When Frankus asked for that information, defendant “figured he’s running my name for outstanding warrants and it was just, you know, normal practice.” Defendant saw that Devlin was using the computer and, although he was unable to “say for sure exactly what [Devlin] was doing,” defendant believed that Devlin was checking for warrants. Defendant elaborated that, “to all of my knowledge and dealings and watching TV, yes, he was running me for warrants.”
On hearing defendant provide his name and birth date, Devlin checked defendant’s information and alerted Frankus that defendant had prior arrests for drugs. Frankus then got out of the patrol car, approached defendant on foot, and asked if defendant “had any dope on him.” After defendant said no, Frankus asked to search him for drugs. Defendant responded by asking Frankus “what he had done wrong and why [Frankus] was harassing him.” Frankus told defendant “that he hadn’t done anything wrong and that I was just simply doing my job and talking to people, as I’m expected to do.”
Around that time, defendant asked if he was under arrest and was told he was not. He made no attempt to leave. Frankus again asked for consent to search defendant. Defendant said nothing but pulled several items from his pants pocket. When defendant did so, Frankus saw that the pocket contained a loaded syringe. Frankus then asked if he “could be sure that [defendant] had taken everything out of bis pockets.” In response, defendant put his hands in the air.
Frankus “pulled everything else out of [defendant’s] pockets” and found what appeared to be a baggie of methamphetamine. After Frankus told Devlin about finding drugs on defendant, Devlin read defendant his Miranda rights. Defendant then told Devlin that “he had a needle and a bag of meth in his pocket.”
*235 Before trial, defendant moved to suppress the evidence found as a result of Frankus’s search of his person. The trial court denied that motion.
On appeal, defendant contends that the trial court erred because he was stopped in violation of Article I, section 9, and the evidence at issue was obtained by exploiting that unlawful seizure. Defendant argues that he was seized when Frankus obtained his name and date of birth and “defendant was aware of the fact that the officers were conducting the records check.” Under Hall, the police actions constituted a stop, defendant contends, because a reasonable person in his circumstances would not feel free to leave while the police conducted their investigation.
The state responds that asking for a person’s name and date of birth to run a records check does not constitute a seizure. In the state’s view, “[a]t most, Hall clarified that, even if identification is returned to a citizen, using information obtained from the identification to run a records check in the citizen’s presence transforms an encounter into a stop.” (Emphasis in original.) The state posits that, regardless of defendant’s belief that a. records check was occurring, Frankus’s request for defendant’s name and date of birth— without taking defendant’s identification or indicating that a records check was being conducted — would not cause a reasonable person to believe that he was not free to leave.
We begin with principles concerning seizures of persons. Encounters between police officers and citizens fall into three general categories:
“The first category, ‘mere conversation’ encounters, encompasses consensual interactions between police officers and citizens that require no justification and that do not implicate Article I, section 9. The second category, temporary restraints of a person’s liberty for investigatory purposes— or ‘stop[s]’ under ORS 131.615(1) (1995) — constitutes a type of ‘seizure’ of a person under Article I, section 9, that must be justified by a reasonable suspicion of criminal activity. The third category, arrests, also constitutes a ‘seizure’ of a person under Article I, section 9, and must be justified by probable cause to believe that the person arrested has committed a crime.”
*236
Hall,
Under Article I, section 9, a person is seized “(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.”
Holmes,
Here, the issue is whether defendant’s belief that he was stopped was objectively reasonable.
2
We assess whether, under the totality of the circumstances, “a reasonable person in defendant’s position could have believed that the officers significantly had restricted his liberty or freedom of movement.”
State v. Toevs,
When a person is aware of being the subject of a pending records check, it is reasonable for the person to believe that he is not free to go. In Hall, a police officer took the defendant’s identification card, radioed for a warrant check, and then promptly returned the card. Concluding that the defendant had been stopped, the court explained:
“Although the state insists to the contrary, we find it difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check. We further observe that, in this case, [the officer] did nothing to dispel what would have been an objectively reasonable belief that defendant was restrained from leaving until [the officer] had received the results of the warrant check.”
Police officers need not expressly inform a person that they are conducting a warrant check in order to effect a stop. For example, in
State v. Highley,
Here, likewise, we conclude that a reasonable person in defendant’s circumstances could conclude that he was not free to leave. Although Frankus did not orally request a records check within earshot of defendant, as the officer did in Rider, or take written information to a patrol car, as the officer did in La France, the totality of the circumstances could suggest to a reasonable person that Frankus requested identifying information so that Devlin could check for warrants. Frankus requested not only defendant’s name but also his date of birth — very specific identifying information, consistent with checking records. Unlike the officers in Rider and La France, Frankus had no need to take any further action to obtain a records check. Sitting next to Frankus in the patrol car, Devlin was able to hear when Frankus obtained identifying information and to run that information on the computer immediately, and defendant saw that Devlin was using the computer. Under the circumstances, with one officer obtaining specific identifying information and a second officer using the computer, a reasonable person could believe that he was the subject of a pending records check and was not free to leave.
Indeed, it would seem anomalous to conclude that a reasonable person could not believe that he was the subject of *239 a warrant check under the circumstances. Frankus testified that he intended to run a warrant check when he asked for defendant’s name and date of birth. Both Frankus and Devlin testified that running a warrant check is a normal police practice when a name and date of birth are available. And, in fact, Devlin was — as defendant believed — running that information through records.
Because defendant was stopped in violation of Article I, section 9, and nothing broke the causal connection between that stop and the subsequent discovery of the evidence at issue, the trial court erred by denying defendant’s motion to suppress.
Reversed and remanded.
Notes
In his second assignment of error, defendant argues that the trial court erred by denying his motion to exclude a crime laboratory report identifying as methamphetamine the substance found on defendant’s person. Given our disposition of defendant’s first assignment of error, we do not reach that issue.
The trial court denied defendant’s motion to suppress without making specific factual findings concerning whether defendant subjectively believed that he was stopped. Below, the state argued in closing that defendant’s “subjective belief is not reasonable under those circumstances,” but it did not dispute defendant’s testimony about his subjective belief. In this court, the state conceded at oral argument that defendant’s testimony at trial supported a finding that defendant did not believe that he could leave.
See State v. Bretches,
Petitions for review in
La France
and
Highley
are being held in abeyance pending a decision in
State v. Ayles,