This case is on remand from the Oregon Supreme Court for a second time. For the reasons explained below, we now conclude that, because defendant was not seized for purposes of Article I, section 9, of the Oregon Constitution,
In our original opinion, we vacated the trial court’s denial of defendant’s motion to suppress evidence found during the search of defendant’s person and remanded the case to the trial court for reconsideration in light of our decision in State v. Ashbaugh,
On remand, noting that the facts of this case were “materially indistinguishable” from those in our decision in State v. Highley,
With four amplifications noted below, we take the material facts and a description of the procedural history of this case from Parker I, reiterating as we did there that “ [t]he trial court expressly found both the police officers’ and the defendant’s accounts of the facts to be ‘accurate, and a fair recitation of what occurred.’”
“Consistently with that finding, the salient facts here are as follows: On May 23, 2006, defendant was a passenger in a pickup truck stopped by Portland Police Officers Cioeta and Boman for expired license plate tags. Boman asked the driver and the other passenger for their identification and obtained their information. Cioeta asked defendant if he had any outstanding warrants; defendant replied that he did not. Cioeta then asked for defendant’s identification,[2 ] wrote down defendant’s information, returned the identification, and then immediately returned to the police vehicle.
“The officers ran all the occupants’ information and checked them for warrants. In the meantime, at least one additional police vehicle arrived on the scene. Boman then asked the driver and another passenger to get out of the truck. The driver was cited for driving while suspended. Boman conducted a patdown search of the other passenger, informed him he was under arrest for an outstanding warrant, and placed him in custody. [Cioeta decided to tow the truck and inventory its contents because the driver’s license was suspended.] Cioeta then approached defendant and asked him to get out of the truck. Cioeta asked defendant if he had any weapons; defendant denied that he did. Cioeta then asked for permission to search defendant, and defendant consented. Cioeta conducted a patdown search of defendant and retrieved a switchblade knife from defendant’s pants pocket. [At no point during the encounter did Cioeta tell defendant that he was free to leave.] Defendant was arrested and subsequently charged with carrying a concealed weapon.
*234 “Before trial, defendant moved to suppress the evidence. The trial court denied that motion, concluding that ‘regardless of anything that happened before, the consent was freely given and was voluntary.’ Following a stipulated facts trial, the court convicted defendant of carrying a concealed weapon, ORS 166.240(1).”
Parker I, 225 Or App at 612-13.
On remand, the dispositive issue is whether the encounter between defendant and the officers constituted a seizure for purposes of Article I, section 9. In supplemental briefing, relying on the historical and procedural facts as stated in Parker I, defendant contends that he was seized for purposes of Article I, section 9, because “there were numerous shows of authority creating the type of police dominated atmosphere that would indicate to a reasonable person that they were not free to leave and terminate the encounter.” Specifically, defendant explains:
“[T]he facts demonstrate an unbroken chain of police dominated events: the officer stopped the car in which defendant was a passenger; the police investigated defendant’s associates; the police arrested defendant’s associates; the police controlled defendant’s movement by removing him from the car; the police obtained defendant’s information to start a criminal investigation; and the police disregarded the defendant’s denial of wrongdoing and requested consent. At no time during th[at] sequence of events did defendant leave and return or engage in a ‘cat and mouse’ game of legerdemain with the officers. A reasonable person in that same position would believe that the officer was using his authority to seize the person until the investigation was complete or the officer indicated as much.”
(Citation omitted.)
As the Supreme Court explained in Ashbaugh II, a person is seized for purposes of Article I, section 9,
“(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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”
A “show of authority” is a “precise concept” that requires “a reasonable perception that an officer is exercising his or her official authority to restrain.” Backstrand,
First, “[p]assengers in a stopped vehicle — whether [the vehicle has been] lawfully or unlawfully stopped — are not seized merely by virtue of their status as passengers.” State v. Ross,
“[i]t is a truism that all passengers in a validly stopped car have been ‘stopped,’ at least physically. However, such a stop is not a ‘seizure’ of those passengers for constitutional purposes. It also is true that an officer may take reasonable steps respecting the passengers, including, for example, asking the passengers to exit the vehicle so the officer may search the vehicle, assuming that the driver has consented to the search or that it otherwise is justified. However, an officer’s further exercise of coercive authority over the passengers after they are out of the vehicle may, in certain circumstances, constitute a seizure.”
(Citation omitted.) In other words “a passenger is only seized when there has been the imposition, either by physical force or through some show of authority, of some restraint on the
Second, “[a] mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure.” Backstrand,
Third, in Backstrand — as well as in Highley II and Anderson — the Supreme Court “repeatedly emphasized that neither briefly holding a person’s identification card, nor calling in the person’s identification information to check for warrants, necessarily and always meant that the person was stopped.” State v. Thompson,
“a person who decides to cooperate with an officer’s request for identification reasonably can expect that the officer will do something with that identification, such as seek to verify the person’s identity or status. That the officer either retains the identification for a reasonable time while doing so, or swiftly returns the identification and uses information from it for those purposes, are not actions that transform a noncoercive encounter into one in which the individual’s liberty is significantly restrained through an exercise of coercive police authority.”
“In this case, the officer’s actions toward defendant did not amount to a ‘show of authority’ that restricted her movement such that she was ‘stopped’ when she consented to the officer’s search of her purse. *** [T]he officer’s question whether defendant possessed any drugs or weapons was not a constitutionally significant ‘show of authority,’ and neither was his request that she step out of the car. Unlike in State v. Courtney,242 Or App 321 , 325,255 P3d 577 [, rev den,351 Or 401 ] (2011), the officer’s question and his request that defendant step out of the car were not coupled with any other show of authority, such as the officer’s command to the defendant in Courtney that he place his hands on top of his head and interlace his fingers. It follows under Ashbaugh II that the officer did not ‘intentionally and significantly’ interfere with defendant’s liberty or freedom of movement when he asked defendant to get out of the car and that a reasonable person in defendant’s situation would not have believed that the officer had done so. Accordingly, we conclude that the trial court properly denied defendant’s motion to suppress.”
As a result of running the occupants’ information, the officer learned that the other passenger had an outstanding warrant. In the meantime, at least one additional police vehicle arrived. At that point, Boman asked the driver and the other passenger to get out of the truck. The driver was cited for driving with a suspended license, and the other passenger was arrested and placed in custody. Cioeta decided to tow the truck and inventory its contents because the driver’s license was suspended.
At that point in the encounter, a single officer— Cioeta — turned his attention to defendant, who had remained in the truck’s passenger seat. Cioeta asked defendant to get out of the truck and inquired as to whether he had weapons. When defendant denied that he possessed weapons, Cioeta sought his consent to search. Although Cioeta did not tell defendant that he was free to leave at any point during the encounter, there is no evidence that Cioeta drew a weapon, raised his voice, or otherwise spoke in a manner that was nonconversational.
Viewed in their entirety, those circumstances are materially indistinguishable from those in Dudley in which
In sum, given the totality of the circumstances, a reasonable person would not have believed that his or her liberty was significantly restrained. Accordingly, the trial court did not err in denying defendant’s motion to suppress.
Affirmed.
Notes
Article I, section 9 provides, in part, that “[n]o law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure [.]”
Defendant testified that he “didn’t really have ID, as such” but showed Cioeta a work “badge []” with his “picture on it.” Cioeta asked defendant for his name and date of birth.
The defendant in Dudley petitioned the Supreme Court for review of our decision. The court held that petition in abeyance pending the issuance of its decisions in Backstrand, Highley II, and Anderson. Following the issuance of its decisions in those cases, the Supreme Court denied review in Dudley.
See State v. Smith,