Dеfendant appeals a judgment of conviction for one count of unlawful delivery of methamphetamine, ORS 475.890, and one count of delivery of marijuana within 1,000 feet of a school, ORS 475.862. He argues that the trial court erred in denying his motion to suppress evidence that he contends was obtained after he was unlawfully seized during a traffic stop. We affirm.
We review the denial of a motion to suppress for errors of law. ORS 138.220. The trial court’s findings of fact are binding on appeal if there is constitutionally sufficient evidence in the record to support them. State v. Ehly,
Defendant was a passenger in a pickup truck traveling down a street in Salem shortly after midnight. Salem Police Officer Sommer passed the truck while traveling in the opposite direction and saw that its front registration plate was obstructed. Immediately after observing the pickup truck, Sommer executed a U-turn to follow it and then saw it suddenly turn off the main road into the parking lot of a small apartment complex. Sоmmer followed the truck into the parking lot and turned on his cruiser’s lights.
There were three occupants in the truck. Sommer noticed that the driver was acting “extremely nervous” and that he continued to exhibit nervous behavior as Sommer approached to speak with him. Sommer noticed that both the pickup truck’s passengеr compartment and bed were quite cluttered. When Sommer asked the driver why he had suddenly turned into the apartment complex, the driver responded that it was because he knew that he was going to be stopped by Sommer. When Sommer asked if they knew anybody who lived at the complex, all three occupants respоnded that they did not.
After the backup officers arrived, Sommer re-approached the vehicle and asked the driver to step out, while one of the backup officers, Renz, approached the passenger-side door to observe the remaining occupants. Sommer asked the driver for his consent to a search of the pickup truck and the driver agreed. Sommer then asked defendant to step out of the vehicle in order to conduct the search. Sommer asked defendant if he had any weapons on his person, to which defendant — in Sommer’s words — replied that he “might have a knife.” Defendant refused Sommer’s request to pat him down, but was not acting aggressively and was fully cooperative.
At that point, Sommer told defendant that he was free to leave. Defendant replied by saying that he wanted to retrieve his coat that was still in the pickup truck’s passenger compartment along with the other passenger. That passenger was being watched by Renz, who was positioned next to the open passenger-side door. Renz said that he would get defendant’s coat out of the truck for him. Defendant became insistent upon getting the coat himself and began moving towards the passenger-side door where Renz was standing. Sommer testified that defendant’s attempt to approach the vehicle, while not made in an aggressive or hostile manner, made him nervous because Renz was in a confined space, and that Sommer did not know whether defendant or the other passenger had any weapons. Sommer had to physically “steer” defendant away from approaching Renz by moving him away from the passenger-side door and toward the back of the pickup.
Before trial, defendant moved to suppress all evidence obtained as a result of the stop under Article I, section 9, of the Oregon Constitution.
On appeal, defendant concedes that the initial traffic stop was lawful, but renews his argument that he was unlawfully seized in the course of it. Defendant’s only argument on appeal is that he became unlawfully seized— by virtue of his status as a passenger in the vehiclе — at the moment the traffic stop was improperly extended by Sommer’s request for the driver’s consent to search the pickup truck. Defendant does not argue that he was seized by any other police action in the course of the encounter. For its part, the state contends, among other things, that defendant was nеver seized within the meaning of Article I, section 9.
*750 “A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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 undеr the totality of the circumstances would believe that (a) above has occurred.”
State v. Ashbaugh,
A passenger in a lawfully stopped vehicle is not automatically seized within the meaning of Article I, section 9, but a “further exercise of coercive authority over the passengers by officers may, in certain circumstances, constitute а seizure.” State v. Thompkin,
In concluding that the defendant was not entitled to seek suppression based merely on his capacity as a passenger, we first noted that Presley and similar cases were not decided in the context of Article I, section 9, but instead, were concerned with whether a police officer exceeded a grant of statutory authority to conduct traffic stops under a superseded version of ORS 810.410. Knapp,
Knapp did not address Stearns, the other case on which defendant relies. Stearns involved a traffic stop that we concluded was unlawful at its inception because it was not supported by probable cause.
More importantly, Stearns was decided before Ashbaugh and does not address an important principle from that case: A determination that someone has been seized in the constitutional sense is predicаted on police using physical force or making a show of authority. Ashbaugh,
Defendant in this case does not argue that he was seized by a “show of authority,” such as the police retaining his identification; he merely argues that a passenger is unlawfully seized at the moment that the stop of а vehicle becomes unlawful. Even if we were to assume that the driver
Defendant argues that Rodgers/Kirkeby controls the outcome of this case. The fatal defect in defendant’s reliance on Rodgers ¡Kirkeby, however, is that nothing in that case supports the proposition that a passenger is seized when a police officer unlawfully extends the stop of a vehicle. That is because Rodgers ¡Kirkeby did not involve the constitutional rights of passengers at all; only the rights of the defendant drivers were at issue.
As support for his contention in this appeal that he was unlawfully seized, defendant points only to the fact that he was a passenger in a vehicle whose driver — defendant argues — was improperly seized by an unlawful extension of a traffic stop.
Affirmed.
Notes
Defendant did not argue before the trial court, nor does he argue here, that he was seized by Sommer’s request for him to stay in the vehicle. We thus express no opinion about whether defendant was seized at that point.
Before the trial court, defendant also invoked the Fourth Amendment to the United States Constitution; however, he does not raise any argument under the federal constitution on appeal. We therefore confine our opinion to questions of Oregon law.
Petition for review in Knapp is being held in abeyance pending decisions in State v. Musser,
The state acknowledged before the Supreme Court in Rodgers/Kirkeby that, “in the context of a lawful traffic stop, the police have ‘stopped’ the driver and any passengers in the vehicle.”
We wish to emphasize that defendant did not argue at the trial court level, nor does he argue here, that he was seized when Sommer physically prevented him from getting his coat. We thus express no opinion about whether defendant was seized at that point.