STATE OF OREGON, Respondent on Review, v. ERIKIA MARIE THOMPKIN, Petitioner on Review.
CC 0105-33237; CA A116637; SC S51405
In the Supreme Court of the State of Oregon
September 14, 2006
341 Or. 368 | 143 P.3d 530
Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before Carson, Chief Justice,** and Gillette, Durham, Riggs, De Muniz,*** Balmer, and Kistler, Justices.
** Chief Justice when case was argued.
*** Chief Justice when case was decided.
Gillette, J., dissented and filed an opinion, in which Durham, J., joined.
In this criminal case, we decide whether police officers unlawfully “seized” an automobile passenger under
During a lawful traffic stop of the vehicle in which defendant was a passenger, the officers requested and retained defendant‘s identification to conduct a records check. At the time, the officers did not have either a reasonable suspicion of criminal activity on defendant‘s part or a concern about an immediate threat to officer safety. While one officer ran the records check, a second officer questioned defendant about drugs. That conversation prompted defendant to surrender a pipe used for smoking crack cocaine. A subsequent search of defendant‘s person produced a small rock of crack cocaine. The state charged defendant with possession of cocaine. The trial court denied defendant‘s pretrial motion to suppress the state‘s evidence on grounds that defendant voluntarily surrendered the evidence and that she was not unlawfully detained. The trial court convicted defendant of the charged offense, and the Court of Appeals affirmed that judgment from the bench. State v. Thompkin, 192 Or App 364, 87 P3d 709 (2004). We allowed defendant‘s petition for review, and now, for the reasons that follow, conclude that the officers’ interaction with defendant constituted an unlawful seizure under
We take the following facts from the trial court‘s findings and from the record. At approximately 3:15 a.m. on
Hill approached the driver‘s side of the vehicle, while Reagan approached defendant on the passenger‘s side. Hill spoke to the driver regarding the reason for the traffic stop and asked for identification from both the driver and defendant, which they provided. Hill then returned to the police vehicle to run a records check on the information from each piece of identification, a process that took less than five minutes. During that time, Reagan remained on the passenger side of the vehicle and asked defendant about her activities with the driver that evening. Reagan also asked defendant if she had any drugs or weapons on her person. In response to that question, defendant removed a crack pipe from her pocket and handed it to Reagan.
After Hill returned from running the records checks on the driver and defendant, he gave the driver a verbal warning regarding his failure to signal the turn. Reagan then informed Hill of the crack pipe that he had obtained from defendant. Based on that information, Hill requested that defendant step out of the vehicle and asked her if she would submit to a search. Defendant got out of the vehicle and complied with Hill‘s request to search her person.
Prior to conducting the search, Hill asked defendant to interlock her fingers behind her head. Defendant complied but kept her left thumb folded into her palm, which prompted Hill to make a second request that she interlock her fingers. Noticing that something was interfering with defendant‘s ability to interlock her fingers properly, Hill lifted up defendant‘s thumb on her left hand. At that point, defendant dropped or threw what appeared to be a small rock to the ground where it shattered. Hill observed the substance and believed it to be consistent with crack cocaine. Hill then took defendant into custody and advised her of her Miranda rights. A subsequent lab report confirmed that the substance
Before trial, defendant moved to suppress the evidence of the pipe and the cocaine on grounds that the officers had seized that evidence without statutory authorization and in violation of her state and federal constitutional rights. Defendant argued that her surrender of the pipe had not been voluntary but, rather, had been mere acquiescence to police authority. Alternatively, defendant argued that, even if the action of handing over the pipe could be construed as voluntary, the retaining of her identification to run a records check without reasonable suspicion of criminal activity constituted an unlawful seizure. Defendant contended that Reagan had exploited that illegality to obtain the evidence and, therefore, the evidence should be suppressed.
When asked what prompted defendant to hand over the crack pipe, Reagan testified: “Well, I asked her if she had a crack pipe—or I asked her if she had any drugs or weapons on her, and she handed me a crack pipe from her right pocket.” Reagan also testified that he commonly inquires about drugs and weapons and that, at the time that he inquired of defendant, he had no reason to believe that defendant actually possessed such items.2
The trial court concluded that the officers had not detained defendant unlawfully by taking her identification because no evidence in the record demonstrated that she otherwise would have left the scene while Hill was evaluating the driver‘s identification. The trial court found:
“Here[, defendant] was sitting in the car and would have been sitting in the car—on the face of this record, and I so find—while Officer Hill was running [the driver‘s] identification information. Even if her own [identification] had not been taken, there‘s no evidence that she would have gotten out of the car or left the scene, that she didn‘t feel free to
leave because her ID was there and not because she was waiting there for them to do what they had the right to do while processing a traffic infraction with [the driver].”
Additionally, the trial court found that defendant voluntarily had surrendered the crack pipe and had not done so in response to any threat or promise on Reagan‘s part. As a result, the trial court denied defendant‘s motion to suppress the evidence of the crack pipe and cocaine.
Following a trial on stipulated facts, the trial court found defendant guilty of the charged offense, and defendant appealed. On appeal, defendant argued that Reagan‘s conduct was not authorized by
On review, defendant argues that, absent reasonable suspicion of criminal activity or an immediate threat to officer safety,
The state responds that Hill‘s request for defendant‘s identification did not amount to a seizure because Hill did not demand compliance or otherwise suggest that defendant was not free to refuse his request. The state characterizes Hill‘s request for identification as “nothing more than a permissible attempt to obtain defendant‘s cooperation and assistance.” Further, the state continues, running a records check on defendant‘s identification information did not constitute a seizure because Hill‘s brief retention of the identification for that purpose did not amount to a significant restriction on defendant‘s liberty.
We begin our analysis by addressing defendant‘s argument under
In State v. Amaya, 336 Or 616, 623-24, 89 P3d 1163 (2004), this court concluded that
The record in this case demonstrates that the answer to that question must be “no.” The trial court made no findings that defendant had acted suspiciously, and the state does not argue otherwise. Therefore, based on the record before us, we conclude that the taking and retaining of defendant‘s identification for the purpose of running a records check, and the subsequent questioning of her concerning drugs, were not authorized by
Our conclusion that the officers’ conduct violated
Among the potentially “infinite variety of encounters between law enforcement officers and citizens,” State v. Holmes, 311 Or 400, 406, 813 P2d 28 (1991), this court has identified three general categories of encounters and indicated whether those encounters constitute a “seizure” under
Here, the trial court concluded that the officers’ interaction with defendant did not amount to a seizure and, therefore, did not implicate
In Hall, this court concluded that a police officer‘s observations of the defendant‘s repeated turning to look at the officer‘s police vehicle and then quickly looking away did not give rise to a reasonable suspicion of criminal activity. Nevertheless, this court determined that the officer‘s initial actions of stopping his vehicle next to the defendant and motioning with two fingers for the defendant to approach had not interfered significantly with the defendant‘s liberty of
“defendant was cognizant that [the officer] was investigating whether defendant was the subject of any outstanding warrants. 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. Instead, immediately upon returning defendant‘s identification card, [the officer] questioned defendant about whether defendant was carrying any weapons, knives, or illegal drugs, and he asked defendant for consent to search defendant‘s person.”
Id. Accordingly, the court held in Hall that the defendant had been seized under
The facts at issue here are similar to those in Hall. Here, one officer (Hill) requested and retained defendant‘s identification to conduct a records check, including a check for outstanding warrants. While awaiting the results of that check, another officer (Reagan) questioned defendant concerning drugs and weapons, which prompted defendant to surrender the crack pipe. Here, as in Hall, we find it doubtful that a reasonable person in defendant‘s position would think that he or she was free to leave at a time when that person
Having concluded that defendant was unlawfully “seized” for purposes of
“[A]fter a defendant establishes the existence of a minimal factual nexus—that is, at minimum, the existence of a ‘but for’ relationship—between the evidence sought to be suppressed and prior unlawful police conduct, the state nevertheless may establish that the disputed evidence is admissible under
Article I, section 9 , by proving that the evidence did not derive from the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence
through lawful procedures even without the violation of the defendant‘s rights under
Article I, section 9 ; (2) the police obtained the disputed evidence independently of the violation of the defendant‘s rights underArticle I, section 9 ; or (3) the preceding violation of the defendant‘s rights underArticle I, section 9 , has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence[.]”
339 Or at 25 (internal citations omitted). In Hall, where the defendant‘s consent to search followed an unlawful stop, the court recognized several considerations relevant to determining whether exclusion is required to vindicate a defendant‘s rights under
Again, the facts at issue here are similar to Hall, where the defendant did not spontaneously grant consent to a search but, rather, gave consent in response to the officer‘s request. There, the officer requested consent to search immediately after the officer had questioned the defendant about weapons and illegal drugs and while the defendant was awaiting the results of a warrant check. 339 Or at 36. Under those circumstances, this court concluded:
“Given the close temporal proximity between the illegal detention and defendant‘s consent, and the absence of any intervening circumstances or other circumstances mitigating the effect of that unlawful police conduct, we cannot say that the state has proved that defendant‘s decision to consent, even if voluntary, was not the product of the preceding violation of defendant‘s rights under
Article I, section 9 .”
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
GILLETTE, J., dissenting.
The majority today regrettably pushes ahead with a line of analysis that the court first articulated as its rationale in State v. Hall, 339 Or 7, 115 P3d 908 (2005). That rationale utterly fails to appreciate or give constitutional validity to the defendant‘s noncoerced consent in this case, just as the majority in Hall failed to understand the significance of the defendant‘s consent there. See generally Hall, 339 Or at 37-52 (Durham, J., concurring in part and dissenting in part) (identifying fallacy in majority‘s treatment of the defendant‘s consent in that case). “Consent” used to be an event of significant constitutional moment, but the majority‘s rationale here and in Hall robs it of that constitutional significance.
I respectfully dissent.
Durham, J., joins in this dissenting opinion.