After the trial court denied defendant’s motion to suppress evidence — drugs that a police officer found in defendant’s purse and incriminating statements that she made thereafter — defendant was convicted of possession of methamphetaminе. ORS 475.894. On appeal, she argues that, although she consented to the search that led to the discovery of the drugs and the subsequent statements, the consent occurred during an unlawful stop. The state maintains that the consent occurred during an encounter that was not a stop, but mere conversation and, for that reason, the encounter did not violate defendant’s right to be free from unlawful seizure. We agree with defendant. We therefore reverse and remand.
The facts were adduced at a briеf motion to suppress hearing, and they are not disputed. After what defendant described as a stressful day, she was visiting a friend, L. While she was sitting on a couch in L’s apartment, three members of the Washington County Sheriff’s Department, in plain clothes but displaying badges, arrived. They suspected that L was involved in theft and drugs, and they wanted to conduct a so-called “knock and talk,” that is, a consensual interview at the suspect’s residence. While two of the officers interviewed L inside her apartment, a third, Monk, asked defendant to step outside. Believing that she had no right to refuse — “He’s an officer, he had a badge and he was asking me to do something. So I just figured that I should do it” — defendant complied. Monk assumed a position in the apartment doorway facing outward so as not to block defendant if she wanted to walk away. He asked defendant for identification, which she provided. He wrote down her name and date of birth, and then may or may not have returned the identification to defendant; he testified at the hearing that he could not remember, and the only other witness — defendant—was not questioned about that fact.
Monk then told defendant that he and the other officers were at the apartment on a drug-related investigation, and he asked defendant what she was doing therе. She replied that she was visiting. Monk then asked her if she used drugs, and, when defendant said that she did
At the motion to suppress hearing, defendant argued that she was stopped when the officer asked her to come outside, obtained her identification, and wrote down her name and date of birth. Alternatively, defendant аlso argued that, if the stop did not occur at that point, it certainly occurred when Monk also told defendant that the officers were in L’s apartment on a drug investigation, asked defendant if she was a drug user, and asked defendant if she had any drugs or weapons in her purse. The state responded that the encounter was low-key and conversational, there was no show of force, there was no physical restraint of defendant’s freedom of movement, and that a reasonable person in dеfendant’s position would (unlike defendant) have believed that she was free to leave. The court agreed with the state and denied defendant’s motion to suppress. Subsequently, defendant stipulated to the of the charged
A warrantless seizure in the absence of reasonable individualized suspicion is unlawful. State v. Holmes,
“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 under the totality of the circumstances would believe that (a) above has occurred.”
Ashbaugh,
The Supreme Court and this court have on several occasions dealt with cases revolving around the taking of
On appeal, defendant argues that taking her identification and writing down her informаtion, in combination with other circumstances, amounted to what a reasonable person would regard as a significant restraint on her liberty. We agree. Although, as the state maintains, the facts here resemble those in Ashbaugh, there are significant and, we bеlieve, dispositive differences. In both cases, it is true, police officers, in the context of what had obviously
In the present case, however, there was no significant break in time between Monk’s request for, and recording of, defendant’s identification and his questioning, whereas in Ashbaugh, the officers had taken the defendant’s identification, run a warrant check, and returned the card to her; the dеfendant could, therefore, presume that she was no longer, at that point, the subject of an investigation. Id. at 300-01. Further, although the officers in Ashbaugh approached the defendant, in the present case, Monk asked defendant to change her location. The situation here more closely resembles State v. Radtke,
“A reasonable inference from that sequence of events is that [the officer] took [the] defendant’s name and date of birth for the purpose of running a check on her and the reason that he had not done so in no way indicated that he was not going to — in other words, that the investigatory process had commenced and was ongoing up to the point of arrest. That inference is bolstered by several other circumstances. First, [the] defendant observed that the*289 рerson whom she was planning to meet was under arrest, in the ‘caged’ back seat of a patrol car. Second, there were two officers present and both were armed and in uniform. Third, as noted, in addition to taking her information, [the officer] alsо questioned [the] defendant about illegal activity, albeit in a calm and nonconfrontational voice.”
Id. at 240. We held, that, under the totality of the circumstances, the defendant was stopped. Id. at 241. Similar reasoning applies here. As defendant was being questioned, her friend L was clearly under investigation for some drug-related offense. Three officers, in plain clothes but identified as officers by visible badges, were present, albeit not armed. And, like the officers in Radtke, Monk questioned defendant about illegаl activity, “albeit in a calm and nonconfronta-tional voice.”
Further, the questioning here was somewhat more intrusive than in Ashbaugh. There, the officers asked the defendant only if “she had anything illegal in her purse.” Id. at 302 (internal quotation marks omitted). Here, in the immediate context of what defendant had been told was an ongoing drug investigation, Monk asked her to relocate and then asked if she, too, was a drug user; when she denied it, he then asked to search her purse. We cannot conclude that a reasonable person in these circumstances would believe that she was free to simply stop answering questions and deрart. For that reason, we conclude that she was stopped without reasonable suspicion, and the evidence that concededly derived from that stop should have been suppressed.
Reversed and remanded.
Notes
Although defendant challenges the search of her purse, she does not separately challenge the opening of the smaller, closed coin purse that contained the methamphetamine.