This case is on remand from the Oregon Supreme Court, which vacated our prior decision and remanded the case for reconsideration in light of
State v. Ashbaugh,
We take the facts and pertinent procedural history from our earlier opinion:
“[U.S. Immigration and Customs Enforcement (ICE) Senior Special Agent Billison] accompanied Hillsboro narcotics officers as they executed a search warrant at defendant’s sister’s residence. Although execution of the warrant was undertaken primarily by the narcotics officers, Billison was present to deal with any immigration-related issues. Forged immigration and Social Security documents were discovered during the search and, as a result, Billison detained some of the persons in the residence for immigration violations. Hillsboro police arrested others on drug charges. Ultimately, all of the adults in the residence were taken into custody.
“Because there were several minors at the residence who would have been left without adult supervision, Billison telephoned their mother — defendant’s sister — and asked her to return to the residence to care for her daughters. Defendant arrived at the residence 10 to 15 minutes *216 later, and Billison testified that it appeared as though defendant’s arrival was related to Billison’s telephone call.
“When defendant arrived, he was approached by the Hillsboro officers, who asked why he was present. After learning that defendant was there to take custody of the children, the officers called Billison, who had been inside the residence, to defendant’s location. Billison, who was in plain clothes but wearing a badge, introduced himself to defendant, identified himself as an ICE agent, and asked to see defendant’s identification. Defendant produced an Oregon identification card. Billison looked at the card and then asked defendant where he was from. After defendant responded, ‘Mexico,’ Billison asked whether defendant had any other identification. Defendant responded affirmatively and produced a resident alien card and a Social Security card, both of which Billison immediately recognized as forgeries. Billison later testified that, had defendant chosen to walk away at any point before he produced the forged documents, he ‘suppose[d]’ that he would have allowed defendant to do so. The entire encounter lasted ‘less than two minutes.’
“Defendant was arrested and charged with two counts of first-degree criminal possession of a forged instrument. Before trial, defendant moved to suppress evidence of the forged instruments. The trial court denied defendant’s motion, reasoning that defendant’s interaction with Billison was a ‘mere street encounter,’ that Billison’s request to see identification was not a stop of defendant, and that defendant’s production of the fraudulent identification provided probable cause to arrest him. * * * [Defendant agreed to a stipulated facts trial and was convicted.”
State v. Zamora-Martinez,
As we explained in our original opinion, the only issue on appeal is whether “Billison’s inquiry regarding
additional
identification escalated the encounter into a stop and * * * the stop was unsupported by reasonable suspicion, in violation of Article I, section 9[.]”
We analyzed that issue by reference to our decision in
Ashbaugh I,
in which we concluded that a seizure occurs when a reasonable person under the circumstances
“could have
believed” that he or she was not free to leave.
Subsequently, the Supreme Court’s decision in
Ashbaugh II,
“abandoned]” the subjective component of the test for whether a seizure has occurred for purposes of Article I, section 9.
“[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.”
Id. (emphasis in original). Thus, the question in this case reduces to whether a reasonable person, in light of the totality of the circumstances, would have believed that he or she *218 was not free to leave when asked by the ICE agent for additional identification.
In determining whether a reasonable person would believe that a law enforcement officer interfered with the defendant’s liberty or freedom of movement, the court in
Ashbaugh II
“addressed whether the content of the officer’s questions or the officer’s manner or actions would reasonably be perceived as a show of authority that restricted the defendant’s freedom of movement.”
State v. Levias,
In
Radtke,
which we decided on remand from the Supreme Court for reconsideration in light of
Ashbaugh II,
we considered whether the defendant was seized for purposes of Article I, section 9, when an “officer asked for and obtained [the] defendant’s name and date of birth, then wrote that information in a notebook but did not ‘run’ that information to determine whether there was some reason to detain her” and “immediately” began questioning the defendant about whether she was in possession of anything illegal.
*219 “that [the officer] took 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, defendant observed that the person whom she was planning to meet was under arrest, in the ‘caged’ back seat of the 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] also questioned defendant about illegal activity, albeit in a calm and nonconfron-tational voice.”
Id.
at 240. Applying the relevant legal principles, we concluded that the defendant was seized because “a reasonable person in [the] defendant’s position would have believed that an investigation began when [the officer] took note of her name and date of birth; thus, she was not only being questioned about illegal activity, she was under the impression that the police had begun an investigation of her and had not given her any reason to believe that it had ended.”
Id.
at 241;
see also State v. Parker,
Likewise, applying those principles here, we conclude that, in light of all the circumstances in this case, a reasonable person in defendant’s position would conclude that he or she was the subject of an investigation and was not free to leave. Specifically, defendant arrived to pick up his nieces after every adult at the residence had been either arrested on drug charges or detained for immigration violations. After defendant informed Hillsboro police officers at the scene that he was there to take custody of the children, the officers called Billison — an ICE officer who, though in plain clothes, was wearing a badge identifying himself as a federal immigration officer — to talk to defendant. Although *220 defendant produced an Oregon identification card in response to Billison’s initial request for identification, the officer did not proceed to release defendant’s nieces to him. Instead, Billison asked defendant where he was from and, upon hearing that defendant was from Mexico, asked whether he had additional identification. Furthermore, Billison did not inform defendant that he was not in trouble. A reasonable person would have concluded that Billison’s questions after defendant provided his Oregon identification card were intended to determine whether defendant was legally in the United States. Thus, under all the circumstances presented here, a reasonable person would have believed that he or she was the subject of an investigation and was not free to leave. The trial court therefore erred in denying defendant’s motion to suppress.
Reversed and remanded.