This case is on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Zamora-Martinez,
We take the facts and pertinent procedural history from Zamora-Martinez II:
“[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 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. [At that point, in addition to Billison, there were approximately five officers outside the residence, a few officers going through another residence, and two or three officers at the corner of the property.] 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. Billisonlooked 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. * * * [D] efendant agreed to a stipulated facts trial and was convicted.”
As we explained previously, “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.” Id. at 216 (internal quotation marks omitted; emphasis in original). On appeal, we reversed the trial court, concluding that, under Ashbaugh, “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.” Id. at 219. Specifically, we determined that “[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.” Id. at 220. Subsequently, the Supreme Court issued its decisions in Backstrand, Highley, and Anderson, and vacated our decision and remanded for further consideration in light of those decisions.
In Backstrand, Highley, and Anderson, the Supreme Court addressed whether an officer’s request for identification was an unlawful seizure under Article I, section 9, and, in all three cases, the court held that the defendants had not been illegally seized based on the totality of the circumstances. In Backstrand, the court summarized the general principles governing when an encounter with an officer becomes a seizure for constitutional purposes.
The test to determine whether a seizure has occurred “is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.” Id. (citing Ashbaugh,
Thus, the question in this case is whether, based on the totality of the circumstances, a reasonable person would believe that Billison had “[e]xplicity or implicitly” conveyed to defendant that he was not “free to terminate the encounter or otherwise go about his *** ordinary affairs.” Id. at 401-02.
In Backstrand, the Supreme Court held that the defendant was not unlawfully seized when a police officer approached him inside an adult store because he thought the defendant was a minor, asked him how old he was, and asked to see his identification.
Unlike in Backstrand, here, based on the totality of the circumstances, the facts support an objectively reasonable belief that defendant’s liberty was restricted in a constitutionally significant manner by the officer’s second request for identification. After arresting every adult at the residence either on drug charges or for immigration violations, Billison — an ICE officer — called defendant’s sister and requested that someone come to the house to pick up the minors. Pursuant to Billison’s request, defendant arrived and informed Hillsboro police officers that he was there to take custody of the children. The officers then called to Billison— who was dressed in plain clothes but was wearing a badge identifying himself as a federal immigration officer — to talk with defendant. After determining that defendant was there to pick up his nieces, Billison asked for identification, and defendant presented an Oregon identification card. “[A]s far as the record reveals, [defendant’s identification card] was a satisfactory form of identification” and “established defendant’s identity.” State v. Zamora-Martinez,
Thus, under the totality of the circumstances presented here, we conclude that a reasonable person would have believed that the officer was exercising his authority to significantly restrain defendant’s liberty or freedom of movement. Therefore, we conclude that defendant was unlawfully seized by the officer’s second request to see identification and the trial court erred in denying defendant’s motion to suppress.
Reversed and remanded.
Notes
Before issuing Zamora-Martinez II, we had issued another opinion in this case that was vacated and remanded for reconsideration in light of State v. Ashbaugh,