Argued and submitted on June 8, 2011; resubmitted January 7, 2013
On review from the Court of Appeals. CC CR050560, CA A130716 [*]
Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General.
Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With her on the brief was Peter Gartlan, Chief Defender
This is the third of three cases that we decide today in which we examine whether a police request and verification of identification is a seizure under Article I, section 9, of the Oregon Constitution. As we will explain, our analysis of this case is largely controlled by our decision today in State v. Backstrand, ___Or ___, ___, ___P.3d ___(Nov 15, 2013) (slip op at 25-26), in which we hold that an officer's mere request for and verification of identification is not a seizure. Contrary to the Court of Appeals' resolution of this case, State v. Highley, 219 Or.App. 100, 110, 180 P.3d 1230 (2008), we conclude that the officer did not seize defendant by asking for his identification and checking defendant's probationary status based on that identification or by asking defendant for consent to search. We, therefore, reverse the decision of the Court of Appeals and affirm the judgment of the trial court.
Officer Desmond is a member of the Yamhill County Interagency Narcotics Team. For about for about two and a half years before this case arose, he had been a member of that team and involved in drug investigations in and around the McMinnville area. On this particular occasion, Desmond was on patrol at 8:30 in the morning when he saw Williamson, someone he knew from past drug arrests and investigations, drive a car into a parking lot between two apartment complexes in McMinnville. Desmond knew that Williamson's license was suspended, so he followed the car into the parking lot. Williamson parked in an angled parking space near one of the apartment complexes; Desmond parked in the middle of the parking lot some distance away (and so that his patrol car was not blocking Williamson's car from leaving) without activating his overhead lights. Desmond saw Williamson and two passengers -- defendant and Sears --get out of the car. Desmond got out of his car and "said something to get [Williamson's] attention, " knowing that Williamson would recognize Desmond if Desmond said something to him. In addition to knowing Williamson, Desmond also recognized defendant from past contacts and arrests involving drug activities, and he knew defendant by name. At that point, Desmond did not say anything to defendant or the other passenger because Desmond's only purpose in pulling into the parking lot was to talk to Williamson. As Desmond and Williamson began talking, defendant and Sears walked away and went to the door of one of the apartments.
Less than a minute later, defendant and Sears returned to Williamson's car, apparently because no one answered the door at the apartment. When they returned, the two were, in Desmond's words, "just milling around" the car. Desmond, meanwhile, was still dealing with Williamson, who Desmond thought was on probation. Desmond had called dispatch to verify Williamson's license status. Desmond also called the probation department to check whether Williamson's probation officer had any "interest" in the fact that Williamson was in the area of apartments known to have drug activity and was in the company of people known to be involved with drugs and who had gone to an apartment with a history of drug activity, all of which likely violated the conditions of Williamson's probation.
While Desmond waited for a response from the probation officer, and while defendant and Sears were "kind of just hanging out at the car, " Desmond spoke briefly with defendant and asked him if he was "still on probation." Defendant told Desmond that he was not. Desmond then asked both defendant and Sears whether they had their identification on them and whether Desmond could look at that identification. Both defendant and Sears handed Desmond their licenses. Defendant took them, wrote down the license numbers, and handed the licenses back. Desmond estimated that he had the licenses for "at the most" between 30 seconds and a minute before returning them to defendant and Sears.
In defendant's case, Desmond wanted to confirm that defendant was not on probation and could have done that with defendant's name alone, which Desmond already knew. But Desmond nevertheless asked for the identification because dispatch can check the information more quickly with information from the license. As soon as Desmond handed the licenses back to defendant and Sears, he walked over to his patrol vehicle, leaving defendant and Sears by Williamson's car. Desmond called dispatch and confirmed that, as defendant had told him, defendant was no longer on probation. While Desmond was in his patrol car, defendant, Williamson, and Sears "were just standing around the vehicle, as they were before, kind of just walking around[.]"
After making the call to dispatch, Desmond returned to where the three were standing. Desmond asked Sears if he would consent to be searched. Sears agreed. Desmond was interested in only a "non-intrusive" search and asked Sears if he would empty his pockets, which "he did willingly." During that search, a second officer, Officer Fessler arrived. Fessler was there only as a "cover officer" and simply stood by, observing, without otherwise assisting Desmond. The only item of interest that Sears took from his pockets was a black film canister. Desmond asked Sears if he could look inside it, and Sears, in response, opened the canister for Desmond. It appeared to have just water in it. Sears told Desmond that he had found the canister on the ground "on the way to the apartment complex." Desmond knew that intravenous drug users often carry water with them, but there was nothing illegal about the canister and what it contained, and Desmond was not concerned with it. While Desmond examined what Sears had in his pockets, Desmond did not pay close attention to defendant or to what he was doing.
When Desmond was done examining the film canister and searching Sears's pockets, Desmond returned briefly to his patrol car. He then walked back to Williamson's car. Defendant, by then, had moved to the trunk area of the car and was either looking in the open trunk or getting something out of it. Desmond thought that defendant was getting something from the trunk because he realized -- and Desmond himself may have told defendant -- that the car was going to be towed. Willamson and Sears, meanwhile, remained on the passenger's side towards the front of the car, where they were -- to use Fessler's term -- "chitchatting" with Fessler.
Desmond approached defendant and told defendant that he was right about his probation status. Desmond then asked defendant for consent to search him. Defendant responded by telling Desmond that he would empty his pockets for him. Defendant first showed Desmond what was in his right pocket; nothing in it was of interest to Desmond. Defendant then removed a small, oval-shaped, plastic container from his left pocket. Desmond asked defendant what was in it, and defendant said "some diamonds." Desmond asked if defendant would open it. Rather than simply show Desmond the contents, defendant responded by opening the container "just slightly" and cupping it in his hand, so that some but not all of what was inside could fall out. What fell out was mostly some "odd jewelry-type items" and what could have been diamonds (Desmond could not tell if they were real). Defendant appeared to be concealing something else in the container by not letting it fall out. Defendant then put the container back in his left pocket.
Desmond asked defendant if he would let Desmond look in the container and in his left pocket, where defendant had put the container. Defendant agreed, and reached into the pocket. He did not take the container out immediately, but instead moved his hand around in the pocket. When Desmond asked him what he was doing, defendant said that he wanted to make sure there was no more jewelry in the container. When Desmond asked again if he could see the container, defendant pulled it out of his pocket. While keeping Desmond to his left, defendant turned away from Desmond and seemed to transfer something from his left hand to his right while keeping the container in his left hand. Defendant then opened and showed the container to Desmond, proving that it was empty.
Fessler during that time was standing on defendant's right side, about five or six feet away, near the rear quarter panel of the car. Although he had been conversing with Sears and Williamson and only occasionally glancing at Desmond and defendant, Fessler fixed his attention on defendant when he noticed some of the odd movements that defendant was making. Fessler in particular saw defendant "blade" the right side of his body away from Desmond, blocking Desmond's view of defendant's right side. Fessler then saw defendant put his right hand in his right pocket and pull it out in a fist. As defendant did that, Fessler noticed "a little small clear plastic [b]aggie * * * sticking out the bottom" of defendant's fist. Fessler suspected that the baggie contained illegal drugs and asked defendant what was in his hand. Defendant started to move away from Fessler, who responded by grabbing defendant's right wrist. After a struggle, defendant finally opened his hand, which led to the officers' discovery of two plastic baggies containing methamphetamine.
As stated, defendant moved to suppress all the evidence discovered as a result of the search, arguing that he had been unlawfully seized and that his consent to search was a product of the unlawful seizure. The state responded that Desmond's conduct in asking defendant for identification and running a check on his probationary status after giving the license back to defendant was not a stop and, thus, not a seizure. If, however, it was a stop, the state contended that Desmond had reasonably suspected that defendant, under the circumstances, might be in possession of drugs. The state also argued that, in any event, the stop ended when Desmond returned the license, completed the check on defendant's probation, and then "broke contact" with defendant to search Sears pursuant to Sears's consent. At the point that Desmond returned his attention to defendant, the state urged, defendant gave voluntary consent to search, and the officers acquired cause to detain defendant once Fessler saw what reasonably appeared to be packaging for drugs concealed in defendant's hand.
In response, defense counsel did not dispute that defendant's consent to search was voluntary or that the officers acquired sufficient cause to seize defendant when Fessler saw the plastic baggie concealed in defendant's hand. Defendant argued only that, before defendant gave his consent to search, Desmond had unlawfully detained him by asking him for his identification and taking possession of that license, however briefly, and by asking for consent to search. Defense counsel urged that "there never should have been any inquiry of [defendant]. And this matter should have been over when the contact with the driver was over."
The trial court denied the motion to suppress on two theories. First, the trial court concluded that defendant was seized when Desmond obtained his driver's license and wrote down the license information, but that that seizure was justified by reasonable suspicion that defendant was involved in criminal activity related to suspected drug use at the apartment that defendant had approached. The trial court also concluded that, in any event, the seizure ended when Desmond returned defendant's license and walked back to his patrol car. Thus, according to the trial court, the search of defendant's pockets was lawfully based on defendant's consent. Although defendant had not argued to the contrary, the trial court further concluded that, when Fessler saw "what looked like a plastic [b]aggie sticking out of [defendant's] hand or fist[, ]" under the circumstances, "it was reasonable to believe that that [b]aggie may contain a controlled substance." That reasonable belief, in turn, provided Fessler with justification for grabbing defendant's wrist and "obtaining [the baggie] from his hand."
On appeal, defendant challenged the denial of his motion, arguing that he was seized unlawfully when Desmond requested, retained, and then ran his license number to check on his probationary status. Defendant also argued that the request for consent to search had amounted to a seizure. Defendant urged that the evidence discovered in the search was the result of "exploitation of the illegal detention" and that his consent to search was not "independent of the illegal detention." The state responded that the records check did not amount to a seizure because there was no evidence that defendant knew that he was the subject of a records request and no other evidence that would have caused a reasonable person to believe that he or she was restrained from leaving. The state argued in the alternative that, even if there had been a seizure, Desmond did not exploit that seizure to gain defendant's consent to search. The state conceded that Desmond had no reasonable suspicion to seize defendant before Fessler observed the plastic baggie in defendant's hand.
The Court of Appeals agreed with defendant that "the request for defendant's identification, closely followed by the check of defendant's probationary status, and the request for consent to search defendant, constituted a stop." Highley, 219 Or.App. at 110. The court based its decision on cases in which "Oregon appellate courts have concluded that an officer's action in requesting a defendant's identification and running a records check was a stop for purposes of Article I, section 9." Id. at 106 (citing cases). The court concluded that "a reasonable person in defendant's position would believe that the officer wrote down the identifying information and then immediately returned to his car with that information in order to run some type of records check." Id. at 108. According to the Court of Appeals, that constituted a seizure because a reasonable person in the circumstances would believe "that he or she is under investigation and is not free to leave." Id. at 109. The court ultimately concluded that the challenged evidence was obtained as a result of the unlawful seizure and defendant was therefore entitled to suppression. Id. at 111-13. On review, the parties largely renew those arguments, focusing on whether defendant was seized at any point in his encounter with Desmond before the drugs were discovered.
As we earlier noted, this case is the third of three decided today in which we examine whether a police request for and verification of identification is a seizure under Article I, section 9. In Backstrand, the first of the three cases, we discuss at length the principles that inform that analysis. ___Or at ___(slip op at 7-26). In Anderson, the second of the three cases, we summarize those principles from Backstrand. ___Or at ___(slip op at 11-14). Our discussion of the legal principles in this case, therefore, is accordingly abbreviated.
As Backstrand reaffirms, not every police-citizen encounter rises to the level of a seizure for constitutional purposes. ___Or at ___(slip op at 9). Rather, "law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful." State v. Holmes, 311 Or 400, 410, 813 P.2d 28 (1991). An officer seizes a person only if the officer's words, manner, or actions would convey to a reasonable person that the officer is exercising his or her authority to restrict the person's liberty or freedom of movement in a significant way -- that is, in a way that exceeds ordinary social boundaries. Id. at 409-10. Verbal police inquiries are not, by themselves, seizures. Backstrand, ___Or at ___(slip op at 13) (citing propositions from State v. Rodgers/Kirkeby, 347 Or 610, 622, 624, 227 P.3d 695 (2010)). And in particular, a request for identification does not, without more, convert an encounter between an officer and ...