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State v. Backstrand

Supreme Court of Oregon, En Banc

November 21, 2013

STATE OF OREGON, Respondent on Review,
STEVEN NICHOLAS BACKSTRAND, Petitioner on Review. STATE OF OREGON Petitioner on Review,

Argued and submitted on June 8, 2011; resubmitted January 7, 2013.

On review from Court of Appeals CC C071116CR, CA A136163. [*]

Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review State of Oregon. On the brief were John R. Kroger Attorney General; Mary H. Williams, Solicitor General; and Jamie K. Contreras, Assistant Attorney General.

Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review Steven Nicholas Backstrand. With him on the brief was Peter Gartlan, Chief Defender.


In two recent cases, we have held that officers who had lawfully seized individuals for purposes of investigation also could, consistently with Article I, section 9, of the Oregon Constitution, request and verify the individuals' identifications. In particular, in State v. Fair, 353 Or 588, 609, 302 P.3d 417 (2013), we held that an officer may temporarily detain a person whom the officer reasonably suspects of being a material witness to or victim of a recent or ongoing crime. We further held that, under the circumstances of that case, the officer constitutionally could request the witness's identification and check for outstanding warrants against her, in an attempt to verify the witness's identity and to obtain information otherwise relevant to the officer's investigation. Id. at 614. After deciding Fair, we decided State v. Watson, 353 Or 768, 305 P.3d 94 (2013). In Watson, we held that an officer, in the course of a lawful stop for a traffic offense, may request the driver's identification and check the status of his or her driving privileges. Id. at 782.

This case presents yet a third variation on the issues that arise when police seek identification from persons with whom they deal in the course of their work: Does an officer's request for and verification of a person's identification, in and of itself, convert an encounter that is not a seizure for constitutional purposes into one that is? As we explain, we hold that the answer is no. Consequently, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.


Deputy Gerba was monitoring a "triple-X" store that sells adult sexual materials (toys, videos, clothing, etc). The store had been robbed several times in the recent past, and law enforcement had made frequent security checks on it as a result. On the particular night involved in this case, Gerba was "sitting on" the store, meaning that he was monitoring it from outside and across the street, as well as by occasionally going inside.

At about 1:00 a.m., Gerba was inside the store at the same time that defendant and his girlfriend were inside shopping. Gerba thought that defendant looked "pretty young" and believed he might be under the posted 18-year minimum age to be in the store. Gerba knew that, if they were minors, as he suspected, the store could "get in trouble" because of the "pretty explicit stuff" that was readily visible to anyone inside.[1]Gerba therefore approached the two and asked their ages. Defendant answered that he was 22. Gerba asked both defendant and his girlfriend if they had any identification, and they gave him their driver licenses. Gerba called dispatch to verify the validity of the licenses.[2] After having the licenses for a total of 10 to 15 seconds, Gerba returned them to defendant and his girlfriend and wished them a good day.[3] Gerba then left the store to continue to monitor it from outside, while defendant and his girlfriend continued to shop inside.

Gerba had not asked dispatch to check on anything other than the validity of the licenses, such as outstanding warrants. Even so, dispatch called Gerba back to advise him that defendant's license was suspended and defendant was on probation in another county. That call came about a minute after Gerba returned the licenses, as Gerba was leaving the store. Gerba continued across the street, where he maintained his security watch on the store. After about five minutes, defendant and his girlfriend walked out of the store, got in their car, and left, with defendant driving. Based on his belief that defendant was driving with a suspended license, Gerba pursued them, initiated a traffic stop, and arrested defendant. Defendant was later tried for driving while revoked (his license actually had been revoked, rather than suspended).

Before trial, defendant moved to suppress all evidence from his encounter with Gerba in the store (i.e., his identity and the status of his driving privileges), arguing that Gerba had unlawfully "stopped" defendant either when he requested defendant's identification or, in the alternative, when he called dispatch to verify defendant's identification. The state responded that the encounter between Gerba and defendant had not amounted to a seizure or, if it had, Gerba's actions were supported by his reasonable suspicion that defendant was not old enough to be inside the age-restricted store.

The trial court denied defendant's motion, concluding that Gerba had not seized defendant. The trial court reasoned that the time involved -- 10 to 15 seconds --was de minimis and Gerba had not investigated defendant for any possible wrongdoing on his part, but rather, had attempted to determine if he was a minor as a protective measure, in which case he should not have been in the adult-only store.[4] The trial court concluded that, in that situation, a reasonable person in defendant's position would not feel significantly restrained by the officer's request for, and verification of, defendant's identification. After a bench trial, the trial court found defendant guilty of driving while revoked.

On appeal, the Court of Appeals concluded that, from an objective standpoint, defendant had been seized. State v. Backstrand, 231 Or.App. 621, 632, 220 P.3d 748 (2009). The court was divided on its rationale, however, particularly as to the point at which the seizure had objectively occurred. The lead opinion concluded that, when Gerba called dispatch, a reasonable person in defendant's position would have believed that he was not free to leave while the call was being made. Id. at 626. The lead opinion remanded to the trial court to determine whether defendant also subjectively felt that he was not free to leave at that point. Id. at 632.[5] The lead opinion concluded that, if the trial court were to find that defendant subjectively felt restrained, then Gerba had unlawfully seized defendant.[6] Id. at 625-26. The lead opinion further concluded that if, on remand, the trial court determined that defendant subjectively felt restrained, the evidence of the status of defendant's driving privileges should be suppressed. Id. at 632.

A concurring opinion took a different view on the "timing of the operative 'stop.'" Id. at 633 (Haselton, P.J., concurring). According to the concurrence, Gerba seized defendant "when, in response to Gerba's inquiries, defendant produced, and Gerba took, defendant's driver's license." Id. Under that view, the concurrence agreed that suppression was required if defendant subjectively felt restrained once he handed his license to Gerba. Id. at 642. Finally, according to a dissenting opinion, the lead opinion was correct that Gerba had seized defendant when Gerba made the call to dispatch, but suppression was not required. Id. at 643 (Deits, S.J., dissenting).[7]

Both defendant and the state sought review, and we originally held the petitions pending our decision in State v. Ashbaugh, 349 Or 297, 244 P.3d 360 (2010). After issuing our decision in Ashbaugh, we allowed both the petitions. On review, the state renews its assertion that defendant was not seized at any point during his encounter with Gerba. In the state's view, Gerba's actions in requesting and verifying defendant's identification were not a sufficient restraint on defendant's liberty or freedom of movement to amount to the seizure of defendant. Defendant argues the converse, urging that he was seized either when Gerba requested and obtained his identification, or when Gerba called dispatch, because a reasonable person in defendant's position would have believed that he was not free to continue shopping until the officer's investigation was complete.


A. General Principles Governing Seizures

As we explained at the outset, the central question that this case presents is: Does an officer's request for and verification of a person's identification, in and of itself, convert an encounter that is not a seizure for constitutional purposes into one that is? The general principles that guide our answer to that question are well-settled and were discussed at some length in our two most recent "stop" cases, Fair, 353 Or at 593-95, 598-603, and Watson, 353 Or at 773-74, 778-80. For our analysis here, it is helpful to summarize those principles.

Article I, section 9, guarantees individuals the right to be "secure in their persons * * * against unreasonable search, or seizure." As this court has long recognized, encounters between law enforcement officers and citizens are of an "infinite variety." State v. Holmes, 311 Or 400, 406, 813 P.2d 28 (1991). Of that infinite variety, "only some implicate the prohibition in Article I, section 9, against unreasonable 'seizures.'" Ashbaugh, 349 Or at 308. As we have described in numerous cases:

"Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen's liberty with the degree of justification required for the intrusion. At one end of the continuum are mere encounters for which no justification is required. At the other end are arrests, which involve protracted custodial restraint and require probable cause. In between are temporary detentions for investigatory purposes, often termed 'stops, ' which generally require reasonable suspicion. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not."

Fair, 353 Or at 593-94 (citations and footnote omitted).

What distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter "is the imposition, either by physical force or through some 'show of authority, ' of some restraint on the individual's liberty." Ashbaugh, 349 Or at 309. The test 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. at 316.[8] Because of the diversity of potential police-citizen encounters, the inquiry necessarily is fact-specific and requires an examination of the totality of the circumstances involved. Holmes, 311 Or at 408. As we recently acknowledged in Fair, "in practice, the line between a 'mere encounter' and something that rises to the level of a 'seizure' does not lend itself to easy demarcation." 353 Or at 595. Rather, as this court recognized in Holmes, the standard is necessarily vague "when unadorned by judicial interpretation based upon specific fact situations" and does not provide "a ready answer for every conceivable" police-citizen encounter that can arise. 311 Or at 410. As a result, "In many cases it is clear that a person has been 'seized.' But there are many instances in which it is less obvious whether a police-citizen encounter is a 'seizure.'" Id. at 407.

Although close cases can -- and frequently do -- arise, beginning with Holmes, this court has remained steadfast in recognizing that the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens. In an oft-cited and oft-quoted passage, Holmes stressed that "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." 311 Or at 410; see also State v. Gerrish, 311 Or 506, 513, 815 P.2d 1244 (1991) (flagging down driver and directing him to stop not a significant interference with driver's liberty where those are only means available to get driver's attention long enough to request information). The fact that the citizen is discomforted by an officer's approach and request for assistance or information -- either because the officer is a known police officer, or because the encounter otherwise involves "inconvenience or annoyance" -- does not make the contact a seizure. Holmes, 311 Or at 410. Rather, a seizure exists only if the officer's conduct would be reasonably perceived as coercive in the sense that it would cause the citizen to reasonably believe that the officer is intentionally restraining the citizen's liberty or freedom of movement in a significant way -- that is, in a way that exceeds the bounds of ordinary social encounters between private citizens. Id. at 409-10.[9]

Thus, a "show of authority" as used in this context is shorthand for a more precise concept. The fact that a law enforcement officer conveys his or her official status as such -- as officers do by, for example, wearing uniforms, displaying their badges, driving in marked patrol cars, and verbally identifying themselves as police officers -- is not a "show of authority" that gives rise to a seizure in the constitutional sense. What is required is a reasonable perception that an officer is exercising his or her official authority to restrain. Explicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs. Necessarily, then, the fact that an individual -- for reasons personal to that individual -- feels obliged to cooperate with the officer simply because of the officer's status is not the form or source of coercion that is of constitutional concern. As Holmes held, 311 Or at 410, and as other authorities have observed of the parallel federal standard for what constitutes a seizure, police need not articulate any particular degree of suspicion to "to seek cooperation, even where this may involve inconvenience or embarrassment for the citizen, and even though many citizens will defer to this authority of the police because they believe -- in some vague way -- that they should." American Law Institute, A Model Code of Pre-Arraignment Procedure § 110.1, 258 (1975) (Model Code). Professor LaFave agrees, acknowledging that,

"if 'the moral and instinctive pressures to cooperate are in general sound and may be relied on by the police, ' then a street encounter does not amount to a * * * seizure merely because of those pressures -- that is, merely because the other party to the encounter is known to be a policeman."

Wayne R. LaFave, 4 Search and Seizure § 9.4(a), 581 (5th ed 2012) (quoting Model Code § 110.1 at 258 (footnote omitted)).[10] Rather, "the confrontation is a seizure only if the officer adds to those inherent pressures by engaging in conduct significantly beyond that accepted in social intercourse." Id. at 581-82 (emphasis added); see generally Holmes, 311 Or at 410 ("encounter is a 'seizure' of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse"). Again, what is required is a show of authority by which, through words or action, the officer's conduct reasonably conveys that the officer is exercising his or her authority to significantly restrain the citizen's liberty or freedom of movement.[11]

B. Police Requests For Information or Cooperation Generally

Consistently with Holmes's declaration that officers remain free to approach citizens, request or impart information, and seek assistance, this court has cautioned that "verbal inquiries [by officers] are not * * * seizures." State v. Rodgers/Kirkeby, 347 Or 610, 622, 227 P.3d 695 (2010). Rather, something more than just asking a question, requesting information, or seeking an individual's cooperation is required of an officer's conduct. The "something more" can be such things as the content or manner of questioning, or the accompanying physical acts by the officer, if those added factors would reasonably be construed as a "threatening or coercive" show of authority requiring compliance with the officer's request. Ashbaugh, 349 Or at 317; see also State v. Ehly, 317 Or 66, 76-77, 854 P.2d 421 (1993) (mere requests for cooperation not seizures unless officer, through demeanor, tone, language, or totality of circumstances, conveyed a restraint on liberty). Without the something more, however, "police inquiries in and of themselves require no justification and do not necessarily implicate Article I, section 9." Rodgers/Kirkeby, 347 Or at 624.

Several of our cases illustrate that principle in practice. One of the earliest is Ehly, which was decided about two years after Holmes first articulated the standard for distinguishing "mere encounters" from police conduct that results in a seizure for constitutional purposes. In Ehly, two officers confronted the defendant in a motel room after he refused to leave at check out and return the room key to the manager. The officers immediately told the manager to "stand back" and advised the defendant that he had to leave. When the defendant picked up two bags and started to leave, the officers asked him to return the key to the manager. The defendant replied that the key might be in one of the bags, but that the bags did not belong to him. One officer then asked him to find the key. The defendant tried, rummaging through one of the bags unsuccessfully, at which point the officer encouraged him to dump the bag's contents onto the bed because both of the defendant's hands were concealed within the bag as he searched for the key. When the defendant continued to search the bag, the officer, concerned that a weapon was in the bag, put her hand on her gun and ordered the defendant to "back up, " which he did; the officer then grabbed the bag herself and dumped the contents out. Ehly, 317 Or at 68-72, 79.

This court concluded in Ehly that the defendant was seized for purposes of Article I, section 9, at the point that the officer ordered the defendant to back up. Id. at 79. The officers' requests before that point, individually and in combination, to leave, to find the key, and to dump out the contents of the bag did not, however, result in seizing him. Rejecting the defendant's argument that the requests were "'poorly disguised commands, '" the court reasoned that -- in light of the trial court's factual findings --"nothing about the officers' demeanor, their tone of voice, the nature of their language, or the time, place, or manner of the encounter" supported a conclusion that a reasonable person would have believed that his liberty had been significantly restrained before the officer directed him to stand back from the bag that defendant was searching through. Id. at 76, 78.[12]

Ashbaugh involved a similar conclusion on much different facts. In Ashbaugh, two officers on bicycles approached the defendant and her husband while they were sitting in a public park in the middle of the day. The officers investigated their identities and checked to see if either of them was wanted on outstanding warrants. When the officers learned that the defendant's husband was subject to a restraining order that prevented him from having contact with the defendant, the officers arrested him for violating that order and took him to a requested patrol car. About five minutes later, the officers returned to the defendant, who had not left the park, to tell her that her husband wanted her to take his belongings with her. On impulse, one of the officers asked the defendant if she had anything illegal in her purse. When she said she did not, he asked if he could search her purse, and she agreed. Ashbaugh, 349 Or at 300-02. The state conceded at a pre-trial proceeding that the initial contact with the defendant and her husband was an unlawful stop. Id. at 302-03 n 2.

Given the state's concession, the seizure question before this court was limited to whether the officers had seized the defendant when they recontacted her, asked her about the contents of her purse, and asked if she would permit them to search her purse. Id. at 306, 308. In concluding that the defendant was not seized at that point, this court acknowledged that "it is possible to restrict a person's liberty and freedom of movement by purely verbal means." Id. at 317. But we reasoned that nothing in the content of the questions asked, or in the officers' manner or actions, involved a "show of authority" that the defendant could reasonably construe as a threat or an exercise of authority to coercively restrain. The court observed that, "while it may have been true that [the] defendant had been unlawfully detained by police some minutes before and had watched a clear show of authority directed at her husband, those circumstances had ended." Id. Consequently, this court concluded that the officer's questions to the defendant did not "intentionally and significantly" restrict or interfere with her liberty, and a reasonable person in the defendant's circumstances would not believe that they had. Id.

In other cases, the circumstances accompanying verbal questions or requests have led this court to conclude that the defendant was seized, not by an officer's questions per se, but given the context in which they were asked and the totality of the circumstances otherwise involved. Rodgers/Kirkeby, in particular, emphasized the importance of context. Rodgers/Kirkeby involved two cases consolidated for purposes of the court's opinion. Both involved lawful stops of vehicles for traffic offenses. In Rodgers, officers completed their investigation of the offense, but did not issue a citation. Then, although he lacked reasonable suspicion, one of the officers proceeded to question the defendant about possible drug activity and to ask for consent to search without advising the defendant that he was free to leave. 347 Or at 613-15, 626. In Kirkeby, after obtaining all information relevant to the reason for the stop, the officer asked for consent to conduct a patdown, after which he asked for consent to examine items in the defendant's pockets. Id. at 615-16.

This court determined that, in each instance, the questions and request for consent resulted in an unlawful seizure. Id. at 627-28. In explaining that conclusion, the court first acknowledged that, in general, "verbal inquiries are not searches and seizures, " even when made in the course of, and unrelated to, a traffic stop. Id. at 622. The problem in Rodgers/Kirkeby was that the unrelated inquiries at issue were not in the due course of the traffic stop, but came afterwards -- that is, they came at a point when the officers no longer had authority to detain the defendants. Id. at 623. As the court explained, "in contrast to a person on the street" or otherwise in public who has not been stopped for a traffic offense, a person detained for a traffic offense has a legal obligation to stop at the officer's direction and remain; the person may not unilaterally end the encounter and leave whenever he or she chooses. Id. at 622-23. From the standpoint of a reasonable person in the defendants' position, when the officers in both cases, after completing the investigation of the traffic offenses, asked unrelated questions and asked for consent to search, but did not tell the defendants that they were free to leave, those verbal inquiries communicated a continuation of the traffic stop, even though the officers no longer had authority to detain. Id. at 627-28. In that distinctive context, the verbal inquiries alone continued the seizures, and continuation of the seizures was unlawful.

Finally, State v. Jacobus, 318 Or 234, 864 P.2d 861 (1993), illustrates more generally how the manner of questioning and attendant circumstances may affect the analysis. There, an officer had been advised that the occupants of a particular Datsun car parked near a convenience store had been overheard by a customer saying that "there was only one clerk in the store." When the officer drove to the store, he saw the Datsun parked in an unlighted area nearby and drove past it. As he went past, the occupants frantically began to stuff objects under the seats. The officer made a U-turn, pulled in behind the Datsun, and turned on his patrol car's overhead lights. Two occupants got out of the car and walked toward the store. The officer approached the Datsun on foot. The defendant, who remained in the Datsun, continued to stuff something under coats and other items on the floorboard. When the officer asked the defendant to step out, he stayed in the Datsun. The officer repeated his request at least two more times before the defendant complied. Id. at 236. Characterizing the officer's repeated requests as "order[ing]" the defendant out of the car, the court held, without extended analysis, that the defendant's liberty was temporarily restrained because the defendant, at least at the moment of the order, was not free to "remain in the Datsun or even * * * to get out of the Datsun and walk away." Id. at 240-41.[13] Implicit in the court's seizure analysis was its conclusion that the surrounding circumstances (patrol car parked behind the Datsun with overhead lights activated), coupled with the persistence of the officer's "requests, " rendered those requests the functional equivalent of a command affirmatively communicating to the defendant that compliance was not optional.

C. Police Requests for Identification and Verification of Identification

Police requests for identification are a subset within the general category of police requests for information or cooperation. But asking for and verifying identification is not unique to police-citizen encounters. Rather, as other courts have observed, in this day and age, requests for valid government-issued identification are commonplace in ordinary dealings in society, both between private citizens as well as in a variety of citizen-government contexts (such as entering public buildings). See, e.g., Golphin v. State, 945 So.2d 1174, 1189-90 (Fla 2006), cert den, 552 U.S. 810 (2007) ("[T]he act of identifying oneself through presentation of valid, government-issued identification [is] a necessary part of a panoply of human endeavors, from cashing a check to boarding an airplane.").[14] Police officers, in their official dealings with citizens, likewise commonly seek to determine and verify with whom they are dealing for reasons that range from simply documenting the activities the officers engage in while on duty to ascertaining information that may assist in enforcement of the criminal laws. See, e.g., Fair, 353 Or at 614 (officer checked potential witness for outstanding warrants as means of verifying ...

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