Argued and submitted on June 8, 2011; resubmitted January 7, 2013
On review from the Court of Appeals. CC 05C51184, CA A135075 [*]
Anna Marie Joyce, Deputy Solicitor General, Salem, argued the cause for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Mary H . Williams, Solicitor General.
Ryan T. O'Connor, Senior Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Chief Defender.
Before Balmer, Chief Justice, and Kistler, Walters, Linder, and Baldwin, Justices. [**]
This is one of three cases that we decide today in which we examine the legal standard for what constitutes a seizure under Article I, section 9, of the Oregon Constitution. All three cases involve police contacts with individuals in which, at the outset of the contact, the officers asked the individuals for identification. In the first of the three cases, State v. Backstrand, ___Or ___, ___, ___P.3d ___(Nov 15, 2013) (slip op at 25-26) (decided this day), we held that an officer's request for and verification of a person's identification are not acts that, in and of themselves, convert an encounter that is not a seizure for constitutional purposes into one that is. We further concluded in Backstrand that nothing in the accompanying circumstances of that case -- i.e., the context of the officer's contact with the individual, the content of the officer's request for identification, or the manner in which he made the request -- resulted in a seizure of the defendant. Id. at ___(slip op at 29-31).
In this case, we examine a different set of circumstances that surround the officers' request for and verification of identification. As we will explain, we likewise conclude in this case that the officers did not seize defendant and his companion by asking them for identification. We further conclude, however, that the actions that the officers took after asking for that identification did result in seizing defendant and his companion. Defendant does not dispute, however, that by then the officers had reasonable suspicion for his seizure. Consequently, we reverse the decision of the Court of Appeals and affirm the trial court judgment.
The circumstances that gave rise to this case occurred when several police officers were executing a nighttime search warrant at an apartment. The officers were members of a "Community Response Unit" that is specially charged with investigating suspected drug activity in local neighborhoods in response to citizen complaints. They were looking for evidence that the person who resided at the apartment, Wilson, was involved in drug dealing.
While police were searching Wilson's apartment, a car pulled into the parking lot directly in front of it. By then, police had found evidence in the apartment of illegal drug activity. Two people got out of the car, walked up to the apartment, and "peeked" inside the open front door. When they saw the officers searching the living room, the two immediately turned around, walked "briskly" back to the car, and got back inside. Officer Zavala, who was immediately informed about their approach and quick retreat, left the apartment to contact them. Two other officers, Officer Johnson and Detective Bamford, followed Zavala. When the three officers reached the car, it was still parked, the engine was not running, the windows were partially rolled down, and the two were sitting inside. Zavala approached the driver, while Johnson and Bamford approached defendant, who was sitting in front on the passenger's side. Zavala was wearing his badge and was in uniform. Johnson was wearing a "raid vest, " which is an outer vest with the word "police" displayed in large yellow letters across the front.
Zavala explained to the driver that the officers were executing a search warrant at the apartment and that they were contacting them "to find out who [defendant and the driver] were, what interest they might have had with what [the police] were doing there, or maybe they knew the * * * individual that lived there." The driver immediately responded that she knew Wilson and that she and defendant were there to "meet with" him and his girlfriend.
Zavala asked the driver for identification. She denied having any but gave Zavala her name and date of birth. As Zavala talked to the driver, Johnson asked defendant for identification. Defendant, too, denied having any identification, but told Johnson that his name was Steve Tipton. Johnson, however, knew Steve Tipton, who was a member of the Tipton family that lived in the area. Johnson also recognized defendant from past "patrol contacts." Although Johnson could not "put [defendant's] name with his face, " Johnson was sure that defendant was not Steve Tipton. Believing that defendant was lying about his name, Johnson responded by telling defendant that Johnson knew the Tipton family, knew Steve Tipton, and "you're not him, I recognize you."
Johnson then asked defendant to step out of the car, which defendant did. Johnson did so both to better determine if defendant had any identification on him and for officer safety reasons. In Johnson's 15 years of experience as a police officer, when a person gives him a false name, that person is trying to hide his or her identity "for a reason, " such as to avoid arrest on an outstanding arrest warrant or otherwise to evade detection in connection with some kind of illegal activity. As Johnson explained: "If he's ...