Submitted November 27, 2012.
Multnomah County Circuit Court. 100444412. Michael J. McShane, Judge.
Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Duncan, Judge. Duncan, J., dissenting.
[263 Or.App. 30] ORTEGA, P. J.
Defendant appeals a judgment of conviction for two counts of failure to register as a sex offender, ORS 181.599, and assigns error to the trial court's denial of his motion to suppress. Specifically, defendant argues that the officer unlawfully seized him when, without reasonable suspicion, the officer obtained defendant's identification, asked him about his criminal status, and asked to conduct a records check. The state responds that, under the totality of the circumstances, the officer did not stop or otherwise seize defendant. We agree with the state and, accordingly, affirm.
We begin with the facts, which we state in accordance with the trial court's findings. State v. Ehly, 317 Ore. 66, 74-76, 854 P.2d 421 (1993). One morning, at about 5:00 a.m., a Portland police officer saw defendant slumped over the steering wheel of his parked car. The car's motor and lights were off. The officer, concerned that defendant was experiencing a medical issue or was intoxicated, parked across the street and turned on his white spotlight to illuminate the car without activating his emergency lights. The officer then approached the passenger side of defendant's car, tapped on the window several times with his flashlight, and woke defendant. The officer moved around to the driver's side of the car to ask defendant questions and could smell alcohol. In response to questions from the officer, defendant stated that he had been drinking at his friend's house and had decided to sleep in his car because he did not want to drive while intoxicated. The officer was concerned that defendant might commit or had already committed the crime of driving under the influence of intoxicants (DUII); he also believed that he might need to send defendant to a detoxification center. The officer then asked, in a casual tone, for defendant's identification. Defendant handed the officer his driver's license. Then, while holding the driver's license, the officer asked defendant whether he had any warrants or was on probation and whether the officer could check defendant's record. Defendant responded, " Go ahead, check [263 Or.App. 31] my record. I'm not worried about it." While the officer was running the records check, a second police officer arrived, parking behind defendant's car. Upon running the check, the officer discovered that defendant was a sex offender and had failed to register as required by statute. When the officer confronted defendant with that information, defendant made incriminating statements. The officer then arrested defendant for failure to register as a sex offender.
Defendant filed a pretrial motion to suppress all evidence, asserting that he had been unlawfully seized when the officer asked for his identification and about his criminal status, and asked to run a records check. Accordingly, he argued that his consent to the records check was the product of that unlawful seizure. The state responded by contending that the stop was lawful because the officer had reasonable suspicion that defendant had committed, or was going to commit, the crime of DUII. The state argued further that, even if the officer did not have reasonable suspicion, the stop was lawful because defendant consented to providing the officer with his license and to the records check.
Although the court rejected the state's argument that the officer had reasonable suspicion that the crime of DUII had been or was going to be committed, it agreed that the officer's request for identification was " mere conversation" and denied defendant's motion. Following a bench trial, defendant was convicted of failure to register as a sex offender, ORS 181.599.
On appeal, defendant assigns error to the trial court's denial of his suppression motion, arguing that he was unlawfully seized by the officer before he consented to the records check because the officer lacked reasonable suspicion that defendant was involved in any criminal activity. Based on the officer's testimony at the suppression hearing regarding his subjective intent, defendant also asserts that he was seized under State v. Ashbaugh, 349 Ore. 297, 316, 244 P.3d 360 (2010) (stating
that a seizure occurs " 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" ). The state responds that the interaction between the officer [263 Or.App. 32] and defendant was " mere conversation" and did not amount to an unlawful seizure.
Article I, section 9, of the Oregon Constitution protects individuals from unreasonable searches and seizures. " There are three kinds of encounters between police and citizens: arrests, stops and mere conversation." State v. Calhoun, 101 Or.App. 622, 624, 792 P.2d 1223 (1990). " Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not." State v. Fair, 353 Ore. 588, 593-94, 302 P.3d 417 (2013). In State v. Backstrand, 354 Ore. 392, 399, 313 P.3d 1084 (2013), the Oregon Supreme Court recently explained the distinction this way:
" 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. 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. 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."
(Citations and footnotes omitted.) For a " show of authority" to give rise to a seizure, the circumstances must be such that a reasonable person would believe " that an officer is exercising his or her official authority to restrain." Id. at 401. " 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." Id. at 401-02 (an officer's request for identification from the defendant, whom he thought was underage in an adult store, was not sufficient to seize the defendant); see also State v. Anderson, 354 Ore. 440, 453, 313 P.3d 1113 (2013) (an officer's questions and request for identification from the defendant, after seeing him walk up to an apartment, which was being searched for illegal drug activity, and quickly return to his car, was not a seizure even though the officer's questions " objectively conveyed possible suspicion that the driver and [the] defendant [263 Or.App. 33] could be involved in criminal activity related to the apartment" ). An officer's subjective intentions do not determine whether a stop occurred. See State v. Ainsworth, 310 Ore. 613, 621, 801 P.2d 749 (1990) (" Article I, section 9, prohibits certain governmental action, not certain governmental states of mind." ).
" Verbal police inquires are not, by themselves, seizures." State v. Highley, 354 Ore. 459, 468, 313 P.3d 1068 (2013). Specifically, " [a] mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure." Backstrand, 354 Ore. at 410. " Nor is an officer's act of checking the validity of that identification, in and of itself, a seizure." Id. at 417. A person who decides to cooperate with an officer's request for identification can reasonably expect that the officer will do something with that identification, such as verify the person's identity or status. Id. at 413. In other words, " [t]he fact that the officer conducts that examination [of the identification] is not, in and of itself, a basis to conclude that the otherwise noncoercive encounter has become a coercive restraint on the person's liberty." Id. at 413 (emphasis in original). In addition, an officer has not seized someone merely by retaining his or her identification for a reasonable period to examine it; " rather, at a minimum, some exercise of coercive authority by the officer, such as retention of the identification after examination and a continuation of investigatory activities, is required." Id. at 416 (explaining that State v. Painter, 296 Ore. 422, 676 P.2d 309 (1984), " does not stand for the proposition that an officer seizes a person by simply accepting and looking
at a person's identification after a noncoercive request" ). Instead,
" [f]or a request and verification of identification to amount to a seizure, something more is required * * *. Either through the context, the content or manner of questioning, or the other circumstances of the encounter, the officer must convey to a reasonable person that the officer is exercising his or her authority ...