Submitted on Remand: March 31, 2014.
Washington County Circuit Court C051006CR. On remand from the Oregon Supreme Court, State v. Zamora-Martinez, 354 Or. 837, 325 P.3d 738 (2014) . Jon B. Lund, Senior Judge.
Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the supplemental brief.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[264 Or.App. 52] ORTEGA, P. J.
This case is on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Zamora-Martinez, 244 Or.App. 213, 260 P.3d 603 (2011) ( Zamora-Martinez II ), and remanded for reconsideration in light of State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013); State v. Highley, 354 Or. 459, 313 P.3d 1068 (2013); and State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013). State v. Zamora-Martinez, 354 Or. 837, 325 P.3d 738 (2014). In Zamora-Martinez II, we concluded that the trial court erred in denying defendant's motion to suppress evidence because, under State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (2010), a reasonable person would have concluded, under the circumstances presented here, that he was the subject of an investigation and was not free to leave. Zamora-Martinez II, 244 Or.App. at 220. After our decision, the Supreme Court issued Backstrand, Highley, and Anderson, and we are now called upon to examine whether, under those cases, defendant's encounter with law enforcement amounted to an illegal stop under Article I, section 9, of the Oregon Constitution. Because we conclude that a reasonable person would have felt significantly restrained by the officer's request for additional identification, we reverse and remand.
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.
[264 Or.App. 53] " 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. Billison
looked 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 ...