Submitted on Remand April 16, 2014
Washington County Circuit Court. C100064CR. On remand from the Oregon Supreme Court, State v. Thompson, 354 Or. 837, 325 P.3d 738 (2014) . Suzanne Upton, Judge.
Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the supplemental brief.
Before Wollheim, Presiding Judge, and Nakamoto, Judge, and Schuman, Senior Judge.
[264 Or.App. 756] SCHUMAN, S. J.
This case is before us for the second time. In our first opinion, State v. Thompson, 254 Or.App. 282, 293 P.3d 1082 (2012), we held that the interaction between defendant and police officers was a seizure of her person and that it was not justified by reasonable suspicion, a warrant, or anything else. Consequently, we held that the trial court erred in denying her motion to suppress evidence that derived from that unlawful seizure. We reversed and remanded. The Supreme Court accepted the state's petition for review and held the case in abeyance pending that court's resolution of several cases involving the question of when a police officer's request for, and retention of, a citizen's identification amounted to a constitutionally significant seizure. After the court decided those cases-- 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)--the court vacated our decision and remanded it to us for reconsideration. State v. Thompson, 354 Or. 837, 325 P.3d 738
(2014). On reconsideration, we adhere to our earlier decision, albeit for somewhat different reasons. We therefore reverse and remand.
The facts, as we related them in our first opinion, are as follows:
" After what defendant described as a stressful day, she was visiting a friend, L. While she was sitting on a couch in L's apartment, three members of the Washington County Sheriff's Department, in plain clothes but displaying badges, arrived. They suspected that L was involved in theft and drugs, and they wanted to conduct a so-called 'knock and talk,' that is, a consensual interview at the suspect's residence. While two of the officers interviewed L inside her apartment, a third, Monk, asked defendant to step outside. Believing that she had no right to refuse--'He's an officer, he had a badge and he was asking me to do something. So I just figured that I should do it'--defendant complied. Monk assumed a position in the apartment doorway facing outward so as not to block defendant if she wanted to walk away. He asked defendant for identification, which she provided. He wrote down her name and date of birth, and then may or may not have returned [264 Or.App. 757] the identification to defendant; he testified at the hearing that he could not remember, and the only other witness--defendant--was not questioned about that fact.
" Monk then told defendant that he and the other officers were at the apartment on a drug-related investigation, and he asked defendant what she was doing there. She replied that she was visiting. Monk then asked her if she used drugs, and, when defendant said that she did not, he asked if she had any drugs or weapons in her purse. She said that she did not. Monk then asked if he could search her purse. He did not tell her that she had a right to refuse the request. Without orally responding, defendant opened the purse and showed Monk its contents. He then asked if he could look in it himself, and she replied that he could. When he did, he saw a small pink coin purse that he suspected contained drugs. He opened it, and saw what he believed to be methamphetamine. When he asked defendant where she had obtained it, she said she 'got it from some guy in a bar,' but, when pressed, she said that she had obtained it from L. Monk subsequently asked one of his partners to contact 'dispatch' and 'run' defendant's information. The record does not disclose what, if anything, he learned. At no time during the encounter did defendant ask to leave or attempt to leave, nor did Monk inform her that she could do so, although he testified that, had she made that request, he would not have objected and, had she walked away, he would not have pursued her. He also testified that, when he asked for consent to search her purse, he did not suspect her of criminal activity. The court expressly found Monk's testimony to be credible."
254 Or.App. at 284-85 (footnote omitted).
To those facts, we applied what we understood at the time to be the principles that determined when an encounter between a law enforcement officer and a person was sufficiently intrusive so as to implicate the person's right to be free from unreasonable seizures--in other words, when the encounter ceased being mere conversation, and became instead a " stop" or an " arrest." See State v. Holmes, 311 Or. 400, 410-11, 813 P.2d 28 (1991), abrogated on other grounds by State v. Ashbaugh, 349 Or. 297, 309, 244 P.3d 360 (2010) (distinguishing between " mere conversation," which does not implicate Article I, section 9, concerns, from [264 Or.App. 758] stops and arrests, ...