Submitted on remand: August 13, 2014.
Multnomah County Circuit Court. 0606-47424. On remand from the Oregon Supreme Court, State v. Parker, 355 Or. 751, 331 P.3d 1010 (2014) . Henry Kantor, Judge.
Peter Gartlan, Chief Defender, and Emily Schoonmaker, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the opening brief for appellant. Peter Gartlan, Chief Defender, and Joshua B. Crowther, Chief Deputy Defender, filed the supplemental brief.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the answering brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the supplemental brief.
Before Armstrong, Presiding Judge, and Haselton, Chief Judge, and Nakamoto, Judge.
[266 Or.App. 232] HASELTON, C. J.
This case is on remand from the Oregon Supreme Court for a second time. For the reasons explained below, we now conclude that, because defendant was not seized for purposes of Article I, section 9, of the Oregon Constitution, the trial court did not err in denying defendant's motion to suppress. Accordingly, we affirm.
In our original opinion, we vacated the trial court's denial of defendant's motion to suppress evidence found during the search of defendant's person and remanded the case to the trial court for reconsideration in light of our decision in State v. Ashbaugh, 225 Or.App. 16, 200 P.3d 149 (2008) ( Ashbaugh I), rev'd, 349 Or. 297, 244 P.3d 360 (2010) ( Ashbaugh II ), in which we had held that a subjective test applied to determine whether a defendant had been stopped. State v. Parker, 225 Or.App. 610, 202 P.3d 205 (Parker I) , adh'd to as modified on recons, 227 Or.App. 413, 206 P.3d 259 (2009) ( Parker II ). After the Supreme Court reversed our decision in Ashbaugh I, it vacated our decision in Parker and remanded for reconsideration in light of its decision in Ashbaugh II. State v. Parker, 349 Or. 663, 249 P.3d 1281 (2011) (Parker III).
On remand, noting that the facts of this case were " materially indistinguishable" from those in our decision in State v. Highley, 219 Or.App. 100, 180 P.3d 1230 (2008) ( Highley I ), rev'd, 354 Or. 459, 313 P.3d 1068 (2013) ( Highley II ), we concluded that defendant had been unlawfully seized because a reasonable person in his position would have concluded that he was the subject of an investigation and not free to leave when the officer asked defendant whether he had any warrants, obtained defendant's identifying information, and then returned to his vehicle to run a check to determine whether defendant was the subject of any warrants. State v. Parker, 242 Or.App. 387, 255 P.3d 624 (2011) ( ParkerIV ). Following its reversal of our decision in Highley I, the Supreme Court vacated our decision in Parker IV and, once again, remanded this case for [266 Or.App. 233] reconsideration in light of its decisions in Highley II, State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013), and State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013). State v. Parker, 355 Or. 751, 331 P.3d 1010 (2014) ( Parker V ).
With four amplifications noted below, we take the material facts and a description of the procedural history of this case from Parker I, reiterating as we did there that " [t]he trial court expressly found both the police officers' and the defendant's accounts of the facts to be 'accurate, and a fair recitation of what occurred.'" 225 Or.App. at 612.
" Consistently with that finding, the salient facts here are as follows: On May 23, 2006, defendant was a passenger in a pickup truck stopped by Portland Police Officers Cioeta and Boman for expired license plate tags. Boman asked the driver and the other passenger for their identification and obtained their information. Cioeta asked defendant if he had any outstanding warrants; defendant replied that he did not. Cioeta then asked for defendant's identification, wrote down defendant's information, returned the identification, and then immediately returned to the police vehicle.
" The officers ran all the occupants' information and checked them for warrants. In the meantime, at least one additional police vehicle arrived on the scene. Boman then asked the driver and another passenger to get out of the truck. The driver was cited for driving while suspended. Boman conducted a patdown search of the other passenger, informed him he was under arrest for an outstanding warrant, and placed him in custody. [Cioeta decided to tow the truck and inventory its contents because the driver's license was suspended.] Cioeta then approached defendant and asked him to get out of the truck. Cioeta asked defendant if he had any weapons; defendant denied that he d id. Cioeta then asked for permission to search defendant, and defendant consented. Cioeta conducted a patdown search of defendant and retrieved a switchblade ...