State v. Ashbaugh

244 P.3d 360, 349 Or. 297, 2010 Ore. LEXIS 899

• Court: Oregon Supreme Court
• Decided: December 9, 2010
• Docket: CC C052367CR; CA A131117; SC S057189, S057188
• Status: Published

Opinions

GILLETTE, J.

This case concerns a criminal defendant’s motion to suppress evidence obtained in a consent search of her purse. Defendant argued to the trial court that suppression was required because her consent to the search was a product of prior conduct on the part of the police that violated her rights under Article I, section 9, of the Oregon Constitution— specifically, an unreasonable and, therefore, unlawful, seizure of her person. The trial court rejected that argument but, on defendant’s appeal, the Court of Appeals remanded for further factfinding, holding that the consent search was causally related to an encounter between defendant and the police and that, “depending on facts that neither party [had] developed at trial,” the encounter may have been an unlawful seizure. State v. Ashbaugh, 225 Or App 16, 18, 200 P3d 149 (2008). We allowed both parties’ petitions for review and now conclude that the trial court properly determined that defendant’s consent to the search did not derive from an unlawful seizure and therefore did not violate Article I, section 9. Accordingly, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The incident at the heart of this case occurred on a summer afternoon in a public park in Beaverton. Two police officers, Barroncliffe and Schaer, were patrolling in the vicinity of the park. They were armed and in uniform, and each was riding a department-issued mountain bicycle. As the two officers rode through the park, they observed defendant and her husband sitting on the ground under a tree. The officers had no reason to suspect defendant and her husband of criminal activity, but they thought it was “unusual” that a middle-aged couple like them would be sitting in that particular park at that time, because the park generally was frequented by children and elderly persons in the middle of the afternoon.

Barroncliffe and Schaer approached the couple and said to them: “Hey, you’re not in any trouble, [but] do you have some I.D. we can see?” Both defendant and her husband handed over identification cards, which the officers proceeded to “run”¹ through the police dispatcher. According to both officers, their encounter with defendant and her husband was “relaxed.”

After a two-minute wait (during which time the officers, defendant, and defendant’s husband engaged in “casual conversation”), the officers learned that defendant’s husband was the subject of a restraining order that prohibited him from having contact with defendant. Barronclifie and Schaer reported what they had learned to defendant and her husband and told them that they were placing defendant’s husband under arrest for violating the restraining order. The officers returned defendant’s identification to her and then turned to the task of taking defendant’s husband into custody.

The officers began that process by handcuffing defendant’s husband and requesting by radio a car to transport the husband to jail. While waiting for the car to arrive, they talked with defendant and her husband about the restraining order. In the course of that conversation, defendant told the officers that she knew about the restraining order, that she and her husband were “trying to work it out,” and that they were living together. When the car arrived, Barronclifie and Schaer walked defendant’s husband down a pathway and through a break in a chainlink fence that separated the park from the street (a distance of 35 to 50 feet), patted him down for weapons, and then placed him inside the car. Defendant remained under the tree during the approximately five minutes that it took to complete that process.

Barronclifie and Schaer then returned to the area where defendant was waiting. Schaer told defendant that her husband had asked if she would take his belongings with her. Then (according to Schaer), “something inside of [Schaer] made [him] want to ask if [he] could look in [defendant’s] purse.” Whatever the source, Schaer surrendered to his impulse and asked defendant “if she had anything illegal in her purse.” She replied that she did not. Schaer then asked defendant if he could search her purse and defendant replied, “Yeah, sure.” Schaer opened the purse and found a smudged mirror, several clear plastic baggies that each contained a small amount of clear crystalline substance, and some short straws. When asked about what he had found, defendant told Schaer that the substance was methamphetamine; she also made other incriminating statements. Schaer then cited defendant for possession of a controlled substance.

Before her trial on the possession charge, defendant moved to suppress all evidence obtained in connection with the search of her purse. She acknowledged that she had consented to that search, but argued that her consent was the direct product of a prior unlawful “stop,” which occurred either when the officers asked her for identification or when the officers approached her a second time, asked her about the contents of her purse, and asked whether she would permit them to search it. Defendant asserted that, in either event, the evidence was obtained through illegal police conduct and must be suppressed.

The trial court rejected both arguments and denied the motion to suppress. After hearing the testimony of the two police officers and the arguments of the parties, the court opined that the issue resolved into two questions: First, could the state show that defendant’s consent was independent of, or only tenuously related to, the initial encounter between defendant and the police, which the state had conceded was an unlawful stop?² Second, if defendant’s consent to the search was independent of that initial stop, was defendant unlawfully seized again when Schaer asked for consent to search her purse? With respect to the first question, the trial court concluded that the unlawful stop did not significantly affect defendant’s decision to consent to the search. Concerning the second question, the court held that the request for consent to search was not a seizure at all but, instead, was “properly viewed as mere conversation.” The trial court denied defendant’s motion to suppress and, after a trial on stipulated facts, defendant was convicted.

On defendant’s appeal, a divided Court of Appeals rejected the trial court’s analysis and remanded for determination of certain facts that, in its view, were necessary to resolve the case under the proper analysis. The majority agreed with the trial court that the original, concededly unlawful stop did not require suppression of the evidence at issue,³ but it was less sure about defendant’s alternative argument that a separate unlawful stop occurred when Officer Schaer, “prompted only by ‘something inside of [him],’ ” asked defendant if she had anything illegal in her purse and, then, whether she would allow him to search it. Ashbaugh, 225 Or App at 22. Noting that the essential question was whether the latter incident constituted a “stop,” the majority sought to answer that question through application of this court’s oft-quoted statement from State v. Holmes, 311 Or 400, 813 P2d 28 (1991), that a person is “seized” for purposes of Article I, section 9, of the Oregon Constitution:

“ ‘(a) 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; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable under the circumstances.’ ”

Ashbaugh, 225 Or App at 22 (quoting Holmes, 311 Or at 409-10). After observing that the individual’s subjective belief appeared to be a necessary element of a seizure under part (b)⁴ of the quoted test, and that the trial court had not resolved that issue, the majority remanded the case to the trial court to determine what defendant subjectively had believed at the relevant time. The majority instructed the trial court that, if it found that defendant in fact did believe that her freedom of movement had been restricted when Schaer asked her for consent to search her purse, then it must find that she was seized for constitutional purposes. That was so, in its view, because a reasonable person in defendant’s position could have held that belief, fulfilling the objective reasonableness requirement of Holmes part (b). Id. at 25 (citing State v. Toevs, 327 Or 525, 535-36, 964 P2d 1007 (1998)).

A concurring opinion raised a concern about the latter point, questioning whether, to establish “objective reasonableness” for purposes of showing that a person has been seized under part (b) of the Holmes formulation, this court intended to require that a reasonable person would have believed their liberty had been intentionally and significantly restricted, or only that such a person could have held that belief. In the end, the concurrence decided to “take [this court] at its word in Toevs that it is enough to [show] that a reasonable person in defendant’s position could * * * believe that the officers significantly had restricted her liberty.” 225 Or App at 32 (Brewer, C. J., concurring) (emphasis in original).* **⁵

Two judges dissented. The dissent maintained that the majority had erred in remanding for a determination of defendant’s subjective state of mind when there was no evidence in the existing record pertaining to that subject and no lawful way of obtaining evidence of that sort, because the state could not compel defendant to testify regarding her state of mind. The dissent summed up its concern in the following terms:

“Admittedly, it is unclear what circumstances the Holmes court had in mind when it interpreted Article I, section 9, to embody a type (b) analysis, but the court could not have contemplated a process where the state is effectively unable to litigate the issue that has been framed by the majority as determinative of the outcome of this case and where the trial court is required to make a finding that is impossible for it to make.”

225 Or App at 36 (Edmonds, J., dissenting). As noted, both the state and defendant petitioned for review of the Court of Appeals’ decision; we allowed both petitions.

Before this court, defendant argues that the Court of Appeals erred in remanding the case to the trial court for factfinding with respect to whether, when Schaer asked for consent to search her purse, defendant subjectively believed that her liberty had been significantly restricted. She contends that, under a correct interpretation of the Holmes analysis previously described, establishing whether an individual subjectively believes that he or she has been “seized” is unnecessary when a court is able to say that, under the same circumstances, a reasonable person would have held that belief. The state argues, on the other hand, that the Court of Appeals went astray by attempting to apply the Holmes formulation at all, because, in its view, this court has abandoned that formulation and now applies an “objective indicia” test. The state urges that, if an “objective indicia” test is applied to the circumstances here, Schaer’s request for consent to search defendant’s purse was not a seizure.

As the parties’ positions and the several opinions generated in the Court of Appeals reflect, there is considerable confusion about the meaning and continuing viability of the definition of a “seizure” set out in Holmes. The confusion is warranted: Although this court has repeatedly pointed to Holmes as setting out the essential test for when a seizure has occurred, it has not yet successfully differentiated between the two methods for establishing a seizure that are mentioned in that test. Neither has this court attempted to confront the purely practical concerns that an inquiry into a criminal defendant’s “subjective belief’ (which the Holmes part (b) definition appears to involve) obviously raises. Clearly, there is a need for us to clarify that element of an Article I, section 9, “seizure.”

But that issue must come — if it is to come at all— later in our review. We begin with defendant’s original theory for suppression, viz., that defendant’s consent to the search of her purse arose out of an unlawful stop that occurred when, without any reasonable basis for suspecting that she was involved in criminal activity, Barroncliffe and Schaer requested identification from defendant and used the identification that she produced to run a warrants check. Because the state has conceded that the request for identification to check for warrants amounted to an unlawful seizure,⁶ the question for this court respecting defendant’s original theory is whether, and in what way, the evidence obtained in the search of defendant’s purse derived from that unlawful conduct.

In State v. Rodriguez, 317 Or 27, 38-40, 854 P2d 399 (1993), this court observed that, in criminal prosecutions in Oregon, evidence is subject to suppression if it is obtained in violation of the defendant’s personal right under Article I, section 9, to be free from unlawful searches and seizures. Based on that observation, we concluded that unlawful police conduct with respect to an individual provides a basis for suppression of evidence seized during a search performed with the consent of that individual in one of two ways: (1) the unlawful police conduct affected the supposed voluntariness of the individual’s consent; or (2) the consent actually derived from, or was obtained through “exploitation” of, the prior violation of the individual’s constitutional rights.⁷ As noted, defendant has never argued that her consent in this case was not voluntary, and that issue therefore need not be considered. That leaves the issue of “exploitation,” i.e., whether the consent search in some sense derived from the prior unlawful police stop.

In the present case, the Court of Appeals’ majority concluded that defendant had failed to shift the burden of proof on the issue of “exploitation” to the state, because the officer’s unlawful actions as to defendant

“had no causal relationship with the discovery of evidence; [the] check [of defendant’s identification] came back negative, at which point defendant was free to leave. The warrant check that was causally related to the discovery of evidence was the one that police carried out on defendant’s husband; that act, a violation of his rights, led to the discovery of the outstanding restraining order, the arrest, and the subsequent events. The violation of defendant’s rights simply had no downstream consequences.”

225 Or App at 22 (emphasis in original).

In our view, the first sentence of that analysis makes the essential point: Defendant was free to leave — and the unlawful stop was over as to her — when the police returned her identification and told her that they were arresting her husband.* *****⁸

Neither can the fact that defendant remained in the vicinity while the officers effected the arrest of defendant’s husband — thereby making herself available for further conversation — be viewed as causally related to the unlawful request for identification and warrant check. Although defendant could be correct that, in theory, a causal connection might exist between an unlawful stop that has ended and an individual’s subsequent consent to a search, the existence of that possibility does not absolve a person seeking suppression of evidence on an “exploitation” theory from the person’s burden of identifying an actual factual link. Defendant here has not identified any actual link, and her vague suggestion that the two events are “plausibly related” is insufficient to meet her burden.⁹ It follows that the officers’ request for identification and use of that identification for a warrants check, which concededly constituted an unlawful stop, cannot serve as a basis for granting defendant’s motion for suppression of evidence obtained in the subsequent consent search of her purse.

That brings us to defendant’s alternative theory for suppression, viz., that she was subjected to a second seizure when Schaer approached her and questioned her about the contents of her purse. Defendant contends that that seizure was unlawful because, at that time, Schaer had no basis for believing that defendant had engaged in any criminal activity.¹⁰ In fact, the state does not dispute defendant’s contention that her consent to the search was the direct product of Schaer’s question and request. The state argues, instead, that Schaer’s question and request were “mere conversation,” not a “seizure.”

The issue that the state raises — whether a putatively unreasonable “seizure” was in fact “mere conversation” with no constitutional implications — is a familiar one to this court. We long have recognized that, out of the broad range of potential encounters between police and citizens, only some implicate the prohibition in Article I, section 9, against unreasonable “seizures.” We have divided police-citizen encounters, very roughly, into three categories: (1) “mere conversation,” that is, noncoercive encounters that are not “seizures” and, thus, require no justification under Article I, section 9; (2) “stops,” a type of seizure that involves a temporary restraint on a person’s liberty and that violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that the person has been involved in criminal activity; and (3) “arrests,” which are restraints on an individual’s liberty that are steps toward charging individuals with a crime and which, under Article I, section 9, must be justified by probable cause to believe that the arrested individual has, in fact, committed a crime. The thing that distinguishes “seizures” — that is, “stops” and “arrests” — from encounters that are “mere conversation” is the imposition, either by physical force or through some “show of authority,” of some restraint on the individual’s liberty. State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227 P3d 695 (2010); see also State v. Warner, 284 Or 147, 161-62, 585 P2d 681 (1978) (to the same effect).

In addition to the foregoing explication of the meaning of the constitutional term “seizure,” this court has set out a definition of that term in Holmes. Although we already have quoted that definition, 349 Or at 303, we do so again for the convenience of the reader:

“[A] ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution (a) 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; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable under the circumstances.”

Holmes, 311 Or at 409-10.¹¹

A full appreciation of the foregoing definition requires that we recognize that it is not the only advice that the court in Holmes provided with respect to determining when a “seizure” has occurred. The court also stated that the determination “require[s] a fact-specific inquiry into the totality of the circumstances of the particular case,” id. at 408, and it stressed that,

“[u]nder the[ ] ‘seizure’ standards [set out above], law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification if a particular encounter proves fruitful. A street or public place encounter does not amount to an Article I, section 9, ‘seizure’ merely because the encounter may involve inconvenience or annoyance for the citizen and the other party to the encounter is known to be a law enforcement officer. Even physical contact does not transform the encounter into a ‘seizure’ if it is a normal means of attracting a person’s attention (e.g., policeman tapping citizen on the shoulder at the outset to get a citizen’s attention). * * * Rather the encounter is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer, even if making inquiries [that] a private citizen would not, has otherwise conducted himself in a manner that would be perceived as non-offensive conduct if it had occurred between two private citizens.”

Id. at 410.

As noted, this court’s efforts to explain what the constitutional term “seizure” embraces have not yet succeeded: Our various explanations, from Holmes to Rodgers/Kirkeby, have left questions unanswered. We shall make a further effort here.

One such question is the one that the state poses— whether the two-part Holmes definition quoted above remains relevant almost 20 years after it first was announced. The state contends that, after an initial period during which this court seemed to analyze police encounters under both parts of the definition, the court shifted to a pattern in which it quoted, but did not actually address, both parts of the Holmes definition.¹² The state contends that that shift demonstrates that the court has abandoned the two-part Holmes formulation and, it argues, the court now resolves “seizure” questions in terms of whether, looking at the “totality of the circumstances” of the particular case, a police officer’s conduct and words significantly interfered with the defendant’s freedom of movement. The state suggests, moreover, that the court was correct to shift to a simple “totality of the circumstances” approach, because the “formulaic” and “mechanical” Holmes construct “ignores the complexity and nuance of encounters between law enforcement and individuals.”

Before this court, the state also criticizes the Court of Appeals’ majority’s handling of another aspect of Holmes part (b) — the discussion whether an individual involved in an encounter with police “believes” that his or her liberty has been restricted. That argument fairly characterizes what the Court of Appeals majority said. After concluding that a reasonable person could have believed that his or her liberty had been restricted under the circumstances of the case, and after noting that the trial court had not made any finding as to whether defendant actually held such a belief, the Court of Appeals remanded the case to the trial court to make what it deemed to be the necessary finding concerning that question and, at the same time, seemed to place the burden of establishing defendant’s subjective belief on the state. Taking its cue from the Court of Appeals’ dissent, the state argues that that approach has placed it in an untenable position — one of being “effectively unable to litigate [an] issue that has been framed by the majority as determinative.” Ashbaugh, 225 Or App at 36 (Edmonds, J., dissenting). That is so, in the state’s view, because (1) a defendant cannot be compelled to testify about his or her state of mind and (2) in the absence of such testimony, the defendant’s subjective belief that he or she has been seized is presumed — unfairly—from the fact that he or she has remained in the presence of the police. The state concludes that, if a citizen’s subjective beliefs about an encounter properly determine whether there has been an Article I, section 9, “seizure,” then the defendant, rather than the state, should be required to carry the burden of proof with respect to those beliefs.

Defendant, for her part, embraces the idea that Holmes part (b) has a subjective focus, and agrees with the Court of Appeals’ majority that, for purposes of part (b), the objective reasonableness of an individual’s belief that his or her liberty has been significantly restricted must be based on whether a reasonable person could hold that belief. Defendant argues, however, that part (a) of the Holmes test also assesses the circumstances entirely from the affected individual’s personal and subjective vantage point — although, under part (a), the question is not what a reasonable person could believe but “whether, under the totality of the circumstances, a reasonable person would consider the officer’s conduct a significant restriction on the person’s liberty.”¹³

The fact that the parties have advanced such vastly different interpretations of the two-part Holmes formulation might be viewed as a failure by this court in Holmes to articulate its point clearly. But, as we have focused more and more tightly on the words of the Holmes definition of “seizure,” it has become increasingly apparent that the problem is not so much with how the idea has been expressed as with the idea itself. Quite simply, we think that at least one component of the Holmes definition is unworkable, and this court since Holmes has proceeded as if the unworkable component were not there. Although that approach has resulted in confusion about the meaning of Holmes, we do not believe that the root problem can be resolved by further effort at clarification. We believe that the problem instead requires a reexamination of the Holmes formulation.

It is evident that, when this court adopted the Holmes definition, it was attempting to define Article I, section 9, seizures primarily in terms of the perceptions of ordinary citizens. That is not surprising: The United States Supreme Court had, at that time, settled on a definition of “seizure,” for the purpose of the Fourth Amendment to the United States Constitution, that was couched in terms of a reasonable person’s perceptions:

“[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.”

United States v. Mendenhall, 446 US 544, 554, 100 S Ct 1870, 64 L Ed 2d 497 (1980) (plurality opinion by Stewart, J.). See also Florida v. Royer, 460 US 491, 502, 103 S Ct 1319, 75 L Ed 2d 229 (1983) (quoting Mendenhall plurality). This court was aware of the United States Supreme Court’s “reasonable person” approach in Mendenhall,¹⁴ but it likely also was aware that courts and academics across the country were struggling with two pertinent issues: (1) how to deal with individual differences between arguably reasonable persons involved in citizen-police encounters;¹⁵ and (2) how to deal with the stated or inferred intentions of police officers in such encounters.¹⁶ We are satisfied that, when this court defined Article I, section 9, “seizures” in Holmes, it intended to use the “reasonable person” construct of Mendenhall but, at the same time, to address and resolve the two concerns arising out of Mendenhall that we have mentioned. Of particular relevance here, we believe that Holmes part (b) was directed at the latter concern.

However, having announced in Holmes part (b), that the existence of a seizure might depend on the subjective impressions of the citizen involved, this court has seemed disinclined to use that aspect of the part (b) formulation in its decisions. Even in Holmes itself, the court glossed over the subject of the defendant’s subjective beliefs about his encounter with the police, and concentrated entirely on what a reasonable person would have believed in the circumstances. See Holmes, 311 Or at 411 (concluding that there had been no seizure because a reasonable person would appreciate being stopped and advised of traffic situation and would not believe that associated inconvenience or restriction was significant). And, since Holmes, a disinclination even to mention a suspect’s subjective beliefs in connection with a part (b) analysis has been a common pattern in this court’s cases. See, e.g., State v. Gerrish, 311 Or 506, 513, 815 P2d 1244 (1991) (holding that police did not seize defendant when they flagged him down to request information because that action not significant restriction upon the defendant’s liberty, “nor would a reasonable individual believe that it was”); State v. Hall, 339 Or 7, 19, 115 P3d 908 (2005) (concluding that police seized defendant when they took defendant’s identification for warrant check, because reasonable person would not feel free to leave when person is subject of pending warrant check); State v. Thompkin, 341 Or 368, 378-79, 143 P3d 530 (2006) (same).¹⁷

In the handful of cases in which the defendant’s subjective beliefs even are mentioned in connection with a part (b) analysis, this court sometimes has avoided any actual inquiry into the defendant’s beliefs by accepting, for the purpose of argument, that the defendant subjectively believed that he had been seized. See, e.g., State v. Ehly, 317 Or 66, 79-80, 854 P2d 421 (1993) (assuming that defendant did not believe that he was free to leave but holding that, in any event, an objectively reasonable person would not share that belief). At other times, the court simply has assumed that a defendant’s failure to assert himself shows that he subjectively believed that he had been seized. See, e.g., State v. Dahl, 323 Or 199, 207-08, 915 P2d 979 (1996) (defendant’s submission to police order, conveyed telephonically, to come out of his house with his hands up showed that he believed that his liberty had been restricted).

In fact, this court has treated a defendant’s subjective belief that his or her liberty has been intentionally and significantly restricted as a separate and necessary element of a Holmes part (b) seizure in only one case — Toevs.¹⁸ Significantly, Toevs is the case that the Court of Appeals relied on when it remanded to the trial court to determine what defendant subjectively believed.

In Toevs, this court opined that, for purposes of the Holmes formulation, what a defendant subjectively believes is a question of fact to be resolved by the trial court, while whether that belief is objectively reasonable requires an independent assessment of the facts by the reviewing court. 327 Or at 535. In Toevs, this court understood the trial court to have found that the defendant subjectively believed that his freedom of movement had been restricted at the relevant time, and noted that that finding was supported by the record. Id. at 536. This court then proceeded to independently assess whether the defendant’s belief was objectively reasonable, and stated its conclusion in that regard in the following terms:

“Under the totality for the circumstances, we conclude that a reasonable person in defendant’s position could have believed that the officers significantly had restricted his liberty or freedom of movement.”

Id. (emphasis added). The use of the phrase “could have believed” in that sentence clearly is an anomaly. In every other case in which this court has purported to apply Holmes, including those that were issued after Toevs, the court’s conclusions have been phrased in terms of what a reasonable person “would” have believed. See, e.g., Hall, 339 Or at 19; Thompkin, 341 Or at 378. The trend, not the anomaly, describes the question correctly. “Would” is correct; “could” was a regrettable misstatement.

For the foregoing reasons, we believe that it is time to abandon forthrightly the subjective component of that part of the Holmes part (b) test — that is, the part that is concerned with a person’s subjective belief that he or she has been seized — and instead to direct the focus of that part of the definition entirely to an objective standard.¹⁹ A “seizure” of a person occurs under Article I, section 9, of the Oregon Constitution: (a) 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; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.²⁰

Applying that standard to the facts in this case, we conclude that defendant was not seized within the meaning of Article I, section 9, when Schaer recontacted her after putting her husband in a police car, asked her about the contents of her purse, and asked whether she would permit him to search the purse. Although it is possible to restrict a person’s liberty and freedom of movement by purely verbal means, there is no evidence that would support a conclusion that that is what happened here. Certainly, the content of Schaer’s questions did not cause defendant to be seized: As we repeatedly have observed, even though Schaer asked defendant a question that one private citizen ordinarily would not ask another, defendant does not point to anything about Schaer’s words that would be perceived as “show of authority that restrict[ed her] freedom of movement.” Rodgers/Kirkeby, 347 Or at 622.

Neither is there any basis for concluding that Schaer’s manner or actions involved a “show of authority.” Schaer’s request was not accompanied by any physical action that could be construed as threatening or coercive — he did not, for example, position himself and his fellow officer in a way that would suggest to defendant that she was surrounded. See Rodgers /Kirkeby, 347 Or at 627 (illustrating that tactic). In fact, the trial court found that the conversation between Schaer and defendant was “relaxed and noncon-frontational,” and we are bound by that finding, because there is evidence in the record to support it. Moreover, the officers had returned defendant’s identification to her and left her alone while completing the arrest and transportation of her husband. Thus, while it may have been true that defendant had been unlawfully detained by police some minutes before and had watched a clear show of authority directed at her husband, those circumstances had ended. They did not create the kind of atmosphere that would convey to a citizen that she was not free to go at the later time.

Considering the totality of the circumstances, we conclude that Schaer’s actions in asking defendant the questions that he did under the circumstances that existed did not “intentionally and significantly” restrict or interfere with her liberty. We further conclude that an objectively reasonable person in defendant’s circumstances would not believe that Schaer had done so. Accordingly, we reject defendant’s contention that, in light of the surrounding circumstances, Schaer’s questions about the contents of her purse and his request for consent to search the purse amounted to a seizure for purposes of Article I, section 9, of the Oregon Constitution. It follows that, whatever connection there might be between those questions and defendant’s consent to the search of her purse, the consent was not the product of an unlawful seizure.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

1 Of course, to “run” identification means to have it reviewed by someone— normally a person located some distance from the place where the identification was tendered to the police — who is in a position to determine whether the person so identified is the subject, inter alia, of an outstanding warrant or other court order. This verbal specimen of law enforcement argot may be sufficiently enough understood in present day culture that it needs no explanation. It is not, however, the way courts or even the majority of individuals express themselves. We offer our explanation out of a recognition that, if we do not do so from time to time, we shall cause readers to believe what Mark Twain described in his preface to Huckleberry Finn, viz., that “all [our] characters were trying to talk alike and not succeeding.”

2 The trial court accepted the state’s concession that the police officers had unlawfully stopped defendant when they obtained her identification and ran a record check. The trial court also accepted defendant’s concession that her consent to the search of the purse was, in fact, voluntary. We have not been asked by the parties to reexamine either of those premises, and we do not.

3 Like the trial court, the Court of Appeals’ majority accepted the state’s concession that the officers unlawfully seized defendant when they asked for her identification and ran a warrants check. The majority concluded, however, that defendant had failed to establish even a minimal causal connection between that unlawful seizure and her consent to the search of her purse. It noted that the warrant check of defendant’s identification “came back negative, at which point defendant was free to leave.” 225 Or App at 22.

4 For lack of a better word, we identify the two sections of the Holmes definition as “parts” — that is, we refer to “part (a)” and “part (b)” of the definition. We do not mean to convey, by our use of that term, that the two sections of the definition set out elements that both must be present. Rather, as the use of the word “or” in the Holmes definition implies, “part (a)” and “part (b)” are alternative methods for establishing, together or alone, that conduct or circumstances constitute a seizure.

5 A second concurring opinion agreed with the majority that the case should be remanded for factfinding on defendant’s subjective state of mind, but declined to express any view as to whether a reasonable person could feel detained under similar circumstances. See 225 Or App at 32-33 (Landau, J., concurring).

6 As noted previously, 349 Or at 302 n 2, in light of the state’s concession, we express no opinion on the issue.

7 In State v. Hall, 339 Or 7, 115 P3d 908 (2005), this court explained the latter theory, sometimes referred to as an “exploitation” theory, in terms of the rationale underpinning Oregon’s exclusionary rule and of the state’s usual burden, when police misconduct is shown, of proving that evidence is not tainted by the misconduct:

“[E]ven when a defendant’s consent is voluntary — that is, when the defendant’s free will has not been overcome by police coercion — that consent is insufficient to establish the admissibility of evidence from a warrantless search if the state cannot prove that the consent was independent of, or only tenuously related to, any preceding violation of defendant’s rights under Article I, section 9. Unless the state is able to make that showing, then the defendant’s consent cannot operate to validate a warrantless search because the defendant’s consent itself derived from a violation of the defendant’s rights under that state constitutional provision. To not require suppression in such circumstances would be inconsistent with the * * * rationale underlying the Oregon exclusionary rule, that is, to place a defendant in the same position as if the government officers had acted within the bounds of the law.”

Hall, 339 Or at 27-28 (emphasis in original; citations omitted).

8 Because the first sentence of the Court of Appeals’ statement contained the full legal answer to defendant’s argument, we need not discuss whether the balance of the quoted statement is correct or adds anything to the analysis.

9 The circumstances that we describe here are notably distinct from those in State v. Ayles, 348 Or 622, 237 P3d 805 (2010), where this court concluded that the existence of a different circumstance — the police request for consent to search occurred while an illegal detention was ongoing-was sufficient to establish the requisite minimal factual nexus. Id. at 633-34.

10 Defendant also contends that the existence of a causal connection between that seizure and her decision to consent is beyond dispute. As our analysis will demonstrate, we need not address that theory in this case.

11 In Rodgers /Kirkeby, we stated the definition in slightly different words:

“A person is ‘seized’ under Article I, section 9, when either (1) a police officer intentionally and significantly interferes with the person’s freedom of movement; or (2) the person believes, in an objectively reasonable manner, that his or her liberty of movement has been so restricted.”

347 Or at 621-22.

12 We discuss below the cases that the state points to as demonstrating that shift.

13 In fact, defendant contends that whenever this court has stated, in the context of a Holmes analysis, that an “objectively reasonable” person would believe that his or her liberty has been restricted, it has been applying part (a) of the Holmes formulation, rather than part (b). Given that the phrase “objectively reasonable” appears in part (b) of the Holmes formulation, defendant’s theory is counterintuitive. The same might be said about another aspect of defendant’s interpretation of the Holmes formulation — her claim that, when part (a) speaks of an officer “intentionally” restricting an individual’s liberty, it is not concerned with the police officer’s actual intentions, but with what a reasonable person in the suspect’s position would believe that the officer intended.

14 The court quoted the “reasonable person” definition elsewhere in Holmes. 311 Or at 413.

15 See, e.g., Tracey Maclin, Black and Blue Encounters-Some Preliminary Thoughts about Fourth Amendment Seizures: Should Race Matter?, 26 Val U L Rev 243 (1991) (because, historically, “special dynamic” has surrounded encounters between police and black males, court should consider how the race of the person confronted by the police might have influenced his attitude toward the encounter); Wayne R. LaFave, 3 Search and Seizure; A Treatise on the Fourth Amendment § 9.2(h) at 407-08 (2d ed 1987) (briefly discussing and rejecting the possibility that reasonable person standard depends upon the subjective perceptions of the suspect). See also In re J.M., 619 A2d 497, 504-07 (DC App 1992) (Chief Judge Rogers and Senior Judge Mack concurring in part and dissenting in part) (child’s perception of police encounter will be different from adults, and that difference should be taken into account when court is confronted with deciding whether police encounter with child was a seizure).

16 See, e.g., Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J Crim L & Criminology 437, 464-66 (1988) (more realistic to take into account the subjective intent of the police officer because, when police officer does not intend to permit person to leave, person in fact is not free to leave); LaFave, 3 Search and Seizure § 9.2(h) at 407 (briefly discussing propriety of considering subjective intentions of police officers). See also State v. Shy, 373 So 2d 145, 148 (La 1979) (Dennis, J. dissenting) (when police had admitted in their testimony that they would have stopped defendant by force if he had attempted to leave, “it is legalistic, but not realistic, to pretend that an ordinary citizen would be aware of or believe in, much less rely upon the * * * shibboleth” that nothing prevents a person who is approached by police from choosing to walk away).

17 The noted tendency in this court’s cases to avoid using or even mentioning the defendant’s subjective beliefs in connection with a Holmes part (b) analysis is different from the state’s idea that this court has tacitly abandoned the two-part Holmes formulation altogether. The cases do, however, manifest the tendency to remove subjective belief from the part (b) analysis that we have observed.

18 State v. Juarez-Godinez, 326 Or 1, 942 P2d 772 (1997), also appears to treat the defendant’s subjective belief as a separate and necessary element of a part (b) analysis. However, Juarez-Godinez is complicated by the fact that the court appeared to employ both a part (a) and a part (b) analysis, without distinguishing between them, and by the further fact that the case involved the seizure of an automobile, not a person. 326 Or at 6-10.

19 We describe our concern so narrowly because we are of the view that one other example of subjective belief might remain relevant: If a person affirmatively (but wrongly) believes that he or she is free to go, his or her consent to a search may be valid. This case does not present the question' — we simply note here that it remains unanswered.

20 The controversy in the present case focuses on the “objective reasonableness” and subjective “belief’ aspects of part (b) of the Holmes standard and we have limited our analysis of the standard accordingly. We recognize that, in the eyes of some readers, part (a) of the standard contains a “subjective” element that is susceptible to the same criticisms as is the subjective element of part (b) — specifically, the reference to law officers “intentionally” restricting a person’s freedom of movement. Although our present sense is that the intentionality aspect of part (a) is quite different from the subjective belief aspect of part (b) and serves a different and more defensible purpose, we are open to any argument to the contrary that the state or any other party might wish to make in a future case.