State v. Beasley

326 P.3d 634, 263 Or. App. 29, 2014 WL 2119214, 2014 Ore. App. LEXIS 676

• Court: Court of Appeals of Oregon
• Decided: May 21, 2014
• Docket: 100444412; A146742
• Status: Published

Opinions

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 Or 66, 74-76, 854 P2d 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.¹ 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 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 Or 297, 316, 244 P3d 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 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 P2d 1223 (1990). “Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.” State v. Fair, 353 Or 588, 593-94, 302 P3d 417 (2013). In State v. Backstrand, 354 Or 392, 399, 313 P3d 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 Or 440, 453, 313 P3d 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 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 Or 613, 621, 801 P2d 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 Or 459, 468, 313 P3d 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 Or 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 Or 422, 676 P2d 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 to significantly restrain the citizen’s liberty or freedom of movement.”

Id. at 417; see also Highley, 354 Or at 472 (clarifying that State v. Hall, 339 Or 7, 115 P3d 908 (2005), “should not be understood * * * to stand for the proposition that an officer’s request for identification and a check of that identification, either to determine its validity or the status of the person who tenders it, is a per se stop”)- This court has also held that an officer’s act of shining a police car’s spotlight into a car, in and of itself, does not constitute a “show of authority” or restraint of a defendant’s liberty. State v. Aronson, 247 Or App 422, 428, 271 P3d 121 (2011), rev den, 352 Or 33 (2012).

Here, defendant argues that an unlawful seizure occurred when the officer asked for his identification and, while retaining it, inquired about whether he was on probation or had any warrants and if he could run a records check. In defendant’s view, a reasonable person in his position would believe that the officer had made a show of authority that restricted his liberty and that he was an “investigatory subject” of a pending investigation and, therefore, not free to leave. Defendant also argues that he was seized while the officer retained his identification because he was unable to leave. Defendant’s view does not square with the case law.

In Highley, the Supreme Court held that the defendant was not unlawfully seized when a police officer approached him in a parking lot, inquired as to whether he was “still on probation,” asked for his identification, wrote down the information and returned the identification, and then radioed dispatch to confirm the defendant’s probation status. 354 Or at 462.² The court concluded that, under those circumstances, the defendant had not been unlawfully seized. Id. at 471. The court reasoned that the straightforward request for identification did not amount to a seizure and that a reasonable person could expect that the officer would use the identification to verify the person’s status. Id. at 469-70. Overall, the court found that the officer’s actions did not convey a restraint on the defendant’s liberty. Id. at 470.

Similarly, here, the facts are insufficient to support an objectively reasonable belief that defendant’s liberty was restricted by the officer’s contact in a constitutionally significant manner. The officer saw defendant slumped over the wheel of his car and was legally entitled to approach the car to check on defendant’s well-being. The officer parked his patrol car across the street from defendant’s car without blocking it, and did not turn on his emergency lights; rather, he turned on his car’s spotlight to illuminate defendant’s car, which did not, by itself, constitute a show of authority. See Aronson, 247 Or App at 428. After waking defendant, the officer, in a casual tone, engaged in conversation with defendant, which the trial court characterized as “appropriate.” The officer asked defendant for his identification and, as the Supreme Court held in Backstrand, that straightforward request did not change the encounter from “mere conversation” into a seizure because the request was not accompanied by a “show of authority.” See Backstrand, 354 Or at 409. Also, similar to Highley, the officer then asked defendant whether he was on probation or had any warrants and if he could run a records check. See Highley, 354 Or at 462. The officer briefly retained defendant’s identification, but not beyond a period sufficient to verify defendant’s status. In addition, while the officer held onto the identification, he simultaneously asked whether he could perform a records check, and defendant responded, “Go ahead, check my record.” During that time a reasonable person in defendant’s situation would assume that the officer was retaining the identification to verify whether he was, in fact, on probation or had any warrants, not that he was the subject of any other investigation.

The dissent’s conclusion that the manner and context of the officer’s request for defendant’s license conveyed to defendant that he was the subject of a traffic stop cannot be squared with the Supreme Court’s case law. Although the dissent acknowledges that an officer’s subjective intent to detain a defendant, in and of itself, does not constitute a stop, the dissent’s subsequent analysis rests on the officer’s subjective intent — specifically, his intent to investigate a possible DUII. 263 Or App at 43-44 (Duncan, J., dissenting). Other than the officer’s testimony that his subjective intent was to investigate defendant, the trial court made no findings that the officer’s tone — which was found to be “appropriate” — or the circumstances of the encounter — the patrol car’s flashing lights were not on nor was it blocking defendant’s car — constituted a “show of authority” resulting in an unconstitutional seizure.

Moreover, the dissent’s assertion that defendant was seized under the two-part test in Ashbaugh, 349 Or at 316, also is incorrect. Under Ashbaugh, a stop occurs “(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.” Ashbaugh, 349 Or at 316 (emphasis omitted). Contrary to the dissent’s contention, the officer’s conduct in this case did no more to communicate to the defendant that he was “the subject of a traffic stop,” 263 Or App at 42 (Duncan, J., dissenting) than the conduct at issue in Backstrand or Highley. As the Supreme Court emphasized in Backstrand,

“‘verbal inquiries [by officers] are not * * * seizures.’ Rather, something more than just asking a question, requesting information, or seeking an individual’s cooperation is required of an officer’s conduct. The ‘something more’ can be such things as the content or manner of questioning, or the accompanying physical acts by the officer, if those added factors would reasonably be construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request.”

354 Or at 403 (internal citations omitted). The dissent points to no such circumstances in this case, relying instead on the officer’s subjective intent.

Based on the totality of the circumstances, we conclude that a reasonable person would not have felt that the officer was exercising his authority to significantly restrain defendant’s liberty or freedom of movement as explained in the case law. Therefore, we conclude that defendant was not seized by the officer’s request to see his identification, his inquiry about defendant’s criminal status, his brief retention of defendant’s identification, or his request to run a records check. Because defendant was not unlawfully seized, the evidence attained through the records check was properly admitted, and the trial court did not err in denying defendant’s motion to suppress.

Affirmed.

1 In his brief, defendant claims that the officer’s police car was blocking his car. However, the trial court found that the officer parked his car “somewhere across the street,” and there is evidence in the record to support that finding.

2 The dissent attempts to distinguish Highley from this case on the basis that, in Highley, the officer was “not conducting a traffic stop or a criminal stop.” 263 Or App at 44 (Duncan, J., dissenting). That is not correct — and, indeed, the circumstances in Highley roughly parallel those in this case. In Highley, the defendant was a passenger in a car that was pulled over by an officer who knew that the driver of the car was driving with a suspended license. 354 Or at 461. Initially, the defendant walked away to visit an apartment that the officer knew had a “history of drug activity.” Id. at 462.

During this time, the officer contacted the probation department to check whether the driver’s

“probation officer had any ‘interest’ in the fact that [the driver] was in the area of apartments known to have drug activity and was in the company of people known to be involved with drugs and who had gone to an apartment with a history of drug activity, all of which likely violated the conditions of [the driver’s] probation.”

Id. When the defendant returned to the car, and, while the officer was waiting to find out about the driver’s probation status, the officer asked the defendant, whom he knew from “past contacts and arrests involving drug activities,” if he was still on probation. Id. After the defendant replied that he was not, the officer then asked the defendant for his identification to “confirm that [the] defendant was not on probation.” Id.

Like the defendant in Highley, defendant here was not initially the subject of a traffic stop or a criminal stop. Rather, here, the officer initially approached defendant to check on his well-being before asking for his identification and inquiring about his probationary status.