State v. Onstad

925 P.2d 154, 144 Or. App. 149, 1996 Ore. App. LEXIS 1475

• Court: Court of Appeals of Oregon
• Decided: October 16, 1996
• Docket: C95-03-31745; CA A88760
• Status: Published

Opinions

EDMONDS, J.

Defendant was indicted for delivery and possession of a controlled substance. ORS 475.992. Before trial, the trial court granted his motion to suppress evidence. The state appeals, and we reverse.

At approximately 9:30 p.m. on March 1, 1995, an officer was driving in a marked patrol car eastbound on West Burnside Street in Portland near the intersection of NW 20th Avenue and Burnside. He saw defendant walking with a woman westbound on the opposite side of the street and carrying a brown paper bag out of which the top of a bottle protruded. The officer was acquainted with defendant and, believing that defendant was carrying an open container of beer, stopped his car in the intersection, turned on his four-way emergency flashers and called out defendant’s name. As defendant turned toward the officer, defendant pulled a white bindle from his jacket pocket and tucked it in the waistband of his pants.

After the officer left his patrol car, he saw that defendant was carrying a malt liquor bottle, that the bottle’s seal was broken and that it was partially empty. The officer spoke to defendant about the open bottle,¹ and then pointed to defendant’s waistband and asked him if the bindle contained cocaine. Defendant replied affirmatively, and the officer retrieved the bindle, which contained three packets of cocaine. Defendant was eventually arrested for delivery and possession of a controlled substance.

In his pretrial motion, defendant moved to suppress the bindle and evidence of his statements to the officer. He argued that the officer’s conduct in stopping the police car, turning on his emergency flashers, and calling defendant’s name constituted a “seizure” for purposes of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution and that the officer lacked probable cause under the circumstances to make a seizure. The trial court granted the motion to suppress,² and the state appeals.

In State v. Holmes, 311 Or 400, 813 P2d 28 (1991), the court explained that some encounters between a police officer and an individual do not constitute a seizure and, therefore, do not require any justification. Rather, a seizure of a person under Article I, section 9, 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) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.” Id. at 409-10.

Thus, an officer may “approach persons on the street or in public places, * * * [and] request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification.” Id. at 410. The encounter becomes a seizure only if the officer engages in conduct significantly beyond that accepted in ordinary social contacts and which has the effect of significantly restricting the individual’s liberty or freedom of movement.

We conclude that the officer’s actions in this case did not constitute a seizure of defendant.³ When he parked in the intersection, the officer turned on his emergency flashers, a feature that all automobiles carry. He did not turn on his overhead lights, which are typically used to stop people; he did not block defendant’s path and he did not display any show of physical force or in any other way communicate to defendant that defendant was not free to leave. The fact that the officer and defendant were acquainted, which resulted in the officer calling defendant by name, did not significantly restrict defendant’s liberty either. If anything, the officer’s familiarity with defendant made the officer’s conduct more like an encounter that would ordinarily occur between two acquaintances. We hold that the trial court erred in determining that the officer’s conduct constituted a seizure or stop before he observed the bindle. We also conclude that the officer’s conduct did not constitute a seizure under the Fourth Amendment. See Holmes, 311 Or at 413-14 (explaining that the test under the Fourth Amendment is similar to the test under Article I, section 9, in that an officer must “meaningfully deprive defendant of his liberty or freedom of movement”) (emphasis in original). Because we have concluded that there was no seizure, we need not reach the state’s other arguments.

Reversed and remanded.

1 The Portland City Code makes it unlawful for a person to have an open container of alcoholic beverage on a public sidewalk.

2 The trial court said that the officer “probably had reasonable suspicion” to stop defendant and make further inquiry but lacked probable cause to seize defendant’s person. It reasoned that probable cause was required because the Portland City Code created an infraction rather than a crime. See State v. Matthews, 320 Or 398, 884 P2d 1224 (1994) (holding that an officer who stops and detains a person for a traffic infraction must have probable cause under Article I, section 9).

3 The concurrence posits a variation of ORS 131.605(5) and Article I, section 9, when it would hold that a “stop” and a “seizure” occurred. A “stop” as used in the statute is a seizure under section 9. State v. Kennedy, 290 Or 493, 497, 624 P2d 99 (1981). The proper test is whether defendant believed that his liberty was restrained and whether, objectively, a reasonable person would have believed that he was being detained. The concurrence improperly relies on the prior contacts that were within the peculiar knowledge of defendant to supply the objective basis for the application of the test. As the court pointed out in Holmes, “[e]ven physical contact does not transform the encounter into a ‘seizure’ if it is a normal means of attracting a person’s attention (e.g., [a] policeman tapping [a] citizen on the shoulder at the outset to get [the] citizen’s attention).” Holmes, 311 Or at 410. The hailing of defendant by his name cannot be characterized as conduct beyond that accepted in ordinary social intercourse if it had occurred between two ordinary citizens.