State v. Thompson

333 P.3d 1125, 264 Or. App. 754, 2014 WL 3953646, 2014 Ore. App. LEXIS 1071
CourtCourt of Appeals of Oregon
DecidedAugust 13, 2014
DocketC100064CR; A145643
StatusPublished
Cited by7 cases

This text of 333 P.3d 1125 (State v. Thompson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Thompson, 333 P.3d 1125, 264 Or. App. 754, 2014 WL 3953646, 2014 Ore. App. LEXIS 1071 (Or. Ct. App. 2014).

Opinion

SCHUMAN, S. J.

This case is before us for the second time. In our first opinion, State v. Thompson, 254 Or App 282, 293 P3d 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 P3d 1084 (2013); State v. Highley, 354 Or 459, 313 P3d 1068 (2013); and State v. Anderson, 354 Or 440, 313 P3d 1113 (2013) — the court vacated our decision and remanded it to us for reconsideration. State v. Thompson, 354 Or 837, 325 P3d 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 Sheriffs 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 [757]*757the 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 P2d 28 (1991), abrogated on other grounds by State v. Ashbaugh, 349 Or 297, 309, 244 P3d 360 (2010) (distinguishing between “mere conversation,” which does not implicate Article I, section 9, concerns, from [758]*758stops and arrests, which do). Quoting from and summarizing Ashbaugh, 349 Or at 309, the most recent and definitive case on the subject at that time, we stated:

“‘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.’
“Ashbaugh, 349 Or at 316 (emphasis in original; footnote omitted). ‘The thing that distinguishes “seizures” * * * 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.’ Id. at 309. * * * Defendant maintains that a reasonable person in her situation would have believed that her freedom of movement had been impaired by a show of authority — that, in essence, a person in such circumstances would not feel free to leave. The state disagrees. The parties focus on the fact that, at the time of the request, Monk had asked for and obtained defendant’s identification card and written down her name and date of birth.”

Thompson, 254 Or App at 286 (first ellipses in Ashbaugh; second added). We then recited that, according to our reading of Supreme Court opinions, there were two police actions that always amounted to a seizure: First, if the officer takes a person’s identification card, the person is per se stopped until the card is returned, State v. Painter, 296 Or 422, 425, 676 P2d 309 (1984), because, while the officer has the person’s card, the person’s freedom to leave has been impaired, State v. Hall, 339 Or 7, 19, 115 P3d 908 (2005); and second, if the officer takes the person’s identification information and radios it to “dispatch” or otherwise indicates to the person that the information will be used in a law enforcement investigation, the person is always stopped because a person who knows that he or she is in that situation would understand that he or she cannot simply leave the scene, id. “Beyond these precepts, however,” we noted, “the cases reveal only that taking a person’s identification and writing it down * * * is one factor to consider!.]” Thompson, 254 Or App at 287. We acknowledged that “[w]hether a seizure has occurred is [759]*759a ‘fact-specific inquiry into the totality of the circumstances of the particular case.’” Id. at 286 (quoting Holmes, 311 Or at 408).

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Cite This Page — Counsel Stack

Bluebook (online)
333 P.3d 1125, 264 Or. App. 754, 2014 WL 3953646, 2014 Ore. App. LEXIS 1071, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-thompson-orctapp-2014.