State v. Almahmood

795

Argued and submitted May 31, 2019, reversed and remanded January 27, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

AHMED ALMAHMOOD,

Defendant-Appellant.

Washington County Circuit Court

17CR20550; A166206

482 P3d 88

Police officers removed defendant from a TriMet train after he failed to show

valid proof that he had paid his fare. After a records check revealed that defen-

dant had been banned from riding TriMet trains, officers arrested him and found

brass knuckles during a search incident to arrest. Defendant was charged with

weapons crimes and theft of services. Before trial, defendant filed a motion to sup-

press, arguing that officers had unlawfully seized him when they ordered him to

show proof that he had paid his fare and asserting that evidence found as a result

of the fare check should not be admitted at trial. The trial court denied the motion

and convicted defendant of the charged crimes following a bench trial. On appeal,

defendant challenges the trial court’s denial of his motion to suppress. Held: The

officers seized defendant when they ordered him to show proof of fare payment,

and, in this case, the state did not meet its burden of establishing that the seizure

was reasonable for the purposes of Article I, section 9, of the Oregon Constitution.

The trial court therefore erred when it denied defendant’s suppression motion.

That error was not harmless.

Reversed and remanded.

Beth L. Roberts, Judge.

Sarah De La Cruz, Deputy Public Defender, argued the

cause for appellant. Also on the briefs was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

David B. Thompson, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Anna M. Joyce and Markowitz Herbold PC filed the brief

amicus curiae for Tri-County Metropolitan Transportation

District.

796 State v. Almahmood

Before Tookey, Presiding Judge, and Shorr, Judge, and

Hadlock, Judge pro tempore.*

HADLOCK, J. pro tempore.

Reversed and remanded.

______________

* Hadlock, J. pro tempore, vice Armstrong, P. J.

Cite as 308 Or App 795 (2021) 797

HADLOCK, J. pro tempore

Police officers removed defendant from a TriMet

train after he failed to show valid proof that he had paid

his fare. After a records check revealed that defendant had

been banned from riding TriMet trains, officers arrested him

and found brass knuckles during a search incident to arrest.

Defendant was charged with felon in possession of a restricted

weapon, carrying a concealed weapon, and theft of services.

Before trial, defendant filed a motion to suppress, arguing

that officers had unlawfully seized him when they ordered

him to show proof that he had paid his fare and asserting

that evidence found as a result of the fare check should not

be admitted at trial. The trial court denied the motion, and it

convicted defendant of the charged crimes following a bench

trial. On appeal, defendant challenges the trial court’s denial

of his motion to suppress. As explained below, we conclude

that the officers seized defendant when they ordered him to

show proof of fare payment. We also hold that, in this case,

the state did not meet its burden of establishing that the sei-

zure was reasonable for purposes of Article I, section 9, of the

Oregon Constitution. The trial court therefore erred when it

denied defendant’s suppression motion. That error was not

harmless. Accordingly, we reverse and remand.

For purposes of this appeal, the facts are not in

dispute. At the suppression hearing, Tualatin police officer

Radakovich described the events leading up to his presence

on the TriMet train, defendant’s arrest, and the associated

search. Radakovich explained that TriMet contracts with

local police agencies “to help enforce the laws and safety

and security of the TriMet lines.” On the day in question,

Radakovich was “contracted from Tualatin to TriMet” and,

in conjunction with that assignment, boarded a TriMet train

along with three other officers, who “spread out through-

out the train.” The officers were “trying to make more of

a visual presence and at the same time checking fares.”1

1

Although the record does not include direct evidence that the police officers

were in uniform when they boarded the train, Radakovich’s reference to a “visual

presence” suggests as much, and defendant asserted in the trial court without

contradiction that the officers were uniformed. Our analysis, like the parties’

arguments, therefore assumes that the officers were readily identifiable as police

officers when they conducted the fare check.

798 State v. Almahmood

The officers loudly announced that they were “doing a fare

check,” and they told passengers to display proof of the fares

they had paid. Radakovich then checked passengers’ fares

“row by row.” Another officer asked defendant for proof of

payment. Defendant displayed a picture on a phone, but it

was not valid proof that he had paid his fare. Defendant was

arrested, and officers found brass knuckles on defendant’s

person during a search incident to arrest.

Radakovich later testified at the suppression hear-

ing that officers removed people from the train if—like

defendant—they did not show valid proof of payment and

that officers “detained [those people] until we figured out

what was going on.” Radakovich acknowledged that defen-

dant did not have the option of declining to show the officers

proof that he had paid his fare.

After being charged with the crimes listed above,

defendant filed a suppression motion in which he argued

that officers had seized him, for purposes of Article I, section

9, when they required him to show proof of fare payment.

Defendant further argued that the seizure was unconstitu-

tional because it was not justified by reasonable suspicion

that he was committing a crime. Defendant acknowledged

that TriMet “has the right to ensure that only paying pas-

sengers board their trains and buses,” and he conceded that

TriMet “employees or other agents” may conduct fare checks

without violating passengers’ constitutional rights. But

when TriMet uses police officers to check fares, defendant

argued, “constitutional protections attach to those interac-

tions * * * with the passengers of those trains.” In response,

the state argued that it did not matter, for constitutional

purposes, that police officers—not TriMet employees—were

checking passengers’ fares. The state also argued that,

even if an Article I, section 9, seizure had occurred, it was

a permissible administrative stop. The trial court denied

defendant’s suppression motion, apparently on the basis

that the officers’ fare check had not constituted a seizure of

defendant.2

2

Specifically, the court ruled that “defendant voluntarily entered onto TriMet

property” and that “a reasonable person could expect a fare check on the TriMet

line and I do not find that the [officers’] conduct was significant interference.”

Cite as 308 Or App 795 (2021) 799

On appeal, defendant reiterates his argument that

the officers’ fare check was a seizure that violated Article I,

section 9, because it was not supported by reasonable sus-

picion. Defendant appears to again acknowledge that other

TriMet employees may perform fare checks without impli-

cating Article I, section 9, but he argues that police offi-

cers’ involvement had constitutional significance because it

“amount[ed] to a show of authority that restrained defen-

dant’s liberty.”3 Defendant asserts that the officers’ com-

mand to show proof of fare payment “required defendant to

produce evidence that he was not violating the law,” that the

officers were thus conducting a criminal investigation, and

that the command therefore significantly interfered with

defendant’s liberty because he would not have felt free to

terminate his encounter with the officers. Defendant also

contends that the state did not prove either that the sei-

zure was justified by reasonable suspicion that defendant

was engaged in criminal conduct or that the seizure was a

constitutionally permissible administrative stop. On the lat-

ter point, defendant asserts that “the state did not establish

that a valid administrative policy would have authorized

a fare check” because the state failed to offer evidence of

Trimet’s administrative code prior to the close of evidence,

the trial court denied the state’s request that it take judi-

cial notice of the administrative code, “and there was no evi-

dence of whether the officers followed such a policy.”

In response, the state first argues that the offi-

cers did not seize defendant when they required passen-

gers, including defendant, to show proof of fare payment.

The state asserts that the record does not support defen-

dant’s contention that the officers were conducting a crim-

inal investigation. To the contrary, the state argues, “the

evidence established that, when the officers made the fare

3

Although most search-and-seizure cases involve police officers’ actions

and therefore are often framed in terms of the permissibility of officers’ conduct,

Article I, section 9, “protects against unlawful seizures by state actors, not only

law enforcement officers.” State v. Killion, 229 Or App 347, 353 n 5, 211 P3d 367,

rev den, 347 Or 349 (2009). Thus, in some circumstances, action by a government

official may be sufficiently coercive to constitute a seizure even though that offi-

cial is not a law enforcement officer. In this case, however, defendant’s argument

that the officers’ “proof of fare” command constituted a stop depends on their

status and presence as law enforcement officers.

800 State v. Almahmood

check announcement and then checked for proof of fare,

they were acting pursuant to their ‘duties as a TriMet offi-

cer’ to ‘enforce the laws and rules of TriMet.’ ” And, even if

the officers had been engaged in a criminal investigation,

the state asserts, nothing in the record establishes that the

passengers would have perceived that. In the end, the state

contends that the circumstances did not amount to a sei-

zure, even if something about the officers’ fare check may

have suggested the possibility that officers were investigat-

ing suspected criminal activity. In the alternative, the state

argues that any seizure was justified as an administrative

stop.

TriMet also has submitted a brief in this case,

appearing as amicus curiae. In supporting the state’s argu-

ment that the officers’ fare check was not a seizure, TriMet

emphasizes that, “[a]s long as public transportation has

existed, so has the concomitant ability of fare inspectors to

request proof of payment.” TriMet describes a long history of

train passengers being required to pay fares and to be able

to prove that they have done so. It contends that fare checks

on public transportation are such customary and ordinary

occurrences that they do not implicate Article I, section 9,

even when conducted by a police officer, unless the officer

engages in coercive, threatening, or overbearing conduct.

For similar reasons, TriMet asserts that, even if the officers’

fare check amounted to a seizure, that seizure was reason-

able for purposes of Article I, section 9.

The parties’ arguments are based on fundamental

principles of search-and-seizure law. Article I, section 9,

guarantees the right of the people to be free from “unrea-

sonable” searches and seizures. “For purposes of Article I,

section 9, a seizure occurs when (1) a police officer intention-

ally and significantly interferes with an individual’s liberty

or freedom of movement; or (2) a reasonable person, under

the totality of the circumstances, would believe that his or

her liberty or freedom of movement has been significantly

restricted.” State v. Arreola-Botello, 365 Or 695, 701, 451

P3d 939 (2019). Because “encounters between law enforce-

ment officers and citizens are of an infinite variety,” the

analysis of whether a particular encounter was a seizure for

purposes of Article I, section 9, is a “fact-specific” inquiry

Cite as 308 Or App 795 (2021) 801

that “requires an examination of the totality of the circum-

stances involved.” State v. Backstrand, 354 Or 392, 398-99,

313 P3d 1084 (2013) (internal quotation marks omitted).

When “a police officer conducts a * * * seizure without a war-

rant, the state [has] the burden to establish the lawfulness

of the officer’s conduct,” that is, that some exception to the

warrant requirement applied. State v. Ruiz-Espinosa, 307

Or App 743, 747, 477 P3d 1233 (2020).

In determining whether a particular encounter was

a seizure, we keep in mind that “the constitutional concern

is with police-imposed restraints on citizen liberty, not with

limiting contacts between police and citizens.” Backstrand,

354 Or at 400. Thus, Article I, section 9, does not limit a

police officer’s authority to approach an individual and

request information or cooperation, so long as the officer’s

conduct would not “be reasonably perceived as coercive in

the sense that it would cause [that individual] to reason-

ably believe that the officer is intentionally restraining the

[individual’s] liberty or freedom of movement in a significant

way—that is, in a way that exceeds the bounds of ordinary

social encounters between private citizens.” Id.

As applied to this case, those principles require

us to consider whether a reasonable person in defendant’s

position—a passenger on a TriMet train—would have

believed that police officers were significantly restricting his

liberty when they required him to show proof that he had

paid his fare. In addressing analogous questions in other

cases, we and the Supreme Court have identified certain cir-

cumstances that tend to show that an encounter was a sei-

zure, one of which includes an expectation that involuntary

detention would follow a person’s refusal to cooperate with

officers. For example, an officer’s request for identification—

standing alone, an act that is not a seizure4 —may consti-

tute a seizure if made in circumstances that would suggest

to reasonable people that they would be detained if they

“either would not, or could not, produce identification.” State

v. Zamora-Martinez, 264 Or App 50, 56, 331 P3d 1023 (2014).

Similarly, a conversation between an officer and an individ-

ual that would not otherwise constitute a stop may become

4

State v. Bese, 295 Or App 254, 259, 433 P3d 766 (2018).

802 State v. Almahmood

one if the officer directly and unambiguously communicates

“that he or she is conducting an investigation” that could

result in the individual’s arrest or citation. State v. Jackson,

268 Or App 139, 145, 149, 342 P3d 119 (2014). See also State

v. Stevens, 364 Or 91, 101-02, 430 P3d 1059 (2018) (police

officer stopped an individual when he warned her that she

could be in trouble with her parole officer if she was lying

to the police officer); State v. Paskar, 271 Or App 826, 839,

352 P3d 1279 (2015) (trooper who commanded production of

the defendant’s halibut tag seized the defendant because the

command “conveyed without ambiguity that defendant had

to remain where he was while the troopers investigated him

for a halibut-related crime”).

Conversely, pertinent factors that can weigh against

a determination that an encounter is a seizure include: that

the officer interacted with a person for reasons not specific to

that individual (cf. State v. Holmes, 311 Or 400, 411, 813 P2d

28 (1991) (no seizure where officer stopped drivers to inform

them that, because of an accident, a road was closed and

drivers needed to take alternative route, and “[t]he intru-

sion was tailored in direction and manner to be insignifi-

cantly intrusive”)); that any show of authority by the officer

was undertaken for reasons not directed at the defendant

(e.g., State v. Kuehne, 300 Or App 698, 704-05, 454 P3d 797

(2019), rev den, 366 Or 493 (2020) (officer’s conversation with

the defendant on a public roadway was not transformed into

stop by fact that officer had activated lights on patrol car

on a dark evening, where the car was far from defendant

and on the opposite side of the road)); that an officer merely

inquired about possible criminal activity without making

an accusation (see State v. Nelson, 294 Or App 793, 797-99,

433 P3d 370 (2018) (distinguishing between accusations of

criminal activity and inquiries about suspected criminal

activity)); and that the tone of the officer’s questions was

nonconfrontational and non-threatening (State v. Graves,

278 Or App 126, 136, 373 P3d 1197, rev den, 360 Or 465

(2016); State v. Radtke, 272 Or App 702, 708-09, 358 P3d

1003 (2015)).

In the end, the “was it a seizure?” question often

is framed in terms of whether a reasonable person in the

Cite as 308 Or App 795 (2021) 803

defendant’s position would have felt free to leave or to other-

wise terminate the encounter with officers. E.g., Backstrand,

354 Or at 401 (a “show of authority” that constitutes a stop

happens when an officer conveys, “[e]xplicitly or implicitly,”

that a person with whom the officer is dealing “is not free

to terminate the encounter or otherwise go about his or her

ordinary affairs”); State v. Bese, 295 Or App 254, 258-59,

433 P3d 766 (2018) (“[F]or a show of authority to be a sei-

zure, an officer must explicitly or implicitly convey that the

individual is not free to terminate the encounter.”); State v.

Sherman, 274 Or App 764, 772, 362 P3d 720 (2015) (seizure

occurred where officer’s show of authority would lead a rea-

sonable person to believe that he “was not free to leave”).

The overall context of an encounter “may convey to a citizen

that she is not free to leave, even if the content or manner of

the officer’s questions alone does not.” State v. Brown, 293 Or

App 772, 779, 427 P3d 221 (2018).

Considering the totality of circumstances in this

case, we conclude that a reasonable passenger in defendant’s

position would have believed that police officers were signifi-

cantly restricting his liberty when they required him to show

proof that he had paid his fare. True, the record contains no

evidence that the officers expressly threatened to detain or

arrest any passengers who did not comply. Nor did the offi-

cers single out defendant or take action suggesting that he,

in particular, was the target of an investigation. And the

officers may well have had motivations in addition to enforc-

ing the criminal law when they ordered passengers to show

proof of payment. Moreover, we agree with TriMet that it

is a common experience—not something “that exceeds the

bounds of ordinary social encounters between private citi-

zens,” Backstrand, 354 Or at 400—for an organization that

has sold services to an individual to require that individual

to show proof of purchase before (or while) taking advantage

of those services.

Nonetheless, the combination of two facts (consid-

ered in conjunction with the totality of the circumstances)

leads us to conclude that reasonable TriMet passengers

would have concluded that officers conducting the fare check

were significantly interfering with passengers’ liberty.

804 State v. Almahmood

First, the officers required each passenger to show proof of

fare payment, that is, proof that the passenger was lawfully

riding the train—as defendant puts it, the requirement was

that he establish that he had not committed a crime (such

as theft of services). Second, the individuals issuing that

non-negotiable command were law enforcement officers,

that is, people with obvious authority to arrest individu-

als who commit crimes. Passengers who are told that they

must prove to a law enforcement officer that they are law-

fully riding a train would not expect that they could refuse,

and then perhaps simply leave the train at the next stop

without being required to submit to the officer’s authority.

Rather, reasonable people would believe that they had no

choice but to show proof of payment to the officer and—

because it was a law-enforcement officer imposing that

requirement—that they could be subject to detention, cita-

tion, or arrest if unable or unwilling to produce valid proof of

payment.

For that reason, this case is not analogous to

Backstrand, in which the Supreme Court held that a police

officer did not seize a youthful-looking defendant, who was

inside an “adult” store, when the officer asked the defendant

how old he was, requested his identification, and verified the

validity of his driver’s license. 354 Or at 394, 413-14. Two

factors were key to that holding. First, the court held that

the officer’s conduct was not beyond what is “accepted in

ordinary social intercourse,” because “a reasonable [youth-

ful-looking] person engaged in an age-restricted activity

would expect to be questioned about his or her age.” Id. at

415. Second, the court observed that a reasonable person in

that situation would not perceive a significant restraint on

his or her liberty because, “at most, a person so questioned

might reasonably expect to be told to leave if he or she either

would not or could not produce valid identification sufficient

to verify that he or she was not a minor.” Id. at 414-15. That

consequence—simply being told to leave a place where a

person had no legal right to be—“would not be coercive for

purposes of Article I, section 9.” Id. at 415. Here, although

the officer’s conduct in requesting proof of fare payment falls

within the bounds of what is accepted in analogous busi-

ness circumstances, the reasonably expected consequence

Cite as 308 Or App 795 (2021) 805

of failure to comply is markedly different—potential deten-

tion, citation, or arrest, as opposed to simply being directed

to leave a store.

This is a close case. We agree with the state and

with TriMet that people who must pay a fare to ride public

transportation should not be surprised to be asked to show

proof of that payment. And—absent something more—it

may well be that a provider of public-transportation services

does not significantly interfere with individual passengers’

liberty merely by requiring them to show proof of payment

for that service. After all, a routine command that train

passengers show proofs of fare does not target any specific

individual, it does not itself detain passengers or otherwise

interfere with their movements, it is not associated with

investigation of other criminal activity, and it is not outside

of common experience. But the question before us is whether

a reasonable passenger would feel free to refuse a police offi-

cer’s command to show proof of payment, without fear of

involuntary detention or adverse legal consequence. Given

the totality of the circumstances in this case, we conclude

that a reasonable passenger would not feel free to do so. We

therefore conclude that officers seized defendant when they

ordered him to show proof that he had paid his fare to ride

the train.

Determining that a police officer seized an individ-

ual ordinarily is only the first step of an Article I, section 9,

analysis; the question remains whether the state has estab-

lished that the seizure was reasonable, i.e., justified for con-

stitutional purposes. See, e.g., State v. Barber, 279 Or App

84, 89, 379 P3d 651 (2016) (“It is the state’s burden to prove

that an exception to the warrant requirement justified a

warrantless search or seizure.”). In this case, however, the

state understandably has not argued that the seizure was

justified by either reasonable suspicion or probable cause of

criminal activity, given that all passengers were required

to show proof of fare payment, not just defendant. Nor has

the state argued that the stop otherwise was “reasonable”

for purposes of Article I, section 9, or that it fell within

some other recognized exception to the warrant require-

ment (except to the extent it argues that any seizure was

806 State v. Almahmood

a permissible “administrative stop,” an argument that we

briefly address below).

Amicus TriMet has staked out that position, essen-

tially contending that the ordinariness of a “proof of fare”

requirement means that the officers’ fare-checking conduct

in this case was reasonable for purposes of Article I, section 9,

even if it constituted a seizure that was not justified by rea-

sonable suspicion or probable cause. Indeed, the Supreme

Court has recognized that, in certain specific contexts, some

types of searches or seizures may be deemed reasonable

even though they do not fit neatly into the long-established

exceptions to the warrant requirement. E.g., State ex rel Juv.

Dept. v. M. A. D., 348 Or 381, 389-91, 395, 233 P3d 437 (2010)

(no Article I, section 9, violation where a school employee

conducted a warrantless search by reaching into a student’s

pocket and removing contraband based on suspicion not ris-

ing to probable cause; concluding “that the school context

is sufficiently different from the setting in which ordinary

police-citizen interactions occur to justify an exception to the

warrant requirement in certain circumstances”). However,

the state has not made such an argument in this case (and,

indeed, TriMet does not develop the argument beyond stat-

ing it), so we do not further address the possibility that—in

this specific fare-check context—the seizure might be per-

missible under Article I, section 9, even though not justified

by reasonable suspicion or probable cause of criminal activ-

ity. See State v. Bray, 363 Or 226, 245 n 15, 422 P3d 250

(2018) (declining to address arguments made by amici that

the state had not made on review).

We also reject the state’s contention that we can

affirm the trial court’s ruling on the alternative ground

that any seizure was a valid administrative stop. A detailed

discussion of that point would not benefit the bench, bar, or

public. It is sufficient to note here that the state—the party

with the burden to establish the constitutionality of a war-

rantless seizure—did not make a record in the trial court

sufficient to establish all the requirements of an adminis-

trative stop, viz., that “it is conducted for a purpose other

than law enforcement, pursuant to a policy that is autho-

rized by a politically accountable lawmaking body, [and]

Cite as 308 Or App 795 (2021) 807

the policy eliminates the discretion of those responsible for

conducting the search.” State v. B. A. H., 245 Or App 203,

206, 263 P3d 1046 (2011) (citations omitted). We express no

opinion on whether, in another case, the state might be able

to prove that a fare check conducted by police officers meets

those requirements.

In sum, police officers seized defendant when they

required that he produce proof that he had paid his train

fare. The state has not established, in this case, that the

seizure was “reasonable” for purposes of Article I, section 9.

The trial court therefore erred when it denied defendant’s

suppression motion. Having reviewed the entire record, we

conclude that the trial court’s error in denying the suppres-

sion motion was not harmless. Accordingly, we reverse and

remand for further proceedings.

Reversed and remanded.