State v. Backstrand

392 November 21, 2013 No. 55

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

STEVEN NICHOLAS BACKSTRAND,

Petitioner on Review.

STATE OF OREGON

Petitioner on Review,

v.

STEVEN NICHOLAS BACKSTRAND,

Respondent on Review.

(CC C071116CR; CA A136163;

SC S058019 (Control), S058318)

En Banc

On review from Court of Appeals.*

Argued and submitted June 8, 2011; resubmitted January 7,

2013.

Anna Marie Joyce, Assistant Attorney General, Salem,

argued the cause for petitioner on review State of Oregon.

On the brief were John R. Kroger Attorney General; Mary

H. Williams, Solicitor General; and Jamie K. Contreras,

Assistant Attorney General.

Neil F. Byl, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause for respondent

on review Steven Nicholas Backstrand. With him on the

brief was Peter Gartlan, Chief Defender.

LINDER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

* Appeal from Washington County Circuit Court, Donald R. Letourneau,

Judge. 231 Or App 621, 220 P3d 748 (2009).

Cite as 354 Or 392 (2013) 393

Walters, J., concurred in the judgment and filed an opin-

ion in which Baldwin, J., joined.

Brewer, J., concurred in the judgment and filed an

opinion.

Defendant moved to suppress evidence of his identity and the status of his

driving privileges obtained as a result of an encounter with a deputy in an adult-

only store. The trial court denied the motion, and defendant was found guilty of

driving while revoked after a bench trial. On appeal, defendant argued that he

was unlawfully seized either when the deputy requested, obtained, or verified

defendant’s identification. The Court of Appeals reversed. Held: The deputy did

not seize defendant under Article I, section 9, of the Oregon Constitution, either

by requesting, obtaining, or verifying defendant’s identification. Such actions do

not, in and of themselves, amount to a show of authority of the kind required

for a seizure. Nor did the actions, either in combination or considered with any

other aspect of the encounter, have the effect of significantly interfering with

defendant’s liberty.

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

court is affirmed.

394 State v. Backstrand

LINDER, J.

In two recent cases, we have held that officers who

had lawfully seized individuals for purposes of investiga-

tion also could, consistently with Article I, section 9, of the

Oregon Constitution, request and verify the individuals’

identifications. In particular, in State v. Fair, 353 Or 588,

609, 302 P3d 417 (2013), we held that an officer may tempo-

rarily detain a person whom the officer reasonably suspects

of being a material witness to or victim of a recent or ongo-

ing crime. We further held that, under the circumstances

of that case, the officer constitutionally could request the

witness’s identification and check for outstanding warrants

against her, in an attempt to verify the witness’s identity

and to obtain information otherwise relevant to the officer’s

investigation. Id. at 614. After deciding Fair, we decided

State v. Watson, 353 Or 768, 305 P3d 94 (2013). In Watson,

we held that an officer, in the course of a lawful stop for a

traffic offense, may request the driver’s identification and

check the status of his or her driving privileges. Id. at 782.

This case presents yet a third variation on the issues

that arise when police seek identification from persons with

whom they deal in the course of their work: Does an offi-

cer’s request for and verification of a person’s identification,

in and of itself, convert an encounter that is not a seizure

for constitutional purposes into one that is? As we explain,

we hold that the answer is no. Consequently, we reverse the

decision of the Court of Appeals and affirm the judgment of

the trial court.

I.  FACTS AND PROCEDURAL HISTORY

Deputy Gerba was monitoring a “triple-X” store

that sells adult sexual materials (toys, videos, clothing, etc).

The store had been robbed several times in the recent past,

and law enforcement had made frequent security checks on

it as a result. On the particular night involved in this case,

Gerba was “sitting on” the store, meaning that he was mon-

itoring it from outside and across the street, as well as by

occasionally going inside.

At about 1:00 a.m., Gerba was inside the store at

the same time that defendant and his girlfriend were inside

Cite as 354 Or 392 (2013) 395

shopping. Gerba thought that defendant looked “pretty

young” and believed he might be under the posted 18-year

minimum age to be in the store. Gerba knew that, if they

were minors, as he suspected, the store could “get in trouble”

because of the “pretty explicit stuff” that was readily visi-

ble to anyone inside.1 Gerba therefore approached the two

and asked their ages. Defendant answered that he was 22.

Gerba asked both defendant and his girlfriend if they had

any identification, and they gave him their driver licenses.

Gerba called dispatch to verify the validity of the licenses.2

After having the licenses for a total of 10 to 15 seconds,

Gerba returned them to defendant and his girlfriend and

wished them a good day.3 Gerba then left the store to con-

tinue to monitor it from outside, while defendant and his

girlfriend continued to shop inside.

Gerba had not asked dispatch to check on anything

other than the validity of the licenses, such as outstanding

warrants. Even so, dispatch called Gerba back to advise him

that defendant’s license was suspended and defendant was

on probation in another county. That call came about a min-

ute after Gerba returned the licenses, as Gerba was leaving

the store. Gerba continued across the street, where he main-

tained his security watch on the store. After about five min-

utes, defendant and his girlfriend walked out of the store,

got in their car, and left, with defendant driving. Based

on his belief that defendant was driving with a suspended

license, Gerba pursued them, initiated a traffic stop, and

arrested defendant. Defendant was later tried for driving

1

It is a misdemeanor offense for the owner, operator, or manager of a busi-

ness to permit minors, if not accompanied by a parent or lawful guardian, to

enter or remain where obscene materials are displayed. ORS 167.080.

2

Gerba testified that, although he could have determined both defendant’s

and the girlfriend’s age from the face of the licenses, he ran the licenses through

dispatch to make sure that they were not “fake.” He explained, “[w]hen somebody

has a fake ID, if we run it, it comes back unable to locate.”

3

Defendant’s girlfriend testified at the suppression hearing, but defendant

did not. According to her, Gerba asked for their IDs, and they gave them to him.

After Gerba called to verify them, he handed them back, explaining to the two

that they “looked awful young.” He then said, “thank you.” The only significant

difference between Gerba’s and the girlfriend’s testimony was that the girlfriend

described Gerba as holding the licenses for “several minutes” before returning

them. The trial court, however, expressly found the historical facts to be as Gerba

had related them and made the specific factual finding that Gerba had possessed

the licenses for only 10 to 15 seconds.

396 State v. Backstrand

while revoked (his license actually had been revoked, rather

than suspended).

Before trial, defendant moved to suppress all evi-

dence from his encounter with Gerba in the store (i.e., his

identity and the status of his driving privileges), arguing

that Gerba had unlawfully “stopped” defendant either when

he requested defendant’s identification or, in the alternative,

when he called dispatch to verify defendant’s identification.

The state responded that the encounter between Gerba and

defendant had not amounted to a seizure or, if it had, Gerba’s

actions were supported by his reasonable suspicion that defen-

dant was not old enough to be inside the age-restricted store.

The trial court denied defendant’s motion, conclud-

ing that Gerba had not seized defendant. The trial court

reasoned that the time involved—10 to 15 seconds—was

de minimis and Gerba had not investigated defendant for any

possible wrongdoing on his part, but rather, had attempted

to determine if he was a minor as a protective measure, in

which case he should not have been in the adult-only store.4

The trial court concluded that, in that situation, a reason-

able person in defendant’s position would not feel signifi-

cantly restrained by the officer’s request for, and verification

of, defendant’s identification. After a bench trial, the trial

court found defendant guilty of driving while revoked.

4

Justice Walters’s concurring opinion characterizes Gerba’s interaction with

defendant as conduct that “would cause a reasonable person in defendant’s position

to believe that he was the subject of a criminal investigation and therefore that

he must stop, respond, and remain.” See, e.g., 354 Or at 418, 419-20 (Walters, J.,

concurring in the judgment) (officer’s investigation of validity of defendant’s

license would reasonably be perceived as investigation of one or more identity-

related crimes). In our view, as our analysis will reveal, the fact that an officer

asks a citizen for cooperation in the course of conducting a criminal investigation

is not a talisman in the analysis, as it is for Justice Walters. For that reason, we

decline to debate whether a person in defendant’s position would have believed

he was the subject of a “criminal investigation.” We note only that the proposition

seems especially doubtful in this setting. Three statutes that Justice Walters

cites as “crimes” that, objectively, defendant might have thought the officer to be

investigating are simply inapplicable in this circumstance. See ORS 162.247(1)(a)

(crime to prevent officer from performing lawful duties); ORS 162.385 (crime to

give false information to officer when being cited for crime); ORS 807.620 (crime

to give false information to officer enforcing motor vehicle laws). And it seems

like a stretch to say that a reasonable person who had not attempted to buy any-

thing in the store or produced identification to that end would have believed he

was being investigated for a violation of ORS 165.805 (crime for minor to misrep-

resent age to secure a benefit by law denied to minors).

Cite as 354 Or 392 (2013) 397

On appeal, the Court of Appeals concluded that,

from an objective standpoint, defendant had been seized.

State v. Backstrand, 231 Or App 621, 632, 220 P3d 748

(2009). The court was divided on its rationale, however, par-

ticularly as to the point at which the seizure had objectively

occurred. The lead opinion concluded that, when Gerba

called dispatch, a reasonable person in defendant’s position

would have believed that he was not free to leave while the

call was being made. Id. at 626. The lead opinion remanded

to the trial court to determine whether defendant also sub-

jectively felt that he was not free to leave at that point. Id.

at 632.5 The lead opinion concluded that, if the trial court

were to find that defendant subjectively felt restrained, then

Gerba had unlawfully seized defendant.6 Id. at 625-26. The

lead opinion further concluded that if, on remand, the trial

court determined that defendant subjectively felt restrained,

the evidence of the status of defendant’s driving privileges

should be suppressed. Id. at 632.

A concurring opinion took a different view on the

“timing of the operative ‘stop.’  Id. at 633 (Haselton, P. J.,

”

concurring). According to the concurrence, Gerba seized

defendant “when, in response to Gerba’s inquiries, defen-

dant produced, and Gerba took, defendant’s driver’s license.”

Id. Under that view, the concurrence agreed that suppres-

sion was required if defendant subjectively felt restrained

once he handed his license to Gerba. Id. at 642. Finally,

5

After the Court of Appeals issued its decision, this court decided State v.

Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010), in which we revised the test for

a seizure under Article I, section 9, by abandoning the prong that considered a

defendant’s subjective belief that his liberty or freedom of movement was signifi-

cantly restrained. In light of Ashbaugh, the remand that the Court of Appeals

ordered was unnecessary.

6

The lead opinion reasoned that any seizure of defendant would be unlawful

because the officer had no reasonable suspicion that defendant was engaged in

criminal activity. We recently held in Fair, however, that an officer may, in appro-

priate circumstances, constitutionally stop and detain a person on reasonable

suspicion that the person is a material witness to or victim of a crime. 353 Or

at 609. Here, the trial court expressly found that the officer reasonably believed

that defendant and his girlfriend may have been minors and that he asked for

and verified their ages as a protective measure to determine if they were in fact

minors in an adult-only store. We need not decide whether, under Fair, the officer

reasonably could have seized defendant as a potential witness or victim under the

circumstances presented in this case because we conclude that defendant was not

seized. For present purposes, it suffices to note that the Court of Appeals’ ratio-

nale for concluding that the seizure would have been unlawful was too narrow.

398 State v. Backstrand

according to a dissenting opinion, the lead opinion was cor-

rect that Gerba had seized defendant when Gerba made the

call to dispatch, but suppression was not required. Id. at 643

(Deits, S. J., dissenting).7

Both defendant and the state sought review, and we

originally held the petitions pending our decision in State

v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010). After issuing

our decision in Ashbaugh, we allowed both the petitions. On

review, the state renews its assertion that defendant was

not seized at any point during his encounter with Gerba. In

the state’s view, Gerba’s actions in requesting and verify-

ing defendant’s identification were not a sufficient restraint

on defendant’s liberty or freedom of movement to amount

to the seizure of defendant. Defendant argues the converse,

urging that he was seized either when Gerba requested and

obtained his identification, or when Gerba called dispatch,

because a reasonable person in defendant’s position would

have believed that he was not free to continue shopping

until the officer’s investigation was complete.

II. ANALYSIS

A.  General Principles Governing Seizures

As we explained at the outset, the central question

that this case presents is: Does an officer’s request for and

verification of a person’s identification, in and of itself, con-

vert an encounter that is not a seizure for constitutional pur-

poses into one that is? The general principles that guide our

answer to that question are well-settled and were discussed

at some length in our two most recent “stop” cases, Fair,

353 Or at 593-95, 598-603, and Watson, 353 Or at 773-74,

778-80. For our analysis here, it is helpful to summarize

those principles.

Article I, section 9, guarantees individuals the

right to be “secure in their persons *  * against unreason-

*

able search, or seizure.” As this court has long recognized,

encounters between law enforcement officers and citizens are

of an “infinite variety.” State v. Holmes, 311 Or 400, 406, 813

P2d 28 (1991). Of that infinite variety, “only some implicate

7

Because we decide that defendant was not seized, we do not describe the

Court of Appeals’ various views on whether suppression was required.

Cite as 354 Or 392 (2013) 399

the prohibition in Article I, section 9, against unreasonable

‘seizures.’ ” Ashbaugh, 349 Or at 308. As we have described

in numerous cases:

“Analytically, police-citizen encounters typically fall into

one of three categories that correlate the degree of intru-

siveness on a citizen’s liberty with the degree of justifica-

tion required for the intrusion. At one end of the continuum

are mere encounters for which no justification is required.

At the other end are arrests, which involve protracted cus-

todial restraint and require probable cause. In between

are temporary detentions for investigatory purposes, often

termed ‘stops,’ which generally require reasonable suspi-

cion. Both stops and arrests are seizures for constitutional

purposes, while less restrictive encounters are not.”

Fair, 353 Or at 593-94 (citations and footnote omitted).

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.” Ashbaugh, 349 Or at 309. 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. Id. at 316.8 Because

of the diversity of potential police-citizen encounters, the

inquiry necessarily is fact-specific and requires an exam-

ination of the totality of the circumstances involved. Holmes,

311 Or at 408. As we recently acknowledged in Fair, “in

practice, the line between a ‘mere encounter’ and something

that rises to the level of a ‘seizure’ does not lend itself to

easy demarcation.” 353 Or at 595. Rather, as this court rec-

ognized in Holmes, the standard is necessarily vague “when

8

In clarifying the test in Ashbaugh, we described it as having two prongs,

either of which can result in a constitutionally significant seizure. 349 Or at 304.

One prong asks whether an officer has intentionally and significantly restricted

the individual’s liberty or freedom of movement; the other asks if a reasonable

person would believe that the officer has so restricted him or her. Id. at 309. The

state in this case urges us to reconsider that test and eliminate the first prong,

reasoning that it is subsumed in the second and adds nothing of independent

value to the analysis. As the parties agree, however, this case involves only the

second prong of the test—that is, what a reasonable person would believe based

on the officer’s conduct. We decline the state’s invitation to revisit the value of the

first prong of the test in a case that does not adequately implicate it.

400 State v. Backstrand

unadorned by judicial interpretation based upon specific fact

situations” and does not provide “a ready answer for every

conceivable” police-citizen encounter that can arise. 311 Or

at 410. As a result, “In many cases it is clear that a person

has been ‘seized.’ But there are many instances in which it

is less obvious whether a police-citizen encounter is a ‘sei-

zure.’ ” Id. at 407.

Although close cases can—and frequently do—

arise, beginning with Holmes, this court has remained

steadfast in recognizing that the constitutional concern is

with police-imposed restraints on citizen liberty, not with

limiting contacts between police and citizens. In an oft-cited

and oft-quoted passage, Holmes stressed that “law enforce-

ment 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.” 311

Or at 410; see also State v. Gerrish, 311 Or 506, 513, 815 P2d

1244 (1991) (flagging down driver and directing him to stop

not a significant interference with driver’s liberty where

those are only means available to get driver’s attention long

enough to request information). The fact that the citizen is

discomforted by an officer’s approach and request for assis-

tance or information—either because the officer is a known

police officer, or because the encounter otherwise involves

“inconvenience or annoyance”—does not make the contact

a seizure. Holmes, 311 Or at 410. Rather, a seizure exists

only if the officer’s conduct would be reasonably perceived as

coercive in the sense that it would cause the citizen to rea-

sonably believe that the officer is intentionally restraining

the citizen’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. at 409-10.9

9

Justice Walters, in her concurrence, relegates her discussion of the ana-

lytical construct adopted in Holmes to a footnote and essentially treats Holmes

as superfluous to the analysis. 354 Or at 424 n 3 (Walters, J., concurring in the

judgment). Justice Brewer, in his separate concurrence, expresses his view that

the Holmes construct of “mere conversation” is a fiction and less than helpful to

the analysis. 354 Or at 428, 431-32 (Brewer, J., concurring in the judgment of the

court). As this court observed most recently in Ashbaugh, our efforts “to explain

what the constitutional term ‘seizure’ embraces” have not been entirely success-

ful or satisfying. 349 Or at 310. We could make the same observation about the

Cite as 354 Or 392 (2013) 401

Thus, a “show of authority” as used in this con-

text is shorthand for a more precise concept. The fact that

a law enforcement officer conveys his or her official status

as such—as officers do by, for example, wearing uniforms,

displaying their badges, driving in marked patrol cars, and

verbally identifying themselves as police officers—is not a

“show of authority” that gives rise to a seizure in the con-

stitutional sense. What is required is a reasonable percep-

tion that an officer is exercising his or her official authority

to restrain. 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

general fabric of constitutional seizure law from which Holmes borrowed the

analysis. See Holmes, 311 Or at 407 (citing State v. Warner, 284 Or 147, 161,

585 P2d 681 (1978), which in turn embraced the analysis that had developed

under the Fourth Amendment); see generally Wayne R. LaFave, 4 Search and

Seizure § 9.1-9.4, 352-645 (5th ed 2012) (exhaustive discussion of legal develop-

ments post-Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), by which

arrests and temporary detentions are subject to constitutional protection against

unreasonable seizures, but nonforcible or noncoercive encounters are not).

Our adherence to Holmes in this case does not mean that our work in refin-

ing what constitutes a “seizure” for purposes of Article I, section 9, is done. But

Holmes has been a settled part of our Article I, section 9, jurisprudence for more

than two decades, and we have reembraced it as recently as Watson, 353 Or at

774, Fair, 353 Or at 593-94, and Ashbaugh, 349 Or at 308-09, albeit with mod-

est refinement in Ashbaugh. The parties’ arguments throughout—from the trial

court proceedings through briefing and argument in this court—have been based

on acceptance of the essential construct that Holmes announced. In a proper

case, and with considered arguments by the parties before us, we can continue to

examine the scope of the term “seizure” for purposes of Article I, section 9, and

the law in that regard appropriately should continue to evolve. Justice Brewer

is not alone in his dissatisfaction with the prevailing analysis. 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, 439 (1988)

(it is generally accepted that, in fact, citizens almost never feel free to end an

encounter initiated by a police officer and walk away; literal application of a

“free-to-leave” test would result in virtually all police-citizen encounters being

seizures); see also Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View,

74 Miss L J 423, 458 n 177 (2004) (most citizens do not feel free to terminate

an encounter with police when approached in a public place, and such contacts

are “regrettably” characterized as “mere encounters” (quoting Robert J. Burnett,

Random Police-Citizen Encounters: When is a Seizure a Seizure?, 33 Duq L Rev

283, 287 (1995)). But a change to the constitutional standard must be made con-

sistently with our criteria for altering settled precedent. See generally Farmers

Ins Co v. Mowry, 350 Or 686, 693-94, 261 P3d 1 (2011) (discussing application of

stare decisis in cases involving constitutional provisions). As important, such a

change must be animated by and tailored to policies embodied in the terms of

Article I, section 9, and not our own normative values of how police and citizens

do or should interact. Unless and until those considered arguments are before us,

we properly adhere to Holmes.

402 State v. Backstrand

encounter or otherwise go about his or her ordinary affairs.

Necessarily, then, the fact that an individual—for reasons

personal to that individual—feels obliged to cooperate with

the officer simply because of the officer’s status is not the

form or source of coercion that is of constitutional concern.

As Holmes held, 311 Or at 410, and as other authorities have

observed of the parallel federal standard for what consti-

tutes a seizure, police need not articulate any particular

degree of suspicion to “to seek cooperation, even where this

may involve inconvenience or embarrassment for the citizen,

and even though many citizens will defer to this authority

of the police because they believe—in some vague way—that

they should.” American Law Institute, A Model Code of Pre-

Arraignment Procedure § 110.1, 258 (1975) (Model Code).

Professor LaFave agrees, acknowledging that,

“if ‘the moral and instinctive pressures to cooperate are in

general sound and may be relied on by the police,’ then a

street encounter does not amount to a *  * seizure merely

*

because of those pressures—that is, merely because the

other party to the encounter is known to be a policeman.”

Wayne R. LaFave, 4 Search and Seizure § 9.4(a), 581 (5th

ed 2012) (quoting Model Code § 110.1 at 258 (footnote omit-

ted)).10 Rather, “the confrontation is a seizure only if the offi-

cer adds to those inherent pressures by engaging in conduct

significantly beyond that accepted in social intercourse.” Id.

at 581-82 (emphasis added); see generally Holmes, 311 Or

at 410 (“encounter is a ‘seizure’ of a person only if the offi-

cer engages in conduct significantly beyond that accepted

in ordinary social intercourse”). Again, what is required is

a show of authority by which, through words or action, the

officer’s conduct reasonably conveys that the officer is exer-

cising his or her authority to significantly restrain the citi-

zen’s liberty or freedom of movement.11

10

See also United States v. Tavolacci, 895 F2d 1423, 1424 (DC Cir 1990) (fed-

eral seizure test “assumes that the citizen is aware of police duties to keep the

peace and prevent crime, and that that awareness, coupled with feelings of civic

duty, moral obligation, or simply proper etiquette, will often lead a reasonable

person to cooperate” (internal quotations omitted)).

11

The federal test under the Fourth Amendment is often described as

whether a reasonable person would feel or believe himself to be “free to leave.”

See, e.g., United States v. Mendenhall, 446 US 544, 554, 100 S Ct 1870, 64 L Ed 2d

497 (1980) (seizure within meaning of Fourth Amendment occurs “only if, in view

of all of the circumstances * * *, a reasonable person would have believed that he

Cite as 354 Or 392 (2013) 403

B.  Police Requests For Information or Cooperation Generally

Consistently with Holmes’s declaration that officers

remain free to approach citizens, request or impart infor-

mation, and seek assistance, this court has cautioned that

“verbal inquiries [by officers] are not *  * seizures.” State

*

v. Rodgers/Kirkeby, 347 Or 610, 622, 227 P3d 695 (2010).

Rather, something more than just asking a question, request-

ing 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. Ashbaugh, 349 Or at 317; see also State v.

Ehly, 317 Or 66, 76-77, 854 P2d 421 (1993) (mere requests for

cooperation not seizures unless officer, through demeanor,

tone, language, or totality of circumstances, conveyed a

was not free to leave”). But as this court recognized in Holmes, the feel-free-to-

leave formulation does “not state the entire [federal] test for a ‘seizure’ of a person

by a non-forcible ‘show of authority.’ ” 311 Or at 413; see also Gerrish, 311 Or at 517

(whether reasonable person would feel free to leave “is not determinative” of fed-

eral analysis). Rather, as the Supreme Court has clarified, whether a reasonable

person would have believed that he was not free to leave

“states a necessary, but not a sufficient, condition for * * * [a] seizure effected

through a ‘show of authority.’ * * * [T]he test for existence of a ‘show of author-

ity’ is an objective one: not whether the citizen perceived that he was being

ordered to restrict his movement, but whether the officer’s words and actions

would have conveyed that to a reasonable person.”

California v. Hodari D, 499 US 621, 628, 111 S Ct 1547, 113 L Ed 2d 690 (1991)

(last emphasis added). Under that more complete articulation of the federal test,

the analysis of what constitutes a seizure under Article I, section 9, and under

the Fourth Amendment is not meaningfully different. See, e.g., Holmes, 311 Or at

414 (reasons for rejecting defendant’s federal seizure claim “similar” to those for

rejecting claim under Article I, section 9); Gerrish, 311 Or at 517-18 (“As with our

analysis under Article I, section 9, we believe that the minimal intrusion of the

encounter was not a constitutionally material interference with [the] defendant’s

liberty” under the Fourth Amendment.).

We decline to distill the test under Article I, section 9, to a feel-free-to-leave

formulation. That formulation tends to direct the focus to a citizen’s internal

feelings, beliefs, and thoughts, while simultaneously distracting from the correct

focus, which is the officer’s words and actions and what they would convey to a

reasonable person. We instead adhere to the test as we stated it in Holmes and

revised it in Ashbaugh, which requires a show of authority by an officer that

would cause a reasonable person to believe that the officer intentionally and sig-

nificantly has restricted, interfered with, or otherwise deprived the citizen of the

citizen’s liberty or freedom of movement. Ashbaugh, 349 Or at 316.

404 State v. Backstrand

restraint on liberty). Without the something more, however,

“police inquiries in and of themselves require no justifica-

tion and do not necessarily implicate Article I, section 9.”

Rodgers/Kirkeby, 347 Or at 624.

Several of our cases illustrate that principle in prac-

tice. One of the earliest is Ehly, which was decided about two

years after Holmes first articulated the standard for distin-

guishing “mere encounters” from police conduct that results

in a seizure for constitutional purposes. In Ehly, two officers

confronted the defendant in a motel room after he refused

to leave at check out and return the room key to the man-

ager. The officers immediately told the manager to “stand

back” and advised the defendant that he had to leave. When

the defendant picked up two bags and started to leave, the

officers asked him to return the key to the manager. The

defendant replied that the key might be in one of the bags,

but that the bags did not belong to him. One officer then

asked him to find the key. The defendant tried, rummaging

through one of the bags unsuccessfully, at which point the

officer encouraged him to dump the bag’s contents onto the

bed because both of the defendant’s hands were concealed

within the bag as he searched for the key. When the defen-

dant continued to search the bag, the officer, concerned

that a weapon was in the bag, put her hand on her gun and

ordered the defendant to “back up,” which he did; the officer

then grabbed the bag herself and dumped the contents out.

Ehly, 317 Or at 68-72, 79.

This court concluded in Ehly that the defendant

was seized for purposes of Article I, section 9, at the point

that the officer ordered the defendant to back up. Id. at 79.

The officers’ requests before that point, individually and in

combination, to leave, to find the key, and to dump out the

contents of the bag did not, however, result in seizing him.

Rejecting the defendant’s argument that the requests were

“ ‘poorly disguised commands,’ ” the court reasoned that—in

light of the trial court’s factual findings—“nothing about the

officers’ demeanor, their tone of voice, the nature of their

language, or the time, place, or manner of the encounter”

supported a conclusion that a reasonable person would have

believed that his liberty had been significantly restrained

Cite as 354 Or 392 (2013) 405

before the officer directed him to stand back from the bag

that defendant was searching through. Id. at 76, 78.12

Ashbaugh involved a similar conclusion on much

different facts. In Ashbaugh, two officers on bicycles

approached the defendant and her husband while they were

sitting in a public park in the middle of the day. The officers

investigated their identities and checked to see if either of

them was wanted on outstanding warrants. When the offi-

cers learned that the defendant’s husband was subject to a

restraining order that prevented him from having contact

with the defendant, the officers arrested him for violating

that order and took him to a requested patrol car. About five

minutes later, the officers returned to the defendant, who

had not left the park, to tell her that her husband wanted her

to take his belongings with her. On impulse, one of the offi-

cers asked the defendant if she had anything illegal in her

purse. When she said she did not, he asked if he could search

her purse, and she agreed. Ashbaugh, 349 Or at 300-02.

The state conceded at a pre-trial proceeding that the initial

contact with the defendant and her husband was an unlaw-

ful stop. Id. at 302-03 n 2.

Given the state’s concession, the seizure question

before this court was limited to whether the officers had

seized the defendant when they recontacted her, asked her

about the contents of her purse, and asked if she would per-

mit them to search her purse. Id. at 306, 308. In concluding

that the defendant was not seized at that point, this court

acknowledged that “it is possible to restrict a person’s liberty

and freedom of movement by purely verbal means.” Id. at

317. But we reasoned that nothing in the content of the ques-

tions asked, or in the officers’ manner or actions, involved

a “show of authority” that the defendant could reasonably

construe as a threat or an exercise of authority to coercively

restrain. The court observed that, “while it may have been

true that [the] defendant had been unlawfully detained by

12

As Ehly emphasized, the legality of a particular search depends signifi-

cantly on the facts of a particular case, and what “actually happened is a question

of fact for the trial court.” 317 Or at 74-75. A trial court’s findings of historical fact

are binding on an appellate court and, if the trial court does not make express

findings on all pertinent issues, the appellate court will view the record in a light

most favorable to the trial court’s ruling and presume that the facts were decided

in a manner consistent with the trial court’s ultimate conclusion. Id. at 75.

406 State v. Backstrand

police some minutes before and had watched a clear show

of authority directed at her husband, those circumstances

had ended.” Id. Consequently, this court concluded that the

officer’s questions to the defendant did not “intentionally

and significantly” restrict or interfere with her liberty, and

a reasonable person in the defendant’s circumstances would

not believe that they had. Id.

In other cases, the circumstances accompanying

verbal questions or requests have led this court to conclude

that the defendant was seized, not by an officer’s questions

per se, but given the context in which they were asked

and the totality of the circumstances otherwise involved.

Rodgers/Kirkeby, in particular, emphasized the importance

of context. Rodgers/Kirkeby involved two cases consolidated

for purposes of the court’s opinion. Both involved lawful

stops of vehicles for traffic offenses. In Rodgers, officers com-

pleted their investigation of the offense, but did not issue

a citation. Then, although he lacked reasonable suspicion,

one of the officers proceeded to question the defendant about

possible drug activity and to ask for consent to search with-

out advising the defendant that he was free to leave. 347 Or

at 613-15, 626. In Kirkeby, after obtaining all information

relevant to the reason for the stop, the officer asked for con-

sent to conduct a patdown, after which he asked for consent

to examine items in the defendant’s pockets. Id. at 615-16.

This court determined that, in each instance, the

questions and request for consent resulted in an unlawful

seizure. Id. at 627-28. In explaining that conclusion, the

court first acknowledged that, in general, “verbal inqui-

ries are not searches and seizures,” even when made in the

course of, and unrelated to, a traffic stop. Id. at 622. The

problem in Rodgers/Kirkeby was that the unrelated inqui-

ries at issue were not in the due course of the traffic stop, but

came afterwards—that is, they came at a point when the

officers no longer had authority to detain the defendants. Id.

at 623. As the court explained, “in contrast to a person on

the street” or otherwise in public who has not been stopped

for a traffic offense, a person detained for a traffic offense

has a legal obligation to stop at the officer’s direction and

remain; the person may not unilaterally end the encounter

Cite as 354 Or 392 (2013) 407

and leave whenever he or she chooses. Id. at 622-23. From

the standpoint of a reasonable person in the defendants’

position, when the officers in both cases, after completing

the investigation of the traffic offenses, asked unrelated

questions and asked for consent to search, but did not tell

the defendants that they were free to leave, those verbal

inquiries communicated a continuation of the traffic stop,

even though the officers no longer had authority to detain.

Id. at 627-28. In that distinctive context, the verbal inqui-

ries alone continued the seizures, and continuation of the

seizures was unlawful.

Finally, State v. Jacobus, 318 Or 234, 864 P2d

861 (1993), illustrates more generally how the manner of

questioning and attendant circumstances may affect the

analysis. There, an officer had been advised that the occu-

pants of a particular Datsun car parked near a convenience

store had been overheard by a customer saying that “there

was only one clerk in the store.” When the officer drove to

the store, he saw the Datsun parked in an unlighted area

nearby and drove past it. As he went past, the occupants

frantically began to stuff objects under the seats. The officer

made a U-turn, pulled in behind the Datsun, and turned on

his patrol car’s overhead lights. Two occupants got out of the

car and walked toward the store. The officer approached the

Datsun on foot. The defendant, who remained in the Datsun,

continued to stuff something under coats and other items

on the floorboard. When the officer asked the defendant

to step out, he stayed in the Datsun. The officer repeated

his request at least two more times before the defendant

complied. Id. at 236. Characterizing the officer’s repeated

requests as “order[ing]” the defendant out of the car, the

court held, without extended analysis, that the defendant’s

liberty was temporarily restrained because the defendant,

at least at the moment of the order, was not free to “remain

in the Datsun or even *  * to get out of the Datsun and

*

walk away.” Id. at 240-41.13 Implicit in the court’s seizure

13

The court analyzed the circumstances in Jacobus to determine if they con-

stituted a stop for purposes of ORS 131.615(1). Well before that decision, this

court had recognized that statute as codifying both the state and federal consti-

tutional standards for a lawful investigatory stop based on reasonable suspicion

of criminal activity. See State v. Valdez, 277 Or 621, 624-26, 561 P2d 1006 (1977)

(discussing origins of stop statute); see also State v. Kennedy, 290 Or 493, 497,

408 State v. Backstrand

analysis was its conclusion that the surrounding circum-

stances (patrol car parked behind the Datsun with over-

head lights activated), coupled with the persistence of the

officer’s “requests,” rendered those requests the functional

equivalent of a command affirmatively communicating to

the defendant that compliance was not optional.

C.  Police Requests for Identification and Verification of

Identification

Police requests for identification are a subset within

the general category of police requests for information or

cooperation. But asking for and verifying identification is

not unique to police-citizen encounters. Rather, as other

courts have observed, in this day and age, requests for valid

government-issued identification are commonplace in ordi-

nary dealings in society, both between private citizens as

well as in a variety of citizen-government contexts (such as

entering public buildings). See, e.g., Golphin v. State, 945 So

2d 1174, 1189-90 (Fla 2006), cert den, 552 US 810 (2007)

(“[T]he act of identifying oneself through presentation of

valid, government-issued identification [is] a necessary part

of a panoply of human endeavors, from cashing a check to

boarding an airplane.”).14 Police officers, in their official

dealings with citizens, likewise commonly seek to deter-

mine and verify with whom they are dealing for reasons

that range from simply documenting the activities the offi-

cers engage in while on duty to ascertaining information

that may assist in enforcement of the criminal laws. See,

e.g., Fair, 353 Or at 614 (officer checked potential witness

for outstanding warrants as means of verifying identifica-

tion and ascertaining information relevant to investigation

624 P2d 99 (1981) (Oregon stop statutes were intended to codify decisions by

this court interpreting Article I, section 9, and the United States Supreme Court

interpreting the Fourth Amendment), rejected in part on other grounds by State v.

Hall, 339 Or 7, 20, 115 P3d 908 (2005), and State v. Stevens, 311 Or 119, 136-37,

806 P2d 92 (1991). Consequently, in a case involving suspicion of criminal activ-

ity, as Jacobus did, the analysis under Article I, section 9, necessarily would be

the same as under ORS 131.615(1).

14

See also State v. Martin, 2011-0082, p 9 (La 10/25/11); 79 So 3d 951, 957

(individual is “practically immobilized” in modern society without adequate iden-

tification); People v. Jackson, 39 P3d 1174, 1189 (Colo 2002) (“[t]he need for iden-

tification is pervasive in today’s society”), abrogated on other grounds by Brendlin

v. California, 551 US 249, 259, 127 S Ct 2400, 168 L Ed 2d 132 (2007).

Cite as 354 Or 392 (2013) 409

of domestic assault); State v. Ellenbecker, 159 Wis 2d 91, 98,

464 NW2d 427, 430 (1990) (where it is reasonable for officer

to ask for license, running status check on license carries

out “deterrent function of the law”).

Until now, this court has not been asked to decide—

and has not in fact decided—whether an officer effectively

seizes an individual simply by asking for an individual’s

identification. Where the issue is that straightforward—

based on the request alone and nothing more—the circum-

stance comes well within the bounds of a “mere encounter,”

which, as we held in Holmes, police remain free to have with

citizens without implicating Article I, section 9. 311 Or at

410. Asking for identification is exactly the kind of inter-

action that Holmes contemplated—a request for informa-

tion and a citizen’s cooperation. Id. Thus, we agree with the

United States Supreme Court, which has held for purposes

of the Fourth Amendment that an officer’s questions relat-

ing to identity or a request for identification do not result

in a seizure unless the circumstances of the encounter are

“so intimidating as to demonstrate that a reasonable per-

son would have believed he was not free to leave if he had

not responded.” INS v. Delgado, 466 US 210, 216-17, 104

S Ct 1758, 80 L Ed 2d 247 (1984).15 For purposes of Article I,

15

The United States Supreme Court has adhered to that holding. See,

e.g., Hiibel v. Sixth Judicial Dist Court of Nev, 542 US 177, 185, 124 S Ct 2451,

159 L Ed 2d 292 (2004) (“In the ordinary course a police officer is free to ask

a person for identification without implicating the Fourth Amendment.”). Thus,

throughout the country, as a matter of governing federal law, there is no con-

stitutional barrier to an officer requesting identification in what is otherwise a

lawful officer-citizen encounter. The federal circuits have, however, split on the

narrower question of whether and when retention of identification results in a

seizure. One view is that it is a per se seizure whenever an officer retains identi-

fication longer than reasonably necessary to examine it. See, e.g., United States

v. Jordan, 958 F2d 1085, 1086 (DC Cir 1992) (seizure if officer retains identifica-

tion after reasonable opportunity to review it, because it is “difficult to imagine

that any reasonable person would feel free to leave without it” (quoting United

States v. Battista, 876 F2d 201, 205 (DC Cir 1989)). The competing view is that

retention of identification longer than reasonably necessary to review and verify

it is a factor to consider, but is not dispositive in analyzing whether a citizen has

been seized. See, e.g., United States v. Weaver, 282 F3d 302 (4th Cir 2002) (so

holding). In terms of state court interpretations of the parallel provisions of their

own state constitutions, we have found no state court that holds that an officer’s

request for identification, without more, results in a citizen’s seizure. Our review

of both state and federal cases suggests that no court has held or would hold, as

the concurrences would, that a seizure occurred under the circumstances pre-

sented in this case. See 354 Or at 418 (Walters, J., concurring in the judgment)

410 State v. Backstrand

section 9, our conclusion is the same: A mere request for

identification made by an officer in the course of an other-

wise lawful police-citizen encounter does not, in and of itself,

result in a seizure.

We have, however, decided cases in which we con-

cluded, from the totality of circumstances, that police con-

duct that included a request for identification was suffi-

ciently coercive to result in a seizure. The first of those cases

was State v. Warner, 284 Or 147, 585 P2d 681 (1978). There,

officers were investigating a reported armed robbery of a

bar by two men late at night. The officers entered a sec-

ond bar in a small town about 8 miles from the town where

the robbery had occurred after seeing two men pull up to it

and go inside. Without reasonable suspicion to believe that

they were the men who committed the robbery, one officer

stopped them as they began to leave. The officer told the

two men about the robbery, said that he needed to ask them

some questions, and asked them to return inside the bar;

once back inside, the officers asked the men to remove their

wallets from their pockets, take out their identifications,

and place that identification on the table in front of them.

The officer then informed the defendant that he could “be on

[his] way” as soon as the officer was able to “clear this mat-

ter up.” According to the officer, he did not order the defen-

dant to do anything, and the defendant was not obligated

to remain, although the defendant was not told that. Id. at

150-52. The court concluded that the officer’s actions in hav-

ing defendant place his identification on the table, coupled

with his statement that he was investigating a robbery and

that the defendant and his companion would be on their way

as soon as officers could clear up the matter, was, given “all

the circumstances,” a temporary restraint of the defendant’s

liberty. Id. at 165.

(concluding the officer’s conduct in asking for and verifying defendant’s identifi-

cation was a seizure); 354 Or at 432 (Brewer, J., concurring in the judgment of

the court) (same). Nor do the other authorities on which Justice Walters relies

support that result. See, e.g., Aidan Taft Grano, Casual or Coercive? Retention of

Identification in Police-Citizen Encounters, 113 Colum L Rev 1283, 1315-19 (2013)

(under Fourth Amendment, police remain free to request and verify identifica-

tion; better rule among the divided federal circuits, however, is that retention of

identification longer than reasonably necessary is a per se seizure).

Cite as 354 Or 392 (2013) 411

State v. Painter, 296 Or 422, 676 P2d 309 (1984), sim-

ilarly involved more than a mere request for identification.

In that case, a deputy asked the defendant to produce his

identification when he encountered the defendant in an alley

at 3:00 a.m. The defendant turned over an expired Virginia

driver’s license and credit cards. The deputy retained those

items while he frisked the defendant, called in a radio check

of the identification, waited for the results of the radio check,

and inquired further about the make and location of the

defendant’s car, which the defendant explained was broken

down nearby. Id. at 424. This court concluded that the dep-

uty had seized the defendant, given that the “defendant was,

in fact, unable to leave” and thereby was unable to termi-

nate the encounter and avoid the frisk at the point when

the deputy had “retained [the] defendant’s license and credit

cards.” Id. at 425.

A final illustrative case is State v. Hall, 339 Or 7,

115 P3d 908 (2005). In Hall, an officer parked his vehicle

next to the defendant as the defendant was walking along

a street. The officer motioned for the defendant to approach

the officer’s vehicle, and the officer then exited his vehi-

cle as the defendant neared. The officer asked to see the

defendant’s identification. When the defendant handed his

identification to the officer, the officer radioed dispatch and

requested a warrant check. While awaiting the results of

the warrant check, the officer returned the identification

and proceeded to question the defendant about whether he

was carrying any weapons, knives, or illegal drugs. The

defendant responded in the negative. In response, the officer

asked the defendant for consent to search his person, and

the defendant consented. The search revealed evidence of

unlawful drug possession. Id. at 10-11.

This court concluded that the encounter began as a

noncoercive engagement between the officer and the defen-

dant, but evolved into a seizure in the course of the officer’s

investigation. The court explained that the officer’s “initial

actions of stopping his vehicle next to [the] defendant and

then gesturing for [the] defendant to approach him did not

intrude upon [the] defendant’s liberty of movement[.]” Id. at

19. But the court concluded that the nature of the encounter

changed when the officer took the defendant’s identification

412 State v. Backstrand

and conducted a warrant check. The court acknowledged

that the officer promptly returned the defendant’s identifica-

tion, but maintained that, at that point, the defendant was

aware that he was the subject of a pending warrant check

and, because of that fact, it was “difficult to posit” that a

reasonable person would have felt free to leave. Id. The court

further observed that the officer

“did nothing to dispel what would have been an objectively

reasonable belief that defendant was restrained from leav-

ing until [the officer] had received the results of the war-

rant check. Instead, immediately upon returning [the]

defendant’s identification card, [the officer] questioned [the]

defendant about whether [the] defendant was carrying any

weapons, knives, or illegal drugs, and he asked [the] defen-

dant for consent to search [his] person.”

Id.

In combination, Warner, Painter, and Hall confirm,

at least implicitly, our holding today. Police remain free

to approach citizens and to ask for or impart information

and to seek their cooperation. Asking a citizen to identify

himself or herself and to show police a formal piece of iden-

tification is a form of cooperation and involves the kind of

information that, as a general proposition, police are free to

request. But when the content of the questions, the manner

of asking them, or other actions that police take (along with

the circumstances in which they take them) would convey

to a reasonable person that the police are exercising their

authority to coercively detain the citizen, then the encounter

rises to the level of a seizure, the lawfulness of which must

be analyzed as such.

The purely legal issue that remains is whether ver-

ification of identification is a further circumstance that ele-

vates a mere encounter to a seizure. We see no principled

basis for concluding that, when an officer checks the validity

of a proffered identity or piece of identification, such an action

per se conveys to a reasonable person—who is not otherwise

restrained and who has willingly tendered the information

to the officer—that the officer is now exercising his or her

authority to coercively restrain the person’s liberty or free-

dom of movement. To be sure, as we have already discussed,

Cite as 354 Or 392 (2013) 413

a person tendering identification to an officer may not subjec-

tively feel comfortable refusing the officer’s request. Instead,

for any number of personal reasons or instincts, the person

may be unwilling to decline the officer’s request. Those inter-

nalized motivations and feelings, however, are not the test

for whether there is a seizure under Article I, section 9.16

A person who turns over identification to a law enforcement

officer reasonably would expect that the officer will take

steps to verify its validity. For the officer to do so does not

objectively convey an exercise of the officer’s authority to

restrain the person’s liberty or freedom of movement. The

circumstance is akin to when a person gives valid consent to

search. Part and parcel with giving consent is a reasonable

person’s expectation that he or she will likely either need or

want to stand by while the officer performs the search. The

person who waits while a consent search is completed is not

thereby seized for purposes of Article I, section 9. So, too,

with a person who, in a noncoercive setting, gives an officer

his or her identification for the officer’s examination. The

fact that the officer conducts that examination 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.

D.  Analysis of the Circumstances of this Case

With those conclusions in place, we turn to the spe-

cific circumstances of this case to determine whether Gerba,

either by requesting defendant’s identification or by verifying

16

Social science studies confirm what courts and others have long recognized—

that citizens often feel an internal inclination to cooperate with police officers.

354 Or at 420 (Walters, J. concurring in the judgment) (citing studies). They do

not demonstrate that citizens believe, reasonably or otherwise, that officers are

exercising their official authority to restrain them by a request for information or

cooperation and that officers are thereby in fact restraining them. Indeed, some

of the same social science suggests that affirmative advice that a person does not

need to respond or is free to leave is unlikely to counter the internal inclination

that many people feel to cooperate with an officer’s request. See, e.g., David K.

Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure

Standard, 99 J Crim L & Criminology 51, 84-85 (2009) (social science shows

that adding warning requirement would be of questionable value, because people

who know their rights feel same obligation to cooperate as those who do not). Yet

Justice Walters suggests that advice of that kind would preclude a conclusion

that the encounter was a seizure. We are, therefore, unsure of the point of Justice

Walters’s reliance on those studies.

414 State v. Backstrand

its validity, seized defendant for purposes of Article I, sec-

tion 9.17 As we will explain, we conclude that he did not.

As we previewed, defendant first argues that Gerba

seized him by asking defendant his age and asking to see his

identification. In making that argument, defendant focuses

on the context in which Gerba made the request. In partic-

ular, defendant points to the fact that defendant was in an

age-restricted store when Gerba approached him and made

those requests. In that setting, defendant reasons, a reason-

able person in defendant’s position would have believed that

Gerba was investigating him to determine if he should be

in the store, and he therefore was required to remain and

interact with Gerba.

We agree that the age-restricted nature of the store

provided significant context for determining whether any-

thing in the content of Gerba’s questions made what would

otherwise be a “mere encounter” an exercise of police coer-

cion. Asking a person his or her age in such a setting with

no accompanying exercise of authority to restrain, however,

would not cause a reasonable person to believe that the offi-

cer had significantly restricted his or her liberty.18 To the

contrary, at most, a person so questioned might reasonably

17

When Gerba contacted dispatch to verify the validity of defendant’s

license, he did not ask dispatch to check anything else. That verification occurred

swiftly—Gerba returned the licenses within 10 to 15 seconds, defendant and his

girlfriend then continued their shopping, and Gerba left the store to continue his

security watch outside. Although Gerba did not ask dispatch to check anything

else, dispatch did so, and as Gerba was leaving the store dispatch called him to

tell him that defendant’s license was suspended (it was, in fact, revoked) and

that defendant was currently on probation. Because Gerba neither requested that

later-provided information nor did so in defendant’s presence, we do not have the

occasion in this case to decide whether and under what circumstances additional

checks (such as one for outstanding warrants) might convert the encounter into a

seizure.

18

The trial court explicitly found that Gerba made the inquiries that he

did in an effort to determine whether defendant was under the minimum age

required to be in the store. The trial court also found that Gerba’s purpose was

protective—he wanted to make sure that defendant was not exposed to the

explicit materials on display in the store if, as Gerba suspected from defendant’s

physical appearance, defendant was too young to be in the store. Those findings

on the officer’s subjective intent and state of mind do not control the analysis.

They have some relevance, however, insofar as they reflect a state of mind con-

sistent with the officer’s objective actions, his behavior, and the overall context of

the encounter.

Cite as 354 Or 392 (2013) 415

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. That consequence, however, would not

be coercive for purposes of Article I, section 9. As this court

observed in Ehly, where police advised the defendant that

he had to leave his motel room and asked him to return

the key, “it would be anomalous to conclude that a request

of this nature made by officers whose avowed intent was to

get a person to leave” was a seizure of the person. 317 Or at

78. Put simply, even a coercive ejection of a person who has

no lawful right to remain on premises (and here, such an

ejection was at most a prospect, not a present reality) is not

a restriction on the person’s liberty—no liberty to remain

exists in that circumstance.

Equally important, a reasonable person engaged

in an age-restricted activity would expect to be questioned

about his or her age, particularly if the person objectively

appears close to the minimum age or within an age range

where it is customary (as for purchasing alcohol) to request

proof of age. Proof-of-age requests and examinations are

customarily made in those settings, by private proprietors

of businesses (bartenders, clerks of stores where alcohol or

tobacco are sold) as well as by law enforcement personnel.

Asking a person’s age and requesting proof of it is not con-

duct “significantly beyond that accepted in ordinary social

intercourse” in that setting. Holmes, 311 Or at 410. A rea-

sonable person shopping in a store where minors are not

allowed would likely consider those questions appropriate

and expected, even if they caused “inconvenience or annoy-

ance”; a reasonable person would not reasonably view those

questions, however, as conveying a significant restraint on

the person’s liberty or freedom of movement. See id. at 411

(a reasonable motorist encountering a motor vehicle acci-

dent would “expect some delay or interruption in his or her

travel[; a]lthough possibly annoyed or inconvenienced * * *, a

reasonable motorist would appreciate being advised of what

was happening”).

Thus, consistently with the general rule that verbal

inquiries ordinarily are not seizures, there was nothing dis-

tinctive about the content of Gerba’s questions that caused

416 State v. Backstrand

his mere inquiries to amount to a seizure.19 Neither did the

manner of Gerba’s request to see defendant’s identification

amount to a seizure. Defendant points to nothing—and the

record reveals nothing—to suggest that Gerba was over-

bearing, intimidating, or coercive in his demeanor or behav-

ior. Gerba merely asked for, and defendant complied with,

his request for identification. Defendant was not seized as a

result of Gerba’s request.

Defendant nevertheless argues that, even if the

deputy’s questioning did not have the effect of seizing him,

he was seized once Gerba had obtained his identification.

Citing Painter, 296 Or at 425, defendant asserts that he was

seized when Gerba accepted his license because he “was, in

fact, unable to leave.” Painter does not stand for the prop-

osition that an officer seizes a person by simply accepting

and looking at a person’s identification after a noncoercive

request; rather, at a minimum, some exercise of coercive

authority by the officer, such as retention of the identifica-

tion after examination and a continuation of investigatory

activities, is required. See id. (seizure when officer retained

defendant’s identification and credit cards before frisking

him, running radio check, and questioning him because the

“[d]efendant was, in fact, unable to leave”). No similar exer-

cise of coercive authority occurred in this case. Gerba did

not “retain” defendant’s license beyond a reasonable period

for purposes of examining and verifying it, which was dis-

positive in Painter. Rather, Gerba held defendant’s license

for 10-15 seconds before returning it. We are hard-pressed

to see how holding a person’s license for no more than 15 sec-

onds, pursuant to the person’s voluntary production of that

license, could result in a significant restriction of a person’s

liberty on that basis alone. For those reasons, we conclude

that defendant was not seized when Gerba accepted and

inspected defendant’s identification.

19

Justice Walters, in her concurrence, misunderstands the point of our pre-

ceding discussion. The point is not that the test for a seizure depends on whether

the officer’s “show of authority was expected, appropriate, or reasonable.” 354 Or

at 424 (Walters, J., concurring in the judgment). Nor is the point that the analysis

turns on the reasonableness of the restraint, instead of the fact of restraint. Id.

at 422. The point is to respond to defendant’s argument. Thus, contrary to defen-

dant’s argument, the circumstances in which the officer made the request for

defendant’s identification did not convert that verbal request, which ordinarily is

not a seizure, into an action that conveyed, as it must under the legal test that we

adhere to, a significant restraint on the person’s liberty or freedom of movement.

Cite as 354 Or 392 (2013) 417

Alternatively, defendant argues that the nature

of the encounter shifted when Gerba called the identify-

ing information in to dispatch to check the validity of the

license. As we have already concluded, an officer’s verifica-

tion of the validity of a proffered piece of identification is not

conduct that per se would convey to a reasonable person that

the person is being forcibly or authoritatively detained. That

is especially true when, as here, the person has not previ-

ously been subject to any coercive or authoritative restraint.

Here, Gerba simply took an action (a verification call to dis-

patch) that a reasonable person in defendant’s place in such

a circumstance would likely expect to accompany an officer’s

request to see identification. Within a matter of seconds, the

verification was sufficiently complete for Gerba to return

the licenses, wish defendant and his girlfriend a nice day,

and leave them to go about their shopping. Gerba’s action

in calling dispatch to verify the license was not a coercive

restriction on defendant’s liberty. And certainly, it was not

significantly so. For the 10 to 15 seconds it took for Gerba

to make that call, defendant did not go from being a citizen

with full liberty and freedom of movement to one who was

seized for purposes of Article I, section 9.

III. CONCLUSION

In summary, we reaffirm that police requests for

information or cooperation do not implicate Article I, section 9,

as long as the officer does no more than seek the individual’s

cooperation through noncoercive questioning and conduct.

A request for identification, in and of itself, is not a seizure.

Nor is an officer’s act of checking the validity of that identifi-

cation, in and of itself, a seizure. For a request and verifica-

tion of identification to amount to a seizure, something more

is required on an officer’s part. Either through the context,

the content or manner of questioning, or the other circum-

stances of the encounter, the officer must convey to a reason-

able person that the officer is exercising his or her authority

to significantly restrain the citizen’s liberty or freedom of

movement.

Here, defendant was not seized either by Gerba’s

request to see defendant’s identification or by Gerba’s call to

dispatch to check the validity of that identification. No other

418 State v. Backstrand

circumstances, in combination with Gerba’s requests and

verification, would have led a reasonable person in defen-

dant’s position to conclude that the officer was restraining

him. The trial court therefore correctly denied defendant’s

motion to suppress.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

WALTERS, J., concurring in the judgment.

The majority holds that Article I, section 9, does not

apply to the encounter in this case, in which a police officer

approached defendant, asked for and obtained his identifica-

tion, and investigated its validity. State v. Backstrand, 354

Or 392, 417-18, ___ P3d ___ (2013). I agree that the Oregon

Constitution permits such an encounter when it is constitu-

tionally justified, as it was in this case. Thus, I agree with

the result that the majority reaches and concur in the judg-

ment. I do not agree, however, that the Oregon Constitution

does not apply to such an encounter and therefore permits it

even when it is not supported by constitutionally sufficient

justification. I write to explain my reasoning.

In my view, Article I, section 9, applies to the encoun-

ter in this case because the officer’s communication and con-

duct would cause a reasonable person in defendant’s position

to believe that he was the subject of a criminal investiga-

tion and therefore that he must stop, respond, and remain

until the immediate investigation was complete.1 Thus, the

encounter constituted a “seizure” under Article I, section 9.

My analysis does not end there, however. In my view,

Article I, section 9 also permits such seizures when officers

have constitutionally sufficient reasons for imposing such

restraint. When, for instance, an officer has probable cause

to believe that an individual has committed a noncriminal

traffic infraction, the officer is permitted to stop the indi-

vidual and investigate whether he or she in fact committed

the infraction. Such investigation may include reasonably

1

I understand that the trial court found that the officer was not investi-

gating defendant for any wrongdoing, but was investigating whether a business

owner was committing a crime by permitting defendant to enter or remain in the

business and whether defendant was a potential victim of that crime. However,

the officer did not explain the nature of his investigation to defendant.

Cite as 354 Or 392 (2013) 419

related actions, such as asking for and checking identifica-

tion. State v. Watson, 353 Or 768, 781-82, 305 P3d 94 (2013).

When an officer has a reasonable belief that an individual

is a witness to and a victim of recent or ongoing criminal

activity, the officer may temporarily detain the individual

and, if the officer has an objectively reasonable basis to do

so, may ask for and confirm the individual’s identification.

State v. Fair, 353 Or 588, 614-15, 302 P3d 417 (2013). And,

as Justice Brewer opines in his concurrence, an additional

justification for a request for identification may be an offi-

cer’s action taken to fulfill the officer’s caretaking function.

Backstrand, 354 Or at 436 (Brewer, J., concurring).

In this case, I would hold that the police officer’s

conduct was constitutionally justified. Article I, section 9,

permitted the officer to detain defendant for a brief period

under Fair, or, perhaps, pursuant to his community caretak-

ing responsibilities, and, therefore, the officer did not violate

the Oregon Constitution.

The majority’s reasoning is different. The majority

concludes that the encounter in this case was not a seizure.

Consequently, the majority permits officers to initiate simi-

lar encounters without constitutional justification. Article I,

section 9, has not before, and should not now, give officers

that latitude.

In State v. Hall, 339 Or 7, 115 P3d 908 (2005), this

court described the initial encounter between a police offi-

cer and the defendant as nonintrusive, but determined that

when the officer asked for, obtained, and quickly returned

the defendant’s identification, and then radioed for a “war-

rant check,” the nature of the encounter changed. Id. at 19.

The court found it “difficult to posit” that a defendant who

was cognizant that the officer was investigating whether

he was the subject of any outstanding warrants would feel

free to leave. Id. The court concluded that the officer’s inqui-

ries and actions changed the situation from a noncoercive

encounter to a “seizure” under Article I, section 9. Id.

In the present case, police officers similarly asked

defendant for his identification, retained it briefly, and inves-

tigated its validity. Defendant similarly and reasonably

would have believed that he was the subject of a criminal

420 State v. Backstrand

investigation and therefore must remain until the immedi-

ate investigation was complete. It is a crime for a minor to

misrepresent his or her age to secure a benefit which by law

is denied to minors, ORS 165.805. Likewise, it is a crime for

an individual of any age to act in a manner that prevents

or attempts to prevent an officer from performing his or her

lawful duties, ORS 162.247(1)(a), or to give false information

to a police officer when a person is being cited for a crime,

ORS 162.385, or to an officer who is enforcing motor vehicle

laws, ORS 807.620. Although defendant did not commit any

of those crimes, he reasonably would have believed that the

officer’s investigation of the validity of his identification was

a part of an investigation of one or more of those crimes,

and, as in Hall, that he was not free to leave. See Aidan

Taft Grano, Casual or Coercive?: Retention of Identification

in Police-Citizen Encounters, 113 Colum L Rev 1283, 1309

(2013) (“When police retain an individual’s identification,

the act could be conceived either as a physical restraint (sei-

zure of identification) or as a show of authority (seizure by

identification).”) (emphasis in original); Josephine Ross, Can

Social Science Defeat A Legal Fiction? Challenging Unlawful

Stops Under the Fourth Amendment, 18 Wash & Lee J Civil

Rts & Soc Just 315, 336 (2012) (citing to study indicating

that a “majority of respondents would not feel free to leave a

police officer who questioned them”); David K. Kessler, Free

To Leave? An Empirical Look at the Fourth Amendment’s

Seizure Standard, 99 J. Crim L & Criminology 51, 53-54

(2009) (presenting empirical evidence that people do not feel

free to leave when being interrogated by officers); Janice

Nadler, No Need to Shout: Bus Sweeps and the Psychology of

Coercion, 2002 Sup Ct Rev 153, 155 (2002) (“In many situ-

ations where citizens find themselves in an encounter with

the police *  * a reasonable person would not feel free to

*

terminate the encounter.”).2

The majority disagrees. The majority characterizes

the officer’s inquiries and actions as “no more than seek[ing]

2

I do not cite this research to demonstrate that many people feel an inter-

nalized inclination to cooperate with police officers, but to demonstrate that, in

a circumstance in which an officer asks for, obtains, and investigates a person’s

identification, reasonable people would conclude that the officer had restrained

their liberty.

Cite as 354 Or 392 (2013) 421

the individual’s cooperation through noncoercive question-

ing and conduct.” 354 Or at 417. The majority then con-

cludes that “something more” is required to make the offi-

cer’s investigation a seizure. Id. at 417. The majority does

not overrule, clarify, or distinguish Hall, nor does it now

“posit” that an individual who reasonably would believe that

he or she was subject to a criminal investigation would feel

free to leave. Id. at 412. Rather, the majority reasons that a

reasonable person in defendant’s position would “expect” to

be questioned about his or her age, to produce proof of age,

and to have its validity investigated, id. at 415, and would

deem such investigation “appropriate,” id. at 415 (emphases

added). Further, the majority concludes, the officer’s reten-

tion of defendant’s identification did not extend “beyond a

reasonable period,” id. at 416 (emphasis added), did not con-

stitute a “significant” restraint on defendant’s liberty, and

therefore was not a seizure. Id. at 417 (emphasis in original).

The change in analysis from Hall to Backstrand is

striking. Not only does it break faith with Hall, it does not

meet the challenge that Justice Harlan set and that this

court quoted in State v. Campbell, 306 Or 157, 165, 759 P2d

1040, 1044-1045 (1988) (quoting United States v. White, 401

US 745, 786, 91 S Ct 1122, 1143, 28 L Ed 2d 453 (1971)

(Harlan, J., dissenting)):

“[I]t is the task of the law to form and project, as well as

mirror and reflect, [and] we should not, as judges, merely

recite the expectations and risks without examining the

desirability of saddling them upon society.”

Article I, section 9, prohibits unreasonable seizure.

The first step in an analysis under that provision, therefore,

is whether a police officer has restrained an individual’s lib-

erty and thereby effected a seizure. See State v. Ashbaugh,

349 Or 297, 308-09, 244 P3d 360 (2010) (so holding); State v.

Holmes, 311 Or 400, 407, 813 P2d 28 (1991) (seizure occurs

when an officer “temporarily restrains a person’s liberty”).

The second step is whether that seizure is constitutionally

justified or otherwise reasonable. Ashbaugh, 349 Or at 309.

The majority, in terms today’s Oregonians would under-

stand, puts the trailer before the bike: The majority mea-

sures whether there has been a seizure by factors that more

422 State v. Backstrand

appropriately address the second step in the analysis—

whether the officer who effects the seizure has acted “rea-

sonably.” See Watson, 353 Or at 783-84 (reasonableness of

duration of records and warrants check considered in decid-

ing whether seizure was reasonable, not in deciding whether

seizure occurred).

In Fair, also decided this year, the court explained

that a seizure occurs when an officer engages in a “show

of authority that would cause a reasonable person in [the]

defendant’s circumstance to believe that [his or] her liberty

had been significantly restricted.” 353 Or at 615 (emphases

added.) The majority now states that, to constitute a seizure,

the officer’s show of authority must cause a “reasonable per-

son to believe that the officer intentionally and significantly

has restricted, interfered with, or otherwise deprived the cit-

izen of the citizen’s liberty or freedom of movement.” 354 Or

at 403 n 11 (emphases added). In this case, I would expect

the court to begin, under either formulation, by considering

whether the officer’s show of authority would cause a reason-

able person in defendant’s position to believe that the officer

had restricted his freedom of movement, and then to decide

whether the restraint, if any, was justified and otherwise

reasonable. The majority does not do so. Instead, it points

to the factors that may be relevant at the second step of the

analysis—whether the seizure was reasonable—to decide

that no seizure occurred.

As noted, the majority explains that no seizure

occurred because a young person present in an age-

restricted shop reasonably “expect[s]” questions about his or

her age and finds them “appropriate,” id. at 415, and rea-

sonably “expect[s]” that if he or she produces identification,

a police officer will examine it and take steps to verify its

validity, id. at 417 (emphases added). The majority concludes

that the officer’s retention of defendant’s identification was

of “reasonable” duration and did not constitute a “signifi-

cant” restraint on defendant’s liberty. Id. at 416 (emphasis

added). The majority thereby determines whether a seizure

occurred, not by analyzing whether a reasonable person

would believe that an officer had restricted his or her lib-

erty, but by determining whether a person subject to such

restraint would believe the officer to have acted reasonably.

Cite as 354 Or 392 (2013) 423

To illustrate the significance of the shift in focus

from restraint to reasonableness, I pose the following hypo-

thetical circumstance—a circumstance in which a police

officer informs an individual that the officer is conducting a

criminal investigation and, as a part of that investigation,

explicitly directs the individual to remain and produce iden-

tification. In that circumstance, I venture that the majority

would hold that the officer had seized the individual because

the officer’s show of authority would cause a reasonable

person to believe that the officer had restricted his or her

freedom of movement. See id. at 410-12 (discussing cases in

which the court held police action “sufficiently coercive to

result in a seizure”). I also venture that the majority would

consider that explicit communication to be a seizure without

regard to whether the individual expected it or considered it

appropriate, and even if the officer’s retention of the identifi-

cation was not of unreasonable duration.

In the circumstance in which a police officer does

not explicitly order an individual to halt and produce iden-

tification, but approaches the individual and requests,

obtains, and investigates the individual’s identification, the

question should be whether the officer nevertheless commu-

nicates that the individual is not free to leave. See Nadler,

2002 Sup Ct Rev at 188 (“For example, citizens generally

do not interpret ‘Can I please see your license and registra-

tion?’ as spoken by a police officer as a genuine request; it is

a command, and everyone understands this.”).

In urging that analysis, I do not challenge the

majority’s statement of an objective test—whether the officer

conveys a message that would cause a reasonable person to

believe that the officer had restricted the person’s freedom of

movement. I also do not mean to imply that a seizure occurs

whenever “an individual—for reasons personal to that

individual—feels obliged to cooperate with the officer simply

because of the officer’s status.” 354 Or at 402. I agree that

the focus must be on the message that the officer conveys,

and that when an officer conveys only his or her status, the

officer does not effect a seizure, even though an individual

may feel it would be polite to remain. The point that I want

to make is that, when a court looks at the message that an

officer conveys, the court should look at whether the officer

424 State v. Backstrand

conveys a message of restraint, not at whether the officer’s

message was expected, appropriate, or reasonable.

I am not sure why the majority focuses its inquiry

on reasonableness rather than restraint.3 I do know that in

its discussion of the reasons that a seizure did not occur in

this case, the majority introduces the notion that, when an

officer “requests” an individual’s identification and checks

its veracity, the individual “consents” to the officer’s conduct

in a way that is “akin to when a person gives valid consent

to search.” Id. at 413.

In the search context, consent makes a search con-

stitutionally permissible by demonstrating that the search,

even though warrantless, is reasonable. State v. Paulson,

313 Or 346, 351, 833 P2d 1278, 1281 (1992). Consent does

not make a search into noncoercive action to which Article I,

section 9, does not apply. If the majority were to use consent

in the seizure context in the same way that it considers it in

the search context, it could be relevant to the reasonableness

of the seizure, but would not make a coercive stop into “mere”

conversation.4 Perhaps for that reason, this court has not

previously used consent as a factor in determining whether

a seizure has occurred, and the majority errs in offering

an individual’s “expectation” that an officer will check the

3

It could be that what I perceive as a shift in focus is not so much a shift

from Hall, but a return to Holmes and its discussion of what is “accepted” in social

intercourse. Holmes, 311 Or at 410. If so, then my criticism in this case is a criti-

cism of Holmes as well. What is accepted among peers does not tell a court what

is communicated by a police officer. Although this case may not present this court

with an opportunity to overrule or reconsider Holmes, that does not mean that

we should extend its analysis. In Hall, which this court decided after Holmes,

this court correctly focused on the message that an officer conveys by his or her

exercise of authority. We should adhere to that reasoning.

4

The majority also states that “[t]he person who waits while a consent

search is completed is not thereby seized for purposes of Article I, section 9.” 354

Or at 413. However, I do not understand the majority to take the position that

defendant in this case consented to a search. If the officer had asked defendant

for consent to search, and if a reasonable person in defendant’s situation would

understand that he or she was being searched, that would be another reason that

a reasonable person would conclude that he or she was the subject of a criminal

investigation and was not permitted to leave. Moreover, if the majority’s proposi-

tion were determinative, then, contrary to the court’s decision in State v. Painter,

296 Or 422, 425-26, 676 P2d 309, 312 (1984), a defendant who proffered identi-

fication in response to an officer’s request would not be seized, even though the

officer retained the identification for the entire time necessary to complete the

investigation.

Cite as 354 Or 392 (2013) 425

veracity of proferred identification as a consideration here.

This court should adhere to the principle that “the privacy

protected by Article I, section 9, is not the privacy that one

reasonably expects but the privacy to which one has a right.”

Campbell, 306 Or at 164 (emphases in original).

The majority also errs in three other ways. First,

the majority errs in concluding that, in the circumstances

presented here, asking a person’s age and requiring proof

of age is not “significantly beyond that accepted in ordinary

social intercourse.” 354 Or at 415 (quoting Holmes, 311 Or

at 410). Although bartenders or clerks may ask for proof of

age when a young-looking person enters a bar or makes a

purchase, it is the patron who initiates the encounter and

seeks the benefit. In ordinary social intercourse, a stranger

does not approach another and ask for proof of identification.

Many reasonable people expect others to leave them alone

unless they seek or need assistance, and Article I, section 9,

protects that right to personal privacy.

Second, the majority fails to consider the ways in

which its decision may encourage both the public and the

police to act in ways that are contrary to societal interests.

It is in the best interest of society that the public cooper-

ate with police investigations and stop, respond, and remain

until such an investigation is complete. By holding that an

individual who reasonably believes that he or she is being

subjected to such investigation is, instead, free to leave, the

majority encourages public conduct that is contrary to that

interest. It also is in the best interest of society that the pub-

lic respect the police. By holding that officers are permitted

to approach members of the public and ask for, obtain, and

investigate their identification without constitutionally suf-

ficient justification for that conduct, the majority encourages

officers to act in ways that could diminish the esteem in

which they are and should be held.

Third, the majority fails to state a standard for

determining whether a seizure has occurred that all can

understand and follow. In Hall, the police officer requested

that the defendant produce identification, and then con-

ducted a warrants check. The court nonetheless held that

the officer had seized the defendant. 339 Or at 19. In this

426 State v. Backstrand

case, the officer made the same request and conducted a

similar investigation, but the majority holds that the offi-

cer did not seize defendant. 354 Or at 413-14. The majority

holds that the officer merely sought defendant’s cooperation.

It is not easy to discern why the officer in Hall did “more.” Id.

at 417. I urge a brighter line and a rule that, when an officer

approaches a member of the public and requests, obtains,

and investigates that individual’s identification in circum-

stances in which the individual reasonably would believe

that he or she is the subject of a criminal investigation, the

officer seizes the individual unless the officer clearly explains

that the individual is free to leave and need not respond

or remain.5 Under that rule, phrasing and after-the-fact-

matching would not determine constitutional rights. And,

just as importantly, an officer with a constitutional basis for

taking those actions, like the officer in this case, would be

free to detain the individual for as long as reasonably neces-

sary to complete the immediate investigation.

Because I believe that, in the circumstances pre-

sented in this case, Article I, section 9, required that the

police officer have a constitutionally sufficient justification to

approach defendant and ask for, obtain, and investigate the

validity of his identification, I cannot join in the majority’s

reasoning. However, because I believe that the officer in this

case was constitutionally justified in temporarily seizing

defendant, I respectfully concur in the judgment.

Baldwin, J., joins in this concurring opinion.

BREWER, J., concurring in the judgment of the

court.

When, albeit politely, a uniformed police officer

approaches a person on the street and requests the per-

son’s identification, it is a fiction to suggest that most people

would believe that they have a right to refuse the request or

that, if they did, it would be prudent or safe to do so. When

they comply with such requests, as most law abiding persons

5

I understand that an individual could still feel, as a result of his or her own

internal belief system, that he or she should remain. However, whether a seizure

occurs depends on the message that an officer conveys to a reasonable person,

and, when an officer explicitly informs an individual that he or she is free to go,

contrary feelings are not reasonable in the constitutional sense.

Cite as 354 Or 392 (2013) 427

likely would do, it is generally fair to characterize such com-

pliance as acquiescent, not consensual, voluntary, or, for

that matter, the product of mere conversation. My concern

is that, although this case involves very different facts, the

majority’s treatment of it may compel the conclusion that,

as long as they do so in a civil manner, police are free, in

the absence of any articulable justification, to ask anyone

in a public place for their identification without effecting

an unreasonable seizure of their persons or effects under

Article I, section 9, of the Oregon Constitution. In my view,

that would be unfortunate and, likely, unnecessary, in light

of the circumstances of this case.

Article I, section 9, provides, in part:

“No law shall violate the right of the people to be secure

in their persons, houses, papers, and effects, against unrea-

sonable search, or seizure[.]”

Unlike the protections of the Fourth Amendment to the

United States Constitution, the protections afforded by

Article I, section 9, including the right to exclude unlawfully

obtained evidence, are not aimed at deterring police mis-

conduct; instead, they safeguard liberty rights that inhere

in the people. State v. Thompkin, 341 Or 368, 379, 143 P3d

530 (2006). As pertinent here, the government is prohibited

from violating those rights by means of unreasonable sei-

zures. A seizure of a person is a significant interference with

the person’s liberty of movement. State v. Holmes, 311 Or

400, 409, 813 P2d 28 (1991).1

The first question here—which is where the major-

ity begins and ends its analysis—is whether defendant

was seized when the police officer requested or later held,

for a brief period, his identification. This court has strug-

gled earnestly to give meaningful content to the inquiry

1

I am aware that this definition of seizure omits parts of the longer and

more convoluted definition set out in Holmes, and as later modified in State v.

Ashbaugh, 349 Or 297, 313, 244 P3d 360 (2010). In particular, I have left out any

reference to the mental state animating the officer’s conduct, and I have not men-

tioned the possibility that a seizure could occur, regardless of whether the officer

actually had significantly interfered with a person’s liberty of movement, where a

reasonable person would believe that such interference had occurred. Baked, but

not frosted, significant interference with a person’s freedom of movement is the

essence of a seizure.

428 State v. Backstrand

into whether police-citizen encounters involve a significant

interference with a person’s liberty of movement. This court

held in Holmes:

“[L]aw enforcement officers remain free to approach per-

sons 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 nor-

mal means of attracting a person’s attention (e.g., police-

man tapping citizen on the shoulder at the outset to get

a citizen’s attention). See LaFave, 3 Search and Seizure,

A Treatise on the Fourth Amendment 413, § 9.2(h) (2d ed

1987). 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 a private

citizen would not, has otherwise conducted himself in a

manner that would be perceived as a nonoffensive contact

if it had occurred between two ordinary citizens.”

311 Or at 410. Cf. Wayne R. LaFave, 4 Search and Seizure

§ 9.4(a), 581-82 (5th ed 2012) (observing that “the confron-

tation is a seizure only if the officer adds to those inherent

pressures by engaging in conduct significantly beyond that

accepted in social intercourse[,]” which include moral and

instinctive pressures to cooperate).

For some time, courts in Oregon and elsewhere

wrestled with a formulation of the Holmes test that asked

whether a reasonable person, in the position of the subject

citizen, would feel free to terminate or leave the encounter.

State v. Ashbaugh, 349 Or 297, 313, 244 P3d 360 (2010). That

formulation, which was borrowed from Fourth Amendment

case law, was especially problematic and ultimately unhelp-

ful because, for among other reasons, any viable test for the

existence of a seizure cannot depend solely on how a typical

reasonable person would react to contact with an inquiring

police officer. As one commentator has explained:

Cite as 354 Or 392 (2013) 429

“[I]f [the free to walk away language] is taken to mean that

a pedestrian whose movements have been interrupted and

who is questioned is likely to feel free to depart without

responding, it is a highly questionable conclusion. As noted

in Illinois Migrant Council v. Pilliod[, 398 F Supp 882 (ND

Ill 1975)]: ‘Implicit in the introduction of the [officer] and

the initial questioning is a show of authority to which the

average person encountered will feel obliged to stop and

respond. Few will feel that they can walk away or refuse to

answer.’ This, it is submitted, is an accurate characteriza-

tion of the great majority of situations in which an officer

approaches a pedestrian and seeks an explanation for his

activities or even identification. Thus, if the ultimate issue

is perceived as being whether the suspect ‘would feel free

to walk away,’ then virtually all police-citizen encounters

must in fact be deemed to involve a Fourth Amendment

seizure. The [standard] should not be given such a literal

reading as to produce such a result.”

LaFave, 4 Search and Seizure § 9.4(a) at 579-80.

In an effort to clarify the limits of police inquiries that

do not amount to a seizure, this court has recently explained:

“[A] law enforcement officer constitutionally may halt and

briefly detain a person passing through a public area as a

means to engage the citizen long enough to impart infor-

mation or seek the citizen’s cooperation or assistance. As

Holmes emphasized, police are free to ‘approach persons

on the street or in public places, question them, and even

accompany them to another location without the encounter

necessarily constituting a ‘seizure’ of a person[.]’ 311 Or at

409. As [State v. Gerrish, 311 Or 506, 815 P2d 1244 (1991),]

emphasized, especially in the case of a motorist, halting

and briefly detaining a citizen, even when done pursuant

to an officer’s show of authority, is often a nonintrusive and

socially inoffensive way to seek a citizen’s cooperation or

impart information. 311 Or at 513. The important distinc-

tion in both cases was the public nature of the encounter and

the practical reality that authoritatively halting the pass-

ing motorists is often the only practical means for police to

have an exchange with them. No seizure occurs because the

police conduct is not a socially intrusive exercise of police

authority in those particular settings and circumstances.”

State v. Fair, 353 Or 588, 598, 302 P3d 417 (2013) (footnote

omitted).

430 State v. Backstrand

The majority rightly points out that most people

accept the need to give identifying information in public set-

tings, including in commercial transactions and in entering

public buildings. But that isn’t this case. Here, defendant

was in a public place—a store. Although the proprietor had

a right, indeed a duty, to ascertain his age if there was a

legitimate question about his presence in age-restricted

premises, if another person in the store had asked to take

and examine his identification, the intrusion would palpably

exceed the bounds of socially acceptable behavior. For me, it

is insufficient to say that police have authority to seek infor-

mation and cooperation from citizens in public places. They

do, depending on the circumstances. But, because requests

for cooperation can take many forms and cover a full spec-

trum of intrusiveness, the devil is often in the details. People

don’t ask each other for identification in ordinary public

encounters, no matter how politely the request is phrased.

Put more bluntly, we don’t live in a society where it is accept-

able for someone to approach another person in a public

place and ask for—let alone take, examine, and verify—

“their papers.” For that reason, it is far from clear that the

police are entitled to take such actions either, unless, of

course, the circumstances make them reasonable.

I would be remiss in failing to acknowledge that

this court in Holmes and in later decisions, including Fair,

appears to have rejected concerns similar to the ones that

I have just expressed. In Ashbaugh¸ for example, the court

stated that, even though the officer “asked defendant a

question that one private citizen ordinarily would not ask

another,” there was nothing about the officer’s words that

would be perceived as a show of authority that restricted

her freedom of movement. 349 Or at 317. Accordingly, the

court concluded that a reasonable person in the defendant’s

position would not believe that the officer had significantly

restricted her liberty of movement. Id. at 316. The same

point has been made in different words by Professor LaFave:

“The critical factor is whether the [police officer], even if

making inquiries a private citizen would not, ha[ve] other-

wise conducted [themselves] in a manner which would be

perceived as a nonoffensive contact if it occurred between

two ordinary citizens.”

LaFave, 4 Search and Seizure § 9.4(a) at 582-83.

Cite as 354 Or 392 (2013) 431

Frankly, I am hard pressed to make sense of such

statements, because they shed little light on whether a per-

son’s liberty of movement has been significantly restricted by

an investigatory request during a police encounter. Although

courts and commentators have described citizen deference

to such requests as voluntary or consensual, I submit that

those descriptions merely indulge an unhelpful fiction. Even

though the majority appears to take a critical view of such

assumptions, the standard that this court has adopted for

determining whether a seizure has occurred under Article I,

section 9, that is, whether “a reasonable person [would]

believe that a law enforcement officer intentionally and sig-

nificantly restricted, interfered with, or otherwise deprived

the individual of his or her liberty or freedom of move-

ment,” 354 Or at 399, necessarily hinges on assumptions—

to paraphrase the majority—about “how police and citizens

do or should interact” during such encounters. 354 Or at

401 n 9. Without further elaboration, that standard is, with

respect, logically unsatisfying. Its underlying premise that

police can ask for cooperation that a private citizen would

not, as long as the police conduct otherwise would not be

perceived as offensive if it occurred between two ordinary

citizens, Ashbaugh¸ 349 Or at 317, simply meets itself going

and coming. There should be a more principled and prag-

matic way to resolve these issues, and I think that there is.

That approach should entail narrowing to a more

straightforward and realistic scope what we mean by “mere

conversation” between citizens and police officers and then

assessing the constitutionality of seizures that exceed that

threshold under the reasonableness standard that the text

of Article I, section 9, imposes. Under such an approach,

police are authorized to use ordinary means of communi-

cation to divert or restrict others in their activities or paths

of travel in public places to the same extent that anyone

else would, even if it involves a request for help in doing

their jobs. But a request for identification transcends that

type of ordinary interaction. Where, as here, a police officer

makes such a request in an investigatory capacity, a citizen

likely will believe that he or she cannot safely or prudently

refuse and, thus, merely yield to an intrusion that otherwise

would not be acceptable in ordinary social intercourse. And,

432 State v. Backstrand

frankly, that is what should be expected so as to encourage

peaceable encounters between citizens and the police.

It follows that police conduct that would suggest to

a reasonable person that the person is the focus of a police

investigation, and that the person is obligated to cooperate

until the investigation is completed, should be understood

for what it is: a constitutionally significant interference with

the person’s freedom of movement. See, e.g., State v. Hall,

339 Or 7, 19, 115 P3d 908 (2005) (police seized the defen-

dant when they took his identification for warrant check,

because reasonable person would believe that his or her

freedom of movement had been restricted when person is

subject of pending warrant check); Thompkin, 341 Or at 378

(same). In my view, that is what happened here. The officer

approached defendant and his companion in an adult book-

store with a posted 18-year minimum age and asked their

ages. Apparently not satisfied with defendant’s answer, the

officer then asked to examine their identifications. After

doing so, the officer called dispatch to verify the validity of

the licenses. In combination, those actions would communi-

cate to a reasonable person in defendant’s position that he or

she was the subject of a police investigation and must coop-

erate until the investigation was completed. Accordingly, I

would conclude that the officer seized defendant by request-

ing, taking, and running through dispatch defendant’s iden-

tification.

The question remains whether the seizure was “unrea-

sonable” for purposes of Article I, section 9. “Unreasonable”

means “not governed by or acting according to reason *  * *

exceeding the bounds of reason.” Webster’s Third New Int’l

Dictionary 2507 (unabridged ed 2002). “Reason,” in turn, is

defined as “[a] statement offered as * * * a justification of an

act,” “a rational ground or motive,” or “a sufficient ground

of explanation or of logical defense.” Id. at 1891. Thus, a par-

ticular action such as the seizure of a person is “unreason-

able” when there is no rational justification for it. I am aware

of no relevant context or historical evolution in the mean-

ing of the word “unreasonable” or its roots that suggests

that the framers of the Oregon Constitution would have

Cite as 354 Or 392 (2013) 433

understood its meaning differently in adopting Article I,

section 9.2 By prohibiting “unreasonable” seizures, Article I,

section 9, embodies a standard that is naturally adaptable

to the temporal milieu in which it must be applied. The

challenge today, as always, is the pliability of the term as it

applies to particular circumstances and the discernment of

like patterns of circumstances.

At first blush, it might seem odd—indeed, unnec-

essary—to reach that issue in this case. After all, if, hav-

ing unmasked the fiction that the interaction in this case

involved mere conversation, the court were to conclude that

a seizure occurred, then there is little room for the state to

maneuver under the three-category model of police-citizen

encounters that the court recognized in Holmes. As the

court recently reiterated:

“Analytically, police-citizen encounters typically fall into

one of three categories that correlate the degree of intru-

siveness on a citizen’s liberty with the degree of justification

required for the intrusion * * * At one end of the continuum

are mere encounters for which no justification is required.

At the other end are arrests, which involve protracted cus-

todial restraint and require probable cause. In between

are temporary detentions for investigatory purposes, often

termed ‘stops, which generally require reasonable suspi-

cion. Both stops and arrests are seizures for constitutional

purposes, while less restrictive encounters are not.”

Fair, 353 Or at 593 (citing Holmes, 311 Or at 408-09) (inter-

nal citations omitted). Because the state does not assert

that the officer had reasonable suspicion—let alone proba-

ble cause—to believe that defendant was engaging in crim-

inal conduct, the circumstances here do not fit into any of

2

From the unpaginated 1828 Webster’s Dictionary of American English:

“Unreasonable: 1. Not agreeable to reason. 2. Exceeding the bounds of

reason; claiming or insisting on more than is fit; as an unreasonable demand.

3. Immoderate; exorbitant; as an unreasonable love of life or money. 4. Irrational.”

As pertinent here, the same source defined “reason” as:

“The cause, ground, principle or motive of any thing said or done; that

which supports or justifies a determination, plan or measure *  *. A faculty

*

of the mind by which it distinguishes truth from falsehood, and good from

evil, and which enables the possessor to deduce inferences from facts or from

propositions.”

434 State v. Backstrand

the three “typical” categories of permissible encounters.

However, the court in Holmes elaborated that “[t]he three

categories are guidelines only. They are neither exhaustive

nor conclusive as to what police action is a ‘seizure’ of a per-

son.” 311 Or at 407-08. The circumstances of this case invite

consideration of the issue whether another kind of seizure

occurred that was reasonable.

Defendant and his companion were in an adult

bookstore when the officer encountered them. The owner,

operator, or manager of such an establishment has a statu-

tory duty under the criminal code not to knowingly or reck-

lessly permit an unaccompanied minor to enter and remain

on such premises. ORS 167.080. The officer testified that he

suspected, based on their appearances, that defendant and

his companion were both under the age of 18. As explained

below, under those circumstances, the request for identifi-

cation was reasonable, not because the officer believed that

defendant had committed a crime, but because the officer

had a duty to protect minors from an unlawful display of

obscene materials.

I acknowledge that there is no generic “community

caretaking function.” Whether law enforcement officers have

specific functions is a matter of statutory law. ORS 133.033

provides:

“(1)  Except as otherwise expressly prohibited by law,

any peace officer of this state is authorized to perform com-

munity caretaking functions.

“(2)  As used in this section, ‘community caretaking

functions’ means any lawful acts that are inherent in the

duty of the peace officer to serve and protect the public.

‘Community caretaking function’ includes, but is not lim-

ited to:

“(a)  The right to enter or remain upon the premises of

another if it reasonably appears to be necessary to:

“(A)  Prevent serious harm to any person or property;

“(B)  Render aid to injured or ill persons; or

Cite as 354 Or 392 (2013) 435

“(C)  Locate missing persons.

“(b)  The right to stop or redirect traffic or aid motor-

ists or other persons when such action reasonably appears

to be necessary to:

“(A)  Prevent serious harm to any person or property;

“(B)  Render aid to injured or ill persons; or

“(C)  Locate missing persons.

“(3)  Nothing contained in this section shall be construed

to limit the authority of a peace officer that is inherent in the

office or that is granted by any other provision of law.”

In this case, protecting a minor from being the victim

of a crime is properly inherent in the duty of a peace officer

to serve and protect the public. Therefore, the officer in this

case was authorized by statute to ascertain the age of defen-

dant and his companion if the officer reasonably believed

that they were underage. However, the mere exercise of an

activity under ORS 133.033 does not ensure compliance

with Article I, section 9. In particular, a warrantless seizure

must be justified by an exception to the warrant require-

ment. Holmes, 311 Or at 407. The community caretaking

statute is not an exception to the warrant requirement; it is

the statutory expression of the well-settled precept that the

actions of law enforcement officers, like all other government

actors’ actions, must be traceable to some grant of authority

from a politically accountable body. See State v. Bridewell,

306 Or 231, 239-40, n 6, 759 P2d 1054 (1988). ORS 133.033

is such a grant of authority. Compliance with the statute

is a necessary but not sufficient element of lawful police

activity of the sort that the statute specifies. As the statute

itself expressly states, the action must also be one that is not

“otherwise expressly prohibited by law”; it must be a “lawful

act[  ORS 133.033(1) and (2). “Whatever the meaning of

].”

‘lawful acts’ in the context of ORS 133.033, that meaning

must be consonant with the state and federal constitutions.”

State v. Dahl, 323 Or 199, 205, 915 P2d 979 (1996). Thus, a

“community caretaking” search or seizure (as distinct from

a search or seizure for purposes of law enforcement) must

fall within the ambit of ORS 133.033, and it must also meet

436 State v. Backstrand

constitutional standards. The statute provides the predicate

grant of authority, and the constitution specifies limitations

on that grant.

This court has not had an occasion to fully explore

the relationship between the range of community caretak-

ing functions that ORS 133.033 authorizes and any partic-

ular exception to the warrant requirement under Article I,

section 9. However, in assessing the constitutional reason-

ableness of warrantless seizures, other courts have con-

cluded that police requests for identification in furtherance

of lawfully prescribed community caretaking functions—as

opposed to the detection or investigation of evidence relating

to a crime—do not violate constitutional guarantees against

unreasonable searches and seizures. In State v. Vistuba, 251

Kan 821, 840 P2d 511 (1992), the Kansas Supreme Court

went so far as to characterize community caretaking or pub-

lic safety encounters as a fourth type of lawful encounter

(in Holmes terms) between police and citizens. In my view,

subject to appropriate limitations that preserve the protec-

tions guaranteed by Article I, section 9, there is much to

recommend the logic of those cases.

The concept of a community caretaking or public

safety function stems from a recognition that “[l]ocal police

have multiple responsibilities, only one of which is the enforce-

ment of criminal law[.]” State v. Acrey, 148 Wash 2d 738, 64

P3d 594, 599 (2003); see also Cady v. Dombrowski, 413 US

433, 441, 93 S Ct 2523, 37 L Ed 2d 706 (1973). The mod-

ern police officer is a “jack-of-all-emergencies” with “com-

plex and multiple tasks to perform in addition to identify-

ing and apprehending persons committing serious criminal

offenses’; by default or design he [or she] is also expected ‘to

aid individuals who are in danger of physical harm,’ ‘assist

those who cannot care for themselves,’ and ‘provide other

services on an emergency basis.’  LaFave, 3 Search and

”

Seizure § 5.4(c) at 263 (citing Am Bar Ass’n, Standards for

Criminal Justice §§ 1–1.1(b), 1–2.2 (2d ed 1980)); see also

Acrey, 64 P3d at 599 (“[M]any citizens look to the police to

assist them in a variety of circumstances, including deliv-

ering emergency messages, giving directions, searching for

lost children, assisting stranded motorists, and rendering

Cite as 354 Or 392 (2013) 437

first aid.”). To require reasonable suspicion of criminal

activity before police can investigate and render assistance

in these situations would severely hamstring their ability to

protect and serve the public.

For those reasons, performance of a community

caretaker function permits, in proper circumstances, police

requests for, and the reasonable retention of, identification

from people whom they encounter in the performance of

their duties. State v. Ellenbecker, 464 NW2d 427, 428 (Wis

App 1990); see also O’Donnell v. State, 409 SE2d 579, 582

(Ga App 1991) (“[C]onsidering [the driver] had voluntarily

stopped in a public rest area, parked, and laid down in

the vehicle late at night, causing [the] Trooper to have a

legitimate concern primarily regarding his medical status,

it was not unreasonable for the officer thereafter to initi-

ate promptly a routine and limited inquiry to determine

the driver’s identity.”); State v. Brunelle, 766 A2d 272, 274

(NH 2000) (holding that an officer’s request for the driver’s

license and vehicle registration of the driver of a disabled

vehicle was part of a limited community caretaking excep-

tion, and that such request was reasonable “in the event

that any questions about the vehicle or [the trooper’s] con-

tact with the owner subsequently arose”).

Of course, community caretaking authority is not

an excuse for carrying out a criminal investigation of the

person being assisted. Rather, such an encounter must be

based upon specific, articulable facts establishing the need

for intervention by an officer. See State v. Page, 140 Idaho

841, 844, 103 P3d 454 (2004) (officer stopping pedestrian to

check on well-being exceeded community caretaking func-

tion by taking pedestrian’s driver’s license and running a

warrants check; retention of driver’s license constituted an

unreasonable seizure); People v. Gonzalez, 204 Ill 2d 220,

224, 789 NE2d 260 (2003) (officer not entitled to request

identification from passenger stopped under community

caretaking function where state failed to explain how

request served a public safety function).3 In addition, once

3

Nor is the community caretaking function a basis for police stop and frisk

practices that are not based on reasonable suspicion that the person accosted

has committed or is about to commit a crime. Police officers serve as commu-

nity caretakers only when their actions are “totally divorced” from the detection,

438 State v. Backstrand

it is determined that a person does not require assistance, a

request for identification cannot be justified under the com-

munity caretaking doctrine. State v. DeArman, 54 Wash

App 621, 774 P2d 1247, 1249-50 (1989) (holding that officer

acting in community caretaking capacity had no reason-

able basis to request identification once he determined that

driver did not require assistance). However, if contraband

or other evidence of crime is discovered incident to the law-

ful performance of an officer’s duties under the community

caretaker function, the officer need not ignore that which is

discovered. LaFave, 3 Search and Seizure § 5.4(c) at 263-64

(“[E]vidence of crime is sometimes inadvertently come by

when a person is searched for some purpose not directly tied

to the objective of detecting criminal activity[.] * * * If a rea-

sonable and good faith search is made of a person for such

a purpose, then the better view is that evidence of crime

discovered thereby is admissible in court.”).

Following an in-depth analysis of various concerns

informing the community caretaking doctrine, the Supreme

Court of Montana adopted the following three-part test to

ensure its proper application:

“First, as long as there are objective, specific and articula-

ble facts from which an experienced officer would suspect

that a citizen is in need of help or is in peril, then that

officer has the right to stop and investigate. Second, if the

citizen is in need of aid, then the officer may take appropri-

ate action to render assistance or mitigate the peril. Third,

once, however, the officer is assured that the citizen is not

in peril or is no longer in need of assistance or that the peril

has been mitigated, then any actions beyond that constitute

a seizure implicating *  * the protections provided by the

*

Fourth Amendment, but more importantly, those greater

guarantees afforded under [the state constitution].”

State v. Lovegren¸ 310 Mont 358, 51 P3d 471, 475-76 (2002);

see also Williams v. State, 962 A2d 210 (Del 2008) (adopting

same test under Delaware Constitution).

That test and the principles underlying it make

good sense to me. They have the advantage of being prac-

tical in relation to a rational understanding of police duties

investigation, or acquisition of evidence relating to the violation of a criminal

statute. Cady, 413 US at 441; Bridewell, 306 Or at 238.

Cite as 354 Or 392 (2013) 439

and being more workable in the trenches than some other

efforts to define and apply additional categories of permissi-

ble police-citizen encounters. See, e.g., People v. De Bour, 40

NY2d 210, 352 NE2d 562 (1976).4 They also are free of some

of the confusing factual undergrowth that inheres in the

line-drawing that is required under the broader understand-

ing of the scope of mere conversation to which the majority

subscribes and which, to be fair, this court, has historically

endorsed. The sorts of split-second decisions that people—

both officers and citizens—must make in often-spontaneous

street encounters should not hinge so much on variations in

tone of voice, demeanor, and the other indicia that the cur-

rent state of the decisional law emphasizes.

So, where does that leave things in this case? The

trial court found that, if anything, the officer was investi-

gating whether defendant was the victim of a crime. The

supporting evidence showed that, based on their appear-

ances, the officer believed that defendant and his compan-

ion were underage. If defendant had been underage, and if

the operator of the bookstore had recklessly or knowingly

disregarded that fact, then defendant would have been the

victim of a violation of ORS 167.080. As part of his commu-

nity caretaking function, the officer’s request, taking, and

brief examination of defendant’s identification to make that

determination were reasonable under the circumstances.

Because no unlawful seizure occurred, I respectfully concur

in the judgment of the court.

4

The New York court has adopted the following four-category model for per-

missible encounters:

“If a police officer seeks simply to request information from an individual,

that request must be supported by an objective, credible reason, not neces-

sarily indicative of criminality. The common-law right of inquiry, a wholly

separate level of contact, is ‘activated by a founded suspicion that criminal

activity is afoot and permits a somewhat greater intrusion.’ Where a police

officer has reasonable suspicion that a particular person was involved in a

felony or misdemeanor, the officer is authorized to forcibly stop and detain

that person. Finally, where the officer has probable cause to believe that a

person has committed a crime, an arrest is authorized.”

People v. Hollman, 79 NY2d 181, 184-85, 590 NE2d 204 (1992) (explaining

De Bour model). One commentator has suggested that such an approach pro-

duces “more slide than scale.” Anthony G. Amsterdam, Perspectives on the Fourth

Amendment, 58 Minn L Rev 349, 394 (1974).