State v. Anderson

440 November 21, 2013 No. 56

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

ALEM JONATHAN ANDERSON,

Respondent on Review.

(CC 05C51184; CA A135075; SC S058504)

On review from the Court of Appeals.*

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

2013.

Anna Marie Joyce, Deputy Solicitor General, Salem,

argued the cause for petitioner on review. With her on the

brief were John R. Kroger, Attorney General, and Mary H .

Williams, Solicitor General.

Ryan T. O’Connor, Senior Deputy Public Defender,

Office of Public Defense Services, Salem, argued the cause

for respondent on review. With him on the brief was Peter

Gartlan, Chief Defender.

Before Balmer, Chief Justice, and Kistler, Walters,

Linder, and Baldwin, Justices.**

LINDER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

Walters, J., dissented and filed and opinion in which

Baldwin, J., joined.

______________

**  Appeal from Marion County Circuit Court, Dennis J. Graves, Judge. 234

Or App 420, 228 P3d 638 (2010).

**  Landau and Brewer, JJ., did not participate in the consideration or deci-

sion of this case.

Cite as 354 Or 440 (2013) 441

Defendant moved to suppress evidence found in a vehicle in which he had

been a passenger after the driver of the vehicle consented to its search. The trial

court denied the motion, and defendant was convicted by a jury of delivery of

methamphetamine. On appeal, defendant argued that he was unlawfully seized

when three officers approached the parked car in which he and the driver sat,

explained that they were executing a search warrant at the apartment defen-

dant had just approached, and asked for defendant’s identification. The Court

of Appeals reversed. Held: The officers did not seize defendant under Article I,

section 9, of the Oregon Constitution, by approaching defendant, explaining the

reason for their contact, and asking for identification. Such actions do not, in and

of themselves, amount to a show of authority of the kind required for a seizure.

The officer’s request for defendant to exit the car after he provided a false name

constituted a show of authority and effected a seizure. The trial court concluded

that, at that point, the officers had reasonable suspicion of criminal activity.

Defendant failed to challenge that finding.

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

court is affirmed.

442 State v. Anderson

LINDER, J.

This is one of three cases that we decide today

in which we examine the legal standard for what consti-

tutes a seizure under Article I, section 9, of the Oregon

Constitution.1 All three cases involve police contacts with

individuals in which, at the outset of the contact, the officers

asked the individuals for identification. In the first of the

three cases, State v. Backstrand, 354 Or 392, 412-13, ___

P3d ___ (2013) (decided this day), we held that an officer’s

request for and verification of a person’s identification are

not acts that, in and of themselves, convert an encounter

that is not a seizure for constitutional purposes into one that

is. We further concluded in Backstrand that nothing in the

accompanying circumstances of that case—i.e., the context

of the officer’s contact with the individual, the content of the

officer’s request for identification, or the manner in which he

made the request—resulted in a seizure of the defendant.

Id. at 415-14.

In this case, we examine a different set of circum-

stances that surround the officers’ request for and verifica-

tion of identification. As we will explain, we likewise con-

clude in this case that the officers did not seize defendant

and his companion by asking them for identification. We

further conclude, however, that the actions that the officers

took after asking for that identification did result in seizing

defendant and his companion. Defendant does not dispute,

however, that by then the officers had reasonable suspicion

for his seizure. Consequently, we reverse the decision of the

Court of Appeals and affirm the trial court judgment.

BACKGROUND

The circumstances that gave rise to this case

occurred when several police officers were executing a night-

time search warrant at an apartment. The officers were

members of a “Community Response Unit” that is specially

charged with investigating suspected drug activity in local

neighborhoods in response to citizen complaints. They were

1

The other two cases are State v. Backstrand, 354 Or 392, ___ P3d ___

(2013), and State v. Highley, 354 Or 459, ___ P3d ___ (2013). We allowed review

in all three cases after having held them in abeyance pending our decision in

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

Cite as 354 Or 440 (2013) 443

looking for evidence that the person who resided at the

apartment, Wilson, was involved in drug dealing.

While police were searching Wilson’s apartment,

a car pulled into the parking lot directly in front of it. By

then, police had found evidence in the apartment of illegal

drug activity. Two people got out of the car, walked up to the

apartment, and “peeked” inside the open front door. When

they saw the officers searching the living room, the two

immediately turned around, walked “briskly” back to the

car, and got back inside. Officer Zavala, who was immedi-

ately informed about their approach and quick retreat, left

the apartment to contact them. Two other officers, Officer

Johnson and Detective Bamford, followed Zavala. When the

three officers reached the car, it was still parked, the engine

was not running, the windows were partially rolled down,

and the two were sitting inside. Zavala approached the

driver, while Johnson and Bamford approached defendant,

who was sitting in front on the passenger’s side. Zavala

was wearing his badge and was in uniform. Johnson was

wearing a “raid vest,” which is an outer vest with the word

“police” displayed in large yellow letters across the front.2

Zavala explained to the driver that the officers

were executing a search warrant at the apartment and that

they were contacting them “to find out who [defendant and

the driver] were, what interest they might have had with

what [the police] were doing there, or maybe they knew the

*  * individual that lived there.” The driver immediately

*

responded that she knew Wilson and that she and defendant

were there to “meet with” him and his girlfriend.

Zavala asked the driver for identification. She denied

having any but gave Zavala her name and date of birth. As

Zavala talked to the driver, Johnson asked defendant for

identification. Defendant, too, denied having any identifi-

cation, but told Johnson that his name was Steve Tipton.

Johnson, however, knew Steve Tipton, who was a member

of the Tipton family that lived in the area. Johnson also

recognized defendant from past “patrol contacts.” Although

Johnson could not “put [defendant’s] name with his face,”

2

The record does not reflect whether Detective Bamford was in uniform.

444 State v. Anderson

Johnson was sure that defendant was not Steve Tipton.

Believing that defendant was lying about his name, Johnson

responded by telling defendant that Johnson knew the

Tipton family, knew Steve Tipton, and “you’re not him, I

recognize you.”

Johnson then asked defendant to step out of the car,

which defendant did. Johnson did so both to better deter-

mine if defendant had any identification on him and for offi-

cer safety reasons. In Johnson’s 15 years of experience as a

police officer, when a person gives him a false name, that

person is trying to hide his or her identity “for a reason,”

such as to avoid arrest on an outstanding arrest warrant or

otherwise to evade detection in connection with some kind of

illegal activity. As Johnson explained: “If he’s lying to me at

this point or not giving me a truthful name, I want to make

sure that * * * I can see his hands[.]”

Zavala, who had heard the conversation between

Johnson and defendant about the false name, asked the

driver to step out of the car as well, and she did so. Based

on the birth date that she had given him, Zavala realized

that the driver might be 17 years old and, therefore, a minor.

From Zavala’s observations, the driver seemed nervous and

unsure of herself, and was watching defendant for cues as

to whether she should say anything to the officers. After the

driver stepped out of the car, Zavala moved her several yards

away from the car and out of defendant’s “earshot,” thinking

that she might be more willing to “let us know what exactly

is happening” or produce identification if she did not have to

talk in front of defendant.

As Zavala was getting the driver out of the car,

Johnson again asked defendant if he had any identification.

Defendant immediately admitted that he did and said that

it was in his wallet, which was in his pocket. Defendant

produced the identification for Johnson. Johnson then ran

a warrant check on defendant and, within “a couple of min-

utes,” determined that defendant was wanted on an out-

standing arrest warrant. Johnson placed defendant under

arrest. He then went over to where Zavala and the driver

were standing and interrupted their conversation to ask the

driver for consent to search the car and its contents. Zavala

Cite as 354 Or 440 (2013) 445

left them to call dispatch and verify the information that

the driver had given him about her identity and the car’s

registration (the driver had said that she did not own the

car). The information appeared to be correct. Zavala also

determined that there were no warrants or “holds of any

kind” on the driver.

Johnson, meanwhile, told the driver that he would

like to search the car for controlled substances and weapons.

He asked her, as the person who had custody and control of

the car, if she “had an issue with that.” She said that she did

not. Johnson then read her a “consent to search” card and

asked her if she would sign it. She did. The driver identified

where her purse was in the car, and Zavala, who by then

had rejoined Johnson and the driver, retrieved it. Zavala

searched the purse pursuant to the consent that the driver

had given Johnson. In the purse, Zavala discovered a glass

pipe with white residue that he believed was a controlled

substance. Zavala, therefore, took the driver into custody at

that point and proceeded to search the car. In the car, the

officers discovered methamphetamine on the floor behind

the passenger’s seat, along with drug-related paraphernalia

(e.g., glass pipes, packaging materials, a straw, tweezers),

money, and weapons found throughout the car. In a duffle

bag in the rear of the car, officers found, along with some

personal items, a two-way radio, a police scanner, and a

stun gun. Defendant acknowledged to the officers that the

duffle bag was his but asserted that the drugs belonged to

the driver. The driver told the officers that the drugs seized

from the car belonged to defendant.

Defendant was charged with delivery of metham-

phetamine. Before trial, he moved to suppress “any and all

evidence” that had been discovered during the encounter.

In support of his motion, defendant argued that the officers

had unlawfully stopped and detained him, and that the evi-

dence obtained in the search was a product of that illegal

stop. Defendant also argued that the driver’s consent had

not been given voluntarily. At the hearing on the motion,

relying on the events as described by the officers, the state

argued that the officers’ initial contact with defendant and

the driver was not a stop. By the time that the officers asked

the two to step out of the car, defendant had lied about who

446 State v. Anderson

he was, which the state urged gave the officers reasonable

suspicion to detain him by at least that point, especially in

combination with the surrounding circumstances (i.e., that

the two had approached a “drug house,” saw police, and then

quickly left). As to the voluntariness of the driver’s consent,

the state urged that the officers’ testimony was “extremely

different” from that of the driver, that the driver was not

a credible witness, and that, if the officers’ testimony was

believed, the driver’s consent was voluntary.

In response, defense counsel argued that the

stop occurred as soon as the officers approached the car

because, according to the driver’s testimony, the driver had

started the car and was prevented from leaving when one

officer stood behind it to block it. Defendant argued, alter-

natively or additionally, that the officers stopped defendant

and the driver by having them get out of the car without

reasonable suspicion—at that point—that defendant and

the driver were involved in criminal activity. Defense coun-

sel further urged, again relying on the driver’s testimony,

that the officers also coerced the driver into consenting to

the search by repeatedly requesting consent while she was

unlawfully detained and eventually obtaining her consent

involuntarily only after telling her that, if she did not con-

sent, she would be put in jail.3

In denying defendant’s motion, the trial court

expressly found that the driver was not credible and that

both officers were. With that finding, the trial court implic-

itly rejected defendant’s argument that the driver had not

voluntarily consented to the search. The trial court then

resolved the remaining issue—viz., whether defendant had

been unlawfully stopped. In doing so, the trial court found

that, “at the time the officers first approached the [d]efendant

3

The driver’s testimony differed significantly from that of the officers.

According to the driver, by the time that the officers approached the car, she had

the engine running, was in reverse gear, and was preparing to leave. She said

that one the officers stood behind the car to prevent her from backing up and that

she would have had to hit him to leave. She also said that she was first asked to

consent to the search while still sitting in the car and that she had told the officer

that she was could not consent because she was a minor and the car belonged

to her uncle. After getting out of the car, the officers asked her twice more for

consent, and each time she refused. She consented to the search only after one

officer told her that they could search her car based on the search warrant for the

apartment and that, if she did not consent, “he could take [her] to jail.”

Cite as 354 Or 440 (2013) 447

and asked his name, [d]efendant was a passenger in a

parked motor vehicle without the engine running.” The trial

court concluded, based on those factual findings, that the

initial contact was “not a stop.” The trial court further con-

cluded that, once defendant gave the officers a false name,

the officers had reasonable suspicion to detain defendant,

“given the circumstances which took the officers to the loca-

tion[.]” Based on those findings and conclusions, the court

denied the motion. The case went to trial, and a jury found

defendant guilty as charged.

Defendant appealed, assigning error to the denial

of his motion to suppress. In support of the assigned error,

defendant abandoned his claim that the driver’s consent had

been involuntary. He instead argued only that the officers’

actions constituted a stop “when they stood at the windows

of the car and asked for identification so that they could run

warrants checks” on defendant and the driver. At that point,

defendant urged, the officers lacked reasonable suspicion

that either defendant or the driver was involved in criminal

activity. Defendant argued that, “[a]s a result of the unlaw-

ful stop, defendant provided the officer with a false name[,]”

which in turn caused the officers to have the two step out of

the car and to ask the driver for consent to search her purse

and the car. Based on that sequence, defendant asserted

that the driver’s consent was a direct result of the unlaw-

ful stop and that all evidence against defendant obtained

from the search should be suppressed. In response, while

expressly declining to concede that the initial encounter

between the officer and defendant was unlawful, the state

principally argued that defendant did not have a cognizable

privacy interest in the general contents of the car and there-

fore could not challenge the lawfulness of the search.

The Court of Appeals, sitting en banc, reversed in

a split decision. The majority rejected the state’s argument

that defendant lacked a cognizable interest in the car and

its contents. State v. Anderson, 231 Or App 198, 202 n 2,

217 P3d 1133 (2009), adh’d to on recons, 234 Or App 420,

228 P3d 638 (2010). The majority then determined that

the driver and defendant were seized when the officers

approached the parked car, explained that they had been

executing a search warrant at the apartment, and asked

448 State v. Anderson

the driver and defendant for identification. Id. at 203. The

majority reasoned that, under the circumstances, defendant

reasonably could have believed that his liberty was signifi-

cantly restrained when the officers asked him for identifica-

tion. Id. at 204. Under that court’s then-current case law, if

defendant also subjectively believed as much, he was seized.4

Because defendant had not given the officers a false name

by then, thus giving the officer reasonable suspicion to stop

him, the majority concluded that the seizure was unlawful.

Id. at 203-04.

Four judges dissented, disagreeing that the officers

seized the occupants of the car during the initial encounter

by explaining the reason for the contact and asking for iden-

tification. Id. at 208-09 (Edmonds, J., dissenting). The dis-

sent further concluded that the encounter rose to the level of

a seizure when the officers asked defendant and the driver

to step out of the car, but at that point, the seizure was jus-

tified by reasonable suspicion. Id. at 208, 210. The dissent,

accordingly, would have affirmed the trial court’s judgment.

Id. at 213.

The state sought review of whether, as the Court of

Appeals majority had concluded, defendant was seized for

purposes of Article I, section 9, when the officers contacted

the car’s occupants and asked them for identification. The

state’s argument on that issue tracks the reasoning of the

dissent in the Court of Appeals—viz., no seizure occurred

before defendant and the driver were asked to get out of the

car, at which point the officers had reasonable suspicion to

detain them.5 In response, defendant urges us to adopt the

4

Relying on its decision in State v. Ashbaugh, 225 Or App 16, 28, (2008)

rev’d, 349 Or 297, 244 P3d 360 (2010), the Court of Appeals remanded the case to

the trial court for findings regarding whether defendant in fact believed that his

freedom was significantly restrained at that point. Anderson, 231 Or App at 204.

Subsequently, in Ashbaugh, we explained that a seizure for purposes Article I,

section 9, is not determined by the subjective impressions of the person interact-

ing with the officer. 349 Or at 316. The determinative question is therefore not

whether defendant reasonably could have believed that the officers significantly

restricted his liberty, but rather whether a reasonable person in defendant’s cir-

cumstances would believe that to be the case.

5

Preliminarily, the state asks us also to further revise the two-part “sei-

zure” test that we recently modified in Ashbaugh. 349 Or at 316. We declined the

state’s invitation to revisit that test in Backstrand because, as the parties agreed,

the case did not adequately implicate the prong of the test that the state asks us

Cite as 354 Or 440 (2013) 449

reasoning of the Court of Appeals majority and conclude

that defendant and the driver were unlawfully seized when

the officers first requested their identifications. We turn to

the parties’ arguments in those regards.6

ANALYSIS

In Backstrand, also decided today, we outline at

some length the principles that guide the analysis of what

constitutes a seizure for purposes of Article I, section 9, and

to reconsider. 354 Or at 399 n 8. Likewise, the parties here also agree that this

case does not implicate that prong. We therefore decline the state’s invitation in

this case as well.

6

The parties’ arguments also suggest a further issue, one that we conclude

has not been presented and preserved in this case. In its petition for review, the

state urged that the Court of Appeals “implicitly held that defendant could estab-

lish exploitation—or ‘but for’ causation of the discovery of the evidence—not by

reference to the alleged unlawful seizure of [defendant’s] person, but with respect

to the allegedly unlawful seizure of the driver.” (Emphasis in original.) The state

petitioned the Court of Appeals for reconsideration to address that perceived

implicit holding, asserting that defendant could not seek suppression based on a

Hall-type claim that the officers exploited an unlawful stop of the driver to obtain

her voluntary and otherwise lawful consent. See generally State v. Hall, 339 Or 7,

24-25, 115 P3d 908 (2005) (discussing suppression of derivative evidence based

on exploitation of initial illegality). The Court of Appeals declined to consider the

state’s arguments in that regard, declaring that they had not been raised either

in the state’s brief or at trial. Anderson, 234 Or App at 424.

In its merits brief to this court, the state does not further address that

exploitation issue. Defendant, for his part, analyzes at some length whether—

separate and apart from whether defendant was unlawfully stopped—the officers

unlawfully stopped the driver at any of a series of points in time, ranging from

when Zavala first approached her while sitting in the car to when Johnson asked

her for consent to search. Defendant, too, however, does not address whether

defendant is entitled to suppression based on an argument under Hall that the

driver’s consent was tainted, not by exploitation of a violation of defendant’s

rights, but by exploitation of a violation of the driver’s rights.

That novel exploitation issue, however, is not properly before us. As we have

described, defendant made only two arguments at trial. First, he argued that he

and the driver were illegally stopped as soon as the officers approached the car

and that the driver’s consent was a product of the illegality that was common to

both the driver and defendant. Second, he argued that the driver’s consent was

involuntary. Defendant did not argue that, if he was lawfully stopped and the

driver was not, the driver’s voluntary consent was the tainted product of her sep-

arate illegal stop and defendant was entitled to suppression on that basis. In the

Court of Appeals, defendant abandoned any argument about the voluntariness

of the driver’s consent, and he did not challenge the trial court’s ruling that the

officers had developed reasonable suspicion when defendant gave Johnson a false

name. Thus, the Court of Appeals described the only issue before it as whether,

“at that point in the encounter, defendant was seized for purpose of Article I, sec-

tion 9.” Anderson, 231 Or App at 203 (emphasis added). That, likewise, is the only

issue before us on review.

450 State v. Anderson

in particular, when a police request for information or coop-

eration results in such a seizure. 354 Or at 398-413. In doing

so, we reaffirm certain propositions that our case law has

endorsed over the last several decades. Key among those

propositions, for purposes of the three related stop cases

decided today, is that not every police-citizen encounter rises

to the level of a seizure for constitutional purposes. Rather,

as this court has long held and frequently reaffirmed, “law

enforcement 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.” State

v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991).7 That is true

even though the person approached may be discomforted by

an officer’s inherent authority as such and, for reasons per-

sonal to the individual, feel inclined or obliged to cooperate

with the officer’s request. Backstrand, 354 Or at 400-02. For

an encounter between an officer and a citizen to be a sei-

zure under Article I, section 9, the officer must add to those

inherent pressures by either physically restraining the cit-

izen’s liberty in a significant way or engaging in a “show of

authority” that, explicitly or implicitly, reasonably conveys

to the person a significant restriction on the person’s free-

dom to terminate the encounter or otherwise go about his

or her ordinary affairs. Id. at 402; see also Holmes, 311 Or

at 410 (“physical contact does not transform the encounter

into a ‘seizure’ if it is a normal means of attracting a person’s

attention (e.g., policeman tapping citizen on the shoulder at

the outset to get a citizen’s attention)”).

We, therefore, reaffirm in Backstrand that verbal

police inquiries are not, by themselves, seizures. Id. at 403

(citing propositions from State v. Rodgers/Kirkeby, 347 Or

610, 622, 624, 227 P3d 695 (2010)). “Something more” is

required. Id. That something more can be “the content or

manner of questioning, or the accompanying physical acts

by the officer, if those added factors would reasonably be

7

That principle was immediately reaffirmed following Holmes in State v.

Gerrish, 311 Or 506, 513, 815 P2d 1244 (1991), and most recently in State v.

Watson, 353 Or 768, 774, 305 P3d 94 (2013). Other cases reaffirming Holmes in

the interim are too numerous for citation.

Cite as 354 Or 440 (2013) 451

construed as a ‘threatening or coercive’ show of authority

requiring compliance with the officer’s request.” Id. (citing

State v. Ashbaugh, 349 Or 297, 317, 244 P3d 360 (2010)). If

an officer does not, by words or conduct, convey such a show

of authority, the officer remains free to contact or otherwise

engage a citizen to request information and cooperation or to

impart information without justification. Id.

With those precepts reaffirmed, Backstrand resolves

an issue that this court has not before decided: Whether

an officer’s request for and verification of a person’s identi-

fication are actions that, in and of themselves, convert an

encounter that is not a seizure for constitutional purposes

into one that is. We hold in Backstrand that they do not.

“Asking for identification,” we observe, “is exactly the kind of

interaction that Holmes contemplated—a request for infor-

mation and a citizen’s cooperation.” Id. at 409. Thus, a mere

request for identification made by an officer in the course

of an otherwise lawful police-citizen encounter is not suffi-

cient, in and of itself, to result in a seizure. Id. at 409-10. Nor

does an officer’s action of verifying a person’s identification,

without more, convert the encounter into a seizure. Id. at

413. As the decision in Backstrand explains:

“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 reason-

able 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 freedom of movement. To

be sure, as we have already discussed, a person tendering

identification to an officer may not subjectively feel comfort-

able refusing the officer’s request. Instead, for any number

of personal reasons or instincts, the person may be unwill-

ing to decline the officer’s request. Those internalized moti-

vations and feelings are not the test for whether there is a

seizure under Article I, section 9. 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 exer-

cise 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

452 State v. Anderson

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 pur-

poses of Article I, section 9. So, too, with a person who, in

a noncoercive setting, gives an officer his or her identifica-

tion 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.”

Id. at 412-13 (emphasis in original) (footnote omitted).

Our analysis in this case begins with that hold-

ing from Backstrand. The question framed by the parties’

arguments is whether the officers seized defendant and the

driver by walking up to them in the car, explaining why the

officers were contacting them, and asking them for identifi-

cation. If defendant was seized at that point, the seizure was

unlawful. At that point, as the trial court concluded and we

agree, the officers lacked reasonable suspicion to temporar-

ily detain either the driver or defendant.8 If, however, defen-

dant was not seized at that point, this case effectively ends

with that conclusion. The trial court found that the officers

seized defendant by asking him to get out of the car, but also

found that by then defendant had given them a false name.

The trial court concluded that, under the circumstances,

the false name that defendant had provided to the officers

gave rise to reasonable suspicion to detain him further.

Defendant did not challenge the trial court’s reasonable sus-

picion conclusion on appeal to the Court of Appeals, see 354

Or at 449 n 6, and does not do so—nor could he—now. Thus,

the question before us is focused specifically and narrowly

on the officers’ initial contact with defendant and the driver.

Factually, that contact—up to and including the

request for identification—was both brief and limited.

Zavala, in a matter of seconds, explained to the driver what

the officers were doing at the apartment and why the offi-

cers were interested in talking to them. Then, Zavala asked

8

The trial court expressly found that the officers developed reasonable sus-

picion when defendant identified himself with a name that one officer immedi-

ately recognized as false. The state did not challenge that conclusion on appeal.

Anderson, 231 Or App at 202-03. Nor does it challenge it before this court.

Cite as 354 Or 440 (2013) 453

the driver for identification, while Johnson asked defendant

for the same. Under Holmes, the officers did not seize the

occupants of the stopped car by merely approaching them

to explain why they had followed them from the apartment

and why they wanted to talk to them. 311 Or at 410. Nor,

under Backstrand, did the contact become a seizure because

the officers then asked them for identification. A request for

identification, in and of itself, is a request for information or

cooperation of the kind that falls outside of the constraints

of Article I, section 9. Backstrand, 354 Or at 409-10.

The remaining question is whether the circum-

stances as a whole transformed the encounter into a sei-

zure despite those conclusions. In particular, the question is

whether the content of the officers’ requests, the manner in

which they were made, or the overall context of the contact

elevated the encounter to the level of a seizure by conveying

to defendant and the driver that the officers would not allow

them to leave. The record does not suggest, however, that

the officers’ tone or manner were overbearing or controlling,

such that what otherwise were mere verbal exchanges were,

in fact, something more. Nor was the content of the brief

verbal exchange coercive. Zavala’s explanation of the offi-

cers’ reasons for the contact and the officers’ requests for

identification informed defendant and the driver that the

officers were interested in why they had come to the apart-

ment and what they knew about Wilson’s activities. That

information objectively conveyed possible suspicion that the

driver and defendant could be involved in criminal activ-

ity related to the apartment, but they equally conveyed that

the officers were interested in whatever information the two

might be able to provide. In all events, by those brief verbal

exchanges and inquiries alone, the officers did not commu-

nicate an exercise of authority of the kind required for a

seizure—i.e., authority to restrain. See Backstrand, 354 Or

at 413-16 (officer’s request for identification, even though it

might convey concern that defendant was under age in adult

book store and might not be permitted to remain inside, was

not sufficient, without more, to seize defendant); Ashbaugh,

349 Or at 317 (after arresting defendant’s husband, officer

returned to defendant, asked if she had anything illegal in

her purse, and asked for consent to search; encounter not a

454 State v. Anderson

seizure). The officers were uniformed, but took no physical

action other than to approach the parked car, and the officers

requested no physical action from defendant and the driver

at that point. Under those circumstances, the fact that there

was one more officer present than there were people in the

car would not cause a reasonable person seated in the car

to believe that the officers were significantly restricting his

or her liberty. Rather, the circumstances here fall into the

large category of cases in which police officers approach and

question persons sitting in parked vehicles without trig-

gering constitutional protections against unreasonable sei-

zures. See Wayne R. LaFave, 4 Search and Seizure § 9.4(a),

576 (5th ed 2012) (citing cases).9

Although the parties disagree whether the officers

seized the driver and defendant when they approached them

in the parked car and requested their identifications, they

concur that the two were seized when the officers asked

them to get out of the car. Given the totality of circum-

stances, including Johnson’s expressed disbelief in defen-

dant’s identification of himself as Steve Tipton, a reasonable

person would take the officers’ “requests” to exit the car to

be directives and would believe that his or her liberty was

significantly restrained. See State v. Jacobus, 318 Or 234,

236, 240-41, 864 P2d 861 (1993) (officer seized the defen-

dant by repeated “requests” that the defendant “step out” of

a parked vehicle). We therefore agree with the parties that,

given the attendant circumstances, defendant was seized at

that point for purposes of Article I, section 9.

9

Defendant relies on two of our prior decisions, State v. Warner, 284 Or 147,

585 P2d 681 (1978), and Rodgers/Kirkeby to argue that the officers’ request for

identification here constituted a seizure. We discussed both cases at some length

in Backstrand. 354 Or at 410, 412 (discussing Warner) and 406-07 (discussing

Rodgers/Kirkeby). Warner involved the “something more” than a mere request

for identification that this case and Backstrand lack. There, police made it clear

that the defendant and his companion were the central focus of their criminal

interest, and then asked for his identification, removed it from him physically,

and advised him that he could “be on [his] way” as soon as they could “clear

this matter up.” Warner, 284 Or at 150-52. In Rodgers/Kirkeby, the defendants

had been lawfully stopped, and thus already seized. The officers completed their

investigations, but then continued questioning the defendants. In that distinctive

context, such conduct meant that the officers’ verbal inquiries conveyed to the

defendants that they remained subject to the officers’ restraint, and thus were

seized for constitutional purposes. 347 Or at 627-28. Just as we concluded those

cases were distinguishable in Backstrand, we conclude they are distinguishable

here.

Cite as 354 Or 440 (2013) 455

But as we earlier observed, the trial court concluded

that, once defendant gave a false name to Johnson, the offi-

cers had reasonable suspicion to detain him. Defendant did

not challenge that conclusion in the Court of Appeals, and

he does not—and cannot, having not done so in the Court

of Appeals—challenge the trial court’s reasonable suspicion

determination now.10 Consequently, at the point that defen-

dant was first seized, there is no dispute that the officers

had reasonable suspicion for the seizure. The seizure was,

therefore, lawful.

CONCLUSION

The officers did not seize the driver and defendant

by walking up to the two in a parked car, inquiring into their

connection to an apartment that they had just approached,

and asking the two for their identifications. Those questions

did not constitute a sufficient show of authority to cause a

reasonable person under the circumstances to believe that

his or her liberty was significantly restrained and, there-

fore, did not constitute a “seizure.” The encounter rose to

the level of a seizure only once the officers asked the driver

and defendant to step out of the car. Defendant, however,

has not challenged the trial court’s conclusion that the offi-

cers at that point had reasonable suspicion for the seizure.

Because the seizure was lawful, the trial court correctly

denied defendant’s motion to suppress the items discovered

in the car.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.

WALTERS, J., dissenting.

I respectfully dissent. For the reasons I explain today

in State v. Backstrand, 354 Or 392, ___ P3d ___ (2013)

(Walters, J., concurring in the judgment), it is my view that

when an officer requests an individual’s identification in

10

The trial court did not specify whether it found reasonable suspicion based

on either or both of the grounds that Johnson identified, which were that he

believed that defendant had committed the crime of giving a false name to an offi-

cer, ORS 162.385 (crime to give false information to an officer for the purpose of

the officer’s arresting the person on a warrant or issuing a citation), and that, in

Johnson’s training and experience, people usually give false names to avoid being

arrested on an outstanding warrant or to avoid detection for criminal activity.

456 State v. Anderson

circumstances in which a reasonable person would believe

that he or she is being subjected to a criminal investiga-

tion and therefore must respond, provide the identification,

and remain until the officer completes the immediate inves-

tigation, the officer restrains the individual’s liberty and

effects a seizure under Article I, section 9, of the Oregon

Constitution.

In this case, officers were searching an apartment

as part of a criminal drug investigation when defendant

came to the open door of the apartment. When defendant

saw the officers searching the apartment, he walked from

the apartment to the car in which he had arrived and got

into the passenger’s seat. Three officers approached the car;

two stood on one side of the car and the other stood on the

opposite side. One officer was in uniform, another was wear-

ing a raid vest. One officer explained that the officers were

executing a search warrant at the apartment, that the officer

had been told that the driver and defendant had approached

the door of the apartment, and that the officer wanted to

know “who they were,” and “what interest they might have”

with what the officers were doing. That officer then asked

the driver for identification; another officer asked defendant

for identification.

The majority recognizes that the officers objec-

tively conveyed “possible suspicion” that defendant “could

be involved in criminal activity related to the apartment,”

but also suggests that the officers “equally conveyed that

[they] were interested in whatever information [defendant

and the driver] might be able to provide.” 354 Or at 453. The

majority then concludes that those “brief verbal exchanges”

did not “communicate an exercise of authority of the kind

required for a seizure—i.e., authority to restrain.” Id. at 453.

Neither, the majority concludes, did the fact that three offi-

cers surrounded the car. The majority reasons that the offi-

cers requested no physical action from defendant and that

there was only one more officer present than there were peo-

ple in the car. Id. at 454.

Although the majority recites the requirement that

the court consider the circumstances as a whole, id. at 453,

the majority does not wrestle sufficiently with the combined

Cite as 354 Or 440 (2013) 457

effect that the officer’s communication and conduct would

have on a reasonable person. When considered in combina-

tion, the facts that the officers were in the process of conduct-

ing a drug investigation, that the officers indicated that they

considered defendant a potential suspect in that investiga-

tion, and that the officers asserted physical authority over

defendant by surrounding the car in which he was seated,

add up to a show of authority that would have conveyed to

a reasonable person that he was the subject of a criminal

investigation and therefore was not free to leave or go about

his ordinary business until the immediate investigation was

completed. Id. at 455. See State v. Thompkin, 341 Or 368,

378-79, 143 P3d 530 (2006) (officers seized defendant, a car

passenger, when they requested and retained her identifica-

tion, conducted a records check, and questioned her about

drugs). The majority’s contrary conclusion is, in my view,

wrong.1

The reasoning that the majority uses to reach that

conclusion also illustrates two of the points that I seek to

make in my concurrence in Backstrand. First, in this case,

the majority correctly focuses on whether the officers’ com-

munication and conduct would cause a reasonable person

to believe that his or her liberty was restrained, and, in

doing so, calls attention to the majority’s different focus

in Backstrand. In this case, the majority does not consider

whether a reasonable person in the circumstances presented

would expect the officers’ conduct or consider it appropriate,

or whether the officers’ investigation continued for more

than a reasonable period—considerations that the majority

considered determinative in Backstrand. 354 Or at 415-16.

If such considerations were relevant to whether the officers

seized defendant, then, in this case, they would demonstrate

that the officers engaged in conduct that a reasonable per-

son would not expect or consider appropriate if engaged in

by others. The majority’s failure to address those consider-

ations in this case demonstrates either that those consider-

ations are not relevant to determine whether a seizure has

1

I recognize that the majority goes on to consider the officers’ actions after

obtaining defendant’s identification and concludes that those actions resulted in

a seizure. 354 Or at 442. I disagree only about the point in time at which the

seizure occurred.

458 State v. Anderson

occurred or, if they are relevant, that the majority is unwill-

ing to consider them in an instance in which they demon-

strate that a seizure did occur.

Second, in deciding that an individual who is sitting

in a parked car surrounded by officers who could be investi-

gating his involvement in drug activity is free to leave and

need not remain and respond to the officers’ inquiries, the

majority invites conduct that officers do not expect or intend

an individual in that circumstance to take. If the individual

were to make a move toward the door of the car or begin to

exit, the officers might reasonably believe that their safety

was threatened. The majority’s decision encourages the pub-

lic to act in ways that increase rather than reduce the risk of

conflict.

I respectfully dissent.

Baldwin, J., joins in this dissenting opinion.