State v. Ashbaugh

WALTERS, J.,

dissenting.

When uniformed police officers have no reasonable suspicion that a citizen is engaged in criminal activity, do those officers violate Article I, section 9, of the Oregon Constitution when they approach that citizen and, after obtaining her identification and checking for warrants, question her about whether she is committing a crime and whether they can search her purse for evidence of that crime?

*321 I conclude that officers who engage in that conduct seize the citizen in violation of the Oregon Constitution because a reasonable citizen subjected to that inquiry could conclude that the officers’ legal show of authority restrained that citizen’s liberty. Because the majority reaches the opposite conclusion, without a reasoned basis for doing so, I respectfully dissent.

In this case, the state conceded, and the majority proceeds on the assumption, that the officers seized defendant and violated her rights under Article I, section 9, when, without reasonable suspicion that she was engaged in criminal activity, they approached her, obtained her identification, and checked for outstanding warrants. 349 Or at 302 n 2,306 n 6. That conclusion is compelled by this court’s decision in State v. Hall, 339 Or 7, 18 , 115 P3d 908 (2005). In Hall , an officer requested, obtained, and returned the defendant’s identification card and radioed for a warrant check. The court held that, when the officer did so, he restrained the defendant’s liberty of movement and seized the defendant because it is “difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check.” Id. at 19 .

I do not see a constitutional distinction between subjecting a person to a check for outstanding warrants and subjecting a person to a check for illegal drugs. If a reasonable person in the former position would not feel free to leave, why would a reasonable person in the latter position be more bold?

Furthermore, this court previously has decided that, when the police obtain a citizen’s identification and subject him to an investigation for robbery, they seize him. State v. Warner, 284 Or 147 , 585 P2d 681 (1978). In Warner , the police approached the defendant to investigate a robbery, and

“this court held that, at the moment that the officer told the defendant to place his identification card on the table and advised the defendant that he was the subject of a criminal investigation [for robbery], the officer had seized the defendant by a show of authority for purposes of ORS 131.615 *322 (1975), amended by Oregon Laws 1997, chapter 866, section 1, and Article I, section 9. [ 284 Or at 165 ].”

Hall, 339 Or at 18 (emphasis added). 1

In State v. Thompkin, 341 Or 368 , 143 P3d 530 (2006), this court applied the rule of Warner and Hall to a person who was the subject of a drug investigation. In Thompkin , the police lawfully stopped a car in which the defendant was a passenger. The court held that the police unlawfully seized the defendant when one officer requested and retained his identification to conduct a records check while another questioned him concerning drugs and weapons. The court said,

“Here, as in Hall , we find it doubtful that a reasonable person in defendant’s position would think that he or she was free to leave at a time when that person was the investigatory subject of a pending warrant check and was being questioned about illegal activity.”

Id. at 378-79 (emphasis added).

This court’s most recent seizure case, State v. Rodgers/Kirkeby, 347 Or 610 , 227 P3d 695 (2010), is in accord. In that case, an officer lawfully stopped the defendant, Rodgers, a motorist, to investigate a traffic infraction, obtained and returned his driver’s license, and completed a check for outstanding warrants, finding none. Then, without advising the defendant that that investigation had been completed, one officer asked the defendant about the contents of two containers that the officer had observed in the car and whether the officer could search the car, while the other officer stood at the passenger side of the car.

The court held that, although the police had reasonable suspicion to stop the defendant and question him about the traffic violation, they seized him without reasonable suspicion and violated his rights under Article I, section 9, when they engaged in a “show of authority” after the traffic investigation was, or should have been, complete. Id. at 622 . In *323 reaching that conclusion, the court first noted that when a police officer uses official authority to stop and question a citizen, the citizen is legally required to obey and “interact with” the police officer. Id. at 623 (citing ORS 811.535 (failure to obey a police officer), ORS 807.570 (failure to carry or present a license), and ORS 807.620 (prohibiting giving false information to police officer)). The police therefore seized the defendant when they stopped him and investigated the traffic violation. When that investigation was complete, the officers did not tell the defendant that he was free to go and therefore continued to seize him. Because they did so without reasonable suspicion that the defendant was involved in criminal activity, the police violated the defendant’s rights under Article I, section 9. The court observed that the defendant “had no way of knowing that [the officer’s] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the drug] investigation was not required to continue.” Id. at 626 .

The other defendant in that case, Rirkeby, also a motorist, got out of his car after he was stopped by a deputy and voluntarily produced his driver’s license. The deputy knew that the defendant was driving with a suspended license, but did not question him about that violation or issue a citation. Instead, the deputy, concerned for his safety, asked the defendant if he had any weapons. When the defendant denied that he did, the deputy asked if he could conduct a patdown search of the defendant. The defendant agreed and, after conducting the search, the deputy was confident that the defendant was not armed. Nevertheless, the deputy asked the defendant for permission to examine the contents of his pockets. The court held that the “deputy’s show of authority that accompanied his request that [the] defendant consent to a patdown and subsequent request that [the] defendant consent to an examination of the contents of [the] defendant’s pockets” was “a significant limitation on [the] defendant’s freedom of movement” and constituted a seizure under Article I, section 9. Id. at 628 .

Here, had the majority applied the reasoning of its prior cases, it would have concluded that defendant was similarly seized and that her rights under Article I, section 9, were similarly violated. Applying Hall, Warner, and Thompkin , the majority would have concluded that defendant was seized *324 because the police obtained her identification and subjected her to a criminal investigation, and it is “difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a [criminal investigation],” Hall, 339 Or at 19 , or “[is] being questioned about illegal activity,” Thompkin, 341 Or at 379 .

Applying Rodgers / Kirkeby, the majority would have concluded that defendant was seized because, after their initial seizure of defendant, the officers did not tell her that she was free to go, and she “had no way of knowing that [the officer’s] questions and request to search [her purse] were not part of the [initial investigation] and that [her] cooperation in [the drug] investigation was not required to continue.” 347 Or at 626 . Applying Rodgers /Kirkeby, the majority also would have concluded that the officer’s “show of authority” in requesting consent to search constituted a seizure. 347 Or at 628 .

Instead of reaching any of those conclusions, the majority declares that the officer who questioned defendant did not engage in a “show of authority” that would “convey to a citizen that she was not free to go.” 349 Or at 317. Of the contrary cases that I have cited, the majority attempts to distinguish only Rodgers/Kirkeby. The majority asserts that this case is different from Rodgers /Kirkeby because the officers in this case did not position themselves in a way that “would suggest to defendant that she was surrounded.” 349 Or at 317.

That distinction fails for two reasons. First, there was no evidence in Rodgers/Kirkeby that the defendant Kirkeby was “surrounded” by the one officer who questioned him, and the defendant in this case was at least as “surrounded” by the two officers who questioned her as was the defendant Rodgers in Rodgers/Kirkeby . This defendant was seated on the ground when two officers who had just arrested and handcuffed her husband continued to question her. If Rodgers, who was at the wheel of a car and could drive it away, was restrained by two officers who stood near the car, then defendant in this case, who was without a similar means of departure, also was restrained by the two officers who stood near her.

*325 Second, although the court in Rodgers/Kirkeby noted the positions of the two officers who questioned the defendant Rodgers in its account of the “totality of the circumstances” that affected him, the court did not take note of the position of the one officer who requested the defendant Kirkeby’s consent to search, or comment that the officer had physically restrained him. The court focused, as did the courts in Warner, Hall, and Thompkin , not on the physical, but on the legal “show of authority” that the police exhibited and exerted when they subjected those defendants to questioning. In this case, the officers, like those in Rodgers/ Kirkeby and the cases leading up to Rodgers/Kirkeby , were in uniform, obtained defendant’s identification, and subjected defendant to legal obligations parallel to those that the court found pertinent in Rodgers/Kirkeby. See ORS 811.535 (failure to obey a police officer); ORS 162.247(l)(b) (failure to obey a peace officer); and ORS 162.385 (prohibiting giving of false information for a citation or arrest on a warrant). The officers in this case, like those in Rodgers /Kirkeby, subjected defendant to an investigation for outstanding warrants, and defendant reasonably believed that she was required to cooperate with that investigation. When those same officers continued their criminal inquiry without telling defendant that she was free to go, defendant had no way to know that her cooperation was not required and she was seized.

When the majority declares, instead, that a reasonable person in defendant’s circumstances would not believe that the police had restrained her liberty, 349 Or at 317-18, it ignores not only the legal authority that the police exhibited, but also social science research that demonstrates that people subjected to such authority believe that they are required to cooperate with the police and are not free to leave when subjected to questioning.

“[T]he available evidence suggests most people perceive an investigative encounter to be a seizure.” Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L Rev 507, 556-57 (2001). Empirical studies have shown that several features unique to police-citizen encounters undermine the idea that such encounters are consensual. See Janice *326 Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup Ct Rev 153, 173 (2002) (features include whether investigator is a legitimately constituted authority). Those studies show that an officer’s status as an authority figure leads citizens to believe that their cooperation is required, not requested:

“[T]he listener is likely to conclude that an utterance is in fact a directive, or an order to be followed. For example, citizens generally do not interpret ‘Can I please see your license and registration?’ as spoken by a police officer as a genuine request; it is a command, and everyone understands this. * * * Importantly, authority figures do not need to employ highly face-threatening language to achieve their goal.”

Nadler, 2002 Sup Ct Rev at 188 (citing Thomas Holtgraves, Communication in Context: Effects of Speaker Status on the Comprehension of Indirect Requests, 20 J Exp Psychol: Learning, Memory, & Cognition 1205 (1994)). In a survey of 54 citizens involved in vehicle searches, 49 of whom consented to the search, 47 responded that they were afraid of what might happen should they refuse.

“Their fears included having their trip unduly delayed, being searched anyway, incurring property damage to their car if they refused and police searched anyway, being arrested, being beaten, or being killed. * * *.

“When asked if they felt the police would have honored their request if they had refused, only one citizen answered ‘yes,’ and one did not know. All of the remaining respondents (96%) felt that police would not have honored their refusal and would have searched them anyway. Their concerns were apparently well founded: of the five motorists who declined to consent to the search, two reported being searched despite their explicit refusal to consent. Another motorist who refused to consent was not searched but was threatened with future retaliation.”

Nadler, 2002 Sup Ct Rev at 202-03 (citing Iliya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry Into the “Consensual” Police-Citizen Encounter (1999) (unpublished Ph.D. dissertation, Rutger’s University)).

*327 By citing those studies, I do not suggest that this court determine the meaning of the constitutional term “seizure” by engaging in a normative inquiry. What I do suggest is that, in giving effect to that term, this court use a mode of analysis that allows for the fact that our society is not homogenous and that, although some reasonable people may conclude that they are free to walk away from an officer who questions them, others, just as reasonably, may conclude otherwise. The analysis that the court announced in State v. Holmes, 311 Or 400, 409-10 , 813 P2d 28 (1991), and applied in State v. Toevs, 327 Or 525, 535 , 964 P2d 1007 (1998), State v. Juarez-Godinez, 326 Or 1, 6, 942 , P2d 772 (1997), State v. Dahl, 323 Or 199, 207-08 , 915 P2d 979 (1996), and State v. Ehly, 317 Or 66, 78-79 , 854 P2d 421 (1993), was designed to do just that.

That analysis allows a court to ascertain, as it often does in other contexts, the belief or conclusion that a particular citizen had or reached, but to refrain from giving effect to that belief or conclusion if it does not fall within the range of reasonableness. See, e.g., T. R. v. Boy Scouts of America, 344 Or 282 , 181 P3d 758 (2008) (factfinder determines whether plaintiff knew that defendant had a role in causing injury; court determines whether that conclusion objectively reasonable); Delgado v. Souders, 334 Or 122, 137 , 46 P3d 729 (2002) (factfinder determines whether plaintiff was alarmed and had reasonable apprehension regarding personal safety; court determines whether belief objectively reasonable); State v. Villagran, 294 Or 404, 408 , 657 P2d 1223 (1983) (magistrate decides that probable cause to believe search would discover items specified in affidavit and court reviews whether neutral and detached magistrate reasonably could reach that conclusion); State v. Krummacher, 269 Or 125, 137-38 , 523 P2d 1009 (1974) (court may not agree with jury’s conclusion but must affirm if within realm of reasonableness).

The sole reason that the majority gives for abandoning that Holmes analysis is that “this court has seemed disinclined” to use it. 349 Or at 314. Although the majority does not assert that the Holmes formulation was unworkable or caused difficulty for the police, I note that that formulation permits the police to subject citizens to criminal inquiry as *328 long as they have reasonable suspicion that the citizens are engaging in criminal activity, and to do so, even without reasonable suspicion, if they directly inform the citizens (and do not engage in contradictory action).

In evaluating whether a person who is confronted by a police officer is seized, a trial court should not engage in the task of deciding whether a hypothetical person with unidentified characteristics and experiences would or would not feel free to leave; it should determine whether, as a matter of fact, the particular defendant believed that she was free to leave, and then, as a matter of law, whether the defendant’s belief was within the range of reasonable beliefs. That mode of analysis is well-known to the trial courts and accommodates the diversity of our citizenry. 2

In deciding that the only reasonable belief that the defendant in this case could have had was that she was free to walk away from the officers who questioned her, this court ignored not only defendant’s personal reaction to the situation that she faced, but also the expectations that the law imposed on her and on all citizens who are subjected to police encounters. Even if there were good reasons for the majority to preclude consideration of the former, the majority erred in failing to consider the effect of the latter on the issue of objective reasonableness.

ORS 131.615 permits police officers to stop citizens and request their consent to search, but only when the officers have reasonable suspicion of criminal activity. ORS 162.247, ORS 162.385, and ORS 811.535 require citizens to obey police orders and provide police officers with accurate information. When a uniformed officer approaches a citizen and conducts a criminal inquiry, it is therefore reasonable for *329 the citizen to understand that the officer has the required justification and, thereby, authority to detain the citizen, and it is legally reasonable for the citizen to act accordingly. If an officer approaches a citizen and conducts a criminal inquiry without reasonable suspicion, the citizen does not have any way to know that that suspicion is lacking or that the officer has made an unjustified request that can be ignored. If a citizen refuses to cooperate and is incorrect in doing so, the encounter may escalate and the citizen may violate the law. The law does not encourage a citizen to challenge police authority; it expects the citizen to recognize that authority and behave in accordance. When the citizen remains and submits to police investigation, believing that he or she must do so, he or she acts reasonably.

Although the Oregon legislature may require the citizens of this state to cooperate with legitimate governmental inquiries, those citizens have a concomitant constitutional right to expect that the government will respect their privacy and not subject them to unreasonable scrutiny. See State v. Tanner, 304 Or 312 , 321-22 n 7, 745 P2d 757 (1987) (rights under Article I, section 9, defined by privacy one has a right to expect from government). The rights against unreasonable search and seizure that Article I, section 9, guarantees are rights that are held in common by all “the people” of this state — those who drive its roads, certainly, but also those who sit in its parks and walk its sidewalks as they live their daily lives. When this court permits the police to approach any one person and, without reasonable suspicion of criminal activity, request her identification and conduct a criminal inquiry, it interferes with the rights of all people to be free of unwarranted official scrutiny. I respectfully dissent.

In Hall , the court also noted that in State v. Kennedy, 290 Or 493 , 624 P2d 99 (1981), a case in which “two police officers approached the defendant as he was preparing to exit the Portland airport and informed him that they had information that he might be in possession of illegal drugs,” the court assumed that the police interaction with the defendant was unlawful. Hall, 339 Or at 30-31 .

The Holmes formulation also benefits the state in that it would permit a court to consider, in deciding whether a citizen was seized, the citizen’s acknowledgment that she believed that she was free to leave, and, if that belief is reasonable, to conclude that the citizen was not seized even if a hypothetical reasonable person would, in the majority’s view, have believed to the contrary. See State v. Salvador, 237 Or App 424, 431-32 (2010) (Court of Appeals decided that defendant was not seized in part based on his concession “that he felt ‘100 percent’ free to leave the scene.”) See also State v. Ford, 310 Or 623, 642-43 , 801 P2d 754 (1990) (Carson, C. J., specially concurring) (explaining that test of when “knock and announce” requirements will be excused should have subjective component to ensure that apprehension actually exists).