State v. Onstad

¶1Defendant was indicted for delivery and possession of a controlled substance. ORS 475.992. Before trial, the trial court granted his motion to suppress evidence. The state appeals, and we reverse.

¶2At approximately 9:30 p.m. on March 1, 1995, an officer was driving in a marked patrol car eastbound on West Burnside Street in Portland near the intersection of NW 20th Avenue and Burnside. He saw defendant walking with a woman westbound on the opposite side of the street and carrying a brown paper bag out of which the top of a bottle protruded. The officer was acquainted with defendant and, believing that defendant was carrying an open container of beer, stopped his car in the intersection, turned on his four-way emergency flashers and called out defendant’s name. As defendant turned toward the officer, defendant pulled a white bindle from his jacket pocket and tucked it in the waistband of his pants.

¶3After the officer left his patrol car, he saw that defendant was carrying a malt liquor bottle, that the bottle’s seal was broken and that it was partially empty. The officer spoke to defendant about the open bottle,1 and then pointed to defendant’s waistband and asked him if the bindle contained cocaine. Defendant replied affirmatively, and the officer retrieved the bindle, which contained three packets of cocaine. Defendant was eventually arrested for delivery and possession of a controlled substance.

¶4In his pretrial motion, defendant moved to suppress the bindle and evidence of his statements to the officer. He argued that the officer’s conduct in stopping the police car, turning on his emergency flashers, and calling defendant’s name constituted a “seizure” for purposes of Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution and that the officer lacked probable cause under the circumstances to make a seizure. The trial court granted the motion to suppress,2 and the state appeals.

¶5*152In State v. Holmes, 311 Or 400, 813 P2d 28 (1991), the court explained that some encounters between a police officer and an individual do not constitute a seizure and, therefore, do not require any justification. Rather, a seizure of a person under Article I, section 9, occurs

“(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.” Id. at 409-10.

¶6Thus, an officer may “approach persons on the street or in public places, … [and] request or impart information, or question them without being called upon to articulate a certain level of suspicion in justification.” Id. at 410. The encounter becomes a seizure only if the officer engages in conduct significantly beyond that accepted in ordinary social contacts and which has the effect of significantly restricting the individual’s liberty or freedom of movement.

¶7We conclude that the officer’s actions in this case did not constitute a seizure of defendant.3 When he parked in the intersection, the officer turned on his emergency flashers, a feature that all automobiles carry. He did not turn on his overhead lights, which are typically used to stop people; he did not block defendant’s path and he did not display any show of physical force or in any other way communicate to *153defendant that defendant was not free to leave. The fact that the officer and defendant were acquainted, which resulted in the officer calling defendant by name, did not significantly restrict defendant’s liberty either. If anything, the officer’s familiarity with defendant made the officer’s conduct more like an encounter that would ordinarily occur between two acquaintances. We hold that the trial court erred in determining that the officer’s conduct constituted a seizure or stop before he observed the bindle. We also conclude that the officer’s conduct did not constitute a seizure under the Fourth Amendment. See Holmes, 311 Or at 413-14 (explaining that the test under the Fourth Amendment is similar to the test under Article I, section 9, in that an officer must “meaningfully deprive defendant of his liberty or freedom of movement”) (emphasis in original). Because we have concluded that there was no seizure, we need not reach the state’s other arguments.

¶8Reversed and remanded.