State v. Ashbaugh

¶1concurring in part and dissenting in part.

¶2I agree, for the reasons stated in the majority opinion, that the case must be remanded for findings about whether defendant believed that she had been detained. *33Because a finding on remand that defendant, in fact, believed that she was not detained would end the matter, the balance of the majority’s opinion is dictum. I express no opinion about the majority’s — or the concurrence’s or the dissent’s — views about whether a reasonable person could feel detained under the circumstances.

¶3dissenting.

¶4The lead opinion’s interpretation of Article I, section 9, in this case has far-reaching implications on how law enforcement agencies throughout the state conduct drug-related inquiries of private citizens in all types of circumstances — whether it be an encounter between a police officer and a citizen in a public place or whether an officer contacts a citizen at the citizen’s private residence and requests consent to search the citizen’s premises. The majority holds that a noncoercive conversation between a police officer and a citizen during which the officer asks for consent to search constitutes a “seizure” of the person. For the reasons discussed below, I disagree with the majority.

¶5The majority remands to the trial court for a determination of whether defendant subjectively believed that her liberty or freedom of movement was interfered with when the officers contacted her a second time and after the officers had arrested her husband for a violation of a Family Abuse Prevention Act restraining order. It holds that, under the circumstances of this case, if she believed that her liberty was being interfered with, that belief was objectively reasonable and that she was “seized” for purposes of Article I, section 9. The lead opinion’s conclusion is inconsistent with the trial court’s findings and with a proper interpretation of existing precedent under Article I, section 9.

¶6The trial court found that defendant’s identification was returned to her at 2:17 p.m. It also found,

“The police arrested and handcuffed the husband. Within ear shot of his wife, the husband asked the officers if she [defendant] could take his bike and backpack. [Officer] Baroncliffe said that she could. All four also discussed the restraining order situation. The wife explained that she and her husband had problems in the past, but they were *34trying to work things out and were living together. The defendant knew she was not being detained.

“The conversations between the police and the Ashbaughs were relaxed and nonconfrontational.

“At 2:30, both officers escorted the husband to a patrol vehicle that had arrived. They walked with their backs to the defendant as they went from the park to the public street about forty feet away. The defendant observed the activity.

“At approximately 2:33, the officers walked back to the area where the defendant remained. Schaer intended to ask the defendant if she would take her husband’s bicycle and backpack. The officers also needed to retrieve their own bikes. The officers did not suspect Ms. Ashbaugh of any wrongdoing.

“ ‘Something just made’ Schaer ‘want to ask’ the defendant if she had anything illegal in her purse, and he asked her that question. She responded no. The officer then inquired if he could look through her purse, and the defendant said yes. Again the conversation was relaxed and nonconfrontational.

“The search and arrest occurred as Officer Schaer described. The arrest took place at 2:40.”

¶7(Emphasis added.)

¶8As a reviewing court, we are bound by a trial court’s historical finding if supported by the evidence in the record. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). Under the consent exception to the search warrant requirement in Article I, section 9, of the Oregon Constitution, the suppression of evidence obtained during a consent search may be necessary to vindicate a defendant’s rights that were violated by earlier police conduct. State v. Weaver, 319 Or 212, 219, 874 P2d 1322 (1994). Thus, Article I, section 9, may require exclusion of evidence from an otherwise voluntary consent on the ground that the consent is derived from a preceding violation of the defendant’s rights under the state constitution. State v. Hall, 339 Or 7, 20-21, 115 P3d 908 (2005). Here defendant argues, in part, that her freedom or liberty of movement was unlawfully restricted when the officers *35approached her on a second occasion and engaged in a conversation with her. Before that time, the trial court found— and there is evidence to support the finding — that defendant knew she was not being detained.

¶9The evidence shows that, when the officers returned to defendant’s location, Officer Schaer initially asked her if she would take her husband’s belongings. In the abstract, the tests for whether a seizure of defendant occurred at that point in time are as the majority recites: “(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.” State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991) (footnote omitted). Presumably, the majority and I agree that no seizure occurred under either test when the officers approached defendant and asked her whether she was willing to take possession of her husband’s belongings.

¶10After Schaer asked the above question, he asked defendant if she had anything illegal in her purse, and when she said, “no,” he asked whether he could search her purse. To that inquiry, defendant replied, “yeah, sure.” The majority agrees that Schaer’s questions were not an attempt to exploit the earlier unlawful retention of defendant’s identification. Rather, the majority applies a Holmes type (b) analysis and concludes that a reasonable person could believe his or her liberty or freedom of movement was being restricted because of Schaer’s questions and that the only remaining issue is whether defendant held the subjective belief that she was being detained. On that question, the majority remands to the trial court.

¶11The lead opinion errs by requiring that a Holmes type (b) analysis be applied in this case on remand. The Holmes court could not have intended a type (b) test to be applied where there is no evidence in the record of what defendant believed regarding her freedom to decline the officer’s requests and to leave their presence. Importantly, defendant did not testify at the hearing, and I am aware of no evidence in the existing record from which a trier of fact could *36draw a reasonable inference regarding her subjective state of mind. Thus, on remand, the trial court has no evidentiary basis on which to make the finding required by the remand. Even if the evidentiary record is reopened on remand, the state cannot compel defendant to testify regarding her state of mind at the time that she was asked for her consent to search her purse. Admittedly, it is unclear what circumstances the Holmes court had in mind when it interpreted Article I, section 9, to embody a type (b) analysis, but the court could not have contemplated a process where the state is effectively unable to litigate the issue that has been framed by the majority as determinative of the outcome of this case and where the trial court is required to make a finding that is impossible for it to make.

¶12Because a type (b) analysis is not applicable to the circumstances of this case, the only remaining issue is whether Schaer’s questions about whether defendant had anything illegal in her purse and whether she would consent to a search of her purse were unlawful under a Holmes type (a) analysis. No statute prohibits Schaer from asking defendant to consent to a search, and the trial court expressly found that the questions were not asked in a coercive manner.1 Because there is evidence to support the trial court’s finding in that regard, this court is bound by it. Consequently, Schaer’s questions can only be deemed unlawful if they significantly interfered with defendant’s freedom or liberty of movement in violation of Article I, section 9, because of their content. In other words, did Schaer’s questions regarding whether defendant had anything illegal in her purse and whether he could look through her purse operate to seize her person unlawfully?

¶13Whether defendant’s liberty of movement was significantly interfered with by Schaer is a question of law based on the totality of the factual circumstances. State v. Toevs, 327 Or 525, 535, 964 P2d 1007 (1998). Under Article I, section 9, “law enforcement officers may approach persons on the street or in public places, question them, and even accompany them to another location without the encounter *37necessarily constituting a ‘seizure’ of a person under Article I, section 9.” Holmes, 311 Or at 409. “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.” Id. at 410.

“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.”

¶14Id. (emphasis added). Here, although Schaer made inquiries of defendant that a private citizen would not have made, he engaged in only a noncoercive conversation in a manner that would not be perceived as offensive had the conversation occurred between two ordinary citizens. Nonetheless, the majority holds that the officer’s questions imposed an unlawful restraint on defendant’s freedom of movement. But the proper interpretation of Article I, section 9, is that a noncoercive conversation between a citizen and a police officer does not offend the constitutional prohibition against unreasonable searches and seizures, even if the conversation includes a request for permission to search a person or the person’s belongings. See also State v. Dahl, 323 Or 199, 915 P2d 979 (1996).2

¶15In fact, this court has specifically rejected the lead opinion’s reasoning in State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 622-23, 842 P2d 807 (1992). Fikesinvolved facts closely analogous to this case. An officer approached the youth on the street and told him of neighborhood complaints of drug activity. The officer then asked him for consent to search the youth’s person, and the youth responded, “Yeah, *38go ahead.” We explained, relying on Holmes’s identification of categories of encounters between police and citizens, that, although the officer’s

“request to search was not an inquiry that one private citizen would usually make to another, he otherwise conducted himself in a manner that would be perceived as a nonoffensive contact between two citizens. Although he was wearing a uniform, [the officer] took no coercive action of any kind.”

¶16Id. at 623. Accordingly, we held that, “even assuming that [the] child believed that he was not free to leave, … that belief was not objectively reasonable under the circumstances." Id. at 622 (emphasis added).

¶17Based on the principle of stare decisis, our interpretation of Article I, section 9, in Fikesis controlling in this case. Thus, the majority is forced to assert that Fikes“was wrong when it was decided,” particularly in light of its understanding of the holding in State v. Hall, 339 Or 7, 115 P3d 908 (2005). 225 Or App at 26. However, the lead opinion’s claim— that Hallhas implicitly overruled Fikes— should be considered carefully in light of the issue that was actually decided in Hall.

¶18In Hall, the trial court relied on the holding in Fikesin making its ruling on the defendant’s motion. See Hall, 339 Or at 11 n 4. Although the Supreme Court reversed the trial court in Hall, it reversed on a different basis than on which Fikeswas decided. The facts in Halldemonstrate that proposition. The officer in Hallstopped his vehicle next to the defendant, who was walking along a street. The officer then gestured to the defendant to approach him. When the defendant approached the officer, the officer got out of his vehicle and asked the defendant if he had any personal identification. The defendant handed the officer an identification card, which the officer used to radio the police dispatch to check for outstanding warrants. Before the officer received any information back from his dispatcher and after he had returned the identification card to the defendant, the officer asked the defendant for consent to search, and the defendant responded, “no, go ahead.”

¶19On those facts, the Hallcourt held that the officer’s gesture to the defendant to approach the officer’s patrol car *39did not intrude on the defendant’s liberty of movement, even though the gesture changed his direction of travel and inconvenienced him. The court explained that “[the officer’s] actions did not constitute a show of authority involving conduct ‘significantly beyond that accepted in ordinary social intercourse.’ ” 339 Or at 19. In other words, gesturing to a person to approach so that a conversation could occur is the kind of social conduct that occurs ordinarily in encounters in our society. Indeed, the Hallcourt specifically recognized the principle in Holmes that “the pivotal consideration is whether ‘the officer, even if making inquiries a private citizen would not, has otherwise conducted [himself or herself] in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.’ Holmes, 311 Or at 410.” Hall, 339 Or at 18. It follows from a proper understanding of the Hallopinion that, had there existed nothing more than a conversation between the defendant and the police followed by a request by the police to search the defendant, the motion to suppress would have been properly denied because the officers had not exercised their authority as officers or sought consent to search through coercive means.

¶20When, however, the officer in Halltook the defendant’s identification card and the defendant became cognizant that the officer was investigating whether there were outstanding warrants for his arrest, the consensual nature of the encounter dissipated and the encounter evolved from a ‘’’mere conversation’ encounter into a restraint upon [the] defendant’s liberty of movement.” Id. at 19. It is the evolution from a conversation to an exercise of police authority that is missing in the circumstances in both this case and in Fikes. In contrast to what happened in Hall, Schaer’s “relaxed and nonconfrontational” questions to defendant merely continued the conversation rather than causing it to evolve into a deprivation of defendant’s liberty of movement in violation of Article I, section 9.

¶21The circumstances in Toevsfurther illustrate the difference between conversation accompanied by police-initiated coercion and what occurred in this case — i.e., mere conversation without any element of coercion. In Toevs, the officer first told the defendant that he was free to go after the *40officer had decided not to issue a citation for a traffic violation. However, after making that statement, the officer immediately asked the defendant if he could search the defendant’s vehicle. The defendant asked the officer if the officer was accusing him of anything, and the officer responded that he was not accusing the defendant of having committed any criminal offense but wondered why the defendant would not consent to a search if he was not hiding anything. The officer then repeated his request for consent to search both the defendant and the defendant’s vehicle and also inquired if there were any drugs in the defendant’s vehicle. To those statements, the defendant responded that he did not have any drugs, and he refused to consent to a search.

¶22At that point in time, another officer approached the defendant and interrupted the conversation that had been occurring. That officer asked the defendant in a “low key” and “friendly” manner “if he had any dope in the vehicle.” The defendant answered, “no.” However, based on the defendant’s appearance and demeanor, the officer believed that the defendant might have ingested methamphetamine. That officer then told the defendant that he would feel better if he was honest with the officers and if he admitted that he had drugs in the car, if indeed that was the case. The second officer then asked again if the defendant had any drugs in the vehicle, and the defendant responded, “there is a little in the truck.” In essence, the officers’ continued detention of the defendant in Toevsovercame his initial refusal to consent to a search. See also State v. Ehret, 184 Or App 1, 55 P3d 512 (2002) (holding that a continued unlawful detention after a lawful traffic stop resulting in a consent to search was an exploitation of a prior illegality in violation of Article I, section 9).

¶23On those facts, the Supreme Court ruled that a reasonable person in the defendant’s position could have believed that the officers had significantly restrained his liberty or freedom of movement. Toevs, 327 Or at 536. In particular, the court observed that, “[w]hen it became apparent that [the first officer] was unable to obtain defendant’s consent to a search, [the second officer] also approached defendant and interrupted [the first officer]. [The second officer] then asked defendant two more times if he had any drugs in *41the vehicle.” Id.The court concluded, “Indeed, the officers’ continuous show of police authority constituted conduct that was ‘significantly beyond that accepted in ordinary social intercourse, … [and that] through that conduct, they continued to detain defendant.’ ” 327 Or at 536-37.

¶24The circumstances in this case are in stark contrast to the circumstances in Toevs. After her identification was returned to her, defendant was left alone while both officers escorted her husband to the patrol car some distance away. There is no evidence that she was told by the police to remain at the location where she was seated. Unlike what occurred in Toevs, there were no multiple requests by Schaer for consent to search or circumstances where defendant initially refused the request to search followed by subsequent efforts by the police to overcome her will; rather, defendant responded to the sole request by Schaer to search her purse by responding, “yeah, sure.”

¶25In summary, the encounter that occurred between defendant and Schaer after the officers returned to defendant’s location consisted merely of a conversation unaccompanied by any coercive verbal or physical conduct on the part of the officers. Applying a Holmes type (a) analysis, I would hold that Schaer’s questions did not effect a seizure of defendant’s person for the reasons discussed above. Accordingly, I dissent from the lead opinion’s holding.