State v. Almahmood

                                       795

Argued and submitted May 31, 2019, reversed and remanded January 27, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     AHMED ALMAHMOOD,
                       Defendant-Appellant.
                  Washington County Circuit Court
                       17CR20550; A166206
                                    

     Police officers removed defendant from a TriMet train after he failed to show
valid proof that he had paid his fare. After a records check revealed that defendant had been banned from riding TriMet trains, officers arrested him and found
brass knuckles during a search incident to arrest. Defendant was charged with
weapons crimes and theft of services. Before trial, defendant filed a motion to suppress, arguing that officers had unlawfully seized him when they ordered him to
show proof that he had paid his fare and asserting that evidence found as a result
of the fare check should not be admitted at trial. The trial court denied the motion
and convicted defendant of the charged crimes following a bench trial. On appeal,
defendant challenges the trial court’s denial of his motion to suppress. Held: The
officers seized defendant when they ordered him to show proof of fare payment,
and, in this case, the state did not meet its burden of establishing that the seizure
was reasonable for the purposes of Article I, section 9, of the Oregon Constitution.
The trial court therefore erred when it denied defendant’s suppression motion.
That error was not harmless.
    Reversed and remanded.



    Beth L. Roberts, Judge.
   Sarah De La Cruz, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   David B. Thompson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Anna M. Joyce and Markowitz Herbold PC filed the brief
amicus curiae for Tri-County Metropolitan Transportation
District.
796                                                   State v. Almahmood

  Before Tookey, Presiding Judge, and Shorr, Judge, and
Hadlock, Judge pro tempore.*
   HADLOCK, J. pro tempore.
   Reversed and remanded.




______________
   * Hadlock, J. pro tempore, vice Armstrong, P. J.
Cite as 

 (2021)                                                 797

           HADLOCK, J. pro tempore
         Police officers removed defendant from a TriMet
train after he failed to show valid proof that he had paid
his fare. After a records check revealed that defendant had
been banned from riding TriMet trains, officers arrested him
and found brass knuckles during a search incident to arrest.
Defendant was charged with felon in possession of a restricted
weapon, carrying a concealed weapon, and theft of services.
Before trial, defendant filed a motion to suppress, arguing
that officers had unlawfully seized him when they ordered
him to show proof that he had paid his fare and asserting
that evidence found as a result of the fare check should not
be admitted at trial. The trial court denied the motion, and it
convicted defendant of the charged crimes following a bench
trial. On appeal, defendant challenges the trial court’s denial
of his motion to suppress. As explained below, we conclude
that the officers seized defendant when they ordered him to
show proof of fare payment. We also hold that, in this case,
the state did not meet its burden of establishing that the seizure was reasonable for purposes of Article I, section 9, of the
Oregon Constitution. The trial court therefore erred when it
denied defendant’s suppression motion. That error was not
harmless. Accordingly, we reverse and remand.
         For purposes of this appeal, the facts are not in
dispute. At the suppression hearing, Tualatin police officer
Radakovich described the events leading up to his presence
on the TriMet train, defendant’s arrest, and the associated
search. Radakovich explained that TriMet contracts with
local police agencies “to help enforce the laws and safety
and security of the TriMet lines.” On the day in question,
Radakovich was “contracted from Tualatin to TriMet” and,
in conjunction with that assignment, boarded a TriMet train
along with three other officers, who “spread out throughout the train.” The officers were “trying to make more of
a visual presence and at the same time checking fares.”1

     1
       Although the record does not include direct evidence that the police officers
were in uniform when they boarded the train, Radakovich’s reference to a “visual
presence” suggests as much, and defendant asserted in the trial court without
contradiction that the officers were uniformed. Our analysis, like the parties’
arguments, therefore assumes that the officers were readily identifiable as police
officers when they conducted the fare check.
798                                                   State v. Almahmood

The officers loudly announced that they were “doing a fare
check,” and they told passengers to display proof of the fares
they had paid. Radakovich then checked passengers’ fares
“row by row.” Another officer asked defendant for proof of
payment. Defendant displayed a picture on a phone, but it
was not valid proof that he had paid his fare. Defendant was
arrested, and officers found brass knuckles on defendant’s
person during a search incident to arrest.
         Radakovich later testified at the suppression hearing that officers removed people from the train if—like
defendant—they did not show valid proof of payment and
that officers “detained [those people] until we figured out
what was going on.” Radakovich acknowledged that defendant did not have the option of declining to show the officers
proof that he had paid his fare.
          After being charged with the crimes listed above,
defendant filed a suppression motion in which he argued
that officers had seized him, for purposes of Article I, section
9, when they required him to show proof of fare payment.
Defendant further argued that the seizure was unconstitutional because it was not justified by reasonable suspicion
that he was committing a crime. Defendant acknowledged
that TriMet “has the right to ensure that only paying passengers board their trains and buses,” and he conceded that
TriMet “employees or other agents” may conduct fare checks
without violating passengers’ constitutional rights. But
when TriMet uses police officers to check fares, defendant
argued, “constitutional protections attach to those interactions … with the passengers of those trains.” In response,
the state argued that it did not matter, for constitutional
purposes, that police officers—not TriMet employees—were
checking passengers’ fares. The state also argued that,
even if an Article I, section 9, seizure had occurred, it was
a permissible administrative stop. The trial court denied
defendant’s suppression motion, apparently on the basis
that the officers’ fare check had not constituted a seizure of
defendant.2

    2
      Specifically, the court ruled that “defendant voluntarily entered onto TriMet
property” and that “a reasonable person could expect a fare check on the TriMet
line and I do not find that the [officers’] conduct was significant interference.”
Cite as 

 (2021)                                                 799

         On appeal, defendant reiterates his argument that
the officers’ fare check was a seizure that violated Article I,
section 9, because it was not supported by reasonable suspicion. Defendant appears to again acknowledge that other
TriMet employees may perform fare checks without implicating Article I, section 9, but he argues that police officers’ involvement had constitutional significance because it
“amount[ed] to a show of authority that restrained defendant’s liberty.”3 Defendant asserts that the officers’ command to show proof of fare payment “required defendant to
produce evidence that he was not violating the law,” that the
officers were thus conducting a criminal investigation, and
that the command therefore significantly interfered with
defendant’s liberty because he would not have felt free to
terminate his encounter with the officers. Defendant also
contends that the state did not prove either that the seizure was justified by reasonable suspicion that defendant
was engaged in criminal conduct or that the seizure was a
constitutionally permissible administrative stop. On the latter point, defendant asserts that “the state did not establish
that a valid administrative policy would have authorized
a fare check” because the state failed to offer evidence of
Trimet’s administrative code prior to the close of evidence,
the trial court denied the state’s request that it take judicial notice of the administrative code, “and there was no evidence of whether the officers followed such a policy.”
         In response, the state first argues that the officers did not seize defendant when they required passengers, including defendant, to show proof of fare payment.
The state asserts that the record does not support defendant’s contention that the officers were conducting a criminal investigation. To the contrary, the state argues, “the
evidence established that, when the officers made the fare

     3
       Although most search-and-seizure cases involve police officers’ actions
and therefore are often framed in terms of the permissibility of officers’ conduct,
Article I, section 9, “protects against unlawful seizures by state actors, not only
law enforcement officers.” State v. Killion, 

, 353 n 5, 

,
rev den, 

 (2009). Thus, in some circumstances, action by a government
official may be sufficiently coercive to constitute a seizure even though that official is not a law enforcement officer. In this case, however, defendant’s argument
that the officers’ “proof of fare” command constituted a stop depends on their
status and presence as law enforcement officers.
800                                      State v. Almahmood

check announcement and then checked for proof of fare,
they were acting pursuant to their ‘duties as a TriMet officer’ to ‘enforce the laws and rules of TriMet.’ ” And, even if
the officers had been engaged in a criminal investigation,
the state asserts, nothing in the record establishes that the
passengers would have perceived that. In the end, the state
contends that the circumstances did not amount to a seizure, even if something about the officers’ fare check may
have suggested the possibility that officers were investigating suspected criminal activity. In the alternative, the state
argues that any seizure was justified as an administrative
stop.
         TriMet also has submitted a brief in this case,
appearing as amicus curiae. In supporting the state’s argument that the officers’ fare check was not a seizure, TriMet
emphasizes that, “[a]s long as public transportation has
existed, so has the concomitant ability of fare inspectors to
request proof of payment.” TriMet describes a long history of
train passengers being required to pay fares and to be able
to prove that they have done so. It contends that fare checks
on public transportation are such customary and ordinary
occurrences that they do not implicate Article I, section 9,
even when conducted by a police officer, unless the officer
engages in coercive, threatening, or overbearing conduct.
For similar reasons, TriMet asserts that, even if the officers’
fare check amounted to a seizure, that seizure was reasonable for purposes of Article I, section 9.
         The parties’ arguments are based on fundamental
principles of search-and-seizure law. Article I, section 9,
guarantees the right of the people to be free from “unreasonable” searches and seizures. “For purposes of Article I,
section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual’s liberty
or freedom of movement; or (2) a reasonable person, under
the totality of the circumstances, would believe that his or
her liberty or freedom of movement has been significantly
restricted.” State v. Arreola-Botello, 

, 

 (2019). Because “encounters between law enforcement officers and citizens are of an infinite variety,” the
analysis of whether a particular encounter was a seizure for
purposes of Article I, section 9, is a “fact-specific” inquiry
Cite as 

 (2021)                                    801

that “requires an examination of the totality of the circumstances involved.” State v. Backstrand, 

,

 (2013) (internal quotation marks omitted).
When “a police officer conducts a … seizure without a warrant, the state [has] the burden to establish the lawfulness
of the officer’s conduct,” that is, that some exception to the
warrant requirement applied. State v. Ruiz-Espinosa, 

, 

 (2020).
         In determining whether a particular encounter was
a seizure, we keep in mind that “the constitutional concern
is with police-imposed restraints on citizen liberty, not with
limiting contacts between police and citizens.” Backstrand,

. Thus, Article I, section 9, does not limit a
police officer’s authority to approach an individual and
request information or cooperation, so long as the officer’s
conduct would not “be reasonably perceived as coercive in
the sense that it would cause [that individual] to reasonably believe that the officer is intentionally restraining the
[individual’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.” 

          As applied to this case, those principles require
us to consider whether a reasonable person in defendant’s
position—a passenger on a TriMet train—would have
believed that police officers were significantly restricting his
liberty when they required him to show proof that he had
paid his fare. In addressing analogous questions in other
cases, we and the Supreme Court have identified certain circumstances that tend to show that an encounter was a seizure, one of which includes an expectation that involuntary
detention would follow a person’s refusal to cooperate with
officers. For example, an officer’s request for identification—
standing alone, an act that is not a seizure4 —may constitute a seizure if made in circumstances that would suggest
to reasonable people that they would be detained if they
“either would not, or could not, produce identification.” State
v. Zamora-Martinez, 

, 

 (2014).
Similarly, a conversation between an officer and an individual that would not otherwise constitute a stop may become
   4
       State v. Bese, 

, 

 (2018).
802                                      State v. Almahmood

one if the officer directly and unambiguously communicates
“that he or she is conducting an investigation” that could
result in the individual’s arrest or citation. State v. Jackson,

, 

 (2014). See also State
v. Stevens, 

, 

 (2018) (police
officer stopped an individual when he warned her that she
could be in trouble with her parole officer if she was lying
to the police officer); State v. Paskar, 

,

 (2015) (trooper who commanded production of
the defendant’s halibut tag seized the defendant because the
command “conveyed without ambiguity that defendant had
to remain where he was while the troopers investigated him
for a halibut-related crime”).

          Conversely, pertinent factors that can weigh against
a determination that an encounter is a seizure include: that
the officer interacted with a person for reasons not specific to
that individual (cf. State v. Holmes, 

, 

 (1991) (no seizure where officer stopped drivers to inform
them that, because of an accident, a road was closed and
drivers needed to take alternative route, and “[t]he intrusion was tailored in direction and manner to be insignificantly intrusive”)); that any show of authority by the officer
was undertaken for reasons not directed at the defendant
(e.g., State v. Kuehne, 

, 

(2019), rev den, 

 (2020) (officer’s conversation with
the defendant on a public roadway was not transformed into
stop by fact that officer had activated lights on patrol car
on a dark evening, where the car was far from defendant
and on the opposite side of the road)); that an officer merely
inquired about possible criminal activity without making
an accusation (see State v. Nelson, 

,

 (2018) (distinguishing between accusations of
criminal activity and inquiries about suspected criminal
activity)); and that the tone of the officer’s questions was
nonconfrontational and non-threatening (State v. Graves,

, 

, rev den, 

(2016); State v. Radtke, 

, 

 (2015)).

        In the end, the “was it a seizure?” question often
is framed in terms of whether a reasonable person in the
Cite as 

 (2021)                             803

defendant’s position would have felt free to leave or to otherwise terminate the encounter with officers. E.g., Backstrand,

 (a “show of authority” that constitutes a stop
happens when an officer conveys, “[e]xplicitly or implicitly,”
that a person with whom the officer is dealing “is not free
to terminate the encounter or otherwise go about his or her
ordinary affairs”); State v. Bese, 

,

 (2018) (“[F]or a show of authority to be a seizure, an officer must explicitly or implicitly convey that the
individual is not free to terminate the encounter.”); State v.
Sherman, 

, 

 (2015) (seizure
occurred where officer’s show of authority would lead a reasonable person to believe that he “was not free to leave”).
The overall context of an encounter “may convey to a citizen
that she is not free to leave, even if the content or manner of
the officer’s questions alone does not.” State v. Brown, 

, 

 (2018).

         Considering the totality of circumstances in this
case, we conclude that a reasonable passenger in defendant’s
position would have believed that police officers were significantly restricting his liberty when they required him to show
proof that he had paid his fare. True, the record contains no
evidence that the officers expressly threatened to detain or
arrest any passengers who did not comply. Nor did the officers single out defendant or take action suggesting that he,
in particular, was the target of an investigation. And the
officers may well have had motivations in addition to enforcing the criminal law when they ordered passengers to show
proof of payment. Moreover, we agree with TriMet that it
is a common experience—not something “that exceeds the
bounds of ordinary social encounters between private citizens,” Backstrand, 354 Or at 400—for an organization that
has sold services to an individual to require that individual
to show proof of purchase before (or while) taking advantage
of those services.

        Nonetheless, the combination of two facts (considered in conjunction with the totality of the circumstances)
leads us to conclude that reasonable TriMet passengers
would have concluded that officers conducting the fare check
were significantly interfering with passengers’ liberty.
804                                      State v. Almahmood

First, the officers required each passenger to show proof of
fare payment, that is, proof that the passenger was lawfully
riding the train—as defendant puts it, the requirement was
that he establish that he had not committed a crime (such
as theft of services). Second, the individuals issuing that
non-negotiable command were law enforcement officers,
that is, people with obvious authority to arrest individuals who commit crimes. Passengers who are told that they
must prove to a law enforcement officer that they are lawfully riding a train would not expect that they could refuse,
and then perhaps simply leave the train at the next stop
without being required to submit to the officer’s authority.
Rather, reasonable people would believe that they had no
choice but to show proof of payment to the officer and—
because it was a law-enforcement officer imposing that
requirement—that they could be subject to detention, citation, or arrest if unable or unwilling to produce valid proof of
payment.
         For that reason, this case is not analogous to
Backstrand, in which the Supreme Court held that a police
officer did not seize a youthful-looking defendant, who was
inside an “adult” store, when the officer asked the defendant
how old he was, requested his identification, and verified the
validity of his driver’s license. 

. Two
factors were key to that holding. First, the court held that
the officer’s conduct was not beyond what is “accepted in
ordinary social intercourse,” because “a reasonable [youthful-looking] person engaged in an age-restricted activity
would expect to be questioned about his or her age.” 

. Second, the court observed that a reasonable person in
that situation would not perceive a significant restraint on
his or her liberty because, “at most, a person so questioned
might reasonably 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—simply being told to leave a place where a
person had no legal right to be—“would not be coercive for
purposes of Article I, section 9.” 

. Here, although
the officer’s conduct in requesting proof of fare payment falls
within the bounds of what is accepted in analogous business circumstances, the reasonably expected consequence
Cite as 

 (2021)                               805

of failure to comply is markedly different—potential detention, citation, or arrest, as opposed to simply being directed
to leave a store.

         This is a close case. We agree with the state and
with TriMet that people who must pay a fare to ride public
transportation should not be surprised to be asked to show
proof of that payment. And—absent something more—it
may well be that a provider of public-transportation services
does not significantly interfere with individual passengers’
liberty merely by requiring them to show proof of payment
for that service. After all, a routine command that train
passengers show proofs of fare does not target any specific
individual, it does not itself detain passengers or otherwise
interfere with their movements, it is not associated with
investigation of other criminal activity, and it is not outside
of common experience. But the question before us is whether
a reasonable passenger would feel free to refuse a police officer’s command to show proof of payment, without fear of
involuntary detention or adverse legal consequence. Given
the totality of the circumstances in this case, we conclude
that a reasonable passenger would not feel free to do so. We
therefore conclude that officers seized defendant when they
ordered him to show proof that he had paid his fare to ride
the train.

         Determining that a police officer seized an individual ordinarily is only the first step of an Article I, section 9,
analysis; the question remains whether the state has established that the seizure was reasonable, i.e., justified for constitutional purposes. See, e.g., State v. Barber, 

, 

 (2016) (“It is the state’s burden to prove
that an exception to the warrant requirement justified a
warrantless search or seizure.”). In this case, however, the
state understandably has not argued that the seizure was
justified by either reasonable suspicion or probable cause of
criminal activity, given that all passengers were required
to show proof of fare payment, not just defendant. Nor has
the state argued that the stop otherwise was “reasonable”
for purposes of Article I, section 9, or that it fell within
some other recognized exception to the warrant requirement (except to the extent it argues that any seizure was
806                                       State v. Almahmood

a permissible “administrative stop,” an argument that we
briefly address below).

          Amicus TriMet has staked out that position, essentially contending that the ordinariness of a “proof of fare”
requirement means that the officers’ fare-checking conduct
in this case was reasonable for purposes of Article I, section 9,
even if it constituted a seizure that was not justified by reasonable suspicion or probable cause. Indeed, the Supreme
Court has recognized that, in certain specific contexts, some
types of searches or seizures may be deemed reasonable
even though they do not fit neatly into the long-established
exceptions to the warrant requirement. E.g., State ex rel Juv.
Dept. v. M. A. D., 

, 

 (2010)
(no Article I, section 9, violation where a school employee
conducted a warrantless search by reaching into a student’s
pocket and removing contraband based on suspicion not rising to probable cause; concluding “that the school context
is sufficiently different from the setting in which ordinary
police-citizen interactions occur to justify an exception to the
warrant requirement in certain circumstances”). However,
the state has not made such an argument in this case (and,
indeed, TriMet does not develop the argument beyond stating it), so we do not further address the possibility that—in
this specific fare-check context—the seizure might be permissible under Article I, section 9, even though not justified
by reasonable suspicion or probable cause of criminal activity. See State v. Bray, 

, 245 n 15, 

(2018) (declining to address arguments made by amici that
the state had not made on review).

         We also reject the state’s contention that we can
affirm the trial court’s ruling on the alternative ground
that any seizure was a valid administrative stop. A detailed
discussion of that point would not benefit the bench, bar, or
public. It is sufficient to note here that the state—the party
with the burden to establish the constitutionality of a warrantless seizure—did not make a record in the trial court
sufficient to establish all the requirements of an administrative stop, viz., that “it is conducted for a purpose other
than law enforcement, pursuant to a policy that is authorized by a politically accountable lawmaking body, [and]
Cite as 

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the policy eliminates the discretion of those responsible for
conducting the search.” State v. B. A. H., 

, 

 (2011) (citations omitted). We express no
opinion on whether, in another case, the state might be able
to prove that a fare check conducted by police officers meets
those requirements.
        In sum, police officers seized defendant when they
required that he produce proof that he had paid his train
fare. The state has not established, in this case, that the
seizure was “reasonable” for purposes of Article I, section 9.
The trial court therefore erred when it denied defendant’s
suppression motion. Having reviewed the entire record, we
conclude that the trial court’s error in denying the suppression motion was not harmless. Accordingly, we reverse and
remand for further proceedings.
        Reversed and remanded.