State v. Glickert

                                       179

  Argued and submitted June 15, 2021, reversed and remanded June 8, 2022


                     STATE OF OREGON,
                       Plaintiff-Appellant,
                                 v.
                CHARLOTTE RANAE GLICKERT,
                      Defendant-Appellant.
                  Lincoln County Circuit Court
                      19CR20837; A171986
                                  

    Defendant seeks reversal of a judgment of conviction for one count of unlawful
possession of methamphetamine (ORS 475.894(2)(a)). Defendant argues that the
trial court erred in denying her motion to suppress all evidence obtained from her
after she was unlawfully seized by the police in violation of Article I, section 9,
of the Oregon Constitution. Held: The trial court erred by denying defendant’s
motion to suppress. The officers seized defendant when they waved her down,
approached her from both sides of the car that she was driving, communicated to
her that they knew who she was, that they were there to investigate illegal drug
activity and that they had information that she was selling drugs. Under those
circumstances and having unambiguously informed defendant that she was the
subject of a criminal investigation, the officers had seized her within the meaning of Article I, section 9. A reasonable person would not have believed that they
were free to leave.
    Reversed and remanded.



    Amanda R. Benjamin, Judge pro tempore.
   David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Jeff J. Payne, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.*
    MOONEY, P. J.
    Reversed and remanded.
______________
   * Pagán, J., vice DeHoog, J. pro tempore.
180                                          State v. Glickert

        MOONEY, P. J.
         In this criminal appeal, defendant seeks reversal
of a judgment of conviction for one count of unlawful possession of methamphetamine, ORS 475.894(2)(a). Defendant
assigns error to the trial court’s denial of her motion to
suppress. We agree with defendant that she was unlawfully seized by the police and, therefore, that the trial court
erred in denying her motion to suppress. We reverse and
remand.
         We review “ ‘for legal error whether a police officer’s interaction with an individual amounts to an unlawful
seizure under Article I, section 9.’ ” State v. Kamph, 

, 

 (2019) (quoting State v. Sexton,

, 

 (2016)). We necessarily also
review the trial court’s denial of defendant’s motion to suppress for legal error, deferring to that court’s factual findings to the extent that constitutionally sufficient evidence
supports them. State v. Brown, 

, 

 (2022).
         The facts are undisputed. At least five or six officers from various law enforcement agencies parked their
police vehicles at the bottom of a single-car driveway that
led up a steep hill to a private home. The officers walked
up the driveway toward the home to conduct a warrantless
“knock-and-talk,” planning to question the residents about
drug activity. Some of the officers were wearing ballistic
vests with the word “POLICE” on the front. Some officers
were displaying badges and had visible guns. Partway up
the driveway, at least two officers saw defendant’s car leaving the residence, and one of those officers attempted to
“wave” her down as she approached them on the driveway.
Defendant did not immediately stop, but as she got nearer
to them, they flanked her car with one officer on the driver
side and one on the passenger side, at which point defendant
stopped and rolled down her window. An officer approached
defendant’s window, asked if she was Charlotte Glickert,
and stated that the police were there to investigate drug
activity and that he had information that she was selling
drugs. Defendant denied dealing drugs but admitted to
being a drug user. The officer asked defendant about her
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drug use and ultimately asked for her pipe, which defendant
handed to him.
       The issue on appeal is whether the police seized
defendant. The relevant part of Article I, section 9, of the
Oregon Constitution provides that:
       “No law shall violate the right of the people to be secure
   in their persons, houses, papers, and effects, against unreasonable search, or seizure[.]”
An otherwise “insignificant police encounter,” which requires
no justification, becomes a seizure for constitutional purposes, requiring some justification, when there is an “ ‘imposition, either by physical force or through some “show of
authority,” of some restraint on the individual’s liberty.’ ”
State v. Backstrand, 

, 

 (2013)
(quoting State v. Ashbaugh, 

, 

(2010)). The line separating mere police-citizen encounters
from constitutional seizures is neither bright nor clear and,
because of that, our inquiry is “fact-specific and requires an
examination of the totality of the circumstances involved.”

 The test is objective: would a “reasonable person” believe,
under the circumstances, that the officer is “exercising his
or her official authority to restrain” and that the person is
“not free to terminate the encounter or otherwise go about
his or her ordinary affairs.” 

. Defendant argues
that this is “not a close case; this case is an unambiguous, quintessential stop by criminal accusation.” The state
argues, to the contrary, that “no reasonable person in defendant’s position” would have perceived the officers words and
conduct as a “show of authority” nor would such person have
believed that she was not free to go about her own business.
This was, according to the state, noncoercive conversation.
         In State v. Anderson, 

, 

(2013), the Supreme Court concluded that a seizure had not
occurred, holding that:
   “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
182                                              State v. Glickert

   his or her liberty was significantly restrained and, therefore, 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.”

In State v. Reyes-Herrera, 

, 

 (2021),
the court concluded that a seizure had occurred where an
officer suspected a possible drug transaction, asked the
defendant specific questions about that suspicion (whether
he had purchased drugs from a man who just walked away
counting money and whether he had any drugs on him),
and then asked for consent to search after the defendant
answered “no” to both questions. As the court acknowledged,
“variations in encounters between law enforcement and the
public are many, and a slight difference in circumstances
could make what was considered a nonrestrictive encounter
in one case a stop in another.” 

.
         It is clear that when “an officer makes a direct and
unambiguous accusation, the officer has conveyed that the
citizen is not free to leave.” State v. Jackson, 

, 

 (2014). And a stop may occur “even
when an officer does not accuse an individual of having committed a crime.” Reyes-Herrera, 

. The “critical
question” that distinguishes “relaxed conversation” from
“coercive questioning” is not whether the officer accuses the
defendant of a crime or violation, it is whether, given all the
circumstances, a reasonable person would believe that their
freedom of movement was being significantly restricted.

.
         Here, defendant’s encounter with the officers was
a seizure for state constitutional purposes. An officer wearing a vest with the word “POLICE” on the front and displaying a badge, visibly armed and accompanied by at least
five other officers, two of whom were in his immediate presence and visible to defendant, flagged defendant down to
speak with her and, when she did stop her vehicle to talk,
the officers positioned themselves around the vehicle. The
questioning officer first asked defendant if she was Glickert,
communicating to her that he knew who she was, and then,
after she confirmed her identity, told defendant that he was
there to investigate suspected drug activity and that he
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“had information that she was selling drugs.” At that point
of the encounter, a reasonable person would have believed
that they were not free to leave. That is the point at which
defendant was seized. The trial court erred in denying
defendant’s motion to suppress.
        Reversed and remanded.