State v. Thier

                                       680

  Submitted April 11, affirmed November 16, 2022, petition for review denied
                          March 30, 2023 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     ALEXANDRA ANN THIER,
                        Defendant-Appellant.
                     Marion County Circuit Court
                        18CR49064; A174999
                                    

     Defendant challenges her convictions for unlawful possession of a firearm,
ORS 166.250, and escape in the third degree, ORS 162.145, arguing that the trial
court erred in denying her motion to suppress. She contends that the trooper’s
actions and words significantly restrained her freedom of movement, and, as a
result, she was seized without legal justification for purposes of Article I, section
9, of the Oregon Constitution. The state argues that defendant was not seized and
that the interaction was a mere encounter that did not require constitutional justification. Held: Under the totality of the circumstances, the trooper’s actions and
words were not sufficiently coercive so as to convey to a reasonable person that
their freedom of movement was significantly restrained. Accordingly, because
defendant was not seized, the trial court correctly denied defendant’s motion to
suppress.
    Affirmed.



    Daniel Joseph Ahern, Senior Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
    POWERS, P. J.
    Affirmed.
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        POWERS, P. J.
         Defendant appeals her convictions for unlawful
possession of a firearm, ORS 166.250, and escape in the
third degree, ORS 162.145, assigning error to the trial
court’s denial of her motion to suppress evidence. On appeal,
defendant renews her argument that she was unjustifiably
“seized” or “stopped” for purposes of Article I, section 9,
of the Oregon Constitution. She contends that, under the
totality of the circumstances, including the officer’s actions
and words, it was reasonable for her to believe that she was
under criminal investigation, and thus, that her freedom of
movement was significantly restrained. As explained below,
we conclude that defendant was not seized; thus, the trial
court did not err in denying defendant’s suppression motion.
Accordingly, we affirm.
         We review the denial of a motion to suppress for legal
error. State v. Kamph, 

, 

(2019). In so doing, a trial court’s findings of historical fact
are binding on appellate courts if there is constitutionally
sufficient evidence in the record to support those findings.
State v. Ehly, 

, 

 (1993). Because
determinations of whether a person has been seized under
Article I, section 9, are factually driven, and “a slight difference in circumstances could make what was considered
a nonrestrictive encounter in one case a stop in another,”
we begin with a brief recitation of the facts. State v. Reyes-Herrera, 

, 

 (2021).
         Oregon State Police Trooper Nelson was patrolling
a truck stop where frequent criminal activity occurred when
he noticed defendant’s car parked with the back-end open,
a visor covering the front windshield, and the driver’s side
door open. Wearing his uniform and badge, Nelson got out
of his car and approached just as defendant stepped out of
the driver’s side of her car. Nelson greeted defendant, “asked
her what was going on,” and told her that law enforcement
“had a lot of problems in the area.” He asked defendant if
she “had her ID with her, with her by chance.” Defendant
said that she did and reached into the car and grabbed her
purse off of the front passenger seat. As defendant was looking through her purse for her ID, Nelson noticed a “meth
682                                             State v. Thier

pipe in open view” with crystalline residue on the passenger
seat where the purse had been. After seeing the pipe, Nelson
handcuffed defendant and placed her in the back of his vehicle. Nelson conducted a search incident to arrest and found
a loaded handgun in defendant’s purse. Defendant later
escaped from Nelson’s vehicle but was apprehended soon
afterward.
         Encounters between law enforcement and citizens
fall into one of three categories that correlate the degree of
intrusiveness to the degree of justification for the intrusion.
State v. Backstrand, 

, 

 (2013)
(describing the spectrum to include a “mere encounter”
(which requires no justification), a stop or seizure (which
generally requires reasonable suspicion), and an arrest
(which requires probable cause)). Both parties agree that,
upon approaching defendant and asking for her ID, Nelson
did not have reasonable suspicion or probable cause. Thus,
this case turns on whether Nelson’s interaction with defendant amounted to a stop or seizure.
         Under Article I, section 9, a seizure occurs when
“(1) a law enforcement 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.” Reyes-Herrera, 

. We have emphasized that an officer’s
actions are not to be analyzed independently; rather, the
actions and words of the officer are viewed in their totality to determine whether a reasonable person would believe
that the officer significantly deprived the individual of his,
her, or their freedom of movement. State v. Charles, 

, 

 (2014). Thus, our analysis
considers the sum of the content of the officer’s questions,
the manner of asking them, the officer’s actions, and the
circumstances under which the actions are taken. State v.
McKibben, 

, 

 (2022).
       Nelson made statements and asked questions of
defendant that, defendant argues, significantly restricted her
freedom of movement and constituted a seizure. Specifically,
Nelson greeted defendant, “asked her what was going on,”
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told her that they “had a lot of problems in the area,” and
asked if she had her ID “with her by chance.” The Oregon
Supreme Court has explained that law enforcement officers
are free to approach people in public spaces and request
information or question them—without it amounting to a
seizure for purposes of the state constitution—even where
the person is discomforted by the officer’s presence. State v.
Anderson, 

, 

 (2013) (observing
that law enforcement officers remain free to approach persons on the street or in public places without being called
upon to articulate a certain level of suspicion in justification
“even though the person approached may be discomforted
by an officer’s inherent authority as such and, for reasons
personal to the individual, feel inclined or obliged to cooperate with the officer’s request” (citing Backstrand, 

)). Such an encounter between an officer and individual may become a stop, however, where the officer “makes
a direct and unambiguous accusation” that the individual
committed a crime. State v. Nelson, 

, 

 (2018). But the officer can make “statements conveying possible suspicion” or general “inquir[ies] about criminal activity,” without necessarily converting the encounter
into a stop. 

 In this case, Nelson asking, “what was going
on” and his statements about problems in the area, if anything, adhere more closely with the latter than the former.
We recognize that the line between a mere encounter and a
seizure does not solely depend on whether the officer “made
a declarative statement or asked a question, or whether the
officer’s comments fit the textbook definition of an accusation.” Reyes-Herrera, 

. Therefore, Nelson’s
initial statements must be considered in conjunction with
his actions, and his request for defendant’s identification,
to determine whether they were sufficient—in the totality of the circumstances—to cause a reasonable person to
believe that their freedom of movement was significantly
restrained.
          As an initial matter, a request for identification
does not automatically turn an encounter into a seizure.
Backstrand, 

. Even retaining the identification, for a short period to check its validity, is not sufficient
to do so. 

 Rather, to turn an encounter into a seizure, a
684                                              State v. Thier

request to produce identification must be coupled with police
action that is sufficiently coercive so as to convey to a reasonable person that they are detained. 

 See, e.g., State v.
McKibben, 

, 

 (2022) (holding that
the defendant was seized where the officer approached the
defendant’s parked vehicle, asked for and retained his ID,
and then proceeded to question him about the contents of a
bag in the defendant’s car); State v. Newton, 

,

 (2017) (holding that the defendant was seized
where the officer approached the defendant in his parked
van, asked for and retained his ID, and then questioned
the defendant’s girlfriend behind the van while running a
background check on the defendant); State v. Thompson, 

, 

 (2014) (holding that the defendant was seized where the officer retained her ID for an
unspecified period of time, told her that he suspected drug
activity, and asked why she was there and if she was a drug
user).
         This case is distinct from those cases where an officer requested an identification in such a manner that was
sufficiently coercive to rise to the level of a seizure. Although
Nelson’s approach and initial statements to defendant could
have conveyed suspicion of criminal activity, he did not
directly accuse defendant. Moreover, Nelson’s request that
defendant provide identification was not coupled with any
coercive actions, and he did not retain her ID and proceed
with further questioning. Indeed, Nelson saw the meth
pipe—and thus had reasonable suspicion—before defendant
even handed over her 

 Nothing else about the manner in
which Nelson asked his questions, nor the physical actions
that he took, were sufficiently coercive so as to convey to
a reasonable person that they were detained. Accordingly,
under the totality of the circumstances, Nelson’s actions and
words did not significantly restrain defendant.
         As the Supreme Court has acknowledged, “the line
between a mere encounter and something that rises to the
level of a seizure does not lend itself to easy demarcation.”
State v. Fair, 

, 

 (2013) (internal quotation marks omitted). In this case, because Nelson’s
actions and words did not rise to a degree of intrusiveness
requiring constitutional justification, we hold that the
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circumstances fall within the category of a mere encounter. Accordingly, the trial court correctly denied defendant’s
motion to suppress.
        Affirmed.