State v. Kreis

 (2018).
660                                         State v. Kreis

  WALTERS, C. J.
   The decision of the Court of Appeals is reversed. The
judgment of the Beaverton Municipal Court is reversed, and
the case is remanded to that court for further proceedings
consistent with this opinion.
  Balmer, J., dissented and filed an opinion, in which
Garrett, J., joined.
Cite as

 (2019)                                 661

        WALTERS, C. J.
         In this criminal case, an officer seized defendant
without a constitutional basis for doing so, and, to effectuate
that unconstitutional stop, ordered him to turn and be handcuffed. Defendant refused and was convicted, under ORS
162.247(1)(b), of interfering with a peace officer for refusing
to obey a “lawful order.” For the reasons that follow, we conclude that the officer’s order was not a “lawful order” as that
term is used in ORS 162.247(1)(b) and reverse defendant’s
conviction.
                    I. BACKGROUND
         Because defendant was convicted of the offense of
interfering with a peace officer, we state the facts that gave
rise to that charge in the light most favorable to the state.
See State v. Lupoli,

348 Or 346, 366

234 P3d 117

(2010) (stating standard). Two officers, Crino and Mendez, were in their
patrol car when they saw defendant in a restaurant parking lot around midnight. The restaurant had been closed for
about 20 minutes, and the parking lot, which provided parking for the restaurant and a nearby golf course, had recently
been the site of several thefts. Defendant was standing
“near” one of the approximately five cars in the lot, and the
officers suspected that defendant might be trying to break
into that car or might be attempting to commit DUII. To
investigate, Crino ran the car’s license plate and noted that
defendant matched the description of the car’s registered
owner. However, believing that the descriptions of registered
owners are not always accurate, Crino remained unsure
whether defendant owned the car. While Crino was running
the car’s plates, Mendez, an officer-in-training, approached
defendant and initiated a conversation. Defendant did not
provide any information in response to Mendez’s questions;
instead, he left the parking lot and walked toward a paved
pathway leading to the back of the restaurant.
Crino and Mendez followed defendant and caught
up with him as he stood on the restaurant’s back patio near
the restaurant’s back door. Crino asked defendant for his
name, whether the car that he had been standing near was
his, and whether he was a restaurant employee. Defendant
662 State v. Kreis

did not respond, and when he took a few steps away from the
officers, Crino informed him that he was not free to leave
until the investigation was complete. Defendant responded
that he did not “have to talk to” Crino and that he “was
not answering any of [his] questions.” To Crino, defendant appeared angry and exhibited signs of intoxication.
Considering Mendez’s lack of experience, Crino called for
assistance.
When two additional officers arrived, Crino explained
to defendant that Crino needed to learn defendant’s identity, why he was at the restaurant, and whether he was a
restaurant employee. Defendant’s brow furrowed, he balled
his hands into fists, took a bladed stance, and began shifting his weight back and forth. Crino noticed that defendant
was looking at him and the other officers, while also looking beyond them as if he were looking for an escape route.
Crino told defendant that, if defendant did not provide the
requested information, he would be arrested. In response,
defendant stated through clenched teeth, “I am not going
to be arrested.” At that point, Crino explained to defendant
that he had concern for his safety and ordered defendant to
turn around, face the building, and put his hands behind
his back so that he could be handcuffed. Defendant refused.
Crino gave the order a second time, again explaining to
defendant that he was going to be handcuffed for safety
reasons. Defendant said, “No,” and refused to turn around.
Crino told defendant that he was under arrest “for interfering.” Defendant physically resisted the officers’ attempts
to subdue him, and the officers took him to the ground and
handcuffed him.
The state charged defendant with interfering with
a peace officer under ORS 162.247(1)(b) and with resisting
arrest. The case went to trial before a jury. After the state
presented its case, defendant moved for judgment of acquittal on the interfering charge. Defendant argued that Crino
did not have reasonable suspicion that defendant had committed, or was about to commit, a criminal offense, and consequently, that neither his stop of defendant nor his order
that defendant turn around to be handcuffed were lawful.
The state responded with two arguments. First, it asserted
that Crino had reasonable suspicion that defendant had
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committed or was about to commit DUII, attempted DUII,
or theft. Second, and alternatively, the state asserted that,
even if Crino’s stop was not lawful, his order that defendant
turn and be handcuffed was justified by reasonable officer-safety concerns. The trial court denied defendant’s motion.
The jury found defendant guilty on the interfering charge
and acquitted defendant on the resisting charge, and the
court entered judgment accordingly.1

         Defendant appealed,2 assigning error to the trial
court’s denial of his motion for judgment of acquittal.
Defendant asserted that Crino had stopped him in violation of Article I, section 9, and that Crino’s subsequent order
that defendant turn and be handcuffed also was unlawful.
Defendant argued that, under this court’s decision in State
v. Bates,

304 Or 519, 524

747 P2d 991

 (1987), officer-safety
concerns can justify an otherwise unconstitutional search
or seizure only when effected during a “lawful encounter.”

         The Court of Appeals disagreed, relying on its
prior cases involving ORS 162.217(1)(b) and holding that,
for purposes of that statute, the lawfulness of an encounter does not affect the lawfulness of a subsequent order.
State v. Kreis,

294 Or App 554, 559

 (2018).
The court acknowledged the tension between its cases and
Bates, which involved a motion to supress evidence and not a
conviction for interfering with a peace officer, but explained
that, as presented, the court was not in a position to resolve
that tension: Defendant had not argued that the Court of
Appeals cases involving the interfering statute were irreconcilable with Bates or that the Court of Appeals must overrule those cases.

Id. at 561-62

. Applying its rule from those
cases, the court reasoned that the question before it was not

     1
       The court’s judgment also required that defendant pay attorney fees for
services provided in conjunction with both the interfering and resisting arrest
charges. Defendant assigned error to that ruling, and the Court of Appeals
affirmed. State v. Kreis,

294 Or App 554, 562-63

 (2018). We allowed
review of that issue, but, because we reverse defendant’s conviction, we do not
reach it.
     2
       Defendant appealed from a judgment entered by the Beaverton Municipal
Court. Under ORS 138.035(1), “[a] defendant may take an appeal from …
a municipal court … that has become a court of record … to the Court of
Appeals[.]”
664                                               State v. Kreis

the lawfulness of the initial stop but of the subsequent order,
and that, considered independently, orders issued to protect
officer safety were lawful orders. Because defendant did not
challenge the legitimacy of Crino’s officer-safety concerns,
the Court of Appeals affirmed the trial court’s denial of
defendant’s motion for judgment of acquittal.

 Defendant
sought, and we allowed, review.
                        II. ANALYSIS
         In this court, defendant contends, as he did below,
that the trial court erred in denying his motion for judgment
of acquittal because Crino’s order that he turn and be handcuffed was not a “lawful order,” as that term is used in ORS
162.247(1)(b). That statute provides:
      “(1) A person commits the crime of interfering with a
   peace officer or parole and probation officer if the person,
   knowing that another person is a peace officer or a parole
   and probation officer …:
      “…
       “(b) Refuses to obey a lawful order by the peace officer
   or parole and probation officer.”
The parties recognize that this court previously has interpreted the term “lawful order” and agree that the definition
we provided frames the issue before us: A “lawful order” is
an order that is “authorized by, and is not contrary to, substantive law.” See State v. Ausmus,

336 Or 493, 504

85 P3d 864

 (2003) (so defining “lawful order” in statute proscribing refusal “to comply with a lawful order of the police to
disperse”); see also State v. Illig-Renn,

341 Or 228, 238

142 P3d 62

 (2006) (reasoning that “lawful” in the interfering
statute does not include an order that is “inconsistent with
the substantive law”).
         Drawing from that definition, defendant contends
that an order that effects a seizure is authorized by, and
not contrary to, substantive law only when issued in compliance with Article I, section 9. According to defendant,
Crino did not have the reasonable suspicion constitutionally
necessary to stop him, and Crino’s officer-safety concerns
could not convert an otherwise unlawful order into a lawful one, because, according to defendant, the officer-safety
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doctrine applies only during a lawful police encounter. The
state responds that officers have broad authority to issue
orders and that their orders are contrary to substantive
law only when they direct a person to commit a crime or to
refrain from statutorily or constitutionally protected activity. According to the state, Crino’s stop was justified by reasonable suspicion, and, even if it was not, Crino’s subsequent
order was lawful: Crino did not direct defendant to commit a
crime or to refrain from constitutionally protected activity.
Alternatively, the state argues that Crino’s order was independently justified by his officer-safety concerns.
A. Crino’s initial stop was not justified by reasonable
   suspicion.
         As framed by the parties, the first question we must
answer is whether Crino’s initial stop was justified by reasonable suspicion of criminal activity. An officer has reasonable suspicion when the officer “can point to specific and
articulable facts that give rise to a reasonable inference that
the defendant committed or was about to commit a specific
crime or type of crime.” State v. Maciel-Figueroa,

361 Or 163, 165

389 P3d 1121

 (2017). The officer must have a subjective belief that the person stopped has committed, or is
about to commit, a crime, and that belief must be objectively
reasonable under the totality of the circumstances. State v.
Belt,

325 Or 6, 11

932 P2d 1177

 (1977). An officer’s suspicion must be particularized to the individual based on the
individual’s own conduct. State v. Miglavs,

337 Or 1, 12-13

90 P3d 607

 (2004). Reasonable suspicion requires less than
probable cause but more than mere speculation. See State v.
Holdorf,

355 Or 812, 822-23

333 P3d 982

 (2014) (articulating standard).
        In this court, the state argues that Crino had reasonable suspicion that defendant was committing criminal
trespass, or had committed or was about to commit DUII
or attempted DUII.3 Given that the state makes the former
argument for the first time in this court, we discuss only the

   3
     Below, the state also argued that Crino had reasonable suspicion that defendant was committing or was about to commit theft. The state does not renew that
argument here, and we do not address it.
666                                                              State v. Kreis

state’s latter argument.4 And, for the reasons that follow,
we conclude that the facts in the record are insufficient to
support a finding that Crino had an objectively reasonable
belief that defendant had committed or was about to commit
DUII or attempted DUII.5
         A person “commits the offense of [DUII] if the person drives a vehicle while the person: (a) [h]as a 0.08 percent
or more [BAC] …; [or] (b) is under the influence of intoxicating liquor.” ORS 813.010(1). To constitute an attempt, a
person must “intentionally engage[ ] in conduct which constitutes a substantial step toward commission of the crime.”
ORS 161.405(1). There is evidence in the record that when
Crino approached defendant, defendant exhibited signs of
intoxication, and defendant does not dispute that Crino had
a reasonable belief that defendant was intoxicated. Instead,
defendant argues that the record does not indicate that
defendant had taken a substantial step toward driving or
was about to drive a vehicle.
         The state argues that Crino had reasonable suspicion that defendant was about to drive or had taken a substantial step toward driving, relying on the fact that Crino
saw defendant standing “near” a car in the parking lot of
a closed restaurant after midnight. The state adds that
there was evidence that defendant matched the description
of the car’s owner, that the parking lot was located a distance away from the road, and that there were few places
within walking distance. Therefore, according to the state,
Crino reasonably could conclude, based on his training and

     4
       In the trial court, the state did not argue, in response to defendant’s motion
for judgment of acquittal, that Crino had reasonable suspicion that defendant
was committing or was about to commit criminal trespass. When certain conditions are met, we can affirm a trial court’s decision on a basis not argued there.
See Outdoor Media Dimensions Inc. v. State of Oregon,

331 Or 634, 659-60

20 P3d 180

 (2001) (articulating conditions necessary for argument that trial court
was correct in its ruling, but for reason not advanced there). But, in this case, the
state does not contend that those conditions are met or develop that argument,
and we therefore decline to address it.
     5
       Neither party appears to argue that the evidence required to establish the
lawfulness of the stop varies depending on whether Crino believed defendant had
or was about to commit DUII or attempted DUII. At any rate, we conclude that
the record is insufficient to establish that the stop was justified by reasonable
suspicion of either DUII or attempted DUII.
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experience, that defendant had taken a substantial step
toward driving or was about to do so.
           We disagree. Although “officers reasonably may
draw inferences about human behavior from their training
and experience,” Miglavs,

337 Or at 13

, an officer’s “hunch”
based on training and experience is, by itself, insufficient
to form a basis for reasonable suspicion, see State v. Valdez,

277 Or 621, 628

561 P2d 1006

 (1977) (“[I]nstinct and experience cannot … form the entire basis for ‘reasonable suspicion.’ ”). An officer’s belief is objectively reasonable only if it
is based on the individual’s own conduct. Miglavs,

337 Or at 12

. Here, Crino’s knowledge about defendant’s conduct was
minimal: Although Crino testified that he saw defendant
standing “near” a parked car, Crino did not know that the
car belonged to defendant and did not see defendant at the
door of the car or holding keys. That knowledge was insufficient to give rise to reasonable suspicion that, at the time
that defendant was standing “near” the car in the parking
lot, defendant had taken a substantial step toward driving.
It also was insufficient to give rise to reasonable suspicion
that, at the time that defendant stood at the back door of
the restaurant, he was about to commit DUII. By that time,
defendant had walked away from the parking lot where the
car was located.6 Perhaps defendant intended to return to
the parking lot and drive away while Crino watched, but,
absent some indication that defendant was about to do so,
Crino’s suspicion that defendant was about to commit DUII
was not objectively reasonable. We conclude that Crino’s
stop of defendant was not supported by reasonable suspicion of attempted DUII or DUII, and we turn to the more
difficult question of whether Crino’s order to effectuate that
stop—his order that defendant turn and be handcuffed—
was, nevertheless, a “lawful order” under ORS 162.247(1)(b).
B. Crino’s order was not a “lawful order.”
As discussed, under ORS 162.247(1)(b), a “lawful
order” is an order that is authorized by, and is not contrary

6
Crino testified that he had reasonable suspicion that a crime was “either
occurring or about to occur with [defendant] lurking around the parking lot. Also,
potentially going to drive out of the parking lot if that was indeed his vehicle.”
668 State v. Kreis

to, substantive law. No party argues that the legislature
intended any other meaning of that term; thus, our inquiry
is not one of statutory construction, but is one of substantive
law: Was Crino’s order that defendant turn and be handcuffed an order that was authorized by, and not contrary to,
substantive law? To answer that question, a court must consider the authority granted, and the restrictions imposed,
by the substantive law, and that is now our task. In undertaking it, we engage, as the legislature intended, in a judicial analysis of the substantive law to determine whether
Crino’s order was “lawful.”7
The state contends that officers have broad authority to issue orders and that an order is contrary to substantive law only if it directs a person to commit a crime or to
refrain from statutorily or constitutionally protected activity. Crino’s order, the state argues, was not of that ilk: Crino
did not direct defendant to commit a crime, and defendant
had no statutory or constitutional right to ball his fists, take
a bladed stance, and place Crino in apprehension of injury.
Consequently, the state argues, Crino’s order was not contrary to substantive law. Alternatively, the state argues
that Crino’s order was independently justified by his officer-safety concerns.8
We agree with the state’s opening proposition that
peace officers have broad authority to investigate crime and

7
For that reason, we differ with the dissent in the importance of Court
of Appeals cases decided prior to the amendment of ORS 162.247 in 1997 and
the related legislative history. The legislature left the determination of what is
authorized by, and not contrary to, substantive law to the courts, and the court
is the final decision-maker on those state issues. Witnesses and legislators may
have thought that officer safety was an important consideration in the enactment
of the amendments to ORS 162.247, and we do not deny that it was, but the legislature decided to permit prosecution only for refusing to obey orders that do not
violate the substantive law, leaving that judicial determination to the courts.
8
The state also argues that when an order is “lawful by its terms,” it does
not become unlawful merely because it is given during an unlawful seizure. The
state argues that the text, context, and legislative history of ORS 162.247 demonstrate that an order’s lawfulness does not turn on an encounter’s lawfulness. We
do not address those arguments because, for purposes of this opinion, we accept
them. Therefore, we agree with the dissent that, for purposes of ORS 162.247,
a court must look at an order independently of the validity of the initial police
confrontation. See State v. Kreis,

, 683,

451 P3d 954

 (2019) (Balmer, J.,
dissenting).
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protect the public.9 However, we disagree with the state’s
argument that Crino’s order directing defendant to turn
and be handcuffed was not contrary to substantive law.
First, we reject the idea that an order is contrary to substantive law only when an officer directs a person to commit a crime or refrain from protected activity. In Illig-Renn,
we considered the constitutionality of the interfering statute, and we explained that the word “lawful” removes from
the statute’s sweep “any refusal to follow an order that is
inconsistent with the substantive law, including constitutional provisions.”

341 Or at 238

. The constitutional provisions at issue in Illig-Renn were provisions guaranteeing
the right of free expression and assembly.

 However, as
the state acknowledges, the same principle applies when an
individual fails to follow an order that is inconsistent with
other constitutional provisions, including the provision that
protects the right to be free from unreasonable search and
seizure. Accordingly, an order that is not consistent with
Article I, section 9, or that is issued in violation of that provision, is not a “lawful order” for purposes of ORS 162.247
(1)(b).10
         Second, when we analyze Crino’s order to turn and
be handcuffed, we conclude that it is not consistent with
Article I, section 9. In conducting that analysis, we consider
the state’s two distinct arguments: (1) that, when considered
independently, and without regard to the legality of Crino’s
initial seizure, Crino’s order to turn and be handcuffed was
“lawful by its terms” because it was not an order to refrain
from constitutionally protected activity; and (2) that, even if
that order was not “lawful by its terms,” it was constitutionally justified by the officer-safety doctrine.

     9
        For example, in addition to having authority to stop persons to investigate
criminal activity and arrest persons upon probable cause, peace officers have
authority to perform “any lawful acts that are inherent in the duty of the peace
officer to serve and protect the public.” ORS 133.033(2).
     10
        We do not read the Court of Appeals cases cited by the dissent or the
legislative history of ORS 162.247 as suggesting that the term “lawful order”
means something different. See, e.g., State v Wilson,

283 Or App 823, 828

390 P3d 1114

, rev den,

361 Or 801

 (2017) (citing Ausmus for the proposition that an
order is lawful if it is “authorized by, and is not contrary to, substantive law”);
State v. Navickas,

271 Or App 447, 450

351 P3d 801

, rev den,

358 Or 248

 (2015)
(same).
670                                                              State v. Kreis

         The state’s first argument, that Crino’s order was
“lawful by its terms,” is an argument that does not rely on
the officer-safety doctrine. It is an argument that defendant did not have a “right” to engage in the conduct that
he did, and therefore, that Crino’s order was lawful. The
problem with that argument is that Article I, section 9,
limits the actions of law enforcement; it does not proscribe
or prohibit the actions of the public. Article I, section 9,
grants Oregonians a right to be free from unreasonable
searches and seizures, and an officer violates that right if
the officer seizes an individual without constitutional justification. Holdorf,

355 Or at 823-24

. When an officer seizes
an individual, we do not examine whether the individual
had the “right” to engage in particular activity; instead,
we examine whether the officer had a constitutional justification for the seizure. When an officer has reasonable
suspicion that a person has engaged or is about to engage
in activity that constitutes a crime, an officer may seize
that person to investigate further, not because the person does not have a “right” to engage in that activity, but
because the officer’s interference with that individual’s liberty interest is constitutionally justified. Here, the state
contends that Crino’s order that defendant turn and be
handcuffed did not violate substantive law because defendant had no “right” to ball his fists, take a bladed stance,
or place Crino in apprehension of injury; the state does
not contend that Crino issued that order because Crino
had a reasonable suspicion that defendant had violated or
was about to violate Oregon law. The state does not contend, for instance, that when defendant balled his fists,
took a bladed stance, and placed Crino in apprehension
of injury, Crino had reasonable suspicion that defendant’s
conduct amounted to disorderly conduct (ORS 166.025),
menacing (ORS 163.190), or harassment (ORS 166.065).11
If Crino had had reasonable suspicion that defendant was
about to commit those or other crimes, then we would

     11
        Defendant does not seem to dispute that, if we were to hold that the officer-safety doctrine provided constitutional justification for Crino’s order, then the
requirements of that doctrine would be met—that Crino in fact had reasonable
officer-safety concerns. We do not hold that such concerns could not give rise to
reasonable suspicion of criminal activity; we note only that the state does not so
argue here.
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agree that Crino’s seizure would have been constitutionally justified and “lawful” for purposes of ORS 162.247
(1)(b).12 But we do not agree with the state that Crino’s
order was “lawful by its terms” because defendant had no
“right” to engage in the conduct that he did. An order is
also not “contrary to substantive law” only when it is an
order to refrain from constitutionally protected activity.
An order is also contrary to substantive law when it interferes with an individual’s liberty interest to be free from
unreasonable searches and seizures. Here, defendant had
a liberty interest with which Crino could not interfere
absent constitutional justification.
         We therefore proceed to the state’s alternative argument that Crino’s officer-safety concerns provided the constitutional justification for his order. We begin our analysis
by recognizing that reasonable officer-safety concerns can,
indeed, justify an otherwise unconstitutional search or seizure. Bates,

304 Or at 524

. In Bates, officers had lawfully
stopped the defendant for a traffic violation, and, after they
noticed a bag underneath his feet, they grew concerned that
the defendant posed a threat to their safety.

Id. at 521-22

.
When the officers asked the defendant to pull the bag into
sight, he reached down and put his hand near the bag but
would not pull it into view.

Id.

 Concerned for their safety,
the officers ordered the defendant out of the car and subsequently searched him and the bag, discovering evidence of
criminal activity.

Id.

 Although we did not uphold the officers’ actions in that case, we did explain that Article I, section 9, permits officers to take reasonable steps to protect
their safety and the safety of others during the course of
lawful encounters:

    12
       We note, however, that when the issue is not the lawfulness of a police
order under ORS 162.247(1)(b), but, instead, whether an unconstitutional act
requires suppression of evidence, the analysis may be different. This case does
not involve a question of whether evidence should be suppressed following Crino’s
unconstitutional stop, thus, the state does not need to show that Crino’s order
was not “tainted” by that stop. See State v. Unger,

356 Or 59, 88-91

333 P3d 1009

(2014) (when determining whether evidence must be suppressed because it was
obtained in violation of the defendant’s constitutional rights, the state must show
that the evidence was not “tainted” by that violation). As we explain, we differ
with the state as to whether the officer’s order was “lawful by its terms.” Under
Article I, section 9, an order that constitutes a seizure is “lawful by its terms”
only if it is constitutionally justified.
672                                                            State v. Kreis

    “Article I, section 9, of the Oregon Constitution does not
    forbid an officer to take reasonable steps to protect [him-orherself] or others if, during the course of a lawful encounter
    with a citizen, the officer develops a reasonable suspicion,
    based upon specific and articulable facts, that the citizen
    might pose an immediate threat of serious physical injury
    to the officer or others then present.”

Id. at 524 (emphasis added).
          Since Bates, we have continued to uphold searches
and seizures that have occurred during investigatory stops
but without reasonable suspicion that those who were
seized had committed or were about to commit a crime. For
instance, in State v. Morgan,

348 Or 283, 285

230 P3d 928

(2010), officers stopped a car based on reasonable suspicion
of the driver’s criminal activity, but searched the defendant,
a passenger, based on safety concerns. And, in Miglavs,

337 Or at 3

, officers were investigating a curfew violation by
the defendant’s acquaintance but conducted a pat down
of the defendant for safety reasons. We also have applied
Bates to justify searches and seizures occurring while officers were engaged in other activities. For example, in State
v. Cocke,

334 Or 1, 9

45 P3d 109

 (2002), the officer-safety
doctrine applied to a search of the defendant’s room conducted incident to the arrest of another tenant. In State
v. Foster,

347 Or 1, 3

217 P3d 168

 (2009), we upheld an
officer’s entry onto the defendant’s property while serving a
restraining order. And, most recently, in State v. Madden,

363 Or 703, 705

427 P3d 157

 (2018), we held that a seizure of an individual without reasonable suspicion could
be justified under the officer-safety doctrine if the purpose
is to safely execute a search warrant and the seizure is a
reasonable response to an officer’s safety concerns. In each
of those cases, the searches or seizures at issue were constitutionally justified by officer-safety concerns alone; the
officers did not have another constitutional basis for their
actions.13
    13
        Thus, to the extent that defendant argues that an order that effects a seizure can only be a lawful order when the officer has reasonable suspicion that
the individual seized is engaged in criminal activity, defendant is incorrect. At
least to effectuate other lawful activity, officer-safety concerns can supply that
justification.
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         Defendant argues, however, that there is a limit to
the justification that the officer-safety doctrine can provide:
As articulated in Bates, the officer-safety doctrine applies
only “during the course of a lawful encounter.”

. In defendant’s view, the officer-safety doctrine does not
provide a constitutional basis for a search or seizure when
an officer is not engaged in lawful activity, and officer-safety
concerns cannot turn an otherwise unlawful order into a
“lawful order” for purposes of ORS 162.247(1)(b).
         The state responds that Bates describes only one
of many circumstances in which officer-safety concerns can
justify police action and points us to State v. Guggenmos,

350 Or 243

253 P3d 1042

 (2011), for a broader statement of
the officer-safety doctrine. The principle that emerges from
that case, the state contends, is that if officers are engaged
in good-faith police work in a place they are entitled to be,
they may issue “lawful orders” to protect themselves.
         In Guggenmos, officers went to a residence to conduct
a “knock and talk” and learn if residents with outstanding
warrants were present.

Id. at 246

. The officers were invited
inside and given permission to search.

 During the
search, and contrary to one resident’s statement concerning
the number of people in the house, an officer, Mogle, saw two
men—one of whom was the defendant—run down the stairs
toward a back door.

 Mogle ran after the men and yelled
at them to stop, but the men did not heed Mogle’s command.

 After an officer, who was waiting outside, stopped the
men, Mogle went back inside to “clear” the house to make
sure there were not any other persons present.

Id. at 246-47

.
During that search, Mogle discovered drugs sitting in plain
view in the defendant’s bedroom.

Id. at 248

.
         This court ultimately determined that the officers
did not have reasonable suspicion of an immediate threat
to their safety sufficient to justify the search.

Id. at 260

.
On the way to that conclusion, however, we explained that
a protective sweep, though not its own exception to the warrant requirement, may be justified under the “court’s standards for an officer safety search.”

Id. at 251

. In response to
the defendant’s argument that the protective sweep was not
permissible because it was not made incident to an arrest,
674                                                  State v. Kreis

we explained that the defendant read the cases on which he
relied too narrowly:
   “Bates confirmed that the necessity of taking protective
   measures can arise ‘during the course of a lawful encounter with a citizen ….’ [State v. Cocke,

334 Or 1, 9

45 P3d 109

 (2002)], stated that the officer-safety justification
   applies to the actions of police officers responding to an
   immediate threat when they are in a place where they are
   entitled to be. But, as Bates and Cocke indicated, an officer’s
   lawful encounter with a citizen may give rise to a reasonable suspicion that the citizen poses an immediate threat
   of serious physical injury to the officer or others regardless
   of whether the officer is conducting an arrest. That kind of
   encounter may occur when the police are lawfully present
   in a private residence or an occupied building, even if they
   have no intention of arresting anyone.”
Id. at 254 (emphases added; omission in original).
         The state reads that passage from Guggenmos to
identify two circumstances in which officers are authorized
to take reasonable officer-safety precautions under Bates:
(1) during lawful encounters with citizens when there is a
reasonable suspicion of an immediate threat to safety; and
(2) when officers are in a place “where they are entitled to
be” and are “responding to an immediate threat.” The state
contends that the second circumstance encompasses situations “when an initial encounter might straddle the line
between a lawful and unlawful seizure.” The second circumstance, the state asserts, deserves protection under Bates,
as the purpose of the officer-safety doctrine is to allow officers to take reasonable precautions to minimize risks that
could arise during all encounters with citizens.
         We do not read Guggenmos as an intentional expansion of the officer-safety doctrine. Immediately after its initial description of the officers in Cocke as being where they
were entitled to be, the court, in Guggenmos, describes those
officers as being engaged in a “lawful encounter.”

350 Or at 254

. In all of the cases in which we have applied Bates,
we have noted or assumed that the officers were engaged
in lawful police activity when their safety concerns arose,
and we do not understand Guggenmos as a deliberate
departure from the officer-safety doctrine as articulated in
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Bates.14 That does not mean, however, that we are foreclosed
from extending the officer-safety doctrine beyond the circumstances described in Bates and concluding, as the state
urges, that all reasonable orders issued to protect officer
safety are constitutionally justified.
         The state argues that the purpose of the officer-safety doctrine is to keep officers safe during all encounters, and that that purpose is served if it permits officers to
take reasonable safety precautions against all threats that
arise, including those that arise during encounters later
determined to be unlawful. The state asks that we interpret
Article I, section 9, to permit reasonable orders to protect
officer safety even when issued to effectuate an unlawful
stop.

     14
        We also do not read the other cases cited by the state as extending the
officer-safety doctrine beyond lawful encounters. In Miglavs, the lawfulness of the
encounter between the officer and defendant’s acquaintance was not specifically
at issue; however, the officer engaged the defendant and his acquaintance for the
same reason, which was to investigate curfew violations. This court explained
that the lawfulness of the encounter determined whether Bates applied, and that
the defendant conceded that his encounter with the officer was lawful. Miglavs,

337 Or at 12

 (noting that the defendant “concedes that [the officer] was engaged
in a lawful contact with [the] defendant”).
    The state cites our recent decision in Madden as “observing the likelihood,
but not deciding, that [the] initial seizure [of the defendant] was lawful before
applying the officer-safety rule.” See Madden,

363 Or at 724

 n 16 (noting that the
detective who seized defendant for safety reasons also suspected that defendant
was engaged in criminal activity). Although it is true this court did not analyze
whether the detective in Madden could have seized the defendant based on reasonable suspicion of criminal activity, we did not need to because the officer was
engaged in other lawful police activity—the execution of a search warrant at a
house where the defendant happened to be sitting in the driveway.
    The same is true of Foster. In Foster, the officers were engaged in serving a
restraining order, and one of the officers went beyond the front door of the residence to a side window and looked inside.

347 Or at 4

. The state contends that
Foster observed the possibility, but did not decide, that the “initial entry onto curtilage was not fully justified by existing privileges before applying [the] officer-safety rule.” See

id.

 at 9 n 5 (noting that, in addition to the privilege of implied
consent to go to the front door, the privilege to execute civil process, coupled with
the sheriff’s duty under Oregon law to serve court orders, could have applied
to the situation, though it would not necessarily “permit the server to roam at
will across the property”). As in Madden, this court did not need to analyze
whether a privilege permitted the officer to take a position beneath the window
on the defendant’s property before determining whether the officer-safety doctrine applied; the lawful activity—which was not challenged in that case—was
serving a restraining order. The question was whether the officer-safety doctrine
permitted police action—positioning beneath a window—taken to effectuate that
activity.
676                                                              State v. Kreis

         We recognize that police officers work in dangerous
settings and encounter daily threats that may require officers to take safety precautions that we are not entitled to
uncharitably second-guess. Bates,

. But we do
not agree that those dangers provide an independent constitutional justification for all orders issued to counter them.
It is important to remain cognizant that Article I, section 9,
grants the people a “liberty interest to be free from unreasonable searches and seizures.” Holdorf,

355 Or at 822-23

.
Officers are precluded from arresting an individual unless
they have a warrant, the restraint is justified by an exception to the warrant requirement, or, for investigatory stops
that fall short of an arrest, the stop is justified by reasonable suspicion that an individual has committed or is about
to commit a crime. See State v. Fair,

353 Or 588, 608-09

302 P3d 417

 (2013) (an arrest based on probable cause requires
warrant or exception to warrant requirement, and “temporary detention of criminal suspects” requires reasonable
suspicion). The officer-safety doctrine is not a general exception to the warrant requirement; it is a rule of necessity
that enables officers to take reasonable measures to carry
out lawful police activity. See Bates,

 (“The
officer should be permitted to take every reasonable precaution to safeguard his life in the process of making the
arrest.” (Internal citation and quotation omitted.)); see also
ORS 131.615(5) (when making a stop, an officer “may use
the degree of force reasonably necessary to make the stop
and ensure the safety of the peace officer”).
         When officers have reasonable suspicion of criminal activity, they may temporarily seize an individual to
conduct further investigation and issue orders reasonably
necessary to do so, including orders reasonably necessary to
protect their safety.15 See, e.g., Bates,

304 Or at 524

 (permitting officers to take safety precautions during lawful stop).

     15
        In this case we do not decide whether an officer’s safety concerns could
justify a seizure if those concerns arose during the course of a noncoercive conversation. Although not raised here, it is important to remember that, even if
permitted, action taken to protect officer safety must be a reasonably necessary
response to the perceived threat. See State v. Foster,

347 Or 1, 12

217 P3d 168

(2009) (“The [officer-safety] doctrine generally requires that an officer’s response
to officer safety concerns be reasonable in light of the specifically articulated and
reasonably perceived circumstances.”).
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But, when, as here, an officer has made an initial, unlawful
seizure, and there is no independent constitutional justification for further restraint, the officer-safety doctrine does not
permit the officer to impose continued, and even more stringent, restraint to effectuate that unlawful seizure.16 If we
were to conclude that the officer-safety doctrine grants such
authority, we would be expanding the doctrine beyond its
purpose and diminishing the rights guaranteed by Article I,
section 9. We are unwilling to do so.
         In reaching that conclusion, we understand that
there may be circumstances in which officers are not certain
that an encounter is lawful; an encounter may, as the state
suggests, “straddle the line.” For instance, an officer may
not be certain that an order to stop is justified by reasonable suspicion or that an order to disperse is issued in accordance with the guarantees of free speech and assembly.
That uncertainty is understandable, but it is not material
for purposes of ORS 162.247(1)(b). As we explained in Illig-Renn, by including the word “lawful” in that statute, the
legislature “remov[ed] from the statute’s sweep any refusal
to follow an order that is inconsistent with the substantive
law, including constitutional provisions.”

341 Or at 238

. If
an officer issues an order that is inconsistent with Article I,
section 9, an individual who refuses to obey that order does
not violate ORS 162.247(1)(b).
In summary, ORS 162.247(1)(b) makes it a crime
for an individual to disobey a “lawful order.” An order that
restrains an individual’s liberty in violation of Article I, section 9, is not a “lawful order” for purposes of that statute. In
this case, because Crino did not have reasonable suspicion

16
Contrary to the dissent’s suggestion, we do not overturn the principle that,
for purposes of ORS 162.247(1)(b), the lawfulness of an order is to be judged independently of the validity of the initial police confrontation. We hold only that
when there is no constitutional justification for an initial seizure, such as reasonable suspicion of criminal activity, and an officer is unconstitutionally restraining an individual without an independent constitutional basis for doing so, the
officer-safety doctrine and Article I, section 9, do not permit the officer to impose
continued, even more stringent, restraint to effectuate the seizure. We do not
arrive at that conclusion to provide a “remedy” for the initial constitutional violation, or to deter police misconduct. We arrive at that conclusion because, in our
view, Article I, section 9, does not permit that continued, more stringent, interference with an individual’s liberty interest.
678 State v. Kreis

that defendant had committed or was about to commit
DUII or attempted DUII, his seizure of defendant violated
Article I, section 9. Crino’s subsequent order that defendant
turn and be handcuffed also was not constitutionally justified and was therefore inconsistent with that constitutional
provision. We therefore conclude that Crino’s order was not
a “lawful order” for purposes of ORS 162.247(1)(b), and that
the trial court erred in denying defendant’s motion for judgment of acquittal.
The decision of the Court of Appeals is reversed.
The judgment of the Beaverton Municipal Court is reversed,
and the case is remanded to that court for further proceedings consistent with this opinion.
BALMER, J., dissenting.
For more than 35 years, Court of Appeals caselaw
has held that “the lawfulness of an order based on officer
safety is to be judged independently of the validity of the
initial police-citizen confrontation.” State v. Kreis,

294 Or App 554, 559

 (2018) (citing cases). That rule
requires citizens to follow police orders that are based on
a reasonable, fact-based concern for the safety of police or
others—even if a court later determines that the police
lacked reasonable suspicion to detain the person at the time
of the initial citizen contact. The salutary effect of the rule is
to help de-escalate police-citizen confrontations; protect officer and public safety; and allow police to perform community
care-taking functions, control crowds at public events when
behavior turns dangerous, and investigate often ambiguous
domestic violence situations.
         The majority today states that it agrees that “the
lawfulness of an order is to be judged independently of the
validity of the initial police confrontation.” 365 Or at 676
n 15. However, the majority holds—contrary to those cases
with which it purports to agree—that “when there is no constitutional justification for an initial seizure, such as reasonable suspicion of criminal activity, and an officer [seizes]
an individual without an independent constitutional basis
for doing so, the officer-safety doctrine and Article I, section 9, do not permit the officer to impose continued, even
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more stringent, restraint to effectuate the seizure.”1

 In so
holding, the majority today muddies the standards required
of police officers under Article I, section 9. Because, in my
view, the majority’s holding is not required by our cases or
by any reasonable interpretation of ORS 162.247(1)(b), and
is not necessary to protect a defendant’s Article I, section 9,
rights, I respectfully dissent.
         I first outline the Court of Appeals caselaw with
which the majority theoretically agrees but with which its
ultimate holding conflicts. Then, because this case turns—
or should turn—on the interpretation of ORS 162.247(1)(b),
I consider the text and legislative history of that statute
which, in my view, supports the result below. Finally, I discuss the Article I, section 9, overlay that appears to drive
the majority’s decision and explain why the majority errs in
its holding today.
                THE COURT OF APPEALS CASES
                  FROM GAFFNEY TO KREIS
         The Court of Appeals decisions are persuasive in
their own right and also are important because that court’s
binding interpretation of the term “lawful order” when the
interference statute was amended in 1997 tells us how the
legislature understood the term at that time—and what
they intended the term to mean in ORS 162.247(1)(b).
         The Court of Appeals first encountered a related
issue in State v. Gaffney,

36 Or App 105

583 P2d 582

 (1978),
rev den,

285 Or 195

 (1979), where the trial court had dismissed harassment and criminal mischief charges against
the defendant for fighting with police and damaging a police
car after he disobeyed police orders to stop and officers
attempted to pat him down for weapons. The trial court had

    1
      A “seizure” for purposes of Article I, section 9, occurs “when either (1) a
police officer intentionally and significantly interferes with the person’s freedom
of movement; or (2) the person believes, in an objectively reasonable manner, that
his or her liberty of movement has been so restricted.” State v. Rodgers/Kirkeby,

347 Or 610, 621-22

227 P3d 695

 (2010). A “stop” is “a temporary restraint of a
person’s liberty for the purpose of criminal investigation,” and qualifies as a “seizure” under Article I, section 9.

Id. at 620

. I use the terms “stop” and “seizure”
interchangeably in this opinion. The majority describes the police interaction
with defendant, prior to the officer-safety-based order at issue here, as a “seizure.” 365 Or at 677. I agree with that characterization.
680                                                              State v. Kreis

held that, because the police lacked probable cause for the
initial stop, Article I, section 9, required the suppression of
evidence of all actions by the defendant following the stop,
including evidence that would support his prosecution for
crimes against the officers. The Court of Appeals reversed,
holding that, although the exclusionary rule would prohibit
the use of evidence obtained based on the unlawful stop,
    “[t]he purposes underlying the exclusionary rule would not
    be well served by the exclusion of evidence of independent
    crimes directed at officers who illegally stop, frisk, arrest
    or search. Moreover, the results of such an extension of the
    exclusionary rule would be intolerable. A person who correctly felt that he had been illegally stopped, for example,
    could respond with unlimited violence and under an exclusionary rule be immunized from criminal responsibility for
    any action taken after the stop. That cannot be an appropriate rule.”

36 Or App at 108

-09 (citing cases from Illinois, North
Carolina, and New York).2
          The Court of Appeals applied that rule in numerous
later cases, including State v. Rodinsky,

60 Or App 193

653 P2d 551

 (1982), where the defendant, who was the subject
of a traffic stop, disobeyed a police order to remain in her
car (and 12 requests to return to her car, after she left it
and approached the police car) and was loud and abusive
towards police. She was charged with failing to obey a police
officer under former ORS 487.100(1) (1981), which made it an
offense to “fail[ ] to comply with any lawful order, signal or
direction of a police officer ….” The Court of Appeals held
that, even if the traffic stop was unlawful (as the defendant
had argued), “that did not immunize her from the consequences of her subsequent conduct and did not deprive the
officer of the authority to respond to those actions by appropriate orders.”

60 Or App at 196

.
         As I discuss in greater detail below, the statute making it an offense to interfere with a peace officer by refusing

    2
      I do not necessarily agree with everything that the Court of Appeals said
in Gaffney, in part because it relied on “stop and frisk” statutes no longer on the
books. I quote it because it is the basis for the Court of Appeals’ more recent cases
on this issue and because it contains some seeds of wisdom.
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 (2019)                                    681

to obey a “lawful order of [a] peace officer,” ORS 162.247(1)(b),
has been amended a number of times, but the critical term
“lawful order” was also in the version of the statute applied
in Rodinsky and in all subsequent versions. And the Court of
Appeals has continued to apply its earlier caselaw. In State
v. Neill,

216 Or App 499

173 P3d 1262

 (2007), rev den,

344 Or 671

 (2008), the defendant was charged under that statute when police were sent to a scene of domestic violence following a 9-1-1 call and found a bloody victim, damaged property, and other evidence of fighting. Although the blood and
damaged property suggested that a crime had recently been
committed, the defendant asserted there was no valid basis
for the police to enter her apartment and that all evidence
resulting from that unlawful entry should be suppressed,
including evidence that she had refused to obey multiple
officer orders, several of which were based on officer-safety
concerns. The Court of Appeals extended earlier decisions
such as Gaffney, which had involved crimes against police
officers following an unlawful search or seizure, to situations where the defendant had threatened officer safety.
Neill,

216 Or App at 507

. Because the defendant’s conduct
“reasonably led the officers to be concerned that defendant
posed a legitimate threat to their safety and their ability to
maintain control of a potentially dangerous situation,” the
defendant was required to obey their reasonable orders:
   “That the police may have acted unlawfully in initiating
   the search did not free defendant to interfere with reasonable directions by the police designed to reduce the risk
   of violence and maintain safety once the search had commenced. As in Gaffney and its progeny, to hold otherwise
   would be intolerable and would not serve to advance the
   purposes underlying the exclusionary rule.”

Id. at 508

.
         Moreover, and directly relevant to this case, the
court in Neill also rejected the defendant’s argument that
her motion for judgment of acquittal should have been
granted because the officer’s order was not “lawful” under
ORS 162.247(1)(b).

Id. at 508-09

. The court reasoned that
the same rationale for admitting evidence of the defendant’s
failure to comply with reasonable officer-safety-based orders
indicated that those orders were lawful: “The lawfulness
682                                                         State v. Kreis

of the order disobeyed is to be judged independently of the
validity of the initial police-citizen confrontation.”

 at 509
(quoting Rodinsky,

60 Or App at 196

). The court also noted
that “the order itself cannot be said to be unlawful for the
purpose of precluding prosecution for failure to obey it.”
Neill,

216 Or App at 508

.
          Another variation on the same theme was State
v. Bistrika,

261 Or App 710

322 P3d 583

, rev den,

356 Or 397

 (2014), cert den, ___ US ___ (2015), where police officers
had lawfully entered private property to provide emergency
aid under ORS 133.033, but the emergency had dissipated,
and the officers no longer had a lawful basis to remain on
the property. Id. at 714. The court thus assumed that the
officers were in violation of defendant’s Article I, section 9,
rights when they gave orders to defendant and other family
members in response to reasonable threats to the officers’
safety. Id. at 714-16. But the court nevertheless held that the
trial court correctly had denied defendant’s motion for judgment of acquittal on the charge of interfering with a peace
officer: Even if the defendant’s Article I, section 9, rights had
been violated, whether the order was a “lawful order” for
purposes of ORS 162.247(1)(b) was a separate question, and
“the deputies’ orders were ‘reasonable in light of [the threat
to officer safety], and defendant’s refusal to obey the orders
added to the threat.’ ” Id. at 718 (quoting Neill,

216 Or App at 508

).3
         The Court of Appeals reviewed those cases again in
State v. Wilson,

283 Or App 823, 828

390 P3d 1114

 (2017),
and addressed further arguments about the “lawfulness” of
officer-safety-based orders:
       “ ‘An order is “lawful” if it is authorized by, and is not
   contrary to, substantive law.’ State v. Navickas,

271 Or App 447, 450

351 P3d 801

, rev den,

358 Or 248

 (2015) (citing State v. Ausmus,

336 Or 493, 504

85 P3d 864

 (2004)).
   ‘When examining whether an order is “lawful,” … we
   look at whether the order at issue was lawful on its face.’
   Id. at 451. Of critical importance here, ‘the “lawfulness of
   the order disobeyed is to be judged independently of the

    3
      The court ultimately reversed and remanded the interfering convictions on
the separate ground of instructional error. Bistrika,

261 Or App at 730

.
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 (2019)                                                    683

    validity of the initial police-citizen confrontation.” ’ [citation omitted].”
         That line of Court of Appeals decisions shows a
careful distinction between the lawfulness of an initial
stop or search and the lawfulness of a later police directive
or order that is motivated by officer or public safety. And
that distinction makes perfect sense, for reasons the Court
of Appeals has explained repeatedly since Gaffney. The
unlawful search or seizure of a citizen or unlawful entry
into a home violates the citizen’s (or noncitizen’s) right under
Article I, section 9, to be free from unreasonable searches
or seizures. To redress such constitutional violations, and
to deter police conduct that violates those rights, we suppress evidence obtained from such searches, unless it comes
within some exception to the warrant requirement. But once
a search or seizure has occurred—whether it is later judged
to be lawful or unlawful—the safety of law enforcement
personnel, potential victims, bystanders, and defendants
requires that those in the vicinity follow reasonable officer
orders based on the officers’ reasonable concerns for their
safety or the safety of others. The majority’s approach chips
away at that longstanding aspect of Oregon law.
            THE MEANING OF “LAWFUL ORDER”
             IN THE INTERFERENCE STATUTE
         The Court of Appeals cases are consistent with the
text of ORS 162.247(1)(b), which provides that a person commits the offense of interfering with a peace officer, when,
“knowing that another person is a peace officer,” he or she
“[r]efuses to obey a lawful order by the peace officer.” Nothing
in that text suggests that an order is “lawful” for purposes of
the offense of interfering with a peace officer only if the initial seizure was justified by reasonable suspicion or probable
cause. The question the statute asks is whether the order
was lawful, not whether the initial encounter was lawful,
not lawful, or somewhere in the ambiguous area between
the two that we see, for example, in this case or in responding to a domestic disturbance 9-1-1 call, as in Neill.4 The

    4
      Here, of course, as the majority notes, defendant does not dispute the reasonableness of the officer-safety concerns, or the reasonableness of the order as a
response to those concerns. 365 Or at 663-64.
684                                                           State v. Kreis

statute itself thus does not state or imply that the lawfulness of the initial seizure or search has any bearing on the
lawfulness of a later police order based on later conduct of
the defendant. The legislature knows how to write statutes
that do turn on whether the initial stop was lawful. See ORS
807.570(1)(b)(A) (requiring person to obey officer request if
the person is “lawfully stopped or detained”). ORS 162.247
(1)(b) is not such a statute.
         The Court of Appeals cases are also relevant because
they inform our understanding of what the legislature
intended when it adopted the current version of the interfering with a police officer statute. That statute was amended
in 1997 because other laws prohibited resisting arrest, but
did not prevent interference with police-citizen encounters
short of arrest. See Tape Recording, Senate Committee on
Crimes and Corrections, SB 423, Feb 19, 1997, Tape 13, Side A
(comments of Rep Floyd Prozanski). When one police officer
testified, in response to a question about how he understood
the term “lawful order,” he gave as an example of an interaction short of arrest,
    “a traffic stop where you might be performing field-sobriety
    tests and somebody who’s in the car is getting out and coming back or wanting to become involved. … [T]here’s nothing legally that they’re doing wrong other than I might be
    able to detain them on an officer-safety basis because that’s
    a threat to my ability to do my job. … But with this law,
    if that person did cross the line and didn’t listen to reason, didn’t listen to commands to get back into the vehicle,
    [he could warn the person that he was about to violate the
    interference law.]”
Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, SB 423, June 5, 1997, Tape 140,
Side A (statement of Albany Police Officer Eric Carter).
Neither Carter, nor any other witness, nor any member of
the subcommittee, suggested that the lawfulness of an officer’s order would turn on whether the initial stop was valid
or not.5
    5
      The legislative history is replete with comments by witnesses and legislators as to the importance to officer safety of a statute penalizing the refusal to
obey orders based on that concern. See Tape Recording, Senate Committee on
Crimes and Corrections, SB 423, Feb 19, 1997, Tape 13, Side A; Tape 14, Side A
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          As significant, at the time the 1997 amendments
were being considered, the Court of Appeals had several
decades of cases, discussed above, holding that whether an
officer’s order was “lawful” was a question independent of
whether the initial stop was justified. The court had consistently held that if an order made after the initial stop
or search was justified by the individual’s conduct after the
stop or after the entry into the home—such as a potential
threat to an officer or others—that was a “lawful order,”
whether the initial stop or entry was lawful or not. That
definitive caselaw as to the meaning of a “lawful order”
in the statute prohibiting interfering with a peace officer
by refusing to obey such an order was a vital part of the
statutory context of the 1997 amendments to ORS 162.247
(1)(b). A.G. v. Guitron,

351 Or 465, 471

268 P3d 589

 (2011)
(explaining that “existing case law forms a part of a statute’s
context” and that this court’s analysis begins “with a review
of the law as it existed” at the time a statute was enacted).
It strongly suggests that the legislature understood those
kinds of orders to be “lawful” and intended the refusal to
obey them to be prohibited by ORS 162.247(1)(b).
      THE OFFICER-SAFETY-BASED ORDER HERE
              WAS A “LAWFUL ORDER”
         Rather than probe the text and legislative history
of the interference statute, or explain why it departs from
the Court of Appeals’ cases, the majority relies instead on
State v. Ausmus,

336 Or 493, 503-04

85 P3d 864

 (2003),
where we discussed the term “lawful order” in a different
statute, and State v. Illig-Renn,

341 Or 228, 338

142 P3d 62

(2006), where we rejected a facial challenge to the interference statute on the ground that it was unconstitutionally
vague and overbroad.
The actual holdings in those cases, as opposed to
the dicta, are not particularly relevant to the majority’s
argument. In Ausmus, a unanimous court had little trouble

(comments of Rep Floyd Prozanski). The state argues that the legislative history
demonstrates that the statute also was intended to require compliance with other
types of police orders, even if they are not justified by a reasonable officer-safety
concern. I express no view regarding that argument because it is not necessary
to the resolution of this case.
686 State v. Kreis

holding unconstitutional on its face a statute that made
it a crime to “congregate[ ] with other persons in a public
place” and to “refuse[ ] to comply with a lawful order of the
police to disperse,” if the persons had congregated “with
intent to cause public inconvenience, annoyance or alarm,
or recklessly creating a risk thereof.” Former ORS 166.025
(1)(e) (2001). The court found that the statute was unconstitutionally overbroad and vague because at least some of
the conduct it prohibited was protected by free speech and
assembly rights, and the court could find no way to narrowly
construe the statute to make it constitutional. That problem is not present here because of the very different statute and the recognized officer-safety basis for the officer’s
order. Moreover, this case is not a facial challenge to the
interference statute, nor does defendant argue that the statute is unconstitutionally overbroad or vague—arguments
that have more salience in free expression and similar settings. See Wayne R. LaFave, 1 Search and Seizure § 1.13(a),
553-54 n 20 (5th ed 2012) (suggesting greater justification
may be necessary for failure to obey orders violating First
Amendment rights than other officer orders). In Illig-Renn,
on the other hand, this court rejected defendants’ challenge
to the very statute at issue in this case, ORS 162.247(1)(b),
holding that it was not facially overbroad or vague in violation of constitutional protections for speech and assembly.

341 Or at 338

. Defendant raises no free speech or assembly
argument here.
         The majority instead relies on various statements in
those cases about what constitutes a “lawful order,” but the
cases are distinguishable. In Ausmus, we looked to the dictionary to define that term in the statute creating the crime
of disorderly conduct and came up with the unsurprising
statement that a “lawful order” was one “authorized by, and
not contrary to, substantive law.” Ausmus,

336 Or at 504

.
But here the order was “authorized,” because it was a reasonable response to a legitimate concern for officer safety based
on defendant’s aggressive and threatening conduct after he
was stopped. As this court recognized in Ausmus, various
statutes authorize police to give orders as part of their ordinary investigative, community-caretaking, and protective
policing functions.

336 Or at 505-06

. And we explicitly held
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 (2019)                                                   687

in State v. Bates that an officer may take reasonable actions
to protect himself or herself (or others) during an encounter
with a citizen, if the officer develops “a reasonable suspicion,
based upon specific and articulable facts, that the citizen
might pose an immediate threat of serious physical injury
to the officer or to others present.”

304 Or 519, 524

747 P2d 991

 (1987). No such officer-safety rationale was advanced as
a basis for the orders in Ausmus or Illig-Renn being “lawful
orders.” In contrast, the order here was “lawful” in the sense
of being “authorized by law” based on Bates, as well as other
statutes articulating the permitted scope of ordinary police
work. And, as noted, defendant does not dispute that the officers who gave the order had reasonable suspicion to believe
that he posed a threat of serious bodily harm to them.
         Although I think the Court of Appeals’ approach
has much to recommend it, it also is true that the majority
has helpfully reframed the issue that was argued by the parties and decided by the Court of Appeals. The majority does
not focus on whether the initial police-citizen encounter was
lawful, but instead announces a rule based on whether the
later police order independently violated defendant’s constitutional rights. See 365 Or at 674-77, 675 n 14. The majority
agrees that even if the initial encounter results in a seizure
that later is determined to be unlawful (as here), the lawfulness of an order in response to defendant’s post-seizure
conduct will not necessarily turn on the legal validity of the
earlier seizure, but rather on whether the order “is inconsistent with Article I, section 9.” 365 Or at 677. Thus, the
majority purports to preserve the concept that the lawfulness of a police order “is to be judged independently of the
validity of the initial police citizen confrontation.” Kreis,

294 Or App at 559

.6 However, the majority goes on to say that
where an order that constitutes a seizure is based only on

6
The majority’s reframing thus suggests that it would conclude that an
officer-safety based order that was not “contrary to substantive law” is a “lawful order” for purposes of ORS 162.247(1)(b), even if the order was given in the
context of an unlawful search or seizure. Thus, an officer-safety-based order to
“drop the gun” presumably would be lawful, even if the initial stop was not. I
certainly agree with the majority on that point. But many cases, like this one and
the Court of Appeals cases discussed in the text, will involve police orders that
may interfere with a person’s freedom of movement and thus raise the Article I,
section 9, issue upon which the majority and I disagree.
688 State v. Kreis

officer-safety concerns—and lacks “an independent constitutional basis,” such as reasonable suspicion of criminal
activity—then the inquiry does depend on whether there
was a “constitutional justification for [the] initial seizure.”
365 Or at 676 n 15.
The majority proceeds to determine that the order
here was not a “lawful order” because it was contrary to substantive law. The majority asserts that the order to defendant to turn around and put his hands behind his back and
be handcuffed was contrary to substantive law, because
“defendant had a liberty interest with which [the officer]
could not interfere absent constitutional justification,” 365
Or at 671, and the officer lacked that justification. I disagree. First, the majority is too quick to dismiss the state’s
characterization of defendant’s argument: that he claimed
the right “to ball his fists, take a bladed stance, or place
Crino in apprehension of injury.’ ” Id. at 670. In fact, that
was the crux of defendant’s argument. This is not a case
where the defendant chose to engage in passive resistance—
inactive, nonviolent noncooperation in response to a police
order, which we have held cannot constitute interference
under ORS 162.247(1)(b). See State v. McNally,

361 Or 314

392 P3d 721

 (2017). Rather, after the initial stop, defendant
intentionally engaged in further aggressive and threatening conduct to which the officers reasonably responded with
the order at issue here. Such orders, until today, have been
considered “lawful orders” under the interference statute,
based on Bates. In my view, the officer-safety basis for the
order was sufficient justification under Article I, section 9.
         Second, the majority asserts that the order necessarily was unlawful because it “is inconsistent with” Article I,
section 9, as an unjustified seizure of defendant. 365 Or at
677. The flaw in that argument, however, is that, at the time
of the order, defendant already had been seized. As presented
to us, this case involves a seizure by police (based on what
they incorrectly believed to be probable cause) and a later
police order, based on valid officer-safety concerns, to defendant to turn around so that he could be handcuffed. But
the order did not result in defendant’s seizure by police. The
seizure already had occurred, and the order followed the
seizure. Moreover, it was defendant’s post-seizure conduct
Cite as

(2019) 689

that led to the order. Whether that order was lawful, as
the state argues, or unlawful, as the majority has now concluded, there is no doubt that, as a factual and legal matter,
a person in defendant’s circumstances is seized only once. I
see no particular substance in the majority’s statement, not
argued by defendant, that the order was a new violation of
his liberty interests because it “effectuated” the preexisting
and continuing seizure of defendant.
The majority appears to agree that, if the initial
stop is lawful—that is, based on reasonable suspicion that
the person in question has committed or is about to commit a crime—a later officer-safety-based order also would be
lawful and, if not obeyed, could be the basis for an interference charge. And, of course, if the initial stop is lawful and
police obtain evidence of the crime for which the defendant
was stopped (and perhaps other crimes), that evidence ordinarily can be used in subsequent prosecutions. On the other
hand, if the initial stop is unlawful, the person’s Article I,
section 9, rights are violated, and evidence of the crime for
which the person was stopped will be suppressed. The person’s constitutional rights will be vindicated, and there will
be a deterrent effect on improper police conduct.
But it is a separate issue whether the person
already stopped must obey a reasonable order based on reasonable concern for the safety of a police officer or another
person in the absence of reasonable suspicion that the person is engaged in criminal activity. I see no legal reason
why that person should not be required to obey such an
order, whether or not the initial stop was lawful. Such a
requirement would not violate the person’s Article I, section 9, rights. As discussed above, if the initial stop was
unlawful, the person already has been unconstitutionally
seized, and the remedy that we have long imposed for that
violation—suppression of evidence of the crime for which
the person was stopped—will be the result. There is no
need, in terms of deterrence of police misconduct or vindication of the constitutional rights of a person who is already
seized, to hold that an order based on a reasonable physical threat is “unlawful” and to permit the subject of the
order to ignore it without consequence. Such a result also
is contrary to the intent of the legislature in enacting ORS
690 State v. Kreis

162.247(1)(b) and its understanding of how the term “lawful
order” would be interpreted by the courts.
It probably should not have to be said, but “immediate threat[s] of serious physical injury to the officer or to
others present,” Bates,