State v. Backstrand

392 November 21, 2013 No. 55

IN THE SUPREME COURT OF THE
STATE OF OREGON

STATE OF OREGON,
Respondent on Review,
v.
STEVEN NICHOLAS BACKSTRAND,
Petitioner on Review.
STATE OF OREGON
Petitioner on Review,
v.
STEVEN NICHOLAS BACKSTRAND,
Respondent on Review.
(CC C071116CR; CA A136163;
SC S058019 (Control), S058318)

En Banc
On review from Court of Appeals.*
Argued and submitted June 8, 2011; resubmitted January 7,
2013.
Anna Marie Joyce, Assistant Attorney General, Salem,
argued the cause for petitioner on review State of Oregon.
On the brief were John R. Kroger Attorney General; Mary
H. Williams, Solicitor General; and Jamie K. Contreras,
Assistant Attorney General.
Neil F. Byl, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause for respondent
on review Steven Nicholas Backstrand. With him on the
brief was Peter Gartlan, Chief Defender.
LINDER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
______________
* Appeal from Washington County Circuit Court, Donald R. Letourneau,
Judge. 231 Or App 621, 220 P3d 748 (2009).
Cite as 354 Or 392 (2013) 393

Walters, J., concurred in the judgment and filed an opin-
ion in which Baldwin, J., joined.
Brewer, J., concurred in the judgment and filed an
opinion.
Defendant moved to suppress evidence of his identity and the status of his
driving privileges obtained as a result of an encounter with a deputy in an adult-
only store. The trial court denied the motion, and defendant was found guilty of
driving while revoked after a bench trial. On appeal, defendant argued that he
was unlawfully seized either when the deputy requested, obtained, or verified
defendant’s identification. The Court of Appeals reversed. Held: The deputy did
not seize defendant under Article I, section 9, of the Oregon Constitution, either
by requesting, obtaining, or verifying defendant’s identification. Such actions do
not, in and of themselves, amount to a show of authority of the kind required
for a seizure. Nor did the actions, either in combination or considered with any
other aspect of the encounter, have the effect of significantly interfering with
defendant’s liberty.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
394 State v. Backstrand

LINDER, J.
In two recent cases, we have held that officers who
had lawfully seized individuals for purposes of investiga-
tion also could, consistently with Article I, section 9, of the
Oregon Constitution, request and verify the individuals’
identifications. In particular, in State v. Fair, 353 Or 588,
609, 302 P3d 417 (2013), we held that an officer may tempo-
rarily detain a person whom the officer reasonably suspects
of being a material witness to or victim of a recent or ongo-
ing crime. We further held that, under the circumstances
of that case, the officer constitutionally could request the
witness’s identification and check for outstanding warrants
against her, in an attempt to verify the witness’s identity
and to obtain information otherwise relevant to the officer’s
investigation. Id. at 614. After deciding Fair, we decided
State v. Watson, 353 Or 768, 305 P3d 94 (2013). In Watson,
we held that an officer, in the course of a lawful stop for a
traffic offense, may request the driver’s identification and
check the status of his or her driving privileges. Id. at 782.
This case presents yet a third variation on the issues
that arise when police seek identification from persons with
whom they deal in the course of their work: Does an offi-
cer’s request for and verification of a person’s identification,
in and of itself, convert an encounter that is not a seizure
for constitutional purposes into one that is? As we explain,
we hold that the answer is no. Consequently, we reverse the
decision of the Court of Appeals and affirm the judgment of
the trial court.
I.  FACTS AND PROCEDURAL HISTORY
Deputy Gerba was monitoring a “triple-X” store
that sells adult sexual materials (toys, videos, clothing, etc).
The store had been robbed several times in the recent past,
and law enforcement had made frequent security checks on
it as a result. On the particular night involved in this case,
Gerba was “sitting on” the store, meaning that he was mon-
itoring it from outside and across the street, as well as by
occasionally going inside.
At about 1:00 a.m., Gerba was inside the store at
the same time that defendant and his girlfriend were inside
Cite as 354 Or 392 (2013) 395

shopping. Gerba thought that defendant looked “pretty
young” and believed he might be under the posted 18-year
minimum age to be in the store. Gerba knew that, if they
were minors, as he suspected, the store could “get in trouble”
because of the “pretty explicit stuff” that was readily visi-
ble to anyone inside.1 Gerba therefore approached the two
and asked their ages. Defendant answered that he was 22.
Gerba asked both defendant and his girlfriend if they had
any identification, and they gave him their driver licenses.
Gerba called dispatch to verify the validity of the licenses.2
After having the licenses for a total of 10 to 15 seconds,
Gerba returned them to defendant and his girlfriend and
wished them a good day.3 Gerba then left the store to con-
tinue to monitor it from outside, while defendant and his
girlfriend continued to shop inside.
Gerba had not asked dispatch to check on anything
other than the validity of the licenses, such as outstanding
warrants. Even so, dispatch called Gerba back to advise him
that defendant’s license was suspended and defendant was
on probation in another county. That call came about a min-
ute after Gerba returned the licenses, as Gerba was leaving
the store. Gerba continued across the street, where he main-
tained his security watch on the store. After about five min-
utes, defendant and his girlfriend walked out of the store,
got in their car, and left, with defendant driving. Based
on his belief that defendant was driving with a suspended
license, Gerba pursued them, initiated a traffic stop, and
arrested defendant. Defendant was later tried for driving
1
  It is a misdemeanor offense for the owner, operator, or manager of a busi-
ness to permit minors, if not accompanied by a parent or lawful guardian, to
enter or remain where obscene materials are displayed. ORS 167.080.
2
  Gerba testified that, although he could have determined both defendant’s
and the girlfriend’s age from the face of the licenses, he ran the licenses through
dispatch to make sure that they were not “fake.” He explained, “[w]hen somebody
has a fake ID, if we run it, it comes back unable to locate.”
3
  Defendant’s girlfriend testified at the suppression hearing, but defendant
did not. According to her, Gerba asked for their IDs, and they gave them to him.
After Gerba called to verify them, he handed them back, explaining to the two
that they “looked awful young.” He then said, “thank you.” The only significant
difference between Gerba’s and the girlfriend’s testimony was that the girlfriend
described Gerba as holding the licenses for “several minutes” before returning
them. The trial court, however, expressly found the historical facts to be as Gerba
had related them and made the specific factual finding that Gerba had possessed
the licenses for only 10 to 15 seconds.
396 State v. Backstrand

while revoked (his license actually had been revoked, rather
than suspended).
Before trial, defendant moved to suppress all evi-
dence from his encounter with Gerba in the store (i.e., his
identity and the status of his driving privileges), arguing
that Gerba had unlawfully “stopped” defendant either when
he requested defendant’s identification or, in the alternative,
when he called dispatch to verify defendant’s identification.
The state responded that the encounter between Gerba and
defendant had not amounted to a seizure or, if it had, Gerba’s
actions were supported by his reasonable suspicion that defen-
dant was not old enough to be inside the age-restricted store.
The trial court denied defendant’s motion, conclud-
ing that Gerba had not seized defendant. The trial court
reasoned that the time involved—10 to 15 seconds—was
de minimis and Gerba had not investigated defendant for any
possible wrongdoing on his part, but rather, had attempted
to determine if he was a minor as a protective measure, in
which case he should not have been in the adult-only store.4
The trial court concluded that, in that situation, a reason-
able person in defendant’s position would not feel signifi-
cantly restrained by the officer’s request for, and verification
of, defendant’s identification. After a bench trial, the trial
court found defendant guilty of driving while revoked.
4
  Justice Walters’s concurring opinion characterizes Gerba’s interaction with
defendant as conduct that “would cause a reasonable person in defendant’s position
to believe that he was the subject of a criminal investigation and therefore that
he must stop, respond, and remain.” See, e.g., 354 Or at 418, 419-20 (Walters, J.,
concurring in the judgment) (officer’s investigation of validity of defendant’s
license would reasonably be perceived as investigation of one or more identity-
related crimes). In our view, as our analysis will reveal, the fact that an officer
asks a citizen for cooperation in the course of conducting a criminal investigation
is not a talisman in the analysis, as it is for Justice Walters. For that reason, we
decline to debate whether a person in defendant’s position would have believed
he was the subject of a “criminal investigation.” We note only that the proposition
seems especially doubtful in this setting. Three statutes that Justice Walters
cites as “crimes” that, objectively, defendant might have thought the officer to be
investigating are simply inapplicable in this circumstance. See ORS 162.247(1)(a)
(crime to prevent officer from performing lawful duties); ORS 162.385 (crime to
give false information to officer when being cited for crime); ORS 807.620 (crime
to give false information to officer enforcing motor vehicle laws). And it seems
like a stretch to say that a reasonable person who had not attempted to buy any-
thing in the store or produced identification to that end would have believed he
was being investigated for a violation of ORS 165.805 (crime for minor to misrep-
resent age to secure a benefit by law denied to minors).
Cite as 354 Or 392 (2013) 397

On appeal, the Court of Appeals concluded that,
from an objective standpoint, defendant had been seized.
State v. Backstrand, 231 Or App 621, 632, 220 P3d 748
(2009). The court was divided on its rationale, however, par-
ticularly as to the point at which the seizure had objectively
occurred. The lead opinion concluded that, when Gerba
called dispatch, a reasonable person in defendant’s position
would have believed that he was not free to leave while the
call was being made. Id. at 626. The lead opinion remanded
to the trial court to determine whether defendant also sub-
jectively felt that he was not free to leave at that point. Id.
at 632.5 The lead opinion concluded that, if the trial court
were to find that defendant subjectively felt restrained, then
Gerba had unlawfully seized defendant.6 Id. at 625-26. The
lead opinion further concluded that if, on remand, the trial
court determined that defendant subjectively felt restrained,
the evidence of the status of defendant’s driving privileges
should be suppressed. Id. at 632.
A concurring opinion took a different view on the
“timing of the operative ‘stop.’  Id. at 633 (Haselton, P. J.,
”
concurring). According to the concurrence, Gerba seized
defendant “when, in response to Gerba’s inquiries, defen-
dant produced, and Gerba took, defendant’s driver’s license.”
Id. Under that view, the concurrence agreed that suppres-
sion was required if defendant subjectively felt restrained
once he handed his license to Gerba. Id. at 642. Finally,
5
  After the Court of Appeals issued its decision, this court decided State v.
Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010), in which we revised the test for
a seizure under Article I, section 9, by abandoning the prong that considered a
defendant’s subjective belief that his liberty or freedom of movement was signifi-
cantly restrained. In light of Ashbaugh, the remand that the Court of Appeals
ordered was unnecessary.
6
  The lead opinion reasoned that any seizure of defendant would be unlawful
because the officer had no reasonable suspicion that defendant was engaged in
criminal activity. We recently held in Fair, however, that an officer may, in appro-
priate circumstances, constitutionally stop and detain a person on reasonable
suspicion that the person is a material witness to or victim of a crime. 353 Or
at 609. Here, the trial court expressly found that the officer reasonably believed
that defendant and his girlfriend may have been minors and that he asked for
and verified their ages as a protective measure to determine if they were in fact
minors in an adult-only store. We need not decide whether, under Fair, the officer
reasonably could have seized defendant as a potential witness or victim under the
circumstances presented in this case because we conclude that defendant was not
seized. For present purposes, it suffices to note that the Court of Appeals’ ratio-
nale for concluding that the seizure would have been unlawful was too narrow.
398 State v. Backstrand

according to a dissenting opinion, the lead opinion was cor-
rect that Gerba had seized defendant when Gerba made the
call to dispatch, but suppression was not required. Id. at 643
(Deits, S. J., dissenting).7
Both defendant and the state sought review, and we
originally held the petitions pending our decision in State
v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010). After issuing
our decision in Ashbaugh, we allowed both the petitions. On
review, the state renews its assertion that defendant was
not seized at any point during his encounter with Gerba. In
the state’s view, Gerba’s actions in requesting and verify-
ing defendant’s identification were not a sufficient restraint
on defendant’s liberty or freedom of movement to amount
to the seizure of defendant. Defendant argues the converse,
urging that he was seized either when Gerba requested and
obtained his identification, or when Gerba called dispatch,
because a reasonable person in defendant’s position would
have believed that he was not free to continue shopping
until the officer’s investigation was complete.
II. ANALYSIS
A.  General Principles Governing Seizures
As we explained at the outset, the central question
that this case presents is: Does an officer’s request for and
verification of a person’s identification, in and of itself, con-
vert an encounter that is not a seizure for constitutional pur-
poses into one that is? The general principles that guide our
answer to that question are well-settled and were discussed
at some length in our two most recent “stop” cases, Fair,
353 Or at 593-95, 598-603, and Watson, 353 Or at 773-74,
778-80. For our analysis here, it is helpful to summarize
those principles.
Article I, section 9, guarantees individuals the
right to be “secure in their persons *  * against unreason-
* 
able search, or seizure.” As this court has long recognized,
encounters between law enforcement officers and citizens are
of an “infinite variety.” State v. Holmes, 311 Or 400, 406, 813
P2d 28 (1991). Of that infinite variety, “only some implicate
7
  Because we decide that defendant was not seized, we do not describe the
Court of Appeals’ various views on whether suppression was required.
Cite as 354 Or 392 (2013) 399

the prohibition in Article I, section 9, against unreasonable
‘seizures.’ ” Ashbaugh, 349 Or at 308. As we have described
in numerous cases:
“Analytically, police-citizen encounters typically fall into
one of three categories that correlate the degree of intru-
siveness on a citizen’s liberty with the degree of justifica-
tion required for the intrusion. At one end of the continuum
are mere encounters for which no justification is required.
At the other end are arrests, which involve protracted cus-
todial restraint and require probable cause. In between
are temporary detentions for investigatory purposes, often
termed ‘stops,’ which generally require reasonable suspi-
cion. Both stops and arrests are seizures for constitutional
purposes, while less restrictive encounters are not.”
Fair, 353 Or at 593-94 (citations and footnote omitted).
What distinguishes a seizure (either a stop or an
arrest) from a constitutionally insignificant police-citizen
encounter “is the imposition, either by physical force or
through some ‘show of authority,’ of some restraint on the
individual’s liberty.” Ashbaugh, 349 Or at 309. The test is an
objective one: Would a reasonable person believe that a law
enforcement officer intentionally and significantly restricted,
interfered with, or otherwise deprived the individual of his
or her liberty or freedom of movement. Id. at 316.8 Because
of the diversity of potential police-citizen encounters, the
inquiry necessarily is fact-specific and requires an exam-
ination of the totality of the circumstances involved. Holmes,
311 Or at 408. As we recently acknowledged in Fair, “in
practice, the line between a ‘mere encounter’ and something
that rises to the level of a ‘seizure’ does not lend itself to
easy demarcation.” 353 Or at 595. Rather, as this court rec-
ognized in Holmes, the standard is necessarily vague “when
8
  In clarifying the test in Ashbaugh, we described it as having two prongs,
either of which can result in a constitutionally significant seizure. 349 Or at 304.
One prong asks whether an officer has intentionally and significantly restricted
the individual’s liberty or freedom of movement; the other asks if a reasonable
person would believe that the officer has so restricted him or her. Id. at 309. The
state in this case urges us to reconsider that test and eliminate the first prong,
reasoning that it is subsumed in the second and adds nothing of independent
value to the analysis. As the parties agree, however, this case involves only the
second prong of the test—that is, what a reasonable person would believe based
on the officer’s conduct. We decline the state’s invitation to revisit the value of the
first prong of the test in a case that does not adequately implicate it.
400 State v. Backstrand

unadorned by judicial interpretation based upon specific fact
situations” and does not provide “a ready answer for every
conceivable” police-citizen encounter that can arise. 311 Or
at 410. As a result, “In many cases it is clear that a person
has been ‘seized.’ But there are many instances in which it
is less obvious whether a police-citizen encounter is a ‘sei-
zure.’ ” Id. at 407.
Although close cases can—and frequently do—
arise, beginning with Holmes, this court has remained
steadfast in recognizing that the constitutional concern is
with police-imposed restraints on citizen liberty, not with
limiting contacts between police and citizens. In an oft-cited
and oft-quoted passage, Holmes stressed that “law enforce-
ment officers remain free to approach persons on the street
or in public places, seek their cooperation or assistance,
request or impart information, or question them without
being called upon to articulate a certain level of suspicion
in justification if a particular encounter proves fruitful.” 311
Or at 410; see also State v. Gerrish, 311 Or 506, 513, 815 P2d
1244 (1991) (flagging down driver and directing him to stop
not a significant interference with driver’s liberty where
those are only means available to get driver’s attention long
enough to request information). The fact that the citizen is
discomforted by an officer’s approach and request for assis-
tance or information—either because the officer is a known
police officer, or because the encounter otherwise involves
“inconvenience or annoyance”—does not make the contact
a seizure. Holmes, 311 Or at 410. Rather, a seizure exists
only if the officer’s conduct would be reasonably perceived as
coercive in the sense that it would cause the citizen to rea-
sonably believe that the officer is intentionally restraining
the citizen’s liberty or freedom of movement in a significant
way—that is, in a way that exceeds the bounds of ordinary
social encounters between private citizens. Id. at 409-10.9
9
 Justice Walters, in her concurrence, relegates her discussion of the ana-
lytical construct adopted in Holmes to a footnote and essentially treats Holmes
as superfluous to the analysis. 354 Or at 424 n 3 (Walters, J., concurring in the
judgment). Justice Brewer, in his separate concurrence, expresses his view that
the Holmes construct of “mere conversation” is a fiction and less than helpful to
the analysis. 354 Or at 428, 431-32 (Brewer, J., concurring in the judgment of the
court). As this court observed most recently in Ashbaugh, our efforts “to explain
what the constitutional term ‘seizure’ embraces” have not been entirely success-
ful or satisfying. 349 Or at 310. We could make the same observation about the
Cite as 354 Or 392 (2013) 401

Thus, a “show of authority” as used in this con-
text is shorthand for a more precise concept. The fact that
a law enforcement officer conveys his or her official status
as such—as officers do by, for example, wearing uniforms,
displaying their badges, driving in marked patrol cars, and
verbally identifying themselves as police officers—is not a
“show of authority” that gives rise to a seizure in the con-
stitutional sense. What is required is a reasonable percep-
tion that an officer is exercising his or her official authority
to restrain. Explicitly or implicitly, an officer must convey
to the person with whom he is dealing, either by word,
action, or both, that the person is not free to terminate the

general fabric of constitutional seizure law from which Holmes borrowed the
analysis. See Holmes, 311 Or at 407 (citing State v. Warner, 284 Or 147, 161,
585 P2d 681 (1978), which in turn embraced the analysis that had developed
under the Fourth Amendment); see generally Wayne R. LaFave, 4 Search and
Seizure § 9.1-9.4, 352-645 (5th ed 2012) (exhaustive discussion of legal develop-
ments post-Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), by which
arrests and temporary detentions are subject to constitutional protection against
unreasonable seizures, but nonforcible or noncoercive encounters are not).
Our adherence to Holmes in this case does not mean that our work in refin-
ing what constitutes a “seizure” for purposes of Article I, section 9, is done. But
Holmes has been a settled part of our Article I, section 9, jurisprudence for more
than two decades, and we have reembraced it as recently as Watson, 353 Or at
774, Fair, 353 Or at 593-94, and Ashbaugh, 349 Or at 308-09, albeit with mod-
est refinement in Ashbaugh. The parties’ arguments throughout—from the trial
court proceedings through briefing and argument in this court—have been based
on acceptance of the essential construct that Holmes announced. In a proper
case, and with considered arguments by the parties before us, we can continue to
examine the scope of the term “seizure” for purposes of Article I, section 9, and
the law in that regard appropriately should continue to evolve. Justice Brewer
is not alone in his dissatisfaction with the prevailing analysis. See, e.g., Edwin
J. Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When
Fourth Amendment Activity Begins, 79 J Crim L & Criminology 437, 439 (1988)
(it is generally accepted that, in fact, citizens almost never feel free to end an
encounter initiated by a police officer and walk away; literal application of a
“free-to-leave” test would result in virtually all police-citizen encounters being
seizures); see also Lewis R. Katz, Terry v. Ohio at Thirty-Five: A Revisionist View,
74 Miss L J 423, 458 n 177 (2004) (most citizens do not feel free to terminate
an encounter with police when approached in a public place, and such contacts
are “regrettably” characterized as “mere encounters” (quoting Robert J. Burnett,
Random Police-Citizen Encounters: When is a Seizure a Seizure?, 33 Duq L Rev
283, 287 (1995)). But a change to the constitutional standard must be made con-
sistently with our criteria for altering settled precedent. See generally Farmers
Ins Co v. Mowry, 350 Or 686, 693-94, 261 P3d 1 (2011) (discussing application of
stare decisis in cases involving constitutional provisions). As important, such a
change must be animated by and tailored to policies embodied in the terms of
Article I, section 9, and not our own normative values of how police and citizens
do or should interact. Unless and until those considered arguments are before us,
we properly adhere to Holmes.
402 State v. Backstrand

encounter or otherwise go about his or her ordinary affairs.
Necessarily, then, the fact that an individual—for reasons
personal to that individual—feels obliged to cooperate with
the officer simply because of the officer’s status is not the
form or source of coercion that is of constitutional concern.
As Holmes held, 311 Or at 410, and as other authorities have
observed of the parallel federal standard for what consti-
tutes a seizure, police need not articulate any particular
degree of suspicion to “to seek cooperation, even where this
may involve inconvenience or embarrassment for the citizen,
and even though many citizens will defer to this authority
of the police because they believe—in some vague way—that
they should.” American Law Institute, A Model Code of Pre-
Arraignment Procedure § 110.1, 258 (1975) (Model Code).
Professor LaFave agrees, acknowledging that,
“if ‘the moral and instinctive pressures to cooperate are in
general sound and may be relied on by the police,’ then a
street encounter does not amount to a *  * seizure merely
* 
because of those pressures—that is, merely because the
other party to the encounter is known to be a policeman.”
Wayne R. LaFave, 4 Search and Seizure § 9.4(a), 581 (5th
ed 2012) (quoting Model Code § 110.1 at 258 (footnote omit-
ted)).10 Rather, “the confrontation is a seizure only if the offi-
cer adds to those inherent pressures by engaging in conduct
significantly beyond that accepted in social intercourse.” Id.
at 581-82 (emphasis added); see generally Holmes, 311 Or
at 410 (“encounter is a ‘seizure’ of a person only if the offi-
cer engages in conduct significantly beyond that accepted
in ordinary social intercourse”). Again, what is required is
a show of authority by which, through words or action, the
officer’s conduct reasonably conveys that the officer is exer-
cising his or her authority to significantly restrain the citi-
zen’s liberty or freedom of movement.11
10
  See also United States v. Tavolacci, 895 F2d 1423, 1424 (DC Cir 1990) (fed-
eral seizure test “assumes that the citizen is aware of police duties to keep the
peace and prevent crime, and that that awareness, coupled with feelings of civic
duty, moral obligation, or simply proper etiquette, will often lead a reasonable
person to cooperate” (internal quotations omitted)).
11
 The federal test under the Fourth Amendment is often described as
whether a reasonable person would feel or believe himself to be “free to leave.”
See, e.g., United States v. Mendenhall, 446 US 544, 554, 100 S Ct 1870, 64 L Ed 2d
497 (1980) (seizure within meaning of Fourth Amendment occurs “only if, in view
of all of the circumstances * * *, a reasonable person would have believed that he
Cite as 354 Or 392 (2013) 403

B.  Police Requests For Information or Cooperation Generally
Consistently with Holmes’s declaration that officers
remain free to approach citizens, request or impart infor-
mation, and seek assistance, this court has cautioned that
“verbal inquiries [by officers] are not *  * seizures.” State
* 
v. Rodgers/Kirkeby, 347 Or 610, 622, 227 P3d 695 (2010).
Rather, something more than just asking a question, request-
ing information, or seeking an individual’s cooperation is
required of an officer’s conduct. The “something more” can
be such things as the content or manner of questioning, or
the accompanying physical acts by the officer, if those added
factors would reasonably be construed as a “threatening or
coercive” show of authority requiring compliance with the
officer’s request. Ashbaugh, 349 Or at 317; see also State v.
Ehly, 317 Or 66, 76-77, 854 P2d 421 (1993) (mere requests for
cooperation not seizures unless officer, through demeanor,
tone, language, or totality of circumstances, conveyed a

was not free to leave”). But as this court recognized in Holmes, the feel-free-to-
leave formulation does “not state the entire [federal] test for a ‘seizure’ of a person
by a non-forcible ‘show of authority.’ ” 311 Or at 413; see also Gerrish, 311 Or at 517
(whether reasonable person would feel free to leave “is not determinative” of fed-
eral analysis). Rather, as the Supreme Court has clarified, whether a reasonable
person would have believed that he was not free to leave
“states a necessary, but not a sufficient, condition for * * * [a] seizure effected
through a ‘show of authority.’ * * * [T]he test for existence of a ‘show of author-
ity’ is an objective one: not whether the citizen perceived that he was being
ordered to restrict his movement, but whether the officer’s words and actions
would have conveyed that to a reasonable person.”
California v. Hodari D, 499 US 621, 628, 111 S Ct 1547, 113 L Ed 2d 690 (1991)
(last emphasis added). Under that more complete articulation of the federal test,
the analysis of what constitutes a seizure under Article I, section 9, and under
the Fourth Amendment is not meaningfully different. See, e.g., Holmes, 311 Or at
414 (reasons for rejecting defendant’s federal seizure claim “similar” to those for
rejecting claim under Article I, section 9); Gerrish, 311 Or at 517-18 (“As with our
analysis under Article I, section 9, we believe that the minimal intrusion of the
encounter was not a constitutionally material interference with [the] defendant’s
liberty” under the Fourth Amendment.).
We decline to distill the test under Article I, section 9, to a feel-free-to-leave
formulation. That formulation tends to direct the focus to a citizen’s internal
feelings, beliefs, and thoughts, while simultaneously distracting from the correct
focus, which is the officer’s words and actions and what they would convey to a
reasonable person. We instead adhere to the test as we stated it in Holmes and
revised it in Ashbaugh, which requires a show of authority by an officer that
would cause a reasonable person to believe that the officer intentionally and sig-
nificantly has restricted, interfered with, or otherwise deprived the citizen of the
citizen’s liberty or freedom of movement. Ashbaugh, 349 Or at 316.
404 State v. Backstrand

restraint on liberty). Without the something more, however,
“police inquiries in and of themselves require no justifica-
tion and do not necessarily implicate Article I, section 9.”
Rodgers/Kirkeby, 347 Or at 624.

Several of our cases illustrate that principle in prac-
tice. One of the earliest is Ehly, which was decided about two
years after Holmes first articulated the standard for distin-
guishing “mere encounters” from police conduct that results
in a seizure for constitutional purposes. In Ehly, two officers
confronted the defendant in a motel room after he refused
to leave at check out and return the room key to the man-
ager. The officers immediately told the manager to “stand
back” and advised the defendant that he had to leave. When
the defendant picked up two bags and started to leave, the
officers asked him to return the key to the manager. The
defendant replied that the key might be in one of the bags,
but that the bags did not belong to him. One officer then
asked him to find the key. The defendant tried, rummaging
through one of the bags unsuccessfully, at which point the
officer encouraged him to dump the bag’s contents onto the
bed because both of the defendant’s hands were concealed
within the bag as he searched for the key. When the defen-
dant continued to search the bag, the officer, concerned
that a weapon was in the bag, put her hand on her gun and
ordered the defendant to “back up,” which he did; the officer
then grabbed the bag herself and dumped the contents out.
Ehly, 317 Or at 68-72, 79.

This court concluded in Ehly that the defendant
was seized for purposes of Article I, section 9, at the point
that the officer ordered the defendant to back up. Id. at 79.
The officers’ requests before that point, individually and in
combination, to leave, to find the key, and to dump out the
contents of the bag did not, however, result in seizing him.
Rejecting the defendant’s argument that the requests were
“ ‘poorly disguised commands,’ ” the court reasoned that—in
light of the trial court’s factual findings—“nothing about the
officers’ demeanor, their tone of voice, the nature of their
language, or the time, place, or manner of the encounter”
supported a conclusion that a reasonable person would have
believed that his liberty had been significantly restrained
Cite as 354 Or 392 (2013) 405

before the officer directed him to stand back from the bag
that defendant was searching through. Id. at 76, 78.12
Ashbaugh involved a similar conclusion on much
different facts. In Ashbaugh, two officers on bicycles
approached the defendant and her husband while they were
sitting in a public park in the middle of the day. The officers
investigated their identities and checked to see if either of
them was wanted on outstanding warrants. When the offi-
cers learned that the defendant’s husband was subject to a
restraining order that prevented him from having contact
with the defendant, the officers arrested him for violating
that order and took him to a requested patrol car. About five
minutes later, the officers returned to the defendant, who
had not left the park, to tell her that her husband wanted her
to take his belongings with her. On impulse, one of the offi-
cers asked the defendant if she had anything illegal in her
purse. When she said she did not, he asked if he could search
her purse, and she agreed. Ashbaugh, 349 Or at 300-02.
The state conceded at a pre-trial proceeding that the initial
contact with the defendant and her husband was an unlaw-
ful stop. Id. at 302-03 n 2.
Given the state’s concession, the seizure question
before this court was limited to whether the officers had
seized the defendant when they recontacted her, asked her
about the contents of her purse, and asked if she would per-
mit them to search her purse. Id. at 306, 308. In concluding
that the defendant was not seized at that point, this court
acknowledged that “it is possible to restrict a person’s liberty
and freedom of movement by purely verbal means.” Id. at
317. But we reasoned that nothing in the content of the ques-
tions asked, or in the officers’ manner or actions, involved
a “show of authority” that the defendant could reasonably
construe as a threat or an exercise of authority to coercively
restrain. The court observed that, “while it may have been
true that [the] defendant had been unlawfully detained by
12
 As Ehly emphasized, the legality of a particular search depends signifi-
cantly on the facts of a particular case, and what “actually happened is a question
of fact for the trial court.” 317 Or at 74-75. A trial court’s findings of historical fact
are binding on an appellate court and, if the trial court does not make express
findings on all pertinent issues, the appellate court will view the record in a light
most favorable to the trial court’s ruling and presume that the facts were decided
in a manner consistent with the trial court’s ultimate conclusion. Id. at 75.
406 State v. Backstrand

police some minutes before and had watched a clear show
of authority directed at her husband, those circumstances
had ended.” Id. Consequently, this court concluded that the
officer’s questions to the defendant did not “intentionally
and significantly” restrict or interfere with her liberty, and
a reasonable person in the defendant’s circumstances would
not believe that they had. Id.
In other cases, the circumstances accompanying
verbal questions or requests have led this court to conclude
that the defendant was seized, not by an officer’s questions
per se, but given the context in which they were asked
and the totality of the circumstances otherwise involved.
Rodgers/Kirkeby, in particular, emphasized the importance
of context. Rodgers/Kirkeby involved two cases consolidated
for purposes of the court’s opinion. Both involved lawful
stops of vehicles for traffic offenses. In Rodgers, officers com-
pleted their investigation of the offense, but did not issue
a citation. Then, although he lacked reasonable suspicion,
one of the officers proceeded to question the defendant about
possible drug activity and to ask for consent to search with-
out advising the defendant that he was free to leave. 347 Or
at 613-15, 626. In Kirkeby, after obtaining all information
relevant to the reason for the stop, the officer asked for con-
sent to conduct a patdown, after which he asked for consent
to examine items in the defendant’s pockets. Id. at 615-16.
This court determined that, in each instance, the
questions and request for consent resulted in an unlawful
seizure. Id. at 627-28. In explaining that conclusion, the
court first acknowledged that, in general, “verbal inqui-
ries are not searches and seizures,” even when made in the
course of, and unrelated to, a traffic stop. Id. at 622. The
problem in Rodgers/Kirkeby was that the unrelated inqui-
ries at issue were not in the due course of the traffic stop, but
came afterwards—that is, they came at a point when the
officers no longer had authority to detain the defendants. Id.
at 623. As the court explained, “in contrast to a person on
the street” or otherwise in public who has not been stopped
for a traffic offense, a person detained for a traffic offense
has a legal obligation to stop at the officer’s direction and
remain; the person may not unilaterally end the encounter
Cite as 354 Or 392 (2013) 407

and leave whenever he or she chooses. Id. at 622-23. From
the standpoint of a reasonable person in the defendants’
position, when the officers in both cases, after completing
the investigation of the traffic offenses, asked unrelated
questions and asked for consent to search, but did not tell
the defendants that they were free to leave, those verbal
inquiries communicated a continuation of the traffic stop,
even though the officers no longer had authority to detain.
Id. at 627-28. In that distinctive context, the verbal inqui-
ries alone continued the seizures, and continuation of the
seizures was unlawful.
Finally, State v. Jacobus, 318 Or 234, 864 P2d
861 (1993), illustrates more generally how the manner of
questioning and attendant circumstances may affect the
analysis. There, an officer had been advised that the occu-
pants of a particular Datsun car parked near a convenience
store had been overheard by a customer saying that “there
was only one clerk in the store.” When the officer drove to
the store, he saw the Datsun parked in an unlighted area
nearby and drove past it. As he went past, the occupants
frantically began to stuff objects under the seats. The officer
made a U-turn, pulled in behind the Datsun, and turned on
his patrol car’s overhead lights. Two occupants got out of the
car and walked toward the store. The officer approached the
Datsun on foot. The defendant, who remained in the Datsun,
continued to stuff something under coats and other items
on the floorboard. When the officer asked the defendant
to step out, he stayed in the Datsun. The officer repeated
his request at least two more times before the defendant
complied. Id. at 236. Characterizing the officer’s repeated
requests as “order[ing]” the defendant out of the car, the
court held, without extended analysis, that the defendant’s
liberty was temporarily restrained because the defendant,
at least at the moment of the order, was not free to “remain
in the Datsun or even *  * to get out of the Datsun and
* 
walk away.” Id. at 240-41.13 Implicit in the court’s seizure
13
  The court analyzed the circumstances in Jacobus to determine if they con-
stituted a stop for purposes of ORS 131.615(1). Well before that decision, this
court had recognized that statute as codifying both the state and federal consti-
tutional standards for a lawful investigatory stop based on reasonable suspicion
of criminal activity. See State v. Valdez, 277 Or 621, 624-26, 561 P2d 1006 (1977)
(discussing origins of stop statute); see also State v. Kennedy, 290 Or 493, 497,
408 State v. Backstrand

analysis was its conclusion that the surrounding circum-
stances (patrol car parked behind the Datsun with over-
head lights activated), coupled with the persistence of the
officer’s “requests,” rendered those requests the functional
equivalent of a command affirmatively communicating to
the defendant that compliance was not optional.
C.  Police Requests for Identification and Verification of
Identification
Police requests for identification are a subset within
the general category of police requests for information or
cooperation. But asking for and verifying identification is
not unique to police-citizen encounters. Rather, as other
courts have observed, in this day and age, requests for valid
government-issued identification are commonplace in ordi-
nary dealings in society, both between private citizens as
well as in a variety of citizen-government contexts (such as
entering public buildings). See, e.g., Golphin v. State, 945 So
2d 1174, 1189-90 (Fla 2006), cert den, 552 US 810 (2007)
(“[T]he act of identifying oneself through presentation of
valid, government-issued identification [is] a necessary part
of a panoply of human endeavors, from cashing a check to
boarding an airplane.”).14 Police officers, in their official
dealings with citizens, likewise commonly seek to deter-
mine and verify with whom they are dealing for reasons
that range from simply documenting the activities the offi-
cers engage in while on duty to ascertaining information
that may assist in enforcement of the criminal laws. See,
e.g., Fair, 353 Or at 614 (officer checked potential witness
for outstanding warrants as means of verifying identifica-
tion and ascertaining information relevant to investigation

624 P2d 99 (1981) (Oregon stop statutes were intended to codify decisions by
this court interpreting Article I, section 9, and the United States Supreme Court
interpreting the Fourth Amendment), rejected in part on other grounds by State v.
Hall, 339 Or 7, 20, 115 P3d 908 (2005), and State v. Stevens, 311 Or 119, 136-37,
806 P2d 92 (1991). Consequently, in a case involving suspicion of criminal activ-
ity, as Jacobus did, the analysis under Article I, section 9, necessarily would be
the same as under ORS 131.615(1).
14
  See also State v. Martin, 2011-0082, p 9 (La 10/25/11); 79 So 3d 951, 957
(individual is “practically immobilized” in modern society without adequate iden-
tification); People v. Jackson, 39 P3d 1174, 1189 (Colo 2002) (“[t]he need for iden-
tification is pervasive in today’s society”), abrogated on other grounds by Brendlin
v. California, 551 US 249, 259, 127 S Ct 2400, 168 L Ed 2d 132 (2007).
Cite as 354 Or 392 (2013) 409

of domestic assault); State v. Ellenbecker, 159 Wis 2d 91, 98,
464 NW2d 427, 430 (1990) (where it is reasonable for officer
to ask for license, running status check on license carries
out “deterrent function of the law”).
Until now, this court has not been asked to decide—
and has not in fact decided—whether an officer effectively
seizes an individual simply by asking for an individual’s
identification. Where the issue is that straightforward—
based on the request alone and nothing more—the circum-
stance comes well within the bounds of a “mere encounter,”
which, as we held in Holmes, police remain free to have with
citizens without implicating Article I, section 9. 311 Or at
410. Asking for identification is exactly the kind of inter-
action that Holmes contemplated—a request for informa-
tion and a citizen’s cooperation. Id. Thus, we agree with the
United States Supreme Court, which has held for purposes
of the Fourth Amendment that an officer’s questions relat-
ing to identity or a request for identification do not result
in a seizure unless the circumstances of the encounter are
“so intimidating as to demonstrate that a reasonable per-
son would have believed he was not free to leave if he had
not responded.” INS v. Delgado, 466 US 210, 216-17, 104
S Ct 1758, 80 L Ed 2d 247 (1984).15 For purposes of Article I,
15
 The United States Supreme Court has adhered to that holding. See,
e.g., Hiibel v. Sixth Judicial Dist Court of Nev, 542 US 177, 185, 124 S Ct 2451,
159 L Ed 2d 292 (2004) (“In the ordinary course a police officer is free to ask
a person for identification without implicating the Fourth Amendment.”). Thus,
throughout the country, as a matter of governing federal law, there is no con-
stitutional barrier to an officer requesting identification in what is otherwise a
lawful officer-citizen encounter. The federal circuits have, however, split on the
narrower question of whether and when retention of identification results in a
seizure. One view is that it is a per se seizure whenever an officer retains identi-
fication longer than reasonably necessary to examine it. See, e.g., United States
v. Jordan, 958 F2d 1085, 1086 (DC Cir 1992) (seizure if officer retains identifica-
tion after reasonable opportunity to review it, because it is “difficult to imagine
that any reasonable person would feel free to leave without it” (quoting United
States v. Battista, 876 F2d 201, 205 (DC Cir 1989)). The competing view is that
retention of identification longer than reasonably necessary to review and verify
it is a factor to consider, but is not dispositive in analyzing whether a citizen has
been seized. See, e.g., United States v. Weaver, 282 F3d 302 (4th Cir 2002) (so
holding). In terms of state court interpretations of the parallel provisions of their
own state constitutions, we have found no state court that holds that an officer’s
request for identification, without more, results in a citizen’s seizure. Our review
of both state and federal cases suggests that no court has held or would hold, as
the concurrences would, that a seizure occurred under the circumstances pre-
sented in this case. See 354 Or at 418 (Walters, J., concurring in the judgment)
410 State v. Backstrand

section 9, our conclusion is the same: A mere request for
identification made by an officer in the course of an other-
wise lawful police-citizen encounter does not, in and of itself,
result in a seizure.
We have, however, decided cases in which we con-
cluded, from the totality of circumstances, that police con-
duct that included a request for identification was suffi-
ciently coercive to result in a seizure. The first of those cases
was State v. Warner, 284 Or 147, 585 P2d 681 (1978). There,
officers were investigating a reported armed robbery of a
bar by two men late at night. The officers entered a sec-
ond bar in a small town about 8 miles from the town where
the robbery had occurred after seeing two men pull up to it
and go inside. Without reasonable suspicion to believe that
they were the men who committed the robbery, one officer
stopped them as they began to leave. The officer told the
two men about the robbery, said that he needed to ask them
some questions, and asked them to return inside the bar;
once back inside, the officers asked the men to remove their
wallets from their pockets, take out their identifications,
and place that identification on the table in front of them.
The officer then informed the defendant that he could “be on
[his] way” as soon as the officer was able to “clear this mat-
ter up.” According to the officer, he did not order the defen-
dant to do anything, and the defendant was not obligated
to remain, although the defendant was not told that. Id. at
150-52. The court concluded that the officer’s actions in hav-
ing defendant place his identification on the table, coupled
with his statement that he was investigating a robbery and
that the defendant and his companion would be on their way
as soon as officers could clear up the matter, was, given “all
the circumstances,” a temporary restraint of the defendant’s
liberty. Id. at 165.

(concluding the officer’s conduct in asking for and verifying defendant’s identifi-
cation was a seizure); 354 Or at 432 (Brewer, J., concurring in the judgment of
the court) (same). Nor do the other authorities on which Justice Walters relies
support that result. See, e.g., Aidan Taft Grano, Casual or Coercive? Retention of
Identification in Police-Citizen Encounters, 113 Colum L Rev 1283, 1315-19 (2013)
(under Fourth Amendment, police remain free to request and verify identifica-
tion; better rule among the divided federal circuits, however, is that retention of
identification longer than reasonably necessary is a per se seizure).
Cite as 354 Or 392 (2013) 411

State v. Painter, 296 Or 422, 676 P2d 309 (1984), sim-
ilarly involved more than a mere request for identification.
In that case, a deputy asked the defendant to produce his
identification when he encountered the defendant in an alley
at 3:00 a.m. The defendant turned over an expired Virginia
driver’s license and credit cards. The deputy retained those
items while he frisked the defendant, called in a radio check
of the identification, waited for the results of the radio check,
and inquired further about the make and location of the
defendant’s car, which the defendant explained was broken
down nearby. Id. at 424. This court concluded that the dep-
uty had seized the defendant, given that the “defendant was,
in fact, unable to leave” and thereby was unable to termi-
nate the encounter and avoid the frisk at the point when
the deputy had “retained [the] defendant’s license and credit
cards.” Id. at 425.
A final illustrative case is State v. Hall, 339 Or 7,
115 P3d 908 (2005). In Hall, an officer parked his vehicle
next to the defendant as the defendant was walking along
a street. The officer motioned for the defendant to approach
the officer’s vehicle, and the officer then exited his vehi-
cle as the defendant neared. The officer asked to see the
defendant’s identification. When the defendant handed his
identification to the officer, the officer radioed dispatch and
requested a warrant check. While awaiting the results of
the warrant check, the officer returned the identification
and proceeded to question the defendant about whether he
was carrying any weapons, knives, or illegal drugs. The
defendant responded in the negative. In response, the officer
asked the defendant for consent to search his person, and
the defendant consented. The search revealed evidence of
unlawful drug possession. Id. at 10-11.
This court concluded that the encounter began as a
noncoercive engagement between the officer and the defen-
dant, but evolved into a seizure in the course of the officer’s
investigation. The court explained that the officer’s “initial
actions of stopping his vehicle next to [the] defendant and
then gesturing for [the] defendant to approach him did not
intrude upon [the] defendant’s liberty of movement[.]” Id. at
19. But the court concluded that the nature of the encounter
changed when the officer took the defendant’s identification
412 State v. Backstrand

and conducted a warrant check. The court acknowledged
that the officer promptly returned the defendant’s identifica-
tion, but maintained that, at that point, the defendant was
aware that he was the subject of a pending warrant check
and, because of that fact, it was “difficult to posit” that a
reasonable person would have felt free to leave. Id. The court
further observed that the officer
“did nothing to dispel what would have been an objectively
reasonable belief that defendant was restrained from leav-
ing until [the officer] had received the results of the war-
rant check. Instead, immediately upon returning [the]
defendant’s identification card, [the officer] questioned [the]
defendant about whether [the] defendant was carrying any
weapons, knives, or illegal drugs, and he asked [the] defen-
dant for consent to search [his] person.”
Id.
In combination, Warner, Painter, and Hall confirm,
at least implicitly, our holding today. Police remain free
to approach citizens and to ask for or impart information
and to seek their cooperation. Asking a citizen to identify
himself or herself and to show police a formal piece of iden-
tification is a form of cooperation and involves the kind of
information that, as a general proposition, police are free to
request. But when the content of the questions, the manner
of asking them, or other actions that police take (along with
the circumstances in which they take them) would convey
to a reasonable person that the police are exercising their
authority to coercively detain the citizen, then the encounter
rises to the level of a seizure, the lawfulness of which must
be analyzed as such.
The purely legal issue that remains is whether ver-
ification of identification is a further circumstance that ele-
vates a mere encounter to a seizure. We see no principled
basis for concluding that, when an officer checks the validity
of a proffered identity or piece of identification, such an action
per se conveys to a reasonable person—who is not otherwise
restrained and who has willingly tendered the information
to the officer—that the officer is now exercising his or her
authority to coercively restrain the person’s liberty or free-
dom of movement. To be sure, as we have already discussed,
Cite as 354 Or 392 (2013) 413

a person tendering identification to an officer may not subjec-
tively feel comfortable refusing the officer’s request. Instead,
for any number of personal reasons or instincts, the person
may be unwilling to decline the officer’s request. Those inter-
nalized motivations and feelings, however, are not the test
for whether there is a seizure under Article I, section 9.16
A person who turns over identification to a law enforcement
officer reasonably would expect that the officer will take
steps to verify its validity. For the officer to do so does not
objectively convey an exercise of the officer’s authority to
restrain the person’s liberty or freedom of movement. The
circumstance is akin to when a person gives valid consent to
search. Part and parcel with giving consent is a reasonable
person’s expectation that he or she will likely either need or
want to stand by while the officer performs the search. The
person who waits while a consent search is completed is not
thereby seized for purposes of Article I, section 9. So, too,
with a person who, in a noncoercive setting, gives an officer
his or her identification for the officer’s examination. The
fact that the officer conducts that examination is not, in and
of itself, a basis to conclude that the otherwise noncoercive
encounter has become a coercive restraint on the person’s
liberty.
D.  Analysis of the Circumstances of this Case
With those conclusions in place, we turn to the spe-
cific circumstances of this case to determine whether Gerba,
either by requesting defendant’s identification or by verifying

16
  Social science studies confirm what courts and others have long recognized—
that citizens often feel an internal inclination to cooperate with police officers.
354 Or at 420 (Walters, J. concurring in the judgment) (citing studies). They do
not demonstrate that citizens believe, reasonably or otherwise, that officers are
exercising their official authority to restrain them by a request for information or
cooperation and that officers are thereby in fact restraining them. Indeed, some
of the same social science suggests that affirmative advice that a person does not
need to respond or is free to leave is unlikely to counter the internal inclination
that many people feel to cooperate with an officer’s request. See, e.g., David K.
Kessler, Free to Leave? An Empirical Look at the Fourth Amendment’s Seizure
Standard, 99 J Crim L & Criminology 51, 84-85 (2009) (social science shows
that adding warning requirement would be of questionable value, because people
who know their rights feel same obligation to cooperate as those who do not). Yet
Justice Walters suggests that advice of that kind would preclude a conclusion
that the encounter was a seizure. We are, therefore, unsure of the point of Justice
Walters’s reliance on those studies.
414 State v. Backstrand

its validity, seized defendant for purposes of Article I, sec-
tion 9.17 As we will explain, we conclude that he did not.

As we previewed, defendant first argues that Gerba
seized him by asking defendant his age and asking to see his
identification. In making that argument, defendant focuses
on the context in which Gerba made the request. In partic-
ular, defendant points to the fact that defendant was in an
age-restricted store when Gerba approached him and made
those requests. In that setting, defendant reasons, a reason-
able person in defendant’s position would have believed that
Gerba was investigating him to determine if he should be
in the store, and he therefore was required to remain and
interact with Gerba.

We agree that the age-restricted nature of the store
provided significant context for determining whether any-
thing in the content of Gerba’s questions made what would
otherwise be a “mere encounter” an exercise of police coer-
cion. Asking a person his or her age in such a setting with
no accompanying exercise of authority to restrain, however,
would not cause a reasonable person to believe that the offi-
cer had significantly restricted his or her liberty.18 To the
contrary, at most, a person so questioned might reasonably
17
 When Gerba contacted dispatch to verify the validity of defendant’s
license, he did not ask dispatch to check anything else. That verification occurred
swiftly—Gerba returned the licenses within 10 to 15 seconds, defendant and his
girlfriend then continued their shopping, and Gerba left the store to continue his
security watch outside. Although Gerba did not ask dispatch to check anything
else, dispatch did so, and as Gerba was leaving the store dispatch called him to
tell him that defendant’s license was suspended (it was, in fact, revoked) and
that defendant was currently on probation. Because Gerba neither requested that
later-provided information nor did so in defendant’s presence, we do not have the
occasion in this case to decide whether and under what circumstances additional
checks (such as one for outstanding warrants) might convert the encounter into a
seizure.
18
 The trial court explicitly found that Gerba made the inquiries that he
did in an effort to determine whether defendant was under the minimum age
required to be in the store. The trial court also found that Gerba’s purpose was
protective—he wanted to make sure that defendant was not exposed to the
explicit materials on display in the store if, as Gerba suspected from defendant’s
physical appearance, defendant was too young to be in the store. Those findings
on the officer’s subjective intent and state of mind do not control the analysis.
They have some relevance, however, insofar as they reflect a state of mind con-
sistent with the officer’s objective actions, his behavior, and the overall context of
the encounter.
Cite as 354 Or 392 (2013) 415

expect to be told to leave if he or she either would not or could
not produce valid identification sufficient to verify that he or
she was not a minor. That consequence, however, would not
be coercive for purposes of Article I, section 9. As this court
observed in Ehly, where police advised the defendant that
he had to leave his motel room and asked him to return
the key, “it would be anomalous to conclude that a request
of this nature made by officers whose avowed intent was to
get a person to leave” was a seizure of the person. 317 Or at
78. Put simply, even a coercive ejection of a person who has
no lawful right to remain on premises (and here, such an
ejection was at most a prospect, not a present reality) is not
a restriction on the person’s liberty—no liberty to remain
exists in that circumstance.

Equally important, a reasonable person engaged
in an age-restricted activity would expect to be questioned
about his or her age, particularly if the person objectively
appears close to the minimum age or within an age range
where it is customary (as for purchasing alcohol) to request
proof of age. Proof-of-age requests and examinations are
customarily made in those settings, by private proprietors
of businesses (bartenders, clerks of stores where alcohol or
tobacco are sold) as well as by law enforcement personnel.
Asking a person’s age and requesting proof of it is not con-
duct “significantly beyond that accepted in ordinary social
intercourse” in that setting. Holmes, 311 Or at 410. A rea-
sonable person shopping in a store where minors are not
allowed would likely consider those questions appropriate
and expected, even if they caused “inconvenience or annoy-
ance”; a reasonable person would not reasonably view those
questions, however, as conveying a significant restraint on
the person’s liberty or freedom of movement. See id. at 411
(a reasonable motorist encountering a motor vehicle acci-
dent would “expect some delay or interruption in his or her
travel[; a]lthough possibly annoyed or inconvenienced * * *, a
reasonable motorist would appreciate being advised of what
was happening”).

Thus, consistently with the general rule that verbal
inquiries ordinarily are not seizures, there was nothing dis-
tinctive about the content of Gerba’s questions that caused
416 State v. Backstrand

his mere inquiries to amount to a seizure.19 Neither did the
manner of Gerba’s request to see defendant’s identification
amount to a seizure. Defendant points to nothing—and the
record reveals nothing—to suggest that Gerba was over-
bearing, intimidating, or coercive in his demeanor or behav-
ior. Gerba merely asked for, and defendant complied with,
his request for identification. Defendant was not seized as a
result of Gerba’s request.
Defendant nevertheless argues that, even if the
deputy’s questioning did not have the effect of seizing him,
he was seized once Gerba had obtained his identification.
Citing Painter, 296 Or at 425, defendant asserts that he was
seized when Gerba accepted his license because he “was, in
fact, unable to leave.” Painter does not stand for the prop-
osition that an officer seizes a person by simply accepting
and looking at a person’s identification after a noncoercive
request; rather, at a minimum, some exercise of coercive
authority by the officer, such as retention of the identifica-
tion after examination and a continuation of investigatory
activities, is required. See id. (seizure when officer retained
defendant’s identification and credit cards before frisking
him, running radio check, and questioning him because the
“[d]efendant was, in fact, unable to leave”). No similar exer-
cise of coercive authority occurred in this case. Gerba did
not “retain” defendant’s license beyond a reasonable period
for purposes of examining and verifying it, which was dis-
positive in Painter. Rather, Gerba held defendant’s license
for 10-15 seconds before returning it. We are hard-pressed
to see how holding a person’s license for no more than 15 sec-
onds, pursuant to the person’s voluntary production of that
license, could result in a significant restriction of a person’s
liberty on that basis alone. For those reasons, we conclude
that defendant was not seized when Gerba accepted and
inspected defendant’s identification.
19
  Justice Walters, in her concurrence, misunderstands the point of our pre-
ceding discussion. The point is not that the test for a seizure depends on whether
the officer’s “show of authority was expected, appropriate, or reasonable.” 354 Or
at 424 (Walters, J., concurring in the judgment). Nor is the point that the analysis
turns on the reasonableness of the restraint, instead of the fact of restraint. Id.
at 422. The point is to respond to defendant’s argument. Thus, contrary to defen-
dant’s argument, the circumstances in which the officer made the request for
defendant’s identification did not convert that verbal request, which ordinarily is
not a seizure, into an action that conveyed, as it must under the legal test that we
adhere to, a significant restraint on the person’s liberty or freedom of movement.
Cite as 354 Or 392 (2013) 417

Alternatively, defendant argues that the nature
of the encounter shifted when Gerba called the identify-
ing information in to dispatch to check the validity of the
license. As we have already concluded, an officer’s verifica-
tion of the validity of a proffered piece of identification is not
conduct that per se would convey to a reasonable person that
the person is being forcibly or authoritatively detained. That
is especially true when, as here, the person has not previ-
ously been subject to any coercive or authoritative restraint.
Here, Gerba simply took an action (a verification call to dis-
patch) that a reasonable person in defendant’s place in such
a circumstance would likely expect to accompany an officer’s
request to see identification. Within a matter of seconds, the
verification was sufficiently complete for Gerba to return
the licenses, wish defendant and his girlfriend a nice day,
and leave them to go about their shopping. Gerba’s action
in calling dispatch to verify the license was not a coercive
restriction on defendant’s liberty. And certainly, it was not
significantly so. For the 10 to 15 seconds it took for Gerba
to make that call, defendant did not go from being a citizen
with full liberty and freedom of movement to one who was
seized for purposes of Article I, section 9.
III. CONCLUSION
In summary, we reaffirm that police requests for
information or cooperation do not implicate Article I, section 9,
as long as the officer does no more than seek the individual’s
cooperation through noncoercive questioning and conduct.
A request for identification, in and of itself, is not a seizure.
Nor is an officer’s act of checking the validity of that identifi-
cation, in and of itself, a seizure. For a request and verifica-
tion of identification to amount to a seizure, something more
is required on an officer’s part. Either through the context,
the content or manner of questioning, or the other circum-
stances of the encounter, the officer must convey to a reason-
able person that the officer is exercising his or her authority
to significantly restrain the citizen’s liberty or freedom of
movement.
Here, defendant was not seized either by Gerba’s
request to see defendant’s identification or by Gerba’s call to
dispatch to check the validity of that identification. No other
418 State v. Backstrand

circumstances, in combination with Gerba’s requests and
verification, would have led a reasonable person in defen-
dant’s position to conclude that the officer was restraining
him. The trial court therefore correctly denied defendant’s
motion to suppress.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
WALTERS, J., concurring in the judgment.
The majority holds that Article I, section 9, does not
apply to the encounter in this case, in which a police officer
approached defendant, asked for and obtained his identifica-
tion, and investigated its validity. State v. Backstrand, 354
Or 392, 417-18, ___ P3d ___ (2013). I agree that the Oregon
Constitution permits such an encounter when it is constitu-
tionally justified, as it was in this case. Thus, I agree with
the result that the majority reaches and concur in the judg-
ment. I do not agree, however, that the Oregon Constitution
does not apply to such an encounter and therefore permits it
even when it is not supported by constitutionally sufficient
justification. I write to explain my reasoning.
In my view, Article I, section 9, applies to the encoun-
ter in this case because the officer’s communication and con-
duct would cause a reasonable person in defendant’s position
to believe that he was the subject of a criminal investiga-
tion and therefore that he must stop, respond, and remain
until the immediate investigation was complete.1 Thus, the
encounter constituted a “seizure” under Article I, section 9.
My analysis does not end there, however. In my view,
Article I, section 9 also permits such seizures when officers
have constitutionally sufficient reasons for imposing such
restraint. When, for instance, an officer has probable cause
to believe that an individual has committed a noncriminal
traffic infraction, the officer is permitted to stop the indi-
vidual and investigate whether he or she in fact committed
the infraction. Such investigation may include reasonably
1
 I understand that the trial court found that the officer was not investi-
gating defendant for any wrongdoing, but was investigating whether a business
owner was committing a crime by permitting defendant to enter or remain in the
business and whether defendant was a potential victim of that crime. However,
the officer did not explain the nature of his investigation to defendant.
Cite as 354 Or 392 (2013) 419

related actions, such as asking for and checking identifica-
tion. State v. Watson, 353 Or 768, 781-82, 305 P3d 94 (2013).
When an officer has a reasonable belief that an individual
is a witness to and a victim of recent or ongoing criminal
activity, the officer may temporarily detain the individual
and, if the officer has an objectively reasonable basis to do
so, may ask for and confirm the individual’s identification.
State v. Fair, 353 Or 588, 614-15, 302 P3d 417 (2013). And,
as Justice Brewer opines in his concurrence, an additional
justification for a request for identification may be an offi-
cer’s action taken to fulfill the officer’s caretaking function.
Backstrand, 354 Or at 436 (Brewer, J., concurring).
In this case, I would hold that the police officer’s
conduct was constitutionally justified. Article I, section 9,
permitted the officer to detain defendant for a brief period
under Fair, or, perhaps, pursuant to his community caretak-
ing responsibilities, and, therefore, the officer did not violate
the Oregon Constitution.
The majority’s reasoning is different. The majority
concludes that the encounter in this case was not a seizure.
Consequently, the majority permits officers to initiate simi-
lar encounters without constitutional justification. Article I,
section 9, has not before, and should not now, give officers
that latitude.
In State v. Hall, 339 Or 7, 115 P3d 908 (2005), this
court described the initial encounter between a police offi-
cer and the defendant as nonintrusive, but determined that
when the officer asked for, obtained, and quickly returned
the defendant’s identification, and then radioed for a “war-
rant check,” the nature of the encounter changed. Id. at 19.
The court found it “difficult to posit” that a defendant who
was cognizant that the officer was investigating whether
he was the subject of any outstanding warrants would feel
free to leave. Id. The court concluded that the officer’s inqui-
ries and actions changed the situation from a noncoercive
encounter to a “seizure” under Article I, section 9. Id.
In the present case, police officers similarly asked
defendant for his identification, retained it briefly, and inves-
tigated its validity. Defendant similarly and reasonably
would have believed that he was the subject of a criminal
420 State v. Backstrand

investigation and therefore must remain until the immedi-
ate investigation was complete. It is a crime for a minor to
misrepresent his or her age to secure a benefit which by law
is denied to minors, ORS 165.805. Likewise, it is a crime for
an individual of any age to act in a manner that prevents
or attempts to prevent an officer from performing his or her
lawful duties, ORS 162.247(1)(a), or to give false information
to a police officer when a person is being cited for a crime,
ORS 162.385, or to an officer who is enforcing motor vehicle
laws, ORS 807.620. Although defendant did not commit any
of those crimes, he reasonably would have believed that the
officer’s investigation of the validity of his identification was
a part of an investigation of one or more of those crimes,
and, as in Hall, that he was not free to leave. See Aidan
Taft Grano, Casual or Coercive?: Retention of Identification
in Police-Citizen Encounters, 113 Colum L Rev 1283, 1309
(2013) (“When police retain an individual’s identification,
the act could be conceived either as a physical restraint (sei-
zure of identification) or as a show of authority (seizure by
identification).”) (emphasis in original); Josephine Ross, Can
Social Science Defeat A Legal Fiction? Challenging Unlawful
Stops Under the Fourth Amendment, 18 Wash & Lee J Civil
Rts & Soc Just 315, 336 (2012) (citing to study indicating
that a “majority of respondents would not feel free to leave a
police officer who questioned them”); David K. Kessler, Free
To Leave? An Empirical Look at the Fourth Amendment’s
Seizure Standard, 99 J. Crim L & Criminology 51, 53-54
(2009) (presenting empirical evidence that people do not feel
free to leave when being interrogated by officers); Janice
Nadler, No Need to Shout: Bus Sweeps and the Psychology of
Coercion, 2002 Sup Ct Rev 153, 155 (2002) (“In many situ-
ations where citizens find themselves in an encounter with
the police *  * a reasonable person would not feel free to
* 
terminate the encounter.”).2
The majority disagrees. The majority characterizes
the officer’s inquiries and actions as “no more than seek[ing]

2
  I do not cite this research to demonstrate that many people feel an inter-
nalized inclination to cooperate with police officers, but to demonstrate that, in
a circumstance in which an officer asks for, obtains, and investigates a person’s
identification, reasonable people would conclude that the officer had restrained
their liberty.
Cite as 354 Or 392 (2013) 421

the individual’s cooperation through noncoercive question-
ing and conduct.” 354 Or at 417. The majority then con-
cludes that “something more” is required to make the offi-
cer’s investigation a seizure. Id. at 417. The majority does
not overrule, clarify, or distinguish Hall, nor does it now
“posit” that an individual who reasonably would believe that
he or she was subject to a criminal investigation would feel
free to leave. Id. at 412. Rather, the majority reasons that a
reasonable person in defendant’s position would “expect” to
be questioned about his or her age, to produce proof of age,
and to have its validity investigated, id. at 415, and would
deem such investigation “appropriate,” id. at 415 (emphases
added). Further, the majority concludes, the officer’s reten-
tion of defendant’s identification did not extend “beyond a
reasonable period,” id. at 416 (emphasis added), did not con-
stitute a “significant” restraint on defendant’s liberty, and
therefore was not a seizure. Id. at 417 (emphasis in original).
The change in analysis from Hall to Backstrand is
striking. Not only does it break faith with Hall, it does not
meet the challenge that Justice Harlan set and that this
court quoted in State v. Campbell, 306 Or 157, 165, 759 P2d
1040, 1044-1045 (1988) (quoting United States v. White, 401
US 745, 786, 91 S Ct 1122, 1143, 28 L Ed 2d 453 (1971)
(Harlan, J., dissenting)):
“[I]t is the task of the law to form and project, as well as
mirror and reflect, [and] we should not, as judges, merely
recite the expectations and risks without examining the
desirability of saddling them upon society.”

Article I, section 9, prohibits unreasonable seizure.
The first step in an analysis under that provision, therefore,
is whether a police officer has restrained an individual’s lib-
erty and thereby effected a seizure. See State v. Ashbaugh,
349 Or 297, 308-09, 244 P3d 360 (2010) (so holding); State v.
Holmes, 311 Or 400, 407, 813 P2d 28 (1991) (seizure occurs
when an officer “temporarily restrains a person’s liberty”).
The second step is whether that seizure is constitutionally
justified or otherwise reasonable. Ashbaugh, 349 Or at 309.
The majority, in terms today’s Oregonians would under-
stand, puts the trailer before the bike: The majority mea-
sures whether there has been a seizure by factors that more
422 State v. Backstrand

appropriately address the second step in the analysis—
whether the officer who effects the seizure has acted “rea-
sonably.” See Watson, 353 Or at 783-84 (reasonableness of
duration of records and warrants check considered in decid-
ing whether seizure was reasonable, not in deciding whether
seizure occurred).
In Fair, also decided this year, the court explained
that a seizure occurs when an officer engages in a “show
of authority that would cause a reasonable person in [the]
defendant’s circumstance to believe that [his or] her liberty
had been significantly restricted.” 353 Or at 615 (emphases
added.) The majority now states that, to constitute a seizure,
the officer’s show of authority must cause a “reasonable per-
son to believe that the officer intentionally and significantly
has restricted, interfered with, or otherwise deprived the cit-
izen of the citizen’s liberty or freedom of movement.” 354 Or
at 403 n 11 (emphases added). In this case, I would expect
the court to begin, under either formulation, by considering
whether the officer’s show of authority would cause a reason-
able person in defendant’s position to believe that the officer
had restricted his freedom of movement, and then to decide
whether the restraint, if any, was justified and otherwise
reasonable. The majority does not do so. Instead, it points
to the factors that may be relevant at the second step of the
analysis—whether the seizure was reasonable—to decide
that no seizure occurred.
As noted, the majority explains that no seizure
occurred because a young person present in an age-
restricted shop reasonably “expect[s]” questions about his or
her age and finds them “appropriate,” id. at 415, and rea-
sonably “expect[s]” that if he or she produces identification,
a police officer will examine it and take steps to verify its
validity, id. at 417 (emphases added). The majority concludes
that the officer’s retention of defendant’s identification was
of “reasonable” duration and did not constitute a “signifi-
cant” restraint on defendant’s liberty. Id. at 416 (emphasis
added). The majority thereby determines whether a seizure
occurred, not by analyzing whether a reasonable person
would believe that an officer had restricted his or her lib-
erty, but by determining whether a person subject to such
restraint would believe the officer to have acted reasonably.
Cite as 354 Or 392 (2013) 423

To illustrate the significance of the shift in focus
from restraint to reasonableness, I pose the following hypo-
thetical circumstance—a circumstance in which a police
officer informs an individual that the officer is conducting a
criminal investigation and, as a part of that investigation,
explicitly directs the individual to remain and produce iden-
tification. In that circumstance, I venture that the majority
would hold that the officer had seized the individual because
the officer’s show of authority would cause a reasonable
person to believe that the officer had restricted his or her
freedom of movement. See id. at 410-12 (discussing cases in
which the court held police action “sufficiently coercive to
result in a seizure”). I also venture that the majority would
consider that explicit communication to be a seizure without
regard to whether the individual expected it or considered it
appropriate, and even if the officer’s retention of the identifi-
cation was not of unreasonable duration.
In the circumstance in which a police officer does
not explicitly order an individual to halt and produce iden-
tification, but approaches the individual and requests,
obtains, and investigates the individual’s identification, the
question should be whether the officer nevertheless commu-
nicates that the individual is not free to leave. See Nadler,
2002 Sup Ct Rev at 188 (“For example, citizens generally
do not interpret ‘Can I please see your license and registra-
tion?’ as spoken by a police officer as a genuine request; it is
a command, and everyone understands this.”).
In urging that analysis, I do not challenge the
majority’s statement of an objective test—whether the officer
conveys a message that would cause a reasonable person to
believe that the officer had restricted the person’s freedom of
movement. I also do not mean to imply that a seizure occurs
whenever “an individual—for reasons personal to that
individual—feels obliged to cooperate with the officer simply
because of the officer’s status.” 354 Or at 402. I agree that
the focus must be on the message that the officer conveys,
and that when an officer conveys only his or her status, the
officer does not effect a seizure, even though an individual
may feel it would be polite to remain. The point that I want
to make is that, when a court looks at the message that an
officer conveys, the court should look at whether the officer
424 State v. Backstrand

conveys a message of restraint, not at whether the officer’s
message was expected, appropriate, or reasonable.
I am not sure why the majority focuses its inquiry
on reasonableness rather than restraint.3 I do know that in
its discussion of the reasons that a seizure did not occur in
this case, the majority introduces the notion that, when an
officer “requests” an individual’s identification and checks
its veracity, the individual “consents” to the officer’s conduct
in a way that is “akin to when a person gives valid consent
to search.” Id. at 413.
In the search context, consent makes a search con-
stitutionally permissible by demonstrating that the search,
even though warrantless, is reasonable. State v. Paulson,
313 Or 346, 351, 833 P2d 1278, 1281 (1992). Consent does
not make a search into noncoercive action to which Article I,
section 9, does not apply. If the majority were to use consent
in the seizure context in the same way that it considers it in
the search context, it could be relevant to the reasonableness
of the seizure, but would not make a coercive stop into “mere”
conversation.4 Perhaps for that reason, this court has not
previously used consent as a factor in determining whether
a seizure has occurred, and the majority errs in offering
an individual’s “expectation” that an officer will check the
3
  It could be that what I perceive as a shift in focus is not so much a shift
from Hall, but a return to Holmes and its discussion of what is “accepted” in social
intercourse. Holmes, 311 Or at 410. If so, then my criticism in this case is a criti-
cism of Holmes as well. What is accepted among peers does not tell a court what
is communicated by a police officer. Although this case may not present this court
with an opportunity to overrule or reconsider Holmes, that does not mean that
we should extend its analysis. In Hall, which this court decided after Holmes,
this court correctly focused on the message that an officer conveys by his or her
exercise of authority. We should adhere to that reasoning.
4
 The majority also states that “[t]he person who waits while a consent
search is completed is not thereby seized for purposes of Article I, section 9.” 354
Or at 413. However, I do not understand the majority to take the position that
defendant in this case consented to a search. If the officer had asked defendant
for consent to search, and if a reasonable person in defendant’s situation would
understand that he or she was being searched, that would be another reason that
a reasonable person would conclude that he or she was the subject of a criminal
investigation and was not permitted to leave. Moreover, if the majority’s proposi-
tion were determinative, then, contrary to the court’s decision in State v. Painter,
296 Or 422, 425-26, 676 P2d 309, 312 (1984), a defendant who proffered identi-
fication in response to an officer’s request would not be seized, even though the
officer retained the identification for the entire time necessary to complete the
investigation.
Cite as 354 Or 392 (2013) 425

veracity of proferred identification as a consideration here.
This court should adhere to the principle that “the privacy
protected by Article I, section 9, is not the privacy that one
reasonably expects but the privacy to which one has a right.”
Campbell, 306 Or at 164 (emphases in original).
The majority also errs in three other ways. First,
the majority errs in concluding that, in the circumstances
presented here, asking a person’s age and requiring proof
of age is not “significantly beyond that accepted in ordinary
social intercourse.” 354 Or at 415 (quoting Holmes, 311 Or
at 410). Although bartenders or clerks may ask for proof of
age when a young-looking person enters a bar or makes a
purchase, it is the patron who initiates the encounter and
seeks the benefit. In ordinary social intercourse, a stranger
does not approach another and ask for proof of identification.
Many reasonable people expect others to leave them alone
unless they seek or need assistance, and Article I, section 9,
protects that right to personal privacy.
Second, the majority fails to consider the ways in
which its decision may encourage both the public and the
police to act in ways that are contrary to societal interests.
It is in the best interest of society that the public cooper-
ate with police investigations and stop, respond, and remain
until such an investigation is complete. By holding that an
individual who reasonably believes that he or she is being
subjected to such investigation is, instead, free to leave, the
majority encourages public conduct that is contrary to that
interest. It also is in the best interest of society that the pub-
lic respect the police. By holding that officers are permitted
to approach members of the public and ask for, obtain, and
investigate their identification without constitutionally suf-
ficient justification for that conduct, the majority encourages
officers to act in ways that could diminish the esteem in
which they are and should be held.
Third, the majority fails to state a standard for
determining whether a seizure has occurred that all can
understand and follow. In Hall, the police officer requested
that the defendant produce identification, and then con-
ducted a warrants check. The court nonetheless held that
the officer had seized the defendant. 339 Or at 19. In this
426 State v. Backstrand

case, the officer made the same request and conducted a
similar investigation, but the majority holds that the offi-
cer did not seize defendant. 354 Or at 413-14. The majority
holds that the officer merely sought defendant’s cooperation.
It is not easy to discern why the officer in Hall did “more.” Id.
at 417. I urge a brighter line and a rule that, when an officer
approaches a member of the public and requests, obtains,
and investigates that individual’s identification in circum-
stances in which the individual reasonably would believe
that he or she is the subject of a criminal investigation, the
officer seizes the individual unless the officer clearly explains
that the individual is free to leave and need not respond
or remain.5 Under that rule, phrasing and after-the-fact-
matching would not determine constitutional rights. And,
just as importantly, an officer with a constitutional basis for
taking those actions, like the officer in this case, would be
free to detain the individual for as long as reasonably neces-
sary to complete the immediate investigation.
Because I believe that, in the circumstances pre-
sented in this case, Article I, section 9, required that the
police officer have a constitutionally sufficient justification to
approach defendant and ask for, obtain, and investigate the
validity of his identification, I cannot join in the majority’s
reasoning. However, because I believe that the officer in this
case was constitutionally justified in temporarily seizing
defendant, I respectfully concur in the judgment.
Baldwin, J., joins in this concurring opinion.
BREWER, J., concurring in the judgment of the
court.
When, albeit politely, a uniformed police officer
approaches a person on the street and requests the per-
son’s identification, it is a fiction to suggest that most people
would believe that they have a right to refuse the request or
that, if they did, it would be prudent or safe to do so. When
they comply with such requests, as most law abiding persons
5
  I understand that an individual could still feel, as a result of his or her own
internal belief system, that he or she should remain. However, whether a seizure
occurs depends on the message that an officer conveys to a reasonable person,
and, when an officer explicitly informs an individual that he or she is free to go,
contrary feelings are not reasonable in the constitutional sense.
Cite as 354 Or 392 (2013) 427

likely would do, it is generally fair to characterize such com-
pliance as acquiescent, not consensual, voluntary, or, for
that matter, the product of mere conversation. My concern
is that, although this case involves very different facts, the
majority’s treatment of it may compel the conclusion that,
as long as they do so in a civil manner, police are free, in
the absence of any articulable justification, to ask anyone
in a public place for their identification without effecting
an unreasonable seizure of their persons or effects under
Article I, section 9, of the Oregon Constitution. In my view,
that would be unfortunate and, likely, unnecessary, in light
of the circumstances of this case.
Article I, section 9, provides, in part:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure[.]”
Unlike the protections of the Fourth Amendment to the
United States Constitution, the protections afforded by
Article I, section 9, including the right to exclude unlawfully
obtained evidence, are not aimed at deterring police mis-
conduct; instead, they safeguard liberty rights that inhere
in the people. State v. Thompkin, 341 Or 368, 379, 143 P3d
530 (2006). As pertinent here, the government is prohibited
from violating those rights by means of unreasonable sei-
zures. A seizure of a person is a significant interference with
the person’s liberty of movement. State v. Holmes, 311 Or
400, 409, 813 P2d 28 (1991).1
The first question here—which is where the major-
ity begins and ends its analysis—is whether defendant
was seized when the police officer requested or later held,
for a brief period, his identification. This court has strug-
gled earnestly to give meaningful content to the inquiry

1
 I am aware that this definition of seizure omits parts of the longer and
more convoluted definition set out in Holmes, and as later modified in State v.
Ashbaugh, 349 Or 297, 313, 244 P3d 360 (2010). In particular, I have left out any
reference to the mental state animating the officer’s conduct, and I have not men-
tioned the possibility that a seizure could occur, regardless of whether the officer
actually had significantly interfered with a person’s liberty of movement, where a
reasonable person would believe that such interference had occurred. Baked, but
not frosted, significant interference with a person’s freedom of movement is the
essence of a seizure.
428 State v. Backstrand

into whether police-citizen encounters involve a significant
interference with a person’s liberty of movement. This court
held in Holmes:
“[L]aw enforcement officers remain free to approach per-
sons on the street or in public places, seek their cooperation
or assistance, request or impart information, or question
them without being called upon to articulate a certain
level of suspicion in justification if a particular encounter
proves fruitful. A street or public place encounter does not
amount to an Article I, section 9[,] ‘seizure’ merely because
the encounter may involve inconvenience or annoyance for
the citizen and the other party to the encounter is known
to be a law enforcement officer. Even physical contact does
not transform the encounter into a ‘seizure’ if it is a nor-
mal means of attracting a person’s attention (e.g., police-
man tapping citizen on the shoulder at the outset to get
a citizen’s attention). See LaFave, 3 Search and Seizure,
A Treatise on the Fourth Amendment 413, § 9.2(h) (2d ed
1987). Rather, the encounter is a ‘seizure’ of a person only
if the officer engages in conduct significantly beyond that
accepted in ordinary social intercourse. The pivotal factor
is whether the officer, even if making inquiries a private
citizen would not, has otherwise conducted himself in a
manner that would be perceived as a nonoffensive contact
if it had occurred between two ordinary citizens.”
311 Or at 410. Cf. Wayne R. LaFave, 4 Search and Seizure
§ 9.4(a), 581-82 (5th ed 2012) (observing that “the confron-
tation is a seizure only if the officer adds to those inherent
pressures by engaging in conduct significantly beyond that
accepted in social intercourse[,]” which include moral and
instinctive pressures to cooperate).
For some time, courts in Oregon and elsewhere
wrestled with a formulation of the Holmes test that asked
whether a reasonable person, in the position of the subject
citizen, would feel free to terminate or leave the encounter.
State v. Ashbaugh, 349 Or 297, 313, 244 P3d 360 (2010). That
formulation, which was borrowed from Fourth Amendment
case law, was especially problematic and ultimately unhelp-
ful because, for among other reasons, any viable test for the
existence of a seizure cannot depend solely on how a typical
reasonable person would react to contact with an inquiring
police officer. As one commentator has explained:
Cite as 354 Or 392 (2013) 429

“[I]f [the free to walk away language] is taken to mean that
a pedestrian whose movements have been interrupted and
who is questioned is likely to feel free to depart without
responding, it is a highly questionable conclusion. As noted
in Illinois Migrant Council v. Pilliod[, 398 F Supp 882 (ND
Ill 1975)]: ‘Implicit in the introduction of the [officer] and
the initial questioning is a show of authority to which the
average person encountered will feel obliged to stop and
respond. Few will feel that they can walk away or refuse to
answer.’ This, it is submitted, is an accurate characteriza-
tion of the great majority of situations in which an officer
approaches a pedestrian and seeks an explanation for his
activities or even identification. Thus, if the ultimate issue
is perceived as being whether the suspect ‘would feel free
to walk away,’ then virtually all police-citizen encounters
must in fact be deemed to involve a Fourth Amendment
seizure. The [standard] should not be given such a literal
reading as to produce such a result.”
LaFave, 4 Search and Seizure § 9.4(a) at 579-80.
In an effort to clarify the limits of police inquiries that
do not amount to a seizure, this court has recently explained:
“[A] law enforcement officer constitutionally may halt and
briefly detain a person passing through a public area as a
means to engage the citizen long enough to impart infor-
mation or seek the citizen’s cooperation or assistance. As
Holmes emphasized, police are free to ‘approach persons
on the street or in public places, question them, and even
accompany them to another location without the encounter
necessarily constituting a ‘seizure’ of a person[.]’ 311 Or at
409. As [State v. Gerrish, 311 Or 506, 815 P2d 1244 (1991),]
emphasized, especially in the case of a motorist, halting
and briefly detaining a citizen, even when done pursuant
to an officer’s show of authority, is often a nonintrusive and
socially inoffensive way to seek a citizen’s cooperation or
impart information. 311 Or at 513. The important distinc-
tion in both cases was the public nature of the encounter and
the practical reality that authoritatively halting the pass-
ing motorists is often the only practical means for police to
have an exchange with them. No seizure occurs because the
police conduct is not a socially intrusive exercise of police
authority in those particular settings and circumstances.”
State v. Fair, 353 Or 588, 598, 302 P3d 417 (2013) (footnote
omitted).
430 State v. Backstrand

The majority rightly points out that most people
accept the need to give identifying information in public set-
tings, including in commercial transactions and in entering
public buildings. But that isn’t this case. Here, defendant
was in a public place—a store. Although the proprietor had
a right, indeed a duty, to ascertain his age if there was a
legitimate question about his presence in age-restricted
premises, if another person in the store had asked to take
and examine his identification, the intrusion would palpably
exceed the bounds of socially acceptable behavior. For me, it
is insufficient to say that police have authority to seek infor-
mation and cooperation from citizens in public places. They
do, depending on the circumstances. But, because requests
for cooperation can take many forms and cover a full spec-
trum of intrusiveness, the devil is often in the details. People
don’t ask each other for identification in ordinary public
encounters, no matter how politely the request is phrased.
Put more bluntly, we don’t live in a society where it is accept-
able for someone to approach another person in a public
place and ask for—let alone take, examine, and verify—
“their papers.” For that reason, it is far from clear that the
police are entitled to take such actions either, unless, of
course, the circumstances make them reasonable.
I would be remiss in failing to acknowledge that
this court in Holmes and in later decisions, including Fair,
appears to have rejected concerns similar to the ones that
I have just expressed. In Ashbaugh¸ for example, the court
stated that, even though the officer “asked defendant a
question that one private citizen ordinarily would not ask
another,” there was nothing about the officer’s words that
would be perceived as a show of authority that restricted
her freedom of movement. 349 Or at 317. Accordingly, the
court concluded that a reasonable person in the defendant’s
position would not believe that the officer had significantly
restricted her liberty of movement. Id. at 316. The same
point has been made in different words by Professor LaFave:
“The critical factor is whether the [police officer], even if
making inquiries a private citizen would not, ha[ve] other-
wise conducted [themselves] in a manner which would be
perceived as a nonoffensive contact if it occurred between
two ordinary citizens.”
LaFave, 4 Search and Seizure § 9.4(a) at 582-83.
Cite as 354 Or 392 (2013) 431

Frankly, I am hard pressed to make sense of such
statements, because they shed little light on whether a per-
son’s liberty of movement has been significantly restricted by
an investigatory request during a police encounter. Although
courts and commentators have described citizen deference
to such requests as voluntary or consensual, I submit that
those descriptions merely indulge an unhelpful fiction. Even
though the majority appears to take a critical view of such
assumptions, the standard that this court has adopted for
determining whether a seizure has occurred under Article I,
section 9, that is, whether “a reasonable person [would]
believe that a law enforcement officer intentionally and sig-
nificantly restricted, interfered with, or otherwise deprived
the individual of his or her liberty or freedom of move-
ment,” 354 Or at 399, necessarily hinges on assumptions—
to paraphrase the majority—about “how police and citizens
do or should interact” during such encounters. 354 Or at
401 n 9. Without further elaboration, that standard is, with
respect, logically unsatisfying. Its underlying premise that
police can ask for cooperation that a private citizen would
not, as long as the police conduct otherwise would not be
perceived as offensive if it occurred between two ordinary
citizens, Ashbaugh¸ 349 Or at 317, simply meets itself going
and coming. There should be a more principled and prag-
matic way to resolve these issues, and I think that there is.
That approach should entail narrowing to a more
straightforward and realistic scope what we mean by “mere
conversation” between citizens and police officers and then
assessing the constitutionality of seizures that exceed that
threshold under the reasonableness standard that the text
of Article I, section 9, imposes. Under such an approach,
police are authorized to use ordinary means of communi-
cation to divert or restrict others in their activities or paths
of travel in public places to the same extent that anyone
else would, even if it involves a request for help in doing
their jobs. But a request for identification transcends that
type of ordinary interaction. Where, as here, a police officer
makes such a request in an investigatory capacity, a citizen
likely will believe that he or she cannot safely or prudently
refuse and, thus, merely yield to an intrusion that otherwise
would not be acceptable in ordinary social intercourse. And,
432 State v. Backstrand

frankly, that is what should be expected so as to encourage
peaceable encounters between citizens and the police.

It follows that police conduct that would suggest to
a reasonable person that the person is the focus of a police
investigation, and that the person is obligated to cooperate
until the investigation is completed, should be understood
for what it is: a constitutionally significant interference with
the person’s freedom of movement. See, e.g., State v. Hall,
339 Or 7, 19, 115 P3d 908 (2005) (police seized the defen-
dant when they took his identification for warrant check,
because reasonable person would believe that his or her
freedom of movement had been restricted when person is
subject of pending warrant check); Thompkin, 341 Or at 378
(same). In my view, that is what happened here. The officer
approached defendant and his companion in an adult book-
store with a posted 18-year minimum age and asked their
ages. Apparently not satisfied with defendant’s answer, the
officer then asked to examine their identifications. After
doing so, the officer called dispatch to verify the validity of
the licenses. In combination, those actions would communi-
cate to a reasonable person in defendant’s position that he or
she was the subject of a police investigation and must coop-
erate until the investigation was completed. Accordingly, I
would conclude that the officer seized defendant by request-
ing, taking, and running through dispatch defendant’s iden-
tification.

The question remains whether the seizure was “unrea-
sonable” for purposes of Article I, section 9. “Unreasonable”
means “not governed by or acting according to reason *  * * 
exceeding the bounds of reason.” Webster’s Third New Int’l
Dictionary 2507 (unabridged ed 2002). “Reason,” in turn, is
defined as “[a] statement offered as * * * a justification of an
act,” “a rational ground or motive,” or “a sufficient ground
of explanation or of logical defense.” Id. at 1891. Thus, a par-
ticular action such as the seizure of a person is “unreason-
able” when there is no rational justification for it. I am aware
of no relevant context or historical evolution in the mean-
ing of the word “unreasonable” or its roots that suggests
that the framers of the Oregon Constitution would have
Cite as 354 Or 392 (2013) 433

understood its meaning differently in adopting Article I,
section 9.2 By prohibiting “unreasonable” seizures, Article I,
section 9, embodies a standard that is naturally adaptable
to the temporal milieu in which it must be applied. The
challenge today, as always, is the pliability of the term as it
applies to particular circumstances and the discernment of
like patterns of circumstances.
At first blush, it might seem odd—indeed, unnec-
essary—to reach that issue in this case. After all, if, hav-
ing unmasked the fiction that the interaction in this case
involved mere conversation, the court were to conclude that
a seizure occurred, then there is little room for the state to
maneuver under the three-category model of police-citizen
encounters that the court recognized in Holmes. As the
court recently reiterated:
“Analytically, police-citizen encounters typically fall into
one of three categories that correlate the degree of intru-
siveness on a citizen’s liberty with the degree of justification
required for the intrusion * * * At one end of the continuum
are mere encounters for which no justification is required.
At the other end are arrests, which involve protracted cus-
todial restraint and require probable cause. In between
are temporary detentions for investigatory purposes, often
termed ‘stops, which generally require reasonable suspi-
cion. Both stops and arrests are seizures for constitutional
purposes, while less restrictive encounters are not.”

Fair, 353 Or at 593 (citing Holmes, 311 Or at 408-09) (inter-
nal citations omitted). Because the state does not assert
that the officer had reasonable suspicion—let alone proba-
ble cause—to believe that defendant was engaging in crim-
inal conduct, the circumstances here do not fit into any of

2
  From the unpaginated 1828 Webster’s Dictionary of American English:
“Unreasonable: 1. Not agreeable to reason. 2. Exceeding the bounds of
reason; claiming or insisting on more than is fit; as an unreasonable demand.
3. Immoderate; exorbitant; as an unreasonable love of life or money. 4. Irrational.”
As pertinent here, the same source defined “reason” as:
“The cause, ground, principle or motive of any thing said or done; that
which supports or justifies a determination, plan or measure *  *. A faculty
* 
of the mind by which it distinguishes truth from falsehood, and good from
evil, and which enables the possessor to deduce inferences from facts or from
propositions.”
434 State v. Backstrand

the three “typical” categories of permissible encounters.
However, the court in Holmes elaborated that “[t]he three
categories are guidelines only. They are neither exhaustive
nor conclusive as to what police action is a ‘seizure’ of a per-
son.” 311 Or at 407-08. The circumstances of this case invite
consideration of the issue whether another kind of seizure
occurred that was reasonable.

Defendant and his companion were in an adult
bookstore when the officer encountered them. The owner,
operator, or manager of such an establishment has a statu-
tory duty under the criminal code not to knowingly or reck-
lessly permit an unaccompanied minor to enter and remain
on such premises. ORS 167.080. The officer testified that he
suspected, based on their appearances, that defendant and
his companion were both under the age of 18. As explained
below, under those circumstances, the request for identifi-
cation was reasonable, not because the officer believed that
defendant had committed a crime, but because the officer
had a duty to protect minors from an unlawful display of
obscene materials.

I acknowledge that there is no generic “community
caretaking function.” Whether law enforcement officers have
specific functions is a matter of statutory law. ORS 133.033
provides:
“(1)  Except as otherwise expressly prohibited by law,
any peace officer of this state is authorized to perform com-
munity caretaking functions.

“(2)  As used in this section, ‘community caretaking
functions’ means any lawful acts that are inherent in the
duty of the peace officer to serve and protect the public.
‘Community caretaking function’ includes, but is not lim-
ited to:

“(a)  The right to enter or remain upon the premises of
another if it reasonably appears to be necessary to:

“(A)  Prevent serious harm to any person or property;

“(B)  Render aid to injured or ill persons; or
Cite as 354 Or 392 (2013) 435

“(C)  Locate missing persons.

“(b)  The right to stop or redirect traffic or aid motor-
ists or other persons when such action reasonably appears
to be necessary to:

“(A)  Prevent serious harm to any person or property;

“(B)  Render aid to injured or ill persons; or

“(C)  Locate missing persons.
“(3)  Nothing contained in this section shall be construed
to limit the authority of a peace officer that is inherent in the
office or that is granted by any other provision of law.”

In this case, protecting a minor from being the victim
of a crime is properly inherent in the duty of a peace officer
to serve and protect the public. Therefore, the officer in this
case was authorized by statute to ascertain the age of defen-
dant and his companion if the officer reasonably believed
that they were underage. However, the mere exercise of an
activity under ORS 133.033 does not ensure compliance
with Article I, section 9. In particular, a warrantless seizure
must be justified by an exception to the warrant require-
ment. Holmes, 311 Or at 407. The community caretaking
statute is not an exception to the warrant requirement; it is
the statutory expression of the well-settled precept that the
actions of law enforcement officers, like all other government
actors’ actions, must be traceable to some grant of authority
from a politically accountable body. See State v. Bridewell,
306 Or 231, 239-40, n 6, 759 P2d 1054 (1988). ORS 133.033
is such a grant of authority. Compliance with the statute
is a necessary but not sufficient element of lawful police
activity of the sort that the statute specifies. As the statute
itself expressly states, the action must also be one that is not
“otherwise expressly prohibited by law”; it must be a “lawful
act[  ORS 133.033(1) and (2). “Whatever the meaning of
].”
‘lawful acts’ in the context of ORS 133.033, that meaning
must be consonant with the state and federal constitutions.”
State v. Dahl, 323 Or 199, 205, 915 P2d 979 (1996). Thus, a
“community caretaking” search or seizure (as distinct from
a search or seizure for purposes of law enforcement) must
fall within the ambit of ORS 133.033, and it must also meet
436 State v. Backstrand

constitutional standards. The statute provides the predicate
grant of authority, and the constitution specifies limitations
on that grant.
This court has not had an occasion to fully explore
the relationship between the range of community caretak-
ing functions that ORS 133.033 authorizes and any partic-
ular exception to the warrant requirement under Article I,
section 9. However, in assessing the constitutional reason-
ableness of warrantless seizures, other courts have con-
cluded that police requests for identification in furtherance
of lawfully prescribed community caretaking functions—as
opposed to the detection or investigation of evidence relating
to a crime—do not violate constitutional guarantees against
unreasonable searches and seizures. In State v. Vistuba, 251
Kan 821, 840 P2d 511 (1992), the Kansas Supreme Court
went so far as to characterize community caretaking or pub-
lic safety encounters as a fourth type of lawful encounter
(in Holmes terms) between police and citizens. In my view,
subject to appropriate limitations that preserve the protec-
tions guaranteed by Article I, section 9, there is much to
recommend the logic of those cases.
The concept of a community caretaking or public
safety function stems from a recognition that “[l]ocal police
have multiple responsibilities, only one of which is the enforce-
ment of criminal law[.]” State v. Acrey, 148 Wash 2d 738, 64
P3d 594, 599 (2003); see also Cady v. Dombrowski, 413 US
433, 441, 93 S Ct 2523, 37 L Ed 2d 706 (1973). The mod-
ern police officer is a “jack-of-all-emergencies” with “com-
plex and multiple tasks to perform in addition to identify-
ing and apprehending persons committing serious criminal
offenses’; by default or design he [or she] is also expected ‘to
aid individuals who are in danger of physical harm,’ ‘assist
those who cannot care for themselves,’ and ‘provide other
services on an emergency basis.’  LaFave, 3 Search and
”
Seizure § 5.4(c) at 263 (citing Am Bar Ass’n, Standards for
Criminal Justice §§ 1–1.1(b), 1–2.2 (2d ed 1980)); see also
Acrey, 64 P3d at 599 (“[M]any citizens look to the police to
assist them in a variety of circumstances, including deliv-
ering emergency messages, giving directions, searching for
lost children, assisting stranded motorists, and rendering
Cite as 354 Or 392 (2013) 437

first aid.”). To require reasonable suspicion of criminal
activity before police can investigate and render assistance
in these situations would severely hamstring their ability to
protect and serve the public.
For those reasons, performance of a community
caretaker function permits, in proper circumstances, police
requests for, and the reasonable retention of, identification
from people whom they encounter in the performance of
their duties. State v. Ellenbecker, 464 NW2d 427, 428 (Wis
App 1990); see also O’Donnell v. State, 409 SE2d 579, 582
(Ga App 1991) (“[C]onsidering [the driver] had voluntarily
stopped in a public rest area, parked, and laid down in
the vehicle late at night, causing [the] Trooper to have a
legitimate concern primarily regarding his medical status,
it was not unreasonable for the officer thereafter to initi-
ate promptly a routine and limited inquiry to determine
the driver’s identity.”); State v. Brunelle, 766 A2d 272, 274
(NH 2000) (holding that an officer’s request for the driver’s
license and vehicle registration of the driver of a disabled
vehicle was part of a limited community caretaking excep-
tion, and that such request was reasonable “in the event
that any questions about the vehicle or [the trooper’s] con-
tact with the owner subsequently arose”).
Of course, community caretaking authority is not
an excuse for carrying out a criminal investigation of the
person being assisted. Rather, such an encounter must be
based upon specific, articulable facts establishing the need
for intervention by an officer. See State v. Page, 140 Idaho
841, 844, 103 P3d 454 (2004) (officer stopping pedestrian to
check on well-being exceeded community caretaking func-
tion by taking pedestrian’s driver’s license and running a
warrants check; retention of driver’s license constituted an
unreasonable seizure); People v. Gonzalez, 204 Ill 2d 220,
224, 789 NE2d 260 (2003) (officer not entitled to request
identification from passenger stopped under community
caretaking function where state failed to explain how
request served a public safety function).3 In addition, once
3
  Nor is the community caretaking function a basis for police stop and frisk
practices that are not based on reasonable suspicion that the person accosted
has committed or is about to commit a crime. Police officers serve as commu-
nity caretakers only when their actions are “totally divorced” from the detection,
438 State v. Backstrand

it is determined that a person does not require assistance, a
request for identification cannot be justified under the com-
munity caretaking doctrine. State v. DeArman, 54 Wash
App 621, 774 P2d 1247, 1249-50 (1989) (holding that officer
acting in community caretaking capacity had no reason-
able basis to request identification once he determined that
driver did not require assistance). However, if contraband
or other evidence of crime is discovered incident to the law-
ful performance of an officer’s duties under the community
caretaker function, the officer need not ignore that which is
discovered. LaFave, 3 Search and Seizure § 5.4(c) at 263-64
(“[E]vidence of crime is sometimes inadvertently come by
when a person is searched for some purpose not directly tied
to the objective of detecting criminal activity[.] * * * If a rea-
sonable and good faith search is made of a person for such
a purpose, then the better view is that evidence of crime
discovered thereby is admissible in court.”).
Following an in-depth analysis of various concerns
informing the community caretaking doctrine, the Supreme
Court of Montana adopted the following three-part test to
ensure its proper application:
“First, as long as there are objective, specific and articula-
ble facts from which an experienced officer would suspect
that a citizen is in need of help or is in peril, then that
officer has the right to stop and investigate. Second, if the
citizen is in need of aid, then the officer may take appropri-
ate action to render assistance or mitigate the peril. Third,
once, however, the officer is assured that the citizen is not
in peril or is no longer in need of assistance or that the peril
has been mitigated, then any actions beyond that constitute
a seizure implicating *  * the protections provided by the
* 
Fourth Amendment, but more importantly, those greater
guarantees afforded under [the state constitution].”
State v. Lovegren¸ 310 Mont 358, 51 P3d 471, 475-76 (2002);
see also Williams v. State, 962 A2d 210 (Del 2008) (adopting
same test under Delaware Constitution).
That test and the principles underlying it make
good sense to me. They have the advantage of being prac-
tical in relation to a rational understanding of police duties
investigation, or acquisition of evidence relating to the violation of a criminal
statute. Cady, 413 US at 441; Bridewell, 306 Or at 238.
Cite as 354 Or 392 (2013) 439

and being more workable in the trenches than some other
efforts to define and apply additional categories of permissi-
ble police-citizen encounters. See, e.g., People v. De Bour, 40
NY2d 210, 352 NE2d 562 (1976).4 They also are free of some
of the confusing factual undergrowth that inheres in the
line-drawing that is required under the broader understand-
ing of the scope of mere conversation to which the majority
subscribes and which, to be fair, this court, has historically
endorsed. The sorts of split-second decisions that people—
both officers and citizens—must make in often-spontaneous
street encounters should not hinge so much on variations in
tone of voice, demeanor, and the other indicia that the cur-
rent state of the decisional law emphasizes.
So, where does that leave things in this case? The
trial court found that, if anything, the officer was investi-
gating whether defendant was the victim of a crime. The
supporting evidence showed that, based on their appear-
ances, the officer believed that defendant and his compan-
ion were underage. If defendant had been underage, and if
the operator of the bookstore had recklessly or knowingly
disregarded that fact, then defendant would have been the
victim of a violation of ORS 167.080. As part of his commu-
nity caretaking function, the officer’s request, taking, and
brief examination of defendant’s identification to make that
determination were reasonable under the circumstances.
Because no unlawful seizure occurred, I respectfully concur
in the judgment of the court.

4
  The New York court has adopted the following four-category model for per-
missible encounters:
“If a police officer seeks simply to request information from an individual,
that request must be supported by an objective, credible reason, not neces-
sarily indicative of criminality. The common-law right of inquiry, a wholly
separate level of contact, is ‘activated by a founded suspicion that criminal
activity is afoot and permits a somewhat greater intrusion.’ Where a police
officer has reasonable suspicion that a particular person was involved in a
felony or misdemeanor, the officer is authorized to forcibly stop and detain
that person. Finally, where the officer has probable cause to believe that a
person has committed a crime, an arrest is authorized.”
People v. Hollman, 79 NY2d 181, 184-85, 590 NE2d 204 (1992) (explaining
De Bour model). One commentator has suggested that such an approach pro-
duces “more slide than scale.” Anthony G. Amsterdam, Perspectives on the Fourth
Amendment, 58 Minn L Rev 349, 394 (1974).