No. 57 November 21, 2013 459
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JOHN ELDON HIGHLEY,
Respondent on Review.
(CC CR050560; CA A130716; SC S056079)
En Banc
On review from the 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. On the brief
were John R. Kroger, Attorney General, Mary H. Williams,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General.
Ingrid A. MacFarlane, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause for respon-
dent on review. With her 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.
Brewer, J., concurred in the judgment and filed and
opinion.
Walters, J., dissented and filed an opinion in which
Baldwin, J., joined.
______________
* Appeal from Yamhill County Circuit Court, John L. Collins, Judge. 219 Or
App 100, 180 P3d 1230 (2008).
460 State v. Highley
Defendant moved to suppress evidence discovered during a search of his per-
son, arguing that he had been unlawfully seized under Article I, section 9, of the
Oregon Constitution, when an officer requested and inspected defendant’s iden-
tification, radioed dispatch to confirm his probation status, and later requested
consent to search defendant’s person. According to defendant, his consent was the
product of the unlawful seizure. The trial court denied the motion, and defendant
was convicted of possession of a controlled substance. Defendant appealed, and
the Court of Appeals reversed. Held: The officer did not seize defendant under
Article I, section 9, either by requesting or inspecting the license, checking defen-
dant’s probation status with dispatch, or by requesting consent to search defen-
dant’s person. Such actions do not, in and of themselves, amount to a show of
authority of the kind required for a seizure, nor did they effect a seizure in this
case.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
Cite as 354 Or 459 (2013) 461
LINDER, J.
This is the third of three cases that we decide today
in which we examine whether a police request and verifica-
tion of identification is a seizure under Article I, section 9, of
the Oregon Constitution.1 As we will explain, our analysis of
this case is largely controlled by our decision today in State
v. Backstrand, 354 Or 392, 412-13, ___ P3d ___ (2013), in
which we hold that an officer’s mere request for and verifica-
tion of identification is not a seizure. Contrary to the Court
of Appeals’ resolution of this case, State v. Highley, 219 Or
App 100, 110, 180 P3d 1230 (2008), we conclude that the offi-
cer did not seize defendant by asking for his identification
and checking defendant’s probationary status based on that
identification or by asking defendant for consent to search.
We, therefore, reverse the decision of the Court of Appeals
and affirm the judgment of the trial court.
BACKGROUND
Officer Desmond is a member of the Yamhill County
Interagency Narcotics Team. For about two and a half
years before this case arose, he had been a member of that
team and involved in drug investigations in and around the
McMinnville area. On this particular occasion, Desmond was
on patrol at 8:30 in the morning when he saw Williamson,
someone he knew from past drug arrests and investigations,
drive a car into a parking lot between two apartment com-
plexes in McMinnville. Desmond knew that Williamson’s
license was suspended, so he followed the car into the parking
lot. Williamson parked in an angled parking space near one
of the apartment complexes; Desmond parked in the middle
of the parking lot some distance away (and so that his patrol
car was not blocking Williamson’s car from leaving) with-
out activating his overhead lights. Desmond saw Williamson
and two passengers—defendant and Sears—get out of the
car. Desmond got out of his car and “said something to get
[Williamson’s] attention,” knowing that Williamson would
recognize Desmond if Desmond said something to him.
1
The other two cases are State v. Backstrand, 354 Or 392, ___ P3d ___
(2013), and State v. Anderson, 354 Or 440, ___ P3d ___ (2013). We allowed review
in all three cases after having held them in abeyance pending our decision in
State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010).
462 State v. Highley
In addition to knowing Williamson, Desmond also recog-
nized defendant from past contacts and arrests involving
drug activities, and he knew defendant by name. At that
point, Desmond did not say anything to defendant or the
other passenger because Desmond’s only purpose in pulling
into the parking lot was to talk to Williamson. As Desmond
and Williamson began talking, defendant and Sears walked
away and went to the door of one of the apartments.
Less than a minute later, defendant and Sears
returned to Williamson’s car, apparently because no one
answered the door at the apartment. When they returned,
the two were, in Desmond’s words, “just milling around” the
car. Desmond, meanwhile, was still dealing with Williamson,
who Desmond thought was on probation. Desmond had called
dispatch to verify Williamson’s license status. Desmond
also called the probation department to check whether
Williamson’s probation officer had any “interest” in the fact
that Williamson was in the area of apartments known to
have drug activity and was in the company of people known
to be involved with drugs and who had gone to an apartment
with a history of drug activity, all of which likely violated
the conditions of Williamson’s probation.
While Desmond waited for a response from the pro-
bation officer, and while defendant and Sears were “kind
of just hanging out at the car,” Desmond spoke briefly with
defendant and asked him if he was “still on probation.”
Defendant told Desmond that he was not. Desmond then
asked both defendant and Sears whether they had their iden-
tification on them and whether Desmond could look at that
identification. Both defendant and Sears handed Desmond
their licenses. Defendant took them, wrote down the license
numbers, and handed the licenses back. Desmond estimated
that he had the licenses for “at the most” between 30 sec-
onds and a minute before returning them to defendant and
Sears.
In defendant’s case, Desmond wanted to confirm
that defendant was not on probation and could have done
that with defendant’s name alone, which Desmond already
knew. But Desmond nevertheless asked for the identification
because dispatch can check the information more quickly
Cite as 354 Or 459 (2013) 463
with information from the license. As soon as Desmond
handed the licenses back to defendant and Sears, he walked
over to his patrol vehicle, leaving defendant and Sears by
Williamson’s car. Desmond called dispatch and confirmed
that, as defendant had told him, defendant was no longer on
probation. While Desmond was in his patrol car, defendant,
Williamson, and Sears “were just standing around the vehi-
cle, as they were before, kind of just walking around[.]”
After making the call to dispatch, Desmond returned
to where the three were standing. Desmond asked Sears if
he would consent to be searched. Sears agreed. Desmond
was interested in only a “non-intrusive” search and asked
Sears if he would empty his pockets, which “he did will-
ingly.” During that search, a second officer, Officer Fessler
arrived. Fessler was there only as a “cover officer” and simply
stood by, observing, without otherwise assisting Desmond.
The only item of interest that Sears took from his pock-
ets was a black film canister. Desmond asked Sears if he
could look inside it, and Sears, in response, opened the
canister for Desmond. It appeared to have just water in it.
Sears told Desmond that he had found the canister on the
ground “on the way to the apartment complex.” Desmond
knew that intravenous drug users often carry water with
them, but there was nothing illegal about the canister and
what it contained, and Desmond was not concerned with it.
While Desmond examined what Sears had in his pockets,
Desmond did not pay close attention to defendant or to what
he was doing.
When Desmond was done examining the film canis-
ter and searching Sears’s pockets, Desmond returned briefly
to his patrol car. He then walked back to Williamson’s car.
Defendant, by then, had moved to the trunk area of the car
and was either looking in the open trunk or getting some-
thing out of it. Desmond thought that defendant was get-
ting something from the trunk because he realized—and
Desmond himself may have told defendant—that the car
was going to be towed. Willamson and Sears, meanwhile,
remained on the passenger’s side towards the front of the
car, where they were—to use Fessler’s term—“chitchatting”
with Fessler.
464 State v. Highley
Desmond approached defendant and told defen-
dant that he was right about his probation status. Desmond
then asked defendant for consent to search him. Defendant
responded by telling Desmond that he would empty his
pockets for him. Defendant first showed Desmond what was
in his right pocket; nothing in it was of interest to Desmond.
Defendant then removed a small, oval-shaped, plastic con-
tainer from his left pocket. Desmond asked defendant what
was in it, and defendant said “some diamonds.” Desmond
asked if defendant would open it. Rather than simply show
Desmond the contents, defendant responded by opening the
container “just slightly” and cupping it in his hand, so that
some but not all of what was inside could fall out. What fell
out was mostly some “odd jewelry-type items” and what
could have been diamonds (Desmond could not tell if they
were real). Defendant appeared to be concealing something
else in the container by not letting it fall out. Defendant then
put the container back in his left pocket.
Desmond asked defendant if he would let Desmond
look in the container and in his left pocket, where defen-
dant had put the container. Defendant agreed, and reached
into the pocket. He did not take the container out imme-
diately, but instead moved his hand around in the pocket.
When Desmond asked him what he was doing, defendant
said that he wanted to make sure there was no more jewelry
in the container. When Desmond asked again if he could see
the container, defendant pulled it out of his pocket. While
keeping Desmond to his left, defendant turned away from
Desmond and seemed to transfer something from his left
hand to his right while keeping the container in his left
hand. Defendant then opened and showed the container to
Desmond, proving that it was empty.
Fessler during that time was standing on defen-
dant’s right side, about five or six feet away, near the rear
quarter panel of the car. Although he had been conversing
with Sears and Williamson and only occasionally glancing
at Desmond and defendant, Fessler fixed his attention on
defendant when he noticed some of the odd movements that
defendant was making. Fessler in particular saw defen-
dant “blade” the right side of his body away from Desmond,
Cite as 354 Or 459 (2013) 465
blocking Desmond’s view of defendant’s right side. Fessler
then saw defendant put his right hand in his right pocket
and pull it out in a fist. As defendant did that, Fessler
noticed “a little small clear plastic [b]aggie * * * sticking out
the bottom” of defendant’s fist. Fessler suspected that the
baggie contained illegal drugs and asked defendant what
was in his hand. Defendant started to move away from
Fessler, who responded by grabbing defendant’s right wrist.
After a struggle, defendant finally opened his hand, which
led to the officers’ discovery of two plastic baggies contain-
ing methamphetamine.
As stated, defendant moved to suppress all the evi-
dence discovered as a result of the search, arguing that he
had been unlawfully seized and that his consent to search
was a product of the unlawful seizure. The state responded
that Desmond’s conduct in asking defendant for identifica-
tion and running a check on his probationary status after
giving the license back to defendant was not a stop and,
thus, not a seizure. If, however, it was a stop, the state con-
tended that Desmond had reasonably suspected that defen-
dant, under the circumstances, might be in possession of
drugs. The state also argued that, in any event, the stop
ended when Desmond returned the license, completed the
check on defendant’s probation, and then “broke contact”
with defendant to search Sears pursuant to Sears’s consent.
At the point that Desmond returned his attention to defen-
dant, the state urged, defendant gave voluntary consent to
search, and the officers acquired cause to detain defendant
once Fessler saw what reasonably appeared to be packaging
for drugs concealed in defendant’s hand.
In response, defense counsel did not dispute that
defendant’s consent to search was voluntary or that the
officers acquired sufficient cause to seize defendant when
Fessler saw the plastic baggie concealed in defendant’s hand.
Defendant argued only that, before defendant gave his con-
sent to search, Desmond had unlawfully detained him by
asking him for his identification and taking possession of
that license, however briefly, and by asking for consent to
search. Defense counsel urged that “there never should have
been any inquiry of [defendant]. And this matter should
have been over when the contact with the driver was over.”
466 State v. Highley
The trial court denied the motion to suppress on
two theories. First, the trial court concluded that defendant
was seized when Desmond obtained his driver’s license and
wrote down the license information, but that that seizure
was justified by reasonable suspicion that defendant was
involved in criminal activity related to suspected drug use
at the apartment that defendant had approached. The trial
court also concluded that, in any event, the seizure ended
when Desmond returned defendant’s license and walked
back to his patrol car. Thus, according to the trial court,
the search of defendant’s pockets was lawfully based on
defendant’s consent. Although defendant had not argued to
the contrary, the trial court further concluded that, when
Fessler saw “what looked like a plastic [b]aggie sticking out
of [defendant’s] hand or fist[,]” under the circumstances, “it
was reasonable to believe that that [b]aggie may contain a
controlled substance.” That reasonable belief, in turn, pro-
vided Fessler with justification for grabbing defendant’s
wrist and “obtaining [the baggie] from his hand.”
On appeal, defendant challenged the denial of his
motion, arguing that he was seized unlawfully when Desmond
requested, retained, and then ran his license number to
check on his probationary status. Defendant also argued
that the request for consent to search had amounted to a
seizure. Defendant urged that the evidence discovered
in the search was the result of “exploitation of the illegal
detention” and that his consent to search was not “indepen-
dent of the illegal detention.” The state responded that the
records check did not amount to a seizure because there was
no evidence that defendant knew that he was the subject
of a records request and no other evidence that would have
caused a reasonable person to believe that he or she was
restrained from leaving. The state argued in the alterna-
tive that, even if there had been a seizure, Desmond did not
exploit that seizure to gain defendant’s consent to search.
The state conceded that Desmond had no reasonable suspi-
cion to seize defendant before Fessler observed the plastic
baggie in defendant’s hand.
The Court of Appeals agreed with defendant that
“the request for defendant’s identification, closely followed
by the check of defendant’s probationary status, and the
Cite as 354 Or 459 (2013) 467
request for consent to search defendant, constituted a stop.”
Highley, 219 Or App at 110. The court based its decision on
cases in which “Oregon appellate courts have concluded
that an officer’s action in requesting a defendant’s identifi-
cation and running a records check was a stop for purposes
of Article I, section 9.” Id. at 106 (citing cases). The court
concluded that “a reasonable person in defendant’s position
would believe that the officer wrote down the identifying
information and then immediately returned to his car with
that information in order to run some type of records check.”
Id. at 108. According to the Court of Appeals, that consti-
tuted a seizure because a reasonable person in the circum-
stances would believe “that he or she is under investigation
and is not free to leave.” Id. at 109. The court ultimately con-
cluded that the challenged evidence was obtained as a result
of the unlawful seizure and defendant was therefore entitled
to suppression. Id. at 111-13. On review, the parties largely
renew those arguments, focusing on whether defendant was
seized at any point in his encounter with Desmond before
the drugs were discovered.2
ANALYSIS
As we earlier noted, this case is the third of three
decided today in which we examine whether a police
request for and verification of identification is a seizure
under Article I, section 9. In Backstrand, the first of the
three cases, we discuss at length the principles that inform
that analysis. 354 Or at 398-413. In Anderson, the second
of the three cases, we summarize those principles from
Backstrand. 354 Or at 449-52. Our discussion of the legal
principles in this case, therefore, is accordingly abbreviated.
As Backstrand reaffirms, not every police-citizen
encounter rises to the level of a seizure for constitutional
purposes. 354 Or at 400. Rather, “law enforcement officers
remain free to approach persons on the street or in pub-
lic places, seek their cooperation or assistance, request or
2
As in Backstrand and Anderson, the state also urges us to further revise
the two-part “seizure” test that we recently modified in State v. Ashbaugh, 349
Or 297, 316, 244 P3d 360 (2010). As we did in both of those cases, we decline the
state’s invitation here because this case does not adequately implicate the prong
of the test that the state asks us to reconsider. See Backstrand, 354 Or at 399 n 8
(declining to reach argument); Anderson, 354 Or at 448-49 n 5 (same).
468 State v. Highley
impart information, or question them without being called
upon to articulate a certain level of suspicion in justification
if a particular encounter proves fruitful.” State v. Holmes,
311 Or 400, 410, 813 P2d 28 (1991). An officer seizes a per-
son only if the officer’s words, manner, or actions would con-
vey to a reasonable person that the officer is exercising his
or her authority to restrict the person’s liberty or freedom
of movement in a significant way—that is, in a way that
exceeds ordinary social boundaries. Id. at 409-10. Verbal
police inquiries are not, by themselves, seizures. Backstrand,
354 Or at 403 (citing propositions from State v. Rodgers/
Kirkeby, 347 Or 610, 622, 624, 227 P3d 695 (2010)). And
in particular, a request for identification does not, without
more, convert an encounter between an officer and a citizen
that is not a seizure for constitutional purposes into one that
is. Id. at 409-10. Nor does an officer’s action in verifying a
person’s identification, without more, convert the encounter
into a seizure. Id. at 413. As Backstrand explains:
“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 reason-
able 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 freedom of movement. To
be sure, as we have already discussed, a person tendering
identification to an officer may not subjectively feel comfort-
able refusing the officer’s request. Instead, for any number
of personal reasons or instincts, the person may be unwill-
ing to decline the officer’s request. Those internalized moti-
vations and feelings are not the test for whether there is a
seizure under Article I, section 9. 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 exer-
cise 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 pur-
poses of Article I, section 9. So, too, with a person who, in
Cite as 354 Or 459 (2013) 469
a noncoercive setting, gives an officer his or her identifica-
tion 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.”
Id. at 412-13 (emphasis in original) (footnote omitted).
That brings us to this case. Here, defendant does
not assert that he was stopped at any point before Desmond
asked him for identification. Nor would that contention be
availing. Desmond, after parking in the parking lot, called
out to Williamson, the driver, and proceeded to talk only to
him. While Desmond did that, defendant and Sears were
free to go about their activities unrestrained, and they did
so. They walked away from where Williamson’s car was
parked, went to an apartment, and then returned of their
own accord. Desmond said nothing to them and did not even
pay much attention to them throughout that time.
After defendant and Sears returned, they chose
to “mill” around the car, where Desmond remained with
Williamson. As they milled around, Desmond asked defen-
dant if he was still on probation; defendant said that he was
not. Desmond then asked both Sears and defendant for iden-
tification. That request was, as we conclude in Backstrand
and reaffirm in Anderson, a straightforward request for
information and cooperation of the kind that this court,
since Holmes, has continued to affirm police officers may
make without implicating Article I, section 9. Backstrand,
354 Or at 409-10; Anderson, 354 Or at 451. When defendant
gave his license to Desmond, and Desmond took possession
of it, his choice to cooperate with Desmond’s request did
not convert the encounter into a seizure for constitutional
purposes.
Nor did what happened immediately after that
result in a seizure of defendant. Desmond held defendant’s
and Sears’s licenses only briefly—just long enough to write
down the license numbers. Within 30 seconds to a minute,
at most, Desmond handed the licenses back. The Court of
Appeals, in its discussion, declined to consider “the length of
retention of a [person’s] identification * * * the touchstone” or
otherwise dispositive of whether a stop has occurred. Highley,
470 State v. Highley
219 Or App at 109. We agree. As we observed in Backstrand,
a person who decides to cooperate with an officer’s request
for identification reasonably can expect that the officer will
do something with that identification, such as seek to verify
the person’s identity or status. See Backstrand, 354 Or at
412-13 (officer verified validity of license); State v. Watson,
353 Or 768, 782, 305 P3d 94 (2013) (verification of status of
stopped driver’s driving privileges). That the officer either
retains the identification for a reasonable time while doing
so, or swiftly returns the identification and uses information
from it for those purposes, are not actions that transform a
noncoercive encounter into one in which the individual’s lib-
erty is significantly restrained through an exercise of coer-
cive police authority. Id.
Rather than convey a restraint on defendant’s lib-
erty, Desmond’s actions affirmatively conveyed the opposite.
Defendant, until Desmond engaged him, had walked away
and returned of his own accord. Desmond, for his part, after
writing down the license numbers, turned and walked away,
without doing anything that reasonably would convey that
defendant was no longer at liberty to leave. Indeed, defen-
dant in fact then went about his own business, going to the
trunk of the car, apparently to remove some personal posses-
sions because he knew that the car was to be towed. When
Desmond returned to the car after checking defendant’s pro-
bationary status, Desmond did not engage defendant at all.
Instead, he talked to Sears and examined what Sears had in
his pockets with Sears’s consent and cooperation. Defendant,
of his own accord, remained. When Desmond did turn his
attention to defendant again, Desmond told defendant that
he had confirmed that defendant was not on probation—
information that reasonably conveyed that Desmond was
not exercising authority over defendant’s liberty.
Desmond then asked if defendant would consent to
search, and defendant said that he would show Desmond
what was in his pockets. What ensued might be best char-
acterized as a game of “cat and mouse,” in which defendant
voiced his willingness to cooperate and took seemingly
cooperative actions, while surreptitiously attempting to
conceal the methamphetamine that was in his possession.
Desmond’s request for consent, and the questions that he
Cite as 354 Or 459 (2013) 471
asked defendant during the search (e.g., what defendant was
doing with his hand in his pocket when he did not remove the
container the second time), were verbal inquiries only. They
were not seizures. See Rodgers/Kirkeby, 347 Or at 622 (ver-
bal inquiries are not seizures); Ashbaugh, 349 Or at 316-17
(defendant not seized when officers asked her if she had
anything illegal in purse and requested consent to search
purse).3
In short, Desmond’s actions, considered both indi-
vidually and in combination, did not seize defendant. In con-
cluding that they did, both the trial court and the Court of
Appeals relied principally on our decision in State v. Hall,
339 Or 7, 115 P3d 908 (2005). In doing so, however, they
misunderstood the holding in Hall.
In Hall, an officer parked his vehicle next to the defen-
dant as the defendant was walking along a street. The officer
motioned for the defendant to approach the officer’s vehicle and
then got out of his vehicle as the defendant neared. The officer
asked to see the defendant’s identification. When the defen-
dant 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 identifi-
cation 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 unlaw-
ful drug possession. Id. at 10-11.
The court in Hall concluded that the encounter
began as a noncoercive engagement between the officer and
the defendant, but evolved into a seizure in the course of the
officer’s investigation. The court explained that the officer’s
3
Defendant urges that Desmond seized him by continuing to request “con-
sent to a search greater than defendant appeared willing to allow.” Any such
characterization of the exchange more properly should be presented as a claim
that defendant’s consent was invalid because Desmond exceeded the scope of the
consent that defendant gave. See generally State v. Weaver, 319 Or 212, 219, 874
P2d 1322 (1994) (discussing “scope of the consent” cases as separate category of
cases involving validity of consent to search). Defendant has never raised such a
challenge, and we reject a characterization of the search that implicitly assumes
an illegality that defendant has never asserted.
472 State v. Highley
“initial actions of stopping his vehicle next to [the] defen-
dant and then gesturing for [the] defendant to approach
him did not intrude upon [the] defendant’s liberty of move-
ment[.]” Id. at 19. But the court concluded that the nature of
the encounter changed when the officer took the defendant’s
identification and conducted a warrant check. The court
acknowledged that the officer promptly returned the defen-
dant’s identification, 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.
Hall should not be understood, as it appears to have
been understood by some advocates and by the Court of
Appeals, to stand for the proposition that an officer’s request
for identification and a check of that identification, either to
determine its validity or the status of the person who tenders
it, is a per se stop. See, e.g., Highley, 219 Or App at 106 (citing
Hall for proposition that “an officer’s action in requesting a
defendant’s identification and running a records check [is] a
stop for purposes of Article I, section 9”).4 Hall was a close
case and turned on its specific facts. As Holmes observed,
because of the diversity of potential police-citizen encounters,
determining when an encounter between an officer and a
citizen is a seizure for constitutional purposes is necessarily
a fact-specific exercise and requires an examination of the
totality of the circumstances involved. 311 Or at 408. And
more recently, we have acknowledged that, “in practice, the
4
The Court of Appeals also cited State v. Painter, 296 Or 422, 676 P2d 309
(1984), and State v. Warner, 284 Or 147, 585 P2d 681 (1978), for the same proposi-
tion. As our discussion of those cases in Backstrand establishes, they, too, are not
authority for the per se rule that the Court of Appeals applied. Backstrand, 354
Or at 410, 412.
Cite as 354 Or 459 (2013) 473
line between a ‘mere encounter’ and something that rises to
the level of a ‘seizure’ does not lend itself to easy demarca-
tion.” State v. Fair, 353 Or 588, 595, 302 P3d 417 (2013). In
Hall, none of the officer’s actions (hailing defendant, asking
for identification, checking that identification, asking about
weapons and drugs, asking for consent) individually was suf-
ficient to amount to a stop. In combination, however, the court
in Hall concluded that those actions crossed over the line and
transformed what began as a mere encounter into a stop.
No similar alchemy occurred here. None of Desmond’s
actions—the request for identification, the check of defen-
dant’s probationary status, and the request for consent to
search—individually constituted a seizure. Considered in
combination, they were simply acts that occurred sequen-
tially. They did not combine to form a whole greater than the
sum of their parts. Indeed, other facts affirmatively detract
from any conclusion that defendant was stopped. Defendant’s
initial status while Desmond talked to Williamson was
essentially that of a bystander—a bystander who was free
to come, go, and move about at will, all of which he did.
When Desmond asked for defendant’s identification, a rea-
sonable person in the same circumstances would assume
that Desmond wanted to verify whether, as defendant said,
he was off of probation; when dispatch confirmed that he
was, Desmond so advised defendant. Those facts reinforce
our conclusion that, under the totality of the circumstances,
defendant was not seized by Desmond’s actions.
That conclusion resolves this case. The trial court con-
cluded that, during the search, defendant’s actions in attempt-
ing to conceal the baggie in the palm of his hand, and Fessler’s
observations of the baggie, gave the officers sufficient cause
to grab his wrist and forcefully open it to determine whether
he was concealing drugs, as they believed he was. Defendant
has never challenged that conclusion. Nor has defendant chal-
lenged the voluntariness of the consent that he gave Desmond
to examine what was in his pockets. Defendant’s claim that
Desmond exploited an illegal stop of defendant to obtain his
voluntary and otherwise valid consent falls with our conclu-
sion that Desmond did not seize defendant at any point before
defendant gave his consent to search.
474 State v. Highley
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
BREWER, J., concurring in the judgment of the
court.
The majority holds that no part of Officer Desmond’s
interaction with defendant amounted to a seizure—not his
request for identification, not his initial request that defen-
dant submit to a search, and not his persistence in the face
of defendant’s obvious reluctance to reveal the contents of
containers in his pockets—and that, in consequence, the
question of reasonableness does not arise. My analysis of the
interaction is different. First, for the reasons explained in my
concurrence today in State v. Backstrand, 354 Or 392, 432
___ P3d ___ (2013), I would conclude that Desmond seized
defendant when he requested, examined, and ran defen-
dant’s identification without reasonable suspicion or proba-
ble cause to believe that defendant had committed a crime,
and that, in the absence of any other articulable basis for
taking those actions that would pass constitutional muster,
those actions were unreasonable for purposes of Article I,
section 9, of the Oregon Constitution. Second, I would accept
the trial court’s determination that the initial seizure ended
when Desmond returned defendant’s identification to him.
Finally, I would confront the question whether an additional
seizure occurred when Desmond requested defendant’s con-
sent to search his person. Although I think that the cor-
rect answer to that question is “yes,” I must acknowledge
that this court’s decision in State v. Ashbaugh, 349 Or 297,
244 P3d 360 (2010), likely compels the opposite conclusion.
Accordingly, and solely because Ashbaugh supports—and
perhaps dictates—the outcome that the majority reaches, I
concur in the majority’s conclusion that there was no unrea-
sonable seizure of defendant for purposes of Article I, section 9.
I write separately, however, to express my concerns about
that conclusion and its implications.
The first issue to consider is whether defendant was
seized when Officer Desmond requested, examined, and ran
his identification. The trial court determined that defen-
dant was seized in those circumstances, and I agree. As the
Cite as 354 Or 459 (2013) 475
majority notes, Desmond, who had followed the car in which
defendant was a passenger, knew defendant by name and
recognized him from past arrests involving drug activities.
After defendant and his fellow passenger returned from
the apartment complex, they were “milling around” the car
where Desmond was questioning the driver. While Desmond
was waiting for a response to his inquiries of the driver’s pro-
bation officer, he asked defendant if he was still on probation.
When defendant said that he was not on probation, Desmond
asked if he could look at defendant’s identification. In those
circumstances, it would have been apparent to a reasonable
person in defendant’s position that he was the focus of a
police investigation related to a possible probation violation,
drug activity, or both, and that he must cooperate until the
investigation was completed. Accordingly, I would conclude
that Desmond seized defendant by requesting, taking, and
running through dispatch defendant’s identification.
The next question is when the identification-related
seizure ended. The trial court found that that seizure ended
when Desmond returned defendant’s identification, and
there is evidence to support the court’s determination. In par-
ticular, Desmond returned defendant’s identification almost
immediately after writing down information contained in it.
In addition, Desmond did not tell defendant to wait while he
verified defendant’s statement that he was not on probation.
When Desmond returned to his patrol car with defendant’s
information, there is no indication that defendant perceived
that he was being detained. Instead, defendant moved to a
different area—near the trunk of his companion’s car—and
“milled around.” Finally, when Desmond got back out of his
car, he engaged the driver of the car, not defendant, in fur-
ther conversation, and only later came over to defendant’s
location. Under those circumstances, I would conclude that
there is evidence to support the trial court’s determina-
tion that the initial seizure ended when Desmond returned
defendant’s identification.
The remaining issue is whether an additional sei-
zure occurred when Desmond engaged defendant in further
conversation and, more specifically, requested defendant’s
consent to search his person. Defendant asserts that he was
476 State v. Highley
seized when, with the support of a cover officer, Desmond
asked defendant if he could search his person or, thereafter,
when Desmond “persisted in seeking defendant’s consent to
a search greater than defendant appeared willing to allow.”
Several recent decisions by this court are pertinent to the
resolution of that issue.
State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227
P3d 695 (2010), involved two challenges to consent searches
in the context of initially lawful traffic stops. In Rodgers, this
court considered whether the defendant was seized when an
officer questioned him about suspicious containers that the
officer had observed in the defendant’s car at the end of an
otherwise lawful traffic stop. Id. at 627. In concluding that
the defendant had been seized, the court first observed that
police questioning during a traffic stop by itself does not
ordinarily implicate Article I, section 9. Id. at 622. However,
the court held that police questioning that is unrelated to
the basis for the stop, when combined with an officer’s show
of authority, may result in an unauthorized seizure. Id. at
624. Under the totality of the circumstances, the court con-
cluded in Rodgers that the officers’ positions on both sides of
the defendant’s car “was a sufficient ‘show of authority’ that,
in combination with the unrelated questions concerning the
items in the car and the request to search the car, resulted
in a significant restriction of [the] defendant’s freedom of
movement.” Id. at 627.
Similarly, in Kirkeby, the defendant had been law-
fully stopped for investigation of a traffic infraction. Id. In
the course of conducting that investigation, the officer asked
the defendant for consent to conduct a pat down and, follow-
ing the pat down, the officer requested consent to examine
each of the items that he had detected in the course of the pat
down. Id. at 628. Based on the totality of the circumstances,
the court concluded that “the deputy’s show of authority that
accompanied his request that defendant consent to a pat-
down and subsequent request that defendant consent to an
examination of the contents of defendant’s pockets occurred
after the point that defendant should have been issued a
citation or sent on his way.” Id.
Cite as 354 Or 459 (2013) 477
In resolving the two cases, the court explained that,
“[t]o put the matter another way, constitutionally, Article I,
section 9, protects persons and effects from unreasonable
searches and seizures by requiring a judicially authorized
warrant supported by probable cause authorizing a search
or seizure. There are, however, certain limited exceptions
to the warrant and probable cause requirements. One such
exception permits the police to stop and briefly detain
motorists for investigation of noncriminal traffic violations.
Police conduct during a noncriminal traffic stop does not
further implicate Article I, section 9, so long as the deten-
tion is limited and the police conduct is reasonably related
to the investigation of the noncriminal traffic violation.
However, a police search of an individual or a vehicle during
the investigation of a noncriminal traffic violation, without
probable cause and either a warrant or an exception to the
warrant requirement, violates Article I, section 9. Because
police inquiries during a traffic stop are neither searches
nor seizures, police inquiries in and of themselves require
no justification and do not necessarily implicate Article I,
section 9. However, police inquiries unrelated to a traffic
violation, when combined with physical restraint or a police
show of authority, may result in a restriction of personal
freedom that violates Article I, section 9.”
347 Or at 624.
As the majority points out, Rodgers/Kirkeby
involved traffic stops where what amounted to requests to
search had occurred after the officers’ authority to detain
the defendants had ended. In those circumstances, the court
concluded that reasonable people in the defendants’ positions
would have inferred that the underlying stops remained in
progress and, thus, would feel constrained to cooperate with
the officers’ requests. Id. at 622-23. From those decisions, a
majority of this court has distilled the principle that “verbal
inquiries” generally are not searches and seizures although,
in the “distinctive context” of both cases, “the verbal inqui-
ries alone continued the seizures.” Backstrand, 354 Or at
407.
I agree with the majority that it was important to
the outcome of those cases that the bases for the stops had
478 State v. Highley
ended when the requests to search were made. That said, in
my view, those decisions do not compel the conclusion—on
which the majority’s reasoning depends—that a police offi-
cer’s request for consent to search a person is the sort of
“verbal inquiry” that, if made civilly and without any other
“show of authority,” passes for mere conversation in a citizen-
police encounter. However, as noted, I acknowledge that this
court’s subsequent decision in Ashbaugh likely does compel
that conclusion.
In Ashbaugh, two police officers approached the
defendant and her husband in a public park, took their iden-
tifications, and ran a warrant check on both of them. The
warrant check revealed an active restraining order between
the defendant and her husband, which led the officers to
arrest the husband for violating the order. Then, after
returning the defendant’s identification to her and leaving
her alone for about five minutes while they arrested her hus-
band and placed him in a police car, the officers returned to
the defendant’s location and, eventually, asked her for con-
sent to search her purse. The defendant consented, and an
officer discovered methamphetamine in the purse.
The court in Ashbaugh acknowledged that its “efforts
to explain what the constitutional term ‘seizure’ embraces
ha[d] not yet succeeded: Our various explanations, from
Holmes to Rodgers/Kirkeby, have left questions unanswered.”
Ashbaugh, 349 Or at 310. In attempting to clarify the concept,
the court made some progress, but in important respects, it
did not finish the job. In particular—and in my view, unfor-
tunately—the court endorsed the fiction that, if made in a
civil manner, a request for consent to search a person in
the context of an obviously criminal investigation amounts
to mere conversation without constitutional significance. In
determining whether the officer had made a constitutionally
significant show of authority in seeking consent to search
the defendant in that case, the court said:
“[The officer’s] request was not accompanied by any physical
action that could be construed as threatening or coercive—
he did not, for example, position himself and his fellow offi-
cer in a way that would suggest to defendant that she was
surrounded.”
Cite as 354 Or 459 (2013) 479
Ashbaugh, 349 Or at 317. The court emphasized a trial court
finding that the encounter was “relaxed and nonconfronta-
tional,” id., and it minimized the effect of the concededly
unlawful prior seizure of the defendant arising from the offi-
cer’s request for and running of her identification, because
“those circumstances had ended.” Id. The court reasoned
that
“the officers had returned defendant’s identification to her
and left her alone while completing the arrest and trans-
portation of her husband. Thus, while it may have been
true that defendant had been unlawfully detained by
police some minutes before and had watched a clear show
of authority directed at her husband, those circumstances
had ended.”
Id. at 317. Ultimately, the court concluded that, “[a]lthough
it is possible to restrict a person’s liberty and freedom of
movement by purely verbal means,” the officer did not do so
when he asked the defendant whether she had anything ille-
gal in her purse and if he could search it. Id. at 317. Based
on the totality of the circumstances existing when the offi-
cers asked the defendant for consent to search her purse,
the court concluded that a reasonable person would not have
believed that his or her liberty or freedom of movement had
been intentionally and significantly restricted and, accord-
ingly, the court concluded that the defendant had not been
seized. Id. at 317-18.1
1
In a separate dissent, Justice Walters questioned the majority’s failure to
address and distinguish several of this court’s significant previous decisions,
including State v. Hall, 339 Or 7, 19, 115 P3d 908 (2005), where this court con-
cluded that police had seized the defendant when they took his identification for
a warrant check, because a reasonable person in that situation would believe
that his or her freedom of movement had been restricted. Ashbaugh, 349 Or at
321 (Walters, J., dissenting). To its credit, the majority here has attempted to
distinguish Hall and other earlier decisions from the circumstances of this case.
However, it is in Ashbaugh that this court crossed an important line by treat-
ing consent search requests like the one here as “mere conversation,” a “verbal
inquiry,” or an insufficient “show of authority” to significantly restrict its sub-
ject’s freedom of movement. Although it is always possible to highlight factual
differences between any two cases, the differences between the circumstances
in Ashbaugh and those present here are not constitutionally significant to me.
I sympathize with the impulse to make such distinctions, but it is unrealistic
to expect officers and citizens in the field who must make split second consent
requests and decisions, to rely on such shades and subtleties. In my view, we
need to recognize Ashbaugh for what it stands for, not try to distinguish our way
around it.
480 State v. Highley
With respect, I question each of those premises.
Even though, as here, the initial seizure in Ashbaugh had
ended before a second, more fruitful, seizure occurred, the
entire interaction between the defendant and the officers
in Ashbaugh was permeated with the sort of police author-
ity that attends a criminal investigation. There are many
circumstances in which police officers should be permitted
to inconvenience or even annoy citizens by making “ver-
bal inquiries” or “requests for cooperation” as they con-
duct investigations of various sorts. Haling passersby to
ascertain whether they have witnessed a recent crime is a
salient example. However, a line should be drawn where it
is apparent from the circumstances that the person being
approached is himself or herself the focus of a police investi-
gation. In such circumstances, it is inaccurate to character-
ize police requests—whether for identification or for consent
to search—as mere verbal inquiries. Instead, such requests,
however civilly made, ordinarily suggest that the person is
suspected of wrongdoing and that he or she must cooperate
until the investigation has ended. In fact, that implication is
the foundation for most consent searches in which evidence
of a crime is found. After all, apart from a sense that the
police are in control of the encounter, there is little else to
account for a choice that is often certain to lead to the sus-
pect’s arrest and prosecution.2
That view is shared by many, if not most, commen-
tators who have considered the issue. Professor LaFave has
this to say about consent searches in the context of traffic
stops in the present era:
2
There are multiple possible explanations, but none suggests that what is
going on is truly voluntary. As Professor Whorf puts it:
“There are plausible explanations for the ready acquiescence to search by
the ‘guilty’: 1) the overall coercive nature of the routine traffic stop turned
consent search; 2) the technique of catching the motorist off-guard by the
quick transition from traffic stop to contraband investigation; 3) the possible
belief by consentors that well-concealed contraband will not be found; 4) the
possible belief by consentors that if they readily acquiesce, police suspicion
will be dispelled resulting in a cursory search or in no search at all; and 5)
the likely belief by consentors that, if they refuse consent, police suspicion
will be heightened resulting in a forcible search.”
Robert H. Whorf, Consent Searches Following Routine Traffic Stops: The Troubled
Jurisprudence of a Doomed Drug Interdiction Technique, 28 Ohio NU L Rev 1, 22
(2001).
Cite as 354 Or 459 (2013) 481
“Yet another technique commonly employed in connec-
tion with drug stops disguised as traffic stops is seeking
consent to make a search. Usually the officer attempts
to get the driver to consent to a search of the vehicle, but
sometimes the requested consent will be for search of the
person. Requesting consent has apparently become yet
another part of the ‘routine’ of ‘routine traffic stops,’ and it
is thus not surprising that the cases contain acknowledg-
ments by police about the frequency of this tactic. These
requests result in affirmative responses in the overwhelm-
ing majority of cases. Guilty or innocent, most motorists
stopped and asked by police for consent to search their
vehicles will expressly give permission to search their vehi-
cles, resulting in thousands upon thousands of motor vehi-
cle searches of innocent travelers each year. This is appar-
ently attributable to the training police have received in
the art of acquiring what will pass for consent, plus the fact
that many factors often present in this setting produce an
affirmative response.”3
Wayne R. LaFave, The “Routine Traffic Stop” from Start to
Finish: Too Much “Routine,” Not Enough Fourth Amendment,
102 Mich L Rev 1843, 1891 (2004) (emphasis omitted; inter-
nal citations and quotation marks omitted).
According to LaFave, the fiction of consent searches
in the traffic stop context has taken its toll on constitutional
limits:
“[T]he failure of most courts, when dealing with traffic-stop
consent searches, to adhere to the [Terry v. Ohio, 392 US 1,
19-20, 88 S Ct 1868, 20 L Ed2d 889 (1968)] limits on what
constitutes a reasonable temporary detention has produced
very distressing results. Consent searches are no longer an
occasional event by which a crime suspect may advise the
3
In the words of Professor Whorf:
“The ‘right’ technique is by now well-established and is likely a frequent sub-
ject of law enforcement training in ‘drug interdiction.’ It goes like this: A
police officer stops a vehicle for a routine traffic violation such as speeding;
the police officer asks the driver to get out of the vehicle; the police officer
chats in a friendly way with the driver and, sometimes, with passengers as
well; the police officer issues a warning rather than a citation for the traffic
offense; the police officer asks if the vehicle contains anything illegal; and
then, right on the heels of the inevitable denial, the police officer asks for
permission to search the vehicle.”
Whorf, 28 Ohio NU L Rev at 2-3.
482 State v. Highley
police of his or her wishes and for the police to act in reli-
ance on that understanding, but are now a wholesale activ-
ity accompanying a great many traffic stops, submitted to
by most drivers, guilty or innocent, and resulting in contin-
ued interruption of their travels for a substantial period of
time while they wait by the roadside as their vehicles are
ransacked, a process which beyond question is highly inva-
sive of the dignitary interests of individuals. Certainly the
best way to deal with this problem is as in State v. Fort, [660
NW2d 415 (Minn 2003)], which involved a traffic stop for
speeding and a cracked windshield. The court quite correctly
held that the officer’s ‘consent inquiry * * * went beyond the
scope of the traffic stop and was unsupported by any rea-
sonable articulable suspicion,’ [id. at 419,] meaning the evi-
dence obtained via the consent must be suppressed, without
regard to whether the inquiry and subsequent search ‘may
also have extended the duration of the traffic stop.’ ”
LaFave, 102 Mich Law Rev at 1892-93 (footnotes omitted).
In the face of mounting concerns about the prev-
alence of routine consent searches in traffic stops, some
state courts have increasingly looked to their own state con-
stitutions to set more meaningful limits on police activity
during traffic stops. Some of those courts have interpreted
their state constitutions to flatly forbid the police from pos-
ing questions or requests that are unrelated to the under-
lying reason for the traffic stop, unless the questions or
requests are supported by particularized reasonable suspi-
cion to believe that the accosted person has committed or
is committing some other crime.4 Another state court has
interpreted its constitution to allow officers to engage in
some degree of unrelated questioning, even in the absence
of articulable suspicion, but not if the officer’s questions or
requests change the fundamental nature of the stop. State v.
McKinnon-Andrews, 151 NH 19, 846 A2d 1198, 1203 (2004).
And New York has imposed a similar requirement as a mat-
ter of state common law. See People v. Hollman, 79 NY2d 181,
590 NE2d 204 (1992) (holding that reasonable suspicion was
4
State v. Washington, 875 NE2d 278, 282-83 (Ind App 2007); Fort, 660 NW2d
at 418-19; State v. Elders, 192 NJ 224, 927 A2d 1250, 1260-61 (2007); State v.
McClendon, 350 NC 630, 517 SE2d 128, 132 (1999); see also State v. Quino, 74
Haw 161, 840 P2d 358, 363-64 (1992) (applying a similar rule to a non-motor
vehicle investigative stop).
Cite as 354 Or 459 (2013) 483
required before narcotics officers could approach a passen-
ger in a bus terminal and ask for permission to search the
person’s bag).
In my view, those courts have struck a better bal-
ance than have we in protecting citizens from unwarranted
government intrusion. When, in the absence of reasonable
suspicion of criminal activity or some other articulable jus-
tification, police officers apprehend criminals in the course
of a so-called consent search, it is tempting to welcome the
result; but we do so at the expense of the liberty interests
of all people. It is unsatisfying to reply that law-abiding
citizens have nothing to fear from requests for consent to
search their persons that are not animated by an articula-
ble justification. They do, if they value their right to be free
from unreasonable intrusion. Moreover, the bar for a seizure
based on reasonable suspicion that criminal activity is afoot
or some other articulable justification is not so high that
police are unable to adequately enforce the law, interdict
crime, perform statutory caretaking functions, and protect
their own safety in the absence of authority to seek consent
to conduct groundless searches. See, e.g., State v. Ehly, 317
Or 66, 80, 854 P2d 421 (1993) (“[I]f a police officer is able
to point to specific and articulable facts that give rise to a
reasonable inference that a person has committed a crime,
the officer has ‘reasonable suspicion’ and hence may stop the
person for investigation.”).
Here, defendant was a passenger in a vehicle whose
driver was being investigated for suspicion of driving while
suspended, but an obviously broader police purpose to
uncover evidence of criminal activity animated the encoun-
ter. Defendant, a passenger, was briefly seized when Desmond
requested, examined, and ran his identification. As dis-
cussed, that seizure ended before Desmond next approached
defendant. In the meanwhile, defendant was free to leave,
but he was apparently waiting—as most passengers would—
for Desmond to conclude his business with the other occu-
pants of the vehicle so that they could leave together. After
telling defendant that he had verified that defendant was no
longer on probation, Desmond nevertheless asked defendant
for consent to search his person. By that time, a cover officer
484 State v. Highley
also was “present.” In response to the search request, defen-
dant agreed to empty his pockets. From that point forward,
the futile “cat and mouse” gambit that the majority recounts
ensued, wherein defendant attempted to delay the discovery
of the drugs in his pocket while Desmond, politely but per-
sistently, refused to let things go.
In my estimation, Desmond’s request to search defen-
dant constituted a seizure under Article I, section 9, because
that action, viewed in light of Desmond’s previous inquiry
concerning defendant’s probation status and his request
for defendant’s identification, communicated to defendant
for a second time that he was the focus of an active police
investigation and therefore was obligated to cooperate until
Desmond concluded his investigation. Irrespective of whether
defendant was a motorist or a passenger,5 such an intrusive
and focused inquiry would not be acceptable in an ordinary
social interaction. For those reasons, if writing on a clean
slate, I would conclude that Desmond’s actions in seek-
ing defendant’s consent to search his person significantly
interfered with defendant’s freedom of movement. I would
further conclude that an objectively reasonable person in
defendant’s position would believe that Desmond had done
so. Accordingly, I would conclude that Desmond’s request
for consent to search defendant amounted to a seizure for
purposes of Article I, section 9, of the Oregon Constitution.6
Because there was no articulable justification for the sei-
zure, I also would conclude that it was unlawful.
5
We generally construe the initial detention of passengers in a traffic stop
as merely incidental to that of the driver. See State v. Thompkin, 341 Or 368, 377,
143 P3d 530 (2006) (holding that a passenger in a lawfully stopped vehicle is not
automatically seized within the meaning of Article I, section 9, but a “further
exercise of coercive authority over the passengers by officers may, in certain cir-
cumstances, constitute a seizure”). It is unnecessary to challenge that assump-
tion here, but I note that there is an emerging appreciation that, as a practi-
cal matter, it can be erroneous. See, e.g., Erica Flores, Comment, “People, Not
Places”: The Fiction of Consent, the Force of the Public Interest, and the Fallacy
of Objectivity in Police Encounters with Passengers During Traffic Stops, 7 U Pa
J Const L 1071, 1080 (2005). The holding in Thompkin also likely is inconsis-
tent with United States Supreme Court decisions holding that, for purposes of
the Fourth Amendment, a traffic stop entails the seizure of the vehicle’s passen-
gers. See Arizona v. Johnson¸ 555 US 323, 129 S Ct 781, 172 L Ed 2d 694 (2009);
Brendlin v. California, 551 US 249, 127 S Ct 2400, 168 L Ed 2d 132 (2007).
6
Accordingly, I would not reach defendant’s alternative argument that Desmond’s
ensuing persistent efforts to obtain consent constituted an unlawful seizure.
Cite as 354 Or 459 (2013) 485
I hasten to add that I can envision circumstances
wherein an officer’s request for consent to search a suspect
that is unsupported by an articulable justification would
not result in an unlawful seizure. If, for example, the officer
were to make it clear to a suspect that he or she need not
comply with the request and is free to leave, and the offi-
cer’s actions or actions of other officers on the scene did not
convey a different message, then the show of police author-
ity that is otherwise inherent in such a request might be
sufficiently dissipated so as to dispel the conclusion that an
unlawful seizure had occurred.7 However, there is no indi-
cation in the record that such a disclaimer was made in this
case, so there is no occasion to further consider that issue
here.
Finally, because the state does not dispute that there
was a connection between Desmond’s request to search and
defendant’s consent, I also would conclude that the discovery
of the contraband in his possession was the product of an
unlawful seizure.8 However, this court’s decision in Ashbaugh
settles those issues in a different way. Accordingly, based
7
On remand from the United States Supreme Court, the Ohio Supreme
Court in State v. Robinette, 80 Ohio St 3d 234, 685 NE2d 762, 771 (1997), found
that a motorist’s consent to search was involuntary under the Ohio Constitution.
The court emphasized that it did not adopt a per se requirement that all motor-
ists must be informed of their right to leave, but it held under the totality of the
circumstances in the case before it, including the officer’s failure to so inform the
defendant, that the consent was invalid. Id.
8
The attenuation analysis has been especially problematic for this court
when it comes to “consent” searches. In Ashbaugh, three concurring justices were
of the opinion that the defendant’s voluntary consent provided an independent
basis for affirming the trial court’s judgment in that case. Ashbaugh, 349 Or at
318-20 (Durham, J., Kistler, J., and Linder, J., concurring). That view was based
on the defendant’s stipulation that her consent was voluntary. Id. at 319. Here,
the majority makes a similar, but not identical point, by indicating that defen-
dant has not challenged the voluntariness of his consent. 354 Or at 470-71, 471
n 3). Although that may be true in a narrow sense, in a broader sense, the entire
point of defendant’s argument is that his consent was invalid because it was the
direct product of an unlawful request for consent. In his briefs before this court
and the Court of Appeals, defendant repeatedly has made such assertions. That
is, defendant does not deny that he said “yes”; instead he asserts that, under the
circumstances, “no reasonable person would feel free to refuse their cooperation,
thus resulting in the person’s seizure, especially considering that the officers nei-
ther said nor did anything that would dispel such reasonable belief.” Accordingly,
I would not hinge any part of the analysis in this case on the premise that defen-
dant has not challenged the voluntariness of his consent.
486 State v. Highley
solely on a proper respect for the principles of stare decisis, I
respectfully concur in the judgment of the court.
WALTERS, J., dissenting.
I respectfully dissent. For the reasons that I explain
today in State v. Backstrand, 354 Or 392, 418 ___ P3d ___
(2013) (Walters, J., concurring in the judgment), it is my
view that, when an officer asks for and obtains an individ-
ual’s identification in circumstances in which a reasonable
person would believe that he or she is being subjected to
a criminal investigation and therefore must stop, respond,
and remain until the immediate investigation is complete,
the officer effects a seizure under Article I, section 9, of the
Oregon Constitution.
In this case, an officer approached defendant, ques-
tioned him about whether he was on probation, and obtained
and checked his identification. Then the officer approached
defendant a second time. The officer confirmed to defendant
that defendant was not on probation, but signaled that the
officer’s investigation was not complete: With another officer
present, the officer asked defendant for consent to search
and continued to question defendant, focusing his inquiry
on the items in defendant’s pockets. I agree with Justice
Brewer that, when viewed independently, each of those two
encounters were seizures under Article I, section 9, of the
Oregon Constitution. 354 Or at 474, 484 (Brewer, J., concur-
ring in the judgment of the court).1
I also think that it is appropriate to view those
events in combination and that, under the “totality of the cir-
cumstances” test, the officer seized defendant. In that light,
the correct result in this case is determined by this court’s
decision in State v. Hall, 339 Or 7, 115 P3d 908 (2005). This
court has not overruled Hall and, although there admittedly
is some tension between Hall and the court’s decision in
1
I especially agree with and appreciate Justice Brewer’s discussion of the
officer’s request to search and Justice Brewer’s comments about whether such a
request must be constitutionally justified or reasonably related to a stop which is
itself constitutionally justified. 354 Or at 484-85. In my view, this court has not
yet decided those questions. See State v. Watson, 353 Or 768, 784 n 18, 305 P3d
94 (2013) (finding it unnecessary to address whether officer’s inquiries, includ-
ing request to search, made during the pendency of a valid seizure implicate
Article I, section 9).
Cite as 354 Or 459 (2013) 487
State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010), I do not
see that the decision in this case is controlled by Ashbaugh
and not by Hall.
The majority takes the position that, in Hall, “none
of the officer’s actions (hailing defendant, asking for identi-
fication, checking that identification, asking about weapons
and drugs, asking for consent) individually was sufficient
to amount to a stop,” but that in combination “those actions
crossed over the line and transformed what began as a mere
encounter into a stop.” 354 Or at 473. The majority then says
that no similar “alchemy” occurred here because, considered
in combination, the acts in this case “were simply acts that
occurred sequentially.” Id. To my eye, the line the majority
draws between “mere” and “more,” or between transforma-
tive and sequential, is drawn in invisible ink.
In this case, defendant was not a pedestrian or a
bystander. Defendant was a passenger in a car who reason-
ably could not go on his way until the driver of the car was
ready and able to leave. See State v. Thompkin, 341 Or 368,
378-79, 143 P3d 530 (2006) (passenger in car was seized
because, under totality of circumstances, her liberty was
restrained). The time period during which the officers con-
ducted their investigation of defendant and the driver was
not brief. During part of the time that defendant was ques-
tioned, a second “cover” officer was present. The officer who
questioned defendant asked him for consent to search and,
like the officer in Hall, did nothing to dispel the notion that
had been created by the officer’s request for and check of
defendant’s identification that defendant was under inves-
tigation and not free to leave. See Hall, 339 Or at 19 (officer
“did nothing to dispel what would have been an objectively
reasonable belief that [the] defendant was restrained from
leaving”). I can understand how the officer’s show of author-
ity in this case was more restraining than was the show of
authority considered in Hall, but I cannot understand why
the officer’s acts in this case were not at least sufficient to
transform the encounter from a conversation into a stop.
The public, the police, and the trial courts deserve
greater guidance from this court. “[S]ome advocates” and the
Court of Appeals may have been mistaken in understanding
488 State v. Highley
the rule from Hall as a per se rule that whenever the police
request and obtain an individual’s identification, they seize
the individual. 354 Or at 472. However, the rule that I take
from Hall is that, when police officers request and obtain an
individual’s identification in a circumstance in which a rea-
sonable person would believe that he or she is the subject of
a criminal investigation, the officers exercise authority that
reasonably conveys that the individual must stop, respond,
and remain until the investigation is complete, and that
the officers thereby effect a seizure. That understanding
does not preclude police officers from seizing individuals; it
requires only that they have a constitutionally sufficient jus-
tification for doing so.
Because the majority holds that Article I, section 9,
does not apply to these facts, I respectfully dissent.
Baldwin, J., joins in this dissenting opinion.