State v. Charles

HADLOCK, J.,

dissenting.

This case began when a deputy sheriff responded to a report about a vehicle that was stuck in a ditch in front of a house. After going to the house and speaking to defendant’s wife, who gave an explanation for the stuck vehicle that the deputy disbelieved, the deputy noticed defendant “staggering around in the house,” apparently intoxicated. After defendant sat down on a couch inside the house, the deputy asked defendant “if [the deputy could] speak with him,” and defendant went outside.1 The deputy testified that he and defendant walked “out into [a] flat area” where the deputy intended to have defendant perform field sobriety tests, but the record does not reflect what questions, statements, or actions by the deputy may have prompted defendant to walk with him to that area. As the pair walked, the deputy testified, he “read [defendant] his Miranda rights.”2 After defendant acknowledged that he understood those rights, the deputy asked, as was his common practice, whether he could pat down defendant for weapons. During the resulting consensual patdown search, the deputy found the keys to the vehicle that was in the ditch.

The majority concludes, based on the totality of the circumstances, that defendant had been “stopped” by the time that the deputy patted him down and that (in the absence of any claim by the state that the stop was justified *590by reasonable suspicion of criminal activity or a safety threat) the trial court should have suppressed evidence that the deputy discovered as a result of that stop. The majority focuses on two aspects of the encounter: the giving of Miranda warnings and what it characterizes as two alterations in “defendant’s course of conduct *** by the police actions in beckoning him to the porch and then leading him into a flat area for field sobriety tests.” 263 Or App at 588. With respect, I dissent.

As the Supreme Court recently explained in State v. Backstrand, 354 Or 392, 402 n 11, 313 P3d 1084 (2013), in determining whether an encounter between a police officer and another person amounted to a “stop” of that person, a court’s analysis should focus on “the officer’s words and actions and what they would convey to a reasonable person.” (Emphasis in original.) Thus, the question this case presents is whether a reasonable person would believe that the deputy had “intentionally and significantly restricted, interfered with, or otherwise deprived [defendant] of his or her liberty or freedom of movement,” when the deputy asked defendant if he could speak with him, walked with defendant to the “flat area,” read him Miranda warnings, and requested consent to pat him down. Id. at 399; see also id. at 402 (“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 exercising his or her authority to significantly restrain the citizen’s liberty or freedom of movement.”). I would hold that the deputy’s questions and actions did not have that effect.

First, the deputy’s requests of defendant — that he come outside to speak with the deputy and that he allow the deputy to perform a patdown search (as well, perhaps, as an implicit request that defendant walk with the deputy to the “flat area”) — would not, standing alone, constitute a stop. In that regard, it is worth emphasizing that the deputy did not, at any point in the encounter, order defendant to move in a particular direction or otherwise change his physical location. The deputy repeatedly denied having ordered defendant out of his house, and the trial court found that the deputy merely asked defendant to come outside. Moreover, nothing in the record suggests that the deputy *591directed defendant to follow him to the “flat area” where he intended to administer field sobriety tests. Accordingly, I do not find the same significance that the majority does in defendant’s movement from inside the house to the flat area outside.

Because the deputy’s requests were just that— requests — they did not, alone, constitute a stop. “Rather, something more than just asking a question, requesting information, or seeking an individual’s cooperation is required” before an officer can be said to have made “a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request.” Id. at 403 (quoting State v. Ashbaugh, 349 Or 297, 317, 244 P3d 360 (2010)). Here, the majority finds that “something more” in the deputy’s reading of Miranda warnings, which the majority describes as communicating that defendant had been arrested or otherwise was in compelling circumstances that had restrained his freedom. 263 Or App at 588. I agree that the Miranda warnings— at least, the recitation that defendant had a right to legal counsel — could reasonably suggest that defendant was the subject of a criminal investigation, perhaps even that the deputy believed that he had reason to detain defendant. However, that does not resolve the question of whether defendant was stopped. Rather, the question remains whether a reasonable person would conclude that the officer’s words or actions in fact amounted to a significant restraint on defendant’s liberty.

The majority’s conclusion that the circumstances described above amounted to a stop is implicitly based on the notion that a law enforcement officer seizes a person if the officer’s words or actions convey to the person that he or she is the subject of a criminal investigation. That conclusion is consistent with much of our pre-Backstrand case law. See, e.g., State v. Dierks, 257 Or App 88, 95, 306 P3d 653 (2013), decision vac’d by order, 354 Or 837 (2014) (concluding that the defendant had been stopped because “a reasonable person in defendant’s circumstances * * * would have believed that *** she was being subjected to a criminal investigation and was, therefore, not free to leave”). In my view, however, it conflicts with Backstrand and other recent Supreme *592Court decisions. In Backstrand itself, Justice Walters wrote a concurring opinion in which she explained her view that a police officer’s interaction with the defendant amounted to a stop “because the officer’s communication and conduct would cause a reasonable person in [the] defendant’s position to believe that he was the subject of a criminal investigation and therefore that he must stop, respond, and remain until the immediate investigation was complete.” 354 Or at 418 (Walters, J., concurring in the judgment).3 The majority, however, “decline [d] to debate whether a person in [the] defendant’s position would have believed he was the subject of a ‘criminal investigation’” because, it held, “the fact that an officer asks a citizen for cooperation in the course of conducting a criminal investigation is not a talisman in the [stop] analysis, as it is for Justice Walters.” 354 Or at 396 n 4 (emphasis added). Thus, under Backstrand, a person may reasonably believe, based on an officer’s words or conduct, that he or she is the subject of a criminal investigation, yet not have been stopped by the officer’s actions.

The Supreme Court emphasized that point in other cases that it decided on the same day as Backstrand. In State v. Anderson, 354 Or 440, 313 P3d 1113 (2013), the court addressed the constitutionality of an interaction between police officers and two individuals who arrived at an apartment complex where the officers were executing a search warrant. The individuals, including the defendant, approached the apartment that was the focus of the warrant, but they briskly returned to their car after they saw officers searching the living room. Id. at 443. Three of the officers followed the individuals back to their car, explained that they were executing a search warrant, and said they were contacting the defendant and his companion to find out who they were, “what interest they might have had” with what the officers were doing at the apartment, or whether they knew the person who lived there. Id. The officers also asked the defendant and his companion for identification. The defendant *593denied that he had identification with him and gave a name that one of the officers knew was incorrect. That officer said to the defendant “you’re not him, I recognize you,” and asked the defendant to step out of the car. Id. at 444. The officer again asked the defendant whether he had identification, the defendant produced identification, and the officer “ran a warrant check on defendant” and discovered that he was wanted on an outstanding arrest warrant. Id. The defendant unsuccessfully moved to suppress evidence that the officers subsequently discovered. Id. at 445-46.

On review, the Supreme Court addressed whether the officers seized the defendant before they asked him to get out of the car. The court held that no seizure occurred before that point, even though the officers’ explanation of what they were doing at the apartment complex “objectively conveyed possible suspicion that [the defendant and his companion] could be involved in criminal activity related to the apartment” and “equally conveyed that the officers were interested in whatever information the two might be able to provide.” Id. at 453. “In all events,” the court explained, “by those brief verbal exchanges and inquiries alone, the officers did not communicate an exercise of authority of the kind required for a seizure — i.e., authority to restrain.” Id. The court found significant that the uniformed officers “took no physical action other than to approach the parked car” and “requested no physical action from defendant and the driver at that point.” Id. at 453-54. Even though there was one more officer present than there were people in the car, the circumstances “would not cause a reasonable person seated in the car to believe that the officers were significantly restricting his or her liberty.” Id. at 454. The court went on to conclude that the defendant was seized later in the encounter, after an officer “expressed disbelief in defendant’s identification of himself’ and made “requests” that the defendant and his companion exit their car in a way that, under the circumstances, a reasonable person would have understood as “directives” that significantly restrained the defendant’s liberty. Id. That later seizure, however, was justified, because once the defendant gave a false name to the officers, they had reasonable suspicion to detain him. Id. at 455.

*594Dissenting justices disagreed with the Anderson majority’s analysis of when a seizure of the defendant occurred, focusing on whether the defendant would have believed that he was the subject of a criminal investigation:

“When considered in combination, the facts that the officers were in the process of conducting a drug investigation, that the officers indicated that they considered defendant a potential suspect in that investigation, and that the officers asserted physical authority over defendant by surrounding the car in which he was seated, add up to a show of authority that would have conveyed to a reasonable person that he was the subject of a criminal investigation and therefore was not free to leave or go about his ordinary business until the immediate investigation was completed.”

Id. at 457 (Walters, J., dissenting). Again, the majority of the court rejected that focus on whether the defendant would have believed the officers were investigating him for possible criminal activity, focusing instead on whether a reasonable person would understand that the officers had engaged “in a ‘show of authority’ that, explicitly or implicitly, reasonably conveys to the person a significant restriction on the person’s freedom to terminate the encounter or otherwise go about his or her ordinary affairs.” Id. at 450.

Similarly, in State v. Highley, 354 Or 459, 313 P3d 1068 (2013), the Supreme Court held that a patrol officer did not stop the defendant when the officer — who previously had been interacting with defendant’s companion — spoke with the defendant (who was, along with his companions, “milling around” in the parking lot of an apartment complex), asked the defendant whether he was “still on probation,” requested the defendant’s identification, used the information that he obtained from the defendant’s license to check defendant’s probationary status (as the defendant had asserted, he was no longer on probation), asked the defendant for consent to search, and then — after the defendant said that he would empty his pockets for the officer and, in doing so, attempted to hide items in his hand — repeatedly asked the defendant about the items he was removing from his pockets and what he was doing with his hands. Id. at 462-64.4 None of those *595events resulted in a seizure, because the officer’s actions did not “convey a restraint on [the] defendant’s liberty,” but instead, the officer made “verbal inquiries only” that “were not seizures.” Id. at 470-71.

As in Anderson and Backstrand, a separate opinion in Highley focused on whether a police officer’s inquiries would lead “a reasonable person [to] 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.” Id. at 486 (Walters, J., dissenting). In such circumstances, the Highley dissent would have held, “the officer effects a seizure under Article I, section 9, of the Oregon Constitution.” Id. (Walters, J., dissenting). But that was the dissenting view.

Considering the majority, dissenting, and concurring opinions in Backstrand, Anderson, and Highley, I derive the general principle that a police officer does not stop a person merely by making inquiries or by seeking information from the person in a way that reasonably could suggest that the person is the subject of a criminal investigation. Rather, the officer must say or do “something more” that “would reasonably be construed as a ‘threatening or coercive’ show of authority requiring compliance with the officer’s request.” Backstrand, 354 Or at 403.

Applying that principle here, I would hold that, although standard Miranda warnings may have suggested to defendant that he was the subject of a criminal investigation, that suggestion did not (either alone or in combination with the interactions between the deputy sheriff and defendant that preceded it) constitute a stop. The remaining question is whether, in some other respect, the Miranda warnings constituted the kind of “something more” that can transform an encounter into a stop. I would hold that they did not. The “something more” must be a police officer’s words or actions that communicate that a person is required to comply with whatever subsequent requests the officer *596may make. Backstrand, 354 Or at 403; see Anderson, 354 Or at 454 (The defendant was stopped when, in the totality of the circumstances, the defendant would have understood “officers’ ‘requests’ to exit the car to be directives and would believe that his or her liberty was significantly restrained.”). Here, the Miranda warnings would not have had that effect. By their very nature, the warnings explicitly communicate that a person is not required to speak with the police officer, thus at least implicitly communicating that the person is not required to comply with, for example, any subsequent request for consent to search. See State v. Ayles, 348 Or 622, 635-36, 237 P3d 805 (2010) (“The giving of [Miranda] warnings * * * is intended to assure voluntariness” and, therefore, “cannot be used * * * to prove a contrary theory”; rejecting the Court of Appeals’ suggestion that the warnings could perpetuate a “person’s perception that his or her liberty continued to be restrained as the officer pursued a criminal investigation by seeking consent to a search.”). Because the deputy’s recitation of the Miranda warnings did not communicate that defendant was required to comply with the deputy’s subsequent requests, that recitation did not effect a seizure under Article I, section 9, either considered standing alone or in combination with the events that preceded it.

For similar reasons, I would conclude that defendant was not seized for purposes of the analysis under the Fourth Amendment to the United States Constitution. “A person is seized by the police and thus entitled to challenge the government’s action under the Fourth Amendment when the officer, by means of physical force or show of authority, terminates or restrains his freedom of movement.” Brendlin v. California, 551 US 249, 254, 127 S Ct 2400, 168 L Ed 2d 132 (2007) (citations and internal quotation marks omitted). As under Article I, section 9, a “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.’”” Backstrand, 354 Or at 402 n 11 (quoting State v. Holmes, 311 Or 400, 413, 813 P2d 28 (1991)). Rather, “the requirement that a reasonable person would not have felt free to leave is a ‘necessary ’ condition for a ‘seizure’ of a person but not a ‘sufficient’ one where no force is used.” Holmes, 311 Or at 413 (quoting California v. Hodari D., 499 US 621, 628, 111 S Ct 1547, 113 L Ed 2d *597690 (1991) (emphasis in Hodari D.). The Oregon Supreme Court recently has explained that, “[u]nder that more complete articulation of the federal test [found in Hodari D.], the analysis of what constitutes a seizure under Article I, section 9, and under the Fourth Amendment is not meaningfully different.” Backstrand, 354 Or at 402 n 11. Accordingly, having determined that defendant was not seized for purposes of Article I, section 9,1 also would hold that he was not seized for purposes of the Fourth Amendment.

In short, defendant had not been stopped at the time he consented to the patdown search, and the trial court therefore correctly denied defendant’s motion to suppress evidence discovered as a result of that search. I respectfully dissent.

The deputy first testified that he “ask[ed] ” defendant if he could speak with him, and responded affirmatively when questioned whether he had “ask[ed] the defendant out of the house.” In addition, the deputy specifically denied having ordered defendant to leave the house. However, when the deputy was cross-examined about the sequence of events, he responded, “Yeah,” when asked whether he had told defendant to come out of the house. But the deputy subsequently clarified that he had not ordered defendant to come to the door, and reiterated that he had only asked defendant to do so. The trial court found that the deputy “asked [defendant] to step outside.”

The deputy did not explain exactly what he said when he read defendant his “Miranda rights.” Accordingly, I, like the majority, presume that the deputy read defendant the standard advice of rights under Miranda, including the right to counsel. See State v. Acremant, 338 Or 302, 318 n 13, 108 P3d 1139 (2005) (describing Miranda warnings).

Despite her disagreement with the Backstrand court’s determination that no stop had occurred, Justice Walters concurred in the Supreme Court’s ultimate decision that the officer had not unlawfully stopped the defendant because, she concluded, the stop “was constitutionally justified.” 354 Or at 419 (Walters, J., concurring in the judgment).

Toward the end of that “game of ‘cat and mouse,’” another officer saw a small baggie in the defendant’s fist, and subsequent events led to the discovery of *595baggies that contained methamphetamine. Id. at 465, 470. The defendant did not dispute the trial court’s conclusion that the officer who spotted the baggie then had sufficient cause to force the defendant’s hand open to reveal the drugs that the officer believed he possessed. Id. at 473.