dissenting.
I respectfully dissent from the majority’s conclusion that defendant was seized before he granted consent to officers to search his person, and I would affirm the judgment of the trial court.
The determination of whether a person has been seized for purposes of Article I, section 9, of the Oregon Constitution is fact intensive in nature, State v. Backstrand, 354 Or 392, 399, 313 P3d 1084 (2013), and my disagreement with the majority stems primarily from my understanding of the facts, viewed through the lens of our standard of review. Here, the trial court ultimately concluded that, “I just am not finding anything here, again, beyond the bare, at the very most macro level suggesting that this was an unlawful stop.” Presuming that the trial court found all of the historical facts in the manner consistent with that ultimate conclusion that nothing like a stop occurred, State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993), I believe that conclusion is correct. That is, I believe that the trial court correctly concluded that the facts about the encounter, as it necessarily found them, failed to demonstrate “a show of authority by which, through words or action, the officer’s conduct reasonably conveyfed] that the officer [was] exercising his or her authority to significantly restrain [defendant’s] liberty or freedom of movement.” Backstrand, 354 Or at 402.
The record, when read in the light most favorable to the trial court’s ruling,1 reveals the following about the encounter at issue.
Around 11:45 a.m. on Valentine’s Day 2013, defendant was walking with two companions in southeast Portland. *594One of his companions started to cross the street against the pedestrian signal, in a manner that apparently constituted jaywalking. Officer Lemons and his partner, Officer Hamby, observed defendant’s companion start to cross the street against the signal, parked their car, and got out to investigate the jaywalking incident. Hamby pulled the jaywalker aside, while Lemons stood by as a cover officer.
The officers did not detain defendant or his other companion, and they could have continued on their way had they wanted to do so. However, defendant and his other companion decided to wait while their friend was investigated for jaywalking. While waiting, defendant struck up a conversation with Lemons, telling Lemoils that he had received his own citation for jaywalking several weeks earlier. Defendant explained the circumstances that led to his own jaywalking citation, and Lemons told defendant that, based on how defendant described the circumstances, it sounded like defendant had jaywalked. Lemons then explained to defendant how to tell when it was okay to walk and when it was not: “We even used the hand signal, the pedestrian signal, through a cycle. I said, ‘Okay, you see that? That’s— You can’t—Okay, you can’t walk here. Now you’ve got to stop.’ We went through that articulation.” During that lesson on lawful street crossing, Lemons asked defendant his name and birth date, and defendant provided that information; Lemons did not take defendant’s identification.2 The conversation between Lemons and defendant was friendly. *595Defendant was “upset about that jaywalking violation but he didn’t take it out on” Lemons.
While Lemons and defendant were talking, two more police officers arrived on the scene, Officer Strawn and Officer Edwards. As is their common practice, Lemons and Hamby had “put it out on the air” that they were going to be out of their car with three people as they initiated the jaywalking stop of defendant’s companion. Strawn and Edwards had received that notification, and they had come to the scene to provide cover. Strawn stood by the patrol car, while Edwards approached Lemons and defendant.
As it happens, Edwards was the officer who had cited defendant for jaywalking a few weeks earlier. As soon as defendant saw Edwards, “it was almost like it set off a light switch in his head.” Defendant “just went into orbit” because of his anger about the jaywalking citation. Defendant immediately addressed Edwards, recounting the jaywalking incident and “telling [Edwards] about how unfair and unjust he felt he was treated.” When defendant turned his attention to Edwards, Lemons went to run a records check on defendant.
Edwards, meanwhile, attempted to defuse defendant’s anger about the jaywalking citation, in part by pointing out to defendant that, at the time of defendant’s prior jaywalking incident, Edwards also had probable cause to arrest defendant for criminal activity, but had not done so. Edwards advised defendant that Edwards had “[t]wo years to look at the case” and that defendant should change his behavior in order to avert the need for Edwards to follow up on that potential line of investigation. Edwards did so in an attempt to de-escalate the situation with defendant and encourage him to improve his behavior:
“[Defendant] was clearly upset with rehashing the old, and one of the things that we use as police officers and as a unit is tools to target and deal with specific type [s] of uncivilized behavior because there’s a lot of it out there, and I was very firm with [defendant] about ‘your behavior[,]’ what could have happened and how it needs to change so he doesn’t get arrested. But that conversation was more or less a one-way because he wasn’t getting what I was telling him.”
*596Edwards’s conversation with defendant was in response to defendant’s “rehashing” of the prior jaywalking incident and was limited to that incident. Edwards used a “firm” tone in response to “the way [defendant] was talking to [him], *** meaning, This is what you did. This is what you got stopped for. You behave this way, we’re not tolerating that.’ ” Edwards did not draw his weapon, put his hand on his Taser, or physically block defendant’s path or do anything else to prevent defendant from leaving if defendant chose to do so.
The records check on defendant disclosed a history of drug and weapons charges. Lemons then recontacted defendant and asked him if he had any drugs or weapons. Defendant acknowledged having a knife. Lemons asked defendant where the knife was and if Lemons could retrieve it; defendant told Lemons that the knife was in his left pocket and permitted Lemons to retrieve it.
The issue for us is whether anything in that sequence of events—standing alone or through the process of “alchemy” with the other circumstances of the encounter— evidences “a show of authority by which, through words or action, the officer’s conduct reasonably convey[ed] that the officer [was] exercising his or her authority to significantly restrain [defendant’s] liberty or freedom of movement.” Backstrand, 354 Or at 402 (stating legal standard for seizure); State v. Highley, 354 Or 459, 473, 313 P3d 1068 (2013) (describing as “alchemy” the process by which actions that are not seizures individually can nonetheless combine to transform an encounter into a seizure). It does not. As Highley indicates, Lemons’s request for defendant’s name and birth date, the running of a records check, his question about drugs or weapons, and the request for consent to search do not, in and of themselves, constitute seizures. 354 Or at 473. Beyond that, no discernible process of “alchemy” transmuted defendant’s interaction with Lemons and Edwards into a seizure before the time that defendant consented to the search for the knife.
That defendant initiated the conversations with Lemons and Edwards is significant. By starting those conversations, defendant invited the responses from Lemons and Edwards. State v. McFarland, 210 Or App 744, 749-50, *597152 P3d 967 (2007) (fact that the defendant initiated contact with officer by calling 9-1-1 and made contact with officer when he arrived on the scene precluded conclusion that officer stopped the defendant when he asked her to pull over so that he could speak with her); State v. Spenst, 62 Or App 755, 758-59, 662 P2d 5, rev den, 295 Or 447 (1983) (fact that the defendant, who had voluntarily pulled over to the side of the road, initiated contact with officer by speaking to him through the closed car window precluded conclusion that officer stopped the defendant when he approached the defendant’s vehicle). Of course officers could respond to an encounter initiated by a citizen with words or conduct amounting to a seizure (by, say, ordering the person not to move, handcuffing them, or drawing a weapon), but the officers’ responses here were of the sort that a reasonable person in defendant’s position would expect under the circumstances, given the nature of defendant’s communications to the officers. Although Edwards responded to defendant by mentioning the fact that he had “ [t]wo years to look at” the criminal activity that he had noted in his last interaction with defendant, he did not do so in a way that indicated that defendant was currently under investigation, or that defendant could not just walk away, or that otherwise conveyed that Edwards was “exercising his * * * authority to significantly restrain” defendant. Backstrand, 354 Or at 402. If anything, it appears that Edwards was attempting to tell defendant how to improve his behavior so as to avoid getting arrested in the future—a message that would not indicate to an objectively reasonable person that the officer was imposing a significant restraint on the person’s liberty.
Finally, upon recontacting defendant after the records check, Lemons did nothing that would reasonably convey that the nature of the encounter had suddenly shifted from one controlled largely by defendant to one in which the officers were imposing a significant restraint on defendant’s liberty. Lemons simply asked questions, and there is no evidence that he did so in a manner that would signal to defendant that defendant was now restrained. See Highley, 354 Or at 470-71 (verbal inquiries generally are not seizures). Under the circumstances of this particular encounter (as I believe the trial court necessarily found those circumstances *598to be), an objectively reasonable person in defendant’s position would have felt free to leave at the time that defendant consented to Lemons retrieving the knife.
In the words of the trial court, I do “not find[] anything here” that amounts to a seizure under Article I, section 9, as that term has been defined by the Supreme Court. Accordingly, I dissent.
The trial court expressly discounted defendant’s testimony about the encounter based on defendant’s admission that it was “hard for [him] to remember actually how that day went.” The court explained, “[T]here was one other finding I wanted to make, which is the fact that [defendant] did testify that [he] [wasn’t] sure—[he] [doesn’t] recall that well the events in dispute, for whatever reason, but that was [his] testimony, and I do find that factors into my conclusions, as well.” We are bound by that factual determination regarding the persuasiveness of defendant’s testimony. State v. Johnson, 335 Or 511, 523, 73 P3d 282 (2003). Accordingly, I draw the facts from the testimony of the two police officers who testified about the incident, relying on defendant’s testimony to the extent that it is not inconsistent with the version of events presented by the officers.
The majority observes that defendant provided conflicting testimony about whether Lemons took defendant’s identification, but concludes that the trial court did not necessarily make a finding on the point and that such a finding is not necessary to the analysis of whether defendant was stopped at any point in his encounter with Lemons and then Officer Edwards. 270 Or App at 591 n 5.1 disagree with that analysis. At the time that the trial court decided defendant’s motion to suppress, we had ruled, in effect, that taking a person’s identification resulted in a per se seizure. See State v. Highley, 219 Or App 100, 106, 180 P3d 1230 (2008), rev’d, 354 Or 459, 313 P3d 1068 (2013). To conclude that defendant was not seized under then-current law, the trial court necessarily had to find that the officers did not take defendant’s identification. Moreover, whether or not the officers took defendant’s identification is one of the circumstances bearing on the assessment of whether defendant was seized at some point in the encounter. Although the taking and short retention of identification does not, standing alone, automatically amount to a seizure, Highley, 354 Or at 472-73, it is conduct that points to a seizure in a way that the absence of such conduct does not.