dissenting.
Defendant’s refusal to abandon her purse during the course of a traffic stop did not signal any threat to the police investigator that was sufficient to justify seizure of her purse. Nor does defendant’s nervous reaction to a police officer’s demand to confiscate her purse suffice to allow a search of the purse for weapons. I agree with the majority that courts must give considerable latitude to police officers to take safety precautions during times of potential danger. However, defendant’s conduct here, in the context of her cooperative behavior with police and in the absence of any evidence connecting defendant to criminal or violent activities or tendencies, simply was not hostile to the police officers. That nonhostile conduct did not suggest an immediate threat of serious physical injury to the police officers, so as to excuse the need to obtain a warrant to seize and search her purse under Article I, section 9, of the Oregon Constitution. I dissent from the majority’s conclusion to the contrary.
The facts that preceded the seizure and search of the purse are not complicated. The majority accurately quotes the trial court’s findings; those findings are supported by evidence in the record and are binding on appeal. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968). We are, however, obliged to assess whether those findings support the trial court’s legal conclusions. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993).
*526The trial court found that defendant was a passenger in an automobile that was lawfully stopped by Deputy Lance. The stop was for two suspected traffic violations. The driver had a suspended driver’s license and was arrested. Lance asked defendant if she had a valid driver’s license. Defendant gave Lance her driver’s license, and Lance checked on its validity and whether defendant was subject to any outstanding warrant. After being advised by dispatch that defendant was the owner of the car, had a valid driver’s license, and was not subject to any warrant, Lance returned defendant’s license to her. He then told defendant that he did not need to tow the car. According to his report, Lance then asked defendant if he “could search her vehicle to make sure there were no weapons or drugs inside.” The report continues that defendant “told me I could and stepped out of the car.” Lance testified that “[t]he door was open, and she stood up out of the vehicle on her own.”
When defendant stood up, she took a tote bag or purse with her. Another police officer stood on the other side of the open passenger door. Lance testified that during the search of the car, the second police officer “was going to be with [defendant] at the front of the car so that I didn’t have to worry about what she was doing.” Lance further testified that he “didn’t have any concern about [defendant’s] danger to [him] until she picked up this bag and stepped out of the car with it.”
The trial court found that “[w]hen [defendant] exited the vehicle she also took her bag. The deputy told her he needed to look in her bag for officer safety if she was going to keep it or she could leave it in the car.”1 In response, “[defendant] clutched her bag, shook her head and backed up into the car when the deputy stated he needed to search the bag. She became more nervous upon his statement. She then reached into the bag.”2 Lance then took possession of the bag *527and examined its contents. Those contents included the evidence sought to be suppressed.
The majority concludes that “defendant’s unannounced act of reaching into her purse after backing away from him and ignoring his instructions * * * constitute specific, articulable facts” justifying the search and seizure based on officer safety. 226 Or App at 525. In my view, the seizure and search of the purse were different acts; each action must be justified separately. State v. Tanner, 304 Or 312, 316, 745 P2d 757 (1987) (“Searches and seizures are separate acts calling for separate analysis.”).
Property is seized when a law enforcement officer significantly interferes, even temporarily, with a person’s possessory or ownership interest in property (including by a show of force). State v. Owens, 302 Or 196, 207, 729 P2d 524 (1986). Defendant’s purse was seized when Lance directed that it be given to him or left in the car. Warrantless searches and seizures are per se unreasonable unless the state proves that the search falls within an exception to the warrant requirement. State v. Bridewell, 306 Or 231, 235, 759 P2d 1054 (1988). The state argues, and the majority concludes, that officer safety concerns justified the seizure of defendant’s purse. The Supreme Court explained that exception in State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987):
“[W]e hold that Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.”
The reasonableness of an officer’s actions is judged “under the circumstances as they reasonably appeared at the time the decision was made.” Id. at 525.
At the time the purse was seized and defendant was given the choice to abandon the purse in the car that was *528going to be searched or give it to Lance, the only evidence tending to show an immediate threat of injury was that defendant took her purse with her when she got out of the car. Up to that point, according to Lance, there was no concern that defendant was a danger to him.
Defendant’s retention of her purse in those circumstances was ordinary behavior. It is a fact of common observance that a person is loath to part with his or her wallet or purse. Defendant’s behavior was in no way surprising or suspect. Any suspicion that defendant was a threat, solely because she retained her purse when she left the car to allow it to be searched, was not a reasonable suspicion.
That is not to say that retention of a bag or an item of clothing large enough to conceal a weapon could not give rise to alarm in different circumstances. But there are no such qualifying circumstances in this case. Defendant was not suspected of any crime. She was not associated with any criminal. Defendant was not stopped as part of a criminal investigation. She was not aggressive in her conduct or speech. Indeed, Lance testified that she was “relaxed and cordial.” Defendant had voluntarily consented to a search of her car. She gave no reason for concern until she stood up with her purse. It was at that point that the purse was seized.
Thus, I conclude that the purse was seized when defendant was ordered to part with it and that there was no reasonable suspicion at that time that defendant posed a threat to Lance or anyone else. That seizure, then, was unreasonable under Bates, and the evidence obtained from a search of the improperly seized purse should have been suppressed.3 Even if the purse was not seized until Lance took *529possession of it, the facts that occurred when defendant stood up do not create a “reasonable suspicion * * * that [defendant] might pose an immediate threat of serious physical injury to the officer or to others then present” under Bates. Those facts are that defendant reacted nervously to Lance’s demand, and that she “clutched the bag to her chest,” gave reasons why it should not be searched, and reached into the bag.
Defendant’s assertion of a privacy interest in her purse in this fashion created no reasonable suspicion of criminal activity sufficient to justify the seizure or search. State v. Foland, 224 Or App 649, 199 P3d 362 (2008). As here, where a person has the right to refuse consent, the
“refusal to give consent to a search undoubtedly caused the officer to have a healthy suspicion that defendant was probably in illegal possession of something; but such suspicion, however well founded, having been aroused merely on the basis of an assertion of one’s constitutional rights, can play no part in creating probable cause for a search.”
State v. Gressel, 276 Or 333, 338-39, 554 P2d 1014 (1976). To hold otherwise and “allow[ ] the police to use defendant’s assertion of a privacy right as the basis for depriving him of that right would render the promise of Article I, section 9, illusory.” State v. Brown, 110 Or App 604, 611-12, 825 P2d 282 (1992) (the defendant’s belligerent demeanor and action of grabbing car keys was an assertion of the right to the privacy of the defendant’s cars and not reasonable grounds to believe that the cars contained evidence of a parole violation). That principle is no less true when an assertion of a privacy right is the core fact used to justify a deprivation of that right on the basis of officer safety.
The question, then, reduces to whether defendant’s action in reaching toward or into her purse, and her assertion of a privacy interest in that purse, were sufficient to threaten *530the police officers under the Bates test. The majority compares the present case to the facts of State v. Amaya, 336 Or 616, 89 P3d 1163 (2004), reaching the conclusion that Lance’s concerns for his safety were reasonable under the same logic expressed by the Amaya court.
In Amaya, an officer asked the defendant, a passenger in a vehicle stopped for a traffic violation, to step out of the vehicle. The officer encouraged the defendant to leave her purse in the vehicle; however, she took it with her and then placed it on the ground between her feet with her trench coat over the top of it. Feeling concerned for his safety, the officer questioned the defendant as to what was in her bag. She replied that “she had a gun in the bag and that she did not have a concealed weapon permit.” 336 Or at 619. In light of that admission, the officers seized and searched defendant’s bag. Based on the totality of the circumstances, the court concluded that the officer reasonably suspected that the defendant posed an immediate threat to his safety. Id. at 633.
The facts in Amaya are markedly different from those in this case. The stop in Amaya was late at night in an area known for drug dealing. The officer was alone. The police officer did not immediately seize the bag, but asked questions about its contents. The defendant attempted to conceal the bag and admitted that it contained a weapon and that she did not have a concealed weapon permit. In this case, the record shows that the setting was not risky, the area was secured by an additional police officer and a backup police car was in route, the bag was not concealed, and there was no reason to believe that it contained a weapon. The holding in Amaya does not support either the seizure or the search of defendant’s purse.
Defendant’s reaching behavior was insufficient to justify the seizure and search of her purse in this context. Bates is instructive. In that case, the defendant was stopped for a traffic violation late at night and in a high-crime area. There was electronic equipment in the back seat. The defendant was cooperative in producing a valid driver’s license. He resisted a police demand to pull a bag out from under the driver’s seat of the car and reached under the seat for an unseen object. The police seized and searched the bag. The *531court found that the defendant’s reaching conduct did not create a reasonable suspicion of an immediate threat of serious physical injury to the police officer:
“Although the police are entitled to some leeway in taking protective measures, we must draw the line at some point. The facts articulated by [the police officer] in this case fall short of creating a reasonable belief that this defendant posed an immediate threat. In light of defendant’s cooperative attitude, his lack of aggressive or threatening behavior and the absence of any apparent weapon, the mere possibility that he might have committed a crime and the presence of what appeared to be a bag are not sufficient.”
Bates, 304 Or at 527. The reaching conduct in this case is no more suspicious than the defendant’s behavior in Bates. The reach of Article I, section 9, protects defendant’s otherwise aboveboard reach into her purse.4
For the foregoing reasons, I would hold that the trial court erred in denying defendant’s motion to suppress the evidence obtained as a result of the illegal seizure of her purse. Accordingly, I respectfully dissent.
Lance stated, “I gave her the choice of taking the bag with her and allowing me to look through it or leaving it in the vehicle.”
Lance’s testimony was equivocal on whether defendant reached into the bag. His narrative report stated that “defendant began to reach her right hand in the bag and began to back away from me.” (Emphasis added.) He testified on direct examination that “[defendant] started backing up towards the door and clutching the bag like this and reached her hand into the bag.” (Emphasis added.) But on *527cross-examination, Lance testified, “and then * * * as she backed away from me [she] tried to reach her hand inside of the purse.” (Emphasis added.) The court’s finding that defendant “reached into the bag” is supported by the record.
The majority concludes that ORAP 5.45 prevents us from fully analyzing defendant’s preserved Article I, section 9, claim that her purse was unlawfully seized. 226 Or App at 523 n 2. Defendant moved to suppress evidence in the proceedings below because, among other reasons, “an officer safety concern did not exist justifying the search of defendant’s black hag.” On appeal, defendant argues that “Lance did not have probable cause to believe that defendant presented a danger to his safety to seize her purse.” The resolution of defendant’s constitutional claim necessarily requires a legal determination of when the purse was seized and an evaluation of the threat to officer safety at that time under the Bates standard. We are bound to that task by defendant’s assignment of error. And, in my view, we are obliged to make a correct legal determination of the timing of the seizure without regard to the specific details of the parties’ arguments. The determination of *529defendant’s assignment of error does not require this court to only adopt either party’s legal reasoning, whether or not that analysis is correct or complete. We are not bound to make legal determinations only from among the ones supplied by the parties. Instead, our obligation is to decide the merits of the issue presented to us, consistent with our constitutional duty to administer justice “completely.” Or Const, Art I, § 10.
Even if officer safety concerns justified the seizure of defendant’s purse, the seizure itself was sufficient to protect officer safety. Any justification for the warrantless search of the purse must come from some other basis. However, neither the parties nor the trial court discussed the justification for the search of defendant’s purse specifically, and that issue is not preserved for review. ORAP 5.45.