No. 559 October 25, 2023 747
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHELLE NAOMI WINTER,
Defendant-Appellant.
Crook County Circuit Court
20CR16062; A176083
Annette C. Hillman, Judge.
Argued and submitted April 26, 2023.
Francis C. Gieringer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, and
Anna Belais, Deputy Public Defender, Office of Public
Defense Services.
Jeff J. Payne, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
PAGÁN, J.
Reversed and remanded.
748 State v. Winter
PAGÁN, J.
Defendant entered a conditional guilty plea of no
contest to the charge of unlawful possession of metham-
phetamine under ORS 475.894 (2020).1 On appeal, defen-
dant assigns error to the trial court’s denial of her motion to
suppress evidence. Defendant argues that evidence of meth-
amphetamine was discovered after an unlawful stop in vio-
lation of Article I, section 9, of the Oregon Constitution. For
the reasons that follow, we agree that defendant was unlaw-
fully stopped, and that the trial court erred in denying
defendant’s motion. Accordingly, we reverse and remand.
We review the denial of a defendant’s motion to sup-
press for legal error and are bound by the trial court’s find-
ings of historical fact if the evidence in the record supports
them. State v. Prouty, 312 Or App 495, 496, 492 P3d 734
(2021). The relevant facts are undisputed.
On February 17, 2020, Detective Yanes was on
patrol in Prineville, Oregon when he saw defendant in front
of a house talking with another woman. Yanes recognized
both individuals and had knowledge that they were drug
users. As he drove by the house, Yanes observed defendant
end the conversation and begin walking alone, down the
street. Yanes turned around, parked his patrol car, and initi-
ated contact with defendant, asking her “how she was doing,
because [he] hadn’t seen her in a while.” He did not turn on
the overhead lights on his car or block defendant’s path.
Yanes began questioning defendant about what she
was doing with the other woman and why they went sepa-
rate ways when they saw Yanes drive by. Defendant replied
that it was because she was dropping off her clothes and it
was time for her to leave. Yanes then asked defendant if she
was staying clean. Defendant admitted she was not staying
clean because she “was a drug addict.” Yanes asked if she
had anything on her person and she said she had two nee-
dles with her, a “dirty one” and a “clean one.”
Yanes asked if he could search defendant’s bag, and
if she would put her bag on the hood of his patrol car. As
1
ORS 475.894 (2020), was subsequently amended in 2021. See Or Laws 2021,
ch 2, § 17; Or Laws 2021, ch 591, § 39.
Cite as 328 Or App 747 (2023) 749
defendant placed her bag on the hood, she grabbed a zip-
pered pouch and tentatively said, “So I have to show you
these?” Yanes replied, “Well I am asking you to show me and
so far, you have been pretty truthful and honest.” Defendant
reached inside the zippered pouch and revealed two hypo-
dermic needles.
Yanes again asked defendant if he could search her
bag, and she said yes. Yanes searched through defendant’s
bag and continued to ask her questions about her drug use.
When Yanes inquired if she had anything additional inside
her bag, defendant initially said no, but then admitted that
inside one of the pouches was a clear container with meth-
amphetamine residue. Yanes read her a Miranda warning
and located the plastic container. The container later tested
positive for methamphetamine.
The state charged defendant with one count of
unlawful possession of methamphetamine. Defendant
moved to suppress the evidence, arguing that she had
been stopped without reasonable suspicion in violation of
Article I, section 9, of the Oregon Constitution and that the
drug evidence was collected as a result that unlawful sei-
zure. Specifically, defendant argued that Yanes had stopped
her when he hailed her from the street, did not tell her she
was free to leave, and immediately and repeatedly asked
her about her drug use. The trial court denied the motion,
concluding that defendant’s initial contact with Yanes was
a “mere encounter” and not an unlawful seizure. The court
further stated that the encounter escalated to a stop when
Yanes told defendant to place her purse on his patrol car, but
defendant’s statement that she was carrying two needles
was sufficient for reasonable suspicion. Finally, the court
concluded that the state had “proven by a preponderance
of the evidence that * * * [d]efendant’s consent to search her
bags was voluntary.”
On appeal, defendant reiterates the argument that
Yanes stopped her without reasonable suspicion when he
asked about her drug use and whether she had “anything on
her.” In the alternative, defendant argues that Yanes lacked
reasonable suspicion to stop her when he asked her to place
her bag on the car. The state argues that Yanes did not seize
750 State v. Winter
defendant until he asked her to place her bag on the hood of
his car, at which point he had reasonable suspicion that she
was involved in criminal activity.
Article I, section 9, of the Oregon Constitution
protects against unreasonable searches and seizures.
Encounters between law enforcement officers and citizens
typically fall into one of three categories depending on the
“ ‘degree of intrusiveness on a citizen’s liberty [and] the
degree of justification required for the intrusion.’ ” State v.
Backstrand, 354 Or 392, 399, 313 P3d 1084 (2013) (quoting
State v. Fair, 353 Or 588, 593, 302 P3d 417 (2013)). At one end
of the spectrum are mere encounters which do not require
justification from law enforcement. Id. At the other end are
arrests, which require probable cause. Id. In the middle are
temporary detentions—often termed “stops”—which gener-
ally require reasonable suspicion. Id. Both arrests and stops
are seizures that are distinguished from mere encounters
by an “ ‘imposition, either by physical force or through some
“show of authority,” of some restraint on the individual’s lib-
erty.’ ” Id. (quoting State v. Ashbaugh, 349 Or 297, 309, 244
P3d 360 (2010)).
“For purposes of Article I, section 9, a seizure occurs
when (1) a law enforcement officer intentionally and signifi-
cantly interferes with an individual’s liberty or freedom of
movement; or (2) a reasonable person, under the totality
of the circumstances, would believe that his or her liberty
or freedom of movement has been significantly restricted.”
State v. Reyes-Herrera, 369 Or 54, 58, 500 P3d 1 (2021). The
law enforcement officer’s show of authority must be “some-
thing more than just asking a question, requesting infor-
mation, or seeking an individual’s cooperation.” Backstrand,
354 Or at 403. The “something more” is a fact-specific
inquiry, requiring “an examination of the totality of the cir-
cumstances involved.” Id. at 399.
In general, “ ‘law enforcement officers remain free to
approach persons on the street or in public places, seek their
cooperation or assistance, request or impart information, or
question them without being called upon to articulate a cer-
tain level of suspicion in justification if a particular encoun-
ter proves fruitful.’ ” Id. at 400 (quoting State v. Holmes, 311
Cite as 328 Or App 747 (2023) 751
Or 400, 410, 813 P2d 28 (1991)). However, a seizure occurs
when an officer conveys to a person through words, actions,
or both, that the person is not permitted to end the encoun-
ter. Id. at 401. If an officer makes a stop without reasonable
suspicion, the stop is unlawful, and any evidence discovered
as a result of the unlawful stop is assumed contaminated
and must be suppressed. State v. Newton, 286 Or App 274,
288-89, 398 P3d 390 (2017).
With the above legal principles in mind, we turn to
the present case. The state contends that this case is like
Ashbaugh, 349 Or 297, and State v. Anderson, 354 Or 440,
313 P3d 1113 (2013). The state argues that Yanes’s initial
interaction with defendant was noninvestigative and con-
veyed merely his interest in “defendant’s condition.” We
disagree.
First, this case is factually distinguishable from
Ashbaugh, 349 Or 297. In Ashbaugh, an officer arrested the
defendant’s husband and then approached the defendant to
tell her that her husband had requested that she take his
belongings with her. 349 Or 297 at 301. During that conver-
sation, the officer asked if she had anything illegal in her
purse. Id. at 302. After the defendant said that she did not,
the officer asked to search her purse. Id. The court deter-
mined that the defendant was not seized because no threat-
ening or coercive physical action accompanied the officer’s
request, and the conversation was relaxed and nonconfron-
tational. Id. at 317.
Here, Yanes approached defendant and did not
articulate a noninvestigative reason for contacting her.
Instead, Yanes altered his direction of travel to question
defendant, asked what she was doing with the other woman,
asked her whether she was clean, and “if she had anything
on her person.” Yanes’s actions and questions conveyed that
defendant was his investigative target.
Second, Yanes’s interest in “defendant’s condition”
is unlike Anderson, 354 Or 440. In Anderson, the expla-
nation of the officers’ reasons for contacting the defendant
“objectively conveyed possible suspicion that the driver and
[the] defendant could be involved in criminal activity * * *
752 State v. Winter
but they equally conveyed that the officers were interested
in whatever information the [defendant] might be able to
provide.” 354 Or 440 at 453. In contrast, Yanes did not ask
defendant about her “current condition” merely to get a
better understanding of the circumstances. Rather, Yanes
asked if defendant was staying clean and then immediately
followed up by asking if she had anything on her. This con-
veys that Yanes was not inquiring about defendant’s health,
but that he was investigating a crime—specifically the pos-
session of a controlled substance.
In reaching our conclusion, Reyes-Herrera, 369 Or
54, is particularly instructive. In Reyes-Herrera, the inves-
tigating officer was driving his patrol car by an alleyway
and observed the defendant walking away from another
man. 369 Or 54 at 56. Believing the men had engaged in a
drug transaction, the officer, without turning on his lights,
parked his car, and approached the defendant. Id. After
telling the defendant he was not in trouble and was free to
leave, the officer said that he had just observed the defen-
dant and the other man “ ‘face to face’ ” and asked, “ ‘Like
did you buy drugs from this guy[?]’ ” Id. After the defendant
twice answered, “ ‘no,’ ” the officer asked to search him. Id. at
57. The defendant agreed, and drugs were found. Id.
On review, the Oregon Supreme Court held that
a reasonable person in the defendant’s position would have
believed that their liberty was restricted, and that the defen-
dant was, therefore, seized. Id. at 67-68. The officer did not
convey a noninvestigative purpose for confronting the defen-
dant. Id. at 66. Rather, the officer “told [the] defendant that he
had seen [the] defendant walk away from a conversation with
a man who was counting money and asked if he had purchased
drugs from that man.” Id. This exchange implied that the
officer suspected the defendant of criminal activity, and that
the defendant must remain where he was. Id. Additionally,
the officer suspected a possible “drug deal,” questioned the
defendant to investigate that suspicion, and asked questions
implying that the defendant was in trouble and was not free to
leave. Id. That implication was further compounded when the
defendant denied being in possession of drugs, but the officer
still asked for consent to search him. Id. at 66-67.
Cite as 328 Or App 747 (2023) 753
Notably, in Reyes-Herrera, the defendant was con-
sidered to have been stopped even though the officer’s
questions did not directly accuse the defendant of criminal
activity. Id. at 61-62. Rather, “the line between relaxed con-
versation and coercive questioning depends on whether a
court determines that an officer made a declarative state-
ment or asked a question, or whether the officer’s comments
fit the textbook definition of an accusation.” Id.
Here, Yanes saw defendant speaking with another
person and became suspicious when they parted ways. Yanes
knew defendant and had knowledge that she previously used
drugs. Like the officer in Reyes-Herrera, Yanes did not com-
municate to defendant that he had a noninvestigative pur-
pose for approaching her, nor did he ask for her cooperation.
Instead, Yanes asked why defendant and the other woman
separated when they saw him and then asked defendant if
she was “staying clean” (i.e., not using drugs) and if she had
anything (i.e., drugs or drug paraphernalia) on her. Yanes
quickly transitioned from asking about whether defendant
was staying clean to signaling his suspicion that she was
engaged in criminal activity.
Accordingly, under the totality of the circumstances,
defendant was stopped when Yanes hailed defendant from
the street, inquired about her drug use, and asked if she had
“anything on her.” A reasonable person in defendant’s posi-
tion would have believed that their liberty was restricted
and that they were not free to leave the encounter. Because
the stop occurred before Yanes had reasonable suspicion,
it was unlawful. Reyes-Herrera, 369 Or at 67-68. Thus, we
conclude that the trial court erred in denying the motion to
suppress.2
Reversed and remanded.
2
Based on our conclusion that the defendant was unlawfully seized, we do
not address or analyze defendant’s alternative argument that Yanes lacked rea-
sonable suspicion to stop her when he asked her to place her bag on his car.