State v. Almahmood

• Decision Date: 27 January 2021
• Docket Number: A166206
• Citation: 308 Or.App. 795,482 P.3d 88
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Ahmed ALMAHMOOD, Defendant-Appellant.
• Court: Oregon Court of Appeals

308 Or.App. 795

482 P.3d 88

STATE of Oregon, Plaintiff-Respondent,

v.Ahmed ALMAHMOOD, Defendant-Appellant.

A166206

Court of Appeals of Oregon.

Argued and submitted May 31, 2019.

January 27, 2021

Sarah De La Cruz, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Anna M. Joyce and Markowitz Herbold PC filed the brief amicus curiae for Tri-County Metropolitan Transportation District.

Before Tookey, Presiding Judge, and Shorr, Judge, and Hadlock, Judge pro tempore.^*

HADLOCK, J. pro tempore Police officers removed defendant from a TriMet train after he failed to show valid proof that he had paid his fare. After a records check revealed that defendant had been banned from riding TriMet trains, officers arrested him and found brass knuckles during a search incident to arrest. Defendant was charged with felon in possession of a restricted weapon, carrying a concealed weapon, and theft of services. Before trial, defendant filed a motion to suppress, arguing that officers had unlawfully seized him when they ordered him to show proof that he had paid his fare and asserting that evidence found as a result of the fare check should not be admitted at trial. The trial court denied the motion, and it convicted defendant of the charged crimes following a bench trial. On appeal, defendant challenges the trial court's denial of his motion to suppress. As explained below, we conclude that the officers seized defendant when they ordered him to show proof of fare payment. We also hold that, in this case, the state did not meet its burden of establishing that the seizure was reasonable for purposes of Article I, section 9, of the Oregon Constitution. The trial court therefore erred when it denied defendant's suppression motion. That error was not harmless. Accordingly, we reverse and remand.

For purposes of this appeal, the facts are not in dispute. At the suppression hearing, Tualatin police officer Radakovich described the events leading up to his presence on the TriMet train, defendant's arrest, and the associated search. Radakovich explained that TriMet contracts with local police agencies "to help enforce the laws and safety and security of the TriMet lines." On the day in question, Radakovich was "contracted from Tualatin to TriMet" and, in conjunction with that assignment, boarded a TriMet train along with three other officers, who "spread out throughout the train." The officers were "trying to make more of a visual presence and at the same time checking fares."¹

The officers loudly announced that they were "doing a fare check," and they told passengers to display proof of the fares they had paid. Radakovich then checked passengers’ fares "row by row." Another officer asked defendant for proof of payment. Defendant displayed a picture on a phone, but it was not valid proof that he had paid his fare. Defendant was arrested, and officers found brass knuckles on defendant's person during a search incident to arrest.

Radakovich later testified at the suppression hearing that officers removed people from the train if—like defendant—they did not show valid proof of payment and that officers "detained [those people] until we figured out what was going on." Radakovich acknowledged that defendant did not have the option of declining to show the officers proof that he had paid his fare.

After being charged with the crimes listed above, defendant filed a suppression motion in which he argued that officers had seized him, for purposes of Article I, section 9, when they required him to show proof of fare payment. Defendant further argued that the seizure was unconstitutional because it was not justified by reasonable suspicion that he was committing a crime. Defendant acknowledged that TriMet "has the right to ensure that only paying passengers board their trains and buses," and he conceded that TriMet "employees or other agents" may conduct fare checks without violating passengers’ constitutional rights. But when TriMet uses police officers to check fares, defendant argued, "constitutional protections attach to those interactions * * * with the passengers of those trains." In response, the state argued that it did not matter, for constitutional purposes, that police officers—not TriMet employees—were checking passengers’ fares. The state also argued that, even if an Article I, section 9, seizure had occurred, it was a permissible administrative stop. The trial court denied defendant's suppression motion, apparently on the basis that the officers’ fare check had not constituted a seizure of defendant.²

On appeal, defendant reiterates his argument that the officers’ fare check was a seizure that violated Article I, section 9, because it was not supported by reasonable suspicion. Defendant appears to again acknowledge that other TriMet employees may perform fare checks without implicating Article I, section 9, but he argues that police officers’ involvement had constitutional significance because it "amount[ed] to a show of authority that restrained defendant's liberty."³ Defendant asserts that the officers’ command to show proof of fare payment "required defendant to produce evidence that he was not violating the law," that the officers were thus conducting a criminal investigation, and that the command therefore significantly interfered with defendant's liberty because he would not have felt free to terminate his encounter with the officers. Defendant also contends that the state did not prove either that the seizure was justified by reasonable suspicion that defendant was engaged in criminal conduct or that the seizure was a constitutionally permissible administrative stop. On the latter point, defendant asserts that "the state did not establish that a valid administrative policy would have authorized a fare check" because the state failed to offer evidence of TriMet's administrative code prior to the close of evidence, the trial court denied the state's request that it take judicial notice of the administrative code, "and there was no evidence of whether the officers followed such a policy."

In response, the state first argues that the officers did not seize defendant when they required passengers, including defendant, to show proof of fare payment. The state asserts that the record does not support defendant's contention that the officers were conducting a criminal investigation. To the contrary, the state argues, "the evidence established that, when the officers made the fare check announcement and then checked for proof of fare, they were acting pursuant to their ‘duties as a TriMet officer’ to ‘enforce the laws and rules of TriMet.’ " And, even if the officers had been engaged in a criminal investigation, the state asserts, nothing in the record establishes that the passengers would have perceived that. In the end, the state contends that the circumstances did not amount to a seizure, even if something about the officers’ fare check may have suggested the possibility that officers were investigating suspected criminal activity. In the alternative, the state argues that any seizure was justified as an administrative stop.

TriMet also has submitted a brief in this case, appearing as amicus curiae . In supporting the state's argument that the officers’ fare check was not a seizure, TriMet emphasizes that, "[a]s long as public transportation has existed, so has the concomitant ability of fare inspectors to request proof of payment." TriMet describes a long history of train passengers being required to pay fares and to be able to prove that they have done so. It contends that fare checks on public transportation are such customary and ordinary occurrences that they do not implicate Article I, section 9, even when conducted by a police officer, unless the officer engages in coercive, threatening, or overbearing conduct. For similar reasons, TriMet asserts that, even if the officers’ fare check amounted to a seizure, that seizure was reasonable for purposes of Article I, section 9.

The parties’ arguments are based on fundamental principles of search-and-seizure law. Article I, section 9, guarantees the right of the people to be free from "unreasonable" searches and seizures. "For purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly 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. Arreola-Botello , 365 Or. 695, 701, 451 P.3d 939 (2019). Because "encounters between law enforcement officers and citizens are of an infinite variety," the analysis of whether a particular encounter was a seizure for purposes of Article I, section 9, is a "fact-specific" inquiry that "requires an examination of the totality of the circumstances involved." State v. Backstrand , 354 Or. 392, 398-99, 313 P.3d 1084 (2013) (internal quotation marks omitted). When "a police officer conducts a * * * seizure without a warrant, the state [has] the burden to establish the lawfulness of the officer's conduct," that is, that some exception to the warrant requirement applied. State v. Ruiz-Espinosa , 307 Or. App. 743, 747, 477 P.3d 1233 (2020).

In determining whether a particular encounter was a seizure, we keep in mind that "the constitutional concern is with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens." Backstrand , 354 Or. at 400, 313 P.3d 1084. Thus, Article I, section 9, does not limit a police officer's authority to approach an individual and request information or...