State v. Ashbaugh, (CC C052367CR; CA A131117; SC S057189 (Control), S057188).

• Court: Supreme Court of Oregon
• Writing for the Court: GILLETTE
• Citation: 244 P.3d 360,349 Or. 297
• Decision Date: 09 December 2010
• Docket Number: (CC C052367CR; CA A131117; SC S057189 (Control), S057188).
• Parties: STATE of Oregon, Petitioner on Review/Cross-Respondent on Review, v. Charity Ann ASHBAUGH, Respondent on Review/Cross-Petitioner on Review.

244 P.3d 360
349 Or. 297

STATE of Oregon, Petitioner on Review/Cross-Respondent on Review,
v.
Charity Ann ASHBAUGH, Respondent on Review/Cross-Petitioner on Review.

(CC C052367CR; CA A131117; SC S057189 (Control), S057188).

Supreme Court of Oregon,
En Banc.

Argued and Submitted Nov. 3, 2009.
Decided Dec. 9, 2010.

244 P.3d 361

On review from the Court of Appeals.^*

Paul L. Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review/cross-respondent on review. With him on the brief was John R. Kroger, Attorney General.

Joshua B. Crowther, Senior Deputy Public Defender, Salem, argued the cause and filed the brief for respondent on review/cross-petitioner on review. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Julia E. Markley and Lynne M. Paretchan, Perkins Coie LLP, Portland, and Chin See Ming, Legal Director, ACLU Foundation of Oregon, Inc., Portland, filed the brief for amicus curiae ACLU Foundation of Oregon, Inc.

GILLETTE, J.

349 Or. 300

This case concerns a criminal defendant's motion to suppress evidence obtained in a consent search of her purse. Defendant argued to the trial court that suppression was required because her consent to the search was a product of prior conduct on the part of the police that violated her rights under Article I, section 9, of the Oregon Constitution—specifically, an unreasonable and, therefore, unlawful, seizure of her person. The trial court rejected that argument but, on defendant's appeal, the Court of Appeals remanded for further factfinding, holding that the consent search was causally related to an encounter between defendant and the police and that, "depending on facts that neither party [had] developed at trial," the encounter may have been an unlawful seizure. State v. Ashbaugh, 225 Or.App. 16, 18, 200 P.3d 149 (2008). We allowed both parties' petitions for review and now conclude that the trial court properly determined that defendant's consent to the search did not derive from an unlawful seizure and therefore did not violate Article I, section 9. Accordingly, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

The incident at the heart of this case occurred on a summer afternoon in a public park in Beaverton. Two police officers, Barroncliffe and Schaer, were patrolling in the vicinity of the park. They were armed and in uniform, and each was riding a department-issued mountain bicycle. As the two officers rode through the park, they observed defendant and her husband sitting on the ground under a tree. The officers had no reason to suspect defendant and her husband of criminal activity, but they thought it was "unusual" that a middle-aged couple like them would be sitting in that particular park at that time, because the park generally was frequented by children and elderly persons in the middle of the afternoon.

244 P.3d 362

Barroncliffe and Schaer approached the couple and said to them: "Hey, you're not in any trouble, [but] do you have some I.D. we can see?" Both defendant and her husband handed over identification cards, which the officers proceeded to "run" ¹ through the police dispatcher. According to

349 Or. 301

both officers, their encounter with defendant and her husband was "relaxed."

After a two-minute wait (during which time the officers, defendant, and defendant's husband engaged in "casual conversation"), the officers learned that defendant's husband was the subject of a restraining order that prohibited him from having contact with defendant. Barroncliffe and Schaer reported what they had learned to defendant and her husband and told them that they were placing defendant's husband under arrest for violating the restraining order. The officers returned defendant's identification to her and then turned to the task of taking defendant's husband into custody.

The officers began that process by handcuffing defendant's husband and requesting by radio a car to transport the husband to jail. While waiting for the car to arrive, they talked with defendant and her husband about the restraining order. In the course of that conversation, defendant told the officers that she knew about the restraining order, that she and her husband were "trying to work it out," and that they were living together. When the car arrived, Barroncliffe and Schaer walked defendant's husband down a pathway and through a break in a chainlink fence that separated the park from the street (a distance of 35 to 50 feet), patted him down for weapons, and then placed him inside the car. Defendant remained under the tree during the approximately five minutes that it took to complete that process.

Barroncliffe and Schaer then returned to the area where defendant was waiting. Schaer told defendant that her husband had asked if she would take his belongings with her. Then (according to Schaer), "something inside of [Schaer] made [him] want to ask if [he] could look in [defendant's] purse." Whatever the source, Schaer surrendered to his

349 Or. 302

impulse and asked defendant "if she had anything illegal in her purse." She replied that she did not. Schaer then asked defendant if he could search her purse and defendant replied, "Yeah, sure." Schaer opened the purse and found a smudged mirror, several clear plastic baggies that each contained a small amount of clear crystalline substance, and some short straws. When asked about what he had found, defendant told Schaer that the substance was methamphetamine; she also made other incriminating statements. Schaer then cited defendant for possession of a controlled substance.

Before her trial on the possession charge, defendant moved to suppress all evidence obtained in connection with the search of her purse. She acknowledged that she had consented to that search, but argued that her consent was the direct product of a prior unlawful "stop," which occurred either when the officers asked her for identification or when the officers approached her a second time, asked her about the contents of her purse, and asked whether she would permit them to search it. Defendant asserted that, in either event, the evidence was obtained through illegal police conduct and must be suppressed.

The trial court rejected both arguments and denied the motion to suppress. After hearing the testimony of the two police officers and the arguments of the parties, the court opined that the issue resolved into two questions: First, could the state show that defendant's consent was independent of, or only tenuously related to, the initial encounter between defendant and the police, which the state had conceded was an unlawful

244 P.3d 363

stop? ² Second, if defendant's consent to the search was independent of that initial stop, was defendant unlawfully seized again when Officer Schaer asked for consent to search her purse? With respect to the first question, the trial court concluded that the unlawful stop did not significantly affect defendant's decision to consent to the search. Concerning the second question, the court held that the

349 Or. 303

request for consent to search was not a seizure at all but, instead, was "properly viewed as mere conversation." The trial court denied defendant's motion to suppress and, after a trial on stipulated facts, defendant was convicted.

On defendant's appeal, a divided Court of Appeals rejected the trial court's analysis and remanded for determination of certain facts that, in its view, were necessary to resolve the case under the proper analysis. The majority agreed with the trial court that the original, concededly unlawful stop did not require suppression of the evidence at issue,³ but it was less sure about defendant's alternative argument that a separate unlawful stop occurred when Officer Schaer, "prompted only by 'something inside of [him],' " asked defendant if she had anything illegal in her purse and, then, whether she would allow him to search it. Ashbaugh, 225 Or.App. at 22, 200 P.3d 149. Noting that the essential question was whether the latter incident constituted a "stop," the majority sought to answer that question through application of this court's oft-quoted statement from State v. Holmes, 311 Or. 400, 813 P.2d 28 (1991), that a person is "seized" for purposes of Article I, section 9, of the Oregon Constitution:

" '(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable under the circumstances.' "
Ashbaugh, 225 Or.App. at 22, 200 P.3d 149 (quoting Holmes, 311 Or. at 409-10, 813 P.2d 28). After observing that the individual's subjective belief appeared to be a necessary element of a seizure under part (b) ⁴ of the quoted test, and that the trial court had not

349 Or. 304

resolved that issue, the majority remanded the case to the trial court to determine what defendant subjectively had believed at the relevant time. The majority instructed the trial court that, if it found that defendant in fact did believe that her freedom of movement had been restricted when Schaer asked her for consent to search her purse, then it must find that she was seized for constitutional purposes. That was so, in its view, because a reasonable person in defendant's position could have held that belief, fulfilling the objective reasonableness requirement of Holmes part (b). Id. at 25, 200 P.3d 149 (citing State v. Toevs, 327 Or. 525, 535-36, 964 P.2d 1007 (1998)).

A concurring opinion raised a concern about the latter point, questioning whether, to establish "objective reasonableness" for purposes of showing that a person has been seized under part (b) of the Holmes formulation, this court intended to require that a reasonable person would have believed their liberty had been intentionally and...