State v. Fair

• Citation: 302 P.3d 417,353 Or. 588
• Decision Date: 31 May 2013
• Docket Number: SC S058458).,(CC 06FE1759AB; CA A136985
• Parties: STATE of Oregon, Petitioner on Review, v. Natasha Larae FAIR, nka Natasha Larae Ortega, Respondent on Review.
• Court: Oregon Supreme Court

353 Or. 588

302 P.3d 417

STATE of Oregon, Petitioner on Review,

v.Natasha Larae FAIR, nka Natasha Larae Ortega, Respondent on Review.

(CC 06FE1759AB; CA A136985; SC S058458).

Supreme Court of Oregon.

Argued and Submitted Jan. 11, 2011.

Resubmitted Jan. 7, 2013.

Decided May 31, 2013.

On review from the Court of Appeals.^*

Susan G. Howe, Senior Assistant Attorney General, Salem, argued the cause for petitioner on review. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Joshua B. Crowther, Chief Deputy Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With him on the brief was Peter Gartlan, Chief Defender.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LINDER, LANDAU, and BALDWIN, Justices.^**

LINDER, J.

Two law enforcement officers, believing that defendant was being assaulted, responded to an incomplete 9–1–1 call that had been traced to defendant's home. One officer took defendant's husband into custody, while the other officer proceeded to interview defendant on the porch of her home. While interviewing defendant, the officer made an observation that caused him to reasonably believe defendant might be in possession of drugs. The officer asked defendant if he could search her, and she agreed. During the search, the officer discovered a glass pipe with drug residue on it. Defendant was subsequently charged with possession of a controlled substance.

The issue that this case presents is whether the officers' actions, commands, and inquiries in investigating the possible domestic assault resulted in a seizure of defendant within the meaning of Article I, section 9, of the Oregon Constitution and, if so, whether that seizure was constitutionally permissible. As we will explain, we conclude that defendant was seized for constitutional purposes, but we further conclude that the seizure was lawful. We accordingly reverse the decision of the Court of Appeals and affirm the trial court's judgment.

I. FACTS AND PROCEDURAL HISTORY

Lieutenant Utter and Deputy Mendoza were dispatched to defendant's house to investigate an incomplete 9–1–1 call traced to that address. The dispatch operator had reported that, during the call, a woman was overheard saying “stop it” and “get off me,” a man was heard yelling in the background, and then the call was disconnected. While the officers were en route to the house, dispatch made several attempts to call the number from which the 9–1–1 call had been initiated, but no one answered.

After arriving at the house, Utter and Mendoza circled it on foot. Through a sliding glass door at the back of the house, Mendoza observed an angry-looking man. Mendoza “command[ed]” the man to come to the door and to keep his hands where Mendoza could see them, but the man moved farther into the house, out of Mendoza's sight. Utter and Mendoza went to the front of the house and knocked on the door. Within a few moments, defendant and the man, later identified as defendant's husband, answered the door together. Utter observed a large swollen area over defendant's right eye, but no signs of injury to her husband. Mendoza ordered both defendant and her husband to come out of the house and onto the porch. As they did so, Mendoza handcuffed the husband and moved him to the far side of the porch, approximately 20 feet away from defendant. The husband called out to defendant as he was moved, telling her not to say anything. Utter “instructed” defendant to stay where she was on the porch, and the officers positioned themselves between defendant and her husband. Defendant's husband continued to call out to defendant intermittently during the ensuing interview, telling her not to talk to Utter.

After Mendoza took defendant's husband into custody, Utter conversed with defendant. Utter explained that he and Mendoza were there because of the incomplete 9–1–1 call received by dispatch that was traced to the address. Defendant initially denied making the call, but then said that she had done so accidentally. When Utter continued to ask defendant about the call, defendant admitted that she had been arguing with her husband and had called 9–1–1 when the argument escalated. Utter asked defendant for identification. She said she did not have any. Defendant told Utter her name and birth date and said that she and her husband were recently married. When asked, defendant also provided her maiden name. When Utter ran defendant's married and maiden names through dispatch, the dispatch operator told him that there were no “wants” for defendant and no driving record for her. Because there was no driving record for her, Utter asked defendant if she had ever had a driver's license, and she said she had not. Utter was able to determine from dispatch that someone with defendant's maiden name had had “some form of contact” with law enforcement previously. Utter asked if defendant had ever been arrested. When she replied that she had been, he asked for what crime, and she said that the arrest had been for drug possession.

Utter then turned his questioning to the argument leading up to the 9–1–1 call and asked defendant in particular about the evident injury above her eye. Defendant told him that it was accidentally inflicted when items she was loading on top of a vehicle slipped. As Utter began asking whether defendant felt threatened by her husband during the argument, Utter observed an orange plastic syringe cap fall out of defendant's pant leg. That observation prompted Utter to question defendant about her drug use. Defendant admitted to using intravenous drugs and ultimately consented to Utter's search of her person. In the back pocket of defendant's pants, Utter discovered a wadded-up napkin containing a broken glass pipe with drug residue on it. Utter alerted Mendoza to his discovery, and Mendoza placed defendant under arrest for possession of a controlled substance.

Before her trial on that charge, defendant moved to suppress the pipe, arguing that, under Article I, section 9, of the Oregon Constitution, the officers' conduct and commands before Utter observed the syringe cap fall from defendant's pant leg, had resulted in the officers unlawfully “seizing” defendant. Defendant urged that her consent to search was a product of that illegality, with the result that the pipe discovered during the search should be suppressed. The state countered that “[t]here was no unlawful stop” because none of the officers' actions or commands amounted to a seizure for constitutional purposes. According to the state, defendant was lawfully searched based on Utter's observation of the syringe cap, which gave him a reasonable basis to believe defendant was in possession of drugs at that time, at which point Utter requested, and defendant voluntarily gave, consent to the search.

The trial court denied defendant's motion to suppress, agreeing with the state that defendant had not been seized. Defendant entered a conditional plea of guilty, reserving her right to challenge the trial court's denial of her suppression motion. She later appealed, and the Court of Appeals reversed. On appeal, the court observed that defendant was “ordered—not requested—to come out of her house and was told to remain outside with the officer while an investigation occurred.” State v. Fair, 233 Or.App. 298, 309, 225 P.3d 848 (2010). The court concluded that, “because defendant had been unlawfully seized before Utter observed the syringe cap and the additional evidence that followed that observation, the trial court erred in denying defendant's motion to suppress evidence.” Id. We allowed the state's petition for review.

II. ANALYSIS

A. Was Defendant Seized Under Article I, Section 9?

The threshold question is whether the officer, in the course of investigating the possible domestic assault, seized defendant within the meaning of Article I, section 9.¹ If, as the trial court concluded, defendant was not seized, that ends the inquiry in this case. On the other hand, if, as the Court of Appeals concluded, defendant was seized, we must also determine whether the seizure was lawful and, if it was not, whether defendant's consent was a product of the unlawful seizure.

As this court has observed, “[t]here potentially is an infinite variety of encounters between law enforcement officers and citizens[,]” and “[n]ot every such encounter constitutes a ‘seizure’ of the citizen” for constitutionalpurposes. State v. Holmes, 311 Or. 400, 406–07, 813 P.2d 28 (1991). Analytically, police-citizen encounters typically fall into one of three categories that correlate the degree of intrusiveness on a citizen's liberty with the degree of justification required for the intrusion. Id. at 407, 813 P.2d 28.² At one end of the continuum are mere encounters for which no justification is required. Id. At the other end are arrests, which involve protracted custodial restraint and require probable cause. See id. (noting arrests are third category of police-citizen encounter and also entail a “seizure” of a person). In between are temporary detentions for investigatory purposes, often termed “stops,” which generally require reasonable suspicion. Id. Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not.

This court recently clarified the standard for determining when a police-citizen encounter rises to the level of a constitutional seizure. Specifically, we held that a seizure occurs

“(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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.”

State v. Ashbaugh, 349 Or. 297, 316, 244 P.3d 360 (2010) (emphasis omitted).³ In applying that standard, we look to whether the encounter entailed a significant “restraint...