State v. Highley

• Decision Date: 21 November 2013
• Docket Number: CA A130716,(CC CR050560,SC S056079).
• Parties: STATE of Oregon, Petitioner on Review, v. John Eldon HIGHLEY, Respondent on Review.
• Court: Oregon Supreme Court

354 Or. 459

313 P.3d 1068

STATE of Oregon, Petitioner on Review,

v.John Eldon HIGHLEY, Respondent on Review.

(CC CR050560; CA A130716; SC S056079).

Supreme Court of Oregon,

En Banc.

Argued and submitted on June 8, 2011.

Resubmitted Jan. 7, 2013.

Decided Nov. 21, 2013.

On review from the Court of Appeals.^*

Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review. On the brief were John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Jeff J. Payne, Assistant Attorney General.

Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review. With her on the brief was Peter Gartlan, Chief Defender.

LINDER, J.

This is the third of three cases that we decide today in which we examine whether a police request and verification of identification is a seizure under Article I, section 9, of the Oregon Constitution.¹ As we will explain, our analysis of this case is largely controlled by our decision today in State v. Backstrand, 354 Or. 392, 412-13, 313 P.3d 1084 (Nov 15, 2013), in which we hold that an officer's mere request for and verification of identification is not a seizure. Contrary to the Court of Appeals' resolution of this case, State v. Highley, 219 Or.App. 100, 110, 180 P.3d 1230 (2008), we conclude that the officer did not seize defendant by asking for his identification and checking defendant's probationary status based on that identification or by asking defendant for consent to search. We, therefore, reverse the decision of the Court of Appeals and affirm the judgment of the trial court.

BACKGROUND

Officer Desmond is a member of the Yamhill County Interagency Narcotics Team. For about for about two and a half years before this case arose, he had been a member of that team and involved in drug investigations in and around the McMinnville area. On this particular occasion, Desmond was on patrol at 8:30 in the morning when he saw Williamson, someone he knew from past drug arrests and investigations, drive a car into a parking lot between two apartment complexes in McMinnville. Desmond knew that Williamson's license was suspended, so he followed the car into the parking lot. Williamson parked in an angled parking space near one of the apartment complexes; Desmond parked in the middle of the parking lot some distance away (and so that his patrol car was not blocking Williamson's car from leaving) without activating his overhead lights. Desmond saw Williamson and two passengers—defendant and Sears—get out of the car. Desmond got out of his car and “said something to get [Williamson's] attention,” knowing that Williamson would recognize Desmond if Desmond said something to him. In addition to knowing Williamson, Desmond also recognized defendant from past contacts and arrests involving drug activities, and he knew defendant by name. At that point, Desmond did not say anything to defendant or the other passenger because Desmond's only purpose in pulling into the parking lot was to talk to Williamson. As Desmond and Williamson began talking, defendant and Sears walked away and went to the door of one of the apartments.

Less than a minute later, defendant and Sears returned to Williamson's car, apparently because no one answered the door at the apartment. When they returned, the two were, in Desmond's words, “just milling around” the car. Desmond, meanwhile, was still dealing with Williamson, who Desmond thought was on probation. Desmond had called dispatch to verify Williamson's license status. Desmond also called the probation department to check whether Williamson's probation officer had any “interest” in the fact that Williamson was in the area of apartments known to have drug activity and was in the company of people known to be involved with drugs and who had gone to an apartment with a history of drug activity, all of which likely violated the conditions of Williamson's probation.

While Desmond waited for a response from the probation officer, and while defendant and Sears were “kind of just hanging out at the car,” Desmond spoke briefly with defendant and asked him if he was “still on probation.” Defendant told Desmond that he was not. Desmond then asked both defendant and Sears whether they had their identification on them and whether Desmond could look at that identification. Both defendant and Sears handed Desmond their licenses. Defendant took them, wrote down the license numbers, and handed the licenses back. Desmond estimated that he had the licenses for “at the most” between 30 seconds and a minute before returning them to defendant and Sears.

In defendant's case, Desmond wanted to confirm that defendant was not on probation and could have done that with defendant's name alone, which Desmond already knew. But Desmond nevertheless asked for the identification because dispatch can check the information more quickly with information from the license. As soon as Desmond handed the licenses back to defendant and Sears, he walked over to his patrol vehicle, leaving defendant and Sears by Williamson's car. Desmond called dispatch and confirmed that, as defendant had told him, defendant was no longer on probation. While Desmond was in his patrol car, defendant, Williamson, and Sears “were just standing around the vehicle, as they were before, kind of just walking around[.]”

After making the call to dispatch, Desmond returned to where the three were standing. Desmond asked Sears if he would consent to be searched. Sears agreed. Desmond was interested in only a “non-intrusive” search and asked Sears if he would empty his pockets, which “he did willingly.” During that search, a second officer, Officer Fessler arrived. Fessler was there only as a “cover officer” and simply stood by, observing, without otherwise assisting Desmond. The only item of interest that Sears took from his pockets was a black film canister. Desmond asked Sears if he could look inside it, and Sears, in response, opened the canister for Desmond. It appeared to have just water in it. Sears told Desmond that he had found the canister on the ground “on the way to the apartment complex.” Desmond knew that intravenous drug users often carry water with them, but there was nothing illegal about the canister and what it contained, and Desmond was not concerned with it. While Desmond examined what Sears had in his pockets, Desmond did not pay close attention to defendant or to what he was doing.

When Desmond was done examining the film canister and searching Sears's pockets, Desmond returned briefly to his patrol car. He then walked back to Williamson's car. Defendant, by then, had moved to the trunk area of the car and was either looking in the open trunk or getting something out of it. Desmond thought that defendant was getting something from the trunk because he realized—and Desmond himself may have told defendant—that the car was going to be towed. Willamson and Sears, meanwhile, remained on the passenger's side towards the front of the car, where they were—to use Fessler's term—“chitchatting” with Fessler.

Desmond approached defendant and told defendant that he was right about his probation status. Desmond then asked defendant for consent to search him. Defendant responded by telling Desmond that he would empty his pockets for him. Defendant first showed Desmond what was in his right pocket; nothing in it was of interest to Desmond. Defendant then removed a small, oval-shaped, plastic container from his left pocket. Desmond asked defendant what was in it, and defendant said “some diamonds.” Desmond asked if defendant would open it. Rather than simply show Desmond the contents, defendant responded by opening the container “just slightly” and cupping it in his hand, so that some but not all of what was inside could fall out. What fell out was mostly some “odd jewelry-type items” and what could have been diamonds (Desmond could not tell if they were real). Defendant appeared to be concealing something else in the container by not letting it fall out. Defendant then put the container back in his left pocket.

Desmond asked defendant if he would let Desmond look in the container and in his left pocket, where defendant had put the container. Defendant agreed, and reached into the pocket. He did not take the container out immediately, but instead moved his hand around in the pocket. When Desmond asked him what he was doing, defendant said that he wanted to make sure there was no more jewelry in the container. When Desmond asked again if he could see the container, defendant pulled it out of his pocket. While keeping Desmond to his left, defendant turned away from Desmond and seemed to transfer something from his left hand to his right while keeping the container in his left hand. Defendant then opened and showed the container to Desmond, proving that it was empty.

Fessler during that time was standing on defendant's right side, about five or six feet away, near the rear quarter panel of the car. Although he had been conversing with Sears and Williamson and only occasionally glancing at Desmond and defendant, Fessler fixed his attention on defendant when he noticed some of the odd movements that defendant was making. Fessler in particular saw defendant “blade” the right side of his body away from Desmond, blocking Desmond's view of defendant's right side. Fessler then saw defendant put his right hand in his right pocket and pull it out in a fist. As defendant did that, Fessler noticed “a little small clear plastic [b]aggie * * * sticking out the bottom” of defendant's fist. Fessler suspected that the baggie contained illegal drugs and asked defendant what was in his hand. Defendant started to move away from Fessler, who responded by grabbing defendant's right wrist. After a struggle, defendant finally opened his hand, which led to the officers' discovery of two plastic baggies containing methamphetamine.

As...