State v. Radtke

JurisdictionOregon
PartiesSTATE of Oregon, Plaintiff–Respondent,v.Stacy Quinn RADTKE, Defendant–Appellant.
Citation242 Or.App. 234,255 P.3d 543
Docket Number No. 06C49184; A136543.
CourtOregon Court of Appeals
Decision Date20 April 2011

OPINION TEXT STARTS HERE

Ryan O'Connor, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Travis Eiva, Deputy Public Defender, Legal Services Division, Office of Public Defense Services.Samuel A. Kubernick, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.Before ORTEGA, Presiding Judge, and SCHUMAN, Judge, and SERCOMBE, Judge.SCHUMAN, J.

This case is before us on remand from the Supreme Court for reconsideration in light of State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (2010). In our first opinion, we held that a police officer unlawfully stopped defendant if she believed that her freedom had been significantly impaired when, without suspicion that she was involved in criminal activity, the officer asked for and received her name and date of birth, wrote that information in a notebook, asked her if she was carrying anything illegal, and, when she said that she was not, asked for and received consent to search her. Defendant argued that she was stopped when the officer recorded her name and date of birth and, if not at that point, then—at the latest—when he asked for consent to search after her denial of carrying contraband. We concluded that, under the reasoning in our opinion in State v. Ashbaugh, 225 Or.App. 16, 200 P.3d 149 (2008), rev'd, 349 Or. 297, 244 P.3d 360 (2010), defendant's freedom was impaired when the officer asked for consent to search. For that reason, we did not address her argument regarding the taking of her name and birth date. Our reasoning in Ashbaugh did not survive Supreme Court review. On remand, we must now address the question that we avoided earlier: Was defendant seized when the police officer asked for, received, and wrote down her name and date of birth? We conclude that, under the totality of the circumstances in this case, she was. We therefore reverse and remand.

As related in our earlier opinion, the facts are as follows:

Marion County Sheriff's Deputy Hickam was on a drug saturation patrol in Salem when he saw a man riding a bicycle toward a restaurant. Hickam recognized the man and approached him in the restaurant parking lot. The man told Hickam that he had come to the restaurant to meet a ‘lady friend’ named Stacy. The man consented to a search. Hickam found methamphetamine in the man's backpack, whereupon he arrested him and put him in the back seat of the patrol car.

“Hickam was standing at the open back door of the patrol car and talking to the man when defendant rode her bicycle into the parking lot and approached the entrance to the restaurant, approximately 20 feet from the patrol car. Hickam recognized her as ‘Stacy,’ the person whom the arrested man intended to meet. Hickam asked her, ‘Hey, can I talk to you for a second?’ and motioned with his hand for her to ‘come over to talk.’ He used a normal tone of voice and did not physically interfere with defendant or impede her movement. Defendant stopped her bicycle and ‘kind of stood with her bicycle in her hands and looked back towards [Hickam] and said, “What's going on?” She then ‘kind of walked her bike to the front of [the] patrol vehicle.’ Hickam walked up to meet defendant.

“Based on defendant's bloodshot, glassy eyes and dilated pupils, Hickam believed that she was under the influence of a stimulant. He did not, however, believe the influence of the stimulant was sufficient to justify a further investigation, nor did he believe that she had committed any other crime. Nonetheless, he asked defendant if she had an ID on her that [he] could take a look at.’ Defendant told him her name and date of birth, which Hickam wrote down. He then asked defendant if she had ‘any drugs, weapons, [or] anything illegal on her.’ When defendant said that she did not, Hickam asked if he ‘could check her person and pockets for any drugs.’ Defendant replied, ‘I don't want you touching me, but I will show you.’ She began to show Hickam the contents of her pockets. In the process, she attempted to extract and conceal a plastic baggie containing a white substance. Hickam saw it and believed that it was methamphetamine. He then took defendant's wrist, and the baggie fell from her hand. Hickam arrested defendant. The substance was later determined to be methamphetamine.”

State v. Radtke, 230 Or.App. 686, 688–89, 217 P.3d 220 (2009), vac'd and rem'd, 349 Or. 663, 249 P.3d 1281 (2011).

In our opinion, we relied on State v. Toevs, 327 Or. 525, 964 P.2d 1007 (1998), for the proposition that a suspect is seized when “a reasonable person in [the] defendant's position could have believed” that she was not free to simply walk away from an encounter with a police officer. Radtke, 230 Or.App. at 690, 217 P.3d 220 (quoting Toevs, 327 Or. at 536, 964 P.2d 1007) (emphasis added). We also relied on the familiar definition of a “stop” from State v. Holmes, 311 Or. 400, 813 P.2d 28 (1991), where the court held that a person is stopped

(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 in the circumstances.”

Radtke, 230 Or.App. at 690, 217 P.3d 220 (quoting Holmes, 311 Or. at 409–10, 813 P.2d 28). In its Ashbaugh opinion, however, the Supreme Court disavowed Toevs as an “anomaly,” 349 Or. at 316, 244 P.3d 360 (“The use of the phrase ‘could have believed’ * * * clearly is an anomaly.”), and abandoned the subjective aspect of the Holmes definition of a “stop” as “unworkable,” id. at 312, 244 P.3d 360 (“Quite simply, we think that at least one component of the Holmes definition is unworkable, and this court since Holmes has proceeded as if the unworkable component were not there.”). In place of the old standards, the court held:

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

Id. at 316, 244 P.3d 360. Applying that standard, the court held that the defendant was not stopped. Allowing that “it is possible to restrict a person's liberty and freedom of movement” without physically restraining the person, the court held that neither the police officer's questions nor his manner or actions involved a “show of authority.” Id. at 317, 244 P.3d 360. The officer's interaction with the defendant was ‘relaxed and nonconfrontational,’ * * *. Moreover, the officers had returned defendant's identification to her * * *.” Id. at 317, 244 P.3d 360.

We are now left to confront the question whether the fact that the officer asked for and obtained defendant's name and date of birth, then wrote that information in a notebook but did not “run” that information to determine whether there was some reason to detain her—when combined with other aspects of the situation—amounted to a stop as now defined, that is, whether a reasonable person under the totality of the circumstances would believe that her liberty or freedom of movement had been intentionally and significantly restricted.1 To clarify, our inquiry is not whether taking defendant's information was by itself a stop; it is whether that action, combined with the immediately subsequent questioning, was a stop.

In Ashbaugh, the Supreme Court emphasized that the crucial question in determining if a mere encounter has become a constitutionally significant seizure is whether, by word or deed, a law enforcement authority has manifested a ‘show of authority’ that restricts a person's ‘freedom of movement.’ Id. at 317, 244 P.3d 360 (quoting State v. Rodgers/Kirkeby, 347 Or. 610, 622, 227 P.3d 695 (2010)). In earlier cases, however, the court has also held that a reasonable person would perceive a limitation on his or her freedom if the person knew that he or she was the subject of a criminal investigation. E.g., State v. Thompkin, 341 Or. 368, 378–79, 143 P.3d 530 (2006) ([W]e find it doubtful that a reasonable person in defendant's position would think that he or she was free to leave at a time when that person was the investigatory subject of a pending warrant check and was being questioned about illegal activity.”); State v. Hall, 339 Or. 7, 19, 115 P.3d 908 (2005) ([W]e find it difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check.”...

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