State v. Review
Decision Date | 07 January 2013 |
Docket Number | SC S058019 (Control), S058318).,(CC C071116CR; CA A136163 |
Citation | 313 P.3d 1084,354 Or. 392 |
Parties | STATE of Oregon, Respondent on Review, v. Steven Nicholas BACKSTRAND, Petitioner on Review. State of Oregon, Petitioner on Review, v. Steven Nicholas Backstrand, Respondent on Review. |
Court | Oregon Supreme Court |
OPINION TEXT STARTS HERE
On review from Court of Appeals.*
Anna Marie Joyce, Assistant Attorney General, Salem, argued the cause for petitioner on review State of Oregon. On the brief were John R. Kroger Attorney General; Mary H. Williams, Solicitor General; and Jamie K. Contreras, Assistant Attorney General.
Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for respondent on review Steven Nicholas Backstrand. With him on the brief was Peter Gartlan, Chief Defender.
In two recent cases, we have held that officers who had lawfully seized individuals for purposes of investigation also could, consistently with Article I, section 9, of the Oregon Constitution, request and verify the individuals' identifications. In particular, in State v. Fair, 353 Or. 588, 609, 302 P.3d 417 (2013), we held that an officer may temporarily detain a person whom the officer reasonably suspects of being a material witness to or victim of a recent or ongoing crime. We further held that, under the circumstances of that case, the officer constitutionally could request the witness's identification and check for outstanding warrants against her, in an attempt to verify the witness's identity and to obtain information otherwise relevant to the officer's investigation. Id. at 614, 302 P.3d 417. After deciding Fair, we decided State v. Watson, 353 Or. 768, 305 P.3d 94 (2013). In Watson, we held that an officer, in the course of a lawful stop for a traffic offense, may request the driver's identification and check the status of his or her driving privileges. Id. at 782, 305 P.3d 94.
This case presents yet a third variation on the issues that arise when police seek identification from persons with whom they deal in the course of their work: Does an officer's request for and verification of a person's identification, in and of itself, convert an encounter that is not a seizure for constitutional purposes into one that is? As we explain, we hold that the answer is no. Consequently, we reverse the decision of the Court of Appeals and affirm the judgment of the trial court.
Deputy Gerba was monitoring a “triple-X” store that sells adult sexual materials (toys, videos, clothing, etc). The store had been robbed several times in the recent past, and law enforcement had made frequent security checks on it as a result. On the particular night involved in this case, Gerba was “sitting on” the store, meaning that he was monitoring it from outside and across the street, as well as by occasionally going inside.
At about 1:00 a.m., Gerba was inside the store at the same time that defendant and his girlfriend were inside shopping. Gerba thought that defendant looked “pretty young” and believed he might be under the posted 18–year minimum age to be in the store. Gerba knew that, if they were minors, as he suspected, the store could “get in trouble” because of the “pretty explicit stuff” that was readily visible to anyone inside.1 Gerba therefore approached the two and asked their ages. Defendant answered that he was 22. Gerba asked both defendant and his girlfriend if they had any identification, and they gave him their driver licenses. Gerba called dispatch to verify the validity of the licenses.2 After having the licenses for a total of 10 to 15 seconds, Gerba returned them to defendant and his girlfriend and wished them a good day. 3 Gerba then left the store to continue to monitor it from outside, while defendant and his girlfriend continued to shop inside.
Gerba had not asked dispatch to check on anything other than the validity of the licenses, such as outstanding warrants. Even so, dispatch called Gerba back to advise him that defendant's license was suspended and defendant was on probation in another county. That call came about a minute after Gerba returned the licenses, as Gerba was leaving the store. Gerba continued across the street, where he maintained his security watch on the store. After about five minutes, defendant and his girlfriend walked out of the store, got in their car, and left, with defendant driving. Based on his belief that defendant was driving with a suspended license, Gerba pursued them, initiated a traffic stop, and arrested defendant. Defendant was later tried for driving while revoked (his license actually had been revoked, rather than suspended).
Before trial, defendant moved to suppress all evidence from his encounter with Gerba in the store ( i.e., his identity and the status of his driving privileges), arguing that Gerba had unlawfully “stopped” defendant either when he requested defendant's identification or, in the alternative, when he called dispatch to verify defendant's identification. The state responded that the encounter between Gerba and defendant had not amounted to a seizure or, if it had, Gerba's actions were supported by his reasonable suspicion that defendant was not old enough to be inside the age-restricted store.
The trial court denied defendant's motion, concluding that Gerba had not seized defendant. The trial court reasoned that the time involved—10 to 15 seconds—was de minimis and Gerba had not investigated defendant for any possible wrongdoing on his part, but rather, had attempted to determine if he was a minor as a protective measure, in which case he should not have been in the adult-only store.4 The trial court concluded that, in that situation, a reasonable person in defendant's position would not feel significantly restrained by the officer's request for, and verification of, defendant's identification. After a bench trial, the trial court found defendant guilty of driving while revoked.
On appeal, the Court of Appeals concluded that, from an objective standpoint, defendant had been seized. State v. Backstrand, 231 Or.App. 621, 632, 220 P.3d 748 (2009). The court was divided on its rationale, however, particularly as to the point at which the seizure had objectively occurred. The lead opinion concluded that, when Gerba called dispatch, a reasonable person in defendant's position would have believed that he was not free to leave while the call was being made. Id. at 626, 220 P.3d 748. The lead opinion remanded to the trial court to determine whether defendant also subjectively felt that he was not free to leave at that point. Id. at 632, 220 P.3d 748.5 The lead opinion concluded that, if the trial court were to find that defendant subjectively felt restrained, then Gerba had unlawfully seized defendant.6Id. at 625–26, 220 P.3d 748. The lead opinion further concluded that if, on remand, the trial court determined that defendant subjectively felt restrained, the evidence of the status of defendant's driving privileges should be suppressed. Id. at 632, 220 P.3d 748.
A concurring opinion took a different view on the “timing of the operative ‘stop.’ ” Id. at 633, 220 P.3d 748 (Haselton, P.J., concurring). According to the concurrence, Gerba seized defendant “when, in response to Gerba's inquiries, defendant produced, and Gerba took, defendant's driver's license.” Id. Under that view, the concurrence agreed that suppression was required if defendant subjectively felt restrained once he handed his license to Gerba. Id. at 642, 220 P.3d 748. Finally, according to a dissenting opinion, the lead opinion was correct that Gerba had seized defendant when Gerba made the call to dispatch, but suppression was not required. Id. at 643, 220 P.3d 748 (Deits, S.J., dissenting).7
Both defendant and the state sought review, and we originally held the petitions pending our decision in State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (2010). After issuing our decision in Ashbaugh, we allowed both the petitions. On review, the state renews its assertion that defendant was not seized at any point during his encounter with Gerba. In the state's view, Gerba's actions in requesting and verifying defendant's identification were not a sufficient restraint on defendant's liberty or freedom of movement to amount to the seizure of defendant. Defendant argues the converse, urging that he was seized either when Gerba requested and obtained his identification, or when Gerba called dispatch, because a reasonable person in defendant's position would have believed that he was not free to continue shopping until the officer's investigation was complete.
As we explained at the outset, the central question that this case presents is: Does an officer's request for and verification of a person's identification, in and of itself, convert an encounter that is not a seizure for constitutional purposes into one that is? The general principles that guide our answer to that question are well-settled and were discussed at some length in our two most recent “stop” cases, Fair, 353 Or. at 593–95, 598–603, 302 P.3d 417, and Watson, 353 Or. at 773–74, 778–80, 305 P.3d 94. For our analysis here, it is helpful to summarize those principles.
Article I, section 9, guarantees individuals the right to be “secure in their persons * * * against unreasonable search, or seizure.” As this court has long recognized, encounters between law enforcement officers and citizens are of an “infinite variety.” State v. Holmes, 311 Or. 400, 406, 813 P.2d 28 (1991). Of that infinite variety, “only some implicate the prohibition in Article I, section 9, against unreasonable ‘seizures.’ ” Ashbaugh, 349 Or. at 308, 244 P.3d 360. As we have described in numerous cases:
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