State v. Thier

• Decision Date: 16 November 2022
• Docket Number: A174999
• Citation: 322 Or.App. 680,521 P.3d 175
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Alexandra Ann THIER, Defendant-Appellant.
• Court: Oregon Court of Appeals

322 Or.App. 680

521 P.3d 175

STATE of Oregon, Plaintiff-Respondent,

v.Alexandra Ann THIER, Defendant-Appellant.

A174999

Court of Appeals of Oregon.

Submitted April 11, 2022.

November 16, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Peter G. Klym, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Salem, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Powers, Presiding Judge, and Lagesen, Chief Judge, and Hellman, Judge.

POWERS, P. J.

Defendant appeals her convictions for unlawful possession of a firearm, ORS 166.250, and escape in the third degree, ORS 162.145, assigning error to the trial court's denial of her motion to suppress evidence. On appeal, defendant renews her argument that she was unjustifiably "seized" or "stopped" for purposes of Article I, section 9, of the Oregon Constitution. She contends that, under the totality of the circumstances, including the officer's actions and words, it was reasonable for her to believe that she was under criminal investigation, and thus, that her freedom of movement was significantly restrained. As explained below, we conclude that defendant was not seized; thus, the trial court did not err in denying defendant's suppression motion. Accordingly, we affirm.

We review the denial of a motion to suppress for legal error. State v. Kamph , 297 Or App 687, 689, 442 P.3d 1129 (2019). In so doing, a trial court's findings of historical fact are binding on appellate courts if there is constitutionally sufficient evidence in the record to support those findings. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). Because determinations of whether a person has been seized under Article I, section 9, are factually driven, and "a slight difference in circumstances could make what was considered a nonrestrictive encounter in one case a stop in another," we begin with a brief recitation of the facts. State v. Reyes-Herrera , 369 Or. 54, 67, 500 P.3d 1 (2021).

Oregon State Police Trooper Nelson was patrolling a truck stop where frequent criminal activity occurred when he noticed defendant's car parked with the back-end open, a visor covering the front windshield, and the driver's side door open. Wearing his uniform and badge, Nelson got out of his car and approached just as defendant stepped out of the driver's side of her car. Nelson greeted defendant, "asked her what was going on," and told her that law enforcement "had a lot of problems in the area." He asked defendant if she "had her ID with her, with her by chance." Defendant said that she did and reached into the car and grabbed her purse off of the front passenger seat. As defendant was looking through her purse for her ID, Nelson noticed a "meth pipe in open view" with crystalline residue on the passenger seat where the purse had been. After seeing the pipe, Nelson handcuffed defendant and placed her in the back of his vehicle. Nelson conducted a search incident to arrest and found a loaded handgun in defendant's purse. Defendant later escaped from Nelson's vehicle but was apprehended soon afterward.

Encounters between law enforcement and citizens fall into one of three categories that correlate the degree of intrusiveness to the degree of justification for the intrusion. State v. Backstrand , 354 Or. 392, 399, 313 P.3d 1084 (2013) (describing the spectrum to include a "mere encounter" (which requires no justification), a stop or seizure (which generally requires reasonable suspicion), and an arrest (which requires probable cause)). Both parties agree that, upon approaching defendant and asking for her ID, Nelson did not have reasonable suspicion or probable cause. Thus, this case turns on whether Nelson's interaction with defendant amounted to a stop or seizure.

Under Article I, section 9, a seizure occurs when "(1) a law enforcement officer intentionally and significantly interferes with an individual's liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted." Reyes-Herrera , 369 Or. at 58, 500 P.3d 1. We have emphasized that an officer's actions are not to be analyzed independently; rather, the actions and words of the officer are viewed in their totality to determine whether a reasonable person would believe that the officer significantly deprived the individual of his, her, or their freedom of movement. State v. Charles , 263 Or App 578, 585-94, 331 P.3d 1012 (2014). Thus, our analysis considers the sum of the content of the officer's questions, the manner of asking them, the officer's actions, and the circumstances under which the actions are taken. State v. McKibben , 320 Or App 26, 30–32, 512 P.3d 464 (2022).

Nelson made statements and asked questions of defendant that, defendant argues, significantly restricted her freedom of movement and constituted a seizure. Specifically, Nelson greeted defendant, "asked her what was going on," told her that they "had a lot of problems in the area," and asked if she had her ID "with her by chance." The Oregon Supreme Court has explained that law enforcement officers are free to approach people in public spaces and request information or question them—without it amounting to a seizure for purposes of the state constitution—even where the person is discomforted by the officer's presence. State v. Anderson , 354 Or. 440, 450, 313 P.3d 1113 (2013) (observing that law enforcement officers remain free to approach persons on the street or in public places without being called upon to articulate a certain level of suspicion in justification "even though the person approached may be discomforted by an officer's inherent authority as such and, for reasons personal to the individual, feel inclined or obliged to cooperate with the officer's request" (citing Backstrand , 354 Or. at 400-02, 313 P.3d 1084 )). Such an encounter between an officer and individual may become a stop, however, where the officer "makes a direct and unambiguous accusation" that the individual committed a crime. State v....