State v. Thompson

• Decision Date: 13 August 2014
• Docket Number: C100064CR; A145643.
• Citation: 333 P.3d 1125,264 Or.App. 754
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Debra Francis THOMPSON, Defendant–Appellant.
• Court: Oregon Court of Appeals

264 Or.App. 754

333 P.3d 1125

STATE of Oregon, Plaintiff–Respondent,

v.Debra Francis THOMPSON, Defendant–Appellant.

C100064CR; A145643.

Court of Appeals of Oregon.

Submitted on Remand April 16, 2014.

Decided Aug. 13, 2014.

Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the supplemental brief.

Before WOLLHEIM, Presiding Judge, and NAKAMOTO, Judge, and SCHUMAN, Senior Judge.

SCHUMAN, S.J.

This case is before us for the second time. In our first opinion, State v. Thompson, 254 Or.App. 282, 293 P.3d 1082 (2012), we held that the interaction between defendant and police officers was a seizure of her person and that it was not justified by reasonable suspicion, a warrant, or anything else. Consequently, we held that the trial court erred in denying her motion to suppress evidence that derived from that unlawful seizure. We reversed and remanded. The Supreme Court accepted the state's petition for review and held the case in abeyance pending that court's resolution of several cases involving the question of when a police officer's request for, and retention of, a citizen's identification amounted to a constitutionally significant seizure. After the court decided those cases—State v. Backstrand, 354 Or. 392, 313 P.3d 1084 (2013); State v. Highley, 354 Or. 459, 313 P.3d 1068 (2013); and State v. Anderson, 354 Or. 440, 313 P.3d 1113 (2013)—the court vacated our decision and remanded it to us for reconsideration. State v. Thompson, 354 Or. 837, 325 P.3d 738 (2014). On reconsideration, we adhere to our earlier decision, albeit for somewhat different reasons. We therefore reverse and remand.

The facts, as we related them in our first opinion, are as follows:

“After what defendant described as a stressful day, she was visiting a friend, L. While she was sitting on a couch in L's apartment, three members of the Washington County Sheriff's Department, in plain clothes but displaying badges, arrived. They suspected that L was involved in theft and drugs, and they wanted to conduct a so-called ‘knock and talk,’ that is, a consensual interview at the suspect's residence. While two of the officers interviewed L inside her apartment, a third, Monk, asked defendant to step outside. Believing that she had no right to refuse—‘He's an officer, he had a badge and he was asking me to do something. So I just figured that I should do it’—defendant complied. Monk assumed a position in the apartment doorway facing outward so as not to block defendant if she wanted to walk away. He asked defendant for identification, which she provided. He wrote down her name and date of birth, and then may or may not have returned the identification to defendant; he testified at the hearing that he could not remember, and the only other witness—defendant—was not questioned about that fact.

“Monk then told defendant that he and the other officers were at the apartment on a drug-related investigation, and he asked defendant what she was doing there. She replied that she was visiting. Monk then asked her if she used drugs, and, when defendant said that she did not, he asked if she had any drugs or weapons in her purse. She said that she did not. Monk then asked if he could search her purse. He did not tell her that she had a right to refuse the request. Without orally responding, defendant opened the purse and showed Monk its contents. He then asked if he could look in it himself, and she replied that he could. When he did, he saw a small pink coin purse that he suspected contained drugs. He opened it, and saw what he believed to be methamphetamine. When he asked defendant where she had obtained it, she said she ‘got it from some guy in a bar,’ but, when pressed, she said that she had obtained it from L. Monk subsequently asked one of his partners to contact ‘dispatch’ and ‘run’ defendant's information. The record does not disclose what, if anything, he learned. At no time during the encounter did defendant ask to leave or attempt to leave, nor did Monk inform her that she could do so, although he testified that, had she made that request, he would not have objected and, had she walked away, he would not have pursued her. He also testified that, when he asked for consent to search her purse, he did not suspect her of criminal activity. The court expressly found Monk's testimony to be credible.”

254 Or.App. at 284–85, 293 P.3d 1082 (footnote omitted).

To those facts, we applied what we understood at the time to be the principles that determined when an encounter between a law enforcement officer and a person was sufficiently intrusive so as to implicate the person's right to be free from unreasonable seizures—in other words, when the encounter ceased being mere conversation, and became instead a “stop” or an “arrest.” See State v. Holmes, 311 Or. 400, 410–11, 813 P.2d 28 (1991), abrogated on other grounds by State v. Ashbaugh, 349 Or. 297, 309, 244 P.3d 360 (2010) (distinguishing between “mere conversation,” which does not implicate Article I, section 9, concerns, from stops and arrests, which do). Quoting from and summarizing Ashbaugh, 349 Or. at 309, 244 P.3d 360, the most recent and definitive case on the subject at that time, we stated:

“ ‘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.’ “ Ashbaugh, 349 Or. at 316 (emphasis in original; footnote omitted). ‘The thing that distinguishes “seizures” * * * from encounters that are “mere conversation” is the imposition, either by physical force or through some “show of authority,” of some restraint on the individual's liberty.’ Id. at 309 . * * * Defendant maintains that a reasonable person in her situation would have believed that her freedom of movement had been impaired by a show of authority—that, in essence, a person in such circumstances would not feel free to leave. The state disagrees. The parties focus on the fact that, at the time of the request, Monk had asked for and obtained defendant's identification card and written down her name and date of birth.”

Thompson, 254 Or.App. at 286, 293 P.3d 1082 (first ellipses in Ashbaugh; second added). We then recited that, according to our reading of Supreme Court opinions, there were two police actions that always amounted to a seizure: First, if the officer takes a person's identification card, the person is per se stopped until the card is returned, State v. Painter, 296 Or. 422, 425, 676 P.2d 309 (1984), because, while the officer has the person's card, the person's freedom to leave has been impaired, State v. Hall, 339 Or. 7, 19, 115 P.3d 908 (2005); and second, if the officer takes the person's identification information and radios it to “dispatch” or otherwise indicates to the person that the information will be used in a law enforcement investigation, the person is always stopped because a person who knows that he or she is in that situation would understand that he or she cannot simply leave the scene, id. “Beyond these precepts, however,” we noted, “the cases reveal only that taking a person's identification and writing it down * * * is one factor to consider[.]” Thompson, 254 Or.App. at 287, 293 P.3d 1082. We acknowledged that “[w]hether a seizure has occurred is a ‘fact-specific inquiry into the totality of the circumstances of the particular case.’ ” Id. at 286, 293 P.3d 1082 (quoting Holmes, 311 Or. at 408, 813 P.2d 28).

We also identified some of the other circumstances that factored into the “totality” determination: asking a person to change his or her location, questioning the person about his or her participation in unlawful activity, interviewing a person in the context of an ongoing drug investigation of another person, and asking a woman for consent to search her purse. Id. at 289, 293 P.3d 1082. Applying these precepts, we concluded that defendant was seized for purposes of Article I, section 9.

Backstrand, Highley, and Anderson demonstrated that our survey of the Article I, section 9, landscape was erroneous in several respects. Most significantly, those cases repeatedly emphasized that neither briefly holding a person's identification card, nor calling in the person's identification information to check for warrants, necessarily and always meant that the person was stopped. Backstrand, 354 Or. at 416, 313 P.3d 1084 (officer does not stop a person when the officer takes the person's identification card and retains it for a reasonable time); Highley, 354 Or. at 472, 313 P.3d 1068 (“ Hall should not be understood, as it appears to have been understood by some advocates and by the Court of Appeals, to stand for the proposition that an officer's request for identification and a check of that identification, either to determine its validity or the status of the person who tenders it, is a per se stop.”).¹ Indeed, with one possible exception described below, the court in Backstrand held that determining whether an encounter is or is not a stop always requires a fact-specific inquiry, and that...