State v. Reyes-Herrera

                                        54

  Argued and submitted September 22; decision of Court of Appeals reversed,
   judgment of circuit court reversed, and case remanded to circuit court for
                    further proceedings December 9, 2021


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                 SAUL REYES-HERRERA,
                    Petitioner on Review.
          (CC 18CR64910) (CA A170594) (SC S068223)
                                    

     A police officer saw defendant taking money from another individual and, sus-
pecting that defendant had been participating in a drug deal, engaged defendant
in conversation and ultimately asked for consent to search him. Defendant, who
is not a native English speaker, consented, and, in the ensuing search, the officer
discovered a quantity of methamphetamine in his pocket. Defendant moved to
suppress the evidence of the drugs, arguing that he had been stopped without
reasonable suspicion in violation of Article I, section 9, and that the discovery of
the drugs was the product of that unlawful seizure. The trial court denied defen-
dant’s motion to suppress, concluding that the officer had not stopped defendant
and that defendant had consented to the search of his pocket, and it convicted
him of the charge of unlawful possession of methamphetamine. Held: When the
officer approached defendant, questioned him, and asked for consent to a search
without reasonable suspicion that he had engaged in criminal activity, the officer
seized defendant in violation of Article I, section 9, of the Oregon Constitution,
because, in the totality of the circumstances, a reasonable person in defendant’s
position would have believed that his or her liberty was restricted.
    The decision of the Court of Appeals is reversed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.



    En Banc
    On review from the Court of Appeals.*
   Joshua B. Crowther, Chief Deputy Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
   Paul L. Smith, Deputy Solicitor General, Salem, argued
the cause and filed the brief for respondent on review. Also
______________
    * On appeal from Washington County Circuit Court, Eric Butterfield, Judge.

, 

 (2020).
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on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   Kelly Simon, Portland, Crystal Maloney, Brooklyn,
New York, Alexander A. Wheatley, Portland, and Thomas
Stenson, Portland, jointly filed the brief for amici curiae
ACLU of Oregon and Interfaith Movement for Immigrant
Justice, Oregon Justice Resource Center, and Disability
Rights Oregon.
  WALTERS, C. J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
56                                          State v. Reyes-Herrera

           WALTERS, C. J.
         Article I, section 9, of the Oregon Constitution pro-
tects individuals from being stopped by police who lack rea-
sonable suspicion of criminal activity. In this case, we hold
that an officer stopped defendant in violation of that consti-
tutional provision.
                           BACKGROUND
          We begin with the uncontested facts taken from the
transcript of defendant’s stipulated facts trial. On a week-
day afternoon in September 2018, a Hillsboro police officer,
Delepine, drove his patrol car by an alleyway and saw two
men walking away from each other. One man was counting
money, and, when he saw the officer, the man “put the money
in his pocket and kind of put his head down [and] looked a
little nervous.” The other man—defendant—was walking in
the other direction. Delepine believed that the two men had
“just done some sort of a hand-to-hand transaction,” which
he thought was “possibly a drug deal.” Delepine then drove
into the alleyway, ahead of where defendant was walking,
and parked the patrol car. Delepine did not activate his over-
head lights or his siren. Instead, he got out of his car, “took a
couple steps towards [defendant], waved and said hi.”
        Delepine was in uniform. He approached defendant
and addressed him as he usually did when encountering cit-
izens while on patrol:
     “I will tell the person, you know, you’re not in trouble, you’re
     free to leave. Introduced myself. Just try to make it as calm
     and casual as possible.”
Delepine told defendant what he had just observed:
        “I saw this guy—you guys were walking away from each
     other, looked like you’d just been face to face. This guy was
     counting his money.”
And then Delepine asked defendant: “Like did you buy drugs
from this guy[?]” Defendant answered, “no.”
        From defendant’s response, Delepine perceived that
defendant seemed to be a “native Spanish speaker” who was
having difficulty understanding the questions. Delepine
then said, “no drogas,” which was his “rough understanding
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of ‘no drugs’ in Spanish.” Defendant again responded, “no,”
and he “patted his pant pockets,” which, to Delepine, “kind
of made it seem like he understood what was being asked.”
         Delepine then asked, in English, if he “could search
[defendant] for drugs,” while, at the same time, “kind of
motion[ing] like a search”—that is, gesturing as if he were
patting someone down. Defendant responded in Spanish,
“sí.”1 Then, while pointing to defendant’s pockets, Delepine
asked in Spanish, “puedo mirar,” which Delepine understood
to mean, roughly, “can I look.” Defendant again responded,
“sí,” and “put his hands up on his head.”
         At that point, Delepine began “controlling” defen-
dant’s hands—placing defendant’s hands behind his back to
immobilize him—and, while doing so, searched defendant’s
pockets. Delepine reached into the coin pocket of defen-
dant’s right front pants pocket and found “two baggies that
contained a clear crystal substance” that he believed to be
methamphetamine.2
         Delepine then arrested defendant, and the state
charged him with one count of unlawful possession of meth-
amphetamine. Defendant moved to suppress the evidence
of the drugs discovered in his pocket, arguing that he had
been stopped without reasonable suspicion in violation of
Article I, section 9, and that the discovery of the drugs was
the product of that unlawful seizure. The trial court denied
the motion to suppress, concluding that Delepine had not
stopped defendant and that defendant had consented to
the search of his pocket. Defendant waived his right to a
jury trial, and the court convicted defendant of the charged
offense.
         On appeal, defendant again argued that he had
been unlawfully stopped in violation of Article I, section 9.
Alternatively, he argued that Delepine had exceeded the
scope of his consent when he reached inside defendant’s pants
    1
      The transcript spells defendant’s response, “si,” without an accent mark.
In the context of the encounter, it is clear that the proper spelling is “sí,” with an
accent mark, which means “yes” in Spanish, and not “si,” without an accent mark,
which means “if” in Spanish.
    2
      Testing later revealed that the substance was in fact methamphetamine.
58                                     State v. Reyes-Herrera

pocket to search for drugs. The Court of Appeals affirmed
without opinion. State v. Reyes-Herrera, 

, 

 (2020). We allowed defendant’s petition for review,
and, for the reasons that follow, we reverse the decisions of
both the trial court and the Court of Appeals and remand
for further proceedings.

                          ANALYSIS

         Article I, section 9, establishes “the right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable search, or seizure.” For purposes of
Article I, section 9, a seizure occurs when (1) a law enforce-
ment officer intentionally and significantly interferes with
an individual’s liberty or freedom of movement; or (2) a rea-
sonable person, under the totality of the circumstances,
would believe that his or her liberty or freedom of movement
has been significantly restricted. State v. Ashbaugh, 

, 

 (2010).

          When an officer takes “physical action that could
be construed as threatening or coercive,” or takes a physical
position that would suggest to a person that he or she is
surrounded, the officer seizes the person. 

; see State
v. Rodgers/Kirkeby, 

, 

 (2010)
(illustrating the tactic). But it also “is possible to restrict
a person’s liberty and freedom of movement by purely ver-
bal means[.]” Ashbaugh, 

. A verbal encounter
rises to the level of a seizure “when the content of the ques-
tions, the manner of asking them, or other actions that the
police take (along with the circumstances in which they
take them) would convey to a reasonable person that the
police are exercising their authority to coercively detain the
citizen.” State v. Backstrand, 

, 

(2013). For an encounter to constitute a seizure, “something
more than just asking a question, requesting information, or
seeking an individual’s cooperation is required.” 

.
The “something more” can be such things as the content or
manner of questioning or the accompanying physical acts by
the officer, if those added factors would reasonably be con-
strued as a show of authority requiring compliance with the
officer’s request. 

 That inquiry is necessarily fact-specific
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and requires the court to examine “the totality of the cir-
cumstances.” Id. at 399.
        Here, defendant argues that Delepine did “some-
thing more” than asking defendant a question and seeking
his cooperation. Defendant asserts that Delepine accused
defendant of committing a crime—or at least indicated that
defendant was the subject of a criminal investigation—and
he contends that, in those circumstances, reasonable peo-
ple would believe that they must remain where they were
and respond. Defendant cites decisions from this court that,
in his view, demonstrate that a seizure occurs in those
circumstances.
         The state agrees that, if an officer accuses a defen-
dant of committing a crime and questions the defendant
about that crime, the officer effects a stop. However, the
state contends, an officer does not seize a person when the
officer does not actually make an accusation, but, instead,
asks questions to gain an understanding of the present cir-
cumstances. The state asserts that that is so even if the offi-
cer suspects the person of committing a crime. Like defen-
dant, the state cites our decisions for the line that it draws,
but the state argues that the facts in this case fall on the
“mere conversation” side of that line.
         Given those arguments, it is essential that we
review the cases on which the parties rely, consider the fac-
tors that led this court to the conclusions that it reached,
and apply those factors here. Before we do so, however, we
pause to note two other arguments that defendant makes,
but that we need not address today. First, defendant antici-
pates an argument from the state that an officer can dispel
an individual’s reasonable belief that the individual is obli-
gated to remain to answer questions in what would other-
wise be considered a stop by informing the individual that
he or she is “free to leave.” Defendant contends that, if the
state intends to rely on such advice, then the state has the
burden to establish, among other things, that the individ-
ual heard and understood that advice. Here, defendant sub-
mits, the state cannot meet that burden because defendant
is a non-English speaker and the record establishes that
he would not have understood any statements on which the
60                                   State v. Reyes-Herrera

state might rely to establish that he was adequately advised
that he was free to leave. Second, defendant urges us to con-
sider his language, race, and culture in deciding what a “rea-
sonable person” in defendant’s position would believe about
whether the person’s liberty was constrained. Defendant
observes that “a reasonable minority person—especially one
who does not speak English—might view even ‘a casual and
nonconfrontation[al]’ encounter initiated by police through
an entirely different lens.” We do not foreclose those argu-
ments, but, for the following reasons, we decline to consider
them here.
         Defendant’s first argument is not implicated here,
because, in arguing that Officer Delepine did not stop defen-
dant, the state does not rely on Delepine’s testimony that,
when he initially approached defendant, he told defendant
that “you’re not in trouble, you’re free to leave.” Instead,
the state characterizes the issue in this case as dependent
on whether, after that initial statement, Delepine accused
defendant of a crime or, instead, questioned him in a non-
confrontational manner. We also need not consider defen-
dant’s second argument because, as we said in State v.
K. A. M., 

, 

 (2017), “the stop
inquiry requires an evaluation of the totality of the cir-
cumstances,” and, as in K. A. M., “circumstances other than
[defendant’s language, race, and culture] lead us to conclude
that he reasonably perceived that he was not free to leave.”
         We turn, therefore, to the cases that the parties
cite, and begin with Ashbaugh, which is the primary case
on which the state relies and a case that defendant acknowl-
edges that he must distinguish. In Ashbaugh, an officer
had just arrested the defendant’s husband and approached
the defendant to tell her that her husband had asked if she
would take his belongings with her. During that noninves-
tigatory conversation, the officer also asked the defendant,
“on impulse,” if she had anything illegal in her purse. 

. When she said that she did not, the officer asked if
he could search her purse, and the defendant replied, “Yeah,
sure.” 

 The court determined that the officer had not
seized the defendant, concluding, with brief discussion, that
the officer’s request was not accompanied by any physical
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action that could be construed as threatening or coercive,
that the conversation was “relaxed and nonconfrontational,”
and that an objectively reasonable person in the defendant’s
circumstances would not believe that the officer had inten-
tionally and significantly restricted or interfered with her
liberty. Id. at 317.
         The state argues that the facts here are indistin-
guishable. The state characterizes the facts as showing
that Delepine approached defendant, explained what he
had observed, and, rather than accusing defendant of hav-
ing illegally purchased drugs, asked a question and sought
defendant’s cooperation. The state submits that whether
Delepine’s questioning amounted to an accusation was a
question of fact that we must assume the trial court decided
against defendant when it denied his motion to suppress.
         The state is certainly correct that this court is bound
by the trial court’s findings of historical facts when there is
constitutionally sufficient evidence to support them. State v.
Maciel-Figueroa, 

, 

 (2017) (so
stating). The state also is correct that we must assume that
the trial court decided historical facts necessary to its legal
conclusions in a manner consistent with those conclusions.
See Pereida-Alba v. Coursey, 

, 

(2015) (“[W]e presume that a trial court implicitly resolves
factual disputes consistently with its ultimate conclusion.”).
However, if an implicit factual finding is not necessary to
a trial court’s ultimate conclusion, then that presumption
does not apply. 

 And, in any case, the question of whether
the historical facts establish that a defendant was seized is
a question of law on which no deference to the trial court is
required.
         Whether the intermediate characterization of his-
torical facts—for instance, whether the questions asked
did or did not amount to accusations—is a legal or factual
determination may be an interesting question, but, here, we
need not reach it. We do not agree with the state that the
line between relaxed conversation and coercive questioning
depends on whether a court determines that an officer made
a declarative statement or asked a question, or whether
the officer’s comments fit the textbook definition of an
62                                   State v. Reyes-Herrera

accusation. Rather, the critical question, as we articulated
it in Ashbaugh, depends on the totality of the circumstances
and the extent to which those circumstances would lead
reasonable people to believe that their liberty or freedom of
movement has been significantly restricted. 

.
The following cases demonstrate that this court considers
myriad factors in making that legal determination and that
a seizure may occur even when an officer does not accuse an
individual of having committed a crime.
         In State v. Warner, 

, 

(1978), the court concluded that officers seized the defendant
when they informed him that they were investigating an
armed robbery, asked him to place his identification on a
table, asked him questions related to the robbery, and told
him that, once they had “clear[ed] this matter up[,] they
would be on their way.” Although the officers certainly sus-
pected that defendant had committed the robbery, they did
not explicitly accuse him of having done so, and this court
did not justify its conclusion that they had seized the defen-
dant on that basis. 

         In State v. Hall, 

, 

 (2005), the
officer who questioned the defendant also did not accuse the
defendant of having committed a crime, nor did the officer
verbally indicate that the defendant should remain for ques-
tioning. Nevertheless, this court concluded that a reason-
able person in the defendant’s position would not feel free to
leave and that the officer had stopped him. The court rea-
soned that the officer had indicated to the defendant that
he was being subjected to a warrant check and explained
that reasonable people would not feel free to leave during
the time that they were “the investigatory subject” of such a
check. 

.
         In State v. Stevens, 

, 

 (2018),
this court held that officers who were conducting a war-
rant check of one of the passengers in a car, Shaw, also had
seized the defendant, another passenger in the car. The
questioning officer had stopped the car for a traffic infrac-
tion, and, while the officer was processing the stop, he asked
the defendant to confirm Shaw’s identity. 

. That
questioning, the court said, did not constitute a seizure: “As
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Backstrand explained, officers are free to ask citizens for
information without mere conversation becoming a seizure.”

. However, the court continued, the officer did
not stop there; the officer’s questions and actions “became
increasingly coercive.” 

 After the officer learned that the
defendant was on parole, he told her that, if she had been
lying about Shaw’s name, “there’s going to be trouble for you
* * * potentially through your [parole officer].” 

. The
court concluded that, at that point, the officer had seized
the defendant, because the defendant “reasonably perceived
from [the officer’s] show of authority that she was not free
to leave until Shaw’s true identity and warrant status were
determined.” 

. In reaching that conclusion, the
court also rejected the state’s argument that the defendant’s
conduct—appearing to walk away—meant that she knew
she was free to leave. The court explained that, although the
officer had not explicitly told the defendant that she had to
remain where she was, the officer, on seeing the defendant
apparently walking off, had asked her for consent to search
her backpack, thereby communicating that she was not free
to go. 

.
          Another illustrative case is K. A. M. There, five
Medford police and probation officers entered a known “drug
house” with the owner’s permission to look for parole vio-
lators. 361 Or at 807. One officer entered a bedroom and
found two young people who both appeared to be under the
influence of a stimulant. He told the young woman that she
“need[ed] to stay off the meth,” and then asked both her
and the youth their names and whether they had anything
illegal on them. Id. at 811. This court held that both the
officer’s “unexplained entry into that private space and his
accusation that the young woman was using or had recently
used methamphetamine created a coercive atmosphere that
reasonably conveyed that she and [the] youth were sus-
pected of illegal drug use and were not free to leave until
[the officer] had completed his inquiry.” Id. Significantly,
the court did not hold, in K. A. M. or in any of the other
cases discussed above, that questioning short of accusation
does not effect a seizure. Rather, the court considered the
totality of the circumstances and whether the questioning
as a whole was so coercive that reasonable people would
64                                   State v. Reyes-Herrera

believe that their freedom of movement had been significantly
restricted.

         We know, of course, from Ashbaugh and Backstrand,
that not all verbal questioning is equally coercive, and the
state cites two additional cases for the proposition that
this case falls on the nonrestrictive side of the line. Those
two cases are State v. Anderson, 

, 

(2013), and State v. Highley, 

, 

(2013). This court decided both of those cases in conjunction
with Backstrand and, in each case, reiterated the holding
in Backstrand that a “mere request for identification made
by an officer in the course of an otherwise lawful police-
citizen encounter does not, in and of itself, result in a sei-
zure.” Backstrand, 

; Anderson, 

 (same); Highley, 

 (same).

          In Anderson, three police officers were executing a
search warrant at an apartment when an officer observed
that the defendant and another person had walked up to
the apartment and “peeked” inside, and then, when they
saw officers searching the living room, they “briskly walked
back to the car” and got inside it. 354 Or at 443. Three offi-
cers then approached the defendant’s car and asked him
about his interest in the apartment. One of the officers,
Zavala, “explained to the driver that the officers were exe-
cuting a search warrant at the apartment and that they
were contacting them ‘to find out who [the defendant and
the driver] were, what interest they might have had with
what [the police] were doing there, or maybe they knew
the * * * individual that lived there.’ ” Id. Even though the
information Zavala had provided to the defendant “objec-
tively conveyed possible suspicion that the * * * defendant
could be involved in criminal activity related to the apart-
ment,” the court held that no seizure had occurred. Id. at
453. The court noted that there was no indication that the
officers’ tone or manner were overbearing or controlling and
the content of the brief verbal exchange was not coercive:
“Zavala’s explanation of the officers’ reasons for the contact
and the officers’ requests for identification informed defen-
dant and the driver that the officers were interested in why
they had come to the apartment and what they knew about
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[apartment resident’s] activities. That information objec-
tively conveyed possible suspicion that the driver and defen-
dant could be involved in criminal activity related to the
apartment, but they equally conveyed that the officers were
interested in whatever information the two might be able
to provide.” 

 The court characterized the circumstances
described in Anderson as falling “into the large category of
cases in which police officers approach and question persons
sitting in parked vehicles without triggering constitutional
protections against unreasonable seizures.” Id. at 454.

         In Highley, an officer had approached the driver of a
parked car because the officer had recognized the driver and
knew that his license had been suspended. The defendant
had been a passenger in the car, and, during the officer’s
questioning of the driver, the defendant remained nearby,
choosing to “mill” about the car. 354 Or at 461. The officer
asked the defendant for his identification and the court held
that that request did not amount to a seizure: “That request
was, as we conclude in Backstrand and reaffirm in Anderson,
a straightforward request for information and cooperation of
the kind that this court, since [State v.] Holmes, [

,

 (1991),] has continued to affirm police officers
may make without implicating Article I, section 9.” 354 Or
at 469. The same, the court said, was true of the actions that
followed—the officer’s retention of the defendant’s license for
a reasonable time to confirm his identity and probationary
status, and the officer’s request for the defendant’s consent
to search him. The officer had “confirmed that [the] defen-
dant was not on probation—information that reasonably
conveyed that [the officer] was not exercising authority over
[the] defendant’s liberty.” Further, the court said, the defen-
dant remained at the scene and “voiced his willingness to
cooperate” when the officer requested consent to a search.
Consequently, the court held, the officer’s request for con-
sent and further verbal inquiries during the ensuing search
did not make the encounter a seizure. Id. at 470-71.

        It is now our task to decide whether this case is
more like the cases in which this court has held that verbal
questioning amounts to no more than relaxed conversation
and does not constitute a seizure or more like those in which
66                                   State v. Reyes-Herrera

this court has found a more coercive atmosphere and has
held to the contrary. For the following reasons, we reach the
latter conclusion.
         In this case, the uncontested facts show that
Delepine, who was in uniform, parked his car in an alley,
got out to investigate what he believed could be a possible
“drug deal,” and approached defendant, who also was on
foot. Delepine told defendant that he had observed defen-
dant walk away from a conversation with another man who
was counting money and asked defendant whether defen-
dant had purchased drugs from the man and whether he
was in possession of drugs. When defendant twice answered
“no,” Delepine asked to search him. Those facts distinguish
this case from those in which we concluded that individuals
were not seized.
         First, this case is different from Ashbaugh in that,
when Delepine approached defendant, he did not explain,
as did the officer in Ashbaugh, that he had a noninvestiga-
tive purpose for doing so. Instead, Delepine told defendant
that he had seen defendant walk away from a conversation
with a man who was counting money and asked defendant
if he had purchased drugs from that man. That exchange
conveyed that Delepine suspected defendant of criminal
activity. Second, this case is different from Backstrand,
Anderson, and Highley in that Delepine did not query defen-
dant about his identity and ask for his cooperation; Delepine
asked questions indicating that defendant himself was the
subject of a criminal investigation.
         Conversely, this case is similar to cases in which
the court held that seizures had occurred. The inquiry that
Delepine conducted here was similar to the robbery inves-
tigation in Warner and the warrant investigation in Hall.
Delepine suspected a possible “drug deal” and questioned
defendant to investigate that suspicion. And, like the offi-
cer’s questioning and request for consent to search in
Stevens, Delepine’s questions to defendant—asking whether
defendant had purchased drugs from a man who was walk-
ing away counting money and asking whether he had drugs
on him—carried an implication that defendant could be in
trouble and must remain where he was. That implication
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was compounded when, after defendant answered “no” to
both questions, Delepine requested defendant’s consent to
search him. Delepine’s questions about whether defendant
had purchased or was in possession of drugs also makes
this case similar to K. A. M. There, an officer told the youth’s
companion that she “need[ed] to stay off the meth,” an indi-
cation, the court said, that she and the youth “were sus-
pected of illegal drug use.” 361 Or at 811. Here, Delepine’s
questioning indicated a similar suspicion.
          It is true, as the state points out, that this case
is different from K. A. M. in that, there, the questioning
occurred in a private residence and, although only one offi-
cer was present in the bedroom where the youth was ques-
tioned, other officers also were present in other rooms of the
residence. Here, only one officer was present in the public
place where the encounter occurred. Such distinctions may
be relevant when a court considers the totality of the cir-
cumstances, but no one fact is determinative, and context
is critical. For instance, we can imagine circumstances in
which this court could conclude that reasonable people who
were asked noncoercive questions after permitting police to
enter their homes would not believe that their liberty was
restricted.
         As is typical, this case is not on all fours with any
other case that this court already has decided. We under-
stand the parties’ interest in having us set out a bright line
between noncoercive conversation and “something more”
restrictive. But the variations in encounters between law
enforcement and the public are many, and a slight differ-
ence in circumstances could make what was considered a
nonrestrictive encounter in one case a stop in another. Even
if we think we can make out a bright line, future cases may
show more shade than we currently appreciate.
        Article I, section 9, of the Oregon Constitution
protects the people’s right to move freely in the world,
with assurance that their liberty will not be significantly
restrained without reasonable suspicion that they engaged
in criminal activity. Here, the state does not contend that
Officer Delepine had that reasonable suspicion. Acting on
no more than a hunch, Delepine approached defendant and
68                                  State v. Reyes-Herrera

subjected him to questioning that, we conclude, would cause
reasonable people to believe that they must remain where
they are and respond. Whether or not the questions that
Delepine asked defendant can be characterized as accus-
ing him of committing a crime, the totality of the circum-
stances was such that reasonable people in defendant’s posi-
tion would have believed that their liberty was restricted.
We hold that defendant was seized and that the trial court
erred in denying his motion to suppress.
        The decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.