State v. Ashbaugh

Defendant was convicted of unlawful possession of a controlled substance. On appeal, she assigns error to the trial court’s denial of her motion to suppress evidence obtained after she consented to a search of her purse. She argues that her consent, and therefore the discovery of the evidence, derived from a violation of her right under Article I, section 9, of the Oregon Constitution1 to be free from unreasonable searches and seizures. The state concedes that police officers detained defendant in violation of her constitutional right when, without reasonable suspicion, they required her to provide identification and then called in a “warrant check.” The state argues, however, that the relationship between that unlawful conduct and the discovery of the evidence does not support a suppression remedy. We agree. However, defendant further argues that a subsequent encounter was also an unlawful stop, and that it, too, led to the discovery of the evidence. We conclude that the second encounter may have been unlawful, depending on facts that neither party developed at trial, and that the second encounter did lead to discovery of the evidence. We therefore remand to the trial court for further factfinding.

The undisputed facts are as follows. While patrolling a public park on their bicycles in the early afternoon, Beaverton Police Officers Barrowcliff and Schaer noticed defendant and her husband sitting on the ground in the shade of a tree. Because the couple were “middle-aged,” they “didn’t look like older people or people with kids” who frequented the park, and that fact aroused the officers’ suspicion. One of the officers told the couple, “Hey, you’re not in any trouble; do you have some I.D. we can see?” Defendant and her husband cooperated with the request, and the officers took their identification to check for warrants.

After a few minutes, the officers learned that defendant had no outstanding warrants, and they returned her identification to her. The check on her husband, however, *19revealed that defendant had a valid restraining order against him. Defendant acknowledged the existence of the restraining order but told the officers that she and her husband were trying to repair their relationship. The officers nonetheless arrested the husband for violating the order and called for a transport vehicle. While he was being handcuffed, defendant’s husband asked, within earshot of defendant, if defendant could take his belongings with her. The officers said that she could. Defendant’s conversation with the officers was “relaxed and nonconfrontational”; she knew that she was not being detained.

The officers led defendant’s husband to a patrol car approximately 40 feet from where defendant stood. A few minutes thereafter — and 18 minutes after the officers first approached the couple — the officers went to retrieve their bikes. Defendant was still there. They asked her if she would take her husband’s belongings. At that point, “something inside of [Schaer] made [him] want to ask” defendant if she had anything illegal in her purse, and he did so. Defendant told him that she did not. Schaer then asked if he could look inside her purse, and she consented. That conversation was also “relaxed and nonconfrontational.” Schaer looked inside the purse and found methamphetamine.

Defendant was charged with unlawful possession of a controlled substance. Former ORS 475.992(4) (2003), renumbered as ORS 475.840(3) (2005). In a pretrial motion to suppress, she argued that her initial interaction with the officers amounted to an unlawful stop and that the evidence had to be suppressed because the officers discovered it as a result of that violation of her rights. In the alternative, she argued that a separate unlawful stop occurred when, after putting defendant’s husband in the police car, the officers approached her again and Schaer asked for permission to search her purse. The trial court denied her motion, concluding that the original stop became unlawful when the officers took the identification and began a warrant check, but that the relationship between that unlawful activity and the discovery of the evidence did not support suppression. The court also implicitly rejected the alternative argument that the second encounter was a stop. After a trial to the court on stipulated facts, defendant was convicted.

*20On appeal, defendant renews the arguments that she made at trial. The state concedes (as it did at trial) that the officers violated Article I, section 9, when, without reasonable suspicion of criminal activity, they asked for and retained defendant’s identification and conducted a warrant check.2 We agree and accept that concession. See State v. Hall, 339 Or 7, 19, 115 P3d 908 (2005) (stop occurs when officer retains identification and conducts radio warrant check). The state argues, however, that any causal connection between that illegality and defendant’s consent is too tenuous to require suppression because “the stop had ended, significant time had elapsed, and defendant was not the focus of the investigation but rather the victim of a crime.” The state further argues that Schaer’s questioning regarding the contents of defendant’s purse did not constitute a separate unlawful stop because such a request, without more, does not elevate a police-citizen encounter to the level of a seizure so as to trigger constitutional protection.

First, we address defendant’s argument that the evidence should have been suppressed because it derived from the first encounter: the concededly unlawful stop that occurred when the officers took defendant’s identification to check for warrants. The critical inquiry in determining the nature of the relationship between unlawful police conduct and evidence that a defendant seeks to suppress is “whether the state obtained the evidence * * * as a result of a violation of the defendant’s rights under Article I, section 9.” Hall, 339 Or at 24 (emphasis added). The Supreme Court has provided the analytical framework for resolving that inquiry:

“After a defendant shows a minimal factual nexus between unlawful police conduct and the defendant’s consent, then the state has the burden to prove that the defendant’s consent was independent of, or only tenuously related to, the unlawful police conduct. Deciding whether the state has satisfied that burden requires a fact-specific inquiry into *21the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant’s consent.”

Id. at 34-35.

In order to establish a “minimal factual nexus,” the defendant must show that there is at least a “but for” relationship between the unlawful stop and the consent. Id. at 25. The burden then shifts to the state. If the state cannot establish “independence” — that is, that the evidence inevitably would have been discovered through the exercise of lawful procedures (such as a mandatory inventory policy), or that it was obtained not only as a result of the illegality, but also as the result of a chain of events that did not include an illegality (that is, an “independent source”) — it must prove “attenuation.” State v. Tyler, 218 Or App 105, 110, 178 P3d 282 (2008). Factors on which the state might rely to make that showing include the amount of time that elapsed between the illegality and the request for consent and the presence of any intervening or mitigating circumstances. Id.

In accordance with those principles, we must first determine whether defendant has established the requisite “but for” relationship. Hall, 339 Or at 25. We have explained that relationship, albeit in the civil context, as follows: one event is the “but for” cause of a second event if the second event would not have occurred if the first event had not occurred. Wallach v. Allstate Ins. Co., 206 Or App 137, 143, 135 P3d 404 (2006), aff'd, 344 Or 314, 180 P3d 19 (2008); see also Blacks Law Dictionary 213 (8th ed 2004) (defining “but-for test” as “[t]he doctrine that causation exists only when the result would not have occurred without the party’s conduct”). The state asserts that, although the request for consent occurred after the unlawful stop, defendant has failed to show that the request occurred as a result of it. Defendant’s position is that, if her interaction with the officers had ended before they took her identification and began a warrant check, the subsequent series of events culminating in the officers’ request for consent to search would never have occurred. Instead, the encounter would have ended and, presumably, the officers would have moved on.

*22Defendant’s theory does not withstand scrutiny. The officers’ retention of defendant’s identification and subsequent warrant check had no causal relationship with the discovery of evidence; that check came back negative, at which point defendant was free to leave. The warrant check that was causally related to the discovery of evidence was the one that police carried out on defendant’s husband; that act, a violation of his rights, led to the discovery of the outstanding restraining order, the arrest, and the subsequent events. The violation of defendant’s rights simply had no downstream consequences. The fact that there might have been a “but for” connection between the violation of her husband’s rights and the discovery of the evidence does not avail defendant; the suppression remedy serves only to restore a person to the position she would have been in if her rights had not been violated. State v. Tanner, 304 Or 312, 315-16, 745 P2d 757 (1987). We therefore conclude that the original stop, although unlawful, does not require suppression of the methamphetamine.

Alternatively, defendant argues that a separate unlawful stop occurred after her husband had been arrested and taken away in a police vehicle, when Schaer, prompted only by “something inside of [him],” asked her if she had any contraband in her purse and, when she said that she did not, asked for consent to search it. The state, apparently conceding that the connection between that encounter and the discovery of the evidence was immediate and direct, responds that the encounter did not amount to a stop for purposes of triggering constitutional protections.

We must therefore confront once again the vexing question of when an encounter between a police officer and a citizen becomes a stop. In State v. Holmes, 311 Or 400, 409-10, 813 P2d 28 (1991), the Supreme Court held that a person is “seized” for purposes of Article I, section 9, and therefore 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.”

*23The court determines whether a stop of the first type — type (a) — has occurred without reference to the subjective belief of the defendant; the only relevant state of mind is the officer’s. A type (b) inquiry examines the defendant’s subjective belief and then, if the necessary belief is found, evaluates its reasonableness. State v. Toevs, 327 Or 525, 535, 964 P2d 1007 (1998). Both inquiries are informed by the court’s elaboration on the circumstances under which it regards an individual’s liberty of movement to have been significantly restrained:

“[An encounter] is a ‘seizure’ of a person only if the officer engages in conduct significantly beyond that accepted in ordinary social intercourse. The pivotal factor is whether the officer, even if making inquiries a private citizen would not, has otherwise conducted himself in a manner that would be perceived as a nonoffensive contact if it had occurred between two ordinary citizens.”

Holmes, 311 Or at 410.

In Holmes itself and most of the cases using its analysis to determine whether a stop has occurred, the court has emphasized the definitional element without addressing the subjective elements; that is, the court’s analysis has focused on whether the encounter transcended the bounds of ordinary social intercourse, without addressing the state of mind of either the officer or the defendant. The court has mentioned the defendant’s state of mind, a necessary element in a type (b) analysis, in only two cases, Toevs, 327 Or at 536, and State v. Dahl, 323 Or 199, 208, 915 P2d 979 (1996). In no case has the court mentioned the officer’s intent, a necessary element in a type (a) analysis, perhaps because in certain circumstances that intent is so obvious that there can be no issue regarding it. See, e.g., State v. Thompkin, 341 Or 368, 371-73, 143 P3d 530 (2006) (officer takes and retains the defendant’s identification to run a warrant check); Hall, 339 Or at 10-11 (same); Dahl, 323 Or at 201-03 (officer commands the defendant to exit house with hands raised); Holmes, 311 Or at 402-03 (officer flags down motorist).

Here, defendant presented the trial court with an argument to which a type (b) analysis might apply; she asserted that any reasonable person “would feel stopped in defendant’s situation.” We therefore apply the analysis that *24the court used in Toevs, where the court explained its “general methodology for determining whether an officer’s contact with a citizen rises to the level of a stop.” 327 Or at 534. That methodology focuses entirely on Holmes type (b) stops:

“The court in Holmes held that a ‘seizure,’ which includes a stop, occurs under Article I, section 9, whenever a person subjectively believes that a law enforcement officer significantly has restricted or interfered with that person’s liberty or freedom of movement and such a belief is objectively reasonable under the circumstances.”

Toevs, 327 Or at 535 (emphasis in original). Noting that “the record demonstrates that the court found that defendant subjectively believed” that his freedom of movement was restricted, the court went on to “conclude that a reasonable person in defendant’s position could have believed that the officers significantly had restricted his liberty or freedom of movement.” Id. at 536.

Where, as here, a defendant moves to suppress evidence seized as the result of a warrantless search, “the burden of proving by a preponderance of the evidence the validity of the search is on the prosecution.” ORS 133.693(4); see also State v. Tucker, 330 Or 85, 89, 997 P2d 182 (2000). Thus, when defendant challenged the validity of the warrantless search in this case, the state was required to demonstrate that the search was not tainted by an unlawful stop, that is, an unlawful seizure of defendant’s person. That demonstration, in turn, required the state to prove that defendant did not believe that Schaer had limited her freedom to leave during her second encounter with him. However, neither the state, defendant, nor the trial court focused on the issue of defendant’s subjective belief.3

Because the trial court did not address that issue in the first instance, we remand the case for that determination. See Toevs, 327 Or at 535 (requiring a fact-specific inquiry into *25the totality of the circumstances to determine whether “a person subjectively believes that a law enforcement officer significantly has restricted or interfered with that person’s liberty or freedom of movement and [whether] such a belief is objectively reasonable under the circumstances”) (emphasis in original); State v. Puffenbarger, 166 Or App 426, 433-34, 998 P2d 788 (2000) (same). The question before the trial court on remand is whether the second encounter between defendant and the officers constituted a seizure under the type (b) Holmes analysis. Again, that determination requires two distinct assessments, only one of which remains open: whether defendant subjectively believed that the officers significantly restricted or interfered with her freedom of movement. Toevs, 327 Or at 535. That issue has not yet been addressed in this case.

If the trial court determines that defendant did so believe, the remaining question is whether “such a belief is objectively reasonable under the circumstances,” that is, whether “a reasonable person in defendant’s position could have believed that the officers significantly had restricted [her] liberty or freedom of movement.” Id. at 536 (first emphasis in original; second emphasis added). That question, though, is a legal issue, id. at 535-36, and we here conclude that if, in fact, defendant believed that she was not free to leave, that belief was reasonable under the circumstances. Although her conversation with the two officers was “relaxed and nonconfrontational,” it was a conversation between one citizen and two uniformed, armed police officers who had, within the previous 20 minutes, required her to produce identification; had, as she watched, arrested her husband, handcuffed him, and put him in a patrol car for transportation to jail; had approached her again and asked if she was carrying contraband; and, obviously not believing her denial, had asked to search her purse. If, in those circumstances, she believed that she could not refuse the request and leave, that belief was a far cry from unreasonable.

The dissent disagrees. At one point, the dissent contends that “a noncoercive conversation between a citizen and a police officer does not offend the constitutional prohibition *26against unreasonable searches and seizures, even if the conversation includes a request for permission to search a person or the person’s belongings.” 225 Or App at 37 (Edmonds, J., dissenting). In support of that sweeping proposition, the dissent cites State ex rel Juv. Dept. v. Fikes, 116 Or App 618, 842 P2d 807 (1992). However, as the dissent subsequently observes, Fikes holds merely that the defendant’s belief in that case was “not objectively reasonable under the circumstances.” Id. at 622 (emphasis added). Thus, we conclude that the dissent agrees with us (and with the Supreme Court in Toevs, 327 Or at 535, and Holmes, 311 Or at 408) that whether a particular defendant’s belief is objectively reasonable depends on the particular circumstances of the case.

The dissent relies primarily on the precedent established by Fikes. That case, however, provides no reason to affirm here, for two reasons. First, it was wrong when it was decided. The defendant, a juvenile, was startled by a uniformed and armed police officer who approached him from behind, informed him that there had been complaints about drug use in the area, and then asked him for permission to search his person. Fikes, 116 Or App at 620. The court held that, if the defendant believed that he was not free to ignore the request and leave, that belief was unreasonable. Id. at 622. That conclusion might make sense to those of us who are schooled in the nuances of search-and-seizure law, but to everybody else, it is fanciful.

Second, the Holmes-derived analysis that we applied in Fikes has been significantly reformulated by the Supreme Court, most notably in Hall.4 In that case, the court, after reviewing its earlier cases (including Holmes, State v. Warner, 284 Or 147, 585 P2d 681 (1978), and State v. Painter, 296 Or 422, 676 P2d 309 (1984)), determined that a police-citizen encounter is a stop if the encounter could cause a person reasonably to believe that he or she was the subject of a criminal investigation and, for that reason, that his or her liberty of movement had been significantly restricted. Hall, *27339 Or at 17-19. The court held that the defendant was seized when an officer requested and retained the defendant’s identification, promptly returned it, and then ran a warrant check. The court explained:

“In this case, [Officer] Deese’s initial actions of stopping his vehicle next to defendant and then gesturing for defendant to approach him did not intrude upon defendant’s liberty of movement, because, even if Deese inconvenienced defendant, his actions did not constitute a show of authority involving conduct ‘significantly beyond that accepted in ordinary social intercourse.’ Holmes, 311 Or at 410. When Deese took defendant’s identification card and radioed the police dispatch for a warrant check, however, the consensual nature of that encounter dissipated, and the encounter evolved from a ‘mere conversation’ encounter into a restraint upon defendant’s liberty of movement. It is true that * * * Deese promptly returned defendant’s identification card. Nevertheless, when Deese did so, defendant was cognizant that Deese was investigating whether defendant was the subject of any outstanding warrants. Although the state insists to the contrary, we 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.”

339 Or at 19 (emphasis added).

Subsequently, we have repeatedly held that, when a police officer obtains a person’s identification and uses it to check for outstanding warrants or probation violations, the person has been stopped. E.g., State v. Campbell, 207 Or App 585, 589, 142 P3d 517 (2006); State v. Harper, 197 Or App 221, 236, 105 P3d 883 (2005). More recently, in State v. Highley, 219 Or App 100, 102-03, 180 P3d 1230 (2008), we held that a seizure occurred when a police officer asked the defendant, a car passenger, if he was on probation, thereafter requested and retained the defendant’s driver’s license, recorded the information from the license in a notebook, returned the license, and then immediately walked to his police vehicle. We explained that

“a reasonable person whose identification information has been written down by a police officer who has just inquired about the person’s probationary status would * * * understand that he or she was the subject of an investigation *28[because that person] * * * would believe that the officer wrote down the identifying information and then immediately returned to his car * * * in order to run some type of records check.”

Id. at 108. We stressed that neither the retention of a suspect’s identification, nor the length of the retention, determines whether a seizure has occurred. Id. at 109. The proper question is whether the defendant believes that he or she is under investigation and is thus not free to leave, and whether that belief is reasonable. Id.; accord State v. La France, 219 Or App 548, 554, 184 P3d 1169 (2008). Although Hall and our subsequent cases deal specifically with warrant checks, the underlying principle is that a person who knows that he or she is being investigated by a police officer during an encounter could reasonably believe that, for that reason, his or her freedom of movement has been restrained. We see no meaningful distinction between situations in which awareness of the investigation derives from a warrant check (with or without the retention of the defendant’s identification, and regardless of the police officer’s degree of courtesy) and those in which the awareness derives from a request to search following a defendant’s denial of wrongdoing (regardless of whether the request is polite). In this case, if defendant believed that Schaer’s questioning and his request to search her purse limited her freedom of movement, that belief was reasonable.

As explained above, we are unable on the current record to determine whether defendant had that belief. We therefore remand to the trial court for such a determination. If the court finds that defendant did not believe that she was the subject of a criminal investigation and was therefore unable to leave, the court should reinstate defendant’s conviction. If the court determines that defendant did subjectively hold that belief, however, the evidence found in defendant’s purse must be suppressed.

Vacated and remanded for further proceedings.