State v. Singer , 230 Or. App. 485 ( 2009 )

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216 P.3d 897 (2009) 230 Or. App. 485
STATE of Oregon, Plaintiff-Respondent,
v.
Sheryl Diane SINGER, Defendant-Appellant.
072595FE; A138767.
Court of Appeals of Oregon.
Argued and Submitted on July 30, 2009. Decided August 26, 2009.
*898 Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services.

Robert M. Atkinson, Assistant Attorney General, argued the cause for respondent. On the brief were John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DEITS, Senior Judge.

PER CURIAM.

Defendant appeals a judgment of conviction for possession of a controlled substance. She assigns error to the denial of her motion to suppress drug evidence, arguing that the police conducted an unlawful stop. We agree and vacate the judgment and remand for further proceedings.

Defendant was a passenger in a car that was stopped after the car's driver made an illegal turn. Defendant appeared "nervous," and the officer asked defendant for her name and date of birth to perform a warrant check. That check revealed that defendant was on probation for a drug offense. The officer returned to the car, asked defendant to get out of it, and asked for consent to search her purse, which defendant gave. The ensuing search produced drug evidence that defendant sought to suppress.

Under Article I, section 9, of the Oregon Constitution, a "stop" occurs "(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 under the circumstances." State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991). A "stop" of the second type occurs "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." State v. Toevs, 327 Or. 525, 535, 964 P.2d 1007 (1998) (emphasis in original). A belief is "objectively reasonable" if "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, 964 P.2d 1007.

The state concedes that "under this court's current case law, this court would conclude that defendant was stopped when the officer obtained defendant's name and date of birth and had that information run through dispatch." See State v. Highley, 219 Or.App. 100, 108, 180 P.3d 1230 (2008); State v. Rider, 216 Or.App. 308, 172 P.3d 274 (2007), rev. *899 dismissed as improvidently allowed, 345 Or. 595, 200 P.3d 566 (2008). Properly understood, the state's concession is that, under Highley and Rider, it was objectively reasonable for defendant to believe that the officer stopped her by requesting identifying information from her and running a warrant check. Although we are not bound by the state's concession, we agree that Highley and Rider control that issue, and, accordingly, we accept the state's concession.

However, that does not end our inquiry. For a Holmes "type (b)" stop to have occurred, we must also determine whether defendant subjectively believed that she was stopped. Because the trial court did not address that factual issue, we remand the case for the court to do that. Its resolution of the issue will determine whether defendant's conviction should be reinstated or her motion to suppress granted. See State v. Ashbaugh, 225 Or.App. 16, 28, 200 P.3d 149 (2008), rev. allowed, 346 Or. 257, 210 P.3d 905 (2009).

Vacated and remanded for further proceedings.