State v. Anderson

440 November 21, 2013 No. 56
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
ALEM JONATHAN ANDERSON,
Respondent on Review.
(CC 05C51184; CA A135075; SC S058504)
On review from the Court of Appeals.*
Argued and submitted June 8, 2011; resubmitted January 7,
2013.
Anna Marie Joyce, Deputy Solicitor General, Salem,
argued the cause for petitioner on review. With her on the
brief were John R. Kroger, Attorney General, and Mary H .
Williams, Solicitor General.
Ryan T. O’Connor, Senior Deputy Public Defender,
Office of Public Defense Services, Salem, argued the cause
for respondent on review. With him on the brief was Peter
Gartlan, Chief Defender.
Before Balmer, Chief Justice, and Kistler, Walters,
Linder, and Baldwin, Justices.**
LINDER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
Walters, J., dissented and filed and opinion in which
Baldwin, J., joined.
______________
**  Appeal from Marion County Circuit Court, Dennis J. Graves, Judge. 234
Or App 420, 228 P3d 638 (2010).
**  Landau and Brewer, JJ., did not participate in the consideration or deci-
sion of this case.
Cite as 354 Or 440 (2013) 441
Defendant moved to suppress evidence found in a vehicle in which he had
been a passenger after the driver of the vehicle consented to its search. The trial
court denied the motion, and defendant was convicted by a jury of delivery of
methamphetamine. On appeal, defendant argued that he was unlawfully seized
when three officers approached the parked car in which he and the driver sat,
explained that they were executing a search warrant at the apartment defen-
dant had just approached, and asked for defendant’s identification. The Court
of Appeals reversed. Held: The officers did not seize defendant under Article I,
section 9, of the Oregon Constitution, by approaching defendant, explaining the
reason for their contact, and asking for identification. Such actions do not, in and
of themselves, amount to a show of authority of the kind required for a seizure.
The officer’s request for defendant to exit the car after he provided a false name
constituted a show of authority and effected a seizure. The trial court concluded
that, at that point, the officers had reasonable suspicion of criminal activity.
Defendant failed to challenge that finding.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
442 State v. Anderson
LINDER, J.
This is one of three cases that we decide today
in which we examine the legal standard for what consti-
tutes a seizure under Article I, section 9, of the Oregon
Constitution.1 All three cases involve police contacts with
individuals in which, at the outset of the contact, the officers
asked the individuals for identification. In the first of the
three cases, State v. Backstrand, 354 Or 392, 412-13, ___
P3d ___ (2013) (decided this day), we held that an officer’s
request for and verification of a person’s identification are
not acts that, in and of themselves, convert an encounter
that is not a seizure for constitutional purposes into one that
is. We further concluded in Backstrand that nothing in the
accompanying circumstances of that case—i.e., the context
of the officer’s contact with the individual, the content of the
officer’s request for identification, or the manner in which he
made the request—resulted in a seizure of the defendant.
Id. at 415-14.
In this case, we examine a different set of circum-
stances that surround the officers’ request for and verifica-
tion of identification. As we will explain, we likewise con-
clude in this case that the officers did not seize defendant
and his companion by asking them for identification. We
further conclude, however, that the actions that the officers
took after asking for that identification did result in seizing
defendant and his companion. Defendant does not dispute,
however, that by then the officers had reasonable suspicion
for his seizure. Consequently, we reverse the decision of the
Court of Appeals and affirm the trial court judgment.
BACKGROUND
The circumstances that gave rise to this case
occurred when several police officers were executing a night-
time search warrant at an apartment. The officers were
members of a “Community Response Unit” that is specially
charged with investigating suspected drug activity in local
neighborhoods in response to citizen complaints. They were
1
The other two cases are State v. Backstrand, 354 Or 392, ___ P3d ___
(2013), and State v. Highley, 354 Or 459, ___ P3d ___ (2013). We allowed review
in all three cases after having held them in abeyance pending our decision in
State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010).
Cite as 354 Or 440 (2013) 443
looking for evidence that the person who resided at the
apartment, Wilson, was involved in drug dealing.
While police were searching Wilson’s apartment,
a car pulled into the parking lot directly in front of it. By
then, police had found evidence in the apartment of illegal
drug activity. Two people got out of the car, walked up to the
apartment, and “peeked” inside the open front door. When
they saw the officers searching the living room, the two
immediately turned around, walked “briskly” back to the
car, and got back inside. Officer Zavala, who was immedi-
ately informed about their approach and quick retreat, left
the apartment to contact them. Two other officers, Officer
Johnson and Detective Bamford, followed Zavala. When the
three officers reached the car, it was still parked, the engine
was not running, the windows were partially rolled down,
and the two were sitting inside. Zavala approached the
driver, while Johnson and Bamford approached defendant,
who was sitting in front on the passenger’s side. Zavala
was wearing his badge and was in uniform. Johnson was
wearing a “raid vest,” which is an outer vest with the word
“police” displayed in large yellow letters across the front.2
Zavala explained to the driver that the officers
were executing a search warrant at the apartment and that
they were contacting them “to find out who [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.” The driver immediately
*
responded that she knew Wilson and that she and defendant
were there to “meet with” him and his girlfriend.
Zavala asked the driver for identification. She denied
having any but gave Zavala her name and date of birth. As
Zavala talked to the driver, Johnson asked defendant for
identification. Defendant, too, denied having any identifi-
cation, but told Johnson that his name was Steve Tipton.
Johnson, however, knew Steve Tipton, who was a member
of the Tipton family that lived in the area. Johnson also
recognized defendant from past “patrol contacts.” Although
Johnson could not “put [defendant’s] name with his face,”
2
The record does not reflect whether Detective Bamford was in uniform.
444 State v. Anderson
Johnson was sure that defendant was not Steve Tipton.
Believing that defendant was lying about his name, Johnson
responded by telling defendant that Johnson knew the
Tipton family, knew Steve Tipton, and “you’re not him, I
recognize you.”
Johnson then asked defendant to step out of the car,
which defendant did. Johnson did so both to better deter-
mine if defendant had any identification on him and for offi-
cer safety reasons. In Johnson’s 15 years of experience as a
police officer, when a person gives him a false name, that
person is trying to hide his or her identity “for a reason,”
such as to avoid arrest on an outstanding arrest warrant or
otherwise to evade detection in connection with some kind of
illegal activity. As Johnson explained: “If he’s lying to me at
this point or not giving me a truthful name, I want to make
sure that * * * I can see his hands[.]”
Zavala, who had heard the conversation between
Johnson and defendant about the false name, asked the
driver to step out of the car as well, and she did so. Based
on the birth date that she had given him, Zavala realized
that the driver might be 17 years old and, therefore, a minor.
From Zavala’s observations, the driver seemed nervous and
unsure of herself, and was watching defendant for cues as
to whether she should say anything to the officers. After the
driver stepped out of the car, Zavala moved her several yards
away from the car and out of defendant’s “earshot,” thinking
that she might be more willing to “let us know what exactly
is happening” or produce identification if she did not have to
talk in front of defendant.
As Zavala was getting the driver out of the car,
Johnson again asked defendant if he had any identification.
Defendant immediately admitted that he did and said that
it was in his wallet, which was in his pocket. Defendant
produced the identification for Johnson. Johnson then ran
a warrant check on defendant and, within “a couple of min-
utes,” determined that defendant was wanted on an out-
standing arrest warrant. Johnson placed defendant under
arrest. He then went over to where Zavala and the driver
were standing and interrupted their conversation to ask the
driver for consent to search the car and its contents. Zavala
Cite as 354 Or 440 (2013) 445
left them to call dispatch and verify the information that
the driver had given him about her identity and the car’s
registration (the driver had said that she did not own the
car). The information appeared to be correct. Zavala also
determined that there were no warrants or “holds of any
kind” on the driver.
Johnson, meanwhile, told the driver that he would
like to search the car for controlled substances and weapons.
He asked her, as the person who had custody and control of
the car, if she “had an issue with that.” She said that she did
not. Johnson then read her a “consent to search” card and
asked her if she would sign it. She did. The driver identified
where her purse was in the car, and Zavala, who by then
had rejoined Johnson and the driver, retrieved it. Zavala
searched the purse pursuant to the consent that the driver
had given Johnson. In the purse, Zavala discovered a glass
pipe with white residue that he believed was a controlled
substance. Zavala, therefore, took the driver into custody at
that point and proceeded to search the car. In the car, the
officers discovered methamphetamine on the floor behind
the passenger’s seat, along with drug-related paraphernalia
(e.g., glass pipes, packaging materials, a straw, tweezers),
money, and weapons found throughout the car. In a duffle
bag in the rear of the car, officers found, along with some
personal items, a two-way radio, a police scanner, and a
stun gun. Defendant acknowledged to the officers that the
duffle bag was his but asserted that the drugs belonged to
the driver. The driver told the officers that the drugs seized
from the car belonged to defendant.
Defendant was charged with delivery of metham-
phetamine. Before trial, he moved to suppress “any and all
evidence” that had been discovered during the encounter.
In support of his motion, defendant argued that the officers
had unlawfully stopped and detained him, and that the evi-
dence obtained in the search was a product of that illegal
stop. Defendant also argued that the driver’s consent had
not been given voluntarily. At the hearing on the motion,
relying on the events as described by the officers, the state
argued that the officers’ initial contact with defendant and
the driver was not a stop. By the time that the officers asked
the two to step out of the car, defendant had lied about who
446 State v. Anderson
he was, which the state urged gave the officers reasonable
suspicion to detain him by at least that point, especially in
combination with the surrounding circumstances (i.e., that
the two had approached a “drug house,” saw police, and then
quickly left). As to the voluntariness of the driver’s consent,
the state urged that the officers’ testimony was “extremely
different” from that of the driver, that the driver was not
a credible witness, and that, if the officers’ testimony was
believed, the driver’s consent was voluntary.
In response, defense counsel argued that the
stop occurred as soon as the officers approached the car
because, according to the driver’s testimony, the driver had
started the car and was prevented from leaving when one
officer stood behind it to block it. Defendant argued, alter-
natively or additionally, that the officers stopped defendant
and the driver by having them get out of the car without
reasonable suspicion—at that point—that defendant and
the driver were involved in criminal activity. Defense coun-
sel further urged, again relying on the driver’s testimony,
that the officers also coerced the driver into consenting to
the search by repeatedly requesting consent while she was
unlawfully detained and eventually obtaining her consent
involuntarily only after telling her that, if she did not con-
sent, she would be put in jail.3
In denying defendant’s motion, the trial court
expressly found that the driver was not credible and that
both officers were. With that finding, the trial court implic-
itly rejected defendant’s argument that the driver had not
voluntarily consented to the search. The trial court then
resolved the remaining issue—viz., whether defendant had
been unlawfully stopped. In doing so, the trial court found
that, “at the time the officers first approached the [d]efendant
3
The driver’s testimony differed significantly from that of the officers.
According to the driver, by the time that the officers approached the car, she had
the engine running, was in reverse gear, and was preparing to leave. She said
that one the officers stood behind the car to prevent her from backing up and that
she would have had to hit him to leave. She also said that she was first asked to
consent to the search while still sitting in the car and that she had told the officer
that she was could not consent because she was a minor and the car belonged
to her uncle. After getting out of the car, the officers asked her twice more for
consent, and each time she refused. She consented to the search only after one
officer told her that they could search her car based on the search warrant for the
apartment and that, if she did not consent, “he could take [her] to jail.”
Cite as 354 Or 440 (2013) 447
and asked his name, [d]efendant was a passenger in a
parked motor vehicle without the engine running.” The trial
court concluded, based on those factual findings, that the
initial contact was “not a stop.” The trial court further con-
cluded that, once defendant gave the officers a false name,
the officers had reasonable suspicion to detain defendant,
“given the circumstances which took the officers to the loca-
tion[.]” Based on those findings and conclusions, the court
denied the motion. The case went to trial, and a jury found
defendant guilty as charged.
Defendant appealed, assigning error to the denial
of his motion to suppress. In support of the assigned error,
defendant abandoned his claim that the driver’s consent had
been involuntary. He instead argued only that the officers’
actions constituted a stop “when they stood at the windows
of the car and asked for identification so that they could run
warrants checks” on defendant and the driver. At that point,
defendant urged, the officers lacked reasonable suspicion
that either defendant or the driver was involved in criminal
activity. Defendant argued that, “[a]s a result of the unlaw-
ful stop, defendant provided the officer with a false name[,]”
which in turn caused the officers to have the two step out of
the car and to ask the driver for consent to search her purse
and the car. Based on that sequence, defendant asserted
that the driver’s consent was a direct result of the unlaw-
ful stop and that all evidence against defendant obtained
from the search should be suppressed. In response, while
expressly declining to concede that the initial encounter
between the officer and defendant was unlawful, the state
principally argued that defendant did not have a cognizable
privacy interest in the general contents of the car and there-
fore could not challenge the lawfulness of the search.
The Court of Appeals, sitting en banc, reversed in
a split decision. The majority rejected the state’s argument
that defendant lacked a cognizable interest in the car and
its contents. State v. Anderson, 231 Or App 198, 202 n 2,
217 P3d 1133 (2009), adh’d to on recons, 234 Or App 420,
228 P3d 638 (2010). The majority then determined that
the driver and defendant were seized when the officers
approached the parked car, explained that they had been
executing a search warrant at the apartment, and asked
448 State v. Anderson
the driver and defendant for identification. Id. at 203. The
majority reasoned that, under the circumstances, defendant
reasonably could have believed that his liberty was signifi-
cantly restrained when the officers asked him for identifica-
tion. Id. at 204. Under that court’s then-current case law, if
defendant also subjectively believed as much, he was seized.4
Because defendant had not given the officers a false name
by then, thus giving the officer reasonable suspicion to stop
him, the majority concluded that the seizure was unlawful.
Id. at 203-04.
Four judges dissented, disagreeing that the officers
seized the occupants of the car during the initial encounter
by explaining the reason for the contact and asking for iden-
tification. Id. at 208-09 (Edmonds, J., dissenting). The dis-
sent further concluded that the encounter rose to the level of
a seizure when the officers asked defendant and the driver
to step out of the car, but at that point, the seizure was jus-
tified by reasonable suspicion. Id. at 208, 210. The dissent,
accordingly, would have affirmed the trial court’s judgment.
Id. at 213.
The state sought review of whether, as the Court of
Appeals majority had concluded, defendant was seized for
purposes of Article I, section 9, when the officers contacted
the car’s occupants and asked them for identification. The
state’s argument on that issue tracks the reasoning of the
dissent in the Court of Appeals—viz., no seizure occurred
before defendant and the driver were asked to get out of the
car, at which point the officers had reasonable suspicion to
detain them.5 In response, defendant urges us to adopt the
4
Relying on its decision in State v. Ashbaugh, 225 Or App 16, 28, (2008)
rev’d, 349 Or 297, 244 P3d 360 (2010), the Court of Appeals remanded the case to
the trial court for findings regarding whether defendant in fact believed that his
freedom was significantly restrained at that point. Anderson, 231 Or App at 204.
Subsequently, in Ashbaugh, we explained that a seizure for purposes Article I,
section 9, is not determined by the subjective impressions of the person interact-
ing with the officer. 349 Or at 316. The determinative question is therefore not
whether defendant reasonably could have believed that the officers significantly
restricted his liberty, but rather whether a reasonable person in defendant’s cir-
cumstances would believe that to be the case.
5
Preliminarily, the state asks us also to further revise the two-part “sei-
zure” test that we recently modified in Ashbaugh. 349 Or at 316. We declined the
state’s invitation to revisit that test in Backstrand because, as the parties agreed,
the case did not adequately implicate the prong of the test that the state asks us
Cite as 354 Or 440 (2013) 449
reasoning of the Court of Appeals majority and conclude
that defendant and the driver were unlawfully seized when
the officers first requested their identifications. We turn to
the parties’ arguments in those regards.6
ANALYSIS
In Backstrand, also decided today, we outline at
some length the principles that guide the analysis of what
constitutes a seizure for purposes of Article I, section 9, and
to reconsider. 354 Or at 399 n 8. Likewise, the parties here also agree that this
case does not implicate that prong. We therefore decline the state’s invitation in
this case as well.
6
The parties’ arguments also suggest a further issue, one that we conclude
has not been presented and preserved in this case. In its petition for review, the
state urged that the Court of Appeals “implicitly held that defendant could estab-
lish exploitation—or ‘but for’ causation of the discovery of the evidence—not by
reference to the alleged unlawful seizure of [defendant’s] person, but with respect
to the allegedly unlawful seizure of the driver.” (Emphasis in original.) The state
petitioned the Court of Appeals for reconsideration to address that perceived
implicit holding, asserting that defendant could not seek suppression based on a
Hall-type claim that the officers exploited an unlawful stop of the driver to obtain
her voluntary and otherwise lawful consent. See generally State v. Hall, 339 Or 7,
24-25, 115 P3d 908 (2005) (discussing suppression of derivative evidence based
on exploitation of initial illegality). The Court of Appeals declined to consider the
state’s arguments in that regard, declaring that they had not been raised either
in the state’s brief or at trial. Anderson, 234 Or App at 424.
In its merits brief to this court, the state does not further address that
exploitation issue. Defendant, for his part, analyzes at some length whether—
separate and apart from whether defendant was unlawfully stopped—the officers
unlawfully stopped the driver at any of a series of points in time, ranging from
when Zavala first approached her while sitting in the car to when Johnson asked
her for consent to search. Defendant, too, however, does not address whether
defendant is entitled to suppression based on an argument under Hall that the
driver’s consent was tainted, not by exploitation of a violation of defendant’s
rights, but by exploitation of a violation of the driver’s rights.
That novel exploitation issue, however, is not properly before us. As we have
described, defendant made only two arguments at trial. First, he argued that he
and the driver were illegally stopped as soon as the officers approached the car
and that the driver’s consent was a product of the illegality that was common to
both the driver and defendant. Second, he argued that the driver’s consent was
involuntary. Defendant did not argue that, if he was lawfully stopped and the
driver was not, the driver’s voluntary consent was the tainted product of her sep-
arate illegal stop and defendant was entitled to suppression on that basis. In the
Court of Appeals, defendant abandoned any argument about the voluntariness
of the driver’s consent, and he did not challenge the trial court’s ruling that the
officers had developed reasonable suspicion when defendant gave Johnson a false
name. Thus, the Court of Appeals described the only issue before it as whether,
“at that point in the encounter, defendant was seized for purpose of Article I, sec-
tion 9.” Anderson, 231 Or App at 203 (emphasis added). That, likewise, is the only
issue before us on review.
450 State v. Anderson
in particular, when a police request for information or coop-
eration results in such a seizure. 354 Or at 398-413. In doing
so, we reaffirm certain propositions that our case law has
endorsed over the last several decades. Key among those
propositions, for purposes of the three related stop cases
decided today, is that not every police-citizen encounter rises
to the level of a seizure for constitutional purposes. Rather,
as this court has long held and frequently reaffirmed, “law
enforcement officers remain free to approach persons on the
street or in public places, seek their cooperation or assistance,
request or impart information, or question them without
being called upon to articulate a certain level of suspicion in
justification if a particular encounter proves fruitful.” State
v. Holmes, 311 Or 400, 410, 813 P2d 28 (1991).7 That is true
even though the person approached may be discomforted by
an officer’s inherent authority as such and, for reasons per-
sonal to the individual, feel inclined or obliged to cooperate
with the officer’s request. Backstrand, 354 Or at 400-02. For
an encounter between an officer and a citizen to be a sei-
zure under Article I, section 9, the officer must add to those
inherent pressures by either physically restraining the cit-
izen’s liberty in a significant way or engaging in a “show of
authority” that, explicitly or implicitly, reasonably conveys
to the person a significant restriction on the person’s free-
dom to terminate the encounter or otherwise go about his
or her ordinary affairs. Id. at 402; see also Holmes, 311 Or
at 410 (“physical contact does not transform the encounter
into a ‘seizure’ if it is a normal means of attracting a person’s
attention (e.g., policeman tapping citizen on the shoulder at
the outset to get a citizen’s attention)”).
We, therefore, reaffirm in Backstrand that verbal
police inquiries are not, by themselves, seizures. Id. at 403
(citing propositions from State v. Rodgers/Kirkeby, 347 Or
610, 622, 624, 227 P3d 695 (2010)). “Something more” is
required. Id. That something more can be “the content or
manner of questioning, or the accompanying physical acts
by the officer, if those added factors would reasonably be
7
That principle was immediately reaffirmed following Holmes in State v.
Gerrish, 311 Or 506, 513, 815 P2d 1244 (1991), and most recently in State v.
Watson, 353 Or 768, 774, 305 P3d 94 (2013). Other cases reaffirming Holmes in
the interim are too numerous for citation.
Cite as 354 Or 440 (2013) 451
construed as a ‘threatening or coercive’ show of authority
requiring compliance with the officer’s request.” Id. (citing
State v. Ashbaugh, 349 Or 297, 317, 244 P3d 360 (2010)). If
an officer does not, by words or conduct, convey such a show
of authority, the officer remains free to contact or otherwise
engage a citizen to request information and cooperation or to
impart information without justification. Id.With those precepts reaffirmed, Backstrand resolves
an issue that this court has not before decided: Whether
an officer’s request for and verification of a person’s identi-
fication are actions that, in and of themselves, convert an
encounter that is not a seizure for constitutional purposes
into one that is. We hold in Backstrand that they do not.
“Asking for identification,” we observe, “is exactly the kind of
interaction that Holmes contemplated—a request for infor-
mation and a citizen’s cooperation.” Id. at 409. Thus, a mere
request for identification made by an officer in the course
of an otherwise lawful police-citizen encounter is not suffi-
cient, in and of itself, to result in a seizure. Id. at 409-10. Nor
does an officer’s action of verifying a person’s identification,
without more, convert the encounter into a seizure. Id. at
413. As the decision in Backstrand explains:
“We see no principled basis for concluding that, when an
officer checks the validity of a proffered identity or piece
of identification, such an action per se conveys to a reason-
able person—who is not otherwise restrained and who has
willingly tendered the information to the officer—that the
officer is now exercising his or her authority to coercively
restrain the person’s liberty or freedom of movement. To
be sure, as we have already discussed, a person tendering
identification to an officer may not subjectively feel comfort-
able refusing the officer’s request. Instead, for any number
of personal reasons or instincts, the person may be unwill-
ing to decline the officer’s request. Those internalized moti-
vations and feelings are not the test for whether there is a
seizure under Article I, section 9. A person who turns over
identification to a law enforcement officer reasonably would
expect that the officer will take steps to verify its validity.
For the officer to do so does not objectively convey an exer-
cise of the officer’s authority to restrain the person’s liberty
or freedom of movement. The circumstance is akin to when
a person gives valid consent to search. Part and parcel with
452 State v. Anderson
giving consent is a reasonable person’s expectation that he
or she will likely either need or want to stand by while the
officer performs the search. The person who waits while a
consent search is completed is not thereby seized for pur-
poses of Article I, section 9. So, too, with a person who, in
a noncoercive setting, gives an officer his or her identifica-
tion for the officer’s examination. The fact that the officer
conducts that examination is not, in and of itself, a basis
to conclude that the otherwise noncoercive encounter has
become a coercive restraint on the person’s liberty.”
Id. at 412-13 (emphasis in original) (footnote omitted).
Our analysis in this case begins with that hold-
ing from Backstrand. The question framed by the parties’
arguments is whether the officers seized defendant and the
driver by walking up to them in the car, explaining why the
officers were contacting them, and asking them for identifi-
cation. If defendant was seized at that point, the seizure was
unlawful. At that point, as the trial court concluded and we
agree, the officers lacked reasonable suspicion to temporar-
ily detain either the driver or defendant.8 If, however, defen-
dant was not seized at that point, this case effectively ends
with that conclusion. The trial court found that the officers
seized defendant by asking him to get out of the car, but also
found that by then defendant had given them a false name.
The trial court concluded that, under the circumstances,
the false name that defendant had provided to the officers
gave rise to reasonable suspicion to detain him further.
Defendant did not challenge the trial court’s reasonable sus-
picion conclusion on appeal to the Court of Appeals, see 354
Or at 449 n 6, and does not do so—nor could he—now. Thus,
the question before us is focused specifically and narrowly
on the officers’ initial contact with defendant and the driver.
Factually, that contact—up to and including the
request for identification—was both brief and limited.
Zavala, in a matter of seconds, explained to the driver what
the officers were doing at the apartment and why the offi-
cers were interested in talking to them. Then, Zavala asked
8
The trial court expressly found that the officers developed reasonable sus-
picion when defendant identified himself with a name that one officer immedi-
ately recognized as false. The state did not challenge that conclusion on appeal.
Anderson, 231 Or App at 202-03. Nor does it challenge it before this court.
Cite as 354 Or 440 (2013) 453
the driver for identification, while Johnson asked defendant
for the same. Under Holmes, the officers did not seize the
occupants of the stopped car by merely approaching them
to explain why they had followed them from the apartment
and why they wanted to talk to them. 311 Or at 410. Nor,
under Backstrand, did the contact become a seizure because
the officers then asked them for identification. A request for
identification, in and of itself, is a request for information or
cooperation of the kind that falls outside of the constraints
of Article I, section 9. Backstrand, 354 Or at 409-10.
The remaining question is whether the circum-
stances as a whole transformed the encounter into a sei-
zure despite those conclusions. In particular, the question is
whether the content of the officers’ requests, the manner in
which they were made, or the overall context of the contact
elevated the encounter to the level of a seizure by conveying
to defendant and the driver that the officers would not allow
them to leave. The record does not suggest, however, that
the officers’ tone or manner were overbearing or controlling,
such that what otherwise were mere verbal exchanges were,
in fact, something more. Nor was the content of the brief
verbal exchange coercive. Zavala’s explanation of the offi-
cers’ reasons for the contact and the officers’ requests for
identification informed defendant and the driver that the
officers were interested in why they had come to the apart-
ment and what they knew about Wilson’s activities. That
information objectively conveyed possible suspicion that the
driver and defendant could be involved in criminal activ-
ity related to the apartment, but they equally conveyed that
the officers were interested in whatever information the two
might be able to provide. In all events, by those brief verbal
exchanges and inquiries alone, the officers did not commu-
nicate an exercise of authority of the kind required for a
seizure—i.e., authority to restrain. See Backstrand, 354 Or
at 413-16 (officer’s request for identification, even though it
might convey concern that defendant was under age in adult
book store and might not be permitted to remain inside, was
not sufficient, without more, to seize defendant); Ashbaugh,
349 Or at 317 (after arresting defendant’s husband, officer
returned to defendant, asked if she had anything illegal in
her purse, and asked for consent to search; encounter not a
454 State v. Anderson
seizure). The officers were uniformed, but took no physical
action other than to approach the parked car, and the officers
requested no physical action from defendant and the driver
at that point. Under those circumstances, the fact that there
was one more officer present than there were people in the
car would not cause a reasonable person seated in the car
to believe that the officers were significantly restricting his
or her liberty. Rather, the circumstances here fall into the
large category of cases in which police officers approach and
question persons sitting in parked vehicles without trig-
gering constitutional protections against unreasonable sei-
zures. See Wayne R. LaFave, 4 Search and Seizure § 9.4(a),
576 (5th ed 2012) (citing cases).9
Although the parties disagree whether the officers
seized the driver and defendant when they approached them
in the parked car and requested their identifications, they
concur that the two were seized when the officers asked
them to get out of the car. Given the totality of circum-
stances, including Johnson’s expressed disbelief in defen-
dant’s identification of himself as Steve Tipton, a reasonable
person would take the officers’ “requests” to exit the car to
be directives and would believe that his or her liberty was
significantly restrained. See State v. Jacobus, 318 Or 234,
236, 240-41, 864 P2d 861 (1993) (officer seized the defen-
dant by repeated “requests” that the defendant “step out” of
a parked vehicle). We therefore agree with the parties that,
given the attendant circumstances, defendant was seized at
that point for purposes of Article I, section 9.
9
Defendant relies on two of our prior decisions, State v. Warner, 284 Or 147,
585 P2d 681 (1978), and Rodgers/Kirkeby to argue that the officers’ request for
identification here constituted a seizure. We discussed both cases at some length
in Backstrand. 354 Or at 410, 412 (discussing Warner) and 406-07 (discussing
Rodgers/Kirkeby). Warner involved the “something more” than a mere request
for identification that this case and Backstrand lack. There, police made it clear
that the defendant and his companion were the central focus of their criminal
interest, and then asked for his identification, removed it from him physically,
and advised him that he could “be on [his] way” as soon as they could “clear
this matter up.” Warner, 284 Or at 150-52. In Rodgers/Kirkeby, the defendants
had been lawfully stopped, and thus already seized. The officers completed their
investigations, but then continued questioning the defendants. In that distinctive
context, such conduct meant that the officers’ verbal inquiries conveyed to the
defendants that they remained subject to the officers’ restraint, and thus were
seized for constitutional purposes. 347 Or at 627-28. Just as we concluded those
cases were distinguishable in Backstrand, we conclude they are distinguishable
here.
Cite as 354 Or 440 (2013) 455
But as we earlier observed, the trial court concluded
that, once defendant gave a false name to Johnson, the offi-
cers had reasonable suspicion to detain him. Defendant did
not challenge that conclusion in the Court of Appeals, and
he does not—and cannot, having not done so in the Court
of Appeals—challenge the trial court’s reasonable suspicion
determination now.10 Consequently, at the point that defen-
dant was first seized, there is no dispute that the officers
had reasonable suspicion for the seizure. The seizure was,
therefore, lawful.
CONCLUSION
The officers did not seize the driver and defendant
by walking up to the two in a parked car, inquiring into their
connection to an apartment that they had just approached,
and asking the two for their identifications. Those questions
did not constitute a sufficient show of authority to cause a
reasonable person under the circumstances to believe that
his or her liberty was significantly restrained and, there-
fore, did not constitute a “seizure.” The encounter rose to
the level of a seizure only once the officers asked the driver
and defendant to step out of the car. Defendant, however,
has not challenged the trial court’s conclusion that the offi-
cers at that point had reasonable suspicion for the seizure.
Because the seizure was lawful, the trial court correctly
denied defendant’s motion to suppress the items discovered
in the car.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.
WALTERS, J., dissenting.
I respectfully dissent. For the reasons I explain today
in State v. Backstrand, 354 Or 392, ___ P3d ___ (2013)
(Walters, J., concurring in the judgment), it is my view that
when an officer requests an individual’s identification in
10
The trial court did not specify whether it found reasonable suspicion based
on either or both of the grounds that Johnson identified, which were that he
believed that defendant had committed the crime of giving a false name to an offi-
cer, ORS 162.385 (crime to give false information to an officer for the purpose of
the officer’s arresting the person on a warrant or issuing a citation), and that, in
Johnson’s training and experience, people usually give false names to avoid being
arrested on an outstanding warrant or to avoid detection for criminal activity.
456 State v. Anderson
circumstances in which a reasonable person would believe
that he or she is being subjected to a criminal investiga-
tion and therefore must respond, provide the identification,
and remain until the officer completes the immediate inves-
tigation, the officer restrains the individual’s liberty and
effects a seizure under Article I, section 9, of the Oregon
Constitution.
In this case, officers were searching an apartment
as part of a criminal drug investigation when defendant
came to the open door of the apartment. When defendant
saw the officers searching the apartment, he walked from
the apartment to the car in which he had arrived and got
into the passenger’s seat. Three officers approached the car;
two stood on one side of the car and the other stood on the
opposite side. One officer was in uniform, another was wear-
ing a raid vest. One officer explained that the officers were
executing a search warrant at the apartment, that the officer
had been told that the driver and defendant had approached
the door of the apartment, and that the officer wanted to
know “who they were,” and “what interest they might have”
with what the officers were doing. That officer then asked
the driver for identification; another officer asked defendant
for identification.
The majority recognizes that the officers objec-
tively conveyed “possible suspicion” that defendant “could
be involved in criminal activity related to the apartment,”
but also suggests that the officers “equally conveyed that
[they] were interested in whatever information [defendant
and the driver] might be able to provide.” 354 Or at 453. The
majority then concludes that those “brief verbal exchanges”
did not “communicate an exercise of authority of the kind
required for a seizure—i.e., authority to restrain.” Id. at 453.
Neither, the majority concludes, did the fact that three offi-
cers surrounded the car. The majority reasons that the offi-
cers requested no physical action from defendant and that
there was only one more officer present than there were peo-
ple in the car. Id. at 454.
Although the majority recites the requirement that
the court consider the circumstances as a whole, id. at 453,
the majority does not wrestle sufficiently with the combined
Cite as 354 Or 440 (2013) 457
effect that the officer’s communication and conduct would
have on a reasonable person. When considered in combina-
tion, the facts that the officers were in the process of conduct-
ing a drug investigation, that the officers indicated that they
considered defendant a potential suspect in that investiga-
tion, and that the officers asserted physical authority over
defendant by surrounding the car in which he was seated,
add up to a show of authority that would have conveyed to
a reasonable person that he was the subject of a criminal
investigation and therefore was not free to leave or go about
his ordinary business until the immediate investigation was
completed. Id. at 455. See State v. Thompkin, 341 Or 368,
378-79, 143 P3d 530 (2006) (officers seized defendant, a car
passenger, when they requested and retained her identifica-
tion, conducted a records check, and questioned her about
drugs). The majority’s contrary conclusion is, in my view,
wrong.1
The reasoning that the majority uses to reach that
conclusion also illustrates two of the points that I seek to
make in my concurrence in Backstrand. First, in this case,
the majority correctly focuses on whether the officers’ com-
munication and conduct would cause a reasonable person
to believe that his or her liberty was restrained, and, in
doing so, calls attention to the majority’s different focus
in Backstrand. In this case, the majority does not consider
whether a reasonable person in the circumstances presented
would expect the officers’ conduct or consider it appropriate,
or whether the officers’ investigation continued for more
than a reasonable period—considerations that the majority
considered determinative in Backstrand. 354 Or at 415-16.
If such considerations were relevant to whether the officers
seized defendant, then, in this case, they would demonstrate
that the officers engaged in conduct that a reasonable per-
son would not expect or consider appropriate if engaged in
by others. The majority’s failure to address those consider-
ations in this case demonstrates either that those consider-
ations are not relevant to determine whether a seizure has
1
I recognize that the majority goes on to consider the officers’ actions after
obtaining defendant’s identification and concludes that those actions resulted in
a seizure. 354 Or at 442. I disagree only about the point in time at which the
seizure occurred.
458 State v. Anderson
occurred or, if they are relevant, that the majority is unwill-
ing to consider them in an instance in which they demon-
strate that a seizure did occur.
Second, in deciding that an individual who is sitting
in a parked car surrounded by officers who could be investi-
gating his involvement in drug activity is free to leave and
need not remain and respond to the officers’ inquiries, the
majority invites conduct that officers do not expect or intend
an individual in that circumstance to take. If the individual
were to make a move toward the door of the car or begin to
exit, the officers might reasonably believe that their safety
was threatened. The majority’s decision encourages the pub-
lic to act in ways that increase rather than reduce the risk of
conflict.
I respectfully dissent.
Baldwin, J., joins in this dissenting opinion.