State v. K. A. M.

No. 45 September 14, 2017 805
IN THE SUPREME COURT OF THE
STATE OF OREGON
In the Matter of K.A.M.,
a Youth.
STATE OF OREGON,
Respondent on Review,
v.
K.A.M.,
Petitioner on Review.
(CC 070424JB; CA A154130; SC S064469)
On review from the Court of Appeals.*
Argued and submitted May 12, 2017.
Christa Obold-Eshleman, Portland, argued the cause
and filed the briefs for petitioner on review.
Jonathan N. Schildt, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Marsha Levick, Juvenile Law Center, Philadelphia,
Pennsylvania, and Roy Pulvers, Holland & Knight LLP,
Portland, filed the brief for amicus curiae Juvenile Law
Center.
Before Balmer, Chief Justice, and Kistler, Walters,
Landau, Nakamoto, Flynn, and Duncan, Justices.**
KISTLER, 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.
______________
**  On appeal from Jackson County Circuit Court, Patricia Crain, Judge. 279
Or App 191, 379 P3d 686 (2016)
**  Brewer, J., retired June 30, 2017, and did not participate in the decision of
this case.
806 State v. K. A. M.
Case Summary: Youth moved to suppress evidence obtained after an officer
entered a bedroom, told youth’s companion that she needed to “stay off the meth,”
asked their names, and then asked youth and his companion whether they had
anything illegal on them. Youth argued that the officer’s actions constituted an
unlawful stop for purposes of Article I, section 9, of the Oregon Constitution.
The trial court denied youth’s motion, finding that no stop had occurred. The
Court of Appeals affirmed. Held: Under the circumstances, youth reasonably
concluded that the officer had stopped him. The officer’s unexplained entry into
the bedroom and his accusation that the companion was using or had recently
used methamphetamine conveyed that the companion and youth were suspected
of illegal drug use and were not free to leave until the officer had completed his
inquiry. In addition, the presence of multiple officers in the house, as well as the
officer’s question whether they had anything illegal on them, added to the coer-
cive pressure.
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.
Cite as 361 Or 805 (2017) 807
KISTLER, J.
The question in this case is whether youth was
stopped during the search of a drug house when a detective
came upon youth and a friend in one of the bedrooms, told
youth’s friend to “stay off the meth,” asked them their names,
and then asked whether they had anything illegal on them.
Because the trial court ruled that no stop occurred, it denied
youth’s motion to suppress evidence discovered during the
encounter. The Court of Appeals upheld that ruling, agree-
ing that no stop had occurred. State v. K.A.M., 279 Or App
191, 379 P3d 686 (2016). Because we conclude that a stop
occurred, we reverse the Court of Appeals decision and the
trial court’s judgment. We remand the case to the trial court
for further proceedings.
We take the facts from the hearing on youth’s sup-
pression motion and state them consistently with the trial
court’s ruling.1 Five Medford police and probation officers
were conducting a “parole sweep,” looking for persons who
had violated their probation or parole. The officers had
information that a suspected parole violator was in a single-
family house on 11th Street and went to the house looking
for her. A person who had rented the house gave the officers
permission to look through it. One of the officers, Detective
Schwab, testified that the house was a known drug house.
When asked to describe the condition of the house, Schwab
testified that it was “dilapidated,” with personal property
strewn everywhere. He added, “It looked like a typical—I
mean, for [lack of] better words, it looked like a drug house.”
All five officers went through the house looking for
the suspect. While four of the officers were searching other
parts of the house, Schwab went into a back bedroom. He
was dressed in plain clothes, except for a raid vest that said
“POLICE” on it. In the bedroom, he found youth and a young
woman, who were waiting there to find out if they could live
in the house for awhile. According to Schwab’s testimony,
he did not explain to youth or the young woman why he and
the other officers were searching the house or why he had
1
Youth did not ask the Court of Appeals to review the trial court’s factual
findings de novo. See ORS 19.415(3)(b). Rather, he specifically accepted the trial
court’s express and implicit factual findings.
808 State v. K. A. M.
come into the bedroom. Rather, he testified that he entered
the bedroom, noticed that both of them appeared to be under
the influence of a stimulant, asked them their names, and
asked if they had anything illegal on them. At that point,
youth said that he had a pipe on him. Schwab asked youth if
he would produce it, which he did. The pipe contained meth-
amphetamine residue.
The young woman testified to a different version of
events, part of which the trial court credited. Specifically,
the court credited her testimony that, “when Schwab came
into the room, all of the other detectives, officers, whoever
they were, were going through the rest of the house.” It
also credited her testimony that, when Schwab came into
the bedroom, he told her she “need[ed] to stay off the meth”
before asking youth and the young woman their names.
Given that evidence, the trial court found:
“Clearly, there were not five officers in the room.
According to [the young woman], it was just Officer Schwab.
That he walked in and he said, ‘You need to stay off the
meth.’ And then asked if they had anything.
“So at that point, there was no particular coercion.
There was no particular indication that the parties were
not free to leave. So it looked to me like a conversation, not
a stop. And [youth] volunteered, yeah, here’s a pipe.”
The court accordingly denied youth’s motion to suppress
the pipe without deciding whether Schwab reasonably sus-
pected that youth and the young woman had committed or
were committing a crime. Considering the pipe and other
evidence, the trial court found youth within the jurisdiction
of the court for having committed acts that, if committed
by an adult, would constitute methamphetamine possession.
The court entered judgment accordingly.
Youth appealed from the judgment, assigning error
to the trial court’s ruling denying his suppression motion.
Before the Court of Appeals, youth argued that his personal
characteristics—17 years old and homeless—should be con-
sidered in determining whether he reasonably perceived
that Schwab had stopped him. K.A.M., 279 Or App at 194-
95. The Court of Appeals disagreed. Id. at 195. Relying on
an earlier Court of Appeals decision, the court explained
Cite as 361 Or 805 (2017) 809
that, “[a]bsent some other show of authority, a person is not
seized when an officer asks to see a person’s identification
and asks whether the person has anything illegal in his or
her possession.” Id. It followed, the court concluded, that
youth was not stopped in this case. The Court of Appeals
accordingly upheld the trial court’s ruling on his suppres-
sion motion and the resulting judgment.
On review, youth raises two issues. First, relying on
J.D.B. v. North Carolina, 564 US 261, 131 S Ct 2394, 180 L
Ed 2d 310 (2011), he argues that, in determining whether
he was stopped for the purposes of Article I, section 9, of
the Oregon Constitution, we should consider that he was not
yet 18 years old and thus was more impressionable than an
adult.2 Second, he contends that, even if he were viewed as
an adult, a reasonable adult would not have felt free to leave
in the circumstances in which youth and his friend found
themselves. We begin with the first issue that youth raises.
We do not foreclose considering a youth’s age as part
of the reasonableness inquiry. See J.D.B., 564 US at 271-72(holding that courts should consider a youth’s age in deter-
mining a Fifth Amendment Miranda issue).3 However, this
is hardly the case in which to resolve that question under
Article I, section 9. That is so for at least three reasons.
First, youth did not preserve the issue in the trial court. He
never asked the trial court to factor his age into the deter-
mination of how a reasonable person would have perceived
Schwab’s actions. Second, youth was 17 years and 9 months
old when Schwab encountered him in the drug house. Even
2
On review, youth argues that Schwab stopped him without reasonable
suspicion in violation of both Article I, section 9, and the Fourth Amendment.
However, youth did not raise a Fourth Amendment argument in the Court of
Appeals. Having lost in that court, he cannot rely on the Fourth Amendment as a
basis for reversing the Court of Appeals decision. See State v. Ghim, 360 Or 425,
443, 381 P3d 789 (2016).
3
The holding in J.D.B. is narrow. The Court emphasized the limited inquiry
that its holding required:
“[A] child’s age, when known or apparent, is hardly an obscure factor to
assess. * * * [O]fficers and judges need no imaginative powers, knowledge of
developmental psychology, training in cognitive science, or expertise in social
and cultural anthropology to account for a child’s age. They simply need to
know that a 7-year-old is not a 13-year-old and neither is an adult.”
564 US at 279-80.
810 State v. K. A. M.
under J.D.B., which youth asks us to follow, he would be
regarded as an adult, not a child. See id. at 277 (citing Justice
O’Connor’s concurring opinion in Yarborough v. Alvarado,
541 US 652, 124 S Ct 2140, 158 L Ed 2d 938 (2004), for that
proposition and agreeing with the dissent in J.D.B. that
“ ‘teenagers nearing the age of majority’ are likely to react
to an interrogation as would a ‘typical 18-year-old in similar
circumstances’ ”). Third, the stop inquiry requires an eval-
uation of the totality of the circumstances: in this case, cir-
cumstances other than youth’s age lead us to conclude that
he reasonably perceived that he was not free to leave.
We accordingly leave for another day the first issue
that youth urges us to decide and turn to the second issue
that he raises—whether a reasonable person, regardless of
age, would have felt free to leave. On that issue, this court
recently explained that a police officer’s request for identifi-
cation is, in and of itself, not a sufficient show of authority
to constitute a stop. State v. Backstrand, 354 Or 392, 412,
313 P3d 1084 (2013) (stating that proposition). However, the
court was careful to add that
“when the content of the questions, the manner of ask-
ing them, or other actions that 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, then the encoun-
ter rises to the level of a seizure.”
Id. As the court also noted in Backstrand, that “inquiry nec-
essarily is fact specific and requires an examination of the
totality of the circumstances involved.” Id. at 399.
In this case, Detective Schwab’s entry into the bed-
room, the lack of any explanation for his presence, and his
apparent accusation that the young woman was using meth-
amphetamine persuade us that a reasonable person would
perceive that Schwab was exercising his authority to detain
both youth and the young woman. More specifically, accord-
ing to the evidence that the trial court credited, youth and
the young woman were in the bedroom of the house when
Schwab and four other officers entered the house and began
searching it. Schwab then walked into the bedroom with-
out any explanation for his presence. To be sure, Schwab
Cite as 361 Or 805 (2017) 811
testified at the suppression hearing that the renter had
given the officers permission to look through the house for a
suspected parole violator. But Schwab never communicated
that information to either youth or the young woman.
Ordinarily, police officers do not walk into a person’s
bedroom uninvited or, if they do, not without some explana-
tion as to why they are there. That is, however, precisely what
Detective Schwab did. He simply walked into the bedroom
where youth and the young woman were, and the first words
out of his mouth were to tell the young woman, “You need
to stay off the meth.” Both Schwab’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
youth were suspected of illegal drug use and were not free
to leave until Schwab had completed his inquiry. Two other
circumstances support that understanding. Schwab asked
whether youth and the young woman had anything illegal
on them, a question that, given Schwab’s prior accusation
of methamphetamine use, reasonably added to the coercive
pressure. And the young woman was aware (and so presum-
ably was youth) that, although Schwab was the only officer
who had come into the bedroom, other officers were search-
ing through the house. The officers’ unexplained presence in
the house added to the coercive effect of Schwab’s presence
in the bedroom.
In those circumstances, youth reasonably concluded
that Schwab had stopped him—that is, that Schwab was
exercising his authority to detain him. In reaching that con-
clusion, we note that this is not a case in which an officer
asked a person for identification for the apparent purpose of
getting the person to leave a place where he or she was not
authorized to be. Cf. Backstrand, 354 Or at 415 (explain-
ing that, when an officer noticed a person who appeared to
be a minor in an “adult bookstore,” a request for identifi-
cation was not a stop; at most, the person’s answer would
have led to the person’s being asked to leave the store);
State v. Ehly, 317 Or 66, 78, 854 P2d 421 (1993) (explain-
ing that the officers’ request to look for and return a motel
room key, viewed in light of the motel manager’s and the
812 State v. K. A. M.
officers’ prior requests that the defendant leave the prem-
ises, did not constitute a seizure). Nor is this a case in which
an officer approached a person who had arrived at a house
being searched by the police, explained to the person why
the officer had approached him, and then asked the person
his name and connection to the house. Cf. State v. Anderson,
354 Or 440, 452-53, 313 P3d 1113 (2013) (reasoning that,
in those circumstances, the request for information did not
constitute a seizure). Finally, this is not a case in which
an officer approached the driver of a parked car while his
passengers (the defendant and a companion) walked away,
later returned of their own accord, and responded to the offi-
cer’s request for identification after returning. Cf. State v.
Highley, 354 Or 459, 469, 313 P3d 1068 (2013) (relying on
the officer’s focus on the driver, the defendant’s exercise of
his freedom to walk away from the officer, and his unilateral
decision to return, in concluding that the officer’s request for
identification did not constitute a stop).
As explained above, two circumstances combine
in this case to reinforce the conclusion that the detective’s
actions constituted a stop. The first is the place where the
encounter occurred: Detective Schwab walked into a bed-
room where he found youth and the young woman. See State
v. Fair, 353 Or 588, 600-01, 302 P3d 417 (2013) (explaining
that an officer’s actions taken within a house can have a
more coercive effect than actions taken in public places). We
recognize that youth and the young woman were not yet res-
idents of the house when Schwab walked in on them in the
bedroom. Rather, they were there waiting to learn if they
could stay there, and their right to privacy was derivative
of the person who had rented the home. See State v. Tanner,
304 Or 312, 321, 745 P2d 757 (1987) (discussing relative
rights of owners and guests). However, youth and the young
woman reasonably viewed the coercive effect of Schwab’s
unexplained entry into the bedroom as if he had entered the
bedroom without authority.
The second factor is what Schwab said. After enter-
ing the bedroom, he told the young woman that she needed
to “stay off the meth.” He effectively accused her of being
on or using methamphetamine—a statement that, in the
context in which it was made, would cause a reasonable
Cite as 361 Or 805 (2017) 813
person to conclude that he or she was not free to leave until
Schwab had finished his inquiry. See State v. Jackson, 268
Or App 139, 146, 342 P3d 119 (2014) (following line of Court
of Appeals decisions holding that telling a person he or she
has committed an offense can constitute a stop). Because we
hold that Schwab’s actions constituted a stop, the remain-
ing issue is whether the stop was justified—namely, whether
Schwab reasonably suspected that youth and the young
woman had engaged or were engaging in criminal activity.
On that issue, the state argues that there are potentially
disputed issues of fact that the trial court did not resolve
and asks us to remand the case to the trial court if we con-
clude a stop occurred. We accordingly do so.
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.