State v. Ashbaugh (2010)

State v. Ashbaugh, 349 Or 297, 308-09, 317 , 244 P3d 360 (2010).

In contrast to “mere conversation,” which does not implicate Article I, section 9, an officer “stops” an individual — raising potential constitutional issues — when the officer “intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement.” Id. at 308-09, 316 .

Id. at 306, 308 .

State v. Ashbaugh, 349 Or 297, 308-09, 317 , 244 P3d 360 (2010).

Ashbaugh, 349 Or at 321 (Walters, J., dissenting).

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).

In contrast to “mere conversa- tion,” which does not implicate Article I, section 9, an offi- cer “stops” an individual—raising potential constitutional issues—when the officer “intentionally and significantly restricts, interferes with, or otherwise deprives an individ- ual of that individual’s liberty or freedom of movement.” Id. at 308-09, 316 .

Ashbaugh, 349 Or at 316 (internal quotation marks omitted).

Under Ashbaugh , 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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” Ashbaugh, 349 Or at 316 (emphasis omitted).

As noted above, a person is “seized” for purposes of Article I, section 9, in either one of two situations: “(a) if a law enforcement offi- cer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s lib- erty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” Ashbaugh, 349 Or at 316 (emphasis in original).

The test is an objective one: a person is “seized” for purposes of Article I, section 9, in either one of two situations: “(a) if a law enforce- ment officer intentionally and significantly restricts, inter- feres with, or otherwise deprives an individual of that indi- vidual’s liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” Ashbaugh, 349 Or at 316 (emphasis in original; footnot…

Id. at 394, 417-18 .

Rodgers/Kirkeby, 347 Or at 627-28 ; Ashbaugh, 349 Or at 317 (“[I]t is possible to restrict a person’s liberty and freedom of movement by purely verbal means [.]”).

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.” Ashbaugh, 349 Or at 303 (internal quotation marks omitted).

As the Supreme Court recently held, “[a] ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” Ashbaugh, 349 Or at 316 (emphasis in original; footnote o…

The court, however, took the opportunity to “abandon forthrightly the subjective component” of part (b) of that test, and then restated the definition of a “seizure” as follows: “A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person u…

Ashbaugh, the Supreme Court held that 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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” 349 Or at 316 (emphasis omitted).

As refined by the court in Ashbaugh , whether a person has been “seized” for purposes of Article I, section 9, is determined using an entirely objective, rather than partially subjective, test: “A ‘seizure’ of a person 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) if a reasonable person under the totality of the circumsta…

Nor does defendant argue that his actions after Jensen’s request — “assuming] the position” — was anything other than voluntary consent. *602 In Ashbaugh , the Supreme Court stated the legal test for determining when police conduct constitutes a seizure for purposes of triggering the reasonable suspicion requirement of Article I, section 9: “A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (a) if a law enforcement officer intentionally a…

Under Oregon law, a seizure 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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” State v. Ashbaugh, 349 Or. 297, 316 (2010).

A stop occurs, “(a) if a law enforcement officer inten- tionally and significantly restricts, interferes with, or other- wise 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.” Ashbaugh, 349 Or at 303 (internal quotation marks omitted).

The Ashbaugh court explained that a “seizure” 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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” 349 Or at 316 (emphasis omitted).

Moreover, although Smith’s questions to defendant may not have been the type of questions that “one private citizen ordinarily would * * * ask another,” given the circum- stances presented here, the “content of [those] questions did not cause defendant to be seized.” State v. Ashbaugh, 349 Or 297, 302, 316-17 , 244 P3d 360 (2010) (emphasis in Ashbaugh) (the defendant was not stopped when an officer asked her “if she had anything illegal in her purse,” the defendant replied t…

See, e.g., State v. Ashbaugh, 349 Or 297, 308-09 , 244 P3d 365 (2010) (“arrests” are “restraints on an individual’s liberty that are steps toward charging individuals with a crime”).

See, e.g., State v. Ashbaugh, 349 Or 297 , 308- 09, 244 P3d 365 (2010) (“arrests” are “restraints on an indi- vidual’s liberty that are steps toward charging individuals with a crime”).

See, e.g., Anderson, 354 Or App at 450-51 (content of officer’s requests, manner of request, overall context of contact between officer and citizen); Ashbaugh, 349 Or at 317 (officer’s positioning in relation to defendant, officer’s manner and actions, and content of questions); State v. Smith, 247 Or App 624, 629 , 270 P3d 382 (2012) (number of officers, physical acts, officer’s positioning); State v. Aronson, 247 Or App 422, 428 , 271 P3d 121 (2011), rev den, 352 Or 33 (20…

The court in Backstrand summarized its earlier case law in which it had concluded that no stop had occurred, including: Holmes, 311 Or at 409 (an officer is free to approach persons on the street or in public places and question them); State v. Gerrish, 311 Or 506 , 815 P2d 1244 (1991) (flagging down a driver and directing him to stop in order to request information was not a stop); State v. Ehly, 317 Or 66 , 854 P2d 421 (1993) (police asking a defendant to find a key and to…

Quoting from and summarizing Ashbaugh, 349 Or at 309 , the most recent and definitive case on the subject at that time, we stated: “‘A “seizure” of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person under the totality of the circumstances would b…

Id. at 411-12 (discussing State v. Hall, 339 Or 7 , 115 P3d 908 (2005)).

To determine whether a police-citizen encounter constitutes mere conversation or a stop, the Supreme Court has set out the following objective test: “A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person under the totality of the circ…

Regardless of any extension of the stop with respect to the driver, the test for whether a passenger is seized remains the one described in Ashbaugh , which states that a seizure 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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurre…

Cf. Ashbaugh, 349 Or at 307-08, 316-18 (initial unlawful seizure ceased when officers returned the defendant’s identification and informed her that they were arresting her husband; subsequent questioning of the defendant did not amount to second unlawful seizure).

“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” Ashbaugh, 349 Or at 316 (emphasis in original; footnote omitted).

As set forth in Ashbaugh , the pertinent test is as follows: “A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” 349 Or at 316 (emphasis in origina…

Murray, ¶ 28 (McGrath, C.J., & Nelson, J., specially concurring) (characterizing the standard as ‘impractical and unrealistic”); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir. 1984) (noting that then-existing precedents, holding that an average person approached by a federal agent in an airport would ‘feel free to thumb his nose at the agent,” may be “a wrong guess about what the average person feels in this situation’); United States v. Williams, 356 F.3d 1268, 12…

In Ashbaugh , the Supreme Court held that a seizure 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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” *607 349 Or at 316 (emphasis deleted).

Thus, while it may have been that [the] defendant had been unlawfully detained by *241 police some minutes before and had watched a clear show of authority directed at her husband, those circumstances had ended.” Ashbaugh, 349 Or at 317 (emphasis added).

See State v. Ashbaugh, 349 Or 297, 308 , 244 P3d 360 (2010) (no Article I, section 9, implications for “mere conversation”). 434 State v. Jimenez (1987), before an officer can ask a question about weapons.

See State v. Ashbaugh, 349 Or. 297 , 244 P.3d 360 (2010).

See State v. Ashbaugh, 349 Or 297, 316 , 244 P3d 360 (2010) (a seizure occurs when an officer significantly inter- feres with an individual’s liberty or freedom of movement, or a reasonable person would believe that their liberty or free- dom of movement has been significantly restricted).

See Ashbaugh, 349 Or at 307-08 .

See State v. Ashbaugh, 349 Or 297, 308 , 244 P3d 360 (2010) (no Article I, section 9, implications for “mere conversation”). 434 State v. Jimenez that reason alone.

To make that showing, the state must prove that either (1) the police inevitably would have obtained the disputed evidence through lawful procedures even without the violation of the defendant’s rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant’s rights under Article I, section 9; or (3) the preceding violation of the defendant’s rights under Article I, section 9, has such a tenuous factual link t…

See State v. Ashbaugh, 349 Or 297, 316 , 244 P3d 360 (2010) (holding that a police-citizen encounter is a constitutionally significant seizure “(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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred” (emphasis in original)); see also State …

See State v. Ashbaugh, 349 Or 297, 308-09 , 244 P3d 360 (2010) (a stop is “a type of seizure that involves a temporary restraint on a person’s liberty and that violates Article I, section 9, unless justified by, for example, necessities of a safety emergency or by reasonable suspicion that the person has been involved in criminal activity”).

See State v. Ashbaugh, 349 Or 297, 316 , 244 P3d 360 (2010) (“A ‘seizure’ of a person occurs under Article I, section 9, of the Oregon Constitution: (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) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred.” (Emphasis omitted.)).

See Ashbaugh, 349 Or at 317 (concluding that the officer’s question whether the defendant had anything illegal in her purse did not in itself cause her to be seized); State v. Jones, 241 Or App 597, 604 , 250 P3d 452 (2011) (same).

See Ashbaugh, 349 Or at 316 (seizure standard).

Accord Ashbaugh, 349 Or at 317 (no seizure resulted when — after a “relaxed and nonconfrontational” conversation — an officer asked a defendant whether she had anything illegal in her purse, she said that she did not, and the officer then asked for permission to search her purse (internal quotation marks omitted)); State v. Kinkade, 247 Or App 595 , 270 P3d 371 (2012) (no seizure resulted when an officer approached a defendant, asked if he could talk, asked if he would agree…

See Ashbaugh, 349 Or at 317 (examining whether officer’s manner or actions involved a show of authority and noting that officer’s request to search the defendant’s purse was “not accompanied by any physical action that could be construed as threatening or coercive”); Holmes, 311 Or at 410 (“[L]aw 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…