section 9 seizure in Oregon

2012In determining that the request for consent to search was lawful, we relied on the fact that it was not coercive, noting that, “[u]nder the ‘seizure’ standards of Article I, section 9, ‘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.’” Id. at 520 (quoting Holmes, 311 Or at 410 ).

2009An encounter between a law enforcement officer and a person is a seizure 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) whenever an individual believes that (a), above, has occurred and such belief is objectively reasonable in the circumstances.” Holmes, 311 Or at 409-10 .

2021We turn to defendant’s argument that the criminal citation should also have been suppressed. “[T]he right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision.” State v. Hall, 339 Or 7, 24 , 115 P3d *559 908 (2005), overruled in part on other grounds by State v. Unger, 356 Or 59 , 333 P3d 1009 (2014).

2014As the court later stated in State v. Davis, 313 Or 246, 253 , 834 P2d 1008 (1992), “[i]f that constitutional right to be ‘secure’ against impermissible government conduct is to be effective, it must mean that the government cannot obtain a criminal conviction through the use of evidence obtained in violation of a defendant’s rights under that provision.” Thus, “[i]f the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9.” Id. at 254 ; see Ha

2010He relied on State v. Moylett, 313 Or 540, 550-51 , 836 P2d 1329 (1992): “The exigency created by the dissipating evidence of blood alcohol, however, did not make the blood sample seizures per se reasonable under Article I, section 9.

2010He relied on State v. Moylett, 313 Or 540, 550-51 , 836 P2d 1329 (1992): “The exigency created by the dissipating evidence of blood alcohol, however, did not make the blood sample seizures per se reasonable under Article I, section 9.

1994The case at hand differs, because it involved one continuous course of police conduct that began before defendant consented to anything. [9] In State v. Rodriguez, supra, 317 Or. at 37, 854 P.2d 399 , this court assumed, without deciding, that a defendant's arrest was an unreasonable seizure under Article I, section 9, but still concluded that "guns seized following that arrest were nonetheless admissible in evidence, because defendant consented to the search that uncovered the guns, and that consent was not obtained by exploitation of the unlawful conduct, if any." Again, that case is disting

1994The case at hand differs, because it involved one continuous course of police conduct that began before defendant consented to anything. 9 In State v. Rodriguez, supra, 317 Or at 37, this court assumed, without deciding, that a defendant’s arrest was an unreasonable seizure under Article I, section 9, but still concluded that “guns seized following that arrest were nonetheless admissible in evidence, because defendant consented to the search that uncovered the guns, and that consent was not obtained by exploitation of the unlawful conduct, if any.” Again, that case is distinguishable from the

2014See State v. Shaw, 230 Or App 257, 262-63 , 215 P3d 105 , rev den, 347 Or 365 (2009) (an officer’s request that the defendant come over and speak with him was not a stop); cf. State v. Dahl, 323 Or 199, 207-08 , 915 P2d 979 (1996) (police order that the defendant come out of the house with his hands up was an unlawful seizure under Article I, section 9, because it effectively “deprived [the] defendant of any choice in the matter”).

2014See State v. Shaw, 230 Or App 257, 262-63 , 215 P3d 105 , rev den, 347 Or 365 (2009) (an officer’s request that the defendant come over and speak with him was not a stop); cf. State v. Dahl, 323 Or 199, 207-08 , 915 P2d 979 (1996) (police order that the defendant come out of the house with his hands up was an unlawful seizure under Article I, section 9, because it effectively “deprived [the] defendant of any choice in the matter”).

2015See State v. Dahl, 323 Or 199, 206-09 , 915 P2d 979 (1996) (defendant was unlawfully “seized” when law-enforcement officials ordered him to come out of the house “with his hands up” because the police had neither a warrant nor probable cause and exigent circumstances); see also State v. Fair, 353 Or 588, 600 , 302 P3d 417 (2013) (ordering a person out of her house is a seizure under Article I, section 9, that requires a warrant or an exception to the warrant requirement).

2015See State v. Dahl, 323 Or 199, 206-09 , 915 P2d 979 (1996) (defendant was unlawfully “seized” when law-enforcement officials ordered him to come out of the house “with his hands up” because the police had neither a warrant nor probable cause and exigent circumstances); see also State v. Fair, 353 Or 588, 600 , 302 P3d 417 (2013) (ordering a person out of her house is a seizure under Article I, section 9, that requires a warrant or an exception to the warrant requirement).

2014As the court later stated in State v. Davis, 313 Or 246, 253 , 834 P2d 1008 (1992), “[i]f that constitutional right to be ‘secure’ against impermissible government conduct is to be effective, it must mean that the government cannot obtain a criminal conviction through the use of evidence obtained in violation of a defendant’s rights under that provision.” Thus, “[i]f the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9.” Id. at 254 ; see Ha

2014As the court later stated in State v. Davis, 313 Or 246, 253 , 834 P2d 1008 (1992), “[i]f that constitutional right to be ‘secure’ against impermissible government conduct is to be effective, it must mean that the government cannot obtain a criminal conviction through the use of evidence obtained in violation of a defendant’s rights under that provision.” Thus, “[i]f the government seeks to rely on evidence in an Oregon criminal prosecution, that evidence must have been obtained in a manner that comports with the protections given to the individual by Article I, section 9.” Id. at 254 ; see Ha

2014See Owens, 302 Or at 206 (“When there is probable cause to believe that a lawfully seized substance is a controlled substance, a chemical test, for the sole purpose of determining whether or not it is a controlled substance, is neither a ‘search’ nor a ‘seizure’ under Article I, section 9.”).

1994In State v. Owens, 302 Or 196 , 729 P2d 524 (1986), the court discussed the effect of section 9 on the testing of a substance lawfully seized from the defendant: *681 “When there is probable cause to believe that a lawfully seized substance is a controlled substance, a chemical test, for the sole purpose of determining whether or not it is a controlled substance, is neither a ‘search’ nor a ‘seizure’ under Article I, section 9.

2014Compare Ashbaugh, 349 Or at 317-18 (“Although it is possible to restrict a person’s liberty and freedom of movement by purely verbal means,” a request to search purse did not amount to a seizure under Article I, section 9, because the preceding conversation between the police officer and the defendant was “relaxed and nonconfrontational” and the “content” of the questions could not be perceived as a “show of authority”).

2013After the Court of Appeals issued its decision, this court decided State v. Ashbaugh, 349 Or 297, 316 , 244 P3d 360 (2010), in which we revised the test for a seizure under Article I, section 9, by abandoning the prong that considered a defendant’s subjective belief that his liberty or freedom of movement was significantly restrained.

2014The Oregon Supreme Court recently has explained that, “[u]nder that more complete articulation of the federal test [found in Hodari D.], the analysis of what constitutes a seizure under Article I, section 9, and under the Fourth Amendment is not meaningfully different.” Backstrand, 354 Or at 402 n 11.

2014For an encounter between an officer and a citizen to be a seizure under Article I, section 9, the officer must add to the inherent pressures of a citizen-police encounter “by either physically restraining the citizen’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 freedom to terminate the encounter or otherwise go about his or her ordinary affairs.” State v. Anderson, 354 Or 440, 450 , 313 P3d 1113 (2013) (citing State v. Backstrand, 354 Or 392, 402 , 313 P3d 1084 (201

2012It “bar[s] the government’s use of its own invasions of [a] defendant’s rights.” Davis, 295 Or at 233 n 5.

2010Davis in turn relied on two earlier cases — State v. Davis, 295 Or 227 , 666 P2d 802 (1983), and State v. Isom, 306 Or 587 , 761 P2d 524 (1988).

2022In reaching that conclusion, the court examined its earlier holdings in State v. Warner, 284 Or 147 , 585 P2d 681 (1978), and State v. Painter, 296 Or 422 , 676 P2d 309 (1984), and concluded that those cases “demonstrate that law enforcement officers may approach persons on the street or in public places, question them, and even accompany them to another location without the encounter necessarily constituting a ‘seizure’ of a person under Article I, section 9.” Holmes, 311 Or at 409 .

2022In reaching that conclusion, the court examined its earlier holdings in State v. Warner, 284 Or 147 , 585 P2d 681 (1978), and State v. Painter, 296 Or 422 , 676 P2d 309 (1984), and concluded that those cases “demonstrate that law enforcement officers may approach persons on the street or in public places, question them, and even accompany them to another location without the encounter necessarily constituting a ‘seizure’ of a person under Article I, section 9.” Holmes, 311 Or at 409 .

2020And, importantly, the Oregon Supreme Court rejected that same argument in State v. Campbell, 306 Or 157, 159 , 759 P2d 1040 (1988), where it was called upon to decide “whether police use of a radio transmitter to locate a private automobile to which the transmitter has been sur- reptitiously attached is a ‘search’ or ‘seizure’ under Article I, section 9, of the Oregon Constitution.” While Campbell was decided in a different context, it is instructive here.

2020And, importantly, the Oregon Supreme Court rejected that same argument in State v. Campbell, 306 Or 157, 159 , 759 P2d 1040 (1988), where it was called upon to decide “whether police use of a radio transmitter to locate a private automobile to which the transmitter has been sur- reptitiously attached is a ‘search’ or ‘seizure’ under Article I, section 9, of the Oregon Constitution.” While Campbell was decided in a different context, it is instructive here.

2013See, e.g., Holmes, 311 Or at 414 (reasons for rejecting defendant’s federal seizure claim “similar” to those for rejecting claim under Article I, section 9); Gerrish, 311 Or at 517-18 (“As with our analysis under Article I, section 9, we believe that the minimal intrusion of the encounter was not a constitutionally material interference with [the] defendant’s liberty’ under the Fourth Amendment.).

2013Id. at 509 .

2021We turn to defendant’s argument that the criminal citation should also have been suppressed. “[T]he right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision.” State v. Hall, 339 Or 7, 24 , 115 P3d *559 908 (2005), overruled in part on other grounds by State v. Unger, 356 Or 59 , 333 P3d 1009 (2014).

2021We turn to defendant’s argument that the criminal citation should also have been suppressed. “[T]he right to be free from unreasonable searches and seizures under Article I, section 9, also encompasses the right to be free from the use of evidence obtained in violation of that state constitutional provision.” State v. Hall, 339 Or 7, 24 , 115 P3d *559 908 (2005), overruled in part on other grounds by State v. Unger, 356 Or 59 , 333 P3d 1009 (2014).

2012E.g., Radtke, 242 Or App at 241 (“We conclude that a reasonable person in [the] defendant’s position would have believed that an investigation began when [the officer] took note of her name and date of birth; thus, *** she was under the impression that the police had begun an investigation of her and had not given her any reason to believe that it had ended. *** [T]hose facts add up to a seizure.” (Emphasis added.)); State v. Parker, 242 Or App 387, 394 , 255 P3d 624 (2011) (concluding that reasonable person would believe that he or she was not free to leave when the officer “wrote down [the]

2011The issue on review is: “Under what circumstances, if any, is an officer’s request for identification and running a warrants check a seizure under Article I, section 9, of the Oregon Constitution, if the officer has not restrained the person in any other way?” Radtke, 242 Or App at 239 n 2. 3 Petition for review in Parker is being held in abeyance pending a decision in Highley, 350 Or 130 .

2004See also State v. Juarez-Godinez, 326 Or 1, 6 , 942 P2d 772 (1997) (citing State v. Warner, 284 Or 147, 165-66 , 585 P2d 681 (1978)) (stop may result from "mere show of authority”).

2004See also State v. Juarez-Godinez, 326 Or 1, 6 , 942 P2d 772 (1997) (citing State v. Warner, 284 Or 147, 165-66 , 585 P2d 681 (1978)) (stop may result from "mere show of authority”).

1996State v. Kennedy, 290 Or 493, 497 , 624 P2d 99 (1981).

1996State v. Kennedy, 290 Or 493, 497 , 624 P2d 99 (1981).