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2012-12-21T00:29:58Z

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As has already been noted, this morning the Oregon Supreme Court modified the constitutional analysis, under Article I, section 9, for determining whether a person has been "seized" by the police or any other state actor. [http://www.publications.ojd.state.or.us/S057189.htm ''State v. Ashbaugh''], 349 Or __, __ P3d __ (December 9, 2010).

Prior to ''Ashbaugh'', that analysis was guided by [http://scholar.google.com/scholar_case?case=13631088195192288981&q=Oregon+state+v+holmes&hl=en&as_sdt=400000000002 ''State v. Holmes''], 311 Or 400, 813 P2d 28 (1991), which provided that a person is "seized" for purposes of Article I, section 9:

<blockquote>

''(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.''

</blockquote>

After ''Ashbaugh'', Oregon's Is-It-A-Seizure analysis has lost it's subjectivity. The changes are emphasized as follows:

<blockquote>

''(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'''.''

</blockquote>

''Ashbaugh's'' Is-It-A-Seizure analysis could be helpful to the defense in some cases, ''e.g.'', where a client testifies that they felt free to leave. ''Ashbaugh'' will also be helpful in cases where trial judges would otherwise attempt to insulate their ruling denying a motion to suppress by finding that the client subjectively felt free to leave. (I've worked on at least two cases where the trial court judge has taken that tack in Multnomah County. ''[http://www.publications.ojd.state.or.us/A138146.htm See e.g., State v. Khoshnaw]'')

On the other hand, ''Ashbaugh's'' Is-It-A-Seizure analysis could be harmful to the defense in some cases, ''e.g.'', where a client felt that he always has to cooperate with the police because he read a police pamphlets telling him so, but where such a belief would nonetheless not be objectively reasonable. (Historical note: After the 2003 Portland Police shooting of unarmed African-American mother, Kendra James, the Portland Police distributed such pamphlets. ''See US v. Washington'', 490 F3d 765 (9th Cir 2007).) Other examples include cultural defenses, ''e.g.'', a client's belief was reasonable under his cultural upbringing but is objectively unreasonable according to the cultural perspective of Oregon's judiciary.

In her dissent in ''Ashbaugh'', Justice Walters was correct that the old ''Holmes'' inquiry cut both ways. The new ''Ashbaugh'' inquiry does too.

What is interesting to me is that the court chose to not address another problem with the old ''Holmes'' formula,'' i.e.'', the requirement that an officer act "intentionally." Does part (b) of the ''Ashbaugh'' analysis cover all other situations where an officer acts with a different mental state but where a "seizure" should nonetheless be found?
{{wl-publish: 2010-12-08 21:00:00 -0800 | Kkreuscher }}

Blog:Main/Some Brief Thoughts on Ashbaugh - Revision history

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