Oregon Supreme Court, Nov 21, 2013

by: Abassos • November 21, 2013 • no comments

A mere request for identification made by an officer in the course of an otherwise lawful police-citizen encounter does not, in and of itself, result in a seizure. In announcing this new rule, the court reasons that (1) giving over of one's identification is now commonplace in ordinary dealings with society, both between private citizens and in a variety of citizen-government encounters; and (2) asking for identification is exactly the kind of "mere encounter" that State v Holmes, 311 Or 400 (1991), contemplated more than two decades ago: "a request for information and a citizen's cooperation". The court cites several cases approvingly in which it previously found a stop in a situation where an ID was taken and it reverses three cases today in which Article I, section 9 was not implicated.

Approved cases where a stop occurred

• It was a stop where an officer investigating a robbery asked defendant for ID told defendant he could "be on his way" as soon as the officer was able to "clear this matter up." State v Warner, 284 Or 147 (1978)
• It was a stop where officers retained defendant's identification during a frisk, a radio check and a few questions. State v Painter, 296 Or 422 (1984).
• It was a stop where the officer returned defendant's identification but immediately started questioning defendant about drugs and weapons. State v Hall, 339 Or 7 (2005).

Today's cases finding no stop occurred

• It was not a stop where the officer took defendant's identification for 15 seconds in a porn store where defendant was underage. At worst, the court says, defendant would have believed that he would be kicked out of the store, the opposite of a seizure. As to the temporary taking of defendant's license, the court says: "We are hard pressed to see how holding a person's license for no more than 15 seconds, pursuant to the person's voluntary production of that license could result in a significant restriction of a person's liberty on that basis alone." State v Backstrand (11/21/2013)
• It was not a stop where an officer took defendant's identification for about 30 seconds to write down the information and then go check it for probation and warrants. It was also not a stop when the officer returned from the check, advised defendant he was not on probation and had no warrants, and asked for consent to search. And, finally, it was not a stop when defendant consented to a search, acted like he was cooperating with a search but attempted to conceal a baggie of meth which another officer saw. While in Hall, immediate questioning created a seizure from a mere encounter "no similar alchemy occurred here", because "considered in combination [the ID check, consent request and search] were simply acts that occurred sequentially." State v Highley (11/21/2013)
• It was not a stop where defendant walked up to the door of a drug house that was being searched and 3 officers followed defendant and his girlfriend back to his car 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." One officer was in back of the car (blocking any exit), one officer was on the drivers side and one was on the passenger side. When officers asked defendant to step out of the vehicle, a stop occurred. But at that point the officers had reasonable suspicion to believe defendant was lying to him about his name. State v Anderson (11/21/2013)

The court also addresses the intuitively obvious issue that nobody in any of these cases would actually feel free to leave: "To be sure, as we have already discussed, a person tendering identification to an officer may not subjectively feel comfortable refusing the officer's request. Instead, for any number of personal reasons or instincts, the person may be unwilling to decline the officer's request. Those internalized motivations and feelings are not the test for whether there is a seizure under Article I, Section 9." The court states this in Backstrand and then quotes itself in Highley and Anderson.

J. Walters, joined by J. Baldwin, dissents in Highley and Anderson and dissentingly concurs on Backstrand to disagree with the basic premise that a person whose ID is taken is not stopped. J. Brewer concurs in Highley and Backstrand to point out that the majority's treatment of the facts "may compel the conclusion that, as long they do so in a civil manner, police are free, in the absence of any articulable justification, to ask anyone in a public place for their identification".