MEMORANDUM DECISION
PER CURIAM:
Nicole Ray Whitney appeals the district court's order granting a petition to modify a divorce decree. This case is before the court on a sua sponte motion for summary disposition.
Rule 4(a) of the Utah Rules of Appellate Procedure requires a notice of appeal to be filed with the clerk of the trial court within thirty days after the date of entry of the order being appealed. See Utah R. App. P. 4(a). An order is entered when it is signed by the trial court judge and filed with the clerk.See Utah R. Civ. P. 58A(c). The order being appealed was entered on September 2, 2010. Therefore, the notice of appeal must have been filed no later than Monday, October 4, 2010. The notice of appeal filed on October 6, 2010, was untimely and did not establish jurisdiction in this court to consider the merits of the appeal.
"If an appeal is not timely filed, this court lacks jurisdiction to hear the appeal." Serrato v. Utah Transit Auth., 2000 UT App 299, ¶ 7, 13 P.3d 616. Once a court has determined that it lacks jurisdiction, it "retains only the authority to dismiss the action." Varian-Eimac, Inc. v. Lamoreaux, 767 P.2d 569, 570 (Utah Ct. App. 1989). Accordingly, we dismiss the appeal for lack of jurisdiction.
Carolyn B. McHugh, Associate Presiding Judge, William A. Thorne Jr., Judge, J. Frederic Voros Jr., Judge
aware that courts and academics across the country were struggling with two pertinent issues: (1) how to deal with individual differences between arguably reasonable persons involved in citizen-police encounters;
and (2) how to deal with the stated or inferred intentions of police officers in such encounters.
We are satisfied that, when this court
defined Article I, section 9, "seizures" in
Holmes, it intended to use the "reasonable person" construct
of Mendenhall but, at the same time, to address and resolve the two concerns arising out
of Mendenhall that we have mentioned. Of particular relevance here, we believe that
Holmes part (b) was directed at the latter concern.
The court quoted the "reasonable person" definition elsewhere in Holmes. 311 Or. at 413.
See, e.g., Tracey Maclin, Black and Blue Encounters — Some Preliminary Thoughts about Fourth Amendment Seizures: Should Race Matter?, 26 Val U L Rev 243 (1991) (because, historically, "special dynamic" has surrounded encounters between police and black males, court should consider how the race of the person confronted by the police might have influenced his attitude toward the encounter); Wayne R. LaFave, 3 Search and Seizure; A Treatise on the Fourth Amendment § 9.2(h) at 407-08 (2d ed 1987) (briefly discussing and rejecting the possibility that reasonable person standard depends upon the subjective perceptions of the suspect). See also In re J.M., 619 A.2d 497, 504-07 (DC App. 1992) (Chief Judge Rogers and Senior Judge Mack concurring in part and dissenting in part) (child's perception of police encounter will be different from adults, and that difference should be taken into account when court is confronted with deciding whether police encounter with child was a seizure).
See, e.g., Edwin J. Butterfoss, Bright Line Seizures: The Need for Clarity in Determining When Fourth Amendment Activity Begins, 79 J Crim L Criminology 437, 464-66 (1988) (more realistic to take into account the subjective intent of the police officer because, when police officer does not intend to permit person to leave, person in fact is not free to leave); LaFave, 3 Search and Seizure § 9.2(h) at 407 (briefly discussing propriety of considering subjective intentions of police officers). See also State v. Shy, 373 So 2d 145, 148 (La 1979) (Dennis, J. dissenting) (when police had admitted in their testimony that they would have stopped defendant by force if he had attempted to leave, "it is legalistic, but not realistic, to pretend that an ordinary citizen would be aware of or believe in, much less rely upon the * * * shibboleth" that nothing prevents a person who is approached by police from choosing to walk away).
However, having announced in Holmes part (b), that the existence of a seizure might depend on the subjective impressions of the citizen involved, this court has seemed disinclined to use that aspect of the part (b) formulation in its decisions. Even in Holmes itself, the court glossed over the subject of the defendant's subjective beliefs about his encounter with the police, and concentrated entirely on what a reasonable person would have believed in the circumstances. See Holmes, 311 Or. at 411 (concluding that there had been no seizure because a reasonable person would appreciate being stopped and advised of traffic situation and would not believe that associated inconvenience or restriction was significant). And, since Holmes, a disinclination even to mention a suspect's subjective beliefs in connection with a part (b) analysis has been a common pattern in this court's cases. See, e.g., State v. Gerrish, 311 Or. 506, 513, 815 P.2d 1244 (1991) (holding that police did not seize defendant when they flagged him down to request information because that action not significant restriction upon the defendant's liberty, "nor would a reasonable individual believe that it was"); State v. Hall, 339 Or. 7, 19, 115 P.3d 908 (2005) (concluding that police seized defendant when they took defendant's identification for warrant check, because reasonable person would not feel free to leave when person is subject of pending warrant check); State v. Thompkin, 341 Or. 368, 378-79, 143 P.3d 530 (2006) (same).
The noted tendency in this court's cases to avoid using or even mentioning the defendant's subjective beliefs in connection with a Holmes part (b) analysis is different from the state's idea that this court has tacitly abandoned the two-part Holmes formulation altogether. The cases do, however, manifest the tendency to remove subjective belief from the part (b) analysis that we have observed.
In the handful of cases in which the defendant's subjective beliefs even are mentioned in connection with a part (b) analysis, this court sometimes has avoided any actual inquiry into the defendant's beliefs by accepting, for the purpose of argument, that the defendant subjectively believed that he had been seized. See, e.g., State v. Ehly, 317 Or. 66, 79-80, 854 P.2d 421 (1993) (assuming that defendant did not believe that he was free to leave but holding that, in any event, an objectively reasonable person would not share that belief). At other times, the court simply has assumed that a defendant's failure to assert himself shows that he subjectively believed that he had been seized. See, e.g., State v. Dahl, 323 Or. 199, 207-08, 915 P.2d 979 (1996) (defendant's submission to police order, conveyed telephonically, to come out of his house with his hands up showed that he believed that his liberty had been restricted).
In fact, this court has treated a defendant's subjective belief that his or her liberty has been intentionally and significantly restricted as a separate and necessary element of a Holmes part (b) seizure in only one case — Toevs. Significantly, Toevs is the case that the Court of Appeals relied on when it remanded to the trial court to determine what defendant subjectively believed.
State v. Juarez-Godinez, 326 Or. 1, 942 P.2d 772 (1997), also appears to treat the defendant's subjective belief as a separate and necessary element of a part (b) analysis. However, Juarez-Godinez is complicated by the fact that the court appeared to employ both a part (a) and a part (b) analysis, without distinguishing between them and by the further fact that the case involved the seizure of an automobile, not a person. 326 Or. at 6-10.
In Toevs, this court opined that, for purposes of the Holmes formulation, what a defendant subjectively believes is a question of fact to be resolved by the trial court, while whether that belief is objectively reasonable requires an independent assessment of the facts by the reviewing court. 327 Or. at 535. In Toevs, this court understood the trial court to have found that the defendant subjectively believed that his freedom of movement had been restricted at the relevant time, and noted that that finding was supported by the record. Id. at 536. This court then proceeded to independently assess whether the defendant's belief was objectively reasonable, and stated its conclusion in that regard in the following terms:
"Under the totality for the circumstances, we conclude that a reasonable person in defendant's position
could have believed that the officers significantly had restricted his liberty or freedom of movement."
Id. (emphasis added). The use of the phrase "
could have believed" in that sentence clearly is an anomaly. In every other case in which this court has purported to apply
Holmes, including those that were issued after
Toevs, the court's conclusions have been phrased in terms of what a reasonable person "would" have believed.
See, e.g., Hall, 339 Or. at 19;
Thompkin, 341 Or. at 378. The trend, not the anomaly, describes the question correctly. "Would" is correct; "could" was a regrettable misstatement.
4. For the foregoing reasons, we believe that it is time to abandon forthrightly the subjective component of that part of the Holmes part (b) test — that is, the part that is concerned with a person's subjective belief that he or she has been seized — and instead to direct the focus of that part of the definition entirely to an objective standard. 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. 5. Applying that standard to the facts in this case, we conclude that defendant was not seized within the meaning of Article I, section 9, when Schaer recontacted her after putting her husband in a police car, asked her about the contents of her purse, and asked whether she would permit him to search the purse. Although it is possible to restrict a person's liberty and freedom of movement by purely verbal means, there is no evidence that would support a conclusion that that is what happened here. Certainly, the content of Schaer's questions did not cause defendant to be seized: As we repeatedly have observed, even though Schaer asked defendant a question that one private citizen ordinarily would not ask another, defendant does not point to anything about Schaer's words that would be perceived as "show of authority that restricted [her] freedom of movement." Rodgers/Kirkeby, 347 Or. at 622.
We describe our concern so narrowly because we are of the view that one other example of subjective belief might remain relevant: If a person affirmatively (but wrongly) believes that he or she is free to go, his or her consent to a search may be valid. This case does not present the question — we simply note here that it remains unanswered.
The controversy in the present case focuses on the "objective reasonableness" and subjective "belief aspects of part (b) of the Holmes standard and we have limited our analysis of the standard accordingly. We recognize that, in the eyes of some readers, part (a) of the standard contains a "subjective" element that is susceptible to the same criticisms as is the subjective element of part (b) — specifically, the reference to law officers "intentionally" restricting a person's freedom of movement. Although our present sense is that the intentionality aspect of part (a) is quite different from the subjective belief aspect of part (b) and serves a different and more defensible purpose, we are open to any argument to the contrary that the state or any other party might wish to make in a future case.
Neither is there any basis for concluding that Schaer's manner or actions involved a "show of authority." Schaer's request was not accompanied by any physical action that could be construed as threatening or coercive — he did not, for example, position himself and his fellow officer in a way that would suggest to defendant that she was surrounded. See Rodgers/Kirkeby, 347 Or. at 627 (illustrating that tactic). In fact, the trial court found that the conversation between Schaer and defendant was "relaxed and nonconfrontational," and we are bound by that finding, because there is evidence in the record to support it. Moreover, the officers had returned defendant's identification to her and left her alone while completing the arrest and transportation of her husband. Thus, while it may have been true that defendant had been unlawfully detained by police some minutes before and had watched a clear show of authority directed at her husband, those circumstances had ended. They did not create the kind of atmosphere that would convey to a citizen that she was not free to go at the later time.
Considering the totality of the circumstances, we conclude that Schaer's actions in asking defendant the questions that he did under the circumstances that existed did not "intentionally and significantly" restrict or interfere with her liberty. We further conclude that an objectively reasonable person in defendant's circumstances would not believe that Schaer had done so. Accordingly, we reject defendant's contention that, in light of the surrounding circumstances, Schaer's questions about the contents of her purse and his request for consent to search the purse amounted to a seizure for purposes of Article I, section 9, of the Oregon Constitution. It follows that, whatever connection there might be between those questions and defendant's consent to the search of her purse, the consent was not the product of an unlawful seizure.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.
KISTLER, J., concurring.
I join in the majority opinion in this case. I also agree with the principle stated in Justice Durham's concurring opinion that defendant's voluntary consent provides an alternative basis for affirming the trial court's judgment.
Linder J., joins in this concurring opinion.
DURHAM, J., specially concurring.
I agree with the majority that the trial court correctly denied defendant's motion to suppress the evidence, and that defendant's conviction should be affirmed. However, I do not agree with the majority's explanation of its reasons for affirming defendant's conviction. I would decide this case on narrower and, I submit, simpler grounds.
The only question that this case poses is whether the police officers conducted an unreasonable search when they examined the interior of defendant's purse and saw drug paraphernalia. If that search was lawful, then the officers' subsequent observations supplied them with probable cause to seize the drug evidence.
The state defends the police search here on the ground of consent. A citizen's voluntary consent to a police search is an exception to the requirement of a search warrant. A valid consent confirms, for legal purposes, that the resulting search is reasonable and does not violate the citizen's rights under Article I, section 9, of the Oregon Constitution. State v. Weaver, 319 Or. 212, 219, 874 P.2d 1322 (1994). Courts must examine the totality of the evidence to determine whether the citizen consented to the search voluntarily, rather than as the result of police coercion, express or implied. State v. Parker, 317 Or. 225, 230, 855 P.2d 636 (1993).
In this case, two aspects of the trial court record greatly simplify the court's examination of the consent issue. First, defendant admitted that she consented to the search of her purse by the police. Second, defendant also conceded that her consent to the search of her purse was voluntary. The majority and the dissent give almost no attention to those significant admissions. To me, however, those admissions dispose of all or virtually all of defendant's arguments that the search of her purse was unreasonable.
The majority and the dissent focus instead, at agonizing length, on whether the two police officers interfered with defendant's freedom of movement, that is, whether they "seized" her, during either of their two encounters with her in the park. As it turns out, the seizure issue ultimately does not matter in this case, however the court decides it. I will briefly explain why that is so.
In the consent search context, a defendant commonly challenges the voluntariness of consent by pointing to evidence that the police had restrained the defendant's liberty of movement at or before the moment when the alleged consent was granted. A restraint on liberty is relevant to the validity of consent in that kind of case. By establishing that the police first seized the defendant, the defendant can argue that the seizure (and any other coercive circumstances) over-came his or her free will and rendered any subsequent statement of consent involuntary.
That argument, however, is beside the point here because of defendant's concessions, noted above. Even if the police encounter with defendant amounted to a stop or an arrest, the trial court correctly declined to treat it as having a coercive influence on defendant because defendant stipulated that her consent to the search of her purse was voluntary.
One other argument merits discussion. Evidence seized by police will be treated as "fruit of the poisonous tree" and suppressed if the police commit an illegality, such as an invalid stop or arrest, and subsequently exploit that illegality to obtain the disputed evidence. State v. Rodriguez, 317 Or. 27, 38, 854 P.2d 399 (1993). Under that theory, it is not sufficient that the initial illegality stands in a mere "but for" causal relationship to the seized evidence. Other causal factors can intervene to lead the police to the evidence. Evidence remains "fruit of the poisonous tree" and subject to suppression only if the initial police illegality, when compared to other intervening causal factors, was the reason for the discovery of the evidence by the police. Id. at 39-40; State v. Hall, 339 Or. 7, 45, 115 P.3d 908 (2005) (Durham, J., concurring in part and dissenting in part).
Defendant argues that the evidence seized here was the result of police officers' exploitation of the unlawful stop or arrest of defendant in their first or second encounter (or both) with her. But the facts do not demonstrate the required sort of exploitation. Rather, according to the evidence, the event that brought the disputed evidence to light was defendant's voluntary consent to a search of her purse. Even if the police encounter with defendant began with an invalid stop or arrest, the facts establish that her voluntary consent exposed the evidence to the police and that the initial stop or arrest did not compel her to consent to the search of her purse.
For the reasons expressed above, the majority reaches a correct conclusion about defendant's exploitation theory, even though my analysis of that theory differs significantly from that employed by the majority. And, as noted, the majority's ultimate answer here — that the trial court properly denied defendant's motion to suppress evidence — is correct.
I concur.
WALTERS, J., dissenting.
When uniformed police officers have no reasonable suspicion that a citizen is engaged in criminal activity, do those officers violate Article I, section 9, of the Oregon Constitution when they approach that citizen and, after obtaining her identification and checking for warrants, question her about whether she is committing a crime and whether they can search her purse for evidence of that crime?
I conclude that officers who engage in that conduct seize the citizen in violation of the Oregon Constitution because a reasonable citizen subjected to that inquiry could conclude that the officers' legal show of authority restrained that citizen's liberty. Because the majority reaches the opposite conclusion, without a reasoned basis for doing so, I respectfully dissent.
In this case, the state conceded, and the majority proceeds on the assumption, that the officers seized defendant and violated her rights under Article I, section 9, when, without reasonable suspicion that she was engaged in criminal activity, they approached her, obtained her identification, and checked for outstanding warrants. 349 Or. at 302 n 2, 306 n 6. That conclusion is compelled by this court's decision in State v. Hall, 339 Or. 7, 18, 115 P.3d 908 (2005). In Hall, an officer requested, obtained, and returned the defendant's identification card and radioed for a warrant check. The court held that, when the officer did so, he restrained the defendant's liberty of movement and seized the defendant because it is "difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a pending warrant check." Id. at 19.
I do not see a constitutional distinction between subjecting a person to a check for outstanding warrants and subjecting a person to a check for illegal drugs. If a reasonable person in the former position would not feel free to leave, why would a reasonable person in the latter position be more bold?
Furthermore, this court previously has decided that, when the police obtain a citizen's identification and subject him to an investigation for robbery, they seize him. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978). In Warner, the police approached the defendant to investigate a robbery, and
"this court held that, at the moment that the officer told the defendant to place his identification card on the table and advised the defendant that he was the subject of a criminal investigation [for robbery], the officer had seized the defendant by a
show of authority for purposes of ORS 131.615
(1975),
amended by Oregon Laws 1997, chapter 866, section 1, and Article I, section 9. [
284 Or. at 165]."
Hall, 339 Or. at 18 (emphasis added).
In Hall, the court also noted that in State v. Kennedy, 290 Or. 493, 624 P.2d 99 (1981), a case in which "two police officers approached the defendant as he was pre-paring to exit the Portland airport and informed him that they had information that he might be in possession of illegal drugs," the court assumed that the police interaction with the defendant was unlawful. Hall, 339 Or. at 30-31.
In State v. Thompkin, 341 Or. 368, 143 P.3d 530 (2006), this court applied the rule of Warner and Hall to a person who was the subject of a drug investigation. In Thompkin, the police lawfully stopped a car in which the defendant was a passenger. The court held that the police unlawfully seized the defendant when one officer requested and retained his identification to conduct a records check while another questioned him concerning drugs and weapons. The court said,
"Here, as in
Hall, we find it doubtful that a reasonable person in defendant's position would think that he or she was free to leave at a time when that person was the investigatory subject of a pending warrant check and
was being questioned about illegal activity."
Id. at 378-79 (emphasis added).
This court's most recent seizure case, State v. Rodgers/Kirkeby, 347 Or. 610, 227 P.3d 695 (2010), is in accord. In that case, an officer lawfully stopped the defendant, Rodgers, a motorist, to investigate a traffic infraction, obtained and returned his driver's license, and completed a check for outstanding warrants, finding none. Then, without advising the defendant that that investigation had been completed, one officer asked the defendant about the contents of two containers that the officer had observed in the car and whether the officer could search the car, while the other officer stood at the passenger side of the car.
The court held that, although the police had reasonable suspicion to stop the defendant and question him about the traffic violation, they seized him without reasonable suspicion and violated his rights under Article I, section 9, when they engaged in a "show of authority" after the traffic investigation was, or should have been, complete. Id. at 622. In reaching that conclusion, the court first noted that when a police officer uses official authority to stop and question a citizen, the citizen is legally required to obey and "interact with" the police officer. Id. at 623 (citing ORS 811.535 (failure to obey a police officer), ORS 807.570 (failure to carry or present a license), and ORS 807.620 (prohibiting giving false information to police officer)). The police therefore seized the defendant when they stopped him and investigated the traffic violation. When that investigation was complete, the officers did not tell the defendant that he was free to go and therefore continued to seize him. Because they did so without reasonable suspicion that the defendant was involved in criminal activity, the police violated the defendant's rights under Article I, section 9. The court observed that the defendant "had no way of knowing that [the officer's] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the drug] investigation was not required to continue." Id. at 626.
The other defendant in that case, Kirkeby, also a motorist, got out of his car after he was stopped by a deputy and voluntarily produced his driver's license. The deputy knew that the defendant was driving with a suspended license, but did not question him about that violation or issue a citation. Instead, the deputy, concerned for his safety, asked the defendant if he had any weapons. When the defendant denied that he did, the deputy asked if he could conduct a patdown search of the defendant. The defendant agreed and, after conducting the search, the deputy was confident that the defendant was not armed. Nevertheless, the deputy asked the defendant for permission to examine the contents of his pockets. The court held that the "deputy's show of authority that accompanied his request that [the] defendant consent to a patdown and subsequent request that [the] defendant consent to an examination of the contents of [the] defendant's pockets" was "a significant limitation on [the] defendant's freedom of movement" and constituted a seizure under Article I, section 9. Id. at 628.
Here, had the majority applied the reasoning of its prior cases, it would have concluded that defendant was similarly seized and that her rights under Article I, section 9, were similarly violated. Applying Hall, Warner, and Thompkin, the majority would have concluded that defendant was seized because the police obtained her identification and subjected her to a criminal investigation, and it is "difficult to posit that a reasonable person would think that he or she was free to leave at a time when that person is the investigatory subject of a [criminal investigation]," Hall, 339 Or. at 19, or "[is] being questioned about illegal activity," Thompkin, 341 Or. at 379.
Applying Rodgers/Kirkeby, the majority would have concluded that defendant was seized because, after their initial seizure of defendant, the officers did not tell her that she was free to go, and she "had no way of knowing that [the officer's] questions and request to search [her purse] were not part of the [initial investigation] and that [her] cooperation in [the drug] investigation was not required to continue." 347 Or. at 626. Applying Rodgers/Kirkeby, the majority also would have concluded that the officer's "show of authority" in requesting consent to search constituted a seizure. 347 Or. at 628.
Instead of reaching any of those conclusions, the majority declares that the officer who questioned defendant did not engage in a "show of authority" that would "convey to a citizen that she was not free to go." 349 Or. at 317. Of the contrary cases that I have cited, the majority attempts to distinguish only Rodgers/Kirkeby. The majority asserts that this case is different from Rodgers/Kirkeby because the officers in this case did not position themselves in a way that "would suggest to defendant that she was surrounded." 349 Or. at 317.
That distinction fails for two reasons. First, there was no evidence in Rodgers I Kirkeby that the defendant Kirkeby was "surrounded" by the one officer who questioned him, and the defendant in this case was at least as "surrounded" by the two officers who questioned her as was the defendant Rodgers in Rodgers/Kirkeby. This defendant was seated on the ground when two officers who had just arrested and handcuffed her husband continued to question her. If Rodgers, who was at the wheel of a car and could drive it away, was restrained by two officers who stood near the car, then defendant in this case, who was without a similar means of departure, also was restrained by the two officers who stood near her.
Second, although the court in Rodgers/Kirkeby noted the positions of the two officers who questioned the defendant Rodgers in its account of the "totality of the circumstances" that affected him, the court did not take note of the position of the one officer who requested the defendant Kirkeby's consent to search, or comment that the officer had physically restrained him. The court focused, as did the courts in Warner, Hall, and Thompkin, not on the physical, but on the legal "show of authority" that the police exhibited and exerted when they subjected those defendants to questioning. In this case, the officers, like those in Rodgers/Kirkeby and the cases leading up to Rodgers/Kirkeby, were in uniform, obtained defendant's identification, and subjected defendant to legal obligations parallel to those that the court found pertinent in Rodgers/Kirkeby. See ORS 811.535 (failure to obey a police officer); ORS 162.247(1)(b) (failure to obey a peace officer); and ORS 162.385 (prohibiting giving of false information for a citation or arrest on a warrant). The officers in this case, like those in Rodgers/Kirkeby, subjected defendant to an investigation for outstanding warrants, and defendant reasonably believed that she was required to cooperate with that investigation. When those same officers continued their criminal inquiry without telling defendant that she was free to go, defendant had no way to know that her cooperation was not required and she was seized.
When the majority declares, instead, that a reasonable person in defendant's circumstances would not believe that the police had restrained her liberty, 349 Or. at 317-18, it ignores not only the legal authority that the police exhibited, but also social science research that demonstrates that people subjected to such authority believe that they are required to cooperate with the police and are not free to leave when subjected to questioning.
"[T]he available evidence suggests most people perceive an investigative encounter to be a seizure." Daniel J. Steinbock, The Wrong Line Between Freedom and Restraint: The Unreality, Obscurity, and Incivility of the Fourth Amendment Consensual Encounter Doctrine, 38 San Diego L Rev 507, 556-57 (2001). Empirical studies have shown that several features unique to police-citizen encounters undermine the idea that such encounters are consensual. See Janice Nadler, No Need to Shout: Bus Sweeps and the Psychology of Coercion, 2002 Sup Ct Rev 153, 173 (2002) (features include whether investigator is a legitimately constituted authority). Those studies show that an officer's status as an authority figure leads citizens to believe that their cooperation is required, not requested:
"[T]he listener is likely to conclude that an utterance is in fact a directive, or an order to be followed. For example, citizens generally do not interpret `Can I please see your license and registration?' as spoken by a police officer as a genuine request; it is a command, and everyone understands this. * * * Importantly, authority figures do not need to employ highly face-threatening language to achieve their goal."
Nadler, 2002 Sup Ct Rev at 188 (citing Thomas Holtgraves, Communication in Context: Effects of Speaker Status on the Comprehension of Indirect Requests, 20 J Exp Psychol: Learning, Memory, Cognition 1205 (1994)). In a survey of 54 citizens involved in vehicle searches, 49 of whom consented to the search, 47 responded that they were afraid of what might happen should they refuse.
"Their fears included having their trip unduly delayed, being searched anyway, incurring property damage to their car if they refused and police searched anyway, being arrested, being beaten, or being killed. * * *.
"* * * * *
"When asked if they felt the police would have honored their request if they had refused, only one citizen answered `yes,' and one did not know. All of the remaining respondents (96%) felt that police would not have honored their refusal and would have searched them anyway. Their concerns were apparently well founded: of the five motorists who declined to consent to the search, two reported being searched despite their explicit refusal to consent. Another motorist who refused to consent was not searched but was threatened with future retaliation."
Nadler, 2002 Sup Ct Rev at 202-03 (citing Illya D. Lichtenberg, Voluntary Consent or Obedience to Authority: An Inquiry Into the "Consensual" Police-Citizen Encounter (1999) (unpublished Ph.D. dissertation, Rutger's University)).
By citing those studies, I do not suggest that this court determine the meaning of the constitutional term "seizure" by engaging in a normative inquiry. What I do suggest is that, in giving effect to that term, this court use a mode of analysis that allows for the fact that our society is not homogenous and that, although some reasonable people may conclude that they are free to walk away from an officer who questions them, others, just as reasonably, may conclude otherwise. The analysis that the court announced in State v. Holmes, 311 Or. 400, 409-10, 813 P.2d 28 (1991), and applied in State v. Toevs, 327 Or. 525, 535, 964 P.2d 1007 (1998), State v. Juarez-Godinez, 326 Or. 1, 6, 942, P.2d 772 (1997), State v. Dahl, 323 Or. 199, 207-08, 915 P.2d 979 (1996), and State v. Ehly, 317 Or. 66, 78-79, 854 P.2d 421 (1993), was designed to do just that.
That analysis allows a court to ascertain, as it often does in other contexts, the belief or conclusion that a particular citizen had or reached, but to refrain from giving effect to that belief or conclusion if it does not fall within the range of reasonableness. See, e.g., T. R. v. Boy Scouts of America, 344 Or. 282, 181 P.3d 758 (2008) (factfinder determines whether plaintiff knew that defendant had a role in causing injury; court determines whether that conclusion objectively reasonable); Delgado v. Souders, 334 Or 122, 137, 46 P.3d 729 (2002) (factfinder determines whether plaintiff was alarmed and had reasonable apprehension regarding personal safety; court determines whether belief objectively reasonable); State v. Villagran, 294 Or. 404, 408, 657 P.2d 1223 (1983) (magistrate decides that probable cause to believe search would discover items specified in affidavit and court reviews whether neutral and detached magistrate reasonably could reach that conclusion); State v. Krummacher, 269 Or. 125, 137-38, 523 P.2d 1009 (1974) (court may not agree with jury's conclusion but must affirm if within realm of reasonableness).
The sole reason that the majority gives for abandoning that Holmes analysis is that "this court has seemed disinclined" to use it. 349 Or. at 314. Although the majority does not assert that the Holmes formulation was unworkable or caused difficulty for the police, I note that that formulation permits the police to subject citizens to criminal inquiry as long as they have reasonable suspicion that the citizens are engaging in criminal activity, and to do so, even without reasonable suspicion, if they directly inform the citizens (and do not engage in contradictory action).
In evaluating whether a person who is confronted by a police officer is seized, a trial court should not engage in the task of deciding whether a hypothetical person with unidentified characteristics and experiences would or would not feel free to leave; it should determine whether, as a matter of fact, the particular defendant believed that she was free to leave, and then, as a matter of law, whether the defendant's belief was within the range of reasonable beliefs. That mode of analysis is well-known to the trial courts and accommodates the diversity of our citizenry.
The Holmes formulation also benefits the state in that it would permit a court to consider, in deciding whether a citizen was seized, the citizen's acknowledgment that she believed that she was free to leave, and, if that belief is reasonable, to conclude that the citizen was not seized even if a hypothetical reasonable person would, in the majority's view, have believed to the contrary. See State v. Salvador, 237 Or. App. 424, 431-32 (2010) (Court of Appeals decided that defendant was not seized in part based on his concession "that he felt `100 percent' free to leave the scene.") See also State v. Ford, 310 Or. 623, 642-43, 801 P.2d 754 (1990) (Carson, C. J., specially concurring) (explaining that test of when "knock and announce" requirements will be excused should have subjective component to ensure that apprehension actually exists).
In deciding that the only reasonable belief that the defendant in this case could have had was that she was free to walk away from the officers who questioned her, this court ignored not only defendant's personal reaction to the situation that she faced, but also the expectations that the law imposed on her and on all citizens who are subjected to police encounters. Even if there were good reasons for the majority to preclude consideration of the former, the majority erred in failing to consider the effect of the latter on the issue of objective reasonableness.
ORS 131.615 permits police officers to stop citizens and request their consent to search, but only when the officers have reasonable suspicion of criminal activity. ORS 162.247, ORS 162.385, and ORS 811.535 require citizens to obey police orders and provide police officers with accurate information. When a uniformed officer approaches a citizen and conducts a criminal inquiry, it is therefore reasonable for the citizen to understand that the officer has the required justification and, thereby, authority to detain the citizen, and it is legally reasonable for the citizen to act accordingly. If an officer approaches a citizen and conducts a criminal inquiry without reasonable suspicion, the citizen does not have any way to know that that suspicion is lacking or that the officer has made an unjustified request that can be ignored. If a citizen refuses to cooperate and is incorrect in doing so, the encounter may escalate and the citizen may violate the law. The law does not encourage a citizen to challenge police authority; it expects the citizen to recognize that authority and behave in accordance. When the citizen remains and submits to police investigation, believing that he or she must do so, he or she acts reasonably.
Although the Oregon legislature may require the citizens of this state to cooperate with legitimate governmental inquiries, those citizens have a concomitant constitutional right to expect that the government will respect their privacy and not subject them to unreasonable scrutiny. See State v. Tanner, 304 Or. 312, 321-22 n 7, 745 P.2d 757 (1987) (rights under Article I, section 9, defined by privacy one has a right to expect from government). The rights against unreasonable search and seizure that Article I, section 9, guarantees are rights that are held in common by all "the people" of this state — those who drive its roads, certainly, but also those who sit in its parks and walk its sidewalks as they live their daily lives. When this court permits the police to approach any one person and, without reasonable suspicion of criminal activity, request her identification and conduct a criminal inquiry, it interferes with the rights of all people to be free of unwarranted official scrutiny. I respectfully dissent.