Post details: OR: Not seizure per se to ask to check age on DL; dispatch ran info which officer didn't ask for

11/24/13

Permalink 12:00:25 am, by fourth, 1078 words, 457 views   English (US)
Categories: General

OR: Not seizure per se to ask to check age on DL; dispatch ran info which officer didn't ask for

Defendant was in an adult bookstore where a police officer was hanging out because it had been robbed a few times. Suspecting defendant and his girlfriend were underage, the officer asked them for their driver’s licenses which he held for 10-15 seconds and handed them back. He called it in for verification but did not ask for wants or warrants. Dispatch radioed back that the young man’s was under suspension. He waited for them to get into a car and leave, and he pulled defendant over for driving on a suspended license. He moved to suppress that information. The court held that asking for ID under those circumstances was not a seizure. Also, people expect that LEOs will run any ID they have. State v. Backstrand, 354 Ore. 392, 313 P.3d 1084 (2013):

[More:]

Police requests for identification are a subset within the general category of police requests for information or cooperation. But asking for and verifying identification is not unique to police-citizen encounters. Rather, as other courts have observed, in this day and age, requests for valid government-issued identification are commonplace in ordinary dealings in society, both between private citizens as well as in a variety of citizen-government contexts (such as entering public buildings). See, e.g., Golphin v. State, 945 So 2d 1174, 1189-90 (Fla 2006), cert den, 552 U.S. 810 (2007) ("[T]he act of identifying oneself through presentation of valid, government-issued identification [is] a necessary part of a panoply of human endeavors, from cashing a check to boarding an airplane.").14 Police officers, in their official dealings with citizens, likewise commonly seek to determine and verify with whom they are dealing for reasons that range from simply documenting the activities the officers engage in while on duty to ascertaining information that may assist in enforcement of the criminal laws. See, e.g., Fair, 353 Ore. at 614 (officer checked potential witness for outstanding warrants as means of verifying identification and ascertaining information relevant to investigation of domestic assault); State v. Ellenbecker, 159 Wis 2d 91, 98, 464 NW2d 427, 430 (1990) (where it is reasonable for officer to ask for license, running status check on license carries out "deterrent function of the law").

14 See also State v. Martin, 2011-0082, p 9 (La 10/25/11); 79 So 3d 951, 957 (individual is "practically immobilized" in modern society without adequate identification); People v. Jackson, 39 P3d 1174, 1189 (Colo 2002) ("[t]he need for identification is pervasive in today's society"), abrogated on other grounds by Brendlin v. California, 551 U.S. 249, 259, 127 S Ct 2400, 168 L Ed 2d 132 (2007).

Until now, this court has not been asked to decide — and has not in fact decided — whether an officer effectively seizes an individual simply by asking for an individual's identification. Where the issue is that straightforward — based on the request alone and nothing more — the circumstance comes well within the bounds of a "mere encounter," which, as we held in Holmes, police remain free to have with citizens without implicating Article I, section 9. 311 Ore. at 410. Asking for identification is exactly the kind of interaction that Holmes contemplated — a request for information and a citizen's cooperation. Id. Thus, we agree with the United States Supreme Court, which has held for purposes of the Fourth Amendment that an officer's questions relating to identity or a request for identification do not result in a seizure unless the circumstances of the encounter are "so intimidating as to demonstrate that a reasonable person would have believed he was not free to leave if he had not responded." INS v. Delgado, 466 U.S. 210, 216-17, 104 S Ct 1758, 80 L Ed 2d 247 (1984).15 For purposes of Article I, section 9, our conclusion is the same: 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 combination, Warner, Painter, and Hall confirm, at least implicitly, our holding today. Police remain free to approach citizens and to ask for or impart information and to seek their cooperation. Asking a citizen to identify himself or herself and to show police a formal piece of identification is a form of cooperation and involves the kind of information that, as a general proposition, police are free to request. But when the content of the questions, the manner of asking them, or other actions that police take (along with the circumstances in which they take them) would convey to a reasonable person that the police are exercising their authority to coercively detain the citizen, then the encounter rises to the level of a seizure, the lawfulness of which must be analyzed as such.

The purely legal issue that remains is whether verification of identification is a further circumstance that elevates a mere encounter to a seizure. We see no principled basis for concluding that, when an officer checks the validity of a proffered identity or piece of identification, such an action per se conveys to a reasonable person — who is not otherwise restrained and who has willingly tendered the information to the officer — that the officer is now exercising his or her authority to coercively restrain the person's liberty or freedom of movement. 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, however, are not the test for whether there is a seizure under Article I, section 9. A person who turns over identification to a law enforcement officer reasonably would expect that the officer will take steps to verify its validity. For the officer to do so does not objectively convey an exercise of the officer's authority to restrain the person's liberty or freedom of movement. The circumstance is akin to when a person gives valid consent to search. Part and parcel with giving consent is a reasonable person's expectation that he or she will likely either need or want to stand by while the officer performs the search. The person who waits while a consent search is completed is not thereby seized for purposes of Article I, section 9. So, too, with a person who, in a noncoercive setting, gives an officer his or her identification for the officer's examination. 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.

Accord: State v. Anderson, 354 Ore. 440, 313 P.3d 1113 (2013), and State v. Highley, 354 Ore. 459, 313 P.3d 1068 (2013).

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