State v. Najar

Under Article I, section 9, of the Oregon Constitution, a seizure occurs “(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.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010).

Defendant appealed a conviction for unlawful possession of methamphetamine. Defendant assigned error to the trial court’s ruling on Defendant’s motion to suppress evidence that was discovered by officers after a “pat down” search. On appeal, Defendant argued that he was seized when the officer instructed him to move his hands in a specific manner to retrieve his identification and further that the seizure was not authorized by the officer safety doctrine thus, the evidence should be suppressed. The State countered that the earlier seizure of Defendant - as argued by the Defendant - was lawful under the officer safety doctrine. A seizure occurs “(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.” State v. Ashbaugh, 349 Or 297, 316, 244 P.3d 360 (2010). The Court of Appeals followed the decision in State v. Ruiz, 196 Or App 324, 101 P.3d 824 (2004), rev den, 338 Or 363 (2005), and opined that officer’s directions to the Defendant were no less an exercise of authority than the officer’s directions in Ruiz, and arguably was a greater show of authority that amounted to seizure of the Defendant. The Court concluded that under the totality of the circumstances the directions given to the defendant by the officer would be reasonably construes as a show of authority requiring compliance to the officer’s request. The Court rejected the States’ alternative basis arguments that the earlier seizure was authorized by the officer safety doctrine, finding that the facts on the record were insufficient to determine whether the state had carried its burden of proving that the officer’s belief that the Defendant poses an immediate threat began with the Defendant’s first furtive movements. Reversed and remanded.