State v. Leiby

“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.” State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010) (internal quotation marks omitted).

Defendant appealed his conviction of driving with a suspended license. Defendant assigned error to the trial court’s denial of his motion to suppress. Defendant argued that, under the Oregon Constitution, his encounter with the police was considered a stop and that he was unlawfully seized because he felt restricted and unfree to leave. The State argued that the police encounter was merely an encounter and not a stop. If an officer “’intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual’s liberty or freedom of movement’” or the person reasonably believes, under the totality of the circumstances, that the officer is intentionally and significantly restricting, interfering, or depriving individual liberty or freedom, then a seizure has occurred. State v. Ashbaugh, 346 Or 297, 316 P3d 360 (2010) (citing the Article 1, section 9, of the Oregon Constitution). Questions asked by an officer alone is not sufficient to rise to the level of a seizure, however, if the officer's conduct goes “’significantly beyond that accepted in ordinary social intercourse,’” it is considered a seizure. State v. Backstrand, 354 Or 392, 403, 313 P2d 1084 (2013). The Court, after reviewing the totality of the circumstances, found that the officer went “’significantly beyond that accepted in ordinary social intercourse’” because the officer followed the defendant through two parking lots and, while asking a question, confronted the defendant. The Court found it reasonable for the defendant to believe that he was to remain and answer the officer’s questions. Reverse and remanded.