S057189, Opinion — State v. Ashbaugh

297
Argued and submitted November 3, 2009, decision of Court of Appeals reversed;
judgment of circuit court affirmed December 9, 2010
STATE OF OREGON,
Petitioner on Review I
Cross-Respondent on Review,
v.
CHARITY ANN ASHBAUGH,
Respondent on Review I
Cross-Petitioner on Review.
CC C052367CR; CAA131117;
SC 8057189 (Control), 8057188
(Consolidated for argument and opinion)
244P3d360

298 	State v. Ashbaugh
CJS, Arrest § 45.
En Banc
On review from the Court of Appeals.*
Paul L. Smith, Assistant Attorney General, Salem, argued
the cause and filed the brief for petitioner on review/cross-
respondent on review. With him on the brief was John R.
Kroger, Attorney General.
Joshua B. Crowther, Senior Deputy Public Defender,
Salem, argued the cause and filed the brief for respondent on
review/cross-petitioner on review. With him on the brief was
* Appeal from the Washington County Circuit Court, Donald R. Letourneau,
Judge. 225 Or App 16, 200 P3d 149 (2008).

Cite as 349 Or 297 (2010) 	299
Peter Gartlan, Chief Defender, Office of Public Defense
Services.
Julia E. Markley and Lynne M. Paretchan, Perkins Coie
LLP, Portland, and Chin See Ming, Legal Director, ACLU
Foundation of Oregon, Inc., Portland, filed the brief for
amicus curiae ACLU Foundation of Oregon, Inc.
GILLETI'E, J.
The decision of the Court of Appeals is reversed. Thejudg~
ment of the circuit court is affirmed.
Kistler, J., concurred and filed an opinion, in which
Linder, J., joined.
Durham, J., specially concurred and filed an opinion.
Walters, J., dissented and filed an opinion.

300 	State v. Ashbaugh
GILLETI'E, J.
This case concerns a criminal defendant's motion to
suppress evidence obtained in a consent search of her purse.
Defendant argued to the trial court that suppression was
required because her consent to the search was a product of
prior conduct on the part of the police that violated her rights
under Article I, section 9, of the Oregon Constitution-
specifically, an unreasonable and, therefore, unlawful, sei-
zure of her person. The trial court rejected that argument
but, on defendant's appeal, the Court of Appeals remanded
for further factfinding, holding that the consent search was
causally related to an encounter between defendant and the
police and that, "depending on facts that neither party [had]
developed at trial," the encounter may have been an unlawful
seizure. State v. Ashbaugh, 225 Or App 16, 18, 200 P3d 149
(2008). We allowed both parties' petitions for review and now
conclude that the trial court properly determined that defen-
dant's consent to the search did not derive from an unlawful
seizure and therefore did not violate Article I, section 9.
Accordingly, we reverse the decision of the Court of Appeals
and affirm the judgment of the trial court.
The incident at the heart of this case occurred on a
summer afternoon in a public park in Beaverton. Two police
officers, Barroncliffe and Schaer, were patrolling in the vicin-
ity of the park. They were armed and in uniform, and each
was riding a department-issued mountain bicycle. As the two
officers rode through the park, they observed defendant and
her husband sitting on the ground under a tree. The officers
had no reason to suspect defendant and her husband of crim-
inal activity, but they thought it was "unusual" that a
middle-aged couple like them would be sitting in that partic-
ular park at that time, because the park generally was fre-
quented by children and elderly persons in the middle of the
afternoon.
Barroncliffe and Schaer approached the couple and
said to them: "Hey, you're not in any trouble, [but] do you
have some I.D. we can see?" Both defendant and her husband
handed over identification cards, which the officers pro-
ceeded to "run" 1 through the police dispatcher. According to
1 Of course, to "run" identification means to have it reviewed by someone-
normally a person located some distance from the place where the identification

Cite as 349 Or 297
both officers, their encounter with defendant and her hus-
band was "relaxed."
After a two-minute wait (during which time the offi-
cers, defendant, and defendant's husband engaged in "casual
conversation"), the officers learned that defendant's husband
was the subject of a restraining order that prohibited him
from having contact with defendant. Barroncliffe and Schaer
reported what they had learned to defendant and her hus-
band and told them that they were placing defendant's hus-
band under arrest for violating the restraining order. The
officers returned defendant's identification to her and then
turned to 	the 	task of taking defendant's husband into
custody.
The 	officers began 	that process 	by 	handcuffing
defendant's husband and requesting by radio a car to trans-
port the husband to jail. While waiting for the car to arrive,
they talked with defendant and her husband about the
restraining order. In the course of that conversation, defen-
dant told the officers that she knew about the restraining
order, that she and her husband were "trying to work it out,"
and that they were living together. When the car arrived,
Barroncliffe and Schaer walked defendant's husband down a
pathway and through a break in a chainlink fence that sepa-
rated the park from the street (a distance of 35 to 50 feet),
patted him down for weapons, and then placed him inside the
car. Defendant remained under the tree during the approxi-
mately five minutes that it took to complete that process.
Barroncliffe and Schaer then returned to the area
where defendant was waiting. Schaer told defendant that her
husband had asked if she would take his belongings with her.
Then (according to Schaer), "something inside of [Schaer]
made [him] want to ask if [he] could look in [defendant's]
purse." Whatever the source, Schaer surrendered to his
·-----·-------~---- -------
was tendered to the police-who is in a position to determine whether the person so
identified is the subject, inter alia, of an outstanding warrant or other court order.
This verbal specimen oflaw enforcement argot may be sufficiently enough under-
stood in present day culture that it needs no explanation. It is not, however, the
way courts or even the majority of individuals express themselves. We offer our
explanation out of a recognition that, if we do not do so from time to time, we shall
cause readers to believe what Mark Twain described in his preface to Huckleberry
Finn, viz., that "all [our] characters were trying to talk alike and not succeeding."

302 	State v. Ashbaugh
impulse and asked defendant "if she had anything illegal in
her purse." She replied that she did not. Schaer then asked
defendant if he could search her purse and defendant replied,
''Yeah, sure." Schaer opened the purse and found a smudged
mirror, several clear plastic baggies that each contained a
small amount of clear crystalline substance, and some short
straws. When asked about what he had found, defendant told
Schaer that the substance was methamphetamine; she also
made other incriminating statements. Schaer then cited
defendant for possession of a controlled substance.
Before her trial on the possession charge, defendant
moved to suppress all evidence obtained in connection with
the search of her purse. She acknowledged that she had con-
sented to that search, but argued that her consent was the
direct product of a prior unlawful "stop," which occurred
either when the officers asked her for identification or when
the officers approached her a second time, asked her about
the contents of her purse, and asked whether she would per-
mit them to search it. Defendant asserted that, in either
event, the evidence was obtained through illegal police con-
duct and must be suppressed.
The trial court rejected both arguments and denied
the motion to suppress. After hearing the testimony of the
two police officers and the arguments of the parties, the court
opined that the issue resolved into two questions: First, could
the state show that defendant's consent was independent of,
or only tenuously related to, the initial encounter between
defendant and the police, which the state had conceded was
an unlawful stop? 2 Second, if defendant's consent to the
search was independent of that initial stop, was defendant
unlawfully seized again when Schaer asked for consent to
search her purse? With respect to the first question, the trial
court concluded that the unlawful stop did not significantly
affect defendant's decision to consent to the search. Concern-
ing the second question, the court held that the request for
2 The trial court accepted the state's concession that the police officers had
unlawfully stopped defendant when they obtained her identification and ran a rec-
ord check. The trial court also accepted defendant's concession that her consent to
the search of the purse was, in fact, voluntary. We have not been asked by the par-
ties to reexamine either of those premises, and we do not.

Cite as 349 Or 297 (2010) 	303
consent to search was not a seizure at all but, instead, was
"properly viewed as mere conversation." The trial court
denied defendant's motion to suppress and, after a trial on
stipulated facts, defendant was convicted.
On defendant's appeal, a divided Court of Appeals
rejected the trial court's analysis and remanded for determi-
nation of certain facts that, in its view, were necessary to
resolve the case under the proper analysis. The majority
agreed with the trial court that the original, concededly
unlawful stop did not require suppression of the evidence at
issue, 3 but it was less sure about defendant's alternative
argument that a separate unlawful stop occurred when
Officer Schaer, "prompted only by 'something inside of
[him],' " asked defendant if she had anything illegal in her
purse and, then, whether she would allow him to search it.
Ashbaugh, 225 Or App at 22. Noting that the essential ques-
tion was whether the latter incident constituted a "stop," the
majority sought to answer that question through application
of this court's oft-quoted statement from State v. Holmes, 311
Or 400, 813 P2d 28 (1991), that a person is "seized" for pur-
poses of Article I, section 9, of the Oregon Constitution:
" '(a) if a law enforcement officer intentionally and signifi-
cantly restricts, interferes with, or otherwise deprives an
individual of that individual's liberty or freedom of move-
ment; or (b) whenever an individual believes that (a), above,
has occurred and such beliefis objectively reasonable under
the circumstances.' "
Ashbaugh, 225 Or App at 22 (quoting Holmes, 311 Or at 409-
10). After observing that the individual's subjective belief
appeared to be a necessary element of a seizure under part
(b) 4 of the quoted test, and that the trial court had not
3 Like the trial court, the Court of Appeals' majority accepted the state's con-
cession that the officers unlawfully seized defendant when they asked for her iden-
tification and ran a warrants check. The majority concluded, however, that defen-
dant had failed to establish even a minimal causal connection between that
unlawful seizure and her consent to the search of her purse. It noted that the war-
rant check of defendant's identification "came back negative, at which point defen-
dant was free to leave." 225 Or App at 22.
4 For lack of a better word, we identify the two sections of the Holmes definition
as "parts~-that is, we refer to "part (a)" and "part (b)" of the definition. We do not
mean to convey, by our use of that term, that the two sections of the definition set

304 	State v. Ashbaugh
resolved that issue, the majority remanded the case to the
trial court to determine what defendant subjectively had
believed at the relevant time. The majority instructed the
trial court that, if it found that defendant in fact did believe
that her freedom of movement had been restricted when
Schaer asked her for consent to search her purse, then it
must find that she was seized for constitutional purposes.
That was so, in its view, because a reasonable person in
defendant's position could have held that belief, fulfilling the
objective reasonableness requirement of Holmes part (b). Id.
at 25 (citing State v. Toevs, 327 Or 525, 535-36, 964 P2d 1007
(1998)).
A concurring opinion raised a concern about the lat-
ter point, questioning whether, to establish "objective reason-
ableness" for purposes of showing that a person has been
seized under part (b) of the Holmes formulation, this court
intended to require that a reasonable person would have
believed their liberty had been intentionally and signifi-
cantly restricted, or only that such a person could have held
that belief. In the end, the concurrence decided to "take [this
court] at its word in Toevs that it is enough to [show] that a
reasonable person in defendant's position could * * * believe
that the officers significantly had restricted her liberty."
225 Or App at 32 (Brewer, C. J., concurring) (emphasis in
original). 5
Two judges dissented. The dissent maintained that
the majority had erred in remanding for a determination of
defendant's subjective state of mind when there was no evi-
dence in the existing record pertaining to that subject and no
lawful way of obtaining evidence of that sort, because the
state could not compel defendant to testify regarding her
state of mind. The dissent summed up its concern in the fol-
lowing terms:
---·-------------
out elements that both must be present. Rather, as the use of the word "or" in the
Holmes definition implies, "part (a)" and "part (b)" are alternative methods for
establishing, together or alone, that conduct or circumstances constitute a seizure.
A second concurring opinion agreed with the majority that the case should be
remanded for factfinding on defendant's subjective state of mind, but declined to
express any view as to whether a reasonable person could feel detained under sim-
ilar circumstances. See 225 Or App at 32-33 (Landau, J., concurring).

Cite as 349 Or 297 (2010) 	305
"Admittedly, it is unclear what circumstances the Holmes
court had in mind when it interpreted Article I, section 9, to
embody a type (b) analysis, but the court could not have
contemplated a process where the state is effectively unable
to litigate the issue that has been framed by the majority as
determinative of the outcome of this case and where the
trial court is required to make a finding that is impossible
for it to make."
225 Or App at 36 (Edmonds, J., dissenting). As noted, both
the state and defendant petitioned for review of the Court of
Appeals' decision; we allowed both petitions.
Before this court, defendant argues that the Court of
Appeals erred in remanding the case to the trial court for
factfinding with respect to whether, when Schaer asked for
consent to search her purse, defendant subjectively believed
that her liberty had been significantly restricted. She con-
tends that, under a correct interpretation of the Holmes
analysis previously described, establishing whether an indi-
vidual subjectively believes that he or she has been "seized" is
unnecessary when a court is able to say that, under the same
circumstances, a reasonable person would have held that
belief. The state argues, on the other hand, that the Court of
Appeals went astray by attempting to apply the Holmes for-
mulation at all, because, in its view, this court has abandoned
that formulation and now applies an "objective indicia" test.
The state urges that, if an "objective indicia" test is applied to
the circumstances here, Schaer's request for consent to
search defendant's purse was not a seizure.
As the parties' positions and the several opinions
generated in the Court of Appeals reflect, there is considera-
ble confusion about the meaning and continuing viability of
the definition of a "seizure" set out in Holmes. The confusion
is warranted: Although this court has repeatedly pointed to
Holmes as setting out the essential test for when a seizure
has 	occurred, 	it 	has 	not yet 	successfully differentiated
between the two methods for establishing a seizure that are
mentioned in that test. Neither has this court attempted to
confront the purely practical concerns that an inquiry into a
criminal defendant's "subjective belief' (which the Holmes
part (b) definition appears to involve) obviously raises.

306 	State v. Ashbaugh
Clearly, there is a need for us to clarify that element of an
Article I, section 9, "seizure."
But that issue must come-if it is to come at all-
later in our review. We begin with defendant's original the-
ory for suppression, viz., that defendant's consent to the
search of her purse arose out of an unlawful stop that
occurred when, without any reasonable basis for suspecting
that she was involved in criminal activity, Barroncliffe and
Schaer requested identification from defendant and used the
identification that she produced to run a warrants check.
Because the state has conceded that the request for identifi-
cation to check for warrants amounted to an unlawful sei-
zure,6 the question for this court respecting defendant's orig-
inal theory is whether, and in what way, the evidence
obtained in the search of defendant's purse derived from that
unlawful conduct.
In State v. Rodriguez, 317 Or 27, 38-40, 854 P2d 399
(1993), this court observed that, in criminal prosecutions in
Oregon, evidence is subject to suppression if it is obtained in
violation of the defendant's personal right under Article I,
section 9, to be free from unlawful searches and seizures.
Based on that observation, we concluded that unlawful police
conduct with respect to an individual provides a basis for sup-
pression of evidence seized during a search performed with
the consent of that individual in one of two ways: (1) the
unlawful police conduct affected the supposed voluntariness
of the individual's consent; or (2) the consent actually derived
from, or was obtained through "exploitation" of, the prior vio-
lation of the individual's constitutional rights. 7 As noted,
6 As noted previously, 349 Or at 302 n 2, in light of the state's concession, we
express no opinion on the issue.
7 In State v. Hall, 339 Or 7, 115 P3d 908 (2005), this court explained the latter
theory, sometimes referred to as an "exploitation" theory, in terms of the rationale
underpinning Oregon's exclusionary rule and of the state's usual burden, when
police misconduct is shown, of proving that evidence is not tainted by the miscon-
duct:
"[Elven when a defendant's consent is voluntary-that is, when the defen-
dant's free will has not been overcome by police coercion-that consent is insuf-
ficient to establish the admissibility of evidence from a warrantless search if
the state cannot prove that the consent was independent of, or only tenuously
related to, any preceding violation of defendant's rights under Article I, section
9. Unless the state is able to make that showing, then the defendant's consent
cannot operate to validate a warrantless search because the defendant's

Cite as 349 Or 297 	307
defendant has never argued that her consent in this case was
not voluntary, and that issue therefore need not be consid-
ered. That leaves the issue of"exploitation," i.e., whether the
consent search in some sense derived from the prior unlawful
police stop.
In the present case, the Court of Appeals' majority
concluded that defendant had failed to shift the burden of
proof on the issue of "exploitation" to the state, because the
officer's unlawful actions as to defendant
"had no causal relationship with the discovery of evidence;
[the] check [of defendant's identification] came back nega-
tive, at which point defendant was free to leave. The war-
rant check that was causally related to the discovery of evi-
dence was the one that police carried out on defendant's
husband; that act, a violation of his rights, led to the discov-
ery of the outstanding restraining order, the arrest, and the
subsequent events. The violation of defendant's rights sim-
ply had no downstream consequences."
225 Or App at 22 (emphasis in original).
In our view, the first sentence of that analysis makes
the essential point: Defendant was free to leave-and the
unlawful stop was over as to her-when the police returned
her identification and told her that they were arresting her
husband. 8
Neither can the fact that defendant remained in the
vicinity while the officers effected the arrest of defendant's
husband-thereby making herself available for further con-
versation-be viewed as causally related to the unlawful
request for identification and warrant check. Although defen-
dant could be correct that, in theory, a causal connection
might exist between an unlawful stop that has ended and an
individual's subsequent consent to a search, the existence of
consent itself derived from a violation of the defendant's rights under that state
constitutional provision. To not require suppression in such circumstances
would be inconsistent with the * * * rationale underlying the Oregon
exclusionary rule, that is, to place a defendant in the same position as if the
government officers had acted within the bounds of the law."
Hall, 339 Or at 27-28 (emphasis in original; citations omitted).
Because the first sentence of the Court of Appeals' statement contained the
full legal answer to defendant's argument, we need not discuss whether the bal-
ance of the quoted statement is correct or adds anything to the analysis.

308 	State v. Ashbaugh
that possibility does not absolve a person seeking suppres-
sion of evidence on an "exploitation" theory from the person's
burden of identifying an actual factual link. Defendant here
has not identified any actual link, and her vague suggestion
that the two events are "plausibly related" is insufficient to
meet her burden. 9 It follows that the officers' request for iden-
tification and use of that identification for a warrants check,
which concededly constituted an unlawful stop, cannot serve
as a basis for granting defendant's motion for suppression of
evidence obtained in the subsequent consent search of her
purse.
That brings us to defendant's alternative theory for
suppression, viz., that she was subjected to a second seizure
when Schaer approached her and questioned her about the
contents of her purse. Defendant contends that that seizure
was unlawful because, at that time, Schaer had no basis for
believing that defendant had engaged in any criminal activ-
ity.10 In fact, the state does not dispute defendant's conten-
tion that her consent to the search was the direct product of
Schaer's question and request. The state argues, instead,
that Schaer's question and request were "mere conversation,"
not a "seizure."
The issue that the state raises-whether a puta-
tively unreasonable "seizure" was in fact "mere conversation"
with no constitutional implications-is a familiar one to this
court. We long have recognized that, out of the broad range of
potential encounters between police and citizens, only some
implicate the prohibition in Article I, section 9, against
unreasonable 	"seizures." 	We 	have 	divided 	police-citizen
encounters, very roughly, into three categories: (1) "mere con-
versation," that is, noncoercive encounters that are not "sei-
zures" and, thus, require no justification under Article I, sec-
tion 9; (2) "stops," a type of seizure that involves a temporary
" The circumstances that we describe here are notably distinct from those in
State u. Ayles, 348 Or 622, 237 P3d 805 (2010), where this court concluded that the
existence of a different circumstance-the police request for consent to search
occurred while an illegal detention was ongoing-was sufficient to establish the
requisite minimal factual nexus. Id. at 633-34.
10 Defendant also contends that the existence of a causal connection between
that seizure and her decision to consent is beyond dispute. As our analysis will
demonstrate, we need not address that theory in this case.

Cite
restraint on a person's liberty and that violates Article I, sec-
tion 9, unless justified by, for example, necessities of a safety
emergency or by reasonable suspicion that the person has
been involved in criminal activity; and (3) "arrests," which
are restraints on an individual's liberty that are steps toward
charging individuals with a crime and which, under Article I,
section 9, must be justified by probable cause to believe that
the arrested individual has, in fact, committed a crime. The
thing that distinguishes "seizures"-that is, "stops" and
"arrests"-from encounters that are "mere conversation" is
the imposition, either by physical force or through some
"show of authority," of some restraint on the individual's lib-
erty. State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227 P3d
695 (2010); see also State v. Warner, 284 Or 147, 161-62, 585
P2d 681 (1978) (to the same effect).
In addition to the foregoing explication of the mean-
ing of the constitutional term "seizure," this court has set out
a definition of that term in Holmes. Although we already
have quoted that definition, 349 Or at 303, we do so again for
the convenience of the reader:
"[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) whenever an individual
believes that (a), above, has occurred and such belief is
objectively reasonable under the circumstances."
Holmes, 311 Or at 409-10.11
A 	full 	appreciation 	of the 	foregoing 	definition
requires that we recognize that it is not the only advice that
the court in Holmes provided with respect to determining
when a "seizure" has occurred. The court also stated that the
determination "require[s] a fact-specific inquiry into the
11 In Rodgers/ Kirkeby, we stated the definition in slightly different words:
"A person is 'seized' under Article I, section 9, when either (1) a police offi-
cer intentionally and significantly interferes with the person's freedom of
movement; or (2) the person believes, in an objectively reasonable manner,
that his or her liberty of movement has been so restricted."
347 Or at 621-22.

310 	Statev.
totality of the circumstances of the particular case," id. at
408, and it stressed that,
"[u]nder the[] 'seizure' standards [set out above], law
enforcement officers remain free to approach persons on the
street or in public places, seek their cooperation or assis-
tance, request or impart information, or question them
without being called upon to articulate a certain level of
suspicion in justification if a particular encounter proves
fruitful. A street or public place encounter does not amount
to an Article I, section 9, 'seizure' merely because the
encounter may involve inconvenience or annoyance for the
citizen and the other party to the encounter is known to be
a law enforcement officer. Even physical contact does not
transform the encounter into a 'seizure' if it is a normal
means of attracting a person's attention (e.g., policeman
tapping citizen on the shoulder at the outset to get a citi-
zen's attention). * * *Rather the encounter is a 'seizure' of a
person only if the officer engages in conduct significantly
beyond that accepted in ordinary social intercourse. The
pivotal factor is whether the officer, even if making inquir-
ies [that] a private citizen would not, has otherwise con-
ducted himself in a manner that would be perceived as non-
offensive conduct if it had occurred between two private
citizens."
Id. at 410.
As noted, this court's efforts to explain what the con-
stitutional term "seizure" embraces have not yet succeeded:
Our various explanations, from Holmes to Rodgers I Kirkeby,
have left questions unanswered. We shall make a further
effort here.
One such question is the one that the state poses-
whether 	the 	two-part 	Holmes 	definition 	quoted 	above
remains 	relevant 	almost 	20 	years 	after 	it 	first 	was
announced. The state contends that, after an initial period
during which this court seemed to analyze police encounters
under both parts of the definition, the court shifted to a pat-
tern in which it quoted, but did not actually address, both
parts of the Holmes definition. 12 The state contends that that
12 We discuss below the cases that the state points to as demonstrating that
shift.

Cite as 349 Or 297 (2010) 	311
shift demonstrates that the court has abandoned the two-
part Holmes formulation 	and, it argues, the court now
resolves "seizure" questions in terms of whether, looking at
the "totality of the circumstances" of the particular case, a
police officer's conduct and words significantly interfered
with the defendant's freedom of movement. The state sug-
gests, moreover, that the court was correct to shift to a simple
"totality of the circumstances" approach, because the "for-
mulaic" and "mechanical" Holmes construct "ignores the
complexity and nuance of encounters between law enforce-
ment and individuals."
Before this court, the state also criticizes the Court of
Appeals' majority's handling of another aspect ofHolmes part
(b)-the discussion whether an individual involved in an
encounter with police "believes" that his or her liberty has
been restricted. That argument fairly characterizes what the
Court of Appeals majority said. After concluding that a
reasonable person could have believed that his or her liberty
had been restricted under the circumstances of the case, and
after noting that the trial court had not made any finding as
to whether defendant actually held such a belief, the Court of
Appeals remanded the case to the trial court to make what it
deemed to be the necessary finding concerning that question
and, at the same time, seemed to place the burden of estab-
lishing defendant's subjective belief on the state. Taking its
cue from the Court of Appeals' dissent, the state argues that
that approach has placed it in an untenable position-one of
being "effectively unable to litigate [an] issue that has been
framed by the majority as determinative." Ashbaugh, 225 Or
App at 36 (Edmonds, J., dissenting). That is so, in the state's
view, because (1) a defendant cannot be compelled to testify
about his or her state of mind and (2) in the absence of such
testimony, the defendant's subjective belief that he or she has
been seized is presumed-unfairly-from the fact that he or
she has remained in the presence of the police. The state con-
cludes that, if a citizen's subjective beliefs about an encounter
properly determine whether there has been an Article I, sec-
tion 9, "seizure," then the defendant, rather than the state,
should be required to carry the burden of proof with respect
to those beliefs.

312 	State v. Ashbaugh
Defendant, for her part, embraces the idea that
Holmes part (b) has a subjective focus, and agrees with the
Court of Appeals' majority that, for purposes of part (b), the
objective reasonableness of an individual's belief that his or
her liberty has been significantly restricted must be based on
whether a reasonable person could hold that belief. Defen-
dant argues, however, that part (a) of the Holmes test also
assesses the circumstances entirely from the affected individ-
ual's 	personal 	and 	subjective 	vantage 	point-although,
under part (a), the question is not what a reasonable person
could believe but "whether, under the totality of the circum-
stances, a reasonable person would consider the officer's con-
duct a significant restriction on the person's liberty." 13
The fact that the parties have advanced such vastly
different interpretations of the two-part Holmes formulation
might be viewed as a failure by this court in Holmes to artic-
ulate its point clearly. But, as we have focused more and
more tightly on the words of the Holmes definition of "sei-
zure," it has become increasingly apparent that the problem
is not so much with how the idea has been expressed as with
the idea itself. Quite simply, we think that at least one com-
ponent of the Holmes definition is unworkable, and this court
since Holmes has proceeded as if the unworkable component
were not there. Although that approach has resulted in con-
fusion about the meaning of Holmes, we do not believe that
the root problem can be resolved by further effort at clarifi-
cation. We believe that the problem instead requires a reex-
amination of the Holmes formulation.
It is evident that, when this court adopted the
Holmes definition, it was attempting to define Article I, sec-
tion 9, seizures primarily in terms of the perceptions of ordi-
nary citizens. That is not surprising: The United States
13 In fact, defendant contends that whenever this court has stated, in the con-
text of a Holmes analysis, that an "objectively reasonable" person would believe
that his or her liberty has been restricted, it has been applying part (a) of the
Holmes formulation, rather than part (b). Given that the phrase "objectively
reasonable" appears in part (b) of the Holmes formulation, defendant's theory is
counterintuitive. The same might be said about another aspect of defendant's
interpretation of the Holmes formulation-her claim that, when part (a) speaks of
an officer "intentionally" restricting an individual's liberty, it is not concerned with
the police officer's actual intentions. but with what a reasonable person in the sus-
pect's position would believe that the officer intended.

Cite as 349 Or 297 	313
Supreme Court had, at that time, settled on a definition of
"seizure," for the purpose of the Fourth Amendment to the
United States Constitution, that was couched in terms of a
reasonable person's perceptions:
"[A) person has been 'seized' within the meaning of the
Fourth Amendment only if, in view of all of the circum-
stances surrounding the incident, a reasonable person
would have believed that he was not free to leave."
United States v. Mendenhall, 446 US 544, 554, 100 S Ct 1870,
64 L Ed 2d 497 (1980) (plurality opinion by Stewart, J.). See
also Florida v. Royer, 460 US 491, 502, 103 S Ct 1319, 75
L Ed 2d 229 (1983) (quoting Mendenhall plurality). This
court was aware of the United States Supreme Court's
"reasonable person" approach in Mendenhall, 14 but it likely
also was aware that courts and academics across the country
were struggling with two pertinent issues: (1) how to deal
with individual differences between arguably reasonable per-
sons involved in citizen-police encounters; 15 and (2) how to
deal with the stated or inferred intentions of police officers in
such encounters. 16 We are satisfied that, when this court
14 The court quoted the "reasonable person" definition elsewhere in Holmes.
311 Or at 413.
15 See, e.g., Tracey Maclin, Black and Blue Encounters-·Some Preliminary
Thoughts about Fourth Amendment Seizures: Should Race Matter?, 26 Val UL 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 sus-
pect). See also In re J.M., 619 A2d 497, 504-07 (DC App 1992) (Chief Judge Rogers
and Senior Judge Mack concurring in part and dissenting in part) (child's percep-
tion of police encounter will be different from adults, and that difference should be
taken into account when court is confronted with deciding whether police encoun-
ter with child was a seizure).
16 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 u. 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 choos-
ing to walk away).

314 	State v. Ashbaugh
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 partic-
ular relevance here, we believe that Holmes part (b) was
directed at the latter concern.
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 dis-
inclined 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 encoun-
ter 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 sus-
pect's subjective beliefs in connection with a part (b) analysis
has been a common pattern in this court's cases. See, e.g.,
State u. Gerrish, 311 Or 506, 513, 815 P2d 1244 (1991) (hold-
ing that police did not seize defendant when they flagged him
down to request information because that action not signifi-
cant restriction upon the defendant's liberty, "nor would a
reasonable individual believe that it was"); State u. Hall, 339
Or 7, 19, 115 P3d 908 (2005) (concluding that police seized
defendant when they took defendant's identification for war-
rant check, because reasonable person would not feel free to
leave when person is subject of pending warrant check); State
u. 	Thompkin, 	341 Or 368, 378-79, 	143 P3d 530 (2006)
(same).17
In the handful of cases in which the defendant's sub-
jective beliefs even are mentioned in connection with a part
(b) analysis, this court sometimes has avoided any actual
17 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.

Cite as 349 Or 297 	315
inquiry into the defendant's beliefs by accepting, for the pur-
pose of argument, that the defendant subjectively believed
that he had been seized. See, e.g., State v. Ehly, 317 Or 66, 79-
80, 854 P2d 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
belieO. At other times, the court simply has assumed that a
defendant's failure to assert himself shows that he subjec-
tively believed that he had been seized. See, e.g., State v.
Dahl, 323 Or 199, 207-08, 915 P2d 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 subjec-
tive 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. 18 Signif-
icantly, Toevs is the case that the Court of Appeals relied on
when it remanded to the trial court to determine what defen-
dant subjectively believed.
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 rec-
ord. Id. at 536. This court then proceeded to independently
assess whether the defendant's belief was objectively reason-
able, and stated its conclusion in that regard in the following
terms:
18 State u. Juarez-Godinez, 326 Or 1, 942 P2d 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 auto-
mobile, not a person. 326 Or at 6-10.

316 	State v. Ashbaugh
"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 lib-
erty 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 con-
clusions 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.
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 def-
inition entirely to an objective standard. 19 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. 20
Applying that standard to the facts in this case, we
conclude that defendant was not seized within the meaning
19 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.
20 The controversy in the present case focuses on the "objective reasonable-
ness" 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 sus-
ceptible 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 move-
ment. 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.

Cite as 349 Or 297 (2010) 	317
of Article I, section 9, when Schaer recontacted her after put-
ting 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 	restrict[ed 	her] 	freedom 	of movement."
Rodgers/Kirkeby, 347 Or at 622.
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 sur-
rounded. See Rodgers I Kirkeby, 347 Or at 627 (illustrating
that tactic). In fact, the trial court found that the conversa-
tion between Schaer and defendant was "relaxed and noncon-
frontational," 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 defen-
dant 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 ques-
tions 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 con-
tention that, in light of the surrounding circumstances,

318 	State v. Ashbaugh
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 alter-
native 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 cor-
rectly 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 par-
aphernalia. If that search was lawful, then the officers' sub-
sequent 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 war-
rant. A valid consent confirms, for legal purposes, that the
resulting search is reasonable and does not violate the citi-
zen's 	rights 	under 	Article 	I, 	section 	9, 	of the 	Oregon
Constitution. State v. Weaver, 319 Or 212, 219, 874P2d1322
(1994). Courts must examine the totality of the evidence to
determine whether the citizen consented to the search vol-
untarily, rather than as the result of police coercion, express

Cite as 349 Or 297 	319
or implied. State v. Parker, 317 Or 225, 230, 855 P2d 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 ago-
nizing 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 com-
monly challenges the voluntariness of consent by pointing to
evidence that the police had restrained the defendant's lib-
erty 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 state-
ment 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 stipu-
lated 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

320 	State v. Ashbaugh
to obtain the disputed evidence. State v. Rodriguez, 317 Or
27, 38, 854 P2d 399 (1993). Under that theory, it is not suffi-
cient that the initial illegality stands in a mere "but for"
causal relationship to the seized evidence. Other causal fac-
tors can intervene to lead the police to the evidence. Evidence
remains "fruit of the poisonous tree" and subject to suppres-
sion only if the initial police illegality, when compared to
other intervening causal factors, was the reason for the dis-
covery of the evidence by the police. Id. at 39-40; State v. Hall,
339 Or 7, 45, 115 P3d 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 defen-
dant's voluntary consent to a search of her purse. Even ifthe
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 signif-
icantly 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, ques-
tion her about whether she is committing a crime and
whether they can search her purse for evidence of that crime?

Cite as 349 Or 297 	321
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 oppo-
site 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 defen-
dant and violated her rights under Article I, section 9, when,
without reasonable suspicion that she was engaged in crimi-
nal 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 P3d 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 defen-
dant'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 sub-
jecting a person to a check for outstanding warrants and sub-
jecting 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 P2d 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 defen-
dant by a show of authority for purposes of ORS 131.615

322 	State v. Ashbaugh
(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). 1
In State v. Thompkin, 341 Or 368, 143 P3d 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 weap-
ons. The court said,
"Here, as in Hall, we find it doubtful that a reasonable per-
son in defendant's position would think that he or she was
free to leave at a time when that person was the investiga-
tory subject of a pending warrant check and was being ques-
tioned about illegal activity."
Id. at 378-79 (emphasis added).
This 	court's 	most recent 	seizure 	case, 	State 	v.
Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), is in
accord. In that case, an officer lawfully stopped the defen-
dant, 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 com-
pleted, 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 offi-
cer stood at the passenger side of the car.
The court held that, although the police had reason-
able suspicion to stop the defendant and question him about
the traffic violation, they seized him without reasonable sus-
picion and violated his rights under Article I, section 9, when
they engaged in a "show of authority" after the traffic inves-
tigation was, or should have been, complete. Id. at 622. In
1 In Hall, the court also noted that in State v. Kennedy, 290 Or 493, 624 P2d 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.

Cite as 349 Or 297 	323
reaching that conclusion, the court first noted that when a
police officer uses official authority to stop and question a cit-
izen, 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 infor-
mation to police officer)). The police therefore seized the
defendant when they stopped him and investigated the traf-
fic violation. When that investigation was complete, the offi-
cers 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 defen-
dant "had no way of knowing that [the officer's] questions and
request to search the car were not part of the traffic investi-
gation 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 defen-
dant 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 sim-
ilarly 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

324 	State v. Ashbaugh
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 I Kirkeby, the majority would have
concluded that defendant was seized because, after their ini-
tial seizure of defendant, the officers did not tell her that she
was free to go, and she "had no way of knowing that [the offi-
cer'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 I Kirkeby, the majority also
would have concluded that the officer's "show of authority" in
requesting consent to search constituted a seizure. 34 7 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 dis-
tinguish only Rodgers I Kirkeby. The majority asserts that
this case is different from Rodgers I Kirkeby because the offi-
cers in this case did not position themselves in a way that
"would suggest to defendant that she was surrounded." 349
Orat317.
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 "sur-
rounded" by the two officers who questioned her as was the
defendant Rodgers in Rodgers I Kirkeby. This defendant was
seated on the ground when two officers who hadjust 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.

Cite as 349 Or 297
Second, 	although 	the 	court in Rodgers I Kirkeby
noted the positions of the two officers who questioned the
defendant Rodgers in its account of the "totality of the cir-
cumstances" 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 ques-
tioning. In this case, the officers, like those in Rodgers I
Kirkeby and the cases leading up to Rodgers I Kirkeby, were
in uniform, obtained defendant's identification, and sub-
jected defendant to legal obligations parallel to those that the
court found pertinent in Rodgers I 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 I Kirkeby, subjected
defendant to an investigation for outstanding warrants, and
defendant reasonably believed that she was required to coop-
erate with that investigation. When those same officers con-
tinued 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 reason-
able 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 peo-
ple 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 per-
ceive 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 Amend-
ment Consensual Encounter Doctrine, 38 San Diego L Rev
507, 556-57 (2001). Empirical studies have shown that sev-
eral features unique to police-citizen encounters undermine
the idea that such encounters are consensual. See Janice

326 	State v. Ashbaugh
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, cit-
izens 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 under-
stands 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 con-
sented to the search, 4 7 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 respon-
dents (96%) felt that police would not have honored their
refusal and would have searched them anyway. Their con-
cerns 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) (unpub-
lished Ph.D. dissertation, Rutger's University)).

Cite as 349 Or 297 	327
By citing those studies, I do not suggest that this
court determine the meaning of the constitutional term "sei-
zure" 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 homog-
enous and that, although some reasonable people may con-
clude 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 u.
Holmes, 311Or400, 409-10, 813 P2d 28 (1991), and applied
in State u. Toevs, 327 Or 525, 535, 964 P2d 1007 (1998), State
v. Juarez-Godinez, 326 Or 1, 6, 942, P2d 772 (1997), State u.
Dahl, 323 Or 199, 207-08, 915 P2d 979 (1996), and State u.
Ehly, 317 Or 66, 78-79, 854 P2d 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 partic-
ular 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. u. Boy Scouts of America, 344
Or 282, 181 P3d 758 (2008) (factfinder determines whether
plaintiff knew that defendant had a role in causing injury;
court determines whether that conclusion objectively reason-
able); Delgado u. Souders, 334Or122, 137, 46 P3d 729 (2002)
(factfinder determines whether plaintiff was alarmed and
had reasonable 	apprehension regarding personal safety;
court determines whether belief objectively reasonable);
State u. Villagran, 294 Or 404, 408, 657 P2d 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 u. Krummacher, 269 Or 125,
137-38, 523 P2d 1009 (1974) (court may not agree with
jury's conclusion but must affirm if within realm of reason-
ableness).
The sole reason that the majority gives for abandon-
ing that Holmes analysis is that "this court has seemed dis-
inclined" 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

328 	Statev.
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 uniden-
tified 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 oflaw, 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. 2
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 situa-
tion 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 objec-
tive reasonableness.
ORS 131.615 permits police officers to stop citizens
and request their consent to search, but only when the offi-
cers 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
2 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 con·
elude 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 P2d 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).

Cite as 349 Or 297 (2010) 	329
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 cit-
izen 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 cit-
izens 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 P2d 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.