State v. Alcaraz

318 Or.App. 179

508 P.3d 13

STATE of Oregon, Plaintiff-Respondent,

v.Sam Samson ALCARAZ, aka Samuel S. Alcaraz, Defendant-Appellant.

A167663

Court of Appeals of Oregon, En Banc.

Submitted January 30, 2020

Resubmitted en banc February 11, 2022

March 9, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the briefs for respondent.

Before Lagesen, Chief Judge, and Ortega, Egan, Tookey, Shorr, James, Aoyagi, Powers, Mooney, Kamins, Pagán, and Hellman, Judges, and Armstrong, Senior Judge.

AOYAGI, J.

Defendant was fishing from a boat—standing in a pile of fish and reeling one in on his line—when Deputy Denton, a Jackson County Sheriff's Deputy in a marked patrol boat, idled up and asked how the fishing was going. Denton then asked defendant, "Do you have a fishing license?" and defendant responded, "Nope." Denton issued a citation to defendant, who was later convicted of one count of angling while suspended, ORS 497.441. On appeal, defendant assigns error to the denial of his motion to suppress evidence from his encounter with Denton. Specifically, defendant contends that, when Denton asked if he had a fishing license, he was unlawfully seized under Article I, section 9, of the Oregon Constitution, without a warrant or reasonable suspicion of a crime. The state argues that defendant was not seized, as he was free to leave without answering the question. Because this case is indistinguishable in principle from State v. Almahmood , 308 Or. App. 795, 482 P.3d 88 (2021), and because the only issue properly before us is whether defendant was stopped, we agree with defendant that the trial court erred in denying his motion to suppress. Accordingly, we reverse and remand.

FACTS

We review the denial of a motion to suppress for legal error. State v. Ehly , 317 Or. 66, 75, 854 P.2d 421 (1993). We are bound by the trial court's express and implied factual findings if they are supported by constitutionally sufficient evidence. Id.

Deputy Denton was on Emigrant Lake operating a patrol boat that was equipped with sirens and had "Sheriff's Office" written on it. Denton was wearing his full uniform and a firearm. A search-and-rescue volunteer was with him. There were not many boats on the water. As Denton was idling across the lake, he saw defendant fishing from a small boat. Defendant, then 81 years old, was alone. Denton observed defendant reel in a fish and unhook it.

Denton idled to approximately 10 feet from defendant's boat—"within a comfortable talking distance"—and saw defendant standing in a "pile of fish" on the floor of his boat. In a "conversational tone," Denton asked, "How's the fishing?" Defendant said or indicated that it was good. Denton asked, "Do you have a license?" At that point, according to Denton, defendant was not free to leave, because he was required under ORS 497.075 to have a fishing license and required under ORS 497.036 to submit to a fishing license inspection. Defendant answered, "Nope." Denton was surprised by defendant's answer, as he had not suspected defendant of illegal activity. Denton asked defendant why he did not have a license, and defendant responded that it had been suspended. The interaction was "very casual." Denton issued a citation to defendant.¹

Defendant was charged with angling with a suspended license, ORS 497.441, a Class A misdemeanor. Before trial, he moved to suppress his statements to Denton, as resulting from an unreasonable seizure under Article I, section 9. The trial court denied the motion, reasoning that defendant was not seized when Denton asked if he had a fishing license, because there was no coercion, intimidation, or show of force by Denton. The court further reasoned that there was no seizure because Denton "had a statutory right" under ORS 497.036 and ORS 497.075 to talk to defendant regarding whether he had a fishing license. In the court's view, the encounter became a stop only after defendant admitted to not having a license.

Defendant waived a jury trial and was tried to the court on stipulated facts. The court found defendant guilty and sentenced him to 18 months’ probation. Defendant appeals, assigning error to the denial of his motion to suppress.

ANALYSIS

The primary issue before us is whether defendant was seized for purposes of Article I, section 9, when Denton asked him if he had a fishing license. It is undisputed that Denton lacked reasonable suspicion of a crime at that point. The state's argument turns not on reasonable suspicion but on whether defendant was stopped at all. In the state's view, defendant was not stopped because, when Denton asked him if he had a fishing license, defendant could have said nothing, started up his boat, and motored away. In other words, the state maintains that a reasonable person in defendant's position would have believed that he was free to leave, even if defendant was not actually free to leave insofar as Denton did not consider him free to leave. Defendant disagrees, arguing that Denton's question was confrontational in context and was reasonably understood "as a command [to defendant] to stay and notify the deputy whether he was fishing illegally."

Article I, section 9, guarantees people's right to be free from unreasonable searches and seizures. "For purposes of Article I, section 9, a seizure occurs when (1) a police officer intentionally and significantly interferes with an individual's liberty or freedom of movement; or (2) a reasonable person, under the totality of the circumstances, would believe that his or her liberty or freedom of movement has been significantly restricted." State v. Arreola-Botello , 365 Or. 695, 701, 451 P.3d 939 (2019).

Interactions between law enforcement officers and citizens tend to fall into one of three categories: mere encounters (or mere conversation), which require no justification; temporary detentions for investigatory purposes, often termed "stops," which generally require reasonable suspicion; and arrests, which involve protracted custodial restraint and require probable cause. State v. Fair , 353 Or. 588, 593, 302 P.3d 417 (2013). The three categories "correlate the degree of intrusiveness on a citizen's liberty with the degree of justification required for the intrusion." Id . "Both stops and arrests are seizures for constitutional purposes, while less restrictive encounters are not." Id . at 593-94, 302 P.3d 417. Whether a seizure occurred "requires a fact-specific inquiry into the totality of the circumstances of the particular case." State v. Graves , 278 Or. App. 126, 132, 373 P.3d 1197, rev. den. , 360 Or. 465, 384 P.3d 154 (2016) (internal quotation marks omitted).

Ultimately, "[w]hat distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter is the imposition, either by physical force or through some show of authority, of some restraint on the individual's liberty." State v. Paskar , 271 Or. App. 826, 833, 352 P.3d 1279 (2015) (internal quotation marks omitted). Article I, section 9, is concerned "with police-imposed restraints on citizen liberty, not with limiting contacts between police and citizens." State v. Backstrand , 354 Or. 392, 400, 313 P.3d 1084 (2013).

Thus, "law enforcement officers remain free to approach persons on the street or in public places, seek their cooperation or assistance, 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." Id. (internal quotation marks omitted). A seizure occurs, however, "if the officer's conduct would be reasonably perceived as coercive in the sense that it would cause the citizen to reasonably believe that the officer is intentionally restraining the citizen's liberty or freedom of movement in a significant way—that is, in a way that exceeds the bounds of ordinary social encounters between private citizens." Id. "Explicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs," for a seizure to occur. Id. at 401, 313 P.3d 1084.

In Almahmood , 308 Or. App. at 797-98, 482 P.3d 88, we held that a passenger on a TriMet train was seized when uniformed police officers boarded the train, announced a fare check, told passengers to display proof of their paid fares, and began checking passengers’ fares row by row. The defendant was arrested after showing invalid proof of fare. Id. at 798, 482 P.3d 88. We concluded that "a reasonable person in defendant's position—a passenger on a TriMet train—would have believed that police officers were significantly restricting his liberty when they required him to show proof that he had paid his fare." Id. at 801, 482 P.3d 88. We recognized that it is not uncommon for an entity that sells services to require proof of purchase to use those services. Id . at 803, 482 P.3d 88. Also, the officers did not expressly threaten to detain or arrest passengers without paid fares, did not single out the defendant as an investigatory target, and may have had motivations other than criminal law enforcement. Id . Nonetheless, two facts in particular, considered in conjunction with the totality of circumstances, led us to conclude that the officers significantly interfered with the defendant's liberty: that the officers required each passenger to show proof of payment, i.e. , to show that he or she was lawfully riding the train and had not committed a crime such as theft of services; and that the individuals demanding proof of fare were law enforcement officers with "obvious authority to arrest individuals who commit...