State v. Zamora-Martinez
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FILED: July 13, 2011 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JUAN JOSE ZAMORA-MARTINEZ, Defendant-Appellant. Washington County Circuit Court C051006CR A129382 On remand from the Oregon Supreme Court, State v. Zamora-Martinez, 349 Or 664, 249 P3d 1282 (2011). Jon B. Lund, Senior Judge. Submitted on remand May 11, 2011. Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, for appellant. John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, for respondent. Before Brewer, Chief Judge, and Ortega, Judge, and Carson, Senior Judge. ORTEGA, J. Reversed and remanded. 1 1 ORTEGA, J. 2 This case is on remand from the Oregon Supreme Court, which vacated our 3 prior decision and remanded the case for reconsideration in light of State v. Ashbaugh, 4 349 Or 297, 244 P3d 360 (2010) (Ashbaugh II). Our first opinion in this case applied 5 principles articulated in State v. Ashbaugh, 225 Or App 16, 200 P3d 149 (2008), rev'd, 6 349 Or 297, 244 P3d 360 (2010) (Ashbaugh I), and concluded that a reasonable person 7 could have believed, under the circumstances presented here, that he was not free to leave 8 at the critical point in the encounter with law enforcement at issue. Accordingly, we 9 vacated the trial court's denial of defendant's motion to suppress evidence and remanded 10 the case for the trial court to determine whether, during defendant's encounter with law 11 enforcement, defendant subjectively believed that he was not free to leave. After our 12 decision, the Supreme Court issued its opinion in Ashbaugh II, reversing Ashbaugh I. 13 We are now called upon to examine whether, under the standard set forth in Ashbaugh II, 14 defendant's encounter with law enforcement amounted to an illegal stop under Article I, 15 section 9, of the Oregon Constitution. 16 17 18 19 20 21 22 23 24 25 We take the facts and pertinent procedural history from our earlier opinion: "[U.S. Immigration and Customs Enforcement (ICE) Senior Special Agent Billison] accompanied Hillsboro narcotics officers as they executed a search warrant at defendant's sister's residence. Although execution of the warrant was undertaken primarily by the narcotics officers, Billison was present to deal with any immigration-related issues. Forged immigration and Social Security documents were discovered during the search and, as a result, Billison detained some of the persons in the residence for immigration violations. Hillsboro police arrested others on drug charges. Ultimately, all of the adults in the residence were taken into custody. 2 1 2 3 4 5 6 "Because there were several minors at the residence who would have been left without adult supervision, Billison telephoned their mother-defendant's sister--and asked her to return to the residence to care for her daughters. Defendant arrived at the residence 10 to 15 minutes later, and Billison testified that it appeared as though defendant's arrival was related to Billison's telephone call. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 "When defendant arrived, he was approached by the Hillsboro officers, who asked why he was present. After learning that defendant was there to take custody of the children, the officers called Billison, who had been inside the residence, to defendant's location. Billison, who was in plain clothes but wearing a badge, introduced himself to defendant, identified himself as an ICE agent, and asked to see defendant's identification. Defendant produced an Oregon identification card. Billison looked at the card and then asked defendant where he was from. After defendant responded, 'Mexico,' Billison asked whether defendant had any other identification. Defendant responded affirmatively and produced a resident alien card and a Social Security card, both of which Billison immediately recognized as forgeries. Billison later testified that, had defendant chosen to walk away at any point before he produced the forged documents, he 'suppose[d]' that he would have allowed defendant to do so. The entire encounter lasted 'less than two minutes.' 22 23 24 25 26 27 28 29 "Defendant was arrested and charged with two counts of first-degree criminal possession of a forged instrument. Before trial, defendant moved to suppress evidence of the forged instruments. The trial court denied defendant's motion, reasoning that defendant's interaction with Billison was a 'mere street encounter,' that Billison's request to see identification was not a stop of defendant, and that defendant's production of the fraudulent identification provided probable cause to arrest him. * * * [D]efendant agreed to a stipulated facts trial and was convicted." 30 State v. Zamora-Martinez, 229 Or App 397, 399-400, 211 P3d 349 (2009), vac'd and 31 rem'd, 349 Or 664 (2010) (footnotes omitted; second brackets in original). 32 As we explained in our original opinion, the only issue on appeal is whether 33 "Billison's inquiry regarding additional identification escalated the encounter into a stop 34 and * * * the stop was unsupported by reasonable suspicion, in violation of Article I, 35 section 9[.]" 229 Or App at 400 (emphasis in original). Defendant asserted that, in 3 1 seeking additional identification, the officer indicated that he was "not satisfied with the 2 initial offer of identification and * * *, given the presence of other officers, that inquiry 3 was sufficient to cause a reasonable person to believe that he or she was not free to 4 leave." Id. at 401. The state, on the other hand, argued that defendant was not stopped 5 because the request for additional information "was not a temporary restraint on 6 defendant's liberty for investigatory purposes or otherwise[.]" Id. 7 We analyzed that issue by reference to our decision in Ashbaugh I, in which 8 we concluded that a seizure occurs when a reasonable person under the circumstances 9 "could have believed" that he or she was not free to leave. 225 Or App at 25 (emphasis in 10 original; quotation marks omitted). Using that construct, we concluded that, under the 11 circumstances presented in this case, "a reasonable person could have concluded that, 12 after his initial request for identification, Billison's inquiries were investigatory and were 13 intended to determine whether defendant was lawfully in the United States and that, as a 14 result, defendant was not free to leave." Zamora-Martinez, 229 Or App at 404 (emphasis 15 added). In addition, as we did in Ashbaugh I, we remanded the case to the trial court to 16 make a factual determination regarding whether defendant in this case "in fact believed 17 that he was not free to leave[.]" Zamora-Martinez, 229 Or App at 404; see Ashbaugh I, 18 225 Or App at 28. 19 Subsequently, the Supreme Court's decision in Ashbaugh II, "abandon[ed]" 20 the subjective component of the test for whether a seizure has occurred for purposes of 21 Article I, section 9. 349 Or at 316. In addition, the court clarified that the proper inquiry 22 is not whether a reasonable person could have believed that his liberty or freedom of 4 1 movement was significantly restricted; rather, 2 3 4 5 6 7 "[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." 8 Id. (emphasis in original). Thus, the question in this case reduces to whether a reasonable 9 person, in light of the totality of the circumstances, would have believed that he or she 10 11 was not free to leave when asked by the ICE agent for additional identification. In determining whether a reasonable person would believe that a law 12 enforcement officer interfered with the defendant's liberty or freedom of movement, the 13 court in Ashbaugh II "addressed whether the content of the officer's questions or the 14 officer's manner or actions would reasonably be perceived as a show of authority that 15 restricted the defendant's freedom of movement." State v. Levias, 242 Or App 264, 266- 16 67, ___ P3d ___ (2011). "In earlier cases, however, the court has also held that a 17 reasonable person would perceive a limitation on his or her freedom if the person knew 18 that he or she was the subject of a criminal investigation." State v. Radtke, 242 Or App 19 234, 239, ___ P3d ___ (2011); see, e.g., State v. Thompkin, 341 Or 368, 378-79, 143 P3d 20 530 (2006) (it is "doubtful that a reasonable person * * * would think that he or she was 21 free to leave at a time when that person was the investigatory subject of a pending 22 warrant check and was being questioned about illegal activity"); State v. Hall, 339 Or 7, 23 19, 115 P3d 908 (2005) (a reasonable person would not think that he or she was free to 24 leave when that person was the subject of a pending warrant check). Thus, as we 5 1 explained in Radtke, "taking a person's identification for the purpose of checking on the 2 person's status is one way in which a police officer can show authority that, in 3 combination with other circumstances, can convey to the person whose identification has 4 been obtained that he or she is not free to leave." 242 Or App at 239-240. 5 In Radtke, which we decided on remand from the Supreme Court for 6 reconsideration in light of Ashbaugh II, we considered whether the defendant was seized 7 for purposes of Article I, section 9, when an "officer asked for and obtained [the] 8 defendant's name and date of birth, then wrote that information in a notebook but did not 9 'run' that information to determine whether there was some reason to detain her" and 10 "immediately" began questioning the defendant about whether she was in possession of 11 anything illegal. 242 Or App at 238-39. Under those circumstances, we concluded that a 12 reasonable inference existed 13 14 15 16 17 18 19 20 21 22 "that [the officer] took defendant's name and date of birth for the purpose of running a check on her and the reason that he had not done so in no way indicated that he was not going to--in other words, that the investigatory process had commenced and was ongoing up to the point of arrest. That inference is bolstered by several other circumstances. First, defendant observed that the person whom she was planning to meet was under arrest, in the 'caged' back seat of the patrol car. Second, there were two officers present and both were armed and in uniform. Third, as noted, in addition to taking her information, [the officer] also questioned defendant about illegal activity, albeit in a calm and nonconfrontational voice." 23 Id. at 240. Applying the relevant legal principles, we concluded that the defendant was 24 seized because "a reasonable person in [the] defendant's position would have believed 25 that an investigation began when [the officer] took note of her name and date of birth; 26 thus, she was not only being questioned about illegal activity, she was under the 6 1 impression that the police had begun an investigation of her and had not given her any 2 reason to believe that it had ended." Id. at 241; see also State v. Parker, 242 Or App 387, 3 394, ___ P3d ___ (2011) (where an officer "(1) asked defendant, a passenger in a stopped 4 vehicle, if he had any warrants; (2) requested defendant's identification; (3) wrote down 5 defendant's name and date of birth; and (4) then immediately returned to his vehicle and 6 ran a check to determine whether defendant was the subject of any warrants[,]" applying 7 the principles set forth in Ashbaugh II, a reasonable person would have concluded that he 8 or she was not free to leave). 9 Likewise, applying those principles here, we conclude that, in light of all 10 the circumstances in this case, a reasonable person in defendant's position would 11 conclude that he or she was the subject of an investigation and was not free to leave. 12 Specifically, defendant arrived to pick up his nieces after every adult at the residence had 13 been either arrested on drug charges or detained for immigration violations. After 14 defendant informed Hillsboro police officers at the scene that he was there to take 15 custody of the children, the officers called Billison--an ICE officer who, though in plain 16 clothes, was wearing a badge identifying himself as a federal immigration officer--to talk 17 to defendant. Although defendant produced an Oregon identification card in response to 18 Billison's initial request for identification, the officer did not proceed to release 19 defendant's nieces to him. Instead, Billison asked defendant where he was from and, 20 upon hearing that defendant was from Mexico, asked whether he had additional 21 identification. Furthermore, Billison did not inform defendant that he was not in trouble. 22 A reasonable person would have concluded that Billison's questions after defendant 7 1 provided his Oregon identification card were intended to determine whether defendant 2 was legally in the United States. Thus, under all the circumstances presented here, a 3 reasonable person would have believed that he or she was the subject of an investigation 4 and was not free to leave. The trial court therefore erred in denying defendant's motion to 5 suppress. 6 Reversed and remanded. 8
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