State of Oregon, Petitioner on Review / Cross-Respondent on Review v. Charity Ann Ashbaugh, Respondent on Review /…

Summary

The Oregon Supreme Court held that evidence obtained in a consent search of the defendant's purse was admissible because her consent was neither the product of an unlawful seizure nor derived through exploitation of the concededly unlawful initial stop, in which uniformed officers without reasonable suspicion requested her identification and ran a warrants check. The court abandoned the subjective-belief component of the Holmes two-part seizure test, holding that a seizure occurs under part (b) only if a reasonable person under the totality of the circumstances would believe that an officer intentionally and significantly restricted his or her liberty, and concluded that the officer's questions about the purse and request to search were 'mere conversation,' not a seizure. Because the initial unlawful stop was over and the defendant was free to leave when the officers returned her identification and arrested her husband, she failed to carry her burden of showing the factual nexus needed for suppression on an exploitation theory. Justice Kistler, joined by Justice Linder, concurred and endorsed voluntary consent as an alternative ground of affirmance; Justice Durham specially concurred on the narrower ground that the defendant's conceded voluntary consent validated the search; and Justice Walters dissented, contending that the uniformed officers' criminal inquiry without reasonable suspicion was an unlawful seizure under Hall, Warner, Thompkin, and Rodgers/Kirkeby.