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We don’t handle any criminal cases at O’Donnell Clark & Crew, but the right to be secure in one’s person and papers is undergoing a redefinition that is at least interesting to note. 

At least in the context of an immigration agent, the Court of Appeals held that asking someone who says they are from Mexico if they have more than a driver’s license is a “seizure” for purposes of the right to be free of unreasonable searches and seizures under Article I, Section 9 of the Oregon Constitution.  In State v. Zamora-Martinez, A129382, the defendant “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 ... introduced himself to defendant, identified himself as an ICE agent, and asked to see defendant’s identification.” First the defendant gave the ICE agent an Oregon ID card, whereupon the ICE agent “looked at the card and then asked defendant where he was from. After defendant responded, 'Mexico,' Billison” then asked for additional ID.  When the defendant produced an obviously forged green card and Social Security card, he was arrested for possession of forged ID. 

The legally interesting part of the case involves the continued repercussions arising from the reversal of a Court of Appeals in late 2010.  In State v. Ashbaugh, 349 Or 297, 244 P3d 360 (2010) (Ashbaugh II), the Oregon Supreme Court reversed the test set out in State v. Ashbaugh, 225 Or App 16, 200 P3d 149 (2008), rev'd, 349 Or 297 (Ashbaugh I), that used a “subjective” element for determining whether a person stopped by the police for initial questioning has been “seized” for purposes of Article I, Section 9, and therefore requires Miranda warnings.  In Ashbaugh I, the element was whether a reasonable person “could” believe they were not free to leave, but the supreme court decided that the element was better formulated as whether a reasonable person “would” believe they had been detained. 

Zamora-Martinezseems to suggest that anything beyond an initial request for identification is presumptively a seizure where the officer makes “a show of authority that restricted the defendant's freedom of movement[,]” State v. Levias, 242 Or App 264, 266-67, ___ P3d ___ (2011), or make the citizen reasonably understand that “he or she was the subject of a criminal investigation.” State v. Radtke, 242 Or App 234, 239, ___ P3d ___ (2011).  This is because a reasonable person would believe that they had been detained.  By holding on to Zamora’s Oregon ID card, by asking where he was from, and in asking for further identification, the ICE agent “intended to determine whether defendant was legally in the United States.”  Once the police have the citizen in their presence and subject to an investigation of the citizen’s own criminal activity, they cannot make him answer any further questions without reading the Miranda warnings. 

So, instead of Ashbaugh II narrowing the idea of when a reasonable person believes herself seized, the Court of Appeals has read the objectively reasonable seizure standard to encompass virtually any activities by police once they are in an investigatory mode.  This also seems to allow those who know their constitutional rights but fail to assert them the opportunity to contest any evidence discovered as a result of a subsequent search or interrogation, and would appear to require the police to issue Miranda warnings almost immediately whenever criminal activity is suspected.  See Zamora-Martinez slip op. at 8 (“a reasonable person would have believed that he or she was the subject of an investigation and was not free to leave”).  By reading an objective component so broadly, the Court of Appeals has created a significant check on the ability of the police to conduct searches without Miranda warnings.