State of Oregon v. K.A.M.

The question in this case is whether youth was

stopped during the search of a drug house when a detective

came upon youth and a friend in one of the bedrooms, told

youth’s friend to “stay off the meth,” asked them their names,

and then asked whether they had anything illegal on them.

Because the trial court ruled that no stop occurred, it denied

youth’s motion to suppress evidence discovered during the

encounter. The Court of Appeals upheld that ruling, agreeing

that no stop had occurred. State v. K. A. M., 279 Or App

191, 379 P3d 686 (2016). Because we conclude that a stop

occurred, we reverse the Court of Appeals decision and the

trial court’s judgment. We remand the case to the trial court

for further proceedings.

We take the facts from the hearing on youth’s suppression

motion and state them consistently with the trial

court’s ruling.1 Five Medford police and probation officers

were conducting a “parole sweep,” looking for persons who

had violated their probation or parole. The officers had

information that a suspected parole violator was in a singlefamily

house on 11th Street and went to the house looking

for her. A person who had rented the house gave the officers

permission to look through it. One of the officers, Detective

Schwab, testified that the house was a known drug house.

When asked to describe the condition of the house, Schwab

testified that it was “dilapidated,” with personal property

strewn everywhere. He added, “It looked like a typical—I

mean, for [lack of] better words, it looked like a drug house.”

All five officers went through the house looking for

the suspect. While four of the officers were searching other

parts of the house, Schwab went into a back bedroom. He

was dressed in plain clothes, except for a raid vest that said

“POLICE” on it. In the bedroom, he found youth and a young

woman, who were waiting there to find out if they could live

in the house for awhile. According to Schwab’s testimony,

he did not explain to youth or the young woman why he and

the other officers were searching the house or why he had

1 Youth did not ask the Court of Appeals to review the trial court’s factual

findings de novo. See ORS 19.415(3)(b). Rather, he specifically accepted the trial

court’s express and implicit factual findings.

808 State v. K. A. M.

come into the bedroom. Rather, he testified that he entered

the bedroom, noticed that both of them appeared to be under

the influence of a stimulant, asked them their names, and

asked if they had anything illegal on them. At that point,

youth said that he had a pipe on him. Schwab asked youth if

he would produce it, which he did. The pipe contained methamphetamine

residue.

The young woman testified to a different version of

events, part of which the trial court credited. Specifically,

the court credited her testimony that, “when Schwab came

into the room, all of the other detectives, officers, whoever

they were, were going through the rest of the house.” It

also credited her testimony that, when Schwab came into

the bedroom, he told her she “need[ed] to stay off the meth”

before asking youth and the young woman their names.

Given that evidence, the trial court found:

“Clearly, there were not five officers in the room.

According to [the young woman], it was just Officer Schwab.

That he walked in and he said, ‘You need to stay off the

meth.’ And then asked if they had anything.

“So at that point, there was no particular coercion.

There was no particular indication that the parties were

not free to leave. So it looked to me like a conversation, not

a stop. And [youth] volunteered, yeah, here’s a pipe.”

The court accordingly denied youth’s motion to suppress

the pipe without deciding whether Schwab reasonably suspected

that youth and the young woman had committed or

were committing a crime. Considering the pipe and other

evidence, the trial court found youth within the jurisdiction

of the court for having committed acts that, if committed

by an adult, would constitute methamphetamine possession.

The court entered judgment accordingly.

Youth appealed from the judgment, assigning error

to the trial court’s ruling denying his suppression motion.

Before the Court of Appeals, youth argued that his personal

characteristics—17 years old and homeless—should be considered

in determining whether he reasonably perceived

that Schwab had stopped him. K. A. M., 279 Or App at 194-

95. The Court of Appeals disagreed. Id. at 195. Relying on

an earlier Court of Appeals decision, the court explained

Cite as 361 Or 805 (2017) 809

that, “[a]bsent some other show of authority, a person is not

seized when an officer asks to see a person’s identification

and asks whether the person has anything illegal in his or

her possession.” Id. It followed, the court concluded, that

youth was not stopped in this case. The Court of Appeals

accordingly upheld the trial court’s ruling on his suppression

motion and the resulting judgment.

On review, youth raises two issues. First, relying

on J.D.B. v. North Carolina, 564 US 261, 131 S Ct 2394, 180

L Ed 2d 310 (2011), he argues that, in determining whether

he was stopped for the purposes of Article I, section 9, of

the Oregon Constitution, we should consider that he was not

yet 18 years old and thus was more impressionable than an

adult.2 Second, he contends that, even if he were viewed as

an adult, a reasonable adult would not have felt free to leave

in the circumstances in which youth and his friend found

themselves. We begin with the first issue that youth raises.

We do not foreclose considering a youth’s age as part

of the reasonableness inquiry. See J.D.B., 564 US at 271-72

(holding that courts should consider a youth’s age in determining

a Fifth Amendment Miranda issue).3 However, this

is hardly the case in which to resolve that question under

Article I, section 9. That is so for at least three reasons.

First, youth did not preserve the issue in the trial court. He

never asked the trial court to factor his age into the determination

of how a reasonable person would have perceived

Schwab’s actions. Second, youth was 17 years and 9 months

old when Schwab encountered him in the drug house. Even

2 On review, youth argues that Schwab stopped him without reasonable

suspicion in violation of both Article I, section 9, and the Fourth Amendment.

However, youth did not raise a Fourth Amendment argument in the Court of

Appeals. Having lost in that court, he cannot rely on the Fourth Amendment as a

basis for reversing the Court of Appeals decision. See State v. Ghim, 360 Or 425,

443, 381 P3d 789 (2016).

3 The holding in J.D.B. is narrow. The Court emphasized the limited inquiry

that its holding required:

“[A] child’s age, when known or apparent, is hardly an obscure factor to

assess. * * * [O]fficers and judges need no imaginative powers, knowledge of

developmental psychology, training in cognitive science, or expertise in social

and cultural anthropology to account for a child’s age. They simply need to

know that a 7-year-old is not a 13-year-old and neither is an adult.”

564 US at 279-80.

810 State v. K. A. M.

under J.D.B., which youth asks us to follow, he would be

regarded as an adult, not a child. See id. at 277 (citing Justice

O’Connor’s concurring opinion in Yarborough v. Alvarado,

541 US 652, 124 S Ct 2140, 158 L Ed 2d 938 (2004), for that

proposition and agreeing with the dissent in J.D.B. that

“ ‘teenagers nearing the age of majority’ are likely to react

to an interrogation as would a ‘typical 18-year-old in similar

circumstances’ ”). Third, the stop inquiry requires an evaluation

of the totality of the circumstances: in this case, circumstances

other than youth’s age lead us to conclude that

he reasonably perceived that he was not free to leave.

We accordingly leave for another day the first issue

that youth urges us to decide and turn to the second issue

that he raises—whether a reasonable person, regardless of

age, would have felt free to leave. On that issue, this court

recently explained that a police officer’s request for identification

is, in and of itself, not a sufficient show of authority

to constitute a stop. State v. Backstrand, 354 Or 392, 412,

313 P3d 1084 (2013) (stating that proposition). However, the

court was careful to add that

“when the content of the questions, the manner of asking

them, or other actions that police take (along with the

circumstances in which they take them) would convey to

a reasonable person that the police are exercising their

authority to coercively detain the citizen, then the encounter

rises to the level of a seizure.”

Id. As the court also noted in Backstrand, that “inquiry necessarily

is fact specific and requires an examination of the

totality of the circumstances involved.” Id. at 399.

In this case, Detective Schwab’s entry into the bedroom,

the lack of any explanation for his presence, and his

apparent accusation that the young woman was using methamphetamine

persuade us that a reasonable person would

perceive that Schwab was exercising his authority to detain

both youth and the young woman. More specifically, according

to the evidence that the trial court credited, youth and

the young woman were in the bedroom of the house when

Schwab and four other officers entered the house and began

searching it. Schwab then walked into the bedroom without

any explanation for his presence. To be sure, Schwab

Cite as 361 Or 805 (2017) 811

testified at the suppression hearing that the renter had

given the officers permission to look through the house for a

suspected parole violator. But Schwab never communicated

that information to either youth or the young woman.

Ordinarily, police officers do not walk into a person’s

bedroom uninvited or, if they do, not without some explanation

as to why they are there. That is, however, precisely what

Detective Schwab did. He simply walked into the bedroom

where youth and the young woman were, and the first words

out of his mouth were to tell the young woman, “You need

to stay off the meth.” Both Schwab’s unexplained entry into

that private space and his accusation that the young woman

was using or had recently used methamphetamine created a

coercive atmosphere that reasonably conveyed that she and

youth were suspected of illegal drug use and were not free

to leave until Schwab had completed his inquiry. Two other

circumstances support that understanding. Schwab asked

whether youth and the young woman had anything illegal

on them, a question that, given Schwab’s prior accusation

of methamphetamine use, reasonably added to the coercive

pressure. And the young woman was aware (and so presumably

was youth) that, although Schwab was the only officer

who had come into the bedroom, other officers were searching

through the house. The officers’ unexplained presence in

the house added to the coercive effect of Schwab’s presence

in the bedroom.

In those circumstances, youth reasonably concluded

that Schwab had stopped him—that is, that Schwab was

exercising his authority to detain him. In reaching that conclusion,

we note that this is not a case in which an officer

asked a person for identification for the apparent purpose of

getting the person to leave a place where he or she was not

authorized to be. Cf. Backstrand, 354 Or at 415 (explaining

that, when an officer noticed a person who appeared to

be a minor in an “adult bookstore,” a request for identification

was not a stop; at most, the person’s answer would

have led to the person’s being asked to leave the store);

State v. Ehly, 317 Or 66, 78, 854 P2d 421 (1993) (explaining

that the officers’ request to look for and return a motel

room key, viewed in light of the motel manager’s and the

812 State v. K. A. M.

officers’ prior requests that the defendant leave the premises,

did not constitute a seizure). Nor is this a case in which

an officer approached a person who had arrived at a house

being searched by the police, explained to the person why

the officer had approached him, and then asked the person

his name and connection to the house. Cf. State v. Anderson,

354 Or 440, 452-53, 313 P3d 1113 (2013) (reasoning that,

in those circumstances, the request for information did not

constitute a seizure). Finally, this is not a case in which

an officer approached the driver of a parked car while his

passengers (the defendant and a companion) walked away,

later returned of their own accord, and responded to the officer’s

request for identification after returning. Cf. State v.

Highley, 354 Or 459, 469, 313 P3d 1068 (2013) (relying on

the officer’s focus on the driver, the defendant’s exercise of

his freedom to walk away from the officer, and his unilateral

decision to return, in concluding that the officer’s request for

identification did not constitute a stop).

As explained above, two circumstances combine

in this case to reinforce the conclusion that the detective’s

actions constituted a stop. The first is the place where the

encounter occurred: Detective Schwab walked into a bedroom

where he found youth and the young woman. See State

v. Fair, 353 Or 588, 600-01, 302 P3d 417 (2013) (explaining

that an officer’s actions taken within a house can have a

more coercive effect than actions taken in public places). We

recognize that youth and the young woman were not yet residents

of the house when Schwab walked in on them in the

bedroom. Rather, they were there waiting to learn if they

could stay there, and their right to privacy was derivative

of the person who had rented the home. See State v. Tanner,

304 Or 312, 321, 745 P2d 757 (1987) (discussing relative

rights of owners and guests). However, youth and the young

woman reasonably viewed the coercive effect of Schwab’s

unexplained entry into the bedroom as if he had entered the

bedroom without authority.

The second factor is what Schwab said. After entering

the bedroom, he told the young woman that she needed

to “stay off the meth.” He effectively accused her of being

on or using methamphetamine—a statement that, in the

context in which it was made, would cause a reasonable

Cite as 361 Or 805 (2017) 813

person to conclude that he or she was not free to leave until

Schwab had finished his inquiry. See State v. Jackson, 268

Or App 139, 146, 342 P3d 119 (2014) (following line of Court

of Appeals decisions holding that telling a person he or she

has committed an offense can constitute a stop). Because we

hold that Schwab’s actions constituted a stop, the remaining

issue is whether the stop was justified—namely, whether

Schwab reasonably suspected that youth and the young

woman had engaged or were engaging in criminal activity.

On that issue, the state argues that there are potentially

disputed issues of fact that the trial court did not resolve

and asks us to remand the case to the trial court if we conclude

a stop occurred. We accordingly do so.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case

is remanded to the circuit court.