S058458, Opinion — State v. Fair

588
Argued and submitted January 11, 2011, resubmitted January 7, decision of
Court of Appeals reversed, judgment of circuit court affirmed May 31, 2013
STATE OF OREGON,
Petitioner on Review,
v.
NATASHA LARAE FAIR,
nka Natasha Larae Ortega,
Respondent on Review.
(CC 06FE1759AB; CA A136985; SC S058458)
302 P3d 417
Defendant moved to suppress evidence obtained during a consensual search
of her person. The trial court denied the motion and defendant entered a condi-
tional plea of guilty. On appeal, defendant argued that she was unlawfully seized
when the officer asked for consent to perform the search, and as such, the evidence
discovered during the search should have been suppressed. The Court of Appeals
reversed. Held: (1) defendant was seized under Article I, section 9, of the Oregon
Constitution when ordered her out of her home and then directed her to remain
where she was on the porch while her husband was taken into custody; (2) the
seizure of defendant was lawful under Article I, section 9, because the officers
reasonably believed she was a material witness to a recently committed crime and
reasonably needed to obtain her identity and account of the crime.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
On review from the Court of Appeals.*
Susan G. Howe, Senior Assistant Attorney General,
Salem, argued the cause for petitioner on review. With her
on the brief were John R. Kroger, Attorney General, and
Mary H. Williams, Solicitor General.
Joshua B. Crowther, Chief Deputy Defender, Office of
Public Defense Services, Salem, argued the cause for respon-
dent on review. With him on the brief was Peter Gartlan,
Chief Defender.
Before 	Balmer, 	Chief 	Justice, 	and 	Kistler, 	Walters,
Linder, Landau, and Baldwin, Justices.**
______________
** Appeal from Deschutes County Circuit Court, Alta J. Brady, Judge. 233
Or App 298, 225 P3d 848 (2010).
** Brewer, J., did not participate in the consideration or decision of this case.

Cite as 353 Or 588 (2013) 	589
LINDER, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.

590 	State v. Fair
LINDER, J.
Two law enforcement officers, believing that defen-
dant was being assaulted, responded to an incomplete 9-1-1
call that had been traced to defendant’s home. One officer
took defendant’s husband into custody, while the other offi-
cer proceeded to interview defendant on the porch of her
home. While interviewing defendant, the officer made an
observation that caused him to reasonably believe defendant
might be in possession of drugs. The officer asked defendant
if he could search her, and she agreed. During the search,
the officer discovered a glass pipe with drug residue on it.
Defendant was subsequently charged with possession of a
controlled substance.
The issue that this case presents is whether the offi-
cers’ actions, commands, and inquiries in investigating the
possible domestic assault resulted in a seizure of defendant
within the meaning of Article I, section 9, of the Oregon
Constitution and, if so, whether that seizure was constitu-
tionally permissible. As we will explain, we conclude that
defendant was seized for constitutional purposes, but we
further conclude that the seizure was lawful. We accord-
ingly reverse the decision of the Court of Appeals and affirm
the trial court’s judgment.
I. 	FACTS AND PROCEDURAL HISTORY
Lieutenant Utter and Deputy Mendoza were dis-
patched to defendant’s house to investigate an incomplete
9-1-1 call traced to that address. The dispatch operator had
reported that, during the call, a woman was overheard say-
ing “stop it” and “get off me,” a man was heard yelling in the
background, and then the call was disconnected. While the
officers were en route to the house, dispatch made several
attempts to call the number from which the 9-1-1 call had
been initiated, but no one answered.
After arriving at the house, Utter and Mendoza cir-
cled it on foot. Through a sliding glass door at the back of the
house, Mendoza observed an angry-looking man. Mendoza
“command[ed]” the man to come to the door and to keep his
hands where Mendoza could see them, but the man moved far-
ther into the house, out of Mendoza’s sight. Utter and Mendoza

Cite as 353 Or 588 (2013) 	591
went to the front of the house and knocked on the door.
Within a few moments, defendant and the man, later iden-
tified as defendant’s husband, answered the door together.
Utter observed a large swollen area over defendant’s right
eye, but no signs of injury to her husband. Mendoza ordered
both defendant and her husband to come out of the house
and onto the porch. As they did so, Mendoza handcuffed the
husband and moved him to the far side of the porch, approx-
imately 20 feet away from defendant. The husband called
out to defendant as he was moved, telling her not to say any-
thing. Utter “instructed” defendant to stay where she was
on the porch, and the officers positioned themselves between
defendant and her husband. Defendant’s husband continued
to call out to defendant intermittently during the ensuing
interview, telling her not to talk to Utter.
After Mendoza took defendant’s husband into cus-
tody, Utter conversed with defendant. Utter explained that
he and Mendoza were there because of the incomplete 9-1-1
call received by dispatch that was traced to the address.
Defendant initially denied making the call, but then said
that she had done so accidentally. When Utter continued to
ask defendant about the call, defendant admitted that she
had been arguing with her husband and had called 9-1-1
when the argument escalated. Utter asked defendant for
identification. She said she did not have any. Defendant told
Utter her name and birth date and said that she and her
husband were recently married. When asked, defendant
also provided her maiden name. When Utter ran defendant’s
married and maiden names through dispatch, the dispatch
operator told him that there were no “wants” for defendant
and no driving record for her. Because there was no driv-
ing record for her, Utter asked defendant if she had ever
had a driver’s license, and she said she had not. Utter was
able to determine from dispatch that someone with defen-
dant’s maiden name had had “some form of contact” with
law enforcement previously. Utter asked if defendant had
ever been arrested. When she replied that she had been, he
asked for what crime, and she said that the arrest had been
for drug possession.
Utter then turned his questioning to the argument
leading up to the 9-1-1 call and asked defendant in particular

592 	State v. Fair
about the evident injury above her eye. Defendant told him
that it was accidentally inflicted when items she was loading
on top of a vehicle slipped. As Utter began asking whether
defendant felt threatened by her husband during the argu-
ment, Utter observed an orange plastic syringe cap fall out
of defendant’s pant leg. That observation prompted Utter to
question defendant about her drug use. Defendant admit-
ted to using intravenous drugs and ultimately consented to
Utter’s search of her person. In the back pocket of defen-
dant’s pants, Utter discovered a wadded-up napkin contain-
ing a broken glass pipe with drug residue on it. Utter alerted
Mendoza to his discovery, and Mendoza placed defendant
under arrest for possession of a controlled substance.
Before her trial on that charge, defendant moved to
suppress the pipe, arguing that, under Article I, section 9, of
the Oregon Constitution, the officers’ conduct and commands
before Utter observed the syringe cap fall from defendant’s
pant leg, had resulted in the officers unlawfully “seizing”
defendant. Defendant urged that her consent to search was
a product of that illegality, with the result that the pipe dis-
covered during the search should be suppressed. The state
countered that “[t]here was no unlawful stop” because none
of the officers’ actions or commands amounted to a seizure
for constitutional purposes. According to the state, defen-
dant was lawfully searched based on Utter’s observation
of the syringe cap, which gave him a reasonable basis to
believe defendant was in possession of drugs at that time,
at which point Utter requested, and defendant voluntarily
gave, consent to the search.
The trial court denied defendant’s motion to sup-
press, agreeing with the state that defendant had not been
seized. Defendant entered a conditional plea of guilty,
reserving her right to challenge the trial court’s denial of
her suppression motion. She later appealed, and the Court
of Appeals reversed. On appeal, the court observed that
defendant was “ordered—not requested—to come out of her
house and was told to remain outside with the officer while
an investigation occurred.” State v. Fair, 233 Or App 298,
309, 225 P3d 848 (2010). The court concluded that, “because
defendant had been unlawfully seized before Utter observed

Cite as 353 Or 588 (2013) 	593
the syringe cap and the additional evidence that followed
that observation, the trial court erred in denying defendant’s
motion to suppress evidence.” Id. We allowed the state’s peti-
tion for review.
II. 	ANALYSIS
A. 	Was Defendant Seized Under Article I, Section 9?
The threshold question is whether the officer, in
the course of investigating the possible domestic assault,
seized defendant within the meaning of Article I, section 9.1
If, as the trial court concluded, defendant was not seized,
that ends the inquiry in this case. On the other hand, if, as
the Court of Appeals concluded, defendant was seized, we
must also determine whether the seizure was lawful and, if
it was not, whether defendant’s consent was a product of the
unlawful seizure.
As this court has observed, “[t]here potentially is
an infinite variety of encounters between law enforcement
officers and citizens[,]” and “[n]ot every such encounter con-
stitutes a ‘seizure’ of the citizen” for constitutional purposes.
State v. Holmes, 311 Or 400, 406-07, 813 P2d 28 (1991). Ana-
lytically, police-citizen encounters typically fall into one of
three categories that correlate the degree of intrusiveness
on a citizen’s liberty with the degree of justification required
for the intrusion. Id. at 407.2 At one end of the continuum are
mere encounters for which no justification is required. Id. At
the other end are arrests, which involve protracted custodial
restraint and require probable cause. See id. (noting arrests
are third category of police-citizen encounter and also entail
a “seizure” of a person). In between are temporary deten-
tions for investigatory purposes, often termed “stops,” which
generally require reasonable suspicion. Id. Both stops and
1 Article I, section 9, of the Oregon Constitution provides:
“No law shall violate the right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable search, or seizure; and no
warrant shall issue but upon probable cause, supported by oath, or affirma-
tion, and particularly describing the place to be searched, and the person or
thing to be seized.”
2 As this court explained in Holmes, “[t]he three categories are guidelines only.
They are neither exhaustive nor conclusive as to what police action is a ‘seizure’ of
a person.” 311 Or at 407-08.

594 	State v. Fair
arrests are seizures for constitutional purposes, while less
restrictive encounters are not.
This court recently clarified the standard for deter-
mining when a police-citizen encounter rises to the level of
a constitutional seizure. Specifically, we held that a seizure
occurs
“(a) if a law enforcement officer intentionally and signifi-
cantly restricts, interferes with, or otherwise deprives an
individual of that individual’s liberty or freedom of move-
ment; or (b) if a reasonable person under the totality of the
circumstances would believe that (a) above has occurred.”
State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010)
(emphasis omitted).3 In applying that standard, we look to
whether the encounter entailed a significant “restraint on
[defendant’s] liberty” imposed “either by physical force or
through some show of authority.” Id. at 309 (internal quotation
marks omitted). The inquiry is necessarily fact-intensive
and circumstance-specific. See Holmes, 311 Or at 408 (appli-
cation of standard for seizure “require[s] a fact-specific
inquiry into the totality of the circumstances of the partic-
ular case”). As this court has emphasized, not every action
by an officer to stop and engage a citizen is constitutionally
cognizable as a seizure:
“Under these ‘seizure’ standards, law enforcement offi-
cers 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 jus-
tification if a particular encounter proves fruitful. A street
or public place encounter does not amount to an Article I,
section 9[,] ‘seizure’ merely because the encounter may
involve inconvenience or annoyance for the citizen and the
other party to the encounter is known to be a law enforce-
ment officer. Even physical contact does not transform the
encounter into a ‘seizure’ if it is a normal means of attracting
3 The constitutional standard for a seizure was originally announced in
Holmes and included consideration of the citizen’s subjective belief that police
were depriving the citizen of her or his freedom or liberty of movement. 311 Or at
409-10. Ashbaugh modified the standard by abandoning the subjective component
and retaining an objective test that focuses on whether a reasonable person would
believe (as opposed to could believe) that a significant restriction had occurred. 349
Or at 316.

Cite as 353 Or 588 (2013) 	595
a person’s attention (e.g., policeman tapping citizen on
the shoulder at the outset to get a citizen’s attention). See
LaFave, 3 Search and Seizure, A Treatise on the Fourth
Amendment 413, § 9.2(h) (2d ed 1987). Rather, the encoun-
ter is a ‘seizure’ of a person only if the officer engages in
conduct significantly beyond that accepted in ordinary
social intercourse. The pivotal factor is whether the offi-
cer, even if making inquiries a private citizen would not,
has otherwise conducted himself in a manner that would
be perceived as a nonoffensive contact if it had occurred
between two ordinary citizens. See id.”
Id. at 410. Although the standard to be applied can be read-
ily articulated, in practice, the line between a “mere encoun-
ter” and something that rises to the level of a “seizure” does
not lend itself to easy demarcation. Depending on the cir-
cumstances involved, “[i]n many cases it is clear that a per-
son has been ‘seized.’ But there are many instances in which
it is less obvious whether a police-citizen encounter is a ‘sei-
zure.’ ” Id. at 407.
In this case, in arguing that she was seized, defen-
dant focuses on what she characterizes as an “escalating
show of authority” by the law enforcement officers that
began with them entering the backyard without permis-
sion and commanding defendant’s husband to come to the
sliding glass door, keeping his hands visible. When defen-
dant’s husband retreated farther into the house and out of
view, the officers went to the front door and knocked. After
a few moments, defendant and her husband opened the door,
at which point Mendoza ordered them to step out onto the
porch. Mendoza handcuffed defendant’s husband and moved
him to the far end of the porch, while Utter told defendant
to stay where she was, and began to question her. Relying
on the totality of those facts, defendant argues that when
Mendoza ordered her out of her home and Utter ordered
her to stay where she was on the porch while he questioned
her, those actions amounted to a clear show of authority
that restrained defendant’s liberty and freedom of move-
ment. Citing State v. Dahl, 323 Or 199, 206-07, 915 P2d 979
(1996), defendant urges that a law enforcement command
to exit and remain outside one’s own home under circum-
stances such as these constitutes a seizure for constitutional

596 	State v. Fair
purposes, and is not analogous to the far less intrusive pub-
lic place encounters with motorists, such as that involved in
Holmes.
The state responds by agreeing that, if the officers
had detained defendant and investigated her as someone
who had possibly committed a crime, their conduct would
have amounted to a seizure. The state argues, however, that
the intrusiveness of the officers’ conduct was significantly
lessened because they detained defendant as a potential vic-
tim who might need emergency assistance and who could
provide information about the possible assault on her by her
husband. The state relies on State v. Gerrish, 311 Or 506,
815 P2d 1244 (1991), to urge that, when officers detain and
question a citizen as a potential witness to or victim of a
crime, rather than as the suspect who may have committed
the crime, the encounter takes on a different character, one
that is significantly less intimidating and intrusive to the
citizen being detained. As the state understands Gerrish,
this court “explicitly held that a police officer could tempo-
rarily detain a potential witness to a crime, for purposes
of making a limited inquiry, without implicating Article I,
section 9.” (Emphasis in original.)
The state, however, reads Gerrish too broadly. To
better explain the limits of our holding in Gerrish, we begin
with a more detailed description of our holding in Holmes, on
which Gerrish relied.
Holmes involved a detour set up by a deputy sheriff
at one side of a bridge to reroute traffic around the scene of a
motor vehicle accident. The deputy had placed flares on the
highway and had activated the overhead lights on his patrol
car. He was in uniform, holding a flashlight, and directing
traffic. The defendant drove a few feet beyond where the
deputy had directed the defendant to stop, then spoke to the
deputy though the rolled-down window of the defendant’s
car. While the deputy was explaining to the defendant the
need to take the detour, the deputy made observations that
gave him probable cause to believe that the defendant was
intoxicated. The defendant was ultimately arrested and
charged with driving under the influence of intoxicants.
Before trial, he sought to suppress evidence of his intoxication

Cite as 353 Or 588 (2013) 	597
on the ground that he had been unlawfully seized when the
deputy ordered him to stop. Holmes, 311 Or at 402-03. This
court concluded that the defendant had not been seized for
purposes of Article I, section 9, when the deputy stopped
the defendant’s vehicle “to advise him that, because of an
accident, the highway ahead was closed and that an alter-
nate route was necessary.” Id. at 411. The court reasoned
that seeing a deputy directing or stopping traffic because
of a motor vehicle accident is a common experience; that
“[n]o psychologically intimidating environment had been
created”; and that the deputy “did not question defendant,
request any identification, make any threats or draw any
weapons.” Id. Rather, “[t]he intrusion was tailored in direc-
tion and manner to be insignificantly intrusive,” with the
result that it “did not significantly restrict, interfere with, or
otherwise deprive [the] defendant of his liberty or freedom
of movement.” Id. (emphasis in original).
Gerrish, which was decided only two months after
Holmes, involved similar facts, and led to a similar hold-
ing. There, a state police officer was stopping all vehicles on
the only road exiting a coastal resort where a robbery and
shooting had recently occurred. The purpose of the stops
was “to determine whether any of these persons witnessed
the shooting/robbery, or to possibly find the perpetrator.”
Gerrish, 311 Or at 508 (quoting from trial court’s findings of
fact). The officer had turned on his patrol car’s flashing over-
head lights and was stopping each car on the road. When
the defendant drove by without stopping, the officer ordered
the defendant to stop, which he did. The officer approached
the defendant and asked him if he knew anything about
the robbery. In the course of that questioning, the officer
made observations that gave him reason to believe that the
defendant was driving while intoxicated, and the defendant
was subsequently arrested. As in Holmes, the defendant was
arrested for driving under the influence of intoxicants and,
at trial, the defendant challenged the stop as an unlawful
seizure under Article I, section 9. Id. at 509. This court con-
cluded, as it had in Holmes, that the defendant was not seized
until after the officer had developed reasonable suspicion
that the defendant was driving while intoxicated. Id. at 513.
In explaining that conclusion, the court’s description of the

598 	State v. Fair
officer’s actions echoed the description in Holmes, quoted
above, of “public place encounters” between officers and cit-
izens:
“[T]he officer’s initial actions of flagging defendant down
and directing him to stop were the only means available to
get [the] defendant’s attention long enough to request infor-
mation. These actions are analogous to ‘tapping [a] citizen
on the shoulder at the outset to get a citizen’s attention.’
This is not a significant restriction upon or interference
with an individual’s liberty or freedom of movement; nor
would a reasonable individual believe that it was.”
Id. (quoting Holmes, 311 Or at 410). Thus, according to the
court, because the defendant’s vehicle was stopped in an
ordinary manner so that the officer could request informa-
tion, no seizure occurred for purposes of Article I, section 9.
Together, Holmes and Gerrish stand for the limited
proposition that a law enforcement officer constitutionally
may halt and briefly detain a person passing through a pub-
lic area as a means to engage the citizen long enough to
impart information or seek the citizen’s cooperation or assis-
tance. As Holmes emphasized, police are free to “approach
persons on the street or in public places, question them,
and even accompany them to another location without the
encounter necessarily constituting a ‘seizure’ of a person[.]”
311 Or at 409. As Gerrish emphasized, especially in the case
of a motorist, halting and briefly detaining a citizen, even
when done pursuant to an officer’s show of authority, is often
a nonintrusive and socially inoffensive way to seek a citi-
zen’s cooperation or impart information. 311 Or at 513. The
important distinction in both cases was the public nature of
the encounter and the practical reality that authoritatively
halting the passing motorists is often the only practical
means for police to have an exchange with them.4 No seizure
occurs because the police conduct is not a socially intrusive
exercise of police authority in those particular settings and
circumstances. Neither case stands for the broad proposition
4 The court in Holmes also remarked that “[i]t would be anomalous to guaran-
tee a motorist greater freedom of movement than is afforded a pedestrian.” 311 Or
at 411.

Cite as 353 Or 588 (2013) 	599
that the protections of Article I, section 9, do not extend to
persons that police stop and detain as potential witnesses.5
The remaining question in this case is whether the
officers, in responding as they did to the emergency 9-1-1
call and in ordering defendant to exit her home and remain
on the porch, seized defendant for purposes of Article I,
section 9. As both parties emphasize, that determination
“require[s] a fact-specific inquiry into the totality of the cir-
cumstances of the particular case.” Holmes, 311 Or at 408.
Here, the state points out that defendant initiated the con-
tact by calling 9-1-1 and then aborted the call. In responding
to that tacit invitation by defendant to come to her aid, law
enforcement officers did what was minimally necessary to
be able to engage defendant to determine if she had been
assaulted by her husband and whether she needed emer-
gency aid. The state urges that the officers’ conduct in order-
ing defendant and her husband out of the house and onto
5 As the state points out, the court in Gerrish acknowledged in a footnote that
the officer, in stopping all cars leaving the resort, had the dual purpose of question-
ing witnesses and possibly apprehending a suspect. The court declined to analyze
whether the defendant was lawfully stopped as a criminal suspect because “the
officer was justified in stopping [the] defendant as a potential witness[.]” Gerrish,
311 Or at 512 n 2. The point of the footnote was simply that, when officers have
a lawful basis for stopping a citizen (viz., to briefly halt passing motorists long
enough to impart information, give aid, or seek cooperation) it does not matter
whether they would have been able to stop and detain any particular driver as a
criminal suspect. See State v. Tucker, 286 Or 485, 492-93, 595 P2d 1364 (1979) (if
police officer has objective basis for stop, stop is not rendered invalid by fact that
officer subjectively suspects person of criminal conduct for which officer lacks suf-
ficient justification to stop). Said another way, an otherwise authorized stop is not
“rendered invalid by the arresting officer’s hope or belief, even if that hope or belief
is one of the reasons for his action, that evidence of some other offense may come
to light during the course of the encounter.” Id. at 495.
A later footnote in Gerrish underscored the limits of its rationale. In rejecting
the defendant’s argument that he was seized for purposes of the Fourth Amend-
ment of the United States Constitution, this court observed that the American
Law Institute’s Model Code of Pre-Arraignment Procedure (1975) would autho-
rize officers to detain a potential witness for questioning under specified circum-
stances. Gerrish, 311 Or at 515 n 4. The commentary to the Model Code referred in
particular to the need for “coercive stop[s]” of motorists given the lack of any other
means to secure their voluntary cooperation. Id. The court in Gerrish noted that,
despite the commentary’s “coercive stop” characterization, the court did not con-
sider such an action necessarily to be a seizure for constitutional purposes for the
reasons that the court had discussed in the text of the opinion. Id. That footnote
reinforced the court’s essential holding—viz., that some actions that officers take
in halting and engaging citizens in public settings and in common with other pass-
ing citizens are not, in a constitutional sense, “coercive” and are not sufficiently
intrusive to constitute seizures for constitutional purposes.

600 	State v. Fair
the porch, thus separating the two so that police could talk
to defendant free of her husband’s interference, was not a
significant intrusion on defendant’s liberty or freedom of
movement, nor would a reasonable person in defendant’s sit-
uation perceive it to be.
In our view, this is one of those instances, referred
to in Holmes, that presents a close question as to whether the
police-citizen encounter is a “seizure” for constitutional pur-
poses. 311 Or at 410. But we conclude that the officers’ con-
duct vis-à-vis defendant was a seizure. The principal decid-
ing factor is the setting involved—the privacy of defendant’s
home and her interest in her personal autonomy within that
place.6 An ultimate objective of the constitutional protec-
tions, both state and federal, against unreasonable searches
and seizures is “to protect the individual in the sanctity of
his [or her] home[.]” State v. Duffy et al., 135 Or 290, 297,
295 P 953 (1931); see generally State v. McDaniel, 115 Or 187,
204-05, 231 P 965 (1925) (discussing constitutional protec-
tions against unreasonable searches and seizures as rooted
in common law protection for sanctity of home). The degree
to which law enforcement conduct intrudes on a citizen’s
protected interest in privacy and liberty is significantly
affected by where the conduct occurs, such as in the home, in
an automobile, or on a public street. See State v. Tourtillott,
289 Or 845, 865, 618 P2d 423 (1980) (so observing under
Fourth Amendment to United States Constitution). A gov-
ernment intrusion into the home is at the extreme end of
the spectrum: “Nothing is as personal or private. Nothing
is more inviolate.” Id. Thus, while an officer ordinarily may
make an arrest on probable cause alone, without seeking
a warrant, when the arrest requires forcible entry into a
private residence, an arrest warrant is required, unless
exigent circumstances excuse obtaining one. See generally
6 Our focus on the significance of the setting in this case should not be under-
stood to mean that police conduct in halting, detaining, and directing the actions
of citizens in public settings, as opposed to private homes, cannot constitute a sei-
zure when done to engage those citizens as potential witnesses or victims, either
to impart information, seek cooperation, or to offer emergency aid. We have no
occasion in this case to explore those different factual scenarios, other than that
to point out that, consistently with the holdings in Holmes and Gerrish, there at
least are circumstances in which law enforcement efforts to engage citizens are
not sufficiently intrusive on an objective basis as to rise to the level of a seizure.
Beyond that, other cases will have to be resolved on their individual facts.

Cite as 353 Or 588 (2013) 	601
State v. Olson, 287 Or 157, 165, 598 P2d 670 (1979) (declar-
ing rule). That distinction animated our holding in Dahl,
where we concluded that the police order to the defendant to
come out of his house “with his hands up” ran headlong into
the added limits on police authority to invade the liberty
of a citizen in the privacy of his own home. 323 Or at 207,
209 (to seize a person inside his home by commanding his
exit would be inconsistent with well-established limits on
police authority to enter home without warrant). Here, too,
the officers’ orders to defendant to come out of her home and
then remain where she was on the porch likewise ran head-
long into the added limits on police authority that apply to a
citizen in the privacy of her home.
We therefore agree with the Court of Appeals, which
concluded that the officers’ conduct here went beyond that in
Holmes and Gerrish and amounted to a significant restraint
on defendant’s liberty within her own home sufficient to con-
stitute a seizure:
“The ‘mere encounters’ in Holmes and the cases underlying
it occurred in streets or other public places. There is a sig-
nificant difference between the typical circumstances of a
police officer approaching a person on a public street—for
example, by flagging down a motorist in order to conduct a
brief exchange of information, as was the case in Holmes[ and]
Gerrish * * *—and a police officer going to the door of a
person’s home, ordering the person out of the home, and
instructing the person to remain with the police officer,
which is what occurred in this case.”
Fair, 233 Or App at 308. The officers’ conduct in ordering
defendant to step out of her home was a show of authority
that significantly intruded on her liberty and amounted to a
seizure under Dahl. The subsequent order to remain on the
porch while one officer questioned her immediately followed
the order to step out of the house. That second order con-
tinued the initial intrusion by restraining defendant from
being free to reenter her home or otherwise enjoy the liberty
she would ordinarily enjoy in the environment of her own
home and property. Under the circumstances, that show of
authority, too, was a sufficient intrusion on defendant’s lib-
erty to constitute a seizure for purposes of Article I, section
9.

602 	State v. Fair
B. 	Was the Seizure Lawful?
With that conclusion in place, the next question is
whether defendant’s seizure was lawful under Article I, sec-
tion 9. By its terms, Article I, section 9, does not prohibit
all searches and seizures. Rather, it guarantees citizens the
right to be “secure in their persons * * * against unreasonable
search, or seizure.” Or Const, Art I, § 9. Although the syntax
differs, the guarantee of the Fourth Amendment to the United
States Constitution is substantively the same: “The right of
the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall
not be violated, * * *.” Both provisions impose limitations on
searches and seizures “in order to prevent arbitrary and
oppressive interference by [law] enforcement officials with
the privacy and personal security of individuals.” Tourtillott,
289 Or at 853 (discussing state and federal law principles).
And for both provisions, the touchstone is reasonableness.
State v. Guggenmos, 350 Or 243, 257 n 6, 253 P3d 1042
(2011) (Article I, section 9); Terry v. Ohio, 392 US 1, 19, 88
S Ct 1868, 20 L Ed 2d 889 (1968) (Fourth Amendment).
Consequently, for purposes of Article I, section 9,
this court has embraced the analysis that originated under
the Fourth Amendment, which distinguishes between tem-
porarily detaining for investigation and arresting on proba-
ble cause. In particular, this court has recognized that “there
is nothing ipso facto unconstitutional in the brief detention
of citizens under circumstances not justifying an arrest, for
purposes of limited inquiry in the course of routine police
investigations.” State v. Cloman, 254 Or 1, 7, 456 P2d 67
(1969) (quoting with approval Wilson v. Porter, 361 F2d 412,
415 (9th Cir 1966).7 To be constitutional, such a detention
does not require probable cause. Rather, “due regard for the
7 Cloman was not explicitly based on Article I, section 9, but the length to
which it went to explain its “approval” of the federal analysis, rather than merely
follow it, suggested implicitly that the court was deciding the case as a state law
matter. Both this court and the legislature so understood Cloman. After Cloman,
the legislature enacted the Oregon stop statutes (ORS 131.605 to 131.625) and,
in doing so, sought to codify both this court’s decision in Cloman and the United
States Supreme Court’s decision in Terry. See State v. Valdez, 277 Or 621, 624-26,
561 P2d 1006 (1977) (describing origins of stop statutes). Since that codification,
this court has viewed the statute as protecting the interests secured by both Arti-
cle I, section 9, and the Fourth Amendment. Id. at 629; see also State v. Kennedy,
290 Or 493, 497, 624 P2d 99 (1981) (Oregon stop statutes were intended to codify

Cite as 353 Or 588 (2013) 	603
practical necessities of effective law enforcement requires
that the validity of brief, informal detention be recognized
whenever it appears from the totality of the circumstances
that 	the 	detaining 	officers 	could 	have 	had 	reasonable
grounds for their action.” Id. at 8 (quoting with approval
Porter, 361 F2d at 415). Thus, as already described, Article I,
section 9, typically requires a degree of justification for a
seizure of a person that correlates with the extent to which
police conduct intrudes on that citizen’s liberty. See Holmes,
311 Or at 407 (describing three general categories of police-
citizen encounters). To arrest a citizen, an officer must have
probable cause. Id. But when the intrusion is less—such as
a temporary detention and questioning of a person—so, too,
may the justification be less. Temporary detention for inves-
tigation requires only reasonable suspicion. Id.
Relying on those precepts, the state urges that the
same “due regard for the practical necessities” of law enforce-
ment and the same lesser intrusion on liberty entailed by a
temporary detention that justify detaining a potential sus-
pect equally justify the temporary detention of a potential
witness who can provide information about a crime. The
state proposes a rule that would recognize temporary inves-
tigatory detentions of witnesses to be lawful if (1) the officer
reasonably believes that an offense involving danger of forc-
ible injury to a person has recently been committed nearby;
(2) the officer reasonably believes that the person has knowl-
edge that may aid the investigation of the suspected crime;
and (3) the detention is reasonably necessary to obtain or
verify the identity of the person, or to obtain an account of
the crime.
Defendant’s argument, in response, proceeds from
a different premise. Defendant asserts that, under Article I,
section 9, all searches and seizures must be authorized by
a constitutionally sufficient warrant or fall within an excep-
tion to the warrant requirement. In defendant’s view, there-
fore, law enforcement officials who seek to question a poten-
tial witness to or victim of a crime have only two choices.
One is to engage a citizen in a noncoercive (e.g., nonseizure)
decisions by this court interpreting Article I, section 9, and the United States
Supreme Court interpreting the Fourth Amendment).

604 	State v. Fair
fashion, as occurred in Holmes, which is conduct that falls
outside of Article I, section 9, altogether. Alternatively,
officers may use the procedures established by statute to
subpoena a witness or hold a material witness pursuant
to judicial order,8 unless confronted by an exigency of the
kind that would excuse seeking a search warrant. Defen-
dant’s position is that, in the absence of (1) a subpoena, (2) a
material witness order, or (3) an exigency, any detention and
questioning of a witness is per se unreasonable and violates
Article I, section 9.
Contrary to the premise of defendant’s position,
however, the warrant requirement traditionally has not
extended to the same extent and in the same way to seizures
of persons, as it has to searches and seizures of premises
and property. At common law, a police officer could arrest a
citizen if that citizen committed a crime in the officer’s pres-
ence; the officer was not required to first obtain a warrant.
See Duffy, 135 Or at 301-02 (discussing common law); see
generally Atwater v. Lago Vista, 532 US 318, 328-36, 354,
131 S Ct 1536, 149 L Ed 2d 549 (2001) (extensive discussion
of common-law arrest authority). Such an arrest has long
been recognized as a reasonable seizure for purposes of both
the state and federal constitutions, regardless of whether
the officer could have obtained an arrest warrant. See Duffy,
135 Or at 301-02 (so holding under Article I, section 9);
Atwater, 532 US at 328-36, 354 (holding that arrest of citi-
zen who commits offense, whether misdemeanor or felony, in
officer’s presence is lawful under Fourth Amendment). The
exception to that rule has been when the arrest requires an
entry into private premises. In that circumstance, officers
must obtain an arrest warrant unless an exigency excuses
first doing so. Olson, 287 Or at 165 (declaring rule). But the
requirement of a warrant arises because the warrantless sei-
zure of the person who is in his or her private premises, and
not in public, would run counter to “the considerable body of
law that has developed to protect an individual’s belongings
8 See, e.g., ORS 136.557 to 136.570 (providing for subpoenas to compel atten-
dance of witnesses at preliminary hearings, grand jury proceedings, and trial);
ORS 136.608 (providing for district attorney or defendant to apply to court for a
material witness order; requiring sworn application establishing, inter alia, that
person subject to order possesses information material to pending charge or grand
jury proceeding and will not appear when attendance is required).

Cite as 353 Or 588 (2013) 	605
from unreasonable search and seizure in his home,” which
is a protection that “safeguard[s] the individual himself in
the same setting.” Id. at 164 (quoting with approval People
v. Ramey, 16 Cal 3d 263, 275, 545 P2d 1333, 1340, cert den,
429 US 929 (1976)); see also Payton v. New York, 445 US
573, 586-90, 100 S Ct 1371, 63 L Ed 2d 639 (1980) (without
a warrant, searches and seizures inside a house are pre-
sumptively unreasonable; without exigent circumstances
and probable cause to arrest, officers may not enter home to
arrest without warrant). If the person to be arrested is not
in a home or similar premises protected from entry under
the constitution, no warrant to make the arrest is required.
Indeed, were a warrant, or an exception to a war-
rant, required for a seizure of a person outside the home,
no Cloman- or Terry-like stop of a criminal suspect based
on reasonable suspicion would be constitutionally permis-
sible. The only warrant known to the law for a seizure of
a criminal suspect is an arrest warrant. There is not, nor
could there be, a warrant to detain on reasonable suspicion;
a constitutionally sufficient warrant must be supported by
probable cause. See Or Const, Art I, § 9 (“no warrant shall
issue but upon probable cause”); US Const, Am IV (same).
Exceptions to the warrant requirement excuse the necessity
of obtaining a warrant from a neutral magistrate in advance
of a search or seizure; they do not change the requirement
that police have probable cause to support their action. In
other words, the very premise of defendant’s position runs
counter to the developed law regarding temporary deten-
tions of citizens for investigatory purposes.
The question here accordingly narrows to whether
it is reasonable for a law enforcement officer to take an inter-
mediate step that is short of arrest, but that still entails sig-
nificantly restricting the citizen’s freedom to leave, in order
to question the citizen as a potential witness to or victim of
a crime. With apparent unanimity, other courts and author-
ities examining that question under the Fourth Amendment
and parallel state constitutional provisions have concluded
that the answer is yes, although the circumstances in which
such stops have been found reasonable are sometimes more
limited than those that justify stops of criminal suspects. See
generally Wayne R. LaFave, 4 Search and Seizure § 9.2(b),

606 	State v. Fair
377-81 (5th ed 2012) (discussing principles and citing repre-
sentative cases).
In reaching that conclusion, many have followed, to
one extent or another, the lead of the Model Code of Pre-
Arraignment Procedure, which identifies various circum-
stances in which a law enforcement officer may “order a per-
son to remain in the officer’s presence near such place for
such period as is reasonably necessary” to accomplish certain
authorized purposes in the investigation of crimes. American
Law Institute, A Model Code of Pre-Arraignment Procedure
§ 110.2(1), 5 (1975) (Model Code). Although much of that
section of the Model Code addresses stops of persons sus-
pected of involvement in criminal activity, subsection (1)(b)
is addressed to witnesses as well. Model Code § 110.2(1)(b)
at 6. In particular, under the Model Code, it is lawful for offi-
cers to stop and temporarily detain a potential witness for
questioning if the officer has (1) reasonable cause to believe a
misdemeanor or felony involving danger of forcible injury to
persons or property has just been committed near where the
officer finds the person; (2) the officer has reasonable suspi-
cion that the person is a material witness to that crime; and
(3) the detention is reasonably necessary to obtain or verify
the person’s identification or to determine what the person
knows about the crime. Id.9
9 The Model Code authorizes an officer to stop and detain a person when:
“(i) The officer has reasonable cause to believe that a misdemeanor or fel-
ony, involving danger of forcible injury to persons or of appropriation of or
danger to property, has just been committed near the place where he finds
such person, and
“(ii) the officer has reasonable cause to believe that such person has
knowledge of material aid in the investigation of such crime, and
“(iii) such action is reasonably necessary to obtain or verify the identifica-
tion of such person, or to obtain an account of such crime.”
§ 110.2(1)(b) at 6. The note following section 110.2 of the Model Code explains that
subsection (1)(b)
“allows an officer coming upon the scene of a recently committed crime to
‘freeze’ the situation and obtain identifications and an account of the circum-
stances from the persons present. Thus this paragraph * * * is applicable to
witnesses as well as suspects. The officer may only stop for this purpose if he
has reasonable cause to believe that the crime has been committed and that
the persons whom he stops have knowledge of material aid to the investigation
of it.”
§ 110.2 at 9-10.

Cite as 353 Or 588 (2013) 	607
The commentary to the Model Code discusses the
rationale for section 110.2, explaining that law enforcement
officers often are confronted with situations in which an
officer needs “to acquire some further information from or
about a person whose name he does not know, and whom,
if further action is not taken, he is unlikely to find again.”
§ 110.2 at 270 (footnote omitted). Such a person may not
appear to be involved in any criminal activity, but having
been found near the scene of a crime, may be a “potential
source of information.” Id. The commentary concludes that
it would be “irrational” not to authorize officers responding
to “confused, emergency situations” to “freeze the situation
for a short time, so that [they] may make inquiry and arrive
at a considered judgment about further action to be taken.”
Id. at 272 (quotation marks omitted). Professor LaFave gen-
erally agrees, asserting that the Model Code takes “the sen-
sible position that the power to stop may constitutionally be
extended so as to encompass the brief detention of potential
witnesses in at least certain situations.” LaFave, 4 Search
and Seizure § 9.4(b) at 377. As noted, courts considering the
question have reached the same conclusion with apparent
unanimity, although with some variation in the circum-
stances in which temporary detention of a potential witness
will be considered reasonable for constitutional purposes.10
10 Cases that have followed the Model Code approach in the context of violent
crimes include: People v. Hernandez, 679 NYS2d 790, 793-94, 177 Misc2d 882, 887
(NY Sup Ct 1998) (police facing a “dangerous, ongoing situation” may “reasonably
stop victims and/or witnesses * * * in order to freeze the situation, render aid and/
or prevent the disappearance of witnesses”); Williamson v. United States, 607 A2d
471, 476-77 (DC 1992) (stop reasonable where shots had been fired, the officer had
reason to believe the defendant had knowledge material to the investigation, and
the stop was necessary to obtain prompt account of shooting); Wold v. State, 430
NW2d 171, 174 (Minn 1988) (“Our court, as well as courts of other states, have
recognized that in order to ‘freeze’ the situation, the stop of a person present at
the scene of a recently committed crime of violence may be permissible without
trampling on the Fourth Amendment prohibition against unreasonable search and
seizure.”) Barnhard v. State, 325 Md 602, 615, 602 A2d 701, 708 (1992) (approv-
ing “freeze” procedure discussed by LaFave and Model Code and holding officers
at the scene of recent stabbing “had the right and the duty to seek [defendant’s]
identification” after he indicated he possessed material information relating to the
crime); Metzker v. State, 797 P2d 1219, 1221 (Alaska Ct App 1990) (stop reason-
able where defendant’s passenger was victim of recent assault and had fled from
officers before providing identification information or account of the crime, citing
LaFave and § 110.2(1)(b) of the Model Code).
Other cases have approved of stops in circumstances in which it is less clear
that the crime committed would qualify under the Model Code. See, e.g., State v.
Pierce, 173 Vt 151, 157, 787 A2d 1284, 1289 (2001) (officer’s stop of defendant as

608 	State v. Fair
We have found no jurisdiction, and defendant cites none,
that rejects the basic approach endorsed by the Model Code
and by other authorities, such as Professor LaFave.
We likewise conclude that, in appropriate circum-
stances, it is permissible under Article I, section 9, for offi-
cers to stop and detain someone for on-the-scene questioning
whom they reasonably suspect can provide material infor-
mation about a crime’s commission. Both potential witnesses
to and victims of a crime can be sources of valuable infor-
mation that can aid officers in the field in making better
informed, on-the-spot investigatory decisions about whether
and who to temporarily detain or arrest, what leads to pur-
sue, and even which physical or other tangible evidence to
gather. Persons who possess material information about a
crime are also sources of evidence—testimonial evidence, to
be sure, but evidence just the same. Such evidence is poten-
tially as beneficial to the defense as to the prosecution, a
fact reflected in the value our legal system places on a crim-
inal defendant’s constitutional right to compulsory process
and statutory subpoena powers. See Or Const, Art I, § 11
(accused in criminal case has right to compulsory process
for obtaining witnesses in his favor); ORS 136.567 (defen-
dant in criminal action entitled to subpoena witnesses at
state expense). Knowing the identity of and the information
to be provided by a witness to or a victim of a crime is as fun-
damental to our criminal justice system as is apprehension
potential witness to driving under the influence of intoxicants held reasonable);
Metcalf v. Long, 615 F Supp 1108, 1115 (D Del 1985) (stop of vehicle justified by
officers’ reasonable suspicion that driver was an escaped felon who officers were
searching for, or that escaped felon was a passenger in stopped vehicle, or defen-
dant knew of felon’s whereabouts). A few have drawn the line between “serious”
and “minor” crimes. See Doucette v. State, 10 So 3d 117, 126 (Ala Crim App 2008)
(Welch, J., concurring) (describing as “improper[ ]” the “restrain[t] [of] an individ-
ual who is * * * merely thought to have been a witness to a relatively minor crime
such as in this case—knocking over mail-boxes—where there are no exigent cir-
cumstances”); State v. LaPlante, 2011 ME 85, ¶ 13, 26 A3d 337, 341 (Me 2011) (stop
for sole purpose of seeking information about possible speeding by another vehicle
was unreasonable).
Finally, consistently with the Model Code, a few courts have invalidated stops
where the crime was too remote. People v. Spencer, 84 NY2d 749, 754-55, 646 NE2d
785, 788-89 (1995) (unreasonable to stop defendant as potentially having informa-
tion about assault that occurred the day before). United States v. Ward, 488 F2d
162, 169 (9th Cir 1973) (unreasonable to stop defendant to question him as witness
in general investigation that was several months old).

Cite as 353 Or 588 (2013) 	609
of a potential offender. Consistently with Cloman, 254 Or at
5-8, where we approved of the temporary detention of crim-
inal suspects on reasonable suspicion, a due regard for the
practical necessities of effective law enforcement, considered
in tandem with a due regard for a person’s protected liberty
interests, equally supports the “brief, informal” investiga-
tory detention of a potential material witness on reasonable
suspicion.
We therefore hold that officers constitutionally may,
in appropriate circumstances, stop and temporarily detain
for questioning a person whom they reasonably believe is
a potential material witness to a crime. We further agree
with the basic test that the state has proposed for deter-
mining the circumstances in which such a temporary deten-
tion will be reasonable. In particular, we agree that the stop
and temporary on-the-scene detention of a likely material
witness will be constitutional if: (1) the officer reasonably
believes that an offense involving danger of forcible injury
to a person recently has been committed nearby; (2) the
officer reasonably believes that the person has knowledge
that may aid the investigation of the suspected crime; and
(3) the detention is reasonably necessary to obtain or ver-
ify the identity of the person, or to obtain an account of the
crime. In adopting those factors, we do not foreclose refine-
ment of them in future cases involving other factual circum-
stances. But for purposes of analysis of this case, those con-
siderations suffice.11
We turn, then, to an analysis of the particular facts of
this case and the lawfulness of the officers’ conduct. The offi-
cers arrived at defendant’s home in response to an incomplete
11 We do not decide in this case whether a temporary detention to question
someone who potentially has information material to the commission of a crime is
reasonable only for certain levels of offenses or ones involving personal injury or
property damage. See Model Code § 110.2(1)(b)(i) at 6 (approving of witness deten-
tions for crimes involving appropriation of or damage to property, as well as for
forcible injury). Nor need we resolve more specifically how close the stop must be,
temporally or geographically, to the commission of the crime. See id. (offense must
have “just” been committed “near the place” where potential witness is found).
Those issues are better resolved on facts that present them or pose close questions
on their resolution. Here, the potential crime was an assault involving forcible
personal injury, and it was either on-going when police arrived at the scene or had
been very recently committed.

610 	State v. Fair
or aborted 9-1-1 call, which, given what the 9-1-1 dispatcher
had heard, gave the officers an objectively reasonable basis
to believe that a woman in the home was being assaulted.
When the officers initially approached the home, defendant’s
husband appeared angry and was uncooperative and eva-
sive. Those observations gave the officers further reason to
believe that a violent domestic disturbance was occurring
and that the situation within the house remained poten-
tially dangerous.12 They knocked at the front door, and when
both defendant and her husband answered it, the officers
immediately observed a large swollen area over defendant’s
right eye.
The officers then ordered defendant and her hus-
band onto the porch of their home, where the officers sepa-
rated them by directing defendant to stay where she was on
the porch, while arresting and moving her husband to the
far side porch, about 20 feet away. In taking that action, the
officers had probable cause (not just reasonable suspicion) to
believe that defendant’s husband had assaulted her. Order-
ing the two from their home not only significantly intruded
on their liberty interests, but also invaded their privacy
interests in the sanctity of their home. As such, under Dahl,
the officers’ conduct not only was a seizure, but it was one
that, to be reasonable, ordinarily requires a warrant. 323
Or at 206-07, 209. Here, however, the circumstances cre-
ated a patent exigency excusing a warrant: there had been
an aborted 9-1-1 call; the officers’ observations at the scene
suggested that they had arrived in the middle of a domes-
tic assault; defendant’s husband had taken evasive action
to retreat into the home when he first saw the officers; and
12 Worth noting is that, until the officers arrived at the scene and gained those
confirming observations, either of two crimes might have been involved: a domestic
assault (which, depending on the circumstances and severity, could violate any of
several statutes) or initiating a false report, ORS 162.375, a Class C misdemeanor.
If the officers’ observations had immediately dispelled any reasonable suspicion
that a domestic assault had occurred or was occurring, and instead had provided
only a basis to believe that a false report had been made, under the Model Code
approach, the officers would not have been able to temporarily detain and ques-
tion either defendant or her husband to investigate that possible crime because it
would not have been a crime involving injury to person or property, as the Model
Code requires. § 110.2(1)(b)(i) at 6. We need not decide whether our constitutional
provision requires that same limitation, however, because here, the officers in fact
had reasonable suspicion that the crime committed was a personal assault.

Cite as 353 Or 588 (2013) 	611
when he and defendant answered the door, defendant appeared
to have been assaulted. Although defendant and her hus-
band answered the officers’ knock by opening the door, the
husband was still in a position to harm defendant further,
to slam the door shut and evade arrest, or to otherwise
escalate into physical confrontation. Such exigent circum-
stances justified ordering defendant and her husband onto
the porch, for purposes of taking control of the unpredictable
and potentially violent situation, and to take defendant’s
husband into custody.
We further conclude that the officers, having taken
that lawful action, could also detain defendant temporar-
ily for purposes of investigation. The officers’ observations
and information up to that point gave them an objectively
reasonable basis to believe that defendant was a victim of
a domestic assault that had just occurred at the home and
likely possessed information material to that crime. The
officers did not know defendant’s identity. They did not know
what defendant could tell them about the circumstances of
the aborted 9-1-1 call. They did not know any number of
things relevant to their investigation that defendant likely
could tell them, such as how the domestic assault began and
escalated, how defendant’s injury occurred, the presence of
others (e.g., children) in the home, and past incidences of
violence between defendant and her husband.13 Directing
13 In this particular context, the general reasonableness of those and similar
inquiries is bolstered by the special duties that the legislature has placed on offi-
cers responding to incidents of domestic abuse. By the time the officers ordered
defendant and her husband to step out of their home and onto their porch, the
officers had probable cause to believe that there had been an assault between
household members, and probable cause to believe that defendant’s husband was
the assailant. But that does not mean that a responsible on-the-scene investiga-
tion could not continue in an effort to confirm or dispel what the officers reasonably
suspected or had probable cause to believe had happened. In domestic violence
situations, ORS 133.055(2)(c) specifically charges investigating officers with mak-
ing “every effort” to determine who was “the assailant or potential assailant,” even
after an arrest has been made. In doing so, officers have a duty to consider, if the
information is “reasonably ascertainable,” the history of domestic violence between
the persons involved; whether any alleged crime was committed in self-defense;
and the potential for future assaults. ORS 133.055(2)(c)(A) - (D). Officers are fur-
ther required to “use all reasonable means to prevent further abuse” of a person
they believe to be a victim of domestic abuse, “including advising each person of
the availability of a shelter or other services in the community and giving each
person immediate notice” in writing of an extensive list of rights and remedies as
specified by statute. ORS 133.055(3).

612 	State v. Fair
defendant and her husband to remain on the porch, while
the officers kept defendant separate from her husband, who
appeared to have recently assaulted her and who was direct-
ing her to not cooperate with the officers, was a reasonable
way for them to “freeze” the situation, try to determine
and verify defendant’s identity, clarify what had happened,
and take appropriate next steps based on the course of the
investigation. As we have already concluded, those actions
amounted to a coercive detention of defendant, and conse-
quently were a seizure for constitutional purposes. They
were, however, also constitutionally permissible actions for
the officers to take.14
Defendant argues, however, that even if officers
could constitutionally stop and detain her for questioning
as a potential witness to and victim of a crime, the stop
was nevertheless unlawful for two reasons. First, defendant
argues, there was no emergency that called for the officers
to have defendant stay where she was on the porch for ques-
tioning once her husband had been “neutralized.” At that
point, according to defendant, the officers had no reason to
believe that defendant would flee or that defendant’s mem-
ory would fade. Nor did defendant appear to have an injury
requiring aid or assistance. In defendant’s view, therefore,
there was no reason for the officers not to simply “come back
later to talk to defendant” and seek her voluntary cooper-
ation. Defendant therefore argues that, once her husband
was isolated at the far end of the porch, the officers could not
reasonably detain and question defendant at all.
That argument disregards the essential rationale
that makes such a stop constitutionally permissible, however.
The officers did not know defendant’s identity; they did not
know what she could tell them about the aborted 9-1-1 call or
her apparently recent injury. The officers were, in the words
of the Model Code commentary, confronted with a “confused,
14 The Court of Appeals did not consider the lawfulness of the seizure as an
independent inquiry. Instead, the court appeared to proceed from the premise that
any seizure of a person as a potential witness rather than as a criminal suspect—
even if brief and for limited questioning—was per se unlawful under Article I,
section 9. With our holding in this case, we reject that apparent implicit premise of
the court’s analysis.

Cite as 353 Or 588 (2013) 	613
emergency situation[.]” § 110.2 at 272. Moreover, whatever
the officers’ initial observations, and however objectively
reasonable their initial beliefs about what had occurred and
defendant’s and her husband’s respective roles, officers are
not constitutionally compelled to halt an on-the-scene inves-
tigation when their suspicions rise to a particular level. See
State v. Taylor, 249 Or 268, 272, 437 P2d 853 (1968) (“Law
enforcement officers are under no constitutional duty to call
a halt to a criminal investigation the moment they have the
minimum evidence to establish probable cause, a quantum
of evidence which may fall far short of the amount necessary
to support a criminal conviction.” (internal quotation mark
omitted; quoting with approval Hoffa v. United States, 385
US 293, 310, 87 S Ct 408, 17 L Ed 2d 374 (1966))). As long
as the officers’ actions were constitutionally reasonable, they
were entitled to continue their on-the-scene investigation to
confirm, dispel, or otherwise further inform the scope and
course of the investigation.
To that end, it was reasonable for the officers to
“freeze the situation for a short time, so that [they could]
make inquiry and arrive at a considered judgment about fur-
ther action to be taken.” Model Code § 110.2 at 272 (internal
quotation marks omitted). As the United States Supreme
Court has cautioned, the Fourth Amendment protection
against unreasonable seizures of a person “is not well served
by standards requiring sensitive, case-by-case determina-
tions of government need, lest every discretionary judgment
in the field be converted into an occasion for constitutional
review.” Atwater, 532 US at 347 (so observing in the context
of arrests made in the field without a warrant). That obser-
vation applies with equal force under Article I, section 9. Our
constitutional provision, likewise, would not be well served
by an analysis that too readily second-guesses officers in
the field on the need for further on-the-scene investigation
and questioning of potential witnesses. See generally State v.
Bates, 304 Or 519, 524, 747 P2d 991 (1987) (officers in field
must have considerable latitude to take reasonable safety
precautions in investigation of crime due to split-second
decision required and difficulty of weighing magnitude of
need against intrusiveness of protective measures).

614 	State v. Fair
Defendant also argues that the officers exceeded
the scope of a reasonable investigation by checking law
enforcement records for any outstanding warrants and ask-
ing defendant whether she had been previously arrested and
then, when she said yes, asking her on what charge. Under
the particular facts of this case, however, those inquiries
were reasonably necessary to determine defendant’s identity.
The officer who questioned defendant had difficulty verify-
ing her identity. She did not have any form of identification
to show him. Nor could dispatch identify her as a licensed
driver; in fact, as she confirmed for the officer, defendant
had never had a driver’s license. Dispatch could tell the
officer only that their records showed that law enforcement
had had “some form of contact” with a person with defen-
dant’s maiden name. Asking defendant if she had ever been
arrested thus served two purposes reasonably related at that
point to the reasons for temporarily detaining defendant.
First, it potentially validated defendant’s identity by veri-
fying the information in the database. Second, asking what
the arrest had been for was a reasonable way to ascertain
whether defendant had a prior history of domestic violence.
See ORS 133.055(2)(c) (discussed earlier, 353 Or at 611 n 13).
When the officers learned that defendant’s arrest had not
been for a domestic violence incident, that fact helped to con-
firm the officers’ decision to arrest defendant’s husband as
the assailant. We therefore conclude that the two questions
that the officer asked defendant about whether she had been
arrested did not exceed the permissible scope of the stop, or
render the otherwise lawful stop unreasonable.15
III. 	CONCLUSION
In summary, we hold that defendant was seized by
the officers’ directives to step out of her home and remain
on her front porch because those directives were a show of
15 After attempting to determine and verify defendant’s identification, the offi-
cer continued his interview by asking defendant about the circumstances of the
assault and the 9-1-1 call. The orange syringe cap fell from defendant’s pant leg
as the officer asked defendant if she felt threatened by her husband during their
argument. Because we conclude that the officer’s inquiries were lawful, we need
not determine whether there was a sufficient relationship between them and the
evidence that the officer later discovered. See generally State v. Rodriguez, 317 Or
27, 39, 854 P2d 399 (1993) (suppression depends on nature of connection between
unlawful police conduct and evidence sought to be suppressed).

Cite as 353 Or 588 (2013) 	615
authority that would cause a reasonable person in defen-
dant’s circumstances to believe that her liberty had been sig-
nificantly restricted. We also hold, however, that the seizure
of defendant was reasonable under Article I, section 9. In
ordering defendant and her husband to step out of their home
and onto their porch, the officers did so with probable cause
to believe that defendant’s husband had just assaulted her
and under exigent circumstances that arose in the context
of the officers’ emergency response to an apparent incident
of domestic violence. In ordering defendant to stay on the
porch, the officers acted reasonably in temporarily detain-
ing her for purposes of questioning her as a witness to and
victim of a recent or ongoing assault. The officers had an
objectively reasonable basis to obtain and verify defendant’s
identity and an objectively reasonable belief that defendant
could provide information material to the assault. The trial
court therefore correctly denied defendant’s motion to sup-
press evidence discovered in the subsequent consensual
search of her person, contrary to the decision of the Court
of Appeals.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.