Oregon Supreme Court Shuts Down Pretextual Traffic Stops; Says Cops Can't Ask Questions Unrelated To The Violation

from the expecting-a-large-downturn-in-asset-forfeiture-funds dept

The Supreme Court's Rodriguez decision took a lot of fishing line away from law enforcement officers. Thousands of traffic statutes are violated every day. (Or not broken, in some cases.) All an officer needed to do was follow someone around until they violated one and then turn the traffic stop into a Q&A session with an eye on obtaining consent to search drivers, passengers, and vehicles.

The Supreme Court said pretextual stops are fine, but once the objective has been achieved (citation or warning given), the stop is over. No further questions. No calling for a drug dog. Nothing. Some officers took this to mean they could violate the Fourth Amendment as long as they did it quickly enough. Some courts allowed them to get away with speedy Constitutional violations. But, more often than not, courts interpreting the Supreme Court decision have read it as saying there's no extending a stop without reasonable suspicion to do so. There's some gray area, but not as much as officers had hoped.

The Supreme Court of Oregon has almost completely revoked law enforcement's fishing license. (via Reason) Its decision [PDF] applying the state's Constitution is more restrictive than the Rodriguez decision. There's no fishing, period. The court says even asking questions unrelated to the objective of the traffic stop is impermissible unless officers see, hear, or smell something that gives them reasonable suspicion to move past the objective of the stop.

The state argued that "unavoidable lulls" -- the moments between the officer's request for license and registration and the driver's production of these documents -- could be filled with all sorts of unrelated questions. The officer in this case testified that he fired off a salvo of questions at the beginning of every traffic stop.

“Every time I walk up, I ask him, I [say], ‘hey, Officer Faulkner, Beaverton Police Department,’ do my contact with them. ‘Do you have anything illegal in the car? Would you consent to a search for guns, drugs, knives, bombs, illegal documents, or anything else that you’re not allowed to possess?’”

This attempt to make it appear as though the questions the officer asked in this case were "normal" actually showed the officer routinely asked questions that had nothing to do with the traffic stops he was performing. This isn't exactly the message Officer Faulkner meant to send, but it's the message the Oregon Supreme Court received.

As the court notes, this barrage of questions directed at a driver violates the state's Constitution. Unlike a pedestrian encounter, drivers are not free to leave or ignore questions.

“[I]n contrast to a person on the street, who may unilaterally end an officer-citizen encounter at any time, the reality is that a motorist stopped for a traffic infraction is legally obligated to stop at an officer’s direction and to interact with the officer, and therefore is not free unilaterally to end the encounter and leave whenever he or she chooses.”

Since none of this is consensual, attempting to obtain consent for a vehicle search before even addressing the objective of the traffic stop implicates state-given protections against unreasonable searches and seizures. The court says investigations should be limited to the alleged crime at hand. A traffic stop is not the initial step in a deeper investigation of other potential criminal activity.

Whether an officer is investigating criminal or unlawful noncriminal activity, the officer’s authority to stop an individual—based on reasonable suspicion of criminal activity or on probable cause of unlawful noncriminal activity— is founded on the assumption that temporary, investigative stops to investigate particular conduct are permitted for that particular purpose only. It therefore follows that limits apply to an officer’s ability, during such a stop, to use that stop for other purposes.

The court notes that ruling otherwise would… well, it would make Oregon no different from the rest of the nation where these kinds of fishing expeditions are performed on the regular.

A stop that is reasonable for a limited investigatory purpose is not necessarily reasonable for all purposes, and we see no reason to distinguish between the activities that law enforcement officers conduct during such a stop and the questions that they ask; both must be reasonably related to the purpose that permits the officer to stop an individual in the first place. If we were to hold otherwise, then an officer who lacks a warrant, probable cause, or even reasonable suspicion of criminal activity, could stop an individual for a minor traffic offense, and, during that stop, conduct a criminal investigation anyway, making meaningless the rule which requires an officer to have reasonable suspicion before stopping an individual to conduct a criminal investigation.

The court makes this finding even clearer later in the ruling, expressly forbidding law enforcement officers from asking drivers unrelated questions in hopes of stumbling onto a bigger, better criminal act. It also points out this has always been the case in Oregon under its Constitution.

By applying subject matter limitations to investigative activities and questioning, Article I, section 9, ensures that officers do not turn minor traffic violations into criminal investigations without a constitutional basis for doing so.

And this decision -- redrawing what was supposed to be a bright line governing questioning during traffic stops -- makes it clear Oregon cops can thank Officer Faulkner for ruining it for them.

[I]f there were evidence that, during the stop, Faulkner had learned facts giving rise to reasonable suspicion that defendant had engaged or was about to engage in criminal conduct, an expanded investigation could have been justified. But here, Faulkner did not testify to any particularized suspicion that defendant had weapons, controlled substances, or any other contraband in his vehicle. To the contrary, Faulkner testified that he asks such questions every time he makes a stop.

Shorter Officer Faulkner: "I always engage in unconstitutional behavior during traffic stops."

Not anymore. That's no longer an option.

The dissenting opinion worries officers won't know what to do with their mouths during "unavoidable lulls." The majority says it's not up to the state's Constitution to bend to the will of otherwise unoccupied cops.

The dissent is concerned about what an officer can do during a ten-minute wait other than conduct activities and make inquiries reasonably related to the purpose of the stop and reasonably necessary to effectuate it. 365 Or at 720 (Garrett, J., dissenting). We do not share that concern. If an officer develops reasonable suspicion that the stopped individual has engaged in illegal activity in addition to that for which the individual was stopped, then the officer may investigate that activity. Without such suspicion, an officer should limit investigative activities and inquires to matters that are, as statute requires, limited to the “immediate circumstances that arouse the officer’s suspicion” or that will not result in the discovery of suppressible evidence.

This is a wonderful decision. It's also an anomaly. Everywhere else in the nation, pretextual stops will continue unimpeded. Drivers will be asked tons of unrelated questions by cops who want to turn every failure to signal into a drug bust. Unfortunately, very few states have Constitutions that provide more protections for citizens than the US Constitution, so the Rodriguez decision will have to do for most of us.

Filed Under: 4th amendment, fishing expedition, oregon, police, pretextual stops, rodriguez decision


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  • icon
    Norahc (profile), 2 Dec 2019 @ 3:44pm

    Guess Oregon cops will just have to get more creative in coming up with reasonable suspicion.

    Then again, it is refreshing to see the rights of citizens actually mean something for a change.

    reply to this | link to this | view in chronology ]

    • icon
      btr1701 (profile), 3 Dec 2019 @ 11:30am

      Re:

      This is going to really fuck with their procedures at DL checkpoints if they do them in Oregon the way they do them here in California. The checkpoint's (supposed) purpose is to check for valid license and insurance, but the cops always ask all sorts of questions-- where are you going? where did you come from?, etc.-- to get you talking so they can smell alcohol on your breath.

      If they can now only ask questions related to the purpose of the stop, then all they can ask for is your license and proof of insurance and the driver doesn't even have to say anything to them, just hand over the papers.

      reply to this | link to this | view in chronology ]

      • icon
        bhull242 (profile), 3 Dec 2019 @ 11:57am

        Re: Re:

        I think they could probably ask for their name before asking for the license (helping to check its validity), but other than that, you’re probably at least mostly right

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 3 Dec 2019 @ 4:42pm

        Re: Re:

        If the license and insurance check is nothing but a pretense to check for drunk drivers then I'm not seeing a problem in them not being able to continue that. If they want to check for drunk drivers then check for drunk drivers, don't pretend to be doing one thing just so you can do another.

        reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 4 Dec 2019 @ 6:22am

        Re: Re:

        the cops always ask all sorts of questions-- where are you going? where did you come from?

        That bothers me. It's none of their business where we're going or coming from.

        reply to this | link to this | view in chronology ]

        • icon
          btr1701 (profile), 4 Dec 2019 @ 1:32pm

          Re: Re: Re:

          It's none of their business where we're going or coming from.

          Bingo. The few times I've been caught up in one of these, I ask why the government needs to know those personal and private things and the cop just says something like, "Just making conversation."

          reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2019 @ 3:54pm

    Now two reasons to visit Oregon

    I've always wanted to visit my favorite city that begins with an E so Oregon now has Eugene and a ban on pretextual stops. Now to somehow visit before the devastating earthquake and tsunami end up destroying the west coast.

    reply to this | link to this | view in chronology ]

  • icon
    OldMugwump (profile), 2 Dec 2019 @ 4:14pm

    No I don't, and no I don't

    ‘Do you have anything illegal in the car? Would you consent to a search for guns, drugs, knives, bombs, illegal documents, or anything else that you’re not allowed to possess?’

    What's wrong with just saying "no, I don't, and no I don't"?

    reply to this | link to this | view in chronology ]

    • identicon
      Paul B, 2 Dec 2019 @ 4:29pm

      Re: No I don't, and no I don't

      Same reason you never respond to the question "Where did you bury the body's", The question is a pretext to catch you in a logic puzzle you cant win.

      On top of that there are so many laws you cant possibly know them all, a trout in an uncolored plastic bag is a violation of a treaty with Japan, which is something you could be arrested for.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 3 Dec 2019 @ 11:31am

        Re: Re: No I don't, and no I don't

        a trout in an uncolored plastic bag is a violation of a treaty with Japan, which is something you could be arrested for.

        Not by a state or local cop. Your local police force has no jurisdiction to enforce international trade obligations.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 2 Dec 2019 @ 5:01pm

      Re: No I don't, and no I don't

      Because you don't give cops an unconstitutional inch. Answering the questions makes the question seem valid to be ask.

      reply to this | link to this | view in chronology ]

    • icon
      TKnarr (profile), 2 Dec 2019 @ 7:03pm

      Re: No I don't, and no I don't

      Because declining to give consent for a search can be used as grounds to suspect you have a reason not to want to be subject to a search. Now they have what they need to extend the stop until a K-9 unit gets there to perform on demand.

      reply to this | link to this | view in chronology ]

      • icon
        K`Tetch (profile), 2 Dec 2019 @ 8:24pm

        Re: Re: No I don't, and no I don't

        No, it can't be used as grounds.

        That's conspiracy-theory level reasoning (you know, if X that's evidence for it, if not-X that's them suppressing evidence of it).

        This was established back in 1973 in Schneckloth v. Bustamonte.

        And Colorado, NYC and a few NC cities actually require informed consent to be given, Fayetteville NC actually requires the given consent to be written.

        But just imagine if you could have asserting your 4th amendment right to be grounds to ignore your 4th amendment rights, then there's no point in having the 4th amendment. Kinda the point the judges here made.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 2 Dec 2019 @ 8:57pm

          Nervous? That's suspicious. Calm? Why, that's also suspicious.

          The sad thing is that you should be correct, but given how insanely broadly cops have categorized 'suspicious behavior' in the past 'refusing to consent to a search' could very well be considered grounds for a search, and while that probably wouldn't hold up in court it could still require a trip to a court and hoping that the driver didn't get a 'the police can do no wrong' judge.

          No, better to remove the 'temptation' by limiting cops to only be able to ask about the current legal violation, with no fishing expeditions allowed.

          reply to this | link to this | view in chronology ]

          • icon
            nasch (profile), 4 Dec 2019 @ 6:25am

            Re: Nervous? That's suspicious. Calm? Why, that's also suspiciou

            No, better to remove the 'temptation' by limiting cops to only be able to ask about the current legal violation, with no fishing expeditions allowed.

            If you have no confidence that police will abide by one restriction (refusing a search is not grounds for a search), what makes you think they will follow some other one?

            reply to this | link to this | view in chronology ]

            • icon
              That One Guy (profile), 4 Dec 2019 @ 12:23pm

              Re: Re: Nervous? That's suspicious. Calm? Why, that's also suspi

              I don't, but there's a difference between 'you probably shouldn't do that' and 'you explicitly legally aren't allowed to do that', as one of those at least has a chance, slim as is it, to result in some sort of punishment if violated and is more likely to result in the exclusion of any illegally gained evidence.

              reply to this | link to this | view in chronology ]

        • icon
          Wyrm (profile), 3 Dec 2019 @ 9:23am

          Re: Re: Re: No I don't, and no I don't

          According to past cop testimony, you're suspicious if you're too nervous when talking with a cop. You're also suspicious if you're too relaxed when talking to a cop. You're suspicious if you're making a traffic violation, but you're suspicious if you're abiding by the rules. Whatever they decide to judge you on, you're damned if you do, damned if you don't.

          And most importantly, they don't care about past judgment or constitutionality. You might be able to prevail in court later on, but you will still lose both time and money. They might lose, but you never win.

          Also note that, even when they lose, that's never on their own dime. So they don't really lose, the taxpayers do.

          reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 3 Dec 2019 @ 11:33am

        Re: Re: No I don't, and no I don't

        That's actually not legally true. Any cop who testified in court that he extended a detention because the driver exercised his/her 4th Amendment rights would quickly find all evidence he recovered suppressed.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2019 @ 5:03pm

    Beaverton is locally infamous for their overzealous traffic cops so this isn't surprising at all.

    reply to this | link to this | view in chronology ]

  • identicon
    bobob, 2 Dec 2019 @ 6:05pm

    The defendant was lucky to get a lawyer who didn't try to talk him into pleading out.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2019 @ 6:15pm

    All you gotta do if a cop asks you questions unrelated to the traffic stop is to say you are invoking your 5th amendment right not to have to answer

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 2 Dec 2019 @ 6:22pm

    'In their defense I shall argue they are not suited to the job.'

    The dissent is concerned about what an officer can do during a ten-minute wait other than conduct activities and make inquiries reasonably related to the purpose of the stop and reasonably necessary to effectuate it. 365 Or at 720 (Garrett, J., dissenting).

    The answer they're looking for it 'patiently wait for any record checks related to the original stop to come back'. If someone doesn't have the patience to wait ten minutes then they have no business working a job like cop, which ideally has lots of times where nothing is going on.

    Nice to see a court take the side of the public for once, now if that would become the norm rather than the exception that'd be great. Still, one step at a time I suppose.

    reply to this | link to this | view in chronology ]

    • icon
      bhull242 (profile), 3 Dec 2019 @ 11:58am

      Re: 'In their defense I shall argue they are not suited to the j

      I like the implication that we’re supposed to keep cops from getting bored in the meantime.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2019 @ 6:27pm

    So now I can play "Oregon Trail" without having my ox cart pulled over on some pretext?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 2 Dec 2019 @ 10:42pm

    Look out, Portland.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Dec 2019 @ 3:47am

    The Norm?

    In my current home state, I am required thanks to buyable legislators, foolishly self-serving police unions, and cowardly cops, who conspired to enact dangerously ill-conceived law, to make the very first thing I say to a LEO that initiates a formal police-encounter, "I hold a concealed pistol license and am carrying a handgun." So, my encounter with a Faulknerian type of fascist in my state would run along the lines...

    Officer: Do you have anything illegal in the car? Would you consent to a search for guns, drugs, knives, bombs, illegal documents, or anything else that you’re not allowed to possess?

    Me: Before we go any further, I am required by state law to advise you I hold concealed pistol license, and I am armed.

    Remember, this bozo has already presupposed that possession of a gun is illegal. Makes me a little edgy to ponder where the conversation goes from there, when "Norm," the ill-informed (possibly dangerously uneducated, intellectually sub-par, and cowardly) cop is told what could be misinterpreted as, "I'm not complying with or even responding to your questions - I don't have to cooperate, 'cuz I've got a gun."

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Dec 2019 @ 4:13am

      'Someone OTHER than me is armed? Can't have that...'

      I'd give fair odds that in a situation like that you'd end up dead or in the hospital, and almost guaranteed odds you'd end up eating asphalt while being screamed at to 'keep your hands where I can see them'.

      reply to this | link to this | view in chronology ]

      • icon
        btr1701 (profile), 3 Dec 2019 @ 11:44am

        Re: 'Someone OTHER than me is armed? Can't have that...'

        I've actually been in that situation and none of that happened to me. The cop just asked where the gun was located and when I told him "in a holster on my right hip", he nodded and said, "Just do me a favor and keep your hands on the steering wheel unless I ask you to hand me something."

        After the business was done-- he had pulled me over because my vehicle matched the description of one used in an armed robbery earlier-- he chatted with me about what make/model gun I carry and why I liked it over other calibers and loads, then he sent me on my way.

        reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 3 Dec 2019 @ 9:26am

    Do you have anything illegal in the car?

    Are people honestly answering this one when they do?
    US Police must have the easiest job in the world.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Dec 2019 @ 11:09am

      Re:

      Do cops believe anything you, the perp, have to say?
      They engage verbal communication for the purpose of smelling your breath, judging your speech, and intimidation.

      To be fair, some of them actually care about someone experiencing a medical condition and realize that the perp is unable to respond to commands. Others not so much.

      reply to this | link to this | view in chronology ]

  • icon
    Darkness Of Course (profile), 3 Dec 2019 @ 11:08am

    It's Beaverton, Oregon - of course it is.

    Violating the 4th every single time does not make violating the 4th justifiable in this case. Unless you're a Beaverton cop that is.

    reply to this | link to this | view in chronology ]


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