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U.S. Constitution
See other U.S. Constitution Articles

Title: Oregon Supreme Court Shuts Down Pretextual Traffic Stops; Says Cops Can't Ask Questions Unrelated To The Violation
Source: Tech Dirt
URL Source: https://www.techdirt.com/articles/2 ... s-unrelated-to-violation.shtml
Published: Dec 2, 2019
Author: Tim Cushing
Post Date: 2019-12-02 22:58:58 by Deckard
Keywords: None
Views: 115
Comments: 4

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.

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#1. To: Deckard (#0)

Watching the Cop Shows, it amazes me how many times people allow cops to frisk them and search the car on a whim. "If you are honest with me, this is going to go well". "Have you been smoking marijuana?" "I catch a whiff of pot, and I know what it smells like". "How much have you smoked". "How much is in the car"? "Mind if I search the car"? "Sit in the back of the cruiser with handcuffs" "You are not under arrest, just detained while we bring in the drug dogs".

THIS IS A TAG LINE...Exercising rights is only radical to two people, Tyrants and Slaves. Which are YOU? Our ignorance has driven us into slavery and we do not recognize it.

jeremiad  posted on  2019-12-03   1:19:51 ET  Reply   Trace   Private Reply  


#2. To: Deckard (#0)

Oregon is suck dire trouble that this new rule is just another worthless stab by Democrats to make citizens think they're accomplishing something.

Liberals are like Slinkys. They're good for nothing, but somehow they bring a smile to your face as you shove them down the stairs.

IbJensen  posted on  2019-12-03   8:32:20 ET  Reply   Trace   Private Reply  


#3. To: Deckard (#0)

Says Cops Can't Ask Questions Unrelated To The Violation

How about a law that requires the driver to answer the truth to questions related to the violation?

misterwhite  posted on  2019-12-03   9:30:00 ET  Reply   Trace   Private Reply  


#4. To: Deckard, jeremiad, IbJensen, misterwhite (#0)

https://sos.oregon.gov/blue-book/Documents/oregon-constitution.pdf

Article 1, Section 9 of the Oregon constitution reads:

Section 9. Unreasonable searches or seizures. 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 affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

Amendment 4 of the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Pertaining to the 4th Amendment and pretextual stops, the U.S. Supreme Court interpreted Amendment 4 in Whren et al v. United States, 517 U.S. 806 (1996).

The syllabus of Whren shows that, in interpreting Amendment 4, the U.S. Supreme Court held:

Held: The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment's prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Pp. 809-819.

(a) Detention of a motorist is reasonable where probable cause exists to believe that a traffic violation has occurred. See, e. g., Delaware v. Prouse, 440 U. S. 648, 659. Petitioners claim that, because the police may be tempted to use commonly occurring traffic violations as means of investigating violations of other laws, the Fourth Amendment test for traffic stops should be whether a reasonable officer would have stopped the car for the purpose of enforcing the traffic violation at issue. However, this Court's cases foreclose the argument that ulterior motives can invalidate police conduct justified on the basis of probable cause. See, e. g., United States v. Robinson, 414 U. S. 218, 221, n. 1, 236. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. Pp. 809-813.

(b) Although framed as an empirical question-whether the officer's conduct deviated materially from standard police practices-petitioners' proposed test is plainly designed to combat the perceived danger of pretextual stops. It is thus inconsistent with this Court's cases, which make clear that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., Robinson, supra, at 236. Nor can the Fourth Amendment's protections be thought to vary from place to place and from time to time, which would be the consequence of assessing the reasonableness of police conduct in light of local law enforcement practices. Pp. 813-816.

(c) Also rejected is petitioners' argument that the balancing of interests inherent in Fourth Amendment inquiries does not support enforcement of minor traffic laws by plainclothes police in unmarked vehicles, since that practice only minimally advances the government's interest in traffic safety while subjecting motorists to inconvenience, confusion, and anxiety. Where probable cause exists, this Court has found it necessary to engage in balancing only in cases involving searches or seizures conducted in a manner unusually harmful to the individual. See, e. g., Tennessee v. Garner, 471 U.S. 1. The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice. Pp. 816-819.

53 F. 3d 371, affirmed.

SCALIA, J., delivered the opinion for a unanimous Court.

The Oregon Supreme Court just interpreted Article 1, Section 9 of the Oregon constitution and concluded at 713-715:

With that understanding of Article I, section 9, we conclude, in this case, that Faulkner’s questioning and request to search defendant’s vehicle violated Article I, section 9. Although Faulkner had probable cause to believe that defendant had committed a traffic infraction when he failed to signal a turn and, therefore, was permitted to stop defendant to investigate that infraction, Faulkner then asked questions that were not reasonably related to that investigation and exceeded its lawful scope. Faulkner stopped defendant for failing to use a turn signal, but then inquired about the possession of guns or controlled substances. The record does not demonstrate that the latter questioning was reasonably related to the investigation of the former investigation. The investigation of defendant’s failure to signal a turn may have warranted questions about whether or why defendant acted or failed to take that action, other questions or actions reasonably related to that inquiry, or other questions or actions reasonably necessary to the issuance of a warning or a citation, such as questions to address reasonable officer-safety concerns. But, here, the state does not claim any such connections or concerns, and the record does not support the notion that any exist.

In addition, if 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. Accordingly, Faulkner’s questioning and request to search the vehicle were impermissible and a violation of Article I, section 9, protections against unreasonable seizure.

Having concluded that defendant was unlawfully seized in violation of Article I, section 9, we must now determine the effect of that constitutional violation on the admissibility of the evidence obtained during the consensual search of defendant’s vehicle. Generally, evidence will be suppressed if the evidence was the product of an unconstitutional act. State v. Juarez-Godinez, 326 Or 1, 9, 942 P2d 772 (1997) (so stating). Here, defendant’s voluntary consent to search the vehicle was granted in response to Faulkner’s unlawful line of questioning and request for consent. In some cases, “a defendant’s voluntary consent itself may be sufficient to demonstrate that the unlawful conduct did not affect or had only a tenuous connection to the evidence produced.” State v. Unger, 356 Or 59, 77-78, 333 P3d 1009 (2014). It is the state’s burden to prove that the consent was “independent of, or only tenuously related to, the illegal police conduct.” Id. at 84. Here, the state reasonably does not argue in this court, and did not argue in the Court of Appeals, that defendant’s consent was only tenuously related to Faulkner’s illegal inquiries. Accordingly, the trial court erred in denying defendant’s motion to supress the evidence.

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 for further proceedings consistent with this opinion.

https://www.scribd.com/document/438116001/Whren-v-United-States-517-US-808-17-Apr-1996-Pretextual-Traffic-Stops

- - - - - - - - - -

https://www.scribd.com/document/438116283/Oregon-v-Arreola-Botello-Oregon-S-Ct-S066119-15-Nov-2019

nolu chan  posted on  2019-12-03   18:33:57 ET  Reply   Trace   Private Reply  


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