STATE OF OREGON, Respondent on Review, v. MARIO ARREOLA-BOTELLO, Petitioner on Review.
CC C151713CR; CA A161566; SC S066119
In the Supreme Court of the State of Oregon
November 15, 2019
365 Or 695 | 451 P3d 939
Argued and submitted March 4, at the Lewis & Clark School of Law, Portland, Oregon; decision of Court of Appeals reversed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings consistent with this opinion November 15, 2019
An officer stopped defendant for changing lanes and turning without a signal, and, during the stop, asked defendant questions about contraband and for consent to search the vehicle. Defendant consented, the officer discovered drugs, and defendant was charged with possession of a controlled substance. Defendant moved to suppress the evidence, but the trial court declined to do so, concluding that the officer‘s inquiries had been permissible because they occurred during an “unavoidable lull.” The Court of Appeals affirmed. Held: (1) Article I, section 9, of the Oregon Constitution requires that all investigative inquires during a traffic stop be reasonably related to the purpose of the stop or have independent constitutional justification; (2) the officer‘s inquiries were not reasonably related to the purpose of the stop; and (3) defendant was therefore unlawfully seized, and the trial court erred in not suppressing the evidence discovered during that unlawful seizure.
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.
En Banc
On review from the Court of Appeals.*
Joshua B. Crowther, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen
* On appeal from Washington County Circuit Court, D. Charles Bailey, Jr., Judge. 292 Or App 214, 418 P3d 785 (2018).
Rosalind M. Lee, Eugene, filed the brief for amici curiae Oregon Criminal Defense Lawyers Association and Oregon Justice Resource Center.
NELSON, J.
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.
Garrett, J., dissented and filed an opinion, in which Balmer, J., joined.
NELSON, J.
In this criminal case, we consider the constitutionally permissible scope of a traffic stop under
In reviewing the denial of a motion to suppress evidence, we are bound by the trial court‘s factual findings to the extent that those findings are supported by evidence in the record. State v. Stevens, 311 Or 119, 126, 806 P2d 92 (1991). Additionally, “if the trial court does not make findings on all pertinent historical facts and there is evidence from which those facts could be decided more than one way, we will presume that the trial court found facts in a manner consistent with its ultimate conclusion.” Id. at 127. We state the following facts in accordance with that standard.
Officer Faulkner of the Beaverton Police Department observed defendant‘s vehicle change lanes and turn without signaling. Faulkner initiated his patrol car‘s overhead lights, and defendant pulled over. Faulkner approached defendant‘s vehicle and requested his driver‘s license, registration, and proof of insurance. Defendant was able to immediately produce his license but spent about three to four additional minutes searching for his registration and proof of insurance.
While defendant was searching, Faulkner asked him questions. Defendant, who primarily speaks Spanish, was having difficulty understanding the questions in English. At the beginning of the traffic stop, a passenger in the vehicle helped interpret Faulkner‘s questions, but she left after Faulkner told her that she was free to do so. Faulkner asked defendant about the presence of weapons, drugs, or other illegal items in the vehicle and requested consent to search the vehicle. Defendant responded, “Sure, okay,” and consented to the search.1 During the search, Faulkner located a small package on the floor between the driver‘s seat and the door. Faulkner examined the package, found it to be consistent with drug packaging, and observed a substance in the package that he believed was methamphetamine. Faulkner placed defendant under arrest.
The state charged defendant with possession of methamphetamine,
“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?‘”
Defendant maintained that Faulkner‘s questioning went beyond the lawful the scope of the traffic stop. The trial court disagreed and concluded that Faulkner had asked the unrelated questions during an “unavoidable lull,”2 and that defendant had voluntarily consented to the search of the vehicle. Thus, the trial court denied defendant‘s motion to suppress. Defendant waived his right to a jury trial, and the trial court convicted defendant of unlawful possession of methamphetamine.
Defendant appealed, assigning error to the denial of his motion to suppress. At the Court of Appeals, defendant argued that Faulkner had unlawfully expanded the scope of the traffic stop by asking investigatory questions that were unrelated to the purpose of the stop without independent constitutional justification. The state responded that Court of Appeals case law authorizes an officer to request consent to search a vehicle during an “unavoidable lull” in an investigation, such as when a person is searching for requested documents. The Court of Appeals agreed with the state and affirmed defendant‘s conviction in a per curiam decision. See State v. Arreola-Botello, 292 Or App 214, 418 P3d 785 (2018) (per curiam) (citing State v. Hampton, 247 Or App 147, 268 P3d 711 (2011), which held that questioning about consent to search a vehicle while the driver was searching for registration occurred during an “unavoidable lull” and, thus, did not extend the traffic stop in violation of
Defendant petitioned for, and we allowed, review. In this court, defendant renews his argument that Faulkner violated his
In response, the state contends that questions that are unrelated to the purpose of a stop do not implicate
In addressing the party‘s arguments, we first reiterate that there are both statutory and constitutional limitations on an officer‘s authority to investigate unrelated crimes during a traffic stop. For example,
Notwithstanding that statute, however, any evidence obtained when an officer exceeds that authority cannot be suppressed unless the exclusion of the evidence is required by the state or federal constitutions. See
However, not all encounters between law enforcement officers and citizens implicate
“[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.”
This court has explained, in various circumstances, the limits that
In reaching that conclusion, this court agreed with the state that an officer‘s verbal inquiries are not searches or seizures in and of themselves. Id. at 622. We determined, however, that the show of authority that is inherent in a traffic stop, combined with an officer‘s verbal inquiries, resulted in a restriction of a personal freedom that, absent reasonable suspicion, violated
In Watson, this court considered the authority of an officer to perform unrelated investigatory activities during a traffic stop. 353 Or at 769. In that case, the defendant was stopped for failing to maintain a lane of traffic, and the officer requested his driver‘s license to verify his driving privileges and to run a warrants check. Id. at 769-70. While waiting for the results of the records check, the officer asked the defendant about community rumors that the defendant was dealing small amounts of marijuana and requested consent to search his vehicle. Id. at 770. The defendant denied the allegations and refused to consent to a search. Id. At that point, another officer arrived and reported a “strong odor” of what he believed to be marijuana emanating from the defendant‘s vehicle. Id. at 770-71. Ultimately, the officers searched the vehicle based on probable cause, located drugs, and arrested the defendant. The defendant moved to suppress the evidence, the trial court denied his motion, and he was convicted. Id. at 771-72.
On review, the defendant argued that an officer‘s authority to search should be strictly limited to the investigation of the initial traffic violation. 353 Or at 772. This court analyzed each individual police action—the initial stop, the records check, the warrants check, the questioning, and the ultimate search of the vehicle—to determine whether the officers’ actions had exceeded the scope of their constitutional authority. Id. at 783-84. Considering each action individually, we concluded that each action had been reasonably related to the investigation of the traffic stop itself, had not led to the discovery of suppressible evidence, had not extended the stop, or had been justified by an independent constitutional justification (in that case, probable cause). Id. at 783-85. In reaching that conclusion, we held that, under
“Thus, both Oregon statutes and this court‘s Article I, section 9, case law require that law enforcement officers have a justification for temporarily seizing or stopping a person to conduct an investigation, and that the officer‘s activities be reasonably related to that investigation and reasonably necessary to effectuate it. If the officer‘s activities exceed those limits, then there must be an independent constitutional justification for those activities.”
The holding in Watson was subsequently applied in this court‘s next case that considered the limits on police authority during a traffic investigation, State v. Jimenez, 357 Or 417, 353 P3d 1227 (2015). In Jimenez, we considered whether
We again considered the permissible scope of
“Although an officer‘s verbal inquiries ‘are not searches and seizures and thus by themselves ordinarily do not implicate Article I, section 9,’ when a person is already stopped, the person ‘is not free unilaterally to end the encounter and leave whenever he or she chooses,’ so questions that are not reasonably related to the purpose of the stop extend the stop in a way that requires some independent justification under Article I, section 9.”
363 Or at 380 n 4 (quoting Rodgers/Kirkeby, 347 Or at 622-23).
The foregoing cases significantly inform the nature of the question before us. As the state recognizes, those cases stand for the proposition there are temporal limitations on an officer‘s authority in making a stop; therefore, inquiries that unreasonably extend the duration of a stop violate
The Court of Appeals first articulated its “unavoidable lull” doctrine in its own consideration of State v. Rodgers, 219 Or App 366, 182 P3d 209 (2008), aff‘d, 347 Or 610, 227 P3d 695 (2010) (Rodgers/Kirkeby). As previously discussed, that case considered the constitutional question whether, at the end of a stop after the defendant was free to leave, an officer may extend the duration of the stop by asking additional questions that were unrelated to the purpose of the stop. The Court of Appeals concluded that “an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check.” Id. at 372. Stated another way, under the unavoidable-lull doctrine, so long as the officer does not delay the processing of a citation or extend the duration of the traffic stop, the officer is permitted to ask unrelated investigatory questions without constitutional justification. Ultimately, the Court of Appeals concluded that the doctrine did not apply in Rodgers because the officer had extended the duration of the stop when he began making additional inquiries. Id. at 373. When this court considered Rodgers on review, we affirmed the Court of Appeals’ disposition, but we did not address the propriety of the unavoidable-lull doctrine because we also concluded that the officer had unlawfully extended the duration of the traffic stop. Rodgers/Kirkeby, 347 Or at 627.
In a later case, the Court of Appeals concluded that the unavoidable-lull doctrine did apply, holding that the officer‘s inquiries in that case did not implicate
We agree with the Court of Appeals that, when an officer‘s questioning extends the reasonable duration of a traffic stop,
Here, the state argues that our decision in Watson, decided after Rodgers/Kirkeby, confirms that
We disagree. Contrary to the state‘s argument, in Watson, this court determined that it had no need to resolve the question whether the warrants check had been reasonably related to the stop because that check had not produced suppressible evidence and had not extended the stop. Watson, 353 Or at 784. If, in Watson, the warrants check—which had been run simultaneously with the records check and therefore did not extend the duration of the stop—had led to evidence that the defendant sought to suppress, we would have been required to decide whether the warrants check had been reasonably related to the stop. And, if the warrants check had extended the stop, that alone would have required a determination that the check exceeded the permissible scope of the stop. But, as noted, we determined that the warrants check had not produced suppressible evidence and had not extended the stop. We therefore declined to reach the question whether the warrants check was reasonably related to the stop.3 As we stated in Watson: When conducting an investigation during a lawful stop, “activities” of law enforcement must “be reasonably related to that investigation and reasonably necessary to effectuate it.” Id. at 781 (emphasis added).
We did, however, leave open in Watson the issue that this case presents—whether the principle that we announced in Watson “extends to inquiries during the course of a stop.” Id. at 779 n 13 (emphasis added). In other words, Watson held that
As stated,
Generally, an officer cannot seize an individual without probable cause to believe that that individual has engaged or is engaging in criminal activity, and obtaining a warrant permitting the seizure. There are exceptions, however, to both the warrant requirement and the probable cause requirement for seizures that are limited in scope and duration. See State v. Cloman, 254 Or 1, 6, 456 P2d 67 (1969) (police can stop a car to determine identity of vehicle and its occupants based on reasonable suspicion, and reasonable suspicion is “of less quantum” than probable cause to arrest). In Cloman, this court stated 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.” 254 Or at 7. The Oregon Legislative Assembly codified that decision in statutes regulating the authority of law enforcement to stop individuals. See
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.6 It therefore follows that limits apply to an officer‘s ability, during such a stop, to use that stop for other purposes. As we explained in Watson, it is “the justification for the stop” that “delineates the lawful bounds of the traffic stop.” 353 Or at 778-79.
Here, the state argues that we should conclude that defendant‘s
Second, the state contends that, because an officer‘s request for consent to search during a consensual police-citizen encounter does not restrict a defendant‘s liberty and constitute a search or seizure, a request for consent to search during a seizure has no significance under
“Although an officer‘s verbal inquiries ‘are not searches and seizures and thus by themselves ordinarily do not implicate Article I, section 9,’ when a person is already stopped, the person ‘is not free unilaterally to end the encounter and leave whenever he or she chooses,’ so questions that are not reasonably related to the purpose of the stop extend the stop in a way that requires some independent justification under Article I, section 9.”
363 Or at 380 n 4 (quoting Rodgers/Kirkeby, 347 Or at 622-23).
As our cases demonstrate,
In sum, we conclude that, for the purposes of
We realize that our decision precludes officers from asking certain investigative questions during investigatory stops—those unrelated to the purpose of the investigation and without independent constitutional justification. But that is as the constitution requires and, for statutory purposes, what the legislature intends.8 See
With that understanding of
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
Having concluded that defendant was unlawfully seized in violation of
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.
GARRETT, J., dissenting.
This court has held that, in ordinary police-citizen encounters (that is, encounters that are not seizures), police may engage citizens in “mere conversation” and generally ask questions of them without implicating
The question left unanswered until today is what subject matter restrictions, if any, apply to police activity that is not related to the original basis for the traffic stop but that also does not cause any prolongation of the stop. The Court of Appeals has addressed the issue and concluded that, so long as unrelated activity occurs during an “unavoidable lull” in the traffic stop, then such activity effects no greater restriction on liberty than was already in place. See State v. Gomes, 236 Or App 364, 370-71, 236 P3d 841 (2010). Therefore, it is of no constitutional import. See id. (“there are no Article I, section 9, implications if an inquiry unrelated to the traffic stop occurs during a routine stop but does not delay it“).
That “unavoidable lull” rule is consistent with the decisions of this court that have defined a “seizure” for purposes of
Today, the majority rejects the “unavoidable lull” rule, concluding that, unless they have independent constitutional justification, police are prohibited from engaging in activity or inquiring into any matters unrelated to the original basis of the stop, even if such activity does not extend the stop. Thus, if an officer observes behavior during a traffic stop that causes the officer to be concerned about past, present, or future criminal activity, but the officer does not yet possess enough information that would support an objectively reasonable suspicion or pose officer-safety concerns, then the officer may not ask questions or take other steps to investigate. That limitation does not govern police-citizen interactions in other contexts. Indeed, it will only partly govern police-citizen interactions in this context—the surprising result of the majority‘s decision is that, during a lull, an officer may make inquiries of the passenger of a stopped car but be absolutely forbidden from asking the same questions of the driver. See State v. Stevens, 364 Or 91, 93, 97-100, 430 P3d 1059 (2018) (explaining that certain inquiries do not restrain a passenger‘s liberty or freedom of movement in a significant way and, thus, do not implicate
There may be sound reasons for such a rule. I dissent from today‘s decision because those reasons have not been adequately explained, and, as a result, today‘s decision raises significant questions without providing an analytical framework that will help lower courts answer them.
The majority bypasses crucial steps in the analysis by interpreting this court‘s precedents to have already decided the key question. According to the majority, we have already held that “an officer‘s investigative
In the seminal case, Rodgers/Kirkeby, we first held that officers may not extend the duration of traffic stops to inquire into unrelated matters without independent constitutional justification. 347 Or at 626-28.
In State v. Watson, 353 Or 768, 769, 305 P3d 94 (2013), an officer stopped the defendant for a traffic violation. Although he decided not to issue a citation, the officer continued to detain the defendant while running records and warrants checks. 353 Or at 770. While awaiting the results of those checks, which took the same amount of time, officers developed suspicion that the vehicle contained marijuana, searched it, and found drugs. Id. at 770-71. On review, the defendant argued that the records and warrants checks had been unnecessary and thus extended the stop under Rodgers/Kirkeby, requiring suppression of the evidence discovered during that period. Id. at 781-82. We held that the records check had been done to verify the defendant‘s driving privileges and thus had been related to the purpose of the stop. Id. at 782. We then explained that it was unnecessary to further consider the warrants check because there was “no indication that the warrants check produced incriminating evidence or extended the duration of the stop.” Id. at 784.1
Following Watson, in State v. Jimenez, 357 Or 417, 430-31, 353 P3d 1227 (2015), we held that the officer‘s routine weapons inquiry at the conclusion of his jaywalking investigation was unlawful because it was not supported by any reasonable, circumstance-specific concerns for officer safety. Our holding did not, as the majority implies, rest on the fact that the weapons inquiry exceeded what we took to be the “permissible scope” of questioning based on the purpose of the stop. See 365 Or at 704. Rather, in that case, once again, the questioning about weapons had caused a temporal extension of the stop. Jimenez, 357 Or at 420, 424 n 7. Thus, the weapons inquiry—because it had not been reasonably related to the purpose of the stop or supported by an independent constitutional basis—caused the extension of the stop that resulted from that inquiry to be unlawful. Id. at 433 (Kistler, J., concurring) (so noting).
What those cases tell us is that police activity that is reasonably related to the purpose of a traffic stop and reasonably necessary to effectuate that purpose is part of effectuating that purpose and therefore, by definition, does not result in an extension of the stop beyond the time reasonably necessary to conclude it. In contrast, if police activity is not reasonably related to the purpose of the stop, then it may result in an unlawful extension of the stop. I emphasize “may,” because the key fact that today‘s majority overlooks is that those cases involved arguments that the stop had been temporally extended by the challenged activity.
Thus, when the majority asserts that we have already “held”2 that “an officer‘s investigative activities during a stop must be reasonably related to the purpose of the stop or have independent constitutional justification,” 365 Or at 704-05 (emphasis in original), it overstates what those cases actually decided. And, because the majority views that rule as already having been announced, the majority does not justify it.
The majority insists that justification is found in our past observation that the “justification for the stop” is what “delineates the lawful bounds of the traffic stop.” 365 Or at 710 (quoting Watson, 353 Or at 778-79). But, again, that observation is rooted in the facts of our temporal extension cases; as such, it means that an officer who has temporarily interfered with the driver‘s freedom of movement for a specific purpose may not effect a new and additional interference with that liberty interest by asking about unrelated matters. That principle tracks our statement in Rodgers/Kirkeby regarding what, in this context, constitutes a seizure in the first place: “when either (1) a police officer intentionally and significantly interferes with the person‘s freedom of movement; or (2) the person believes, in an objectively reasonable manner, that his or her liberty of movement has been so restricted.” 347 Or at 621 (internal quotation marks omitted). Thus, viewed in context, saying that the justification for the stop “delineates the lawful bounds” of the stop is just another way of saying that the driver‘s freedom of movement may be restricted only for so long as the justification for the stop exists. What the majority fails to explain is how, if
That is problematic. Because we have never held that all investigative activity during a traffic stop must have constitutional justification regardless of whether it extends the stop, we have never addressed what that actually means, which will pose difficulties for police trying to understand this rule and for trial courts trying to apply it. What constitutes investigative activity? We know from today‘s decision that a request for consent to search goes too far. But does the majority‘s rule encompass less invasive interaction, or activity that involves no interaction with the driver at all, such as a warrants check? If an officer develops an intuition, on the basis of training and experience, that something is not right, but lacks enough information to have a reasonable suspicion of criminal activity, may the officer engage the driver in “mere conversation” in the hope of eliciting additional useful information? If not, what can an officer do during a ten-minute wait? And if so, may that conversation include questions—or are questions off limits because they are “inquiries“? May the officer use the unavoidable lull to contact colleagues to see if they know anything about the driver, or take other steps to gather information from outside sources?
It is not clear how those questions are to be answered. It is clear, however, that the majority‘s new rule means that, during an unavoidable lull in a traffic investigation, police
Balmer, J., joins this dissenting opinion.