Oregon Supreme Court 02-16-10
Read the full article for details about the following new cases:
- BAC is Ordinarily an Exigent Circumstance
- Consent Obtained During an Extended Traffic Stop is Invalid
I picked a bad week to go on vacation. Nothing from the Supremes for a couple months and then, bam, two big rulings. They overturned Machuca, ruling that dissipation of alcohol is almost always an exigent circumstance and they upheld Rodgers and Kirkeby, ruling that consent to search which is obtained by extending a traffic stop is the fruit of an unconstitutional seizure unless there is separate reasonable suspicion to support the extended portion of the stop.
BAC is Ordinarily an Exigent Circumstance
"We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of a suspect's blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here. We do so, however, understanding that particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional." Because the court finds an exigency exception to the warrant requirement, it does not address the appellate court's ruling that defendant's consent was involuntary because he was told of the adverse legal consequences of refusing, as set out in the implied consent law. State v. Machuca
Consent Obtained During an Extended Traffic Stop is Invalid
When officers extend a completed traffic stop by asking for consent to search, there must be reasonable suspicion to support the extended portion of the stop. If there is no separate basis for the extended stop then it is an unconstitutional seizure which poisons all that which comes after it, including the consent based search. Anything found must be suppressed. The defendant must establish a minimal factual nexus between the illegal stop and the defendant's consent. Once shown, the burden shifts to the State to prove that the consent was obtained independent of the illegal police conduct.[http://www.publications.ojd.state.or.us/S056239.htm State v. Rodgers/Kirkeby]
Here's Ryan Scott's take on whether an officer may Constitutionally investigate crimes which have nothing to do with the basis of the stop, if the officer does not extend the time of the stop:
"I think first and foremost we have to conclude - notwithstanding some of the language in the Rodgers/Kirkeby opinion - that whether a subject-matter expansion of the stop (which does not increase the duration of the stop) is still an open question. I don't think I'm being overly optimistic when I say that, because of this footnote: '5. We emphasize that the restriction of movement that implicates Article I, section 9, in both of these cases occurred after the police officers had completed their investigations reasonably related to the traffic infraction and issuance of the citation. We express no opinion about the effect of unrelated police inquiries that occur during the course of the traffic violation investigation and that do not result in any further restriction of movement of the individual.' The court largely repeats itself later on: 'Because police inquiries during a traffic stop are neither searches nor seizures, police inquiries in and of themselves require no justification and do not necessarily implicate Article I, section 9. However, police inquiries unrelated to a traffic violation, when combined with physical restraint or a police show of authority, may result in a restriction of personal freedom that violates Article I, section 9.' Now the bad language is this: 'In our view, the state's assertion - that police may make unrelated inquiries (including requests to search a person or vehicle) during the course of a traffic stop without implicating Article I, section 9 - is correct in the sense that verbal inquiries are not searches and seizures. That is, we agree that police inquiries during the course of a traffic stop (including requests to search a person or vehicle) are not searches and seizures and thus by themselves ordinarily do not implicate Article I, section 9. However, police conduct that involves physical restraint or a show of authority that restricts an individual's freedom of movement typically does implicate Article I, section 9.' So questioning during a traffic stop by itself is neither a search nor a seizure but an additional show of authority that restrict's an individual's freedom of movement 'does implicate Article I, section 9.' But don't all traffic stops involve a show of authority that restricts movement? The court applies the analysis here: 'Under the totality of the circumstances, we conclude that Van Arsdall's position at the driver-side window and Kantola's presence on the passenger side of the car was a sufficient 'show of authority' that, in combination with the unrelated questions concerning the items in the car and the request to search the car, resulted in a significant restriction of defendant's freedom of movement.' Wow, right? That's great language. But then the court adds: 'Because that conduct occurred after completion of the investigation of the traffic violation and because (as the state has conceded) Van Arsdall did not have a reasonable suspicion of criminal activity that justified defendant Rodgers's continued detention, we conclude that defendant Rodgers was unlawfully seized in violation of Article I, section 9.' In other words, under the facts of this case, the temporal extension seems to be necessary. Or perhaps it was just the particular fact that justified suppression, but not necessarily the only way to get from point A to point B. So what is the court saying? Every time they say something that closes the door, they say something that cracks the door open again. The court may eventually conclude that unrelated questions, coupled with a show of authority, etc., do implicate Article I, section 9, but nevertheless are permissible if the restriction is no greater than that which is already lawfully imposed on the driver pursuant to the traffic stop. However, such questions and show of authority over the passenger is impermissible (because the passenger is not lawfully stopped pursuant to the traffic infraction) and thus all statements and consent should be suppressed. You may think this already exists, but I don't think current case law goes this far. At present, mere questioning of a passenger is not a stop. How many times have you seen a case where the defendant, a passenger, is in a car stopped on the highway in the middle of nowhere, but the courts conclude he or she hasn't been stopped. But imagine a scenario where you have the following, but the passenger is the defendant: 'Under the totality of the circumstances, we conclude that Van Arsdall's position at the driver-side window and Kantola's presence on the passenger side of the car was a sufficient 'show of authority' that, in combination with the unrelated questions concerning the items in the car and the request to search the car, resulted in a significant restriction of defendant's freedom of movement.' In that situation, Article I, section 9, is implicated by the questioning the passenger has to put up with, even if the traffic stop itself is not extended. And by definition, there's a greater restriction than that which is necessary for the traffic stop, because the passenger isn't the one who committed the driving infraction. Personally, I think that's a conservative reading of the opinion, but nevertheless expands the rights of passengers. And there is enough in the opinion, to justify pushing the envelope further, if the restriction on the driver's liberty is greater in, say, intensity, than that which would occur during a normal traffic stop (even if the length of the stop isn't extended.) In other words, we might be able to get evidence suppressed for a vertical - not just a horizontal - restriction of the driver's liberty. Ryan"