Oregon Supreme Ct - July 9, 2015

by: Abassos • July 9, 2015 • no comments

Traffic Stops - An Officer May Not Inquire About Weapons As a Matter of Course

An officer may not inquire about weapons during a routine traffic stop unless (1) it is reasonably related to and reasonably necessary to effectuate the stop, or (2) there is reasonable suspicion of an immediate threat of serious physical injury to the officer. The court rejects the state's argument that an inquiry regarding weapons is reasonably necessary to effectuate every stop and, therefore, always permissible. For a weapons inquiry conducted in the course of a traffic investigation to be reasonably related to the investigation and reasonably necessary to effectuate it, an officer must have "reasonable, circumstance-specific concerns for the officer’s safety or the safety of other persons who are present." Thus:

the state must present evidence that (1) the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger; and (2) the officer’s perception and decision were objectively reasonable.

Here, defendant was stopped for jaywalking in an area with recent gang activity while wearing baggy clothing and white tennis shoes. The trooper talked to him long enough to get him to admit to jaywalking and then asked about weapons. The trooper testified that he asks the weapons question “with all contacts on the street with pedestrians, just for—obviously for officer safety reasons".

On that record, we conclude that the state did not meet its burden to demonstrate that the officer’s weapons inquiry was reasonably related to his traffic investigation and reasonably necessary to effectuate it. First, for reasons we have expressed, Article I, section 9, does not permit officers to make routine weapons inquiries in all traffic investigations. Second, the trooper explained that he routinely asks questions about weapons to make it easier to have a “normal conversation,” yet, in this case, the trooper made the weapons inquiry after he already had engaged in “normal conversation” with defendant. Although the facts known to the trooper at the time that he inquired about weapons might have given rise to reasonable, circumstance-specific safety concerns, the trooper did not so testify."

Trial court reversed and remanded for further proceedings.

J. Kistler concurs, joined by J. Linder and J. Landau to point out that an unjustified weapons inquiry during a traffic stop is only unconstitutional if it extends the stop. This case does not change the law regarding extensions and unavoidable lulls. Also, the concurrence believes that there was likely enough evidence in this case to justify a weapons inquiry based on the high crime area, the likely gang associations and the baggy clothing capable of concealing a weapon. However, because the officer framed it as a routine question in every case and the state argued that position, the case for a weapons inquiry in this case was not developed.

State v Jimenez, 357 Or 417 (2015).