When a Stop Is Not a Stop
by: Kkrohn • August 1, 2014 • no comments
Traffic stops are a common occurrence in our vehicle-driven society, and stops for traffic violations often yield evidence that results in criminal prosecutions. In representing defendants who were involved in traffic stops, it is important to distinguish between drivers and passengers—because that distinction is of constitutional magnitude.
Under Article I, section 9, of the Oregon Constitution, police encounters with citizens can involve “mere conversation,” which requires no justification, or they can involve seizures, which do require some constitutional justification.[1] A “stop” is a kind of seizure that involves “a temporary restraint on a person’s liberty.”[2] A “traffic stop” is a seizure of a vehicle’s driver, who “is legally obligated to stop at an officer’s direction” and comply with the officer’s requests.[3]
However, while a passenger is also “stopped” during a traffic stop, the Oregon Supreme Court has stated that a passenger is not seized.[4] And, although the court’s statements that passengers are not seized arguably constitute dicta, the Court of Appeals has recently adhered to that “rule” and held that a passenger is not seized under the Oregon Constitution.[5]
The analysis under the Fourth Amendment to the United States Constitution is quite different. Under the federal constitution, a passenger is seized merely by being in a car subject to a traffic stop, and a passenger can challenge the legality of a stop just as the driver can.[6] That was the unanimous holding of the United States Supreme Court, and it could potentially convince the Oregon Supreme Court to adopt the same rule under the Oregon Constitution. In fact, it is quite likely that the Oregon Supreme Court will hold that passengers are seized, should the issue reach that court again.[7]
In the meantime, however, we are left with a significant split between state and federal law. That makes it essential to raise a Fourth Amendment claim when moving to suppress evidence on behalf of a passenger. If the officer’s basis for the traffic stop turns out to be invalid, or if the officer unreasonably extends the duration of the stop without justification, federal law may provide for suppression where state law does not.
Litigating a motion to suppress under the Fourth Amendment can involve a different analysis—and certainly involves different case law—than an Article I, section 9, argument. While it would be impossible to cover every distinction in this article, there are a few significant aspects of Fourth Amendment traffic stop law that are worth keeping in mind.
Under the Fourth Amendment, a lawful basis for a traffic stop—i.e., a traffic violation—constitutes a lawful basis for the seizure of the passenger.[8] That is, the initial seizure of a passenger is lawful even when there is no basis to suspect the passenger of wrongdoing.
For stops based on non-criminal traffic violations, it is not clear whether the Fourth Amendment requires probable cause, or whether reasonable suspicion is sufficient.[9] Oregon law requires probable cause,[10] and if the distinction matters in your case it may persuade a court to adopt the same requirement under the Fourth Amendment.
Under the Fourth Amendment, police may “as a matter of course” order passengers (and drivers) to get out of a vehicle.[11] A lawful basis for the traffic stop is all that is required; the officer need not articulate any officer-safety justification.
The Fourth Amendment permits an officer to ask for a person’s identification without any justification.[12] Thus, a request for a passenger’s identification during a traffic stop will usually be lawful. And, while the Supreme Court has yet to consider the issue, an officer can probably conduct a records check of a passenger as well.[13]
Under the Fourth Amendment, police may not perform a patdown search of a passenger (or driver) unless they have reasonable suspicion that the passenger is “armed and dangerous.”[14] However, voluntary consent can also provide a basis for a patdown, provided the encounter is otherwise lawful.[15]
The Fourth Amendment limits the duration of a traffic stop.[16] The scope of that limit has yet to be decided by the Supreme Court, and lower federal courts have adopted various approaches. For Oregon courts, the similarity of Oregon and Federal law regarding seizures could provide persuasive authority for adopting a Rodgers/Kirkeby-type analysis under the federal constitution.
Finally, even when a passenger is told that she is “free to go,” it may be worth arguing that the passenger is still seized. The statement that a person is free to go is only one factor to consider in determining whether she is seized.[17] And for passengers, whose freedom of movement is dependent upon the freedom of the driver, being free to go can depend upon whether the driver is free to take them. Of course, if the detention becomes something other than a mere traffic stop—e.g., if the driver is to be arrested for a crime, or the car is to be impounded—then the analysis also changes. But as long as an officer continues to detain the car and driver solely due to a traffic violation, a passenger will lack the freedom to resume her chosen course of travel. The theoretical ability to hike down the highway on foot should not transform an unlawful seizure into “mere conversation.”
Endnotes
- ↑ State v. Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010).
- ↑ Id.
- ↑ State v. Rodgers/Kirkeby, 347 Or 610, 622, 227 P3d 695 (2010).
- ↑ State v. Thompkin, 341 Or 368, 377, 143 P3d 530 (2006); State v. Amaya, 336 Or 616, 630, 89 P3d 1163 (2004).
- ↑ State v. Ross, 256 Or App 746, 753, 304 P3d 759 (2013).
- ↑ Brendlin v. California, 551 US 249, 251, 127 S Ct 2400, 168 L Ed 2d 132 (2007)
- ↑ Four members of the current court have joined opinions that cite Brendlin as persuasive authority under Article I, section 9. State v. Highley, 354 Or 459, 484 n 9, 313 P3d 1068 (2013) (Brewer, J., concurring); State v. Ayles, 348 Or 622, 647 n 4, 237 P3d 805 (2010) (Kistler, J., dissenting). And the court has recently held that “the analysis of what constitutes a seizure under Article I, section 9, and under the Fourth Amendment is not meaningfully different.” State v. Backstrand, 354 Or 392, 402 n 11, 313 P3d 1084 (2013).
- ↑ See Whren v. United States, 517 US 806, 819, 116 S Ct 1769, 135 L Ed 2d 89 (1996). Whren involved the appeals of a driver, Brown, and a passenger, Whren, and the Court applied the same analysis to both of their seizures.
- ↑ Brendlin, 551 US at 263 n 7 (citing conflicting cases). The Ninth Circuit has held that reasonable suspicion is sufficient. United States v. Lopez-Soto, 205 F3d 1101, 1104-05 (2010).
- ↑ See, e.g., State v. De La Rosa, 228 Or App 666, 671, 208 P3d 1012 (2009).
- ↑ Maryland v. Wilson, 519 US 408, 410, 117 S Ct 882, 137 L Ed 2d 41 (1997).
- ↑ Hiibel v. Sixth Judicial Dist. Court of Nev., 542 US 177, 185, 124 S Ct 2451, 159 L Ed 2d 292 (2004).
- ↑ United States v. Diaz-Castaneda, 494 F3d 1146, 1153 (9th Cir), cert den, 552 US 1031 (2007).
- ↑ Arizona v. Johnson, 555 U S 323, 327, 129 S Ct 781, 172 L Ed 2d 694 (2009).
- ↑ See, e.g., United States v. Russell, 664 F3d 1279, 1281-82 (9th Cir 2012).
- ↑ Illinois v. Caballes, 543 US 405, 407-08, 125 S Ct 834, 160 L Ed 2d 842 (2005).
- ↑ State v. Alvarez, 234 Or App 544, 550, 228 P3d 683, rev den, 349 Or 57 (2010).
(This article originally appeared in the August/September/October 2014 issue of The Oregon Defense Attorney journal.)
