Do Subject Matter Expansions of a Stop Require Reasonable Suspicion?

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by: Francis Gieringer • August 18, 2014 • no comments

I. Introduction

In 1997, the Oregon legislature enacted ORS 136.432, which states that “[a] court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provisions unless exclusion of the evidence is required by: 1) The United States Constitution or the Oregon Constitution.” ORS 136.432. But ORS 136.432 does not abrogate ORS 131.615, which sets out a limit to subject-matter expansions of a stop. Officers cannot expand an inquiry beyond the immediate circumstances that give rise to reasonable suspicion. ORS 131.615(3)(a–b). This is for two main reasons. First, ORS 131.615 codified Article I, section 9 of the Oregon Constitution and the Fourth Amendment of the Federal Constitution. And second, as interpreted by the Oregon Supreme Court, officers must limit their inquiry to the reasons for their suspicion. Defense attorneys should preserve the issue of unlawful subject-matter expansion in order to seek review by the state supreme court.

II. ORS 131.615 codified the protections in Article I, section 9 of the Oregon Constitution and the Fourth Amendment of the Federal Constitution.

In 1973, the Oregon legislature passed ORS 131.615. The purpose of the statute was “to protect interests of the kind which are protected by the Fourth Amendment of the United States Constitution and by Article I, [section] 9 of the Oregon Constitution.” State v. Kennedy, 290 Or 493, 497 (1981) (rejected on other grounds in State v. Hall, 339 Or 7 (2005)). Analysis under ORS 131.615 “is substantially the same as analysis of [a defendant’s] rights under the search and seizure provisions of the Oregon and federal constitutions.” Kennedy, 290 Or at 497; see also State v. Backstrand, 354 Or 392, 407 fn.13 (2013) (stating that “in a case involving suspicion of a criminal activity . . . the analysis under Article I, section 9, necessarily would be the same as under ORS 131.615(1).”); State v. Valdez, 277 Or 621, 629 (1977) (finding that “the purpose of the present statute is to protect interests of the kinds which are protected by the Fourth Amendment to the United States Constitution and by Art, I, [section] 9, of the Oregon Constitution.”).

In accordance with the state and federal constitutions, the statute limited an officer to a “reasonable inquiry” of a person whom the officer reasonably suspected of committing a crime. Valdez, 277 Or at 624. The inquiry was only reasonable if it lasted 1) for a reasonable amount of time and 2) “only if limited to the immediate circumstances that aroused the officer’s suspicion.” Id. The first element limited stops temporally, whereas the second element limited the subject-matter of the inquiry to the “immediate circumstances” that gave rise to the officer’s suspicions. See State v. Barndt, 68 Or App 755, 758 fn.2 (1984). The statute was amended in 1997 to add:

The inquiry shall be considered reasonable if it is limited to: a) The immediate circumstances that aroused the officer’s suspicion; b) Other circumstances arising during the course of the detention and inquiry that give rise to a reasonable suspicion of criminal activity; and c) Ensuring the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons.

ORS 131.615(3). Nowhere in the amended statute did the legislature limit the reasonable inquiry requirement. Where an officer lacked reasonable suspicion to inquire about particular subject-matter, the proper remedy is exclusion of the improperly obtained evidence “[o]therwise the statute can and will be ignored with impunity.” Valdez, 277 Or at 629.

III. Even after the passage of ORS 136.432 the Oregon Supreme Court continued to view ORS 131.615 as codifying constitutional provisions.

Many Oregon courts began using the statutory analysis of ORS 131.615 as a substitute for the constitutional analysis. See, e.g., State v. Watson, 353 Or 768, 777 (2013) (reiterating that “[b]ecause this court analyzes statutory issues before reaching constitutional ones, the court evaluate[s] officers’ actions . . . to determine whether they had violated the applicable Oregon statutes and often did not explicitly address their constitutional dimensions.”); Barndt, 68 Or App at 758 fn.1 (stating that “[b]ecause the analysis of defendant’s rights under ORS 131.605 to 131.615 is substantially the same as the analysis under Or. Const., Art. I, § 9, we limit our discussion to the statutory provisions.”).

But the Oregon Supreme Court never lost the constitutional underpinnings of ORS 131.615. See, e.g., State v. Holdorf, 52 Or 812, 818–19 (2014) (reiterating that “[T]his court has held that an analysis of a defendant’s rights under ORS 131.605 to 131.625 is substantially the same as an analysis of a defendant’s rights under the search and seizure provisions of the Oregon and federal constitutions . . . [a]ccordingly, our review in this case is limited to whether Article I, section 9, of the Oregon Constitution requires exclusion of the evidence identified in defendant’s motion to suppress.”); State v. Backstrand, 354 Or 392, 407 fn.13 (2013); State v. Fair, 353 Or 588, 602 fn.7 (2013) (finding that since the passage of ORS 131.615 “this court has viewed the statute as protecting the interests secured by Article I, section 9, and the Fourth Amendment.”); State v. Toevs, 327 Or 525, 534 (1998) (“in enacting ORS 131.605 to 131.625, the legislature intended to codify judicial decisions interpreting Article I, section 9, of the Oregon Constitution, and the Fourth Amendment to the United States Constitution.”); State v. Davis, 295 Or 227, 240 fn.17 (1983) (finding that “ORS 131.605 to ORS 131.625 was adopted by the 1973 Legislature as a codification of certain of the principles set out in Terry v. Ohio . . . .”). Because the analysis under ORS 131.615 is predicated on state and federal constitutional limitations, any determination of whether an officer acted properly in extending the subject matter of his inquiry requires looking at what is permitted under Article I, section 9 and the Fourth Amendment.

IV. Article I, section 9, and the Fourth Amendment to the United States Constitution require that any inquiry must be related to an officer’s reasonable suspicion of criminal activity.

In Terry v. Ohio, the U.S. Supreme Court recognized that under the Fourth Amendment an officer could stop a person and make “reasonable inquiries,” and conduct a limited pat down search for weapons when the officer had reasonable suspicion that the individual was involved in criminal activity. See Terry v. Ohio, 392 U.S. 1, 30 (1968); State v. Watson, 353 Or 768, 775 (2013). The Oregon Supreme Court adopted the holding in Terry and its progeny and applied it to Article 1, section 9 of the Oregon Constitution. See Watson, 353 Or 775–76. These requirements mandate that “an officer’s authority to detain a person based on reasonable suspicion is limited to activities that are reasonably related to the investigation of the suspected violation and reasonably necessary to effectuate that investigation.” Id. at 777. Where an officer expands the scope of his inquiry to subject-matter beyond that which gave rise to the officer’s reasonable suspicion, his actions exceeded what was necessary to the furtherance of the investigation.

Although the Supreme Court has yet to engage in an explicit analysis of whether expansions of subject-matter inquiries during a stop violate an individual’s constitutional rights, its analysis of the scope of an officer’s conduct during traffic violations under ORS 810.410 indicate that there is such a limitation. ORS 810.410 codifies the actions that officers may take in investigating a traffic violation. An officer:

(b) May stop and detain a person for a traffic violation for the purposes of investigation reasonably related to the traffic violation, identification and issuance of citation.

(c) May make an inquiry into circumstances arising during the course of a detention and investigation under paragraph (b) of this subsection that give rise to a reasonable suspicion of criminal activity.

(d) May make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons.

ORS. 810.410. Like ORS 131.615(3)(a–b), the officer’s inquiry is limited to the circumstances that gave rise to the traffic stop or that arise during the stop and lead to suspicion of criminal activity. The Court has read into the statute the constitutional requirement that an officer’s conduct is limited to that “reasonably related to the investigation of the suspected violation.” Watson, 353 Or at 777. “[F]urther conduct by the police, beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation.” Id. at 779 (quoting Rodgers/Kirkeby, 347 Or 610, 623 (2010)). Where an officer’s inquiry expands to subject matter beyond the original basis for the stop, the officer must have separate justification for that expansion.

In contrast to the position outlined in Watson, the Court of Appeals in State v. Gomes, found that where a traffic stop does not amount to a seizure, an inquiry into unrelated subject-matter is proper so long as it does not temporally extend the stop. 236 Or App 364, 371–72 (2010). In Gomes, where an officer stopped a car for speeding and failing to signal, the officer was permitted to expand the scope of his inquiry to a cigarette pack during an unavoidable lull during the stop. See State v. Gomes, 236 Or App 364, 367 (2010). The Court of Appeals based their opinion on a passage from Rodgers/Kirkeby:

[p]olice authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed. * * * Because police inquiries during a traffic stop are neither searches nor seizures, [such] police inquiries in and of themselves require no justification and do not necessarily implicate Article I, section 9

State v. Gomes, 236 Or App 364, 371 (2010) (citing Rodgers/Kirkeby, 236 Or 610, 623–24 (2010)). The passage that the Court of Appeals cited to, however, was dicta as the Supreme Court noted in the Rodgers/Kirkeby opinion itself:

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.

Rodgers/Kirkeby, 236 Or at 627 fn.5. As recently as 2013, the Court noted that subject-matter expansion remains an open question. See Watson, 353 Or at 784 fn.18 (noting that “in this case, we do not address whether an officer's inquiries made during the pendency of a valid seizure implicate Article I, section 9.”). Furthermore, Article I, section 9 may be violated if the inquiry involves a show of authority or restraint. Rodgers/Kirkeby, 236 Or at 624 (2010). A show of authority is when an officer conveys to a person “with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs.” Backstrand, 354 Or at 401–02. Although an inquiry itself might not be a seizure, it can be turned into one through the officer’s “demeanor, tone, language, or totality of circumstances.” Backstrand, 354 Or at 403–404. Defense attorneys can also argue that in the context of a traffic stop, the “retention of the identification after examination and a continuation of investigatory activities” makes any inquiry sufficiently coercive to constitute a seizure. Backstrand, 354 Or at 416.

In contrast to its permissive statement in Rodgers/Kirkeby, in State v. Amaya, the Supreme Court seemed to indicate that no detaining effect was required for there to be an Article I, section 9 violation. There, the Court stated that “Article I, section 9, prohibits and officer conducting a traffic stop from questioning a driver about weapons unless the officer has a reasonable suspicion that the driver poses an immediate threat of serious injury to the officer.” State v. Amaya, 336 Or 616, 623 fn.2 (2004). In Amaya, an officer, after making a traffic stop, acted reasonably in expanding his inquiry to the contents of defendant’s bag when the officer had reasonable suspicion that the bag contained a weapon. See Amaya, 336 Or at 633–34 (2004). The Court decided that in accordance with Article 1, section 9, an officer could only inquire further about weapons when he had reasonable suspicion that there was some threat to his safety. See Amaya, 336 Or at 631–33. In State v. Bates, which the Court in Amaya cited to for support, an officer could not make inquiries about what was in defendant’s bag when the officer lacked “reasonable suspicion based on specific facts that the defendant had posed an immediate threat to him.” Amaya, 446 Or at 632 (citing State v. Bates, 304 Or 519, 521–25 (1987). The similarity between ORS 810.410 and 131.615 indicate that both are codifications of constitutional provisions that limit subject-matter expansions.

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.

Watson, 353 Or at 781.

V. Conclusion

It is an open question whether a defendant has a constitutional right to be free from a subject-matter expansion of a stop without reasonable suspicion. At minimum, defense attorneys should argue that unrelated inquires made during a stop constituted a seizure because they were either coercive or a sufficient showing of police authority that an individual felt they were not free to leave. Defense attorneys should also preserve the issue of subject-matter expansion for appeal, otherwise there is no chance that the Oregon Supreme Court can resolve the disparity between Gomes and the dicta in Rodgers/Kirkeby with its interpretation of ORS 131.615 and ORS 810.410 in Amaya, Watson, and Holdorf.