Oregon Appellate Ct - March 29, 2017

by: Sara Werboff • March 31, 2017 • no comments

Search and Seizure - Police Lacked Reasonable Suspicion to Extend Traffic Stop

The court concludes that the trial court erred in denying defendant’s motion to suppress marijuana and statements because it determined that police had reasonable suspicion when they extended a traffic stop. Defendant and codefendant were traveling together in a car, and defendant’s mother was traveling in her car behind them. A patrol officer saw them and thought the mother’s car was traveling too close and decided to pull her over, when he then observed her car weaving in her lane. The officer concluded that she was weaving deliberately and perhaps “baiting” him to pull her over and allow defendant’s car to travel freely. The officer was aware of this practice from other officers but had never observed it himself or had any training on it. The officer requested assistance. The officer, while waiting for another officer, followed the cars for about 20 minutes. The officers pulled over both cars after observing defendant change lanes without signaling.

After pulling over defendant, the officer observed that defendant’s car was messy and smelled of cigarettes and that defendant was nervous. Defendant explained that his mother was driving the second car. The officer confronted defendant about the “baiting” activity. The officer pursued a drug investigation, ultimately finding marijuana in the mother’s car. On appeal, the court concludes that the officer did not have reasonable suspicion of drug activity when he began his criminal investigation. The court notes that although the parties did not argue about the officer’s subjective belief, the officer did not say he suspected defendant of committing a specific crime but rather that defendant was engaged in criminal activity generally. But even assuming he did have a subjective belief, it was not objectively reasonable. In particular, the court explains that the “baiting” evidence does not amount to reasonable suspicion.

In a per curiam opinion, the court concludes that codefendant is also entitled to a reversal.

State v. Tapp, 284 Or App 583 (2017) (Lagesen, J.)

State v. Peterson, 284 Or App 618 (2017) (per curiam)