Oregon Supreme Court Shuts Down Pretextual Traffic Stops; Says Cops Can’t Ask Questions Unrelated To The Violation

The Supreme Court's Rodriguez decision took a lot of fishing line away from law enforcement officers. Thousands of traffic statutes are violated every day. (Or not broken, in some cases.) All an officer needed to do was follow someone around until they violated one and then turn the traffic stop into a Q&A session with an eye on obtaining consent to search drivers, passengers, and vehicles.

The Supreme Court said pretextual stops are fine, but once the objective has been achieved (citation or warning given), the stop is over. No further questions. No calling for a drug dog. Nothing. Some officers took this to mean they could violate the Fourth Amendment as long as they did it quickly enough. Some courts allowed them to get away with speedy Constitutional violations. But, more often than not, courts interpreting the Supreme Court decision have read it as saying there's no extending a stop without reasonable suspicion to do so. There's some gray area, but not as much as officers had hoped.

The Supreme Court of Oregon has almost completely revoked law enforcement's fishing license. (via Reason) Its decision [PDF] applying the state's Constitution is more restrictive than the Rodriguez decision. There's no fishing, period. The court says even asking questions unrelated to the objective of the traffic stop is impermissible unless officers see, hear, or smell something that gives them reasonable suspicion to move past the objective of the stop.

The state argued that "unavoidable lulls" -- the moments between the officer's request for license and registration and the driver's production of these documents -- could be filled with all sorts of unrelated questions. The officer in this case testified that he fired off a salvo of questions at the beginning of every traffic stop.

“Every time I walk up, I ask him, I [say], ‘hey, Officer Faulkner, Beaverton Police Department,’ do my contact with them. ‘Do you have anything illegal in the car? Would you consent to a search for guns, drugs, knives, bombs, illegal documents, or anything else that you’re not allowed to possess?’”

This attempt to make it appear as though the questions the officer asked in this case were "normal" actually showed the officer routinely asked questions that had nothing to do with the traffic stops he was performing. This isn't exactly the message Officer Faulkner meant to send, but it's the message the Oregon Supreme Court received.

As the court notes, this barrage of questions directed at a driver violates the state's Constitution. Unlike a pedestrian encounter, drivers are not free to leave or ignore questions.

“[I]n contrast to a person on the street, who may unilaterally end an officer-citizen encounter at any time, the reality is that a motorist stopped for a traffic infraction is legally obligated to stop at an officer’s direction and to interact with the officer, and therefore is not free unilaterally to end the encounter and leave whenever he or she chooses.”

Since none of this is consensual, attempting to obtain consent for a vehicle search before even addressing the objective of the traffic stop implicates state-given protections against unreasonable searches and seizures. The court says investigations should be limited to the alleged crime at hand. A traffic stop is not the initial step in a deeper investigation of other potential criminal activity.

Whether an officer is investigating criminal or unlawful noncriminal activity, the officer’s authority to stop an individual—based on reasonable suspicion of criminal activity or on probable cause of unlawful noncriminal activity— is founded on the assumption that temporary, investigative stops to investigate particular conduct are permitted for that particular purpose only. It therefore follows that limits apply to an officer’s ability, during such a stop, to use that stop for other purposes.

The court notes that ruling otherwise would… well, it would make Oregon no different from the rest of the nation where these kinds of fishing expeditions are performed on the regular.

A stop that is reasonable for a limited investigatory purpose is not necessarily reasonable for all purposes, and we see no reason to distinguish between the activities that law enforcement officers conduct during such a stop and the questions that they ask; both must be reasonably related to the purpose that permits the officer to stop an individual in the first place. If we were to hold otherwise, then an officer who lacks a warrant, probable cause, or even reasonable suspicion of criminal activity, could stop an individual for a minor traffic offense, and, during that stop, conduct a criminal investigation anyway, making meaningless the rule which requires an officer to have reasonable suspicion before stopping an individual to conduct a criminal investigation.

The court makes this finding even clearer later in the ruling, expressly forbidding law enforcement officers from asking drivers unrelated questions in hopes of stumbling onto a bigger, better criminal act. It also points out this has always been the case in Oregon under its Constitution.

By applying subject matter limitations to investigative activities and questioning, Article I, section 9, ensures that officers do not turn minor traffic violations into criminal investigations without a constitutional basis for doing so.

And this decision -- redrawing what was supposed to be a bright line governing questioning during traffic stops -- makes it clear Oregon cops can thank Officer Faulkner for ruining it for them.

[I]f there were evidence that, during the stop, Faulkner had learned facts giving rise to reasonable suspicion that defendant had engaged or was about to engage in criminal conduct, an expanded investigation could have been justified. But here, Faulkner did not testify to any particularized suspicion that defendant had weapons, controlled substances, or any other contraband in his vehicle. To the contrary, Faulkner testified that he asks such questions every time he makes a stop.

Shorter Officer Faulkner: "I always engage in unconstitutional behavior during traffic stops."

Not anymore. That's no longer an option.

The dissenting opinion worries officers won't know what to do with their mouths during "unavoidable lulls." The majority says it's not up to the state's Constitution to bend to the will of otherwise unoccupied cops.

The dissent is concerned about what an officer can do during a ten-minute wait other than conduct activities and make inquiries reasonably related to the purpose of the stop and reasonably necessary to effectuate it. 365 Or at 720 (Garrett, J., dissenting). We do not share that concern. If an officer develops reasonable suspicion that the stopped individual has engaged in illegal activity in addition to that for which the individual was stopped, then the officer may investigate that activity. Without such suspicion, an officer should limit investigative activities and inquires to matters that are, as statute requires, limited to the “immediate circumstances that arouse the officer’s suspicion” or that will not result in the discovery of suppressible evidence.

This is a wonderful decision. It's also an anomaly. Everywhere else in the nation, pretextual stops will continue unimpeded. Drivers will be asked tons of unrelated questions by cops who want to turn every failure to signal into a drug bust. Unfortunately, very few states have Constitutions that provide more protections for citizens than the US Constitution, so the Rodriguez decision will have to do for most of us.



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