The ruling could be coming to a court near you
If PoliceOne reader comments are any indication, a recent Oregon state supreme court is raising a lot of ire amongst officers. So much so that one reader commented,
“JUST another reason to ask myself why, in 2003, I did not take the firemans [sic] test instead of the police test.”
That’s pretty drastic. Let’s see what the brouhaha is about.
The Oregon court’s ruling
Last month, the Oregon Supreme Court ruled that officers conducting a traffic stop are prohibited from asking questions that are not “reasonably related” to the stop. Here are the facts:
Officer Faulkner lawfully stopped Mario Arreola-Botell for failing to signal a turn and a lane change. While Mario was searching for his registration and proof of insurance, Officer Faulkner asked him about guns and drugs in the vehicle and requested consent to search. Mario consented and Officer Faulkner found methamphetamine.
At a pretrial hearing, Officer Faulkner candidly testified that he routinely asks about such items and for consent to search for them. The defense attorney never challenged the validity of his client’s consent. Instead, the defense argued on appeal that the officer’s questions and request for consent to search went beyond the lawful scope of the traffic stop in violation of the state’s constitutional protection against unreasonable searches or seizures.
The state supreme court agreed and held that officers may not ask questions during a traffic stop that are not “reasonably related” to the reason for the stop.
What was the court thinking?
The reaction of many PoliceOne readers was captured in this comment,
“WTH!!!! According to this article, the subject consented to the search of his vehicle. So what’s the problem. Yep, there goes proactivity.”
Using valid traffic stops as a basis for proactive policing was exactly the court’s concern, although you have to read pretty far into the opinion to find that. There’s lots of legal wrangling before the court ponied up their rationale:
“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 Oregon Supreme Court was referring to the U.S. Supreme Court’s requirement that an officer must have “reasonable suspicion” to believe a person has committed, is committing or is about to commit a crime before the officer is justified in stopping and detaining the person briefly to investigate.
IMHO, the Oregon court mixed apples with oranges because a traffic violation is a separate justification for stopping and detaining someone. If you do a valid investigatory stop, the only search you can do is a pat-down for officer safety. Anything more intrusive requires consent or additional constitutional grounds. Same with the traffic stop. The issue, in this case, should’ve been whether the consent was “knowing and voluntary.”
So why would the Oregon court want to ban proactive policing during traffic stops that result in valid consents to search? I had to read even further to find the court’s rationale in footnote 9 of the opinion:
“A subject-matter limitation requires that all additional questioning be based on constitutionally sufficient grounds and not on implicit or explicit biases. The amicus brief submitted by the Oregon Criminal Defense Lawyers Association and the Oregon Justice Resource Center presents significant statistical data to illustrate the disparate treatment of black and Hispanic motorists during the course of traffic stops, showing specifically that nationwide, and in Oregon, people of color are statistically more likely to be searched during traffic stops than their white counterparts.”
I understand implicit and explicit biases exist because I have them. I’m working on that. But just because minorities are stopped disproportionately to their numbers in the general population doesn’t mean the stops are the result of unconstitutional discrimination. Crime tends to correlate with poverty, lack of education and employment. Those factors hit minority communities disproportionately but that isn’t because of police bias. I wish the Oregon court had an amicus brief on that.
How can the Oregon court do that?
Some PoliceOne commenters wondered how the Oregon court could rule the way it did when the U.S. Supreme Court has held officers may ask for consent to search a vehicle during a traffic stop.
The U.S. Supreme Court decides what is permissible under the U.S. Constitution. Under the Fourteenth Amendment, state courts cannot afford individuals less protection than the U.S. Constitution. They can, however, provide more protection for individual rights under their state constitutions than is required by the U.S. Constitution.
Oregon isn’t the only state to have limited what officers can ask during a traffic stop. PoliceOne commenters said Wisconsin and Minnesota have similar limitations. The state appellate court in my home state of Alaska ruled over ten years ago that police may not ask for consent to search during a traffic stop for reasons unrelated to the stop or articulable officer safety.
Suggestions from PoliceOne readers
One PoliceOne commenter suggested,
“So here's what you do; First, bring the original stop to its logical conclusion, give them back their paperwork then, ask them if they would mind you asking a couple more questions. Now, if they say "yes", you have transitioned from a traffic stop to a consensual conversation/contact.”
However, as another reader noted,
“Some states would still recognize that as an extension of the original stop. You would have to make it clear that the person was free to go, turn off your emergency equipment, and give the person a chance to leave.”
Both readers could be right – depending on their state’s law. If you don’t know your jurisdiction’s law regarding this issue, ask your prosecutor. Don’t wait to find out on an appeal from a traffic stop that netted a murderer or human trafficker.
Another PoliceOne reader suggested that the local police brass might have better responded to the court’s ruling as a head-on attack on proactive policing. I agree. Departments might want to consider getting out ahead of this issue, with the assistance of their local prosecutors, before this challenge comes to your jurisdiction.
An excellent comment came from a Minnesota reader who noted that a similar court opinion in his state hadn’t ended proactive policing. Instead, officers had learned to be especially observant and to articulate in their report facts that supported reasonable suspicion to expand the scope of the stop.
That’s the kind of officer I want to have my six. One who never quits striving to lawfully protect and serve regardless of what the courts deal him or her.