Routinely asking people whether they're carrying weapons, as part of ordinary traffic stops, violates Oregon Constitution

|The Volokh Conspiracy |

The Oregon Supreme Court unanimously held this in yesterday's State v. Jimenez, applying the Oregon Constitution's search-and-seizure provisions. (The result need not have been the same under the federal Fourth Amendment; but state courts are free to interpret their state Bill of Rights provisions differently from how the analogous federal provisions are interpreted, and the Oregon Supreme Court has been a leader on this—citizens facing state or local government actions would then get the benefit of the more protective of the state and the federal provisions.)

Here is an excerpt from the opinion:

In this criminal case, an Oregon state trooper stopped defendant for jaywalking and asked him if he had any weapons on him…. Article I, section 9, of the Oregon Constitution does not permit a law enforcement officer to make such an inquiry as a matter of routine and in the absence of circumstances that indicate danger to the officer or members of the public.

In contrast, when an officer has probable cause to detain an individual and conduct a traffic investigation, and the officer has reasonable, circumstance-specific concerns for the officer's safety, the officer may inquire about the presence of weapons. In that instance, the officer's inquiry is reasonably related to the traffic investigation and reasonably necessary to effectuate it, and therefore does not violate Article I, section 9…. [But] that standard was not met in this case ….

[A police] trooper drove by a busy Portland intersection and noticed that, after he did so, defendant crossed the street against a "Don't Walk" sign—a Class D [statutory] violation …. The trooper turned his car around and drove to a position near defendant, who was sitting on a bench at a bus stop. When defendant saw the trooper's car approach, he got up and began to walk away. The trooper honked his horn and motioned to defendant to come and talk to him, which defendant did.

The trooper knew that the intersection was in a high-crime area where a lot of recent gang activity had occurred. He observed that defendant was wearing an "oversized" or "puffy" jacket over a "hoodie sweatshirt," "oversized baggy gray pants," and "white tennis shoes," and was carrying what could be a green lanyard—garb that the trooper thought might indicate gang affiliation.

The trooper got out of his car, approached defendant, and began a conversation with him [about the traffic violation]…. [Some time into the conversation], the trooper asked "do you have any weapons on you?" Defendant "kind of sighed and closed his eyes and said yes." The trooper asked defendant what he had, and defendant answered that he had a gun…. Defendant ultimately was charged with one count of [concealed carry of a firearm in public without a license] ….

[I]n appropriate circumstances, an officer's safety concerns may make the officer's actions, including questioning about weapons, reasonably related and necessary to effectuate a traffic stop. The state's argument, however, is that, regardless of whether an officer reasonably perceives an articulable danger, the officer always may inquire about weapons because "[t]he inherent dangers to an officer in a traffic stop are undeniable." …

[But w]hen an officer does not reasonably perceive a danger, we will not presume that such danger nevertheless exists or that the officer's inquiry about weapons would address such danger. When an officer does not reasonably suspect that the officer's safety or the safety of the public is threatened, safety concerns do not provide a connection between the officer's traffic and weapons investigations, and therefore, the two investigations are not reasonably related ….

For a weapons inquiry conducted in the course of a traffic investigation to be reasonably related to that investigation and reasonably necessary to effectuate it, an officer must have reasonable, circumstance-specific concerns for the officer's safety or the safety of other persons who are present. To justify an officer's weapons inquiry, the officer's safety concerns need not arise from facts particular to the detained individual; they can arise from the totality of the circumstances that the officer faces….

[In this case], the trooper was alone in a high crime area where recent gang activity had occurred. The trooper observed that defendant was wearing an "oversized" or "puffy" jacket over a "hoodie sweatshirt," "oversized baggy gray pants," and "white tennis shoes." Defendant also was carrying what the trooper thought could be a green lanyard. Although the trooper was not certain that defendant was a gang member, the trooper also knew that gang members often will wear such pants and shoes, that the color green is associated with a specific gang, and that baggy clothing can conceal the presence of weapons. Given those facts, the trooper may have been concerned for his safety or the safety of others and may have determined that a weapons inquiry was a reasonable step to address those concerns.

But we cannot presume that the trooper actually had those concerns or made that determination. To demonstrate that an officer's weapons inquiry is reasonably related to a traffic investigation and reasonably necessary to effectuate it, the state must present evidence that (1) the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger; and (2) the officer's perception and decision were objectively reasonable. To determine whether that standard is met, a court must consider not only the factual circumstances that existed when the officer acted, but also the officer's articulation of the danger that the officer perceived and the reason for the officer's inquiry.

In this case, the trooper testified that when he got out of his car to talk with defendant, he conversed with him without asking about weapons and continued his conversation long enough to obtain defendant's admission that he knew he had crossed the street against a "Don't Walk" signal. The trooper then asked defendant if he had any weapons. The trooper testified that he did so because he asks the same question "with all contacts on the street with pedestrians, just for—obviously for officer safety reasons," and that "[i]t makes [it] a lot easier if we can stand and have a normal conversation if there's no weapons on the person."

On that record, we conclude that the state did not meet its burden to demonstrate that the officer's weapons inquiry was reasonably related to his traffic investigation and reasonably necessary to effectuate it. First, for reasons we have expressed, Article I, section 9, does not permit officers to make routine weapons inquiries in all traffic investigations. Second, the trooper explained that he routinely asks questions about weapons to make it easier to have a "normal conversation," yet, in this case, the trooper made the weapons inquiry after he already had engaged in "normal conversation" with defendant. Although the facts known to the trooper at the time that he inquired about weapons might have given rise to reasonable, circumstance-specific safety concerns, the trooper did not so testify….

Three of the seven judges concurred, but noted (among other things) that:

[T]he problem in this case is not that the evidence was insufficient to justify the officer's question. Rather, the problem, as I understand the majority opinion, is that the officer testified that he asks the same question for officer safety reasons in every pedestrian stop without regard to the circumstances of stop, and he did not explain why the circumstances of this stop caused him to be concerned for his or anyone else's safety.

I'm not sure whether this is right, but I thought it was an interesting analysis and worth passing along. Thanks to Alice Marie Beard for the pointer.