Search and Seizure

Oregon Cops Are No Longer Allowed To Routinely Turn Traffic Stops Into Criminal Investigations

The Oregon Supreme Court says police may not grill drivers or ask to search their cars without reasonable suspicion of criminal activity.

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When he pulls over cars for traffic violations, police officer Erik Faulkner testified in 2015, he routinely asks drivers if they have weapons, drugs, or any other contraband. Because of a recent decision by the Oregon Supreme Court, Faulkner will have to cut that out, and so will every other cop in the state.

Under Oregon's constitutional ban on unreasonable seizures, the court said, "all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations. Accordingly, an officer is limited to investigatory inquiries that are reasonably related to the purpose of the traffic stop or that have an independent constitutional justification." The decision gives Oregon drivers extra protection against the use of traffic stops to conduct criminal investigations that would not otherwise be justified.

The case involves a driver, Mario Arreola-Botello, whom Faulkner pulled over in 2015 for failing to signal a turn and a lane change. While Arreola-Botello was looking for his vehicle registration and proof of insurance, Faulkner said, he asked him about guns and drugs, then asked if he could search the car. Arreola-Botello, whose grasp of English was spotty, reportedly said, "Sure, OK." The search turned up a package containing methamphetamine, which led to Arreola-Botello's arrest and conviction for illegal possession of a controlled substance.

On appeal, Arreola-Botello argued that the evidence should have been suppressed because Faulkner unconstitutionally exceeded the proper scope of the traffic stop. The Oregon Supreme Court agreed. "Put simply," it said, "an 'unavoidable lull' does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds."

If an officer incidentally discovers evidence of criminal activity after stopping a car, the court said, he may investigate based on "reasonable suspicion." But he may not randomly fish for incriminating information or evidence simply because a driver has committed a traffic violation. Given the myriad excuses that traffic codes give police for pulling people over, that's an important constraint. Unlike most of us, Oregon drivers no longer have to worry that they will be interrogated or pressured into allowing a search merely because they exceeded the speed limit or neglected to buckle their seat belts.

"This decision closes a loophole in the protection of our constitutional rights that police had been using to conduct warrantless searches," ACLU of Oregon attorney Leland Baxter-Neal told Oregon Public Radio. "And those searches had disproportionately targeted people of color."

A 2018 analysis of traffic stops in Portland found that "American Indian/Alaskan Native and Black/African American drivers were searched at significantly higher rates when compared to overall stop rates." Drivers in those two groups were searched 4 percent and 3 percent of the time, respectively, compared to a rate of 0.5 percent for white drivers.

Nationwide data reveal similar, though less dramatic, disparities. A 2017 analysis of data from 20 states found that "white drivers are searched in 2.0% of stops, compared to 3.5% of stops for black motorists and 3.8% for Hispanic motorists." After the researchers controlled for stop location, date and time, and driver age and gender, they calculated that "black and Hispanic drivers have approximately twice the odds of being searched relative to white drivers." They also found that "black and Hispanic drivers are searched on the basis of less evidence than white drivers, suggestive of bias in search decisions."

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  1. Great. Now let the other 49 states follow. And then they’ll come up with some other procedure to make an excuse to search.

    1. They still have “it smells like weed in here” in most of the country, I’m sure those poor police officers will be just fine.

      1. “It smells like flavored vaping “ will be the new excuse.

        1. Slightly offtopic, but I wonder if anyone’s ever just tried making their vehicle super disgusting to search?

          (Presumably) used condoms, dildos, uncapped syringes, etc.

          “Not only do you have my consent officer, I INSIST that you search my vehicle”.

          1. There are several regulars here who could probably tell us how that works…

          2. “Not only do you have my consent officer, I INSIST that you search my vehicle”.

            Sounds like an invitation to get cuffed and raped.

            1. Like they’ve ever waited on an invitation.

  2. I do remember a similar incident driving through one of those sobriety checkpoints. I had not been drinking, neither had the majority stopped at such check points but out came the flashlights looking around inside the car. I told the officer if you are not charging me I will continue on my way and he backed off.

  3. I always meticulously follow all traffic rules in a car that has properly functioning lights whenever I transport methamphetamine.
    I also lie and deny having weapons or drugs in the car.\ when stopped.
    I also refuse requests to search the car.
    I always ask if I am free to leave, and immediately do so if allowed.
    I also immediately call my lawyer and say nothing if threatened with arrest.
    That is why I am so successful.

    1. There was a case in (I believe) Wichita Falls, TX a few years back where the ‘suspicion’ to justify the stop was that the suspect’s car was clean and the driver followed all traffic rules. The officer knew, from his training and experience, that following the traffic laws and having washed your car were telltale signs of drug trafficking.

    2. As long as you are stopped only by scrupulously honest cops who do their jobs by the book, you’ll be able to make your meth runs in safety.

  4. I was pulled over one by a CHP – his stated reason at the time was the giant shamrock on the side of my truck. He asked if i was associated with “The Brand” apparently arsehole speak for a white racist hate group known as the Aryan Brotherhood. Regardless, the comment was so ridiculous I thought he was kidding and laughed in his face. Cops don’t like that… so I clammed up and asked if i was being detained or under arrest, at which time he figured out I couldn’t be bullied into playing his pathetic little ‘sheep herded & sheep” game. Once the coppers know you know your rights, they seems to back off like cowards most of them are. I was racially profiled as a white dude in Cali.. its my funest story to tell now. Thanks ignorant racist CHP officer from Atwater, CA CHP station–

    1. maybe he belonged to the Brand

  5. Sure thing. Try proving you are innocent. It’s you word against theirs and they usually win that battle. Cops are never wrong.

  6. Sure thing. Try proving you are innocent. It’s your word against theirs and they usually win that battle. Cops are never wrong.

  7. Had that happen several times a few years back going from CA into OR (“it looked like you were following too closely” – at 4-5 car lengths in moderate traffic). My reward for telling them to FO was to stand on the side of I-5 in the rain for 20 min while waiting for the dog to come sniff the car.

    1. For a long time Jackson County Oregon had a solid reputation for being scum. Some sort of innate attitude issue. They seem at times to delight in pushing their perceived authority to make you dance the jig at their command……

      If I’d been in your situation I’d have asked “am I under arrest or being detained” “For what probable cause or evidence?” “Am I free to go? If not, on what charge?”

      If that was in the winter and it was cold outside, and I was forced to stand in the rain for twenty minuts waiting for the drugmutt I’d have started shivering mightily, clutcing my chest, stamping, moving about, etc.. and as soon as the goon released me I’d ask where the nearest hospital is. “WHY” Because I am suffering from hypothermia and need medical care NOW.

  8. JFK Executive Order 10988 of January 17, 1962 made it OK for bloodsucking bureaucrats and dog-shooting cops to hire union goons to hide behind. This is what is known as unqualified immunity. Enjoy!

    1. Public employee unions need to be outlawed.

  9. I’ve never been arrested, much less convicted for anything. I haven’t even been stopped by a cop for over twenty-five years (which was when I got my second speeding ticket).

    But this is important to me. One of my concerns is being stopped by the police and asked if I have any firearms in my car. Do I lie and say “no?” Or do I tell the truth and say “Yes, I have a fully-loaded AR-15 in the back seat.” (Or something like that, which is completely legal where I live in Oregon). The odds of that happening are, hopefully, reduced. I am not particularly paranoid, but I do not like to have to explain my perfectly legal actions to anybody.

  10. Never, ever talk to cops…in or out of a car.

  11. “A 2018 analysis of traffic stops in Portland found that “American Indian/Alaskan Native and Black/African American drivers were searched at significantly higher rates when compared to overall stop rates.” Drivers in those two groups were searched 4 percent and 3 percent of the time, respectively, compared to a rate of 0.5 percent for white drivers.”

    Why are we acting surprised by this? The disparity in searches fits the disparity in crimes committed.

  12. “The Oregon Supreme Court says police may not grill drivers or ask to search their cars without reasonable suspicion of criminal activity.”

    Reason should remember it is not criminal activity until it occurs

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