Oregon Court: A Stop So Pretexual Cops Forgot About The Pretext Is A Rights Violation
Pretextual stops are legal. The courts have said repeatedly that it's ok for cops to stop people for one thing to facilitate mini-investigations about other things. As long as the pretext holds up -- and reasonable suspicion about other things develops quickly enough -- cops can turn a failure to yield into a drug bust or a lucrative seizure.
This is only one form of lying blessed by the courts. Cops can also lie to people they're questioning to drag confessions out of them. That some of these confessions are false or completely tainted by the cops' lying doesn't seem to matter much. Overturned convictions and wrongful arrest lawsuits haven't changed the criminal "justice" matrix much over the years. Cops can lie and courts will say it's ok, apparently operating under the assumption no innocent person would admit to a crime and those with nothing to hide have nothing to fear.
But back to the pretext. Cops can initiate traffic stops to perform deeper investigations. But officers need to remember why they initiated the stop. And they need to provide the legal connective tissue between the initial stop and its eventual endpoint. In this case, the officers involved forgot what they were doing when they first started lying. (via FourthAmendment.com)
And that's what costs them their arrest. This opinion [PDF] by the Oregon Court of Appeals draws some (more) lines in the criminal justice sand. It may only apply in this state, but it's still significant. All sorts of detentions have been treated as consensual encounters by courts, even when it seems clear no regular citizen would feel free to walk away from cops. But this one is different. The seizure -- at least under the state's constitution -- begins when officers make it clear any movement other than what was directed would be considered an attempt to flee and/or endanger officers.
“[J]ust keep your hands where I can see them,” Officer Leininger ordered defendant as he stood next to her car door armed and in uniform, his patrol car with its lights flashing not far behind, his partner, Deputy Gravel, at the driver’s door of the Volkswagen Jetta in which defendant had been riding on the passenger side. She complied. Was defendant seized for purposes of Article I, section 9, of the Oregon Constitution?
We took this matter into full court to consider that question, a question we answer yes.
That's all it takes. And this rule should apply nationwide. The moment cops tell you to stop moving (or to perform only certain motions), you're no longer allowed to move freely. That's where a stop should become a seizure. That's where constitutional rights are affected. If you can't walk away without fear of arrest or violence, you've been "seized."
But that's not the only damning indictment of police behavior handed down by the Appeals Court. There's more. Pretext only counts if you can support it with almost literally anything. These cops couldn't.
In a stop so pretextual the pretext got lost, Gravel and Leininger pulled over the Jetta in which defendant was a passenger.
The two officers were on a "street crimes mission" that evening. That meant they were looking for "narcotics and guns, that sort of thing." These are direct quotes from the officers. They were looking for crime-type stuff. So they randomly pulled over a car and decided the passenger might be a criminal. But they forgot to connect the dots and went right into the rights violations.
Once the vehicle was stopped, the cops forgot all about their fake reason for stopping the car.
After locating and then stopping the Jetta, Gravel and Leininger, who were armed and in uniform, left the patrol car with its overhead lights on and flashing. They approached and flanked the Jetta, with Gravel taking the driver side and Leininger taking the passenger side. Because he had been concerned by defendant’s movements as he approached the car, Leininger directed her to “keep your hands where I can see them.” She complied. Gravel and Leininger spoke with the driver and defendant, obtaining their names, but Tux, the dog attached to their street crimes mission, and his handler, Deputy DiPietro, arrived within 30 seconds of the start of the stop, soon circled the car, and detected drugs. No one gave any further thought to the California stop and too-wide turn reported by the Beaverton narcotics officer, and no one filled out a traffic citation. Instead, as was the point of that night’s “street crimes mission” all along, Tux’s detective work gave rise to probable cause to conduct a drug investigation. The investigation revealed that defendant had in her possession 70.28 grams of methamphetamine, multiple methamphetamine pipes, $3,231 in cash, a large quantity of empty plastic baggies, a digital scale, and eight cell phones. That discovery led to defendant’s arrest and the indictment for one count of unlawful delivery of methamphetamine (charged as a commercial drug offense), ORS 475.890(2), and one count of unlawful possession of methamphetamine, ORS 475.894.
Congratulations all around, I guess. But rights still matter even when cops are pursuing a vague "street crimes" directive. The lower court let the officers slide, saying the running of a drug dog around the car (one supposedly stopped for a minor traffic violation) didn't violate the US Supreme Court's Rodriguez decision because the officers had the dog with them. According to the lower court, speedy constitutional violations aren't violations because the violation was concurrent with the pretextual stop.
That may work at the federal level (although not always…) but it doesn't work in Oregon. Supposed "unavoidable lulls" during pretextual stops no longer work in favor of cops who stop people for one thing just in order to do something else entirely once they have them stopped.
That would seem to require reversal. The trial court denied defendant’s motion based on its conclusion that, on the facts of this case, the deployment of Tux was authorized under the unavoidable lull doctrine. But the unavoidable lull doctrine is no longer a valid doctrine, and, as noted, Tux’s deployment does not comport with the subject-matter limitations that Arreola-Botello placed on traffic stops.
Part of the problem was the officers' decision to treat the passenger as an aider and abettor of the imagined traffic violations. That's where the seizure under the state constitution begins. Both people in the car were approached and both were ordered to ID themselves and put their hands where the officers could see them.
On these facts, it would be easy to conclude that defendant was seized from the very outset of the traffic stop. It is important to keep in mind that not all stops of cars are traffic stops; cars can be stopped for many different reasons. Under the circumstances here, defendant and the driver of the car had little reason to think that the stop was a traffic stop of the driver, as distinct from a criminal investigatory stop targeting both of them. There is no evidence that the Jetta was involved in any traffic violations after Gravel and Leininger started tailing it, so defendant and the driver would have had little reason to think they were being stopped for traffic violations. The officers’ conduct of flanking the car would communicate to the occupants of the car that the show of authority was directed at both of them. Finally, neither officer testified that he had communicated to either the driver or defendant the basis for the stop; instead, each officer testified that he obtained identifying information from the person he was talking to. Under those circumstances, a passenger in defendant’s position would not understand the officers’ show of authority to be directed solely at the driver for the purpose of processing a traffic violation, contrary to the rationale for the rule that a traffic stop does not automatically result in a seizure of passengers.
And the speedy deployment of the drug dog doesn't matter. It was a traffic stop. That the officers happened to have a drug dog with them doesn't change anything. Under state precedent, running the drug dog prior to establishing reasonable suspicion to do so violated the rights of both occupants of the vehicle.
The state has never identified any theory or facts that, for purposes of Article I, section 9, would justify the seizure of defendant for any reason other than safety and lawfully processing the traffic stop of the driver for the rolling stop and too-wide turn. Consequently, because the only plausible justification for seizing defendant in the context of the traffic stop was to ensure the safe and lawful processing of it, when Tux’s sniff extended the traffic stop in violation of the subject-matter limitations recognized in Arreola-Botello, it also unlawfully extended the related ancillary seizure of defendant. Defendant’s own rights under Article I, section 9, were violated by that unlawful extension, so her motion to suppress must be granted.
Telling someone not to move, put their hands where they can be seen, and identify themselves all add up to a seizure under Oregon's constitution. When someone is given no choice but to cooperate with law enforcement officers, they can't truly be considered "free to go." And when cops immediately abandon their pretext to get to the real reason for the stop, more rights violations occur. This decision only affects Oregon cops and Oregon residents. The latter now enjoys more protections than residents of other states do. But these protections are still continuing to evolve. With any luck, federal courts will start demanding more from cops who engage in bullshit stops.