State v. Olaiz

WARREN, J.,

dissenting.

In State v. Caraher, 293 Or 741, 653 P2d 942 (1982), the Supreme Court rejected the rule of uniformity with Fourth Amendment analysis that had been adopted in State v. Florance, 270 Or 169, 527 P2d 1202 (1974), and stated that Oregon courts are free to impose on searches and seizures under our own constitution higher standards than are required by the federal constitution. State v. Caraher, 293 Or at 750. The court later pointed out that Article I, section 9, differs from the Fourth Amendment because its historical focus emphasizes the people’s freedom from scrutiny, rather than police deterrence. State v. Tanner, 304 Or 312, 745 P2d 757 (1987).

The majority relies on State v. Tucker, 286 Or 485, 595 P2d 1364 (1979), which analyzed pretext stops while the rule of uniformity was in effect. In Tucker, the court rejected a standard of “objective reasonableness” for pretext stops,1 stating that such an approach is unworkable and is not sup*388ported by Fourth Amendment authority. 286 Or at 493-95. In recent years a number of federal circuit courts have shown the practical utility of the “objective reasonableness” standard for pretext stops and arrests.2 Although State v. Tucker, supra, and State v. Carter/Dawson, supra n 1, are controlling on our interpretation of the Fourth Amendment, we may still consider the reasoning of other federal cases in analyzing this issue under Article I, section 9. In doing so, we discover that most federal circuit courts consider pretext stops to be illegal and that they have developed criteria for evaluating a stop to determine whether it is pretextual.

The Tenth Circuit has provided a definition of a pretext stop:

“A pretextual stop occurs when the police use a legal justification to make the stop in order to search a person or place, or to interrogate a person, for an unrelated serious crime for which they do not have the reasonable suspicion necessary to support a stop. The classic example * * * occurs when an officer stops a driver for a minor traffic violation in order to investigate a hunch that the driver is engaged in illegal drug activity.” U.S. v. Guzman, supra n 2, 864 F2d at 1515.

In a discussion of a related issue, pretext arrest, the Seventh Circuit has explained that the federal circuits have moved in recent years from a subjective Fourth Amendment inquiry to an objective assessment of the reasonableness of police activity, although “the adoption of an objective standard substantially diminishes the chances of discovering pretextual arrests.” U.S. v. Trigg, supra n 2, 878 F2d at 1040. The Eighth and Ninth circuits continue to rely on the subjective purpose of officers in order to determine whether a stop is unconstitutional. U.S. v. Portwood, 857 F2d 1221, 1223 (8th Cir 1988); U.S. v. Baker, 850 F2d 1365, 1368 (9th Cir 1988).3

Some federal courts have adopted a rule developed in the Eleventh Circuit, and similar to that rejected in State v. *389Tucker, supra, that relies on objective circumstances to determine an illegal motive: “[Wjhether a reasonable officer would have made the seizure in the absence of an illegal motivation.” (Emphasis in original.) Under that standard, even if a valid basis for a traffic stop can be found, if objective circumstances show that reasonable officers would not have made the stop in the absence of a desire to investigate the more serious crime for which they do not have a reasonable suspicion, then the stop violates the Fourth Amendment. 799 F2d at 710.

The Eleventh Circuit later refined this “objective reasonableness” test, basing its decision on whether the defendant violated a statute “for which the patrol regularly made stops, with or without suspicion of drug activity.” U.S. v. Bates, 840 F2d 858 (11th Cir 1988). The Tenth Circuit stated that “the proper basis of concern is not with why the officer deviated from the usual practice in this case but simply that he did deviate.” (Emphasis in original.) U.S. v. Guzman, supra n 2, 864 F2d at 1517, quoting 1 LaFave, Search and Seizure § 1.1(e), 94 (1987). Courts in the Third Circuit have also relied on United States v. Smith, supra n 2. See, e.g., U.S. v. Hawkins, supra n 2; U.S. v. Padron, 657 F Supp 840, 846 (D Del 1987).

Only the Fifth and Seventh Circuits follow a rule similar to that in Tucker and adopted by the majority, which suggests that no illegal pretext exists as long as officers have taken no action except what the law objectively allows. U.S. v. Trigg, supra n 2; U.S. v. Zukas, 843 F2d 179, 182 (5th Cir 1988) (pretext stop); U.S. v. Causey, 834 F2d 1179, 1185 (5th Cir 1987) (pretext arrest). I return to Article I, section 9, with the federal law in mind.

The majority has moved far from the early concerns expressed by the Supreme Court when analyzing a warrantless search incident to arrest under Article I, section 9:

“[T]he trial judge must determine whether the officers went to the place to make a lawful arrest, and in making it looked for evidence lawfully subject to seizure, or whether the officers used a pretended arrest for one offense as a Trojan horse in order to obtain entry, only to prosecute for some greater crime after finding sufficient evidence to justify their belief in the defendant’s probable guilt of the greater crime. The first kind of search is incidental to an arrest and is lawful; the second is a *390fishing expedition and is as odious as the general warrant of antiquity.” State v. Chinn, 231 Or 259, 373 P2d 392 (1962).

Chinn, not State v. Tucker, supra, is the Supreme Court’s clearest statement under the Oregon Constitution. Section 9 protects “the people” from fishing expeditions. In order to avoid the imposition of unreasonable burdens on those who wish to maintain a “sense of security,” we must adopt a standard that prevents the use of pretext stops as a Trojan horse to gain evidence of other crimes.

I agree that, under normal circumstances, if a driver commits a speeding violation while an officer is legally following the vehicle for surveillance purposes, the officer may properly stop the vehicle in order to issue a ticket and, in so doing, may incidentally further the investigation. However, in order to avoid the type of fishing expedition against which the court cautioned in Chinn, some restrictions are necessary. Since the time that the Supreme Court rejected the standard of “objective reasonableness” under the Fourth Amendment in State v. Tucker, supra, stating that the standard lacked authority and practicality, many federal courts have proven its usefulness. Our own history of constitutional protection from unreasonable scrutiny under Article I, section 9, and State v. Chinn, supra, provides authority for such a standard.

The Eleventh Circuit test of whether a reasonable officer would have made the seizure in the absence of an illegal motivation is appropriately flexible for police surveillance, because it allows any traffic stop that is conducted in accordance with standard police practices. Once a deviation from such practices is noted, then the proper question is whether objective circumstances create an illegal pretext for the stop.

Stopping defendant shortly after the officers saw him speeding might have constituted normal police practice. Seeing a traffic infraction, following the offender a number of miles to an apartment, watching him stop the vehicle and enter and leave an apartment, continuing to follow him and then making the traffic stop is not the manner in which a reasonable officer would have conducted a stop for speeding in the absence of an impermissible motivation. The officers admit that their purpose in stopping the vehicle was “intelligence gathering” about drug activity. Not having a reasonable suspicion basis to stop defendant to investigate drug *391activity, they waited until after he visited an apartment where drugs may have been bought or sold and used the traffic stop as an unconstitutional pretext.

The majority is wrong even under the Supreme Court’s interpretation of the Fourth Amendment. Comparing the facts in State v. Tucker, supra, to those of a Ninth Circuit pretext case, Taglavore v. United States, 291 F2d 262 (9th Cir 1961), the Supreme Court noted that, in Tucker, the police made an on-the-spot stop of the traffic violator immediately after they observed the offense, whereas, in Taglavore, the police deliberately delayed serving a warrant for a minor traffic offense until they believed that the defendant was carrying drugs. State v. Tucker, supra, 286 Or at 296 n 9. In State v. Carter/Dawson, supra n 1, 287 Or at 479, the court noted that the police had followed the vehicle for a mile after observing the speeding violation and that the officer had testified that there was no good place to pull over within that mile. The court concluded that, under “normal circumstances,” the police may follow a vehicle, see a traffic violation and conduct a stop. 287 Or at 485. In this case the police did not stop defendant immmediately or at their first convenient opportunity. There was not a “normal” traffic stop, and it violated Article I, section 9.

The court rejected a standard that Judge Tanzer offered in his dissent in State v. Carter/Dawson, 34 Or App 21, 28, 578 P2d 790 (1978), that stated that evidence of other crimes discovered during a traffic stop should be excluded during a traffic stop if either “(1) the officer would have made the stop for that violation even if he did not suspect possible criminal activity and want to investigate further; or (2) the officer had grounds for reasonable suspicion of criminal activity which would justify a stop without regard to the traffic offense.” State v. Tucker, supra, 286 Or at 494.

See, e.g., U.S. v. Trigg, 878 F2d 1037, 1040 (7th Cir 1989); U.S. v. Guzman, 864 F2d 1512, 1515 (10th Cir 1988); U.S. v. Hawkins, 811 F2d 210 (3rd Cir 1987); United States v. Smith, 799 F2d 704, 708 (11th Cir 1986).

The court in U.S. v. Baker, supra, noted, however, that traffic violations are criminal conduct sufficient for an investigative stop. A traffic infraction is not a crime in Oregon. ORS 161.515(1); ORS 153.615.