The rights of citizens during traffic stops are often an issue in criminal cases, and are also frequently the topic of motions to suppress and appellate court opinions in Oregon. Here I will describe the framework that law enforcement agents must work within while investigating people in during a traffic stop.
At the outset, there are a couple definitions that are necessary to understanding what officers can do during interactions with people:
- Probable cause – Exists when there is “a substantial objective basis for believing that more likely than not an offense has been committed and a person to be arrested has committed it.” ORS 131.005(11).
- Reasonable suspicion – Exists if the officer subjectively suspects that an individual has committed, or is about to commit, a crime, and that belief is “objectively reasonable under the totality of the circumstances.” State v. Ehly, 317 Or 66, 79, 854 P3d 421 (1993).
A traffic stop for the purpose of investigating a noncriminal traffic violation (such as speeding or run a red light) must be based on probable cause that the violation occurred. Once any such violation is addressed – by writing a ticket, issuing a warning, etc. – the stop must be concluded, and the driver permitted to leave. A noncriminal traffic stop may only be extended to investigate unrelated criminal conduct if the officer reasonably suspects that the person stopped has committed a crime or poses a threat to the officer’s safety. State v. Steffens, 250 Or App 742, 747-48 (2012). A law enforcement officer may not “extend the duration of a traffic stop by inquiring into unrelated matters” but may inquire into unrelated matters “during an unavoidable lull” in the processing of a traffic stop. State v. Dennis, 250 Or App 732, 740 (2012).
In cases where a noncriminal traffic stop is extended to investigate potential criminal activity, the issue then becomes whether the officer had reasonable suspicion that the driver, or another person in the car, has committed, or is about to commit, a crime. Whether there is reasonable suspicion depends on the “totality of the circumstances,” so each situation is decided on a case-by-case basis. Below is a list of circumstances that the Oregon courts have determined are relevant to determining whether an officer had reasonable suspicion to extend a stop:
- Presence in a high drug activity area. State v. Bertsch, 251 Or App 128, 134 (2012) (relevant, but not adequate on its own to give rise to reasonable suspicion).
- Immediate exit from the vehicle after the stop. State v. McHaffie, 271 Or App 379, 386-87 (2015).
- Nervous and fidgety behavior, if it is consistent with the suspected crime. State v. Holdorf, 355 Or 812, 814 (2014).
- Evidence of past drug use or conviction for prior related crime. State v. Ehly, 317 Or 66, 79, 854 P3d 421 (1993) (relevant, but not adequate on its own to give rise to reasonable suspicion).
- Furtive (nervous, secretive) movements toward a place wear contraband could be hidden. State v. McHaffie, 271 Or App 379, 386-87 (2015).
- Attempting to conceal items while checking to make sure the officer is not watching. State v. Frias, 836 P2d 1367, 115 Or App 149 (1992)
This is a non-exhaustive list of factors the courts may consider when determining whether there was reasonable suspicion to extend a traffic stop. An officer may consider these factors, or any other observation that, in his or her experience, suggests criminal activity, in developing reasonable suspicion. Any single factor may not be sufficient on its own to create reasonable suspicion, but is relevant to determining whether reasonable suspicion exists under the “totality of the circumstances.”