STATE OF OREGON JOSEPH LUCIO JIMENEZ S062473

Transcription

1 March 12, 2015 STATE OF OREGON v. JOSEPH LUCIO JIMENEZ S062473

2 State of Oregon v. Joseph Lucio Jimenez, 263 Or App 150, 326 P3d 1222 (2014) (A148796) (S062473) (on review from the Multnomah County Circuit Court) The State of Oregon has been granted review of a Court of Appeals decision that reversed and remanded the conviction of defendant Joseph Lucio Jimenez for unlawful possession of a firearm, based on the appellate court's determination that the trial court had erred in denying defendant's motion to suppress evidence. On review, the issues are: (1) During a traffic stop, is a question about the presence of weapons "unrelated" to the traffic stop so that if an officer asks about the presence of weapons in the absence of reasonable suspicion and in a way that extends the duration of the stop, the officer has violated the defendant's rights to be free from unreasonable searches and seizures under Article I, section 9, of the Oregon Constitution? (2) Alternatively, even if a question about the presence of weapons is unrelated to the basis for the traffic stop, is such a question nonetheless "reasonable" under Article I, section 9, of the Oregon Constitution?

3 December 12, :20 AM IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, Petitioner on Review, v. JOSEPH LUCIO JIMENEZ, aka Joseph L. Jimenez, Defendant-Appellant, Respondent on Review. Multnomah County Circuit Court No CA A SC S BRIEF ON THE MERITS OF PETITIONER ON REVIEW, STATE OF OREGON Review of the decision of the Court of Appeals on appeal from a judgment of the Circuit Court for Multnomah County, Honorable CHRISTOPHER J. MARSHALL, Judge Opinion Filed: May 21, 2014 Author of Opinion: Schuman, S.J. Concurring Judges: Duncan and Wollheim, JJ. PETER GARTLAN # Chief Defender Office of Public Defense Services ANNE FUJITA MUNSEY # Deputy Public Defender 1175 Court St. NE Salem, Oregon Telephone: (503) anne.k.munsey@opds.state.or.us Attorneys for Respondent on Review ELLEN F. ROSENBLUM # Attorney General ANNA M. JOYCE # Solicitor General 1162 Court St. NE Salem, Oregon Telephone: (503) anna.joyce@doj.state.or.us Attorneys for Petitioner on Review 12/14

4 TABLE OF CONTENTS STATEMENT OF THE CASE... 1 Question Presented...1 Proposed Rule of Law...2 Statement of Facts...2 SUMMARY OF ARGUMENT... 6 ARGUMENT... 8 A. This court s recent case law reveals that inquiries about the presence of a weapon during the course of a lawful traffic stop are permissible when they are related to processing the stop or are reasonable in the totality of the circumstances....9 B. Inquiring about the presence of weapons in the course of a lawful and ongoing traffic stop is related to processing that traffic stop and therefore reasonable...19 C. Even if inquiries about the presence of weapons are not related to the traffic stop, such inquiries are still reasonable under Article I, section 9, because they are brief, minimally intrusive, and serve to protect officer safety CONCLUSION TABLE OF AUTHORITIES Cases Cited Arizona v. Johnson, 555 US 323, 129 S Ct 781, 172 L Ed 2d 694 (2009)...19 Lockett v. State, 747 NE 2d 539 (Ind 2001)...26 Maryland v. Buie, 494 US 325, 110 S Ct 1093, 108 L Ed 2d 276 (1990)...20 Maryland v. Wilson, 519 US 408, 117 S Ct 882, 137 L Ed 2d 41 (1997)... 19, 24 Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983)...19 i

5 Pennsylvania v. Mimms, 434 US 106, 98 S Ct 330, 54 L Ed 2d 331 (1977)... 24, 25 People v. Orovitz, No. F043522, 2004 WL (Cal Ct App 2004)...26 State v. Amaya, 336 Or 616, 89 P3d 1163 (2004)... 17, 21 State v. Backstrand, 354 Or 392, 313 P3d 1084 (2013)... 12, 13, 16, 17, 23 State v. Davis, 295 Or 227, 666 P2d 802 (1983)...18 State v. Fair, 353 Or 588, 302 P2d 417 (2013)... 15, 16, 17, 22 State v. Jenkins, 298 Conn 209, 3 A3d 806, 832 (2010)...26 State v. Jimenez, 263 Or App 150, 326 P3d 1222 (2014)...5 State v. Leyva, 149 NM 435, 250 P3d 861 (2011)...26 State v. Ramirez, 145 Idaho 886, 187 P3d 1261 (Ct App 2008)...26 State v. Rodgers, 219 Or App 366, 182 P3d 209 (2008), aff d sub nom, State v. Rodgers/Kirkeby...12 State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010)... 5, 6, 8, 9, 12, 13, 16 State v. Steffens, 250 Or App 742, 282 P3d 888 (2012)...11 State v. Unger, 356 Or 59, 333 P3d 1009 (2014)...18 State v. Watson, 353 Or 768, 305 P3d 94 (2013)... 13, 15, 16, 21 United States v. Chaney, 584 F3d 20 (1st Cir 2009)...26 United States v. Derverger, 337 F App'x 34 (2d Cir 2009)...25 ii

6 United States v. Everett, 601 F3d 484 (6th Cir 2010)...25 United States v. Kemp, 214 F App'x 127 (3d Cir 2007)...26 United States v. Mendez, 476 F3d 1077 (9th Cir 2007)...25 United States v. Purcell, 236 F3d 1274 (11th Cir 2001)...25 United States v. Rivera, 570 F3d 1009 (8th Cir 2009)...25 United States v. Taylor, 596 F3d 373 (7th Cir 2010)...25 United States v. Valenzuela, 494 F3d 886 (10th Cir. 2007)...25 Constitutional & Statutory Provisions Or Const Art I, , 2, 5, 7, 8, 9, 10, 11, 12, 15, 16, 17, 18, 21, 22 ORS ORS ORS (3)(b)...16 ORS (3)(d)... 20, 23 ORS (1)...2, 5 ORS (3)...2, 5 US Const Amend IV... 18, 24, 25 iii

7 BRIEF ON THE MERITS OF PETITIONER ON REVIEW, STATE OF OREGON STATEMENT OF THE CASE This case presents a question that this court has explicitly and repeatedly left open: whether the Oregon constitution permits officers conducting traffic violation investigations to protect themselves against the potential harms inherent in such stops by asking the detained individual whether she or he has a weapon. The Court of Appeals, openly struggling to understand this court s Article I, section 9, case law, said no. The court determined that in the absence of reasonable suspicion, an officer s question about the presence of weapons violated Article I, section 9, unless the inquiry occurs during an unavoidable lull in the traffic stop. But this court s case law does not constrain officers to that degree. This court has construed Article I, section 9, as putting some limits on an officer s ability to ask questions during a traffic stop. Yet those constraints are not so pervasive as to prohibit officers from making brief inquiries about the presence of weapons to ensure both their safety and the safety of those involved in the traffic investigation. Question Presented During a traffic stop, is a line of inquiry about the presence of weapons reasonably related to processing the stop such that it falls within police

8 2 authority to detain persons for traffic infractions and therefore comports with Article I, section 9 prohibition against unreasonable searches and seizures? Alternatively, even if questions about the presence of weapons are not directly related to processing the traffic stop, are such inquiries nonetheless reasonable under Article I, section 9? Proposed Rule of Law In the traffic-stop context, police inquiries about the presence of weapons are related to processing the traffic stop; part and parcel of conducting a traffic stop is ensuring that the officer is able to process the stop safely. Moreover, giving due regard to the practical necessities of law enforcement and the individual s liberty interests, a line of inquiry about the presence of weapons will generally be reasonable under Article I, section 9. Statement of Facts Oregon State Police Trooper Caleb Borchers was in his cruiser, mid-day, patrolling the area near 122 nd and Division in Southeast Portland. (Tr 7-8, 35-37). The trooper knew the area was high crime, and home to gang activity[.] (Tr 13). Trooper Borchers saw defendant cross the street against a Don t Walk signal. (Tr 8). He concluded that defendant had committed the traffic violation of failing to obey a traffic control device. ORS (1), (3); (Tr 8).

9 3 Trooper Borchers turned his cruiser around and headed back to defendant s location. (Tr 8-9). He saw that defendant was seated at a bus stop. (Tr 9). When Trooper Borchers pulled his cruiser over near defendant, defendant looked over at him and immediately got up and began to walk away. (Tr 9, 25). The trooper honked his horn and motioned for defendant to come back to him, and defendant complied. (Tr 9). The trooper was in uniform, and he had activated the overhead lights on the cruiser at the time he stopped defendant. (Ex 1; Tr 12-13). The trooper was alone when he stopped defendant. (Tr 15). He observed that defendant wore an oversized, puffy black jacket, a hoodie sweatshirt with the hood up, very large, baggy gray pants, and white tennis shoes. (Tr 13; Ex 1). Trooper Borchers was not sure that defendant was affiliated with a gang, but he did know that gang members often will wear gray baggy pants and the white shoes[.] (Tr 11). He also knew that [w]ith that big baggy of clothes, I have * * * an idea what he s got under it and [it s] easy to conceal a multitude of weapons[.] (Tr 26). [M]ultiple people had stopped to watch the trooper s encounter with defendant and they were in very close proximity ; the trooper did not know if they were rival gang members, and he was afraid of being attacked or being caught in crossfire or something. (Tr 12-14, 18). Defendant s clothing, combined with the area and the other people nearby,

10 4 caused the trooper to be concerned that defendant might be an armed gang member who might pose a danger to his safety. (Tr 11). When defendant approached, Trooper Borchers explained that he had stopped defendant for crossing against the signal. (Tr 9). He asked defendant about the circumstances, and defendant explained that he had thought it was acceptable to cross the street when he did. (Tr 9). Immediately afterward, the trooper asked defendant if he was armed. (Tr 10; Ex 1). He did so for officer safety reasons. (Tr 10). Trooper Borchers explained that he routinely asks about weapons when he encounters pedestrians; he also stated, as shown above, that the area, onlookers, and defendant s appearance had caused him to be particularly concerned for his safety in this situation. (Tr 10-14, 26, 44). In response to the trooper s inquiry about weapons, defendant said that he had a gun in his right front pants pocket. (Tr 10; Ex 1). Without being asked, defendant separated his feet, leaned forward, and put his hands on the patrol car. (Tr 10). The trooper placed defendant in handcuffs, for his safety and for defendant s safety. (Tr 12). He asked defendant if he had a license to carry the gun, and defendant replied that he did not. (Tr 12). The trooper unzipped defendant s jacket, patted defendant down, felt the gun, and opened defendant s pants pocket and visually confirmed the presence of the gun. (Tr 14-16; Ex 1). The state charged defendant with one count of unlawful possession of a firearm and one count of possessing a loaded firearm in public. (ER 1).

11 5 Defendant moved to suppress evidence of the firearm and ammunition that Trooper Borchers found on defendant, arguing that the trooper had unlawfully extended the traffic stop when he asked defendant about the presence of weapons. (ER 3). The trial court denied the motion to suppress, finding that the trooper s inquiry and the pat-down fell within the officer-safety exception to the warrant requirement. (Tr 72). Defendant appealed, and the Court of Appeals reversed. State v. Jimenez, 263 Or App 150, 326 P3d 1222 (2014). The court began by observing that this court s decision in State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), which sets forth the controlling Article I, section 9, principles for police conduct during traffic stops, contains contrary directives. 1 Jimenez, 263 Or App at 154. On one hand, it states that verbal inquiries, even if unrelated to the reason for the traffic stop, are not searches and seizures. Id. On the other hand, this court observed that traffic stops, unlike encounters between individuals and officers on the street, involve a show of authority because the person stopped 1 The court noted that both defendant and the state agreed that the stop was a traffic stop for crossing against a stop light, a Class D violation under ORS (1), (3). Although not a traffic stop involving a vehicle, crossing against a stop light is specifically defined as a traffic violation, see ORS (3), and falls within the definition of a traffic violation as defined in the Oregon Vehicle Code. See ORS Thus, the events in this case are subject to the same kinds of restraints placed on investigations of non-criminal offenses, whether for a traffic violation involving a car or a pedestrian.

12 6 for a traffic violation cannot unilaterally terminate the encounter and leave. Id. at The Court of Appeals ultimately concluded that when a person is approached by a police officer whether the person is in an automobile, on a bicycle, or on foot for committing a noncriminal traffic violation, and the police officer and the person know that is the basis for the stop, then the officer who has approached the person must proceed to process the traffic violation, and may not launch an investigation into unrelated matters unless the inquiries are justified by reasonable suspicion of the unrelated matter, the inquiry occurred during an unavoidable lull in the citation-writing process, or some exception to the warrant requirement applies. Id. at 157. The court then held that because the questioning about weapons did not occur during an unavoidable lull while processing the traffic stop, and the officer did not have reasonable suspicion of another crime in addition to the violation, the officer s question violated Article I, section 9. 2 Id. at SUMMARY OF ARGUMENT Based on this court s decision in Rodgers/Kirkeby, the Court of Appeals concluded that officers conducting a traffic violation investigation cannot ask about the presence of weapons in the absence of reasonable suspicion and 2 The court also held that the facts of the case did not provide a basis for the officer s actions under the officer-safety exception. 263 Or App at The state does not challenge that ruling here.

13 7 when not asked during an unavoidable lull without running afoul of Article I, section 9 s prohibition against unreasonable seizures. But neither Article I, section 9, nor this court s case law compels that conclusion. This court has articulated two distinct, but somewhat overlapping, categories of constitutionally permissible questioning during traffic violation investigations: questions that are related to the traffic violation investigation and questions that are reasonable when giving due regard to the necessities of law enforcement and the individual liberties at play. Asking about the presence of weapons during the course of a traffic violation investigation is both related to the investigation and otherwise reasonable when considering law enforcement needs and individual liberties. Asking a person stopped for a traffic violation whether she or he has a weapon is related to the processing of the traffic stop in a way that maintains the safety of those involved. An officer s control over a traffic stop is significantly enhanced by knowing whether the person that the officer is dealing with has a weapon. With that knowledge, the officer can make intelligent safety-related decisions about how to proceed with the stop in a way that ensures the safety of the officer, the stopped individual, and any people in the vicinity of the stop. Similarly, inquiries about the presence of weapons satisfy the general reasonableness inquiry. Such inquiries, which are necessary to ensure safety,

14 8 are typically minimally intrusive. The asking and answering, as reflected in this case, takes only moments and thus does not meaningfully extend the seizure of the motorist or otherwise interfere with the motorist s liberty interests. Thus, giving due consideration to both law enforcement s need to protect everyone involved in the traffic stop and the liberty interests of the stopped individuals, questioning about the presence of weapons is reasonable as Article I, section 9, contemplates that term. ARGUMENT In State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010), this court outlined the general constitutional limitations on police conduct during a routine traffic stop. But this court did not have the opportunity to answer the question presented here: whether inquiries about the presence of weapons in the due course of the traffic stop are constitutional. Although this court s decision in Rodgers/Kirkeby might, as the Court of Appeals noted, point simultaneously and with equal vigor in different directions as to the answer to that question, this court s cases that have followed Rodgers/Kirkeby and that have built upon its foundation demonstrate that inquiries about the presence of weapons during the course of a lawful traffic stop are constitutional under Article I, section 9.

15 9 A. This court s recent case law reveals that inquiries about the presence of a weapon during the course of a lawful traffic stop are permissible when they are related to processing the stop or are reasonable in the totality of the circumstances. Beginning with Rodgers/Kirkeby, this court has recently decided four cases that address the constitutionality of police inquiries of citizens who are the subject of a noncriminal detention. Because those cases create the legal backdrop against which the question presented here will be resolved, the state begins by describing those cases in some detail. As elaborated upon below, two principles central to this court s answer to the question presented here emerge from those cases. The first is that questions that are related to processing the traffic stop are permissible under Article I, section 9. The second is that, even if questions asked during the course of the traffic stop are not related to processing the stop, that unrelated questioning does not without more render the questions unconstitutional. In Rodgers/Kirkeby, officers stopped the defendant Rodgers for driving a vehicle with a burned-out license plate light. 347 Or at 613. He provided the officer with a valid driver license and vehicle registration, but was unable to provide proof of insurance. Id. After Rodgers explained that he had borrowed the vehicle and was driving it with the owner s permission, the officer returned to his patrol car and radioed a request for a records check. Id. at 614. When the records check had come back clear (at which point there was a sufficient

16 10 basis only to issue [Rodgers] a traffic citation ), the officer returned to Rodgers s vehicle and, rather than issuing a citation, began questioning him about items in the vehicle. Id. Similarly, police stopped the defendant Kirkeby for driving while suspended. As soon as the officer pulled him over, Kirkeby got out of his car and walked towards the officer. Id. at 615. The officer told him the reason for the stop, and he handed the officer an Oregon driver s license. At that point, the officer had all of the information necessary to complete a traffic citation. The officer asked Kirkeby whether he had any weapons, and Kirkeby said that he did not. Id. at 616. The officer then asked for consent to conduct a patdown, and after conducting that patdown, asked for consent to examine each of the items he had felt in Kirkeby s pockets. Id. This court was first careful to note that that officer s single inquiry about weapons was not at issue in the case and therefore did not address whether that weapons-based inquiry ran afoul of Article I, section 9. Id. at However, this court ultimately held that the officers unlawfully extended the traffic stops in each case. This court began by noting the axiomatic principle that verbal inquiries, without more, do not implicate Article I, section 9, because they are not searches or seizures, and thus police inquiries during the course of a traffic stop (including requests to search a person or vehicle) are not searches and seizures. Id. at 622. Equally axiomatically, this court explained

17 11 that police conduct that involves physical restraint or a show of authority that restricts an individual s freedom of movement typically does implicate Article I, section 9. Id. This court then went on to hold that although questions and conduct unrelated to the traffic stop are not per se unconstitutional, when combined with physical restraint or a police show of authority, [those unrelated questions and conduct] may result in a restriction of personal freedom that violates Article I, section 9. Id. at 624 (emphasis added). The court concluded that [o]ther or further conduct by the police, beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation. Id. at 623. However, this court took care to emphasize that the restriction of movement that implicated Article I, section 9, as to both defendants in that case occurred after the police officers had completed their investigations reasonably related to the traffic infraction and issuance of the citation. 3 Id. at 627 n5. 3 This court expressed no opinion about the effect of unrelated police inquiries that occur during the course of the traffic violation and that do not result in any further restriction of movement of the individual. Id. at 627 n5. The Court of Appeals addresses those kinds of inquiries under what it refers to as the unavoidable lull doctrine. That is, questions asked while the officer is processing the traffic stop, such as during a check on license status or while obtaining insurance information, do not implicate Article I, section 9 because they do not create any further restriction on the stopped individual s freedom of movement by extending the duration of the stop. See State v. Steffens, 250 Or App 742, 747, 282 P3d 888 (2012) ( During an unavoidable lull in [the traffic violation] investigation, such as while awaiting the results of a records check, Footnote continued

18 12 In State v. Backstrand, 354 Or 392, 313 P3d 1084 (2013), this court reiterated that the officers questioning and conduct in Rodgers/Kirkeby ran afoul of Article I, section 9, because it occurred when the traffic stop was or should have been over. In Backstrand, this court was called upon to determine a more preliminary question, namely, whether questions by officers constituted a seizure under Article I, section 9. This court reiterated that questions in and of themselves are not seizures. Id. at 403. Instead, in determining whether an officer s conduct or questioning amounted to a seizure, courts must consider whether the manner or content of the questions, accompanying physical acts, and other surrounding circumstances convey to a reasonable person that police are exercising their authority to detain the individual. Id. at In reaching that conclusion, this court explained its decision in Rodgers/Kirkeby. This court noted that in both cases, a factor critical to the court s analysis was that the officers authority to detain the individuals had come to an end. That is, ( continued) an officer is free to question [the person] about matters unrelated to the traffic infraction. (second alteration in original) (quoting State v. Rodgers, 219 Or App 366, 372, 182 P3d 209 (2008), aff d sub nom, State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010)). The question about weapons asked here did not occur during an unavoidable lull; rather, the question presented is whether an unrelated line of inquiry, undertaken not during an unavoidable lull and not when the stop was or should have been over, is nonetheless constitutional.

19 13 the problem in Rodgers/Kirkeby was that the unrelated inquiries at issue were not in the due course of the traffic stop, but came afterwards that is, they came at a point when the officers no longer had authority to detain the defendants. * * * [W]hen the officers in both cases, after completing the investigation of the traffic offenses, asked unrelated question and asked for consent to search, but did not tell the defendants that they were free to leave, those verbal inquiries communicated a continuation of the traffic stop, even though the officers no longer had authority to detain. In that distinctive context, the verbal inquiries alone continued the seizures, and continuation of the seizures was unlawful. Backstrand, 354 Or at Backstrand thus emphasized that the constitutional problem in Rodgers/Kirkeby was not that the officers unrelated questions somehow dissolved the officer s authority to detain the defendants. Nor was the problem that traffic stops inherently involve a degree of force or restraint that renders any questions or conduct not directly related to processing the stop unconstitutional. Rather, the problem was that the officer had asked unrelated questions after the traffic stops were over, and thus during a period of time that the officers had no authority to detain the defendants. Rodgers/Kirkeby does not stand for the broader proposition (as the Court of Appeals in this case apparently concluded) that any inquiry undertaken in the due course of the stop but unrelated to processing the traffic stop is necessarily unconstitutional. This court most recently addressed the permissible scope of questioning during a traffic stop in State v. Watson, 353 Or 768, 305 P3d 94 (2013). There, an officer lawfully stopped the defendant to investigate a traffic violation. The

20 14 officer decided to issue the defendant a warning, but nonetheless asked for the defendant s license, registration, and proof of insurance. The officer then contacted dispatch and asked for a record and warrants checks. Id. at 770. While those checks were pending, the officer asked the defendant to step out of his car. The officer and the defendant engaged in conversation, and another officer arrived at the scene. The second officer detected the smell of marijuana emanating from the car. The defendant admitted that he had marijuana in his car, the officers searched the car, and found items that ultimately led to the defendant s arrest. Id. at The defendant moved to suppress, arguing that the traffic stop s intensity and duration rendered it unconstitutional. Id. at 771. This court started from the premise that both Article I, section 9, and Oregon s statutes require that officers have a legal justification for temporarily detaining someone and that the officer s activities during that detention be reasonably related to that investigation and reasonably necessary to effectuate it. Id. at 781; see also ORS (allowing officers to stop and detain for the purposes of investigation reasonably related to the traffic violation, identification and issuance of citation ). This court then concluded that the records check that the officer performed was reasonably related to the traffic violation investigation because it enabled him to verify that the defendant had valid driving privileges.

21 15 Id. at Watson thus recognized the familiar principle that Article I, section 9, permits officers to engage in actions that are reasonably related to the traffic violation investigation. One final case State v. Fair is significant to the backdrop against which this case must be resolved. 353 Or 588, 302 P2d 417 (2013). Fair did not involve a traffic stop, but this court nonetheless addressed the constitutionality of questions that officers asked of an individual seized for an otherwise lawful purpose. More specifically, this court addressed the limits on officers ability to question an individual that they had seized because they believed that person might be a witness to, or a victim of, a crime. Id. at 590. Noting the fundamental principle that Article I, section 9, embodies reasonableness this court held that Article I, section 9, permits officers to detain someone whom they reasonably suspect has material information about a crime: Knowing the identity of and the information to be provided by a witness to or a victim of a crime is as fundamental to our criminal justice system as is apprehension of a potential offender. Id. at Thus, a due regard for the practical necessities of effective law enforcement, considered in tandem with a due regard for a person s protected 4 This court twice noted that it was not deciding the issue presented here, namely, the constitutionality of questions unrelated to and asked during the course of a lawful seizure. Id. at 779 n 13, 784 n 18.

22 16 liberty interests, permits officers to conduct a brief, informal investigatory detention of a potential material witness upon reasonable suspicion. Id. This court explained that the officers warrant check and question about the defendant s arrest history did not exceed the constitutional scope of the stop because they were reasonably related to the purpose of the detention, i.e., to investigate a potential crime. This case which involves a question about the presence of a weapon asked in the due course of a lawful traffic stop does not fit neatly under the analysis from any one of these cases. Unlike Rodgers/Kirkeby, where the unrelated questions were asked after the traffic stops were concluded, the weapons-based inquiry here was asked at the outset of the traffic stop. Unlike Fair, officers did not suspect defendant of being a material witness, and unlike Backstrand, the question is not whether officers seized defendant by executing a traffic stop (clearly, they had). And unlike Watson, this case does not involve a records or warrant check. Nonetheless, two essential principles emerge from those cases that inform the question presented here. The first principle is that questions that are related to processing the stop are permissible under Article I, section 9. E.g., Watson, 353 Or at 781; see also ORS (3)(b) (codifying that same principle).

23 17 The second principle is that questions asked in the due course of an investigative detention even if unrelated to the stop implicate Article I, section 9, only when they are unreasonable. That is, questions that are related to processing the stop do not encompass the entire universe of constitutionally permissible questioning during traffic stops. Unrelated questions are not per se unconstitutional. See, e.g., Backstrand, 354 Or at (verbal inquiries made in the due course of and unrelated to traffic stop are not unconstitutional per se); accord State v. Amaya, 336 Or 616, 626, 89 P3d 1163 (2004) (rejecting argument that every question by an officer that is unrelated to the reason for a valid traffic stop violates Article I, section 9 ) (emphasis in original). Rather, the constitutionality of those questions unrelated to the stop must be assessed by reference to their reasonableness. As Fair instructs, determining the reasonableness of police conduct requires giving due regard for both the necessities of law enforcement and individual liberty. 353 Or at To be sure, the same question animates both those principles: whether the officer s actions are unreasonable as Article I, section 9, contemplates that term. But this court has nonetheless created two distinct analytical paths to answer that question in the context of a lawful traffic stop. Questions that are related to processing the traffic stop are, in a sense, per se reasonable under Article I, section 9 and require no additional justification or examination of their reasonableness. But questions that are not related to processing the traffic

24 18 stop require a more fact-bound inquiry into whether, despite being unrelated to the stop, the line of questioning is nonetheless reasonable, balancing due regard to the practical necessities of law enforcement and individual liberties. 5 Applying those analytical paths here, questioning about the presence of weapons during the course of an ongoing traffic stop is constitutionally reasonable because it is related to processing the stop or, if not related to the stop in that way, is otherwise reasonable, as Article I, section 9, contemplates that term. 5 The test developed for Fourth Amendment purposes one that focuses on whether the question measurably extended the stop is similar to the one under Article I, section 9. Whether the question measurably extends the stop takes into account the need for officers to take steps to safely process the traffic stop yet protects individuals from being detained for an unreasonable length of time. The similarity in tests is likely a reflection of the fact that both constitutions embrace reasonableness as their touchstones. For many years, this court embraced an Article I, section 9, analytical framework that was distinct, perhaps intentionally so, from the Fourth Amendment. State v. Davis, 295 Or 227, 235, 666 P2d 802 (1983). But in recent years, this court has, with increasing frequency, looked to the Fourth Amendment and has adopted its analysis either in part or in whole for purposes of determining the constitutionality of actions that implicate Article I, section 9. E.g., State v. Unger, 356 Or 59, 333 P3d 1009 (2014). However, it appears that in this context, the Fourth Amendment test is consonant with the Article I, section 9, test.

25 B. Inquiring about the presence of weapons in the course of a lawful and ongoing traffic stop is related to processing that traffic stop and therefore reasonable. 19 An officer asking an individual stopped for a traffic violation whether she or he has a weapon is related to the processing of a safe traffic stop. The inherent dangers to an officer in a traffic stop are undeniable. As the United States Supreme Court observed, at least in the context of vehicle traffic stops, traffic stops are especially fraught with danger to police officers. Arizona v. Johnson, 555 US 323, 330, 129 S Ct 781, 172 L Ed 2d 694 (2009) (quoting Michigan v. Long, 463 US 1032, 1047, 103 S Ct 3469, 77 L Ed 2d 1201 (1983)). The Court explained that the risk of violence during traffic stops stems * * * from the fact that evidence of a more serious crime might be uncovered during the stop, Johnson, 555 US at 331 (quoting Maryland v. Wilson, 519 US 408, 414, 117 S Ct 882, 137 L Ed 2d 41 (1997)). That risk of violence also stems from the possibility that the stopped individual is wanted and may be arrested for a more serious offense. The risk of harm to both the police and [the detained individual] is minimized * * * if the officers routinely exercise unquestioned command of the situation. Id. at 330 (quoting Wilson, 519 US at 414). 6 6 Although Johnson and Wilson involved traffic stops of motorists, parallel dangers inhere to officers stopping a pedestrian for a traffic violation. See, e.g., Maryland v. Buie, 494 US 325, 334, 110 S Ct 1093, 108 L Ed 2d 276 Footnote continued

26 20 Thus, for obvious safety reasons, an officer should have the opportunity in an already inherently dangerous situation to ask whether the subject of a traffic stop has a weapon, something that would make the situation even more dangerous. Framed slightly differently, an officer s control over a traffic stop is significantly enhanced by knowing whether the person that the officer is dealing with has a weapon. With that knowledge, the officer can make intelligent safety-related decisions about how to proceed with the stop in a way that ensures the safety of the officer, the stopped individual, and any people in the vicinity of the stop. Inquiries about weapons are not aimed at launching a criminal investigation, as the Court of Appeals concluded, but rather is related to the processing of the traffic stop in a way that maintains the integrity of the safety of those involved. The legislature has reached the same conclusion: that a line of inquiry about the presence of weapons is part and parcel of conducting a safe traffic stop. ORS (3)(d) permits a police officer to make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including ( continued) (1990) (recognizing the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety ). Like stops of individuals suspected of committing traffic violations in cars, those dangers include the reaction of the person stopped, the fact that evidence of a more serious crime might be uncovered during the stop, and the officer s need to command the situation.

27 21 an inquiry regarding the presence of weapons. As this court has already noted, that statute was intended to codify the constitutional limitations of Article I, section 9. Watson, 353 Or at 776. Although this court cannot rest its constitutional decision on that statutory provision, it nonetheless reflects the legislature s belief that inquiries about the presence of weapons are related to an officer being able to conduct a safe traffic stop. And, this court has already expressed an unwillingness to deem that statute unconstitutional. Amaya, 336 Or at 626. In short, the prevailing weight of constitutional and statutory authority compels the conclusion that questions about the presence of weapons are reasonably related to the safe investigation of a traffic violation. Therefore, an officer may lawfully ask about the presence of weapons in the due course of a lawful traffic stop, and that line of inquiry is permissibly within the scope of a routine traffic stop. Applying that framework here, Trooper Borchers lawfully stopped defendant for a traffic violation. He asked defendant about the circumstances giving rise to the traffic stop, and defendant explained that he had thought it was acceptable to cross the street when he did. (Tr 9). Trooper Borchers then, for safety-related reasons, asked defendant if he was armed. In response to the trooper s inquiry about weapons, defendant said that he had a gun in his right front pants pocket. The trooper s question served the exact purpose for which it

28 22 was intended, and demonstrates how inquiries about weapons are related to the safe processing of a traffic violation and therefore constitutional. C. Even if inquiries about the presence of weapons are not related to the traffic stop, such inquiries are still reasonable under Article I, section 9, because they are brief, minimally intrusive, and serve to protect officer safety. Even if this court rejects the premise that questions about the presence of weapons are part and parcel of a lawful traffic stop, this court s inquiry is not at an end. Instead, and as discussed above, unrelated questions in the course of a traffic stop are not necessarily unconstitutional. Instead, this court must determine whether the unrelated questions were nonetheless reasonable so as to stay within the confines of Article I, section 9. Reasonableness is, of course, a term that defies precision. But it necessarily entails, as this court recently explained, both due regard for the practical necessities of effective law enforcement as well as due regard for a person s protected liberty interests[.] Fair, 353 Or at 609. That due regard in turn necessitates consideration of a number of factors in a totality of the circumstances at hand. Although not an exhaustive list, those considerations would include the purpose of the questions, the intensity and duration of the questioning, the scope and level of intrusion of the questions. Each of those factors relates to either the practical necessities of law enforcement (the purpose

29 23 of the questions) while still giving due regard to the individual liberty interests (the intensity, scope, duration, and level of intrusion). 7 In asking an individual who has been stopped for a traffic violation about the presence of weapons, the practical necessities of effective law enforcement are evident, and for many of the same reasons discussed above. As already discussed, traffic stops carry with them the risk for potential danger. Asking about the presence of weapons during the course of a lawful traffic stop helps ensure that the officer can safely process the traffic stop and protect the officer, the driver, and any others nearby. See also (3)(d) (so providing). Consideration of the individual liberty interests at play in this context similarly demonstrates the reasonableness of an inquiry about the presence of weapons during the course of a lawful traffic stop. Inquiries about whether the motorist has a weapon are minimally intrusive. The question itself, at least as phrased in this case, can be answered either yes or no. The asking and answering of the question, again as reflected in this case, takes only moments and thus does not meaningfully extend the seizure of the motorist or otherwise 7 Many of those same considerations are involved in inquiring whether an encounter between an officer and an individual is a seizure in the first instance. E.g., Backstrand, 354 Or at 412. That the factors overlap is simply a reflection of the fact that the legal questions whether a seizure occurred in the first place or whether the questions during a seizure were constitutional are all borne from the same basic premise: whether the officers actions were reasonable.

30 24 interfere with the motorist s liberty interests. In fact, asking the question is the least intrusive means of ensuring that the traffic stop can proceed safely. 8 The majority of courts across the country considering that same question under the Fourth Amendment have similarly concluded that an officer can ask about the presence of weapons so long as that questioning does not measurably extend the traffic stop. Although the United States Supreme Court has yet to explicitly address the question, that court has repeatedly emphasized the importance of giving due weight to officers abilities to conduct traffic stops safely. See, e.g., Pennsylvania v. Mimms, 434 US 106, 110, 98 S Ct 330, 54 L Ed 2d 331 (1977) (officer safety concerns must be given a legitimate and weighty interest ). And the Court has upheld even more intrusive actions during the course of traffic stops. See Wilson, 519 US at (the Fourth 8 To be sure, the facts of this case present an easier application of the balancing inquiry than many cases may present. It is not difficult to imagine a traffic stop where the officer asks the stopped individual whether he or she has a weapon, and then proceeds to ask additional questions about where the person was coming from, where the person is going to, whether the person has any drugs or contraband on his or her person, or whether the individual has been involved in other illegal activity. Whether those kinds of unrelated questions are constitutional is a question that cannot be answered without undertaking a fact-bound inquiry into the circumstances of a particular case. There may certainly be cases where the record reflects a line of unrelated questioning that significantly extends the duration of the traffic stop, that is far afield from the reasons for the traffic stop, and that is not otherwise justified by the necessities of law enforcement. Such cases present a much closer question in terms of whether the unrelated questioning is constitutional.

31 25 Amendment permits officers to order passengers out of the car during a traffic stop); Mimms, 434 US at (the Fourth Amendment permits officers to order the driver out of the car during a traffic stop). Accordingly, other federal and state courts that have directly considered whether the Fourth Amendment permits officers to ask about the presence of weapons (or take other steps aimed at ensuring their safety) during a traffic stop have given great weight to the importance of officer safety in the context of the danger that inheres in traffic stops. Almost uniformly, those courts in determining what is reasonable by considering the need for officer safety and the extent to which the questions about weapons extend the stop have permitted questioning about the presence of weapons so long as the questioning does not measurably extend the duration of the stop. 9 9 See, e.g., United States v. Derverger, 337 F App'x 34, 36 (2d Cir 2009) (five minutes of unrelated questioning did not significantly extend the duration of the stop); United States v. Everett, 601 F3d 484 (6th Cir 2010) (inquiries about weapons and drugs did not measurably extend the stop); United States v. Taylor, 596 F3d 373 (7th Cir 2010) (asking about weapons and drugs absent articulable suspicion did not unreasonably prolong the stop); United States v. Rivera, 570 F3d 1009, 1013 (8th Cir 2009) (asking questions about weapons did not measurably extend the stop); United States v. Mendez, 476 F3d 1077, 1080 (9th Cir 2007) (brief inquiries unrelated to the stop are permitted provided they do not measurably extend the stop); United States v. Valenzuela, 494 F3d 886, 890 (10th Cir. 2007) (asking about weapons unrelated to the stop is justified due to officer safety as long as the questions do not unreasonably extend the stop); United States v. Purcell, 236 F3d 1274 (11th Cir 2001) (viewing the stop in its entirety, the questioning about weapons, drugs, and criminal histories did not unreasonably extend the stop); State v. Ramirez, 145 Footnote continued

32 26 Thus, the prevailing weight of constitutional, statutory, and other-court authority supports the reasonableness of questioning about the presence of weapons, so long as that line of inquiry remains minimally intrusive, is brief in time, and does not otherwise significantly interfere with an individual s liberty interests. The line of inquiry here falls easily within that framework: the question that Trooper Borchers asked defendant fits easily within the rubric of reasonableness. It was a single question asked at the outset of the traffic stop, and for the purpose of protecting the trooper s safety. The question itself did not meaningfully interfere with defendant s liberty interest because it was brief ( continued) Idaho 886, , 187 P3d 1261, (Ct App 2008) ( Brief, general questions about drugs and weapons, in and of themselves do not extend an otherwise lawful detention. ); Lockett v. State, 747 NE 2d 539 (Ind 2001) (asking about a weapon did materially extend the duration of the stop ); State v. Leyva, 149 NM 435, 445, 250 P3d 861, 871 (2011) ( Questions asked for purposes of ensuring officer safety during a stop generally are proper because [w]hen these measures are not too intrusive, the government's strong interest in officer safety outweighs the motorist's interests. ) (internal quotation marks omitted, alteration in original); cf. United States v. Chaney, 584 F3d 20 (1st Cir 2009) (asking for a passenger s identification was constitutionally valid due to officer s concerns for safety and it did not measurably extend the traffic stop); United States v. Kemp, 214 F App'x 127, 131 (3d Cir 2007) (officers may take additional steps that are reasonably necessary to protect their personal safety and to maintain the status quo during the course of the stop ); People v. Orovitz, No. F043522, 2004 WL , at *26 (Cal Ct App 2004) (under the totality of the circumstances, officers can ask questions unrelated to the stop provided the entire stop consumes a reasonable amount of time); State v. Jenkins, 298 Conn 209, , 3 A3d 806, 832 (2010) (holding that an officer asking about illegal items in the car was permissible because it did not measurably extend the traffic stop).

33 and limited in its scope. The question was thus reasonable under Article I, 27 section 9, and this court should therefore reverse the Court of Appeals decision to the contrary. CONCLUSION For the reasons described herein, this court should conclude that the Court of Appeals prohibition on questions about the presence of weapons during a traffic stop finds no basis in the constitution, Oregon s statutes, or this court s case law. To the contrary, such questions permit officers to safely process traffic stops and are reasonable as Article I, section 9 contemplates that term. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General ANNA M. JOYCE Solicitor General /s/ Anna M. Joyce ANNA M. JOYCE # Solicitor General anna.joyce@doj.state.or.us Attorneys for Petitioner on Review, State of Oregon AMJ:aft/

34 NOTICE OF FILING AND PROOF OF SERVICE I certify that on December 12, 2014, I directed the original Brief on the Merits of Petitioner on Review, State of Oregon to be electronically filed with the Appellate Court Administrator, Appellate Records Section, and electronically served upon Peter Gartlan and Anne Fujita Munsey, attorneys for appellant, by using the court's electronic filing system. CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 6,894 words. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(2)(b). /s/ Anna M. Joyce ANNA M. JOYCE # Solicitor General anna.joyce@doj.state.or.us AMJ:aft/ Attorney for Petitioner on Review, State of Oregon

35 February 13, :28 PM IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, Petitioner on Review, v. JOSEPH LUCIO JIMENEZ, aka Joseph L Jimenez, Multnomah County Circuit Court Case No CA A SC S Defendant-Appellant Respondent on Review. RESPONDENT S BRIEF ON THE MERITS Review of the decision of the Court of Appeals on an appeal from a judgment of the Circuit Court for Multnomah County Honorable Christopher J. Marshall, Judge Opinion Filed: May 21, 2014 Author of Opinion: Schuman, S. J. Concurring Judges: Duncan and Wollheim, JJ PETER GARTLAN # Chief Defender ANNE FUJITA MUNSEY # Senior Deputy Public Defender Office of Public Defense Services 1175 Court Street NE Salem, OR anne.munsey@opds.state.or.us Phone: (503) Attorneys for Respondent on Review ELLEN F. ROSENBLUM # Attorney General ANNA JOYCE # Solicitor General 400 Justice Building 1162 Court Street NE Salem, OR pamela.j.walsh@state.or.us Phone: (503) Attorneys for Petitioner on Review /15

36 i TABLE OF CONTENTS STATEMENT OF THE CASE... 1 Question Presented and Proposed Rule of Law... 1 Summary of Argument... 1 ARGUMENT... 4 I. During a noncriminal traffic stop, police are limited to actions reasonably related to processing the stop and issuing a traffic citation... 5 II. Inquiries about weapons are not related to the processing of a noncriminal traffic stop, nor are they reasonable without independent justification under Article I, section A. Officer safety actions, including police inquires, always have required independent justification B. Weapons inquiries are not reasonable in the absence of any officer safety concerns C. Weapons inquiries launch a criminal investigation, changing the character of a noncriminal traffic stop D. Weapons inquires do not ensure officer safety E. Weapons inquiries tread on a person s Second Amendment and Article I, section 27, rights III. Because no officer safety concerns justified the officer s delay of the noncriminal traffic stop in this case, the trial court erred in denying defendant s motion to suppress CONCLUSION... 35

37 ii TABLE OF AUTHORITIES CASES Arizona v. Johnson, 555 US 323, 129 S Ct 781, 172 L Ed 2d 694 (2009).. 26, 27 Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977) Delaware v. Prouse, 440 US 648, 99 S Ct 1391, 59 L Ed 2d 660 (1979) Maryland v. Buie, 494 US 325, 110 S Ct 1093, 108 L Ed 2d 276 (1990) Maryland v. Wilson, 519 US 408, 117 S Ct 882, 137 L Ed 2d 41 (1997) Michigan v. Long, 463 US 1032, 103 S Ct 3469, 77 L Ed 2d 1201 (1983) Pennsylvania v. Mimms, 434 US 106, 98 S Ct 330, 54 L Ed 2d 331 (1977) State v. Amaya, 336 Or 616, 89 P3d 1163 (2004)... 2, 16, 17, 18 State v. Backstrand, 354 Or 392, 313 P3d 1084 (2013)... 12, 13 State v. Bates, 304 Or 519, 747 P2d 991 (1987)... 2, 14, 16, 17, 18 State v. Campbell, 306 Or 157, 759 P2d 1040 (1988) State v. Christian, 354 Or 22, 307 P3d 429 (2013) State v. Hall, 339 Or 7, 115 P3d 908 (2005) State v. Hoskinson, 320 Or 83, 879 P2d 180 (1994)... 2, 18, 19 State v. Howard/Dawson, 342 Or 635, 157 P3d 1189 (2007) State v. Jackson, 296 Or 430, 677 P2d 21 (1984) State v. Owens, 302 Or 196, 729 P2d 524 (1986) State v. Porter, 312 Or 112, 817 P2d 1306 (1991)... 24

38 State v. Rhodes, 315 Or 191, 843 P2d 927 (1992) State v. Rodgers/Kirkeby, 347 Or 610, 227 P2d 695 (2010)... 1, 3, 6, 7, 10, 12, 13, 14, 21, 22, 23, 29 State v. Rudder, 347 Or 14, 217 P3d 1064 (2009) State v. Thompkin, 341 Or 368, 143 P3d 530 (2006) State v. Unger, 356 Or 59, 333 P3d 1009 (2014)... 23, 35 State v. Watson, 353 Or 768, 305 P3d 94 (2013)... 4, 12 United States v. Black, 707 F3d 531 (4th Cir 2013) United States v. King, 990 F2d 1552 (10th Cir1993) iii CONSTITUTIONAL PROVISIONS AND STATUTES US Const, Amend II... 3, 31, 33 Or Const, Art I, , 8-14, 17-19, 21-23, 35 Or Const, Art I, , 31, 33 ORS (1) ORS (a)-(c) ORS ORS ORS , 18, 24, 30 ORS (3)(d)... 18

39 iv OTHER AUTHORITIES Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, Feb 13, 1997, Tape 24 B at Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, HB 2233, February 13, 1997, Tape 24 B at Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, HB 2433, Feb 13, 1997, Tape 25 A, at 52, 130, Webster s Third New Int l Dictionary 1522 (unabridged ed 2002)... 7

40 BRIEF ON THE MERITS OF RESPONDENT ON REVIEW STATEMENT OF THE CASE Defendant accepts the Attorney General s Statement of Facts with the addition and clarification of pertinent facts set out in the argument that follows. Question Presented and Proposed Rule of Law May an officer inquire about weapons during a routine traffic stop, consequently extending the duration of the stop, without reasonable suspicion that the person poses a threat to the safety of the officer or others? Proposed Rule of Law. Any questioning during a noncriminal traffic stop that is unrelated to the investigation and issuance of a traffic citation impermissibly extends the duration of the stop, unless it occurs during an unavoidable lull or is supported by reasonable suspicion. That includes questions related to officer safety when the officer does not have reasonable suspicion that the person poses a threat to his safety. Summary of Argument In Rodgers/Kirkeby, this court held that questions that are unrelated to the processing of a noncriminal traffic violation and extend the duration of the stop further restrict a person s liberty and constitute an unlawful seizure under

41 2 Article I, section 9, of the Oregon Constitution, unless the questions are independently justified. The state suggests that inquiries about weapons are related to the processing of a noncriminal traffic stop and hence permissible, or alternatively, they are otherwise reasonable because they are brief, minimally intrusive, and serve to protect officer safety. The state is mistaken for several reasons. First, this court has always required reasonable suspicion of an immediate safety threat before an officer may investigate officer safety issues. In Bates, this court held that the officer s request during a traffic stop that the defendant pull a bag out from under a car seat was impermissible because the officer did not have adequate officer safety concerns. In Amaya, this court held that an officer s question to a passenger defendant about whether she had any weapons in her bag was permissible because he had legitimate officer safety concerns. In Hoskinson, this court held that a routine action to protect officer safety was impermissible; the officer must have a particularized suspicion of danger. Those cases show that officer safety inquiries are not related to the processing of all noncriminal traffic stops. Only if the totality of the circumstances objectively establishes that the officer has an independent, particularized concern may he or she inquire about weapons. To the extent that the state claims that questions about weapons during a traffic stop are reasonable because they are brief and minimally intrusive, this

42 3 court has already rejected a similar argument in Rodgers/Kirkeby that brief questions during a traffic stop are only a de minimis infringement on a person s liberty. Furthermore, questions about weapons during a noncriminal traffic stop are not minimally intrusive, because they implicate several criminal offenses, thus changing the character of the stop from a noncriminal encounter to a possible criminal investigation. The question often serves as the first step in a fishing expedition that diverts the course of the stop from its noncriminal purpose. That heightens the degree of tension and danger for both parties. Questions about weapons do not serve to protect officer safety because they do not necessarily (or even likely) yield the desired information. If the person denies possessing any weapons, the officer must take him at his word or conduct additional investigation, further delaying the processing of the stop. Unlike a patdown, which provides relatively reliable and accurate information about weapons possession, weapons inquiries are open-ended and uncertain. Finally, weapons inquires implicate a citizen s Second Amendment and Article I, section 27, right to bear arms. This court should not change current Article I, section 9, case law to allow weapons inquires during a noncriminal traffic stop that delay and hence further restrict a citizen s liberty without reasonable suspicion, based upon

43 4 specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present. ARGUMENT 1 Defendant agrees with the state that both Article I, section 9, and Oregon s statutes require that officers have a legal justification for temporarily detaining someone and that the officer s activities during that detention be reasonably related to that investigation and reasonably necessary to effectuate it. Pet BOM at 14 (citing State v. Watson, 353 Or 768, 781, 305 P3d 94 (2013)); see also Pet BOM at 15 ( Article I, section 9, permits officers to engage in actions that are reasonably related to the traffic violation investigation. ); Pet BOM at 16 ( The first principle is that questions that are related to processing the stop are permissible under Article I, section 9. ). Where defendant parts company with the state is in its assertion that questions about weapons are reasonably related to the processing of a routine traffic stop or are otherwise reasonable. Pet BOM at 18. Defendant maintains that questions about weapons are reasonable only when the officer has a reasonable suspicion that the person poses a threat to the safety of the officer or others. 1 Appellate counsel thanks law student Joel Duran for his research assistance in this case.

44 5 Here, defendant was lawfully stopped for the noncriminal traffic violation of crossing against a Don t Walk sign. After discussing the reason for the stop with defendant, the officer asked defendant whether he had any weapons on him, which [he does] with all contacts on the street with pedestrians, just for -- obviously for officer safety reasons. Tr 10. Defendant admitted that he had a gun in his right front pocket and immediately separated his feet, leaned forward, and put his hands on the hood of the patrol vehicle. When the officer asked defendant about weapons, he diverted the course of the traffic stop from the legitimate process of issuing a citation for a noncriminal violation to a criminal investigation about weapons. Because the officer did not have a reasonable suspicion that the defendant presented an officer safety concern, a fact not challenged by the state in this proceeding, the officer unlawfully extended the duration of the stop, and the trial court should have granted defendant s motion to suppress. Pet BOM at 6 n 2. I. During a noncriminal traffic stop, police are limited to actions reasonably related to processing the stop and issuing a traffic citation. Article I, section 9, of the Oregon Constitution protects individuals against unreasonable searches and seizures. 2 In State v. Rodgers/Kirkeby, Article I, section 9, provides:

45 6 Or 610, 227 P2d 695 (2010), this court addressed the operation of Article I, section 9, during a noncriminal traffic stop. After explaining that police inquiries during the course of a traffic stop (including requests to search a person or vehicle) are not searches and seizures and thus by themselves ordinarily do not implicate Article I, section 9, and that police conduct that involves physical restraint or a show of authority that restricts an individual s freedom of movement typically does implicate Article I, section 9, this court discussed the unique circumstances of a traffic stop. Rodgers/Kirkeby, 347 Or at 622. Nevertheless, in contrast to a person on the street, who may unilaterally end an officer-citizen encounter at any time, the reality is that a motorist stopped for a traffic infraction is legally obligated to stop at an officer s direction, see ORS (failing to obey a police officer) and ORS (fleeing or attempting to elude a police officer), and to interact with the officer, see ORS (failure to carry or present license) and ORS (giving false information to a police officer), and therefore is not free unilaterally to end the encounter and leave whenever he or she chooses. Unreasonable searches and seizures. No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

46 7 Id. at (emphasis added). It is that legally-backed restriction of liberty that is key to the analysis. 3 Thus, the court concluded, Police authority to detain a motorist dissipates when the investigation reasonably related to that traffic infraction, the identification of persons, and the issuance of a citation (if any) is completed or reasonably should be completed. Other or further conduct by the police, beyond that reasonably related to the traffic violation, must be justified on some basis other than the traffic violation. Id. at 623 (emphasis added). It is important to note that the Rodgers/Kirkeby analysis is not limited to police conduct that occurs after a traffic stop has ended or should have ended. It also applies to conduct that occurs during the stop. The use of the term other in addition to the term further in the quote above shows that not only additional police conduct after the stop has ended, but also other conduct not reasonably related to the traffic violation requires independent justification. Furthermore, the next paragraph explicitly references police conduct during a traffic stop: One such exception [to the warrant and probable cause requirements] permits the police to stop and briefly detain motorists for investigation of noncriminal traffic violations. Police conduct during a noncriminal traffic stop does not further 3 The court s use of the term nevertheless indicates that the previously stated legal principles do not adequately address the circumstances of a traffic stop and that the subsequent statement is of great import. Webster s Third New Int l Dictionary 1522 (unabridged ed 2002) (defining nevertheless as in spite of that : NOTWITHSTANDING : YET ).

47 8 implicate Article I, section 9, so long as the detention is limited and the police conduct is reasonably related to the investigation of the noncriminal traffic violation. However, a police search of an individual or a vehicle during the investigation of a noncriminal traffic violation, without probable cause and either a warrant or an exception to the warrant requirement, violates Article I, section 9. Because police inquiries during a traffic stop are neither searches nor seizures, police inquiries in and of themselves require no justification and do not necessarily implicate Article I, section 9. However, police inquiries unrelated to a traffic violation, when combined with physical restraint or a police show of authority, may result in a restriction of personal freedom that violates Article I, section 9. Id. at 624 (italics in original; bold added). In a footnote, this court noted that the Article I, section 9, restriction of movement in both of the cases at issue occurred after the officers had completed the traffic infraction investigations and stated, We express no opinion about the effect of unrelated police inquiries that occur during the course of the traffic violation investigation and that do not result in any further restriction of movement of the individual. Id. at 627 n 5 (emphasis added). Logically speaking, any unrelated police inquiry that occurs during the time when a person is not allowed to leave results in further restriction of movement of the individual, unless it occurs during an unavoidable lull. Presumably, that footnote reserves decision on the unavoidable lull situation. To understand where police questioning falls in the analysis, it is necessary to look at the application of the rule to the facts of each case. The court explained that police inquiries unrelated to a traffic violation, when

48 9 combined with physical restraint or a police show of authority, may result in a restriction of personal freedom that violates Article I, section 9. Id. at 624. In Rodgers, the defendant was stopped for driving with a burned out license plate, but the officer questioned him about a container of blue liquid and a metallic container in the car that the officer suspected was associated with the manufacture of methamphetamine. This court emphasized that the unrelated inquiries occurred after the officer had completed the investigation reasonably related to the traffic infraction and issuance of the citation, when he no longer had authority to hold the defendant. Id. at 626. Yet the defendant was not told that he was free to leave, and given the positioning of the two officers on either side of the car, the defendant had no way of knowing that [the officer s] questions and request to search the car were not part of the traffic investigation and that his cooperation in [the officer s] investigation was not required to continue. Id. This court concluded that Under the totality of the circumstances, we conclude that [the first officer s] position at the driver-side window and [the second officer s] presence on the passenger side of the car was a sufficient show of authority that, in combination with the unrelated questions concerning the items in the car and the request to search the car, resulted in a significant restriction of defendant s freedom of movement. Id. at 627. Notably, because the justification for the traffic stop had ended (in the sense that the officer no longer had lawful authority to hold the defendant), this court relied on the physical positioning of the officers and the fact that they

49 10 did not tell the defendant that he was free to leave for the show of authority that, in combination with the unrelated inquires, violated the defendant s Article I, section 9, rights. Presumably, if the unrelated inquiries had occurred during the traffic stop, the traffic stop itself (with its legally imposed restriction on the defendant s liberty) would provide the requisite show of authority. In Kirkeby, the defendant was stopped for driving with a suspended license. Id. at 615. The officer became concerned for his safety when the defendant got out of his vehicle to meet the officer, despite the fact that the officer knew the defendant and had never had any officer safety issues with him in the past and the defendant was cooperative and non-threatening during this encounter. After being told the reason for the stop, the defendant handed the officer his driver s license, at which point the officer had all the information he needed to issue a traffic citation. However, the officer testified that he probably did not have all the information that he needed because he did not have the vehicle registration and proof of insurance. Id. at Yet, instead of asking for that information, the officer asked the defendant whether he had any weapons on his person or in the vehicle. 4 Id. at 616. When the defendant stated that he did not have any weapons, the officer asked for a series 4 This court did not address whether the officer s question about weapons constituted an unlawful extension of the traffic stop, because the defendant did not make that argument on appeal. Rodgers/Kirkeby, 347 Or at 619 n 2,

50 11 of consents to which the defendant agreed, including consent to conduct a patdown, to examine each of the items that he had felt in the defendant s pockets, and to open a small container which turned out to contain methamphetamine. The deputy testified that the defendant was not free to leave during that time. Id. After summarizing those facts, this court concluded: Based on the totality of the circumstances, we conclude that the deputy s show of authority that accompanied his request that defendant consent to a patdown and subsequent request that defendant consent to an examination of the contents of defendant s pockets occurred after the point that defendant should have been issued a citation or sent on his way. Because the deputy s further detention of defendant was a significant limitation on defendant s freedom of movement and was not justified by reasonable suspicion of criminal activity, defendant Kirkeby was unlawfully seized in violation of Article I, section 9. Id. at 628 (emphasis added). Notably, the only show of authority by the officer was the traffic stop situation and the officer s inquires that were unrelated to processing the traffic citation. The officer testified that the defendant was not free to leave (presumably because the officer believed he needed the vehicle registration and proof of insurance), but that was only conveyed to the defendant by the fact that he was in the middle of a traffic stop. In both Rodgers and Kirkeby, the show of authority that restricted the defendant s liberty and made the unrelated questioning that extended the duration of the detention an Article I, section 9, violation, was the fact that the

51 12 defendant reasonably believed he was not free to leave. See State v. Backstrand, 354 Or 392, 401, 313 P3d 1084 (2013) (defining a show of authority as a reasonable perception that an officer is exercising his or her official authority to restrain, and explaining that [e]xplicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs. ). In the case of Rodgers, it was the facts that the defendant had not been told that he was free to leave and the officer s conduct confirming that. In the case of Kirkeby, it was the fact that the defendant was embroiled in a traffic stop. In both cases, the traffic stop could and should have been over, but because that information was not conveyed to either of the defendants, their liberty was restricted by the unrelated questioning. Subsequent opinions of this court reiterate the analysis from Rodgers/Kirkeby. In Watson, this court stated that both Oregon statutes and this court s Article I, section 9, case law require that law enforcement officers have a justification for temporarily seizing or stopping a person to conduct an investigation, and that the officer s activities be reasonably related to that investigation and reasonably necessary to effectuate it. If the officer s activities exceed those limits, then there must be an independent constitutional justification for those activities. Watson, 353 Or at 781 (emphasis added).

52 13 In State v. Backstrand, 354 Or 392, 406, 313 P3d 1084 (2013), this court again recognized the significance of the fact that a person detained for a traffic offense has a legal obligation to stop at the officer s direction and remain, in explaining the importance of context in determining whether verbal inquires constitute a seizure. Id. at 406. The court explained that the questions and request for consent in Rodgers/Kirkeby resulted in an unlawful seizure because, From the standpoint of a reasonable person in the defendants position, when the officers in both cases, after completing the investigation of the traffic offenses, asked unrelated questions and asked for consent to search, but did not tell the defendants that they were free to leave, those verbal inquiries communicated a continuation of the traffic stop, even though the officers no longer had authority to detain. In that distinctive context, the verbal inquiries alone continued the seizures, and continuation of the seizures was unlawful. Backstrand, 354 Or at 407 (citations omitted) (emphasis added). And as explained above, whether the officer s unrelated inquires occur during or at the end of an otherwise valid traffic stop is immaterial. It is a logical necessity that if they do not occur during an unavoidable lull, they prolong the stop and result in [a] further restriction of movement of the individual. Rodgers/Kirkeby, 347 Or at 627 n 5. Thus, the state s assertion that questions that are related to processing the stop are permissible under Article I, section 9, and the converse that questions not related to processing the stop require independent justification,

53 14 are well-supported by this court s case law. Pet BOM at 16; see Rodgers/Kirkeby, 347 Or at 620 ( Before 1997, this court, in a series of cases, held that [ORS ] not only described what an officer could do respecting a traffic stop; it also indicated what the officer could not do. ). However, the state s next assertion, that inquiries about weapons are reasonably related to the processing of a routine traffic stop or otherwise reasonable is incorrect. II. Inquiries about weapons are not related to the processing of a noncriminal traffic stop, nor are they reasonable without independent justification under Article I, section 9. This court has always required reasonable suspicion that a person poses a threat to the safety of the officer or others before the officer may take action designed to address that concern. Id. at 524. A. Officer safety actions, including police inquires, always have required independent justification. In State v. Bates, 304 Or 519, 747 P2d 991 (1987), this court held that Article I, section 9, of the Oregon Constitution does not forbid an officer to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present. In that case, police stopped the defendant at 4:40 a.m. in a high crime residential area for the traffic infraction of excessive vehicle emissions. Id. at 521. The defendant provided a valid Washington driver s license. When one

54 15 of the officers commented on an object on the floorboard between the defendant s feet, the other officer shined his flashlight in that area and saw the end of what appeared to be some kind of bag. He then asked [the defendant] if he would reach down and very cautiously pull that item from between his feet, so I could see what it was. Id. The defendant reached under the seat and remained in that position while the officer repeatedly asked him to pull the object into view. After 10 seconds, the officer drew his revolver, ordered the defendant out of the vehicle, searched the bag, and then searched the vehicle. Id. at After explaining why most of the officer s stated reasons for concern were not reasonable, this court identified the determinative issue as: May officers, in the course of a necessarily brief encounter with a driver for the purpose of issuing a traffic citation for a Class D traffic infraction and without having any specific and articulable facts justifying their apprehension, constitutionally require the driver to remove and open a bag from beneath the driver s seat of the car? Id. at 527 (emphasis added). It answered that question in the negative, stating, Although the police are entitled to some leeway in taking protective measures, we must draw the line at some point, and holding that The officers violated defendant s constitutional rights when they instructed him to slide the bag into view. Id.

55 16 Bates indicates that officer inquiries designed to ensure the safety of an officer during a traffic stop must be supported by specific and articulable facts justifying [the officers ] apprehension. That position was reiterated in State v. Amaya, 336 Or 616, 89 P3d 1163 (2004). In Amaya, the officer stopped a van for the traffic offenses of having a burned-out license plate light and making an unsignaled left turn at 1:00 a.m. in an area of Beaverton known for drug dealing. Id. at 618. His limited vision into the van and the nervousness of the driver and the passenger defendant caused the officer to be concerned for his safety. The officer checked the license of the driver and learned that it was suspended. Id. During the stop, the officer asked for and received consent from the driver to search the van. Id. at 619. He then asked the driver and the defendant to step out of the van. Although the officer encouraged the defendant to leave her bag in the van, she took it with her, placed it at her feet, and covered it with her trench coat. Those actions caused the officer to be concerned for his safety and suspect that the defendant might have a weapon or drugs in the bag. He asked the defendant what she had in the bag. She said that she had a gun in the bag and that she did not have a concealed weapon permit, so the officer searched the bag and found a gun. Id. at 619. After explaining what was not at issue in the case, this court considered whether [the officer s] questioning of defendant about the contents of her bag

56 17 constituted an unlawful seizure. 5 Id. at 630. However, it concluded that it need not decide that issue, because [e]ven assuming that [the officer s] questions to defendant temporarily restrained her liberty and thus constituted a seizure of defendant, those questions were permissible under Article I, section 9, because they were based on [the officer s] reasonable suspicion that defendant posed an immediate threat of serious injury to him. Id. at 631. It then explained why the circumstances of that case satisfied the officer safety requirements of Bates. Id. at The court concluded: For the foregoing reasons, we hold that [the officer s] questions about the bag s contents were based on a reasonable suspicion that defendant posed an immediate threat of serious injury to him and therefore did not violate defendant s rights under Article I, section 9. Further, after defendant responded that she had a weapon in her bag and that she did not have a concealed weapon permit, the officers subsequent search of the bag and seizure of the weapon were supported by probable cause to believe that defendant had committed a crime. Id. at (emphasis added). The fact that in Amaya, this court addressed whether officer safety concerns justified any potential seizure in that case shows that such justification is always necessary. 5 Because the defendant was a passenger in the vehicle and not the driver, she was only physically stopped, but she was not seized in a manner that implicated Article I, section 9. Amaya, 336 Or at 630; see also State v. Thompkin, 341 Or 368, 377, 143 P3d 530 (2006) (same).

57 18 Bates and Amaya show that questions about weapons are not part and parcel of a traffic stop. 6 Both cases involved traffic stops in which this court held that under Article I, section 9, officer safety investigations must be independently justified. The state has not shown why Bates and Amaya were wrongly decided or should be overturned. The state s suggestion that questions about weapons should be allowed as a matter of routine is also contrary to this court s decision in State v. Hoskinson, 320 Or 83, 879 P2d 180 (1994). In Hoskinson, the officer arrested the defendant for driving while suspended. Id. at 85. He handcuffed the defendant, conducted a patdown search, and seized the defendant s wallet. He then searched the wallet and found methamphetamine. He testified that I ve it s normal practice for myself to obtain the wallet and see if there are any weapons or any indications of things that would be used to escape that would alert myself to search the subject more thoroughly and extensively for additional means of escape. Id. This court held that such a normal practice, without 6 In Amaya, this court noted that ORS (3)(d), which provides that during a traffic stop, a police officer [m]ay make an inquiry to ensure the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons, authorizes police to make officer safety inquiries without requiring reasonable suspicion of an immediate threat to officer safety. Amaya, 336 Or at However, it also recognized that an officer s actions, even if authorized by ORS (3)(d), nevertheless must comply with Article I, section 9. Id. at 625.

58 19 any particularized suspicion of danger, cannot justify a search on officer safety grounds. Id. at The only time that this court has allowed an officer safety action as a matter of course is in the context of a search incident to arrest. In State v. Owens, 302 Or 196, 729 P2d 524 (1986), this court noted that under Article I, section 9, a pat-down or limited search for weapons to protect the officer or to prevent escape would be justified whenever a person is taken into custody. Id. at 200. That is because it is always dangerous to allow a person who has been arrested for a crime and is in custody to possess a weapon, and a patdown search is the most limited and direct means to ensure that does not occur. And notably, any further officer safety actions in that situation must be independently justified by the standard reasonable suspicion of particularized danger. Hoskinson, 320 Or at As explained below, questions about weapons do not reliably achieve the same justified goals. In State v. Rudder, 347 Or 14, 217 P3d 1064 (2009), this court again emphasized the necessity that the officer safety action be tailored to the need, rather than based on generalized concerns. In that case, an officer stopped the defendant based on a reasonable suspicion that he had been involved in a nearby burglary. When the defendant would not hold still for a patdown search, the officer handcuffed the defendant and looked in his pocket, where he discovered methamphetamine. Id. at This court held that the attempted

59 20 patdown and hand-cuffing of the defendant were appropriate officer safety measures, but the search of the defendant s pocket before completing the patdown was not. Id. at In doing so, this court made two important points that are relevant here. First, it held that The question that courts must confront in these circumstances is whether the particular step taken by the police was one that was reasonable under the particular circumstances, not whether that step was within the range of reasonable responses to officer safety concerns in general. Id. at 22 (emphasis in original). Thus, once again this court rejected a one-size-fits-all analysis. Second, it explained that officer safety concerns do not trump an individual s constitutional rights: We emphasize that the concept of reasonableness in this context is not biased in favor of the concerns of the police. Although this court is sensitive to the dangers inherent in police work and to the difficulties inherent in officer safety decisions, that does not and cannot mean that we regard those concerns as having greater weight than the constitutional right of all persons even those who have been stopped on suspicion of criminal activity to be free of unreasonable searches and seizures. If that constitutional right is to retain any vitality in the context of police stops, police officers must understand that the officer safety doctrine does not excuse protective measures that are disproportionate to any threat that the officers reasonably perceive. Id. at 23. The state s invitation to create a general rule that questions about weapons are related to the processing of all traffic stops flies in the face of all of this court s officer safety case law.

60 21 B. Weapons inquiries are not reasonable in the absence of any officer safety concerns. The state argues alternatively that weapons inquiries are reasonable under Article I, section 9, because they are brief, minimally intrusive, and serve to protect officer safety. Pet BOM at 22. That is similar to the de minimis argument that the state made and this court rejected in Rodgers/Kirkeby. When summarizing the parties arguments, this court explained: Focusing on the scope and length of the questioning at issue, the state proposes a rule that police questioning that is unrelated to a traffic stop, or a request for consent to search during a lawful traffic stop, will not constitute an unconstitutional seizure if that questioning creates only a de minimis delay during an otherwise lawful stop. Rodgers/Kirkeby, 347 Or at 618. The state argued that in Rodgers, the two questions that the officer asked the defendant were of the same character as questions that he could have asked during a mere encounter on the street and they took only a few moments and caused only a de minimis delay. Id. In Kirkeby, it argued that the officer s single question about whether defendant had any weapons, followed by a request for consent to conduct a patdown and then a search, took four to five minutes and could have been asked of any person walking down the street. Id. at 619. However, as explained above, this court held in both cases that the officer s actions constituted an unreasonable seizure.

61 In a footnote, this court explicitly rejected the state s argument that this court s decision in State v. Jackson, 296 Or 430, 677 P2d 21 (1984), stands for the rule that a de minimis delay during a traffic stop does not implicate Article I, section 9. Rodgers/Kirkeby, 347 Or at 624 n 4. It explained, The key of that holding was not the duration of the stop and detention, but the fact that the officer observed evidence of a crime from a lawful vantage point outside the car before conducting further investigation. Unlike the circumstances in these cases, the officer in Jackson did not question the defendant about anything unrelated to the reason for the stop until he observed evidence of criminal activity, as required under Article I, section 9. Id. (emphasis added). Thus, the fact that any delay and resulting restriction on the defendant s liberty is brief and minimally intrusive does not excuse the need for independent justification under Article I, section 9. See State v. Rhodes, 315 Or 191, , 843 P2d 927 (1992) (holding that officer s act of opening the door of the defendant s pickup from three or four inches to completely open, thus exposing the contents of the inside of the vehicle, was a search under Article I, section 9). The state suggests that this court look to the Fourth Amendment test employed by various circuits of whether the inquiry about weapons measurably extends the traffic stop. However, that test is not appropriate for an Article I, section 9, analysis. First, the test is unclear and unworkable. Does measurably extend mean that the delay can be measured by a stopwatch? Or 22

62 23 does it mean a delay of over 30 minutes? Does it matter whether the person stopped was on his way to a meeting or out for a country drive? But more importantly, that test is born out of the Fourth Amendment balancing of the government s interest in law enforcement against an individual s constitutional rights. See Delaware v. Prouse, 440 US 648, , 99 S Ct 1391, 59 L Ed 2d 660 (1979) ( the permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual s Fourth Amendment interests against its promotion of legitimate governmental interests ). Article I, section 9, is a rights-based analysis, which focuses on individual rights. See State v. Hall, 339 Or 7, 24, 115 P3d 908 (2005) (explaining that the Oregon exclusionary rule serves to vindicate a defendant s personal rights), cited in State v. Unger, 356 Or 59, 81-82, 333 P3d 1009 (2014); State v. Campbell, 306 Or 157, 164, 759 P2d 1040 (1988) ( the privacy protected by Article I, section 9, is not the privacy that one reasonably expects but the privacy to which one has a right ), quoted in State v. Howard/Dawson, 342 Or 635, 643, 157 P3d 1189 (2007). Under Article I, section 9, a citizen has the right not to have his liberty restricted further than necessary to process the traffic stop, unless the further detention is independently justified. Rodgers/Kirkeby, 347 Or at 623.

63 24 Furthermore, defendant challenges the state s claims that weapons inquiries are minimally intrusive and serve to protect officer safety. Given the realities of such inquires and their consequences, the analysis is not that simple. C. Weapons inquiries launch a criminal investigation, changing the character of a noncriminal traffic stop. Traffic stops in Oregon are designed to be noncriminal encounters between police officers and citizens. In State v. Porter, 312 Or 112, , 817 P2d 1306 (1991), this court explained: From [the legislative] history [of ORS ], we glean that the legislature sought to keep traffic infractions decriminalized and to reduce the attendant law enforcement methods as much as necessary to accomplish that goal. The legislature intended to satisfy the concerns expressed in Brown v. Multnomah County Dist. Ct., [280 Or 95, 570 P2d 52 (1977)], and thus to permit only minimal intrusions on Oregon drivers stopped for traffic infractions. Id. at An inquiry about weapons changes the character of a traffic stop from a relatively benign noncriminal encounter into an adversarial criminal investigation. That is so for multiple reasons. First, the possession of a weapon implicates several criminal statutes. For example, ORS (a)-(c) 7 provides for a multitude of circumstances in which it is unlawful for a person to possess a firearm, including knowingly: carrying any firearm concealed upon 7 See Appendix at APP 1-3 for full text of ORS and other weapons statutes.

64 25 the person; possessing a handgun that is concealed and readily accessible to the person within any vehicle; or possessing a firearm after being convicted of a felony. Under ORS (1) it is unlawful to carr[y] concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot, metal knuckles, or any similar instrument[.] When an officer asks a person whether he or she possesses any weapons, it is most likely because the officer does not already see a weapon in plain view. Thus, any weapon the person might have would be concealed, which is a crime unless the person has a concealed weapon permit or meets some other exception to the application of ORS ORS Even if the officer s motive for inquiring about weapons is to ensure his safety, to an ordinary citizen, the question is equivalent to being asked, for example, whether he possesses illegal drugs or has committed a bank robbery. At that point, the encounter has taken on the character of a criminal investigation, with the attendant possibility of arrest and incarceration. It is no longer a brief intrusion into the citizen s day to enforce a noncriminal violation; it has transformed into an inquiry into criminal conduct, making it a dangerous situation for both the citizen and the officer. If the citizen has committed a crime, the officer s questions make it more likely that the citizen will take action to avoid detection or apprehension. See Arizona v. Johnson, 555 US 323,

65 26 331, 129 S Ct 781, 172 L Ed 2d 694 (2009) ( the risk of a violent encounter in a traffic-stop setting stems not from the ordinary reaction of a motorist stopped for a speeding violation, but from the fact that evidence of a more serious crime might be uncovered during the stop ) (quoting Maryland v. Wilson, 519 US 408, 414, 117 S Ct 882, 137 L Ed 2d 41 (1997)). If the citizen has not committed any crime, he may still feel alarm at the officer s inquires. And even if the citizen does not view the question as an inquiry into criminal activity, he or she is still put on alert that the officer considers the encounter to be potentially dangerous, which in turn, elevates the citizen s apprehension about the gravity of the encounter. The encounter has been transformed from a simple traffic citation situation to one in which the citizen is concerned about further alarming the officer and possibly provoking a physical response on the officer s part. Given the myriad implications of a weapons inquiry, it is not a police action that is categorically related to a noncriminal traffic stop. Nor is it a minimally intrusive action that is reasonable without independent justification. D. Weapons inquires do not ensure officer safety. The state claims that weapons inquiries are reasonably related to processing a traffic stop because traffic stops are inherently dangerous. Pet BOM at However, the inherent dangerousness of traffic stops has been

66 27 called into question by recent studies and analysis. See Amicus BOM, Section I. Furthermore, that type of generalized statement does not take into account the widely differing character of traffic stops. Notably, most of the cases that the state cites in support of that proposition involve traffic stops of vehicles. See, e.g., Arizona v. Johnson, 555 US 323, 330, 129 S Ct 781, 172 L Ed 2d 694 (2009) (noting that the Court has recognized that traffic stops are especially fraught with danger to police officers, and quoting Michigan v. Long, 463 US 1032, 1047, 103 S Ct 3469, 77 L Ed 2d 1201 (1983), which recognized that investigative detentions involving suspects in vehicles are especially fraught with danger to police officers. )). In Pennsylvania v. Mimms, 434 US 106, 98 S Ct 330, 54 L Ed 2d 331 (1977), the Supreme Court held that police may order persons out of an automobile during a stop for a traffic violation, and may frisk those persons for weapons if there is a reasonable belief that they are armed and dangerous, resting its decision in part on the inordinate risk confronting an officer as he approaches a person seated in an automobile. Id. at 110. Thus, the Supreme Court recognizes a safety difference between encountering a person in a vehicle and encountering a person on the street. Notably, the Court still requires a reasonable belief that the person is armed and dangerous before allowing an officer safety frisk. Id.

67 28 The State cites Maryland v. Buie, 494 US 325, 110 S Ct 1093, 108 L Ed 2d 276 (1990), for the proposition that the Court recognized the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety. Pet BOM at n 6. However, in context, the Court followed that with the admonition that despite the danger that inheres in on-the-street encounters and the need for police to act quickly for their own safety, the Court in Terry [v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968)], did not adopt a bright-line rule authorizing frisks for weapons in all confrontational encounters. Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted. Buie, 494 US at 334. Given the different officer safety considerations in different situations, an across-the-board, one-size-fits-all officer safety rule for traffic stops is not appropriate. The current law, which allows officer safety inquiries when reasonably necessary, better serves the interests of this state. In addition, a weapons inquiry without any officer safety concerns is not reasonable, because it does not serve to protect officer safety. First, if the officer does not have any particularized officer safety concerns, there is no need for the inquiry. Second, a weapons inquiry provides only limited information, whose value is dependent on the officer s belief in the veracity of the citizen. A patdown tells the officer whether the person is carrying an object that could be a

68 29 weapon the requisite information is obtained by the police action. But when an officer makes a verbal inquiry about the presence of weapons, he could receive a multitude of potential answers, each of which could be interpreted differently. It is true that if the person truthfully admits to having a weapon, the officer has more information than he started with. But just knowing that a person has a weapon somewhere on his person is not that helpful. Knowing where the weapon is, whether the person has a permit to carry it, or whether the person is committing a crime all require further investigation. If the person denies having a weapon, the officer must take the person at his word or ask to verify the statement (which is a common occurrence). See, e.g., Rodgers/Kirkeby, 347 Or at 616 (officer in Kirkeby followed defendant s denial of weapons possession with request for consent to conduct a patdown). If the officer believes the person, he may be able to relax, but the verbal response does not provide the certainty of a patdown. If the officer seeks to verify the statement, he has embarked down a separate line of investigation and significantly deviated from processing the traffic stop. If the officer receives an ambiguous answer, he has no further information at all and most certainly will want to obtain more, again requiring further investigation. Those examples show that an inquiry about weapons is not a minimal intrusion into a person s privacy. It initiates an investigation, if

69 30 not a fishing expedition, into an area completely unrelated to the traffic violation that provided the justification for the stop. If this court were to accept the state s invitation to make a weapons inquiry part of a normal noncriminal traffic stop, it would beg the question: How far is the officer allowed to go? Must he accept the citizen s answer, or is he allowed to check for himself, entailing a search, which is a significant intrusion into a person s privacy rights, simply because the person committed a noncriminal traffic infraction. 8 In short, by changing the law to allow officer safety inquires that further restrict a person s liberty, this court would be changing the character of a 8 The legislative history of the 1997 amendments to ORS allowing weapons inquiries during traffic stops shows that the legislature recognized the problem. The original purpose of the amendment was merely to allow an officer to ask ( inquire ) about weapons during the course of a traffic stop and only when the officer had a degree of concern about the motorist. Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, HB 2433, Feb 13, 1997, Tape 25 A, at 52, 130, 210 (statement of Marion County Deputy District Attorney Stephen Dingle). According to Mr. Dingle, there was no intention to turn the traffic stop into a broad inquiry. Id. at 237. The purpose was to allow the stopping officer to ask about weapons. Id. at 210, 371. In response to a question from Representative Prozanski, Mr. Dingle acknowledged that if the motorist said he did not have a weapon, the officer would have to accept the answer. Id. at 107. See also, Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, HB 2233, February 13, 1997, Tape 24 B at 152 (statement of Portland Police Lieutenant Michael Bell: if the motorist says he does not have a weapon, that s the end of it. ); Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, Feb 13, 1997, Tape 24 B at 247 (statement of Russ Spencer, representing Oregon Sheriff s Association: the bill does not contemplate or condone a fishing expedition ).

70 31 noncriminal traffic stop to that of a heightened criminal investigation, which is contrary to long-established case law and would not serve the interests of police officers and the government. 9 E. Weapons inquiries tread on a person s Second Amendment and Article I, section 27, rights. Article I, section 27, of the Oregon Constitution provides that: The people shall have the right to bear arms for the defence (sic) of themselves, and the State, but the Military shall be kept in strict subordination to the civil power[.] The Second Amendment to the federal constitution provides that A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed. This court has stated that as a general proposition, individuals in Oregon have a right to possess firearms for defense of self and property, under Article I, section 27, of the Oregon Constitution. Willis v. Winters, 350 Or 299, 316 n 1, 253 P3d 1058 (2011). However, the right to bear arms is not an absolute right, and the legislature has wide latitude to enact specific regulations restricting the possession and use of weapons to promote public safety. State v. Christian, 354 Or 22, 33, 307 P3d 429 (2013). Yet those regulations should not unduly burden a citizen s right Article I, section 27 rights: We have consistently 9 In addition, such a change in the law would negatively impact minorities. Studies show that racial minorities are disproportionately targeted by police in conducting traffic stops. See Amicus BOM, section II.

71 32 acknowledged the legislature s authority to enact reasonable regulations to promote public safety as long as the enactment does not unduly frustrate the individual right to bear arms for the purpose of self-defense as guaranteed by Article I, section 27. Christian, 354 Or at 33 (emphasis added). An inquiry about weapons during a routine noncriminal traffic stop without the requisite officer safety concerns unduly frustrates a citizen s right to bear arms. As explained above, it is essentially an inquiry about criminal activity that further restricts a person s liberty (assuming it does not occur during an unavoidable lull) without reasonable suspicion that the person has committed a crime. See United States v. Black, 707 F3d 531, 540 (4th Cir 2013) (explaining that where possession of a firearm is permitted, the exercise of this right, without more, cannot justify an investigatory detention ); United States v. King, 990 F2d 1552, 1559 (10th Cir1993) ( we cannot accept the government s attempt to justify the seizure of [d]efendants based on * * * safety concerns due to the presence of the pistol. ). At best, it is a question that puts the citizen on notice that the officer views him as a threat and may take action that is detrimental to the citizen in response to that belief. Under those circumstances, a citizen is likely to be chilled from exercising his right to bear arms in a lawful manner, yet still feel the need to protect himself from government officers. Protection from the government is the purpose of the

72 33 Second Amendment and Article I, section 27. Allowing inquires about weapons during every noncriminal traffic stop would frustrate that purpose. III. Because no officer safety concerns justified the officer s delay of the noncriminal traffic stop in this case, the trial court erred in denying defendant s motion to suppress. In this case, around noon at a busy intersection in southeast Portland, Officer Borchers saw defendant cross against a Don t Walk sign. Tr 7-8, He turned his car around and approached defendant, who had already crossed the street and was sitting at a bus stop. Tr 8-9, 26. When defendant saw the officer approaching, he got up and began to walk away. Tr 9. The officer honked his horn and motioned for defendant to come back to where the officer was. Tr 9, 40. The officer got out of his car, introduced himself to defendant, and explained why he had stopped him. He and defendant discussed why defendant had committed the violation, and then the officer just asked [defendant] if he had any weapons on him, which I do with all contacts on the street with pedestrians, just for -- obviously for officer safety reasons. Tr 10. Defendant sighed, closed his eyes, and said Yes. The officer asked what it was and defendant said, I have a gun and it s in his [sic] right front pocket. Without the officer saying anything, defendant immediately separated his feet, leaned forward, and put his hands on the hood of the patrol vehicle. Tr 10.

73 34 Defendant was wearing a puffy black jacket over a hoodie sweatshirt, very large oversized baggy gray pants, and white tennis shoes, all of which the officer thought might indicate gang affiliation. Tr 11, The stop occurred in a high crime area where gang activity was common. Tr 11. Immediately after defendant put his hands on the patrol car, the officer put defendant in handcuffs, for officer safety purposes. By that time, a handful of people gathered around, which increased the officer s concern. Tr He learned that defendant did not have a license for the weapon. Tr 12, 41-42, 44. The officer patted defendant down and confirmed the presence of the firearm, but left the gun in defendant s pocket because defendant was in restraints, he did not want to announce to onlookers that defendant had a weapon, and he did not want to leave it sitting on the hood of the car unattended or stuck in the belt of his pants. Tr 15. Backup never arrived, so eventually, the officer seized the weapon, put defendant in the back of the patrol car, and secured the weapon in the trunk of the patrol car. Tr 19. Defendant was charged with unlawful possession of a firearm, ORS (1)(a). The Court of Appeals held that the circumstances known to the officer at the time that he asked defendant about weapons did not rise to the level of an officer safety concern. The state does not challenge that decision on review. Pet BOM at 6 n 2.

74 35 Because the officer s inquiry about weapons delayed the officer from processing the noncriminal traffic violation and it was not justified by reasonable suspicion of officer safety concerns, the unrelated question violated defendant s Article I, section 9, rights. Consequently, the trial court should have suppressed the subsequently obtained evidence, including the gun and defendant s statements. 10 CONCLUSION For the foregoing reasons, defendant respectfully prays that this court affirm the decision of the Court of Appeals. Respectfully submitted, PETER GARTLAN CHIEF DEFENDER OFFICE OF PUBLIC DEFENSE SERVICES ESigned ANNE FUJITA MUNSEY OSB # SENIOR DEPUTY PUBLIC DEFENDER Anne.Munsey@opds.state.or.us Attorneys for Defendant-Appellant Joseph Lucio Jimenez 10 The state has not argued that the officer did not exploit the prior illegality to obtain the challenged evidence. Its position is that no prior illegality occurred. Consequently, the exploitation issue is not before this court. Even if it were, the state has not met it burden under that analysis. See State v. Unger, 356 Or 59, 86-87, 333 P3d 1009 (2014) (summarizing analysis). All of the challenged evidence flowed directly from the officer s illegal question. Id. at 86.

75 APPENDIX INDEX Oregon Statutes... APP 1-7

76 APP - 1 APPENDIX ORS Carrying of concealed weapons (1) Except as provided in subsection (2) of this section, any person who carries concealed upon the person any knife having a blade that projects or swings into position by force of a spring or by centrifugal force, any dirk, dagger, ice pick, slungshot, metal knuckles, or any similar instrument by the use of which injury could be inflicted upon the person or property of any other person, commits a Class B misdemeanor. (2) Nothing in subsection (1) of this section applies to any peace officer as defined in ORS , whose duty it is to serve process or make arrests. Justice courts have concurrent jurisdiction to try any person charged with violating any of the provisions of subsection (1) of this section. ORS Unlawful possession of firearms (1) Except as otherwise provided in this section or ORS , , , , or to or section 5, chapter 826, Oregon Laws 2009, a person commits the crime of unlawful possession of a firearm if the person knowingly: (a) Carries any firearm concealed upon the person; (b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle; or (c) Possesses a firearm and: (A) Is under 18 years of age; (B)(i) While a minor, was found to be within the jurisdiction of the juvenile court for having committed an act which, if committed by an adult, would constitute a felony or a misdemeanor involving violence, as defined in ORS ; and

77 APP - 2 (ii) Was discharged from the jurisdiction of the juvenile court within four years prior to being charged under this section; (C) Has been convicted of a felony; (D) Was committed to the Oregon Health Authority under ORS ; (E) Was found to be a person with mental illness and subject to an order under ORS that the person be prohibited from purchasing or possessing a firearm as a result of that mental illness; or (F) Has been found guilty except for insanity under ORS of a felony. (2) This section does not prohibit: (a) A minor, who is not otherwise prohibited under subsection (1)(c) of this section, from possessing a firearm: (A) Other than a handgun, if the firearm was transferred to the minor by the minor s parent or guardian or by another person with the consent of the minor s parent or guardian; or (B) Temporarily for hunting, target practice or any other lawful purpose; or (b) Any citizen of the United States over the age of 18 years who resides in or is temporarily sojourning within this state, and who is not within the excepted classes prescribed by ORS and subsection (1) of this section, from owning, possessing or keeping within the person s place of residence or place of business any handgun, and no permit or license to purchase, own, possess or keep any such firearm at the person s place of residence or place of business is required of any such citizen. As used in this subsection, residence includes a recreational vessel or recreational vehicle while used, for whatever period of time, as residential quarters. (3) Firearms carried openly in belt holsters are not concealed within the meaning of this section.

78 APP - 3 (4)(a) Except as provided in paragraphs (b) and (c) of this subsection, a handgun is readily accessible within the meaning of this section if the handgun is within the passenger compartment of the vehicle. (b) If a vehicle, other than a vehicle described in paragraph (c) of this subsection, has no storage location that is outside the passenger compartment of the vehicle, a handgun is not readily accessible within the meaning of this section if: (A) The handgun is stored in a closed and locked glove compartment, center console or other container; and (B) The key is not inserted into the lock, if the glove compartment, center console or other container unlocks with a key. (c) If a vehicle is a motorcycle, an all-terrain vehicle or a snowmobile, a handgun is not readily accessible within the meaning of this section if: (A) The handgun is in a locked container within or affixed to the vehicle; or (B) The handgun is equipped with a trigger lock or other locking mechanism that prevents the discharge of the firearm. (5) Unlawful possession of a firearm is a Class A misdemeanor. ORS Exceptions (1) ORS does not apply to or affect: (a) Sheriffs, constables, marshals, parole and probation officers, police officers, whether active or honorably retired, or other duly appointed peace officers. (b) Any person summoned by any such officer to assist in making arrests or preserving the peace, while said person so summoned is actually engaged in assisting the officer.

79 APP - 4 (c) The possession or transportation by any merchant of unloaded firearms as merchandise. (d) Active or reserve members of: (A) The Army, Navy, Air Force, Coast Guard or Marine Corps of the United States, or of the National Guard, when on duty; (B) The commissioned corps of the National Oceanic and Atmospheric Administration; or (C) The Public Health Service of the United States Department of Health and Human Services, when detailed by proper authority for duty with the Army or Navy of the United States. (e) Organizations which are by law authorized to purchase or receive weapons described in ORS from the United States, or from this state. (f) Duly authorized military or civil organizations while parading, or the members thereof when going to and from the places of meeting of their organization. (g) A corrections officer while transporting or accompanying an individual convicted of or arrested for an offense and confined in a place of incarceration or detention while outside the confines of the place of incarceration or detention. (h) A person who is licensed under ORS and to carry a concealed handgun. (2) It is an affirmative defense to a charge of violating ORS (1)(c)(C) that the person has been granted relief from the disability under ORS (3) Except for persons who are otherwise prohibited from possessing a firearm under ORS (1)(c) or , ORS does not apply to or affect:

80 APP - 5 (a) Members of any club or organization, for the purpose of practicing shooting at targets upon the established target ranges, whether public or private, while such members are using any of the firearms referred to in ORS upon such target ranges, or while going to and from such ranges. (b) Licensed hunters or fishermen while engaged in hunting or fishing, or while going to or returning from a hunting or fishing expedition. (4) The exceptions listed in subsection (1)(b) to (h) of this section constitute affirmative defenses to a charge of violating ORS ORS Authority to arrest for violating ORS or A peace officer may not arrest or charge a person for violating ORS (1)(a) or (b) or (1) if the person has in the person s immediate possession a valid license to carry a firearm as provided in ORS and ORS Possession of weapons by felons (1) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person s possession or under the person s custody or control any firearm commits the crime of felon in possession of a firearm. (2) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns or has in the person s possession or under the person s custody or control any instrument or weapon having a blade that projects or swings into position by force of a spring or by centrifugal force or any blackjack, slungshot, sandclub, sandbag, sap glove, metal knuckles or an Electro-Muscular Disruption Technology device as defined in ORS

81 APP , or who carries a dirk, dagger or stiletto, commits the crime of felon in possession of a restricted weapon. (3) For the purposes of this section, a person has been convicted of a felony if, at the time of conviction for an offense, that offense was a felony under the law of the jurisdiction in which it was committed. Such conviction shall not be deemed a conviction of a felony if: (a) The court declared the conviction to be a misdemeanor at the time of judgment; or (b) The offense was possession of marijuana and the conviction was prior to January 1, (4) Subsection (1) of this section does not apply to any person who has been: (a) Convicted of only one felony under the law of this state or any other state, or who has been convicted of only one felony under the laws of the United States, which felony did not involve criminal homicide, as defined in ORS , or the possession or use of a firearm or a weapon having a blade that projects or swings into position by force of a spring or by centrifugal force, and who has been discharged from imprisonment, parole or probation for said offense for a period of 15 years prior to the date of alleged violation of subsection (1) of this section; or (b) Granted relief from the disability under 18 U.S.C. 925(c) or ORS or has had the person s record expunged under the laws of this state or equivalent laws of another jurisdiction. (5) Felon in possession of a firearm is a Class C felony. Felon in possession of a restricted weapon is a Class A misdemeanor. ORS Possession of machine guns, short-barreled firearms and firearm silencers (1) A person commits the crime of unlawful possession of a machine gun, short-barreled rifle, short-barreled shotgun or firearms

82 APP - 7 silencer if the person knowingly possesses any machine gun, shortbarreled rifle, short-barreled shotgun or firearms silencer. (2) Unlawful possession of a machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer is a Class B felony. (3) A peace officer may not arrest or charge a person for violating subsection (1) of this section if the person has in the person s immediate possession documentation showing that the machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer is registered as required under federal law. (4) It is an affirmative defense to a charge of violating subsection (1) of this section that the machine gun, short-barreled rifle, short-barreled shotgun or firearms silencer was registered as required under federal law.

83 CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) Brief length I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 8,885 words. Type size I certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(4)(f). NOTICE OF FILING AND PROOF OF SERVICE I certify that I directed the original Respondent's Brief on the Merits to be filed with the Appellate Court Administrator, Appellate Courts Records Section, 1163 State Street, Salem, Oregon 97301, on February 13, I further certify that, upon receipt of the confirmation stating that the document has been accepted by the efiling system, this Respondent s Brief on the Merits will be eserved pursuant to ORAP (regarding electronic service on registered efilers) on Anna Joyce, #013112, Solicitor General, attorney for Petitioner- Respondent and Jordan R. Silk, OSB #105031, attorneys for Amici Curiae Oregon Justice Resource Center. Respectfully submitted, PETER GARTLAN CHIEF DEFENDER OFFICE OF PUBLIC DEFENSE SERVICES ESigned ANNE FUJITA MUNSEY OSB # SENIOR DEPUTY PUBLIC DEFENDER Anne.Munsey@opds.state.or.us Attorneys for Respondent-Appellant Joseph Lucio Jimenez Office of Public Defense Services Appellate Division 1175 Court St. NE Salem, Oregon Telephone: (503) Fax: (503)

84 July 29, :33 PM IN THE SUPREME COURT OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, Petitioner on Review, v. JOSEPH LUCIO JIMENEZ, aka Joseph L. Jimenez, Multnomah County Circuit Court No CA A N SC Defendant-Appellant, Respondent on Review. PETITION FOR REVIEW Petition for review of the decision of the Court of Appeals on appeal from a judgment of the Circuit Court for Multnomah County, Honorable CHRISTOPHER J. MARSHALL, Judge Opinion Filed: May 21, 2014 Author of Opinion: Schuman, S.J. Before: Duncan, P.J.; Wollheim, J.; and Schuman, S.J. Continued

85 PETER GARTLAN # Chief Defender Office of Public Defense Services ANNE FUJITA MUNSEY # Deputy Public Defender 1175 Court St. NE Salem, Oregon Telephone: (503) Attorneys for Defendant-Appellant/ Respondent on Review ELLEN F. ROSENBLUM # Attorney General ANNA M. JOYCE # Solicitor General 1162 Court St. NE Salem, Oregon Telephone: (503) Attorneys for Plaintiff-Respondent/ Petitioner on Review PETITIONER ON REVIEW INTENDS TO FILE A BRIEF ON THE MERITS 7/14

86 TABLE OF CONTENTS Question Presented... 2 Proposed Rule of Law... 2 Statement of Facts... 3 REASONS FOR REVIEW... 6 CONCLUSION APPENDIX Court of Appeals Opinion, State v. Jimenez, CA No. A App 1 TABLE OF AUTHORITIES Cases Cited Pennsylvania v. Mimms, 434 US 106 (1977)... 8 State v. Amaya, 336 Or 616 (2004)... 8 State v. Jimenez, 263 Or App 150, 326 P3d 1222 (2014)... 7 State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010)... 1, 5, 6, 7, 8, 9 State v. Watson, 353 Or 768, 305 P3d (2013)... 8 United States v. Chaney, 584 F3d 20 (1 st Cir 2009)... 8 United States v. Everett, 601 F3d 484 (6 th Cir 2010)... 8 Constitutional and Statutory Provisions Or Const, Art I , 2, 6, 7, 8, 9, 10 ORS (1)... 3 ORS (3)... 3 i

87 PETITION FOR REVIEW This case presents the question whether Article I, section 9 prohibits officers from asking a stopped motorist about the presence of weapons. This court has never answered that question. In State v. Rodgers/Kirkeby, 347 Or 610, 623, 227 P3d 695 (2010), this court held that [p]olice authority to detain a motorist dissipates when the investigation reasonably related to the traffic infraction, the identification of persons, and the issuance of the citation (if any) is completed or reasonably should be completed ; thus, detention of the motorist beyond that point as the result of unrelated questioning must be justified on some basis other than the traffic violation. 347 Or at 623. But this court specifically reserved the question whether questions about the presence of weapons is constitutionally permissible. 347 Or at 619 n2, (expressing no opinion whether the officer s initial question about the presence of weapons violated Article I, section 9). This case squarely presents the question whether Article I, section 9 prohibits police inquiries about the presence of weapons during the processing of the traffic stop. Here, the Court of Appeals construed the rule from Rodgers/Kirkeby to mean that questions about the presence of weapons are unrelated (as this court used the term in Rodgers/Kirkeby) to the traffic stop and thus, where such questions extend the duration of the stop, they violated a

88 2 defendant s Article I, section 9 rights. This court should grant review. Given the high volume of traffic stops that occur daily, review is warranted to determine whether officers may constitutionally ask individual stopped for traffic violations about the presence of weapons to protect their safety and the safety of those nearby. Question Presented During a traffic stop, is a question about the presence of weapons unrelated to the traffic stop so that if officers ask about the presence of weapons in the absence of reasonable suspicion and in a way that extends the duration of the stop, the officer has violated the defendant s Article I, section 9 rights to be free from unreasonable searches and seizures? Alternatively, even if a question about the presence of weapons is unrelated to the basis for the traffic stop, is such a question nonetheless reasonable under Article I, section 9? Proposed Rule of Law In the traffic-stop context, police questioning about the presence of weapons is related to the traffic stop; part and parcel of conducting a traffic stop is ensuring that the officer is able to process the stop safely. Moreover, a single question about the presence of weapons is reasonable under Article I, section 9, because it is minimally intrusive and the duration is brief.

89 3 Statement of Facts Oregon State Police Trooper Caleb Borchers was in his cruiser, mid-day, patrolling the area near 122 nd and Division in Southeast Portland. (Tr 7-8, 35-37). The trooper knew the area was high crime, and had gang activity[.] (Tr 13). Trooper Borchers saw defendant cross the street against a Don t Walk signal. (Tr 8). He concluded that defendant had committed the traffic violation of failing to obey a traffic control device. ORS (1), (3) (Tr 8). Trooper Borchers turned his cruiser around and headed back to defendant s location. (Tr 8-9). He saw that defendant was seated at a bus stop. (Tr 9). When Trooper Borchers pulled his cruiser over near defendant, defendant looked over at him and immediately got up and began to walk away. (Tr 9, 25). The trooper honked his horn and motioned for defendant to come back to him, and defendant complied. (Tr 9). The trooper was in uniform, and he had activated the overhead lights on the cruiser at the time he stopped defendant. (Ex 1; Tr 12-13). The trooper was alone when he stopped defendant. (Tr 15). He observed that defendant wore an oversized, puffy black jacket, a hoodie sweatshirt with the hood up, very large, baggy gray pants, and white tennis shoes. (Tr 13; Ex 1). Trooper Borchers was not sure that defendant was affiliated with a gang, but he did know that gang members often will wear a gray baggy pants and the white shoes[.] (Tr 11). He also knew that [w]ith that big baggy of clothes, I have * * * an idea what he s got under it and [it s] easy to conceal a multitude of weapons[.]

90 4 (Tr 26). [M]ultiple people had stopped to watch the trooper s encounter with defendant and they were in very close proximity ; the trooper did not know if they were rival gang members, and he was afraid of being attacked or being caught in crossfire or something. (Tr 12-14, 18). Defendant s clothing, combined with the area and the other people nearby, caused the trooper to be concerned that defendant might be an armed gang member who might pose a danger to his safety. (Tr 11). When defendant approached, Trooper Borchers explained that he had stopped defendant for crossing against the signal. (Tr 9). He asked defendant about the circumstances, and defendant explained that he had thought it was alright to cross the street when he did. (Tr 9). Immediately afterward, the trooper asked defendant if he was armed. (Tr 10; Ex 1). He did so for officer safety reasons. (Tr 10). Trooper Borchers explained that he routinely asks about weapons when he encounters pedestrians; he also stated, as shown above, that the area, onlookers, and defendant s appearance had caused him to be particularly concerned for his safety in this situation. (Tr 10-14, 26, 44). In response to the trooper s inquiry about weapons, defendant said that he had a gun in his right front pants pocket. (Tr 10; Ex 1). He promptly separated his feet, leaned forward, and put his hands on the patrol car. (Tr 10). The trooper placed defendant in handcuffs, for his safety and defendant s safety. (Tr 12). He asked defendant if he had a license to carry the gun, and defendant replied that he

91 5 did not. (Tr 12). The trooper unzipped defendant s jacket, patted defendant down, felt the gun, and opened defendant s pants pocket and visually confirmed the presence of the gun. (Tr 14-16; Ex 1). The state subsequently charged defendant with one count of unlawful possession of a firearm and one count of possessing a loaded firearm in public. (ER 1). Defendant moved to suppress evidence of the firearm and ammunition Trooper Borchers found on defendant, arguing that the trooper had unlawfully extended the stop when he asked defendant about the presence of weapons. (ER 3). The trial court denied the motion to suppress, finding that the trooper s inquiry and the pat-down fell within the officer-safety exception. 1 (Tr 72). Defendant appealed, and the Court of Appeals reversed. The court began by observing that this court s decision in Rodgers/Kirkeby contains contrary directives. On one hand, it states that verbal inquiries during a traffic stop are not searches and seizures. On the other hand, the decision indicates that traffic stops involve a show of authority because the person stopped cannot leave. The Court of Appeals resolved the ambiguity in favor of the defendant: [W]e conclude that, when a person is approached by a police officer whether the person is in an automobile, on a bicycle, or on foot for committing a noncriminal traffic 1 Defendant waived his right to a jury and tried his case to the court. The court found defendant guilty of unlawful possession of a firearm, and acquitted him on the charge of possession of a loaded firearm in public. (App Br 1; ER 5).

92 6 violation, and the police officer and the person know that is the basis for the stop, then the officer who has approached the person must proceed to process the traffic violation, and may not launch an investigation into unrelated matters unless the inquiries are justified by reasonable suspicion of the unrelated matter, the inquiry occurred during an unavoidable lull in the citation-writing process, or some exception to the warrant requirement applies. The court then held that because the questioning about weapons did not occur during an unavoidable lull while processing the traffic stop, and the officer did not have reasonable suspicion of another crime in addition to the violation, the officer s question violated Article I, section 9. REASONS FOR REVIEW In Rodgers/Kirkeby, this court did not address because the question was not presented whether Article I, section 9 prohibits officers from asking about the presence of weapons during the processing of a traffic stop. This case squarely presents that question. And it is a question that needs to be answered, given the frequency with which this issue arises and because it appears that the Court of Appeals has taken Rodgers/Kirkeby beyond its bounds to categorically prohibit officers from asking about the presence of weapons in the absence of reasonable suspicion to believe that weapons are present. As noted, in Rodgers/Kirkeby, this court held that [p]olice authority to detain a motorist dissipates when the investigation reasonably related to the traffic

93 7 infraction, the identification of persons, and the issuance of the citation (if any) is completed or reasonably should be completed ; thus, detention of the motorist beyond that point as the result of unrelated questioning must be justified on some basis other than the traffic violation. 347 Or at 623. Where police ask questions unrelated to the traffic stop in combination with physical restraint or a show of authority and that have the effect of unreasonably extending the duration of the traffic stop, that conduct runs afoul of Article I, section 9. But this court was careful to note that the officer s single inquiry about weapons was not at issue in the case and therefore did not address whether that weapons-based inquiry ran afoul of Article I, section 9. Id. at Despite the fact that this court specifically reserved the question whether the weapons-based inquiry violated Article I, section 9, the Court of Appeals interpreted Rodgers/Kirkeby as having answered that question. 2 The court held that questions about the presence of weapons or any other subject that is not related to the basis for the traffic stop are unconstitutional. That interpretation of Rodgers/Kirkeby runs contrary to this court s decision in that case, inasmuch as 2 The Court of Appeals did not reach that conclusion easily, however. The court noted that Rodgers/Kirkeby contained inherently contradictory directives about how analyze the constitutionality of such questions. See State v. Jimenez, 263 Or App 150, 154, 326 P3d 1222 (2014) (opining that Rodgers/Kirkeby appears to point simultaneously and with equal vigor in opposite directions ). Having considered both a broader and narrower construction of Rodgers/Kirkeby, the court opted for the narrower route, holding that any questions unrelated to the reason for the traffic stop were unconstitutional. Id. at 157.

94 8 this court explicitly reserved the question whether an inquiry about the presence of weapons was permissible. 3 See also State v. Watson, 353 Or 768, 785 n18, 305 P3d (2013) (explicitly reserving the question of whether an officer s inquiries made during the pendency of a valid seizure implicate Article I, section 9 ). The court s decision here also ignores Article I, section 9 s mandate that all seizures be reasonable. It cannot be said that in every case, every question about the presence of weapons, or any other subject, is unreasonable. Rather, that determination must be made in the context of the facts and circumstances of the specific case. Moreover, other courts that have considered whether officers can ask about the presence of weapons during a traffic stop have given great weight to the importance of officer safety in the context of the danger that inures in traffic stops. See e.g., Pennsylvania v. Mimms, 434 US 106, 110 (1977) (officer safety concerns must be given a legitimate and weighty interest ). Thus, courts have repeatedly held that officers who conduct a traffic stop can ask about the presence of weapons. See e.g. United States v. Chaney, 584 F3d 20 (1 st Cir 2009), United States v. Everett, 601 F3d 484 (6 th Cir 2010). Framed in terms of Rodgers/Kirkeby, 3 The Court of Appeals interpretation also appears to run contrary to this court s repeated holdings that questions asked by officers during seizures are not searches and seizures and thus by themselves do not implicate Article I, section 9. Rodgers/Kirkeby, 347 Or at 622; see also See State v. Amaya, 336 Or 616, 626 (2004) ( To the extent that defendant argues that every question by an officer that is unrelated to the reason for a valid traffic stop violates Article I, section 9, unless the question is based on reasonable suspicion, we reject defendant s argument. ).

95 9 those courts have essentially held that questions about the presence of weapons are part and parcel of the traffic stop, and thus not unrelated to the traffic stop. But the Court of Appeals has given no weight to officer safety concerns, instead aggregating questions directed towards ensuring officer safety into the same category as all other unrelated question that are not asked during an unavoidable lull. Answering the question whether Rodgers/Kirkeby prohibits officers from asking about the presence of weapons is important. Police officers, litigants and courts need guidance about the permissible scope of the thousands of traffic stops conducted each day. If, as the Court of Appeals has held, questions about the presence of weapons run afoul of Article I, section 9, then officers need to know as much to conform their actions to the constitution. Additionally, if the rule of Rodgers/Kirkeby is as broad as the Court of Appeals has construed it, it should be this court that says so. That holds particularly true where it appears that the Court of Appeals has expanded Rodgers/Kirkeby beyond what this court intended.

96 10 CONCLUSION For the foregoing reasons, this court should grant review to decide whether officers questions during traffic stops about the presence of weapons violate Article I, section 9. Respectfully submitted, ELLEN F. ROSENBLUM Attorney General AMJ:blt/ /s/ Anna M. Joyce ANNA M. JOYCE # Solicitor General Attorneys for Plaintiff-Respondent/ Petitioner on Review State of Oregon

97 APPENDIX

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107 App 10 Ý» îêíñ ß ïëðøîðïì ïëç Í»ªòÞ» ôíðìñ ëïçôëîìôéìéðî¼ççïøïçèé ò ²¼»½ ¼ó ²¹»»»» ½» ±²» ô»» ±» ³ ²»» ± ±º»½ ½«³ ²½»»» ±² ¾»»¼ ± û ³»òÍ»ªòÖ ½µ ±²ôïçðÑ ß ïçìô ïççôéèðí¼ëèìøîððí ô»ª¼»²ôííéñ ïèîøîððì ò É»²Þ± ½» ³ ¼»»«²»»¼ ² «²ª± ªó ²¹» ±² ô» ô ½± ¼ ²¹ ±»»ô»±º» º± ± ²¹»»ª ² º ½ æ Åøï Øûµ²»»» ±º» ± ¹ ó½ ³»» ¹ ²¹ ½ ª òåøî ÃÉ»²» «²»¼ ½ ±«²¼ ²¼ ± ½»¼¼»º»²¼ ² ô¼»º»²¼ ² ±µ»¼» ±» ²¼ «½µ ¾»¹ ² ±» ª»ô º» ¼ ±³» ²¹ ± ¼»òÅøí ÃÌ ±±» Þ± ½» µ²» ¹ ²¹³»³¾» ²»» ±»¾ ¹¹ ¹ ² ²¼» ±» ô µ»» ² ²¼ ±» ¼»º»²¼ ² ±»òåøì ÃØ» ¼»º»²ó ¼ ² ±» ²»»³» ¾ ¹¹ ½µ» ²¼ ² ô ½ ±«¼ ª» ±»¼¼»º»²¼ ² ± ¼»²«³» ± ±² ò Åøë ÃÉ»²»³ ¼»½±² ½ ¼»º»²¼ ² ôì ±» Þ± ½» ±²»òÅøê ÃÌ»»»»»ª»»±» ² ½ ±» ± ³ ô» ±» ¼ ¼²± µ²±»» ±² ¾»»²¼»º»²¼ ² ²¼ ±»»±»ô ²¼» «±² ½ ¼ ³ ±º»»³ ¹ ¾»½ «¹ ²»³ ¼¼»±º ¹ ²¹½±²º ±² ±²ò É»»»»² ª» ±±«±¾ ¹ ±²²± ± Þ» ô íðìñ ëîìô»½±²½ «¼»»»º ½ ¼±²± ½»» ß¼¼» ²¹»» º ½ ± ² ¾ ± ² æøï ß ±«¹ ½±²ó º ±² ²¹ ½ ² ¹ ó½ ³»» ½ ²½±² ¾ ± Í»ªòß³ ôííêñ êïêôêíïóííô èçðí¼ïïêíøîððì ô «½ ±½ ±² ²»ª» ¾»²»¹ ¼»¼ ó ¹» ò ê ß»» ²¾» ± ô» «±²»» ²± ±º ± ¼» òú ôþ± ½» ½±²º ±²»¼¼»º»²¼ ² ³ ¼ó¼ ²¼ ¾«½±³³» ½ ²»»½ ±²òØ ¹ ó½ ³»» ê ½«±½ ±² ¹ ó½ ³»»» ² ²¹³±» ²» ½»²¹»¼ò

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109 App 12 Ý» îêíñ ß ïëðøîðïì ïêï ¼ò øë Ì»º ½ Þ± ½» ±²»»»ª ² ô¾«øê ß»¾ ¹¹ ½ ±» ô ±»±¾» ª» ò Þ± ½» ¼ ¼²± ²± ½»»»±»«² º»» ¼ ó ±²»¼¼»º»²¼ ² ¾± ±² ò è Ûª»²»²ô ½± ¼ ²¹» ½»¼ ±«²¼ ±» ¹»±»ò ² «³ô»»»ª ² º ½ ¾± ¼± ² ±»»æß» ³»»¾»¹ ² ±² ²¹¼»º»²¼ ² ¾± ó ±² ôþ± ½» ô ²¾ ± ¼¼ ¹ ô ¾«²»»½ ±² ² ¹ ²¹ ½ ª ±½¼ô½±²º ±²»¼¼»º»²¼ ² ô ±³» ¼»² µ ²¹òÜ»º»²¼ ²»¼ ± µ º ±³» ²»»½ ±²»²Þ± ½» ª»¼ô¾«±»¼»² Þ± ½» µ»¼ ³ ±¼± ±òü»º»²¼ ²» ²¹ ±³» ó ±²òÜ»º»²¼ ² ²»» «²½±» ª»²±»ª ¼»² «² ª± ¼ ¾» «²» ±½» ±º½ ²¹¼»º»²¼ ² ô ²¼²±» ½» ±² ±» ²» ³»²»»¼òÉ»»»º±»»ª»» ²¼»³ ²¼ò ïð 못»¼ ²¼»³ ²¼»¼ò ½»» ²Þ± ½» ³ ²¼» ±² ¾» «½ ±² ¼»º»²ó ¼ ²»»²»¼ µ ±Þ± ½» º» ò ç Ì «ôþ± ½» «¼¼»² ô ²± ½»¼»» ¼±²»³»³¾»»» ½ ²«³¾» ô¾«± ³» ±» ¹»±» ²¼ ²¹ ±«²¼»¾«± ô ±±µ ²¹ ¼»½ «ò è Í»îêíÑ ß ïêðóêï²éò ç ó º» ¼» ±² ò ïð Ì»»¼±» ²± ½±²»²¼»¼ ½±ª» ±º ²±«²¼ ²¹ ² º± ¼»º»²¼ ²»»²¼»¼ ½±ª» ±º»ª ¼»²½»º ±³»½±² «ó ±² ª ± ±²òÉ»²±» ²±½» ± ¼ ± ³» ¼ ½±ª» ±º ² «¹»» ² ±º ± ½±² «±² ª ± ±² ± ±»²¼» ¼³ ¾»»ª ó ¼»²½»¼ ½±ª»»¼¾»º±»»¼ ½±ª» ±º» ² ò

110 NOTICE OF FILING AND PROOF OF SERVICE I certify that on July 29, 2014, I directed the original Petition for Review to be electronically filed with the Appellate Court Administrator, Appellate Records Section, by using the electronic filing system. I further certify that on July 29, 2014 I directed the Petition for Review to be served upon Peter Gartlan and Anne Fujita Munsey, attorneys for appellant/respondent on review, by having the document personally delivered to: Peter Gartlan # Chief Defender Office of Public Defense Services Anne Fujita Munsey # Deputy Public Defender 1175 Court St. NE Salem, Oregon anne.k.munsey@opds.state.or.us Continued

111 CERTIFICATE OF COMPLIANCE WITH ORAP 5.05(2)(d) I certify that (1) this brief complies with the word-count limitation in ORAP 5.05(2)(b) and (2) the word-count of this brief (as described in ORAP 5.05(2)(a)) is 2,297 words. I further certify that the size of the type in this brief is not smaller than 14 point for both the text of the brief and footnotes as required by ORAP 5.05(2)(b). /s/ Anna M. Joyce ANNA M. JOYCE # Solicitor General anna.joyce@doj.state.or.us Attorney for Plaintiff-Respondent/ Petitioner on Review State of Oregon AMJ:blt/

112 April 2, :07 PM IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. Multnomah County Circuit Court Case No CA A JOSEPH LUCIO JIMENEZ, aka Joseph L Jimenez, Defendant-Appellant. APPELLANT S OPENING BRIEF Appeal from the Judgment of the Circuit Court for Multnomah County Honorable Christopher J. Marshall, Judge PETER GARTLAN # Chief Defender ANNE FUJITA MUNSEY # Senior Deputy Public Defender Office of Public Defense Services 1175 Court Street NE Salem, OR anne.munsey@opds.state.or.us Phone: (503) Attorneys for Defendant-Appellant JOHN R. KROGER # Attorney General ANNA JOYCE # Solicitor General 400 Justice Building 1162 Court Street NE Salem, OR anna.joyce@doj.state.or.us Phone: (503) Attorneys for Plaintiff-Respondent /12

113 i TABLE OF CONTENTS STATEMENT OF THE CASE...1 Nature of the Proceeding...1 Nature of the Judgment...1 Jurisdiction...1 Notice of Appeal...2 Question Presented...2 Summary of Argument...2 Summary of Facts...3 ASSIGNMENT OF ERROR...6 The trial court erred in denying defendant s motion to suppress evidence. Preservation of Error...6 Standard of Review...8 Argument...9 I. During a traffic stop, questions unrelated to the investigation and issuance of the citation that extend the duration of the stop are impermissible, unless supported by reasonable suspicion....9 II. The officer unlawfully extended the traffic stop when he asked defendant whether he had any weapons, because the officer did not have any specific and articulable officer safety concerns...13 III. The discovery of the gun and defendant s incriminating statements were tainted by the unlawful stop...15 CONCLUSION...18

114 ii TABLE OF AUTHORITIES CASES State v. Bates, 304 Or 519, 747 P2d 991 (1987)...13 State v. Craft, 228 Or App 245, 206 P3d 1220 (2009)...13 State v. Dempster, 248 Or 404, 434 P2d 746 (1967)...17 State v. Ehly, 317 Or 66, 854 P2d 421 (1993)...8 State v. Ehret, 184 Or App 1, 55 P3d 512 (2002)...8 State v. Gomes, 236 Or App 364, 236 P3d 841 (2010)...10 State v. Hall, 339 Or 7, 115 P3d 908 (2005)... 8, 15 State v. Hampton, 247 Or App 147, 268 P3d 711 (2011)...10 State v. Hendon, 222 Or App 97, 194 P3d 149 (2008)...11 State v. Hoskinson, 320 Or 83, 879 P2d 180 (1994)...14 State v. Klein, 234 Or App 523, 228 P3d 714 (2010)...11 State v. Komas, 170 Or App 468, 13 P3d 157 (2000)...14 State v. Martusheff, 235 Or App 568, 232 P3d 998 (2010)...12 State v. Rodgers, 219 Or App 366, 182 P3d 209 (2008), aff d, 347 Or 610, 227 P3d 695 (2010)... 2, 9, 10, 11 State v. Rodgers/Kirkeby, 347 Or 610, 227 P2d 695 (2010)... 2, 9, 12, 13 State v. Thorpe, 236 Or App 459, 236 P3d 789 (2010)...12 State v. Walker, 181 Or App 548, 47 P3d 65 (2002)...14 State v. Weil, 225 Or App 65, 200 P3d 164 (2008)...13

115 iii CONSTITUTIONAL PROVISIONS AND STATUTES Or Const, Art I, , 10, 15, 16 ORS OTHER AUTHORITIES ORDP 14A

116 APPELLANT S OPENING BRIEF STATEMENT OF THE CASE Nature of the Proceeding This is a criminal appeal in which defendant challenges a judgment of conviction and sentence for unlawful possession of a firearm. Defendant was charged by information with unlawful possession of a firearm, ORS , and possession of a loaded firearm in public, ORDP 14A A copy of the information is attached at ER-1. Nature of the Judgment Defendant waived jury and tried his case to the court. The court convicted defendant of unlawful possession of a firearm and acquitted him of possession of a loaded firearm in public. The trial court sentenced defendant to 18 months of bench probation with 40 hours of community service. It imposed $182 in fines and fees. A copy of the judgment is attached at ER-5. Jurisdiction This court has jurisdiction pursuant to ORS

117 2 Notice of Appeal Defendant timely filed notice of appeal on June 9, 2011, from the judgment entered in Multnomah County Circuit Court on May 10, Question Presented Does an officer impermissibly extend the duration of a noncriminal pedestrian traffic stop when he asks whether the person has any weapons because he does so as a matter of routine during every pedestrian stop? Summary of Argument Since the Supreme Court issued its opinion in State v. Rodgers/Kirkeby, 347 Or 610, 227 P2d 695 (2010), this court has continued to adhere to the rule that any questioning during a noncriminal traffic stop that is unrelated to the investigation and issuance of a traffic citation impermissibly extends the duration of the stop, unless it occurs during an unavoidable lull or is supported by reasonable suspicion. That includes questions related to officer safety when the officer does not have reasonable suspicion that the person poses a threat to his safety. In this case, the officer stopped defendant for crossing against a Don t Walk sign. After questioning defendant as to why he had committed the violation, but before obtaining his identification, the officer asked defendant whether he had any weapons. The officer testified that he did so as a matter of

118 3 routine not because he had any particular officer safety concerns about defendant. That was an unlawful extension of the traffic stop and all evidence discovered as a result must be suppressed. Summary of Facts Motion to Suppress On January 24, 2011, shortly after noon, Oregon State Police officer Caleb Borchers saw defendant cross at a crosswalk against a Don t Walk signal at the corner of 122 nd and Division in southeast Portland, Multnomah County, Oregon. Tr 7-8, That constitutes the class D violation of failure to obey a traffic control device, pedestrian. Tr 8, 40. The officer turned his car around and approached defendant. Defendant had already crossed the street and was sitting at a bus stop. Tr 8-9, 26. When defendant saw the officer approaching, he got up and began to walk away. Tr 9. The officer honked his horn and motioned for defendant to come back to where the officer was. Tr 9, 40. The officer got out of his car, introduced himself to defendant, and explained why he had stopped him. He asked defendant why he had committed the violation, and defendant said that he saw someone else cross the street so figured that it was okay for him to do so. The officer told him that he understood what he was saying, but the light was red and said Don t Walk.

119 4 Defendant indicated that he knew that and said, yeah, but someone else crossed so I thought it was okay as well. Tr 9. The officer testified: [OFFICER BORCHERS:] At that time point, for officer safety reasons, I just asked [defendant] if he had any weapons on him, which I do with all contacts on the street with pedestrians, just for -- obviously for officer safety reasons. It makes a lot easier if we can stand and have a normal conversation if there s no weapons on the person. 1 Tr 10. Defendant sighed, closed his eyes, and said Yes. The officer asked what it was and defendant said, I have a gun and it s in his [sic] right front pocket. Without the officer saying anything, defendant immediately separated his feet, leaned forward, and put his hands on the hood of the patrol vehicle. Tr 10. Defendant was wearing a puffy black jacket, a hoodie sweatshirt under the jacket, very large oversized baggy gray pants, and white tennis shoes. Tr 11, He had a long lanyard that appeared at first to be green. Tr 11, On redirect, the officer repeated his explanation of why he had asked defendant whether he had a weapon: Tr 44. [OFFICER BORCHERS:] Any time I m in contact with a pedestrian on the street for a violation and I am within, you know, such a close proximity to the person, for officer safety reasons, I always check for weapons. I do that, obviously, for my safety and for their safety and allows us to have a conversation, you know, once I determine whether or not there s any weapons on the person.

120 5 The stop occurred in a high crime area with a lot of gang activity. Tr 11. Some of defendant s attire was indicative of gang involvement, but the officer did not know for sure whether defendant was involved in gang activity. Tr 11. Immediately after defendant put his hands on the patrol car, the officer put defendant in handcuffs, for my safety and his safety. Tr 12, 41-42, 44. He asked defendant whether he had a license for the weapon. Tr 12. Defendant said No. Tr 12. The officer unzipped the jacket, patted defendant down, felt the gun, opened the pocket and visually confirmed it was a firearm, but left the gun in defendant s pocket while he finished the pat down and retrieved defendant s identification from his wallet. Tr 14-16, 26, 43. He explained that he left the gun in defendant s pocket because defendant was in restraints, he did not want to announce to onlookers that defendant had a weapon, and he did not want to leave it sitting on the hood of the car unattended or stuck in the belt of his pants. Tr 15. Defendant said he had a gun for protection from the streets. Tr 16. He admitted that he was an active member of the Pine Street gang. Tr 16. His sweatshirt displayed gang indicia and he had a do-rag, which is indicative of gang membership, in his pocket. Tr 17. The officer ran a standard DMV and wants check through dispatch and learned that defendant had an active warrant for his arrest. Tr 18. Backup never arrived, so eventually, the officer

121 6 seized the weapon, put defendant in the back of the patrol car, and secured the weapon in the trunk of the patrol car. Tr 19. Court Trial On January 24, 2011, Oregon State Police officer Caleb Borchers stopped defendant at SE 122 nd and Division in Portland, Multnomah County, Oregon, because defendant had crossed against the Don t Walk sign. Tr 90-92, 94. During the stop, the officer asked defendant whether he had any weapons on him, and defendant indicated that he had a gun in his right front pocket. Tr The officer found the gun. Tr It was a smaller frame,.22 caliber, semiautomatic weapon made by Baretta. Tr 97. The gun was loaded. Tr 97. The officer performed a standard functions check in the field and cleared the weapon. Tr 97. It appeared to be in working order, but the officer did not fire it. Tr 97. ASSIGNMENT OF ERROR The trial court erred in denying defendant s motion to suppress evidence. Preservation of Error Defendant filed a written motion to suppress all evidence, both tangible and testimonial, obtained during the illegal seizure of defendant by Officer Borchers on January 24, 2011, as well as all fruits from that illegal seizure.

122 7 Motion to Suppress Evidence at ER 2-4. He argued that he was illegally seized because the stop of defendant was unlawfully extended when the officer asked about weapons. The officer discovered the firearm during the illegal seizure. Id. At the May 9, 2011, motion to suppress hearing, defendant renewed his arguments. Tr He explained, [the case law is] talking about during an inquiry on a noncriminal traffic violation, the police officer cannot do anything to delay the moving forward of the process, and the delay created by the officer was asking about weapons. Tr 60. He argued that the state presented no evidence of individualized officer safety concerns, based on either defendant or the surrounding environment. Tr 64. When the court asked about the fact that defendant initially tried to walk away from the officer and the significance of defendant s clothing, defendant responded that the desire to avoid police interaction does not create an officer safety concern and that much of the gang affiliation information associated with defendant s clothing came after the stop had been unlawfully delayed. Tr He also argued that all of defendant s statements were made during the illegal seizure or were a product of it. Tr The trial court denied the motion to suppress: THE COURT: All right. The Court has very carefully considered the record and -- and watched the video very closely, and the Court s going to deny that motions to suppress.

123 8 Tr 72. The Court finds that it does fit the officer safety exception to the warrantless search given all of the circumstances of -- of the case and the question of do you have a weapon, yes, and given the response, yes, what, was a continuation of this officer safety exception, and then the response of gun then led to the continuous -- the search and the pat-down that occurred at that -- all still within the officer safety exception there. Standard of Review When reviewing a trial court s denial of a motion to suppress, this court is bound by the trial court s findings of historical fact provided there is evidence in the record to support them. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). However, this court is not bound by the trial court s legal conclusions, and reviews them for errors of law. Id. Whether a traffic stop has been unlawfully expanded is a question of law. State v. Ehret, 184 Or App 1, 7, 55 P3d 512 (2002). Whether evidence was obtained through the exploitation of an unlawful stop or through some other lawful means is also a question of law. State v. Hall, 339 Or 7, 34-35, 115 P3d 908 (2005).

124 9 Argument I. During a traffic stop, questions unrelated to the investigation and issuance of the citation that extend the duration of the stop are impermissible, unless supported by reasonable suspicion. Article I, section 9, of the Oregon Constitution protects individuals against unreasonable searches and seizures. 2 In State v. Rodgers/Kirkeby, 347 Or 610, 227 P2d 695 (2010), the Supreme Court discussed the operation of Article I, section 9, during a noncriminal traffic stop. It explained: Id. at 624. Police conduct during a noncriminal traffic stop does not further implicate Article I, section 9, so long as the detention is limited and the police conduct is reasonably related to the investigation of the noncriminal traffic violation. However, a police search of an individual or a vehicle during the investigation of a noncriminal traffic violation, without probable cause and either a warrant or an exception to the warrant requirement, violates Article I, section 9. Because police inquiries during a traffic stop are neither searches nor seizures, police inquiries in and of themselves require no justification and do not necessarily implicate Article I, section 9. However, police inquiries unrelated to a traffic violation, when combined with physical restraint or a police show of authority, may result in a restriction of personal freedom that violates Article I, section 9. 2 Article I, section 9, provides: Unreasonable searches and seizures. No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.

125 10 This court has interpreted Rodgers to mean that, when police engage in questioning during a noncriminal traffic stop that is unrelated to the investigation and issuance of the traffic citation, the police have unlawfully extended the duration of the stop, in violation of Article I, section 9. State v. Gomes, 236 Or App 364, 371, 236 P3d 841 (2010) ( We therefore conclude that, under the Supreme Court s Rodgers opinion, we have correctly concluded in a number of cases that a police officer unnecessarily and unlawfully extends the duration of a traffic stop when the officer begins a line of questioning unrelated to the traffic stop after having obtained, or instead of obtaining, the information necessary to proceed with citing the defendant. ); see also State v. Hampton, 247 Or App 147, 152, 268 P3d 711 (2011) ( Questioning that causes an extension of the traffic stop, however, is the functional equivalent of a new restraint of the motorist s liberty, and must be supported by reasonable suspicion that the motorist has engaged in some further criminal activity. ) (quoting State v. Rodgers, 219 Or App 366, 371, 182 P3d 209 (2008), aff d, 347 Or 610, 227 P3d 695 (2010)). It does not matter whether the unrelated questioning occurs during the stop or at its end either extends the duration of the stop unless the questioning occurs during an unavoidable lull. Gomes, 236 Or App at As this court explained:

126 11 [A]lthough an officer is free to question a motorist about matters unrelated to the traffic infraction during an unavoidable lull in the investigation, such as while awaiting the results of a records check, that officer is not similarly free to question the motorist about unrelated matters as an alternative to going forward with the next step in processing the infraction, such as the writing or issuing of a citation. When an officer has all of the information necessary to issue a citation but instead delays in processing it or in telling the motorist that he or she is free to go, the stop is no longer lawful unless the officer has reasonable suspicion of further criminal activity. Id. (quoting Rodgers, 219 Or App at ). The rule applies to pedestrian traffic stops as well as stops of motorized vehicles. See State v. Hendon, 222 Or App 97, , 194 P3d 149 (2008) (appellate court relied on case law concerning traffic stops when defendant stopped on foot for non-criminal trespass). For example, in State v. Klein, 234 Or App 523, 228 P3d 714 (2010), the officer stopped the defendant for riding his bicycle at night without a reflector or a light and for failing to signal a turn. During the stop, the officer developed reasonable suspicion that the defendant possessed burglary tools because he had a key ring with approximately 30 keys on it, some of which appeared to be blank and others that appeared to have been filed down. However, rather than pursuing that line of investigation, the officer questioned the defendant about drugs. On appeal, the state argued that the officer s questions about drugs

127 12 took, at most, one minute, and that any delay in processing the traffic stop or conducting a permissible inquiry into the keys effectuated, at most, a de minimis delay that did not render the duration of the traffic stop constitutionally unreasonable. Id. at 528. This court rejected that argument and held that the officer s questions about drugs without reasonable suspicion that the defendant possessed them unconstitutionally extended the duration of the stops as to either the traffic offense or unlawful possession of burglary tools. Id. at 532; see also State v. Thorpe, 236 Or App 459, 236 P3d 789 (2010) (state conceded that police officer, who stopped defendant for riding his bicycle at night without a headlight, unlawfully extended the duration of the traffic stop when the officer, without reasonable suspicion, began questioning defendant about drugs and repeatedly asked for consent to search. ); State v. Martusheff, 235 Or App 568, 232 P3d 998 (2010) (state conceded that police officer unlawfully extended the traffic stop when, without reasonable suspicion, he asked defendant if he possessed drugs * * * rather than proceeding to gather the information necessary to cite defendant for failing to have a light on his bicycle, or letting him go ). This court relied on the Supreme Court s Rodgers/Kirkeby decision in all three cases.

128 13 The Rodgers/Kirkeby limitation on questioning applies to questions about weapons as well as drugs. Unless an officer has a reasonable suspicion, based on specific and articulable facts, that a person stopped for a noncriminal traffic infraction possesses a weapon or poses some other threat to his safety, the officer may not pursue that line of inquiry. See State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987) (holding that an officer is permitted to take reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present ). In State v. Craft, 228 Or App 245, 206 P3d 1220 (2009), this court held that the defendant was unlawfully seized when, during a traffic stop and without reasonable suspicion, the officer asked the defendant about the presence of weapons. See also State v. Weil, 225 Or App 65, 200 P3d 164 (2008) (same). II. The officer unlawfully extended the traffic stop when he asked defendant whether he had any weapons, because the officer did not have any specific and articulable officer safety concerns. After stopping defendant for the noncriminal traffic violation of crossing against a Don t Walk sign and questioning defendant as to why he had committed the violation, but before obtaining his identification, the officer asked defendant whether he had any weapons. The officer testified that he did

129 14 so as a matter of routine not because he had any particular officer safety concerns about defendant: [OFFICER BORCHERS:] At that time point, for officer safety reasons, I just asked [defendant] if he had any weapons on him, which I do with all contacts on the street with pedestrians, just for -- obviously for officer safety reasons. It makes a lot easier if we can stand and have a normal conversation if there s no weapons on the person. Tr 10 (emphasis added); see also Tr 44 (quoted at n 1, supra). Although the officer later testified that the clothes defendant was wearing could be associated with gang involvement (but he wasn t sure) and that they were big and baggy so could conceal a weapon, those were not the reasons that he asked defendant about weapons. He testified that he does that with all contacts on the street. That is impermissible. Oregon courts have held on numerous occasions that a regular practice cannot justify officer safety concerns. State v. Hoskinson, 320 Or 83, 87 88, 879 P2d 180 (1994) (an officer s normal practice insufficient to justify officer safety search of wallet); State v. Walker, 181 Or App 548, 552, 47 P3d 65 (2002) (officer s explanation that before he returns property to someone, he always first checks for weapons and that he was not confident of his trainee backup was insufficient to justify officer safety search); State v. Komas, 170 Or App 468, 474, 13 P3d 157 (2000) (officer s normal practice to check item belonging to

130 15 arrested person for weapons before delivering it to a bystander did not justify officer safety search). Under the circumstances in this case, the officer did not have a reasonable suspicion that defendant presented a threat to his safety. Consequently, he was not justified in making the inquiry. Because the question about weapons was unrelated to the investigation and issuance of the traffic citation and did not occur during an unavoidable lull, it unlawfully extended the duration of the traffic stop. Consequently, defendant was unlawfully stopped, and all evidence discovered as a result must be suppressed. III. The discovery of the gun and defendant s incriminating statements were tainted by the unlawful stop. In State v. Hall, 339 Or 7, 115 P3d 908 (2005), the Supreme Court discussed when illegal police conduct requires suppression. First, the defendant must show a minimal factual nexus between unlawful police conduct and the evidence sought to be suppressed. Id. at That minimal factual nexus is established by showing that but for the illegal police conduct, the evidence would not have been discovered. Id. at 25, 27. Once the defendant has passed that threshold, the state nevertheless may establish that the disputed evidence is admissible under Article I, section 9, by proving that the evidence did not derive from the preceding illegality. To make that showing, the state must prove that either (1) the police inevitably

131 16 would have obtained the disputed evidence through lawful procedures even without the violation of the defendant s rights under Article I, section 9; (2) the police obtained the disputed evidence independently of the violation of the defendant s rights under Article I, section 9; or (3) the preceding violation of the defendant s rights under Article I, section 9, has such a tenuous factual link to the disputed evidence that that unlawful police conduct cannot be viewed properly as the source of that evidence. Id. at 25 (citations omitted). In determining whether the state has met its burden under the third option of attenuation, the nature of the causal connection becomes critical: Deciding whether the state has satisfied that burden requires a fact-specific inquiry into the totality of the circumstances to determine the nature of the causal connection between the unlawful police conduct and the defendant s consent. A causal connection requiring suppression may exist because the police sought the defendant s consent solely as the result of knowledge of inculpatory evidence obtained from unlawful police conduct. A causal connection requiring suppression also may exist because the unlawful police conduct, even if not overcoming the defendant s free will, significantly affected the defendant s decision to consent. Although determining the existence of such a causal connection requires examination of the specific facts at issue in a particular case, we view several considerations to be relevant to that determination, including (1) the temporal proximity between the unlawful police conduct and the defendant s consent, (2) the existence of any intervening circumstances, and (3) the presence of any circumstances such as, for example, a police officer informing the defendant of the right to refuse consent that mitigated the effect of the unlawful police conduct. Id. at 35 (footnote omitted). Here, but for the illegal extension of the traffic stop, the officer would not have discovered the gun. Defendant s admission that he possessed a gun was in

132 17 direct response to the officer s question. If the officer had limited himself to questions about the traffic stop, the issue would not have come up. The state has not shown that the gun was discovered through an independent source, or that it would have been inevitably discovered through predictable lawful procedures. Furthermore, the discovery of the gun and defendant s related statements were not attenuated from the unlawful stop. They occurred during the unlawful stop and were a direct result of the impermissible question. No intervening or mitigating circumstances existed. 3 Consequently, all evidence obtained following the officer s impermissible question about weapons must be suppressed. 3 The discovery of the arrest warrant does not purge the discovery of the gun from the taint of the unlawful stop, because the arrest warrant was found after the discovery of the gun. Cf. State v. Dempster, 248 Or 404, 408, 434 P2d 746 (1967) ( The lawful arrest on the bench warrant purged the search incident thereto of the taint of any illegality in the detention of defendant prior to that time. ).

133 18 CONCLUSION For the foregoing reasons, defendant respectfully prays that this court reverse defendant s convictions and remand for further proceedings. Respectfully submitted, PETER GARTLAN CHIEF DEFENDER OFFICE OF PUBLIC DEFENSE SERVICES ESigned ANNE FUJITA MUNSEY OSB # SENIOR DEPUTY PUBLIC DEFENDER Anne.Munsey@opds.state.or.us Attorneys for Defendant-Appellant Joseph Lucio Jimenez

134 i EXCERPT OF RECORD INDEX Information... ER 1 Motion to Suppress... ER 2-4 Judgment... ER 5

135 'ircuit Court of the State of For Multnomah County regon ER - 1 CourtNbr DA STATE OF OREGON AND crty OF PORTLAND Crime Report as PlainliIT. JOSEPH LUCJO JIMENEZ DOB: 01/08/1992 v. Information of District Attorney DRS (I) ORDP 14A ORO ]76585 EFF DATE 07/05/2002 (2) Defendant(s). The above~named defendant(s) is accused by this information of the crime(s) of COUNT I - UNLAWFUL POSSESSION OF A FIREARM, COUNT 2 - POSSESSION OF LOADED FIREARM IN PUBLIC, committed as follows: COUNT] LJNLAWFUL POSSESSION OF A FIREARM The said Defendant(s), JOSEPH LUCIO JIMENEZ, on or about January 24, 201/, in the County of Mu[tnomah, State of Oregon, did unlawfully and knowingly carry a firearm concealed upon the person, contrary to the statutes in such cases made and provided and against the peace and dignity ofthe State of Oregon, COUNT 2 POSSESSION OF LOADED FIREARM IN PUBLIC The said Defendant(s), JOSEPH LUCIO JIMENEZ, on or about January 24, 2011, within the corporate limits of the City of Portland, Multnomah County, Oregon, did unlawfully and knowingly possess a firearm in a public place, recklessly having failed to remove all the ammunition from the firearm, in violation of the above ordinance <j...""..c;...'"" ll...l.-, Oregon, ENTERED Dated at Portland, Oregon. in the county aforesaid, on FEBRUARY 22, BANFIELD OSB FEB MICHAEL D. SCHRUNK (67 JJ OlN REGISTER BY (9 Dr'_ District Attorney Multno unty, Grego Security Amount (Def - JIMENEZ) $2,500 + $2,500 ~~'l Uniform Complaint CO.:J """-70.)//7... (I cuit Court '.";lnomah County, Oregon AFFIRMATIVE DECLARATION 'The Disrric! Anomey hereby amrmalively declares for Ihe record, as required by ORS J61.~M. ~pon the dale scheduled far lhe firsl appearance or,he defendont, ond tli:rore 'he cour1..h under DRS IH.mQ how the defendanl pleads 10 I"" chorge!lj. Ihe Sralo' 'menlion Ihal any misdemeanor charged ""'ein proceed as a misdemeanor Pursuant Dr Laws ch. 463 sections 1 to 7, 2o(l) lind 21 to 23, the Stale hereby provides wrinen notice of the State's intention 10 rely at senteucing on enhancemenl facls for an)" statutory ground for the imposilion ofconseculive sentences codified under DRS on these counls Dr to any other sentence which has been previously imposed or is simullaneously imposed upon this defendanl. INFORMATION OF DISTRICT ATTORNEY

136 r ER - 2 I ENTERED I I I APR n7?r~j I 1 I I.: LI IN REGISTER BY CLN..!I c ~,.." --I -~-' (j) ; ~ ~ IN THE CIRCUIT COURT OF THE STATE OF OREGON Q - p <.P. 5 FOR THE COUNTY OF MULTNOMAH tv ~ 6 STATE OF OREGON, ) No Plaintiff, ) ) MOTION TO SUPPRESS EVIDENCE 8 vs. ) ) 9 JOSEPH LUCIO JIMENEZ, ) 10 Defendant. ) ) 11 I. UTCR INFORMATION 12 Oral argument and an evidentiary hearing are requested. Counsel estimates that 13 the total amount of time necessary for a hearing on all pretrial matters should not exceed 14 two hours. 15 I. Motion 16 Mr. Jimenez, through his counsel, Dawn Andrews, moves to suppress all 17 evidence, both tangible and testimonial, evidence obtained during his illegal seizure and 18 the illegal search of his person, as well as fruits derived from his illegal seizure and/or 19 illegal search of his person by Officers Birchers on or about January 24, II. Anticipated Facts 21 According to the information contained in Officer Birchers' police report and a 22 video recording made by Officer Birchers on January 24, 2011, Officer Birchers stopped 23 Mr. Jimenez for crossing a street while the cross walk light was still red. Officer Birchers 24 questioned Mr. Jimenez about crossing the intersection while the light was still red. While 25 still detaining him, but prior to requesting Mr. Jimenez' name, Officer Borchers asked 26 Mr. Jimenez ifhe had any weapons. When Mr. Jimenez said yes, Officer Borchers asked (-=-~ -, f"'1 OJ PAGE I - MOTION TO SUPPRESS METROPOLITAN PUBLIC DEFENDER 630 s.w. FIFTH AVE, SUITE 500 PORTLAND, OREGON FAX

137 ER "What?" When Mr. Jimenez said "a gun" Officer Borchers immediately cuffed Mr. 2 Jimenez and began searching him. He took Mr. Jimenez's identification from Mr. 3 Jimenez and put it in his pocket. Officer Borchers located the gun and packaged up the 4 evidence and Mr. Jimenez's property before running Mr. Jimenez's name. When Officer 5 Birchers ran Mr. Jimenez's name, he discovered an outstanding warrant. 6 III. Information Sought to be Suppressed 7 Specifically, Mr. Jimenez moves this Court for an Order suppressing from use in 8 evidence any and all information obtained during and/or as a result of the illegal seizures 9 andlor searches. This includes, but not limited to: 10 The purported firearm 11 Any ammunition found in the suspected firearm or on Mr. Jimenez's person 12 Any statements that Mr. Jimenez made regarding the suspected firearm, his 13 probation status and/or why he carries a gun 14 Any information regarding whether the purported firearm is in fact a firearm 15 IV. Legal Basis for Motion 16 Mr. Jimenez makes this motion on the grounds that the introduction of such 17 evidence would violate Oregon statutory provisions. Article I, Sections 9 ofthe Oregon 18 Constitution and the Fourth and Fourteenth Amendments to the Federal Constitution. 19 Specifically, Officer Borchers illegally seized Mr. Jimenez. Even if Officer Borchers had 20 reasonable suspicion at the time of the initial seizure, he unlawfully extended it when he 21 asked Mr. Jimenez about weapons. He discovered the suspected firearm during andlor as 22 a result ofthis illegal seizure. 23 Also, Officer Borchers did not have a valid warrant authorizing the search of Mr. 24 Jimenez and/or seizure ofthe purported firearm at the time that he searched Mr. Jimenez 25 and seized the purported firearm. The State will not be able to prove by a preponderance 26 II PAGE 2 - MOTION TO SUPPRESS METROPOLITAN PUBLIC DEFENDER 630 s.w. FIFTH AVE, SUITE 500 PORTLAND, OREGON FAX

138 ER of the evidence that an exception to the warrant requirement and/or the prohibition 2 against illegal seizures and searches existed that the time that Officer Birchers seized Mr. 3 Jimenez, searched Mr. Jimenez and/or seized the purported firearm. 4 In support of this motion, Mr. Jimenez relies primarily upon the points and 5 authorities cited below. He may offer additional points, authorities and arguments once he 6 hears why the state believes that the seizure of Mr. Jimenez and/or search of his person 7 did not violation Oregon statutes, as well as the state and federal prohibitions against 8 unreasonable seizures and searches. 9 Points and Authorities ORS (4) - (6) Oregon Constitution, Art. I, Sec. 9 united States Constitution, Amendments IV, XIV State v. Langston, 223 Or App 590 (2008) State vs LaFrance, 219 Or App 548 (2008), rev den 349 Or 664 (2011) State v. Taylor, 151 Or App 687 (1997), rev den 327 Or 4 (1998) DATED this ~ay of April, 201 I PAGE 3 - MOTION TO SUPPRESS METROPOLITAN PIlRl,Ie DEFENDER 630 S.W FIFTH AVE, SUITE 500 PORTLAND, OREGON FAX rrl

139 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR MULTNOMAH COUNTY STATE OF OREGON. " - JUDGMENT ER - 5 MISDEMEANOR AMENDED JUDGMENT Orhcr Plaintiff SUPPLEMENTAL JUDGMENT CASE NO. ) / - ^ i <f--7 5P Aoc^pU,^ L.. J^ffv^f^^g"^ DANG. ^ O i I i Defendant ^ ^ ^ ' ^ ^ ^ * PROCEEDING DATE j I 'sa FTR )g Clerk Reporter Interpreter Name: Deputy District Attorney: /11O/^M / ^r.i/^ Bar No. / 06?*fQ Defense Attorney: D=a\i,</^ A ^z-f i^^/s Bar No. '^Z J^-'^ Defendant Appearance: In Persbn^n Custody XJn Person Out of Custody By Telephone By Video Waived. Appearance Representation Status: W^ourt Appointed Privately Retained a Found Indigent and Waived Attorney a Waived Attorney (Pro Se) Judgment of Dismissal oh counts: Judgment of Acquittal on Findmg of Not Guilty on counts: The Court determines that the defendant is convicted of the below listed count(s). XDef waives 48 hrs Count: I Offense: f_ t <^w>/-^ ( P<'^<^e.ss.'i0r^ df ^'^*"6^e^f Incident: t-^<i - i t Is a Lesser Included Offense n Misd Treated as Vio: Prosecutor Elects (ORS ) Misd Treated as Vio: Court Elects (ORS ). Guilty based upon: a Guilty Plea a No Contest Plea o Stipulated Facts Trial ^Court Trial Jury: Date of Guilty Findmg S- / ) GUILTY EXCEPT FOR INSANITY: GEI: By Stipulated Facts Trial CourtTrial njury Trial; Subject to jurisdiction of PSRB Yes No If yes, Committed to State Hospital by DHS or Conditional Release (see accompanying Order per ORS ) S^SIS OSES Statutory Requirements: HIV Blood Draw D DMA Blood Draw/Buccal Sample Sex Offender Registration License Information: Suspend Revoke Type: Drivers Q Other Duration: days / months / years / pennanenl PROBATION Typc.*^^Qay#aL?OsBench Duration: 1 ^ dayagnionths^ years Defendant subject to all general conditions of probation in ORS (1) unless specifically deleted by the court. Delete //'s: The following special conditions of probation are imposed: ^Probation Judge (if specified): {^n <:4rsf^r/Af^ r rua ( Packiiges: Alcohol Drug Enhanced Bench Probation Financial Crimes Sex Offender Other: ^Community Service 4-0 ^Q^4 Cfer4 la*^ 't6vh^other Conditions: T>(i_4pt^nto^ 'i' <^t Jc4 r>-k4~c*'i^ H.rrk No Contact Victim B u id^ rc: ymc. Jfeg Lfcfal^ Lr-^rtl Oiirs-v^ C CZOf^Cf/j-^n^^j a Victim^s Panel by Cot^^le^C A^.^ ^ J-L'y c D rc^^-i-'.a^.?^..gg_ ^ u^ctx^pk^. Anger counseling program n No Intox/Inhalants Elec Home Detention Book & Release No trespass/entry ^, ^ jwv i ^.,, j-., *, INCARCERATION Duration: days / months /years / units Jail Remand immediately to Sheriff ^ Cui-^.>jZj- Report to Sheriff by: to arrange TSI date Work Release: Recommended NOT Recommended'^t^^^ Consecutive to: o By Stipulation Findings per ORS (5): <,.,."»'^^^'^'^^-,^'^^\ H ^ o Concurrent with: ^ Other ^<:iim -J ^^VVjvL=^ft7> ^ ALTERNATIVE INCARCERATION OPTIONS p/c'^-jro-n 6<tv»-,/VA^ ^/flb6*-hi>a Defendant nmay umay NOThs considered by the execudng or releasing authority for any form of leave, release, alternative incarceration programs or reduction in senleiicc as specified in ORS or 137,752 Exceptions: Defendant eligible for Good TimeAVork Time Other: The releasing authority umay amay IVOT Te\ease the defendant on post-prison supcrvi.sion under ORS (4) fotlnwing successful completion of an ultemalivc incarceration program. * Basis for ineligibility: By Stipulation Substantial and compelling reasons (specify): MONEY AWARD ' Fine $ plus County fees & asmts / County fees & asmts are included / waive County fees &,asmls Unitary per ORS $ added tofine / included in fine / waive Unitary Asmt (Unitary cm 7 be waived if a fine is imposed) Chapter 163 Assessment suspended $ DUn Conviction Fees (per ORS UX)30): rttlt- o waived OtTense Surcharge $ waived Bench Prob. Fee $1QQ suspended $ Attorney Fees $ g C^o waived Other: $ Comp Fine Restitution $ Victim; TED; Hrg set for J/S with Comp Fine Restitution $ Victim: TBD: Hrg set for J/S with AH llnanciai nbligjitions in liic money judgment arc D condilion of probation. Award and Payment Information (Foim ffl6-60)must accompany Judgment ifrestitutionor compensatory fine is ordered. All si.-iiulor>' ilsrichsmenls and tecs applicable to each charge disposed, including indigent defense application and contribution fees unpaid and not cntcrcil as a jud^unl prcviottily. ar-: imposed und nrc lo ho.idded bv the Clerk of ihe Coun aa a money award unless waived on this judgment. PAYMENT TERMS: 1-uIl payment of all financial'obligations is due within 30 days of the date of tliis judgment ttnless a payment plan is authorized by the court collections unit, probation officer, or post prison supervision officer. The security deposit shall be applied to financial obligations ordered in this and any other circuit court case after satisfaction of any and all ordcts directing that the deposit be applied to outstanding child support obligations. Dated: j \ Judge (Signature). Original to CouEt^ilc Copies to: Jail Probation Intake DDA a Defense Attorney Probation Judge 23-74A (10/09) Page_ of J