A recent ruling by the Oregon Supreme Court has banned a controversial policing practice: No longer can officers use a broken taillight or a failure to signal as a justification for scouting a driver’s car for illegal guns or drugs.
The ruling instructs officers to stick to questions “reasonably related” to the reason the driver was pulled over, effectively ending law enforcement’s ability to turn a routine traffic stop into a fishing expedition for a more serious offense.
Law enforcement agencies contacted by OPB are in various stages of reviewing the ruling and creating new instructions for officers. While the Clackamas County Sheriff’s Office and the Salem Police Department said they were both awaiting guidance from their district and city attorneys, respectively, police departments in Beaverton and Gresham, as well as the Oregon State Police, were working on a training bulletin. The Portland Police Bureau said it is reviewing its training protocols and updating officers.
While many of these law enforcement agencies have now told officers to keep the conversation during these stops related to the traffic infraction, they say it’s clear the ruling grants some leeway if an officer is in danger or has a strong reason to believe a crime has occurred.
“If a deputy pulls someone over for a traffic violation, walks up, smells the odor of alcohol and sees blood shot eyes, poor coordination in their hands, that would establish reasonable suspicion for a DUI,” said Sgt. Danny DiPietro, a spokesman for the Washington County Sheriff’s Office. “Then they can inquire about that crime.”
But no longer can officers randomly segue into questions about the presence of guns or drugs.
“Each officer or deputy in this case are going to have to change the way they conduct their traffic stops on a day to day basis,” said DiPietro. “It’s very significant.”
The decision stems from the case of Mario Arreola-Botello, who was pulled over by a Beaverton Police officer in 2015 for failing to signal a turn. Arreola-Botello consented to a search of his car, leading officers to discover a package of methamphetamine on the floor.
Arreola-Botello’s attorney, Joshua Crowther, argued the search of his car was unconstitutional because it was spawned by questions that went outside the scope of what police should be allowed to ask during a routine traffic stop.
A trial court and the Oregon Court of Appeals had previously rejected the argument. Both courts cited precedent that officers could go off-topic during an “unavoidable lull” in the interaction, which usually occurs while the driver was busy searching for their license and registration.
The Oregon Supreme Court saw it differently.
“Put simply, an ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds,” the decision states.
Civil rights advocates say this decision will likely provide needed protections to people of color, who evidence indicates are far more likely to see routine traffic stops devolve into an investigation.
“This decision closes a loophole in the protection of our constitutional rights that police had been using to conduct warrantless searches,” said Leland Baxter-Neal, a staff attorney with the ACLU of Oregon. “And those searches had disproportionately targeted people of color.”
A report released last year analyzing Portland’s traffic stop data collection from 2016 found Native Americans and black drivers “were searched at significantly higher rates when compared to overall stop rates.”
The trend is not confined to Oregon. In an amicus brief supporting the defense, the Oregon Criminal Defense Lawyers Association and the Oregon Justice Resource Center pointed to an analysis of 55 million traffic stops that found people of color were more than twice as likely to fall victim to this kind of escalatory policing as the average driver.
While, overall, drivers were searched during a traffic stop 3.4% of the time, black drivers were searched 7.6% of the time, and hispanic drivers were searched 8.7% of the time.
Bobbin Singh, the executive director of the Oregon Justice Resource Center, called the Supreme Court’s decision “symbolically incredibly important for communities of color,” as it provides assurances that the worst-case scenario for a traffic stop is a traffic ticket and not an arrest.
“As a person of color, what I’ll say is, that’s what white people’s expectations are.” he said. “People of color, when they’re stopped by the police, there’s not really any expectation of where the limits are.”
Drivers can now go into these interactions knowing they’re unlikely to be asked about guns or drugs. But it’s less clear whether drivers should expect to hear less probing questions, like “Where are you coming from?”
Public defender Joshua Crowther said he believes the ruling will nix these questions, along with those as chit-chatty as “Did you watch the Blazers game last night?”
“The reason [officers] justified the stop delineates the bounds for what the conversation can be,” he said. “It’s quite narrow.”
But some police departments argued limiting small talk defies common sense and would needlessly stiffen already tense interactions.
“Our officers will continue to be friendly, put it that way. We’re not going to be robots,” said Eric Bunday, a spokesperson for the Hillsboro police department. “We’re going to ask how their day is going and how’s the weather.”
A spokesperson for the Oregon Department of Justice said the Oregon Supreme Court has the final authority on the case, and therefore the department is unable to appeal the decision to the U.S. Supreme Court.