Yesterday, in State v. Jimenez, the Oregon Supreme Court ruled that police officers in the State of Oregon cannot ask people they lawfully detain if they have any weapons on them without some independent reason for doing so. The Court specifically rejected the fact the State Legislature implicitly recognized in both ORS 131.615 and ORS 810.410 that a weapons inquiry invariably serves to protect officer safety.

The case involved an Oregon state trooper who saw Joseph Lucio Jimenez jaywalk. When the trooper turned his car around, Jimenez looked in his direction and started to walk away. The trooper honked his horn and motioned to defendant to come and talk to him, which defendant did. The trooper knew that the intersection was in a high-crime area where a lot of recent gang activity had occurred. He observed that defendant was wearing an “oversized” or “puffy” jacket over a “hoodie sweatshirt,” “oversized baggy gray pants,” and “white tennis shoes,” and was carrying what could be a green lanyard—garb that the trooper thought might indicate gang affiliation. The trooper got out of his car, approached defendant, and began a conversation with him. The trooper told defendant why he had stopped him and asked defendant why he had crossed the street against the light. Defendant replied that he had seen somebody else doing the same thing and “thought it was okay.” At that point, the trooper asked “do you have any weapons on you?” Defendant “kind of sighed and closed his eyes and said yes.” The trooper asked defendant what he had, and defendant answered he had a gun. Without being asked, defendant separated his feet, leaned forward, separated his hands, and put his hands on the hood of the trooper’s car. The trooper put defendant in handcuffs, called for backup and continued to question defendant; however, the trooper did not ask additional questions about the jaywalking and did not cite defendant for jaywalking. The trooper frisked defendant, located the gun and learned that defendant kept the gun for “protection” and he was indeed a gang member. When backup did not arrive, the trooper placed defendant in his patrol car and took him to the police station. Defendant ultimately was charged with one count of unlawful possession of a firearm under ORS 166.250(1)(a). At the motion to suppress hearing the trooper testified he 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.” The trooper explained that “[i]t makes [it] a lot easier if we can stand and have a normal conversation if there’s no weapons on the person.” The trial judge denied the motion and the defendant was convicted. However, the court of appeals and the Oregon Supreme Court disagreed with the trial judge, ruling that the trooper’s question violated the Article I Section 9 of the Oregon Constitution.

ORS 810.410 States that a police officer may stop and detain a person for a traffic violation for the purposes of investigation reasonably related to the violation, identification and issuance of citation and may make an inquiry into circumstances arising during the course of a detention and investigation that give rise to a reasonable suspicion of criminal activity and may make an inquiry to ensure the safety of the officer, the person stopped or other person present, including an inquiry regarding the presence of weapons. ORS 136.615 has a similar provision for stopping individuals suspected of a crime. These are essentially a codification of the “stop and frisk” rule. The statutes specifically authorize officers to inquire about weapons without any additional justification. It is a recognition that law enforcement officers potentially place themselves in harm’s way every time they exercise their authority over another person and there is often no way to tell if someone is armed and dangerous.

The Court today chose to ignore that reality. The Jimenez opinion states that an officer making a general inquiry about whether a person they stop has any weapons, without any particularized suspicion as to that individual, violates Article I Section 9 of the Oregon Constitution. In effect, they ruled ORS 810.410 and 136.615 are unconstitutional as applied (although they decline to say that outright).

The State argued officer safety is always reasonably related to a traffic or other legitimate police investigation and the mere question “do you have any weapons” is always reasonably necessary to effectuate it. Consequently, asking about weapons in no way violates anyone’s constitutional rights, whether it be Jimenez or Mr. Law-abiding citizen. A pedantic Oregon Supreme Court ruled otherwise.

Lessons for law enforcement to take from this case:

1.       Articulate why, under the facts involved in your particular case, you had PC or reasonable suspicion and you had reasonable circumstance specific concerns for officer safety. Articulate why the puffy jacket and other attire not only raised suspicions of gang affiliation but also raised concerns about weapons possession and ease of concealment. Articulate specific concerns you have about the defendant’s tattoos and what your experience told you at that time about them. Articulate why you were concerned about this particular part of town and the time of day and the fact that you were alone and the suspect’s demeanor that heightened your sense of concern. Put this in your report and make sure it goes on the record at the motion hearing. In Jimenez, the court of appeals ruled earlier that the trooper’s testimony was insufficient to raise such a concern or even that he is a gang member. Just looking at Jimenez’s picture tells you much more could have been extracted from the trooper on the stand. Justice Kistler in his concurring opinion states as much:

 

“In my view, (the circumstances articulated by the trooper) were sufficient to warrant asking defendant if he had a weapon and did not depend on impermissible stereotyping. The majority does not hold otherwise. Rather, as I read its opinion, its holding rests on the absence of any explanation from the officer why the circumstances of this particular stop raised a safety concern and why the officer asked about weapons when he did. On that issue, the officer testified only that he asked defendant “if he had any weapons on him, which I do for all contacts on the street with pedestrians, just for—obviously officer safety reasons.” The officer’s testimony is lacking ****.”

 

2.       Don’t assume the court will understand what you are talking about. Judges do not have the same experience as you and need to be educated about things you might think are common sense. Do not just say the suspect appeared to be gang-affiliated and was wearing baggy clothes so “for officer safety” I searched him. Explain what led you to the conclusion he is gang affiliated, why that is important (weapons) and in your experience baggy clothes can conceal weapons. As Kistler also noted in his concurrence: “Officer safety” explains the nature of the officer’s concern. It does not identify the facts that, in his mind, gave rise to that concern.”

3.       Do not talk about gang members or other groups generally, provide a particularized basis to assume suspects are dangerous in the context of their affiliation. In other words, provide the background regarding the group affiliation, articulate why it caused concerns. (weapons/violence), then describe this individual suspect’s affiliation with that group and his particular actions that furthered your concern (furtive movements, nervousness, etc.).

4.       Always, always, always cite defendant for the original charge if you end up finding drugs or weapons pursuant to your lawful search. It might just be for a taillight, or in this case, jaywalking, but the court takes notice when there is no further inquiry or concern about the behavior that originally drew your attention. Yes, pretext stops are still legal. No, the court has never particularly liked them.

5.       Do not rely solely on your best argument. If you have a search warrant, get consent too. Then in court testify about those and the underlying reasons the auto exception would apply as well. There is no reason to limit yourself to what you were thinking at the time if another lawful rationale justifies your actions. You never know when the court is going to decide a statute is unconstitutional.

6.       Do not rely on the DDA to ask you all the right questions. Make sure you talk to the DDA before you testify and discuss the facts. If you need to explain something on the stand, make sure it gets on the record. If it doesn’t, tell the DDA and see if you can reopen your testimony.

 

The truly unfortunate thing about this case is that it did not need to happen. The State did not have to make bad law here, and 810.410 could have continued to be used as a tool for police. The trooper had sufficient information he could have provided to the court to justify even a frisk of this defendant. However, because it was not part of the record, the Assistant Attorney General had to take the most “extreme” position on appeal.  As a consequence, police have to (again) relearn to navigate this already convoluted area of Oregon law.

 

Posted by: Josh Lamborn