The 2022 revision of Criminal Law in Oregon is scheduled to release in December. The chapter on Stop and Frisk is written by Laura Fine and excerpted here. The chapter will be as up-to-date as possible upon publication, including caveats and note regarding legislation that become effective after it is in print. This excerpt includes links to the public pages of the Fastcase online database.
Chapter 2 — Stop and Frisk
§ 2.2 OREGON STATUTORY DEFINITIONS AND GOVERNING PROVISIONS
§ 2.2-1 Definitions
§ 2.2-1(a) Crime
In Oregon, the term crime means any offense for which a sentence of imprisonment may be imposed. ORS 161.515(1); see ORS 131.605(1). A crime is either a felony or a misdemeanor. ORS 161.515(2). Under this definition, violations, which are offenses involving only a potential fine or punishment other than imprisonment, are not crimes. ORS 153.008(1)(b); ORS 161.505.
§ 2.2-1(b) Frisk
A frisk is “an external patting of a person’s outer clothing.” ORS 131.605(3).
§ 2.2-1(c) Dangerous Weapon
The term dangerous weapon means any weapon, device, instrument, material, or substance that, under the circumstances of its use, attempted use, or threatened use, is readily capable of causing death or serious physical injury. ORS 161.015(1); see ORS 131.605(2).
§ 2.2-1(d) Deadly Weapon
A deadly weapon is “any instrument, article or substance specifically designed for and presently capable of causing death or serious physical injury.” ORS 161.015(2); see ORS 131.605(2).
§ 2.2-1(e) Reasonably Suspects
In defining the term reasonably suspects, ORS 131.605(6) sets forth a totality-of-the-circumstances test to be applied when determining whether an officer’s subjective belief is objectively reasonable.
§ 2.2-1(f) Stop
A stop is “a temporary restraint of a person’s liberty by a peace officer lawfully present in any place.” ORS 131.605(7).
§ 2.2-2 General Provisions
A stop is “a temporary restraint of a person’s liberty by a peace officer lawfully present in any place.” ORS 131.605(7). A stop is not an arrest. ORS 133.005(1). Peace officer is a term defined by statute to refer to most law enforcement officers. See ORS 131.605(5); ORS 133.005(3). Enforcement officer is also defined by statute. ORS 153.005(1). The definitions of these two types of officers are similar but not identical. Oregon law allows a peace officer who reasonably suspects that a person has committed or is about to commit a crime to stop the person. ORS 131.615(1). Oregon law allows an enforcement officer who has reasonable grounds to believe that a person has committed a violation to stop the person. ORS 153.039(2). A police officer may stop someone for a noncriminal traffic violation if the violation occurred in the officer’s presence or if the officer has probable cause to believe that a violation has been committed based on information from another police officer who observed the violation. ORS 810.410(2).
Caveat: Beginning on January 1, 2023, a police officer may not initiate a traffic stop for single faulty light violations; however, an officer may issue a citation for those violations if the vehicle is stopped for another traffic violation or other offense. Or Laws 2022, ch 78, § 6–8.
When enforcing the traffic laws, an officer must be in uniform or “conspicuously display[ing] an official identification card showing the officer’s lawful authority.” ORS 810.400. The term police officer is not defined for purposes of ORS 810.400 to 810.410.
A peace officer who stops a person may inquire into the circumstances related to the reason for the stop, inquire regarding officer safety and the presence of weapons, ask for consent to search for weapons, and inquire into circumstances arising during the detention that give rise to a reasonable suspicion of criminal activity. ORS 131.615(1), (3)–(4). Beginning January 1, 2023, the officer must inform the person that the person has the right to refuse consent to search, and if consent is obtained, the officer must ensure that there is a written, audio, or video record of the person’s informed and voluntary consent. Or Laws 2022, ch 78, §§ 1, 3–4. Additional requirements and limitations on the officer’s authority are discussed in § 2.5 (the inquiry). Peace officers are further authorized to use the degree of force reasonably necessary to make the stop and ensure the safety of the officers and other persons present. ORS 131.615(5).
A frisk is “an external patting of a person’s outer clothing.” ORS 131.605(3). In the course of a stop, the peace officer has the authority to frisk the detainee for dangerous or deadly weapons (also known as a “patdown”) if the officer reasonably suspects the detainee is armed and presents a danger to the officer or other persons present. ORS 131.625(1).
Practice Tip: The lawyer should know the required standard for each type of stop:
- ORS 131.615(1) authorizes the stop of a person on reasonable suspicion that the person has committed or is about to commit a crime.
- ORS 153.039(2) authorizes the stop and detention of a person if the officer has reasonable grounds to believe that the person committed a violation. But see State v. Simcox, 231 Or App 399, 402–03, 220 P3d 98 (2009) (the correct standard for nontraffic stops may be probable cause).
- ORS 810.410(2) authorizes the stop of a vehicle if the officer has probable cause to believe that the person driving the vehicle has committed a traffic violation.
§ 2.2-3 Statutory Limitations of Oregon Rules
Oregon law allows a stop of a person when an officer reasonably suspects that the person has committed or is about to commit a crime. ORS 131.615(1). The phrase is about to commit is defined in ORS 131.605(4) as “unusual conduct that leads a peace officer reasonably to conclude in light of the officer’s training and experience that criminal activity may be afoot.” The officer’s actions must be supported by “a belief that is reasonable under the totality of the circumstances existing at the time and place the . . . officer acts.” ORS 131.605(6).
Note: What is reasonable under the totality of the circumstances must be based on “‘specific and articulable facts’ that give rise to the inference of criminal activity.” State v. Villemeyer, 227 Or App 193, 198, 205 P3d 49 (2009) (quoting State v. Ehly, 317 Or 66, 80, 854 P2d 421 (1993)). An officer’s “special intuitions” cannot alone form the basis for such an inference. Villemeyer, 227 Or App at 198 (quoting State v. Valdez, 277 Or 621, 629, 561 P2d 1006 (1977)). For example, in Villemeyer, two officers observed a man drive slowly through a strip mall parking lot, apparently looking for something or someone. The man then parked across the street, returned to the strip mall, and attempted to enter a barbershop. Finding the door locked, the man made a phone call, which resulted in someone opening the door to the barbershop. The man entered the barbershop, had a brief verbal exchange, and then walked back across the street to his vehicle. A sheriff’s deputy called by the officers subsequently stopped the man. Villemeyer, 227 Or App at 195–97. The officers claimed that they believed the man was about to commit a crime. Because there was no evidence of recent criminal activity in the vicinity, no evidence that the suspect was carrying stolen property, no evidence that the suspect was fleeing the scene of a crime, and because no witnesses raised an alarm or called for help, the court held that there were no articulable facts that gave rise to the inference that a crime had been or was about to be committed. Villemeyer, 227 Or App at 198–99.
Because a crime is defined as an offense for which a sentence of imprisonment may be imposed, ORS 131.615 does not apply to stops for violations. A stop for a traffic violation requires probable cause. ORS 810.410(2)(b); State v. Matthews, 320 Or 398, 402, 884 P2d 1224 (1994). An officer may stop and detain a person for investigation reasonably related to the violation, including identifying the person and issuing a citation. ORS 153.039(2)–(3); ORS 810.410(3)(b). Arrests for traffic violations are specifically prohibited by ORS 810.410(3)(a).
Police officers have statutory authority during the course of a stop to investigate a crime or traffic violation to do the following:
(1) inquire into the immediate circumstances that aroused suspicion;
(2) inquire into the circumstances arising during the course of detention and investigation;
(3) inquire regarding the presence of weapons;
(4) ask for consent to search based on suspicions giving rise to the stop or arising during the course of detention and investigation, or to search for items subject to search or seizure under ORS 133.535; and
(5) use the degree of force reasonably necessary to make the stop and ensure the safety of the officer, the person stopped, or others present.
ORS 131.615(3)–(5); ORS 810.410(3).
Note: Beginning January 1, 2023, the officer must inform the person stopped that the person has the right to refuse consent to search, and if consent is obtained, the officer must ensure that there is a written, audio, or video record of the person’s informed and voluntary consent. Or Laws 2022, ch 78, §§ 1–4.
Caveat: A police officer’s statutory authority does not end the inquiry. An officer’s actions also must comport with Article I, section 9, of the Oregon Constitution, which establishes a personal right against unreasonable searches and seizures. Under Article I, section 9, “all investigative activities, including investigative inquiries, conducted during a traffic stop are part of an ongoing seizure and are subject to both subject-matter and durational limitations.” State v. Arreola-Botello, 365 Or 695, 712, 451 P3d 939 (2019) (footnote omitted); see State v. Jimenez, 357 Or 417, 430–31, 353 P3d 1227 (2015) (routine weapons inquiries during a traffic stop, absent a showing of reasonable, circumstance-specific concerns for officer safety, fall outside the permissible scope of Article I, section 9); State v. Watson, 353 Or 768, 778, 305 P3d 94 (2013) (recognizing limitations on traffic stops). Police are precluded “from asking certain investigative questions during investigatory stops—those unrelated to the purpose of the investigation and without independent constitutional justification.” Arreola-Botello, 365 Or at 712. “[T]he same general standard governs the scope of questioning that is permitted during a stop that is based on reasonable suspicion to investigate a crime.” State v. Miller, 363 Or 374, 381, 422 P3d 240, adh’d to on recons, 363 Or 742, 428 P3d 899 (2018).
Police officers have statutory authority to frisk for weapons for officer-safety reasons if the officer reasonably suspects the stopped person “is armed and dangerous.” ORS 131.625(1). Officers also may use “the degree of force reasonably necessary to make the stop and ensure the safety of the . . . officer, the person stopped or other persons” present. ORS 131.615(5); ORS 810.410(3)(f).
Caveat: Under Article I, section 9, however, the officer must articulate individualized suspicion that a defendant poses an immediate threat of serious physical injury to justify a patdown, the use of force, or a further restraint of liberty. See State v. Jimenez, 357 Or 417, 423, 353 P3d 1227 (2015) (citing State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987)); State v. Swibies, 183 Or App 460, 465–66, 53 P3d 447 (2002). Merely asking about weapons, however, requires only “evidence that (1) the officer perceived a circumstance-specific danger and decided that an inquiry about weapons was necessary to address that danger; and (2) the officer’s perception and decision were objectively reasonable.” Jimenez, 357 Or at 430.
§ 2.2-4 Authority of Store Agents and Movie Theater Agents
Store agents and movie theater agents may detain and interrogate theft suspects or unlawful audiovisual recording suspects. The agent must have probable cause to believe that a person has committed theft of store property or unlawfully recorded a movie, and the detention must be for a reasonable time and conducted in a reasonable manner. ORS 131.655(1). In State v. Adams, 86 Or App 139, 144, 738 P2d 988, rev den, 304 Or 405 (1987), the court held that a store security guard violated ORS 131.655, but that the violation did not constitute state action. Therefore, the court concluded that the defendant’s state and federal constitutional rights were not violated and that a violation of ORS 131.655 alone did not warrant suppression.