State v. Watson ( 2013 )

768 July 5, 2013 No. 30
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
JAMES KENNETH WATSON
Petitioner on Review.
(CC 08CR0785FE; CA A144832; SC S060351)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 10, 2013.
Ernest G. Lannet, Chief Deputy Defender, Salem, argued the
cause and filed the brief for petitioner on review. With him on the
brief was Peter Gartlan, Chief Defender, Office of Public Defense
Services.
David B. Thompson, Senior Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review. With
him on the brief were Ellen F. Rosenblum, Attorney General, and
Anna M. Joyce, Solicitor General.
WALTERS, J.
The decision of the Court of Appeals and the judgment of the
circuit court are affirmed.
STATE v. JAMES KENNETH WATSON, (A144832) (S060351), Walters, J., Defendant
filed a motion to suppress evidence seized pursuant to an officer’s search of his car, claiming
that the intensity and duration of the stop exceeded its legal basis in violation of Article I,
section 9, of the Oregon Constitution. The trial court denied the motion, and the Court of
Appeals affirmed without opinion. Held: The officer’s activities were either reasonably related
to the investigation of the traffic infraction, did not lead to the discovery of the evidence that
defendant sought to suppress, or were justified by reasonable suspicion of criminal activity and
probable cause that the officer developed during the course of the stop.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*  Appeal from Douglas County Circuit Court, Joan Glawe Seitz, Judge. 249 Or
App 179, 276 P3d 1126 (2012).
Cite as 353 Or 768 (2013) 769
WALTERS, J.
In this criminal case, we consider whether a police
officer violated Article I, section 9, of the Oregon Constitution
when, after lawfully stopping defendant to investigate a
traffic violation and deciding not to issue him a citation,
the officer continued to detain defendant, conducted further
investigation, and discovered evidence that defendant
possessed a controlled substance. We conclude that the
officer’s request for defendant’s driver’s license, and his brief
detention of defendant pending verification of defendant’s
driving privileges, were reasonably related to the officer’s
investigation of the traffic violation and were therefore
lawful. We also conclude that the officer’s other investigatory
activities were reasonably related to the purpose for the
stop or, even if they were not, either did not lead to the
production of the incriminating evidence that defendant
sought to suppress or were justified on other grounds. We
therefore hold that the trial court did not err in denying
defendant’s motion to suppress, and we affirm the decision
of the Court of Appeals.
In reviewing the denial of a motion to suppress, we
are bound by the trial court’s findings of historical fact to
the extent that those findings are supported by evidence in
the record. State v. Stevens, 311 Or 119, 126, 806 P2d 92
(1991). If the trial court did not make express findings, as
is the case here, we presume that the trial court found facts
that were consistent with its ultimate conclusion. Id. at 127.
We observe that standard in stating the facts that follow. We
then address the parties’ legal arguments concerning the
limitations imposed by Article I, section 9, and how those
limitations apply to the facts.
On the evening of April 21, 2008, Officer Kris Malek of
the Myrtle Creek Police Department saw a car cross over the
yellow line that divided the north- and south-bound lanes of
traffic. Malek stopped the car and immediately recognized
defendant, who was sitting in the driver’s seat. Malek knew
defendant from previous traffic stops and from interacting
with him socially. Approximately two months prior to the
traffic stop at issue in this case, Malek had heard rumors
770 State v. Watson
that defendant was dealing small amounts of marijuana
around the city of Myrtle Creek.
When Malek informed defendant that he had stopped
him for failure to maintain a lane, defendant responded that
he had dropped his cell phone and had drifted into oncoming
traffic when he reached down to retrieve it. Although Malek
could have issued defendant a citation, he decided to give
defendant a warning instead. Nevertheless, Malek asked
for defendant’s driver’s license, registration, and proof of
insurance. Defendant complied, and Malek called dispatch
and requested records and warrants checks pursuant to his
routine practice. Malek always detains drivers whom he has
stopped for traffic violations until dispatch confirms that
the driver in question has a valid license. Dispatch usually
takes between four and 10 minutes to return the results of
the checks.
Malek usually returns to his car and waits for
dispatch to return the results of the records and warrants
checks. In this case, however, because he had had so many
friendly dealings with defendant in the past and did not
feel that defendant was “a threat,” Malek “had no problem
standing at [defendant’s] vehicle while waiting for a return
from dispatch.” In addition, Malek had “wanted to have a
conversation with [defendant] about what [Malek had] been
hearing in the community.” With that purpose in mind,
Malek asked defendant if he would step out of his car.
Defendant complied, leaving the driver’s side door ajar. Malek
told defendant that he had heard rumors that defendant
was dealing small amounts of marijuana. Defendant denied
that allegation. The conversation “progressed,” and Malek
asked defendant for consent to search his car. Defendant
refused and began to “yell” at Malek.
At that point, Deputy Clayton Ruble “came upon” the
traffic stop, got out of his car, and approached the passenger
side of defendant’s car. Ruble informed Malek that he could
smell “a pretty strong odor” of marijuana emanating from
the partially-open window of defendant’s car. Malek then
stepped into the space created by the open driver’s side door
of the car, took “a big sniff,” and also smelled “what, through
Cite as 353 Or 768 (2013) 771
training and experience, [he] believe[d to be] marijuana
coming from the vehicle.” Malek contacted Probation Officer
Hooly, accompanied by a drug-detection dog, to respond to
the scene. While they waited, Malek and Ruble continued
to question defendant. They asked him whether he had
marijuana inside his car, and he responded that he had
“approximately an eighth of an ounce.” Officer Hooly then
arrived, walked her dog around the car, and observed that
the dog “hit on the vehicle,” indicating the presence of a
controlled substance.
At that point, Malek believed that he had probable
cause to search defendant’s car. He reached inside the open
passenger side window and retrieved a backpack that was
sitting on the passenger seat. Inside, he found marijuana,
cocaine, and various drug-related paraphernalia. Malek
placed defendant under arrest. A short time later, Malek
received a call from dispatch that defendant’s drivers
license was valid and that there were no outstanding
warrants for his arrest. The entire stop, from its inception
until Malek arrested defendant and received the return
call from dispatch, lasted approximately 10 minutes.1 All
of the actions that Malek and Ruble took occurred during
the 10-minute period that the records and warrants checks
were pending.
Defendant filed a motion to suppress all property
seized pursuant to Malek’s search of his vehicle, claiming
that the stop’s “intensity and duration” exceeded its legal
basis. During the hearing on that motion, defendant argued
that, although the officers had detained him for only 10
minutes, the police actions that occurred during that
detention—in particular, Malek’s drug-related questioning,
his requests that defendant exit his car and consent to search,
his use of the drug-detection dog, and his eventual search
of defendant’s car—constituted a criminal investigation
that expanded the scope of the initially lawful stop beyond
constitutional bounds. Without reasonable suspicion of an
1
There is no evidence in the record whether the records and warrants checks
are separate checks and, if so, disaggregating the time it took to conduct the records
check versus the warrants check. The record states only that Malek requested that
dispatch conduct both of those checks and that dispatch returned the results of
both checks 10 minutes later.
772 State v. Watson
additional infraction or crime, defendant argued, an officer’s
authority is strictly limited to a reasonable investigation of
the traffic infraction that initially prompted the stop.2
The state responded that Malek was permitted to
question defendant concerning matters that were unrelated
to the stop, even if Malek had lacked reasonable suspicion
to believe that defendant was engaged in criminal activity,
as long as that questioning did not unreasonably prolong
the stop’s duration. The trial court denied defendant’s
motion without any explicit statement of its reasoning,
and defendant was convicted of delivery and possession of
marijuana and cocaine.
Defendant appealed and the Court of Appeals affirmed
without opinion. State v. Watson, 249 Or App 179, 276 P3d
1126 (2012). Defendant petitioned for review, and we allowed
review to address the constitutional limits on police action
during the course of a lawful traffic stop.
Before this court, defendant renews and refines his
arguments. He first argues that, after Malek pulled him
over and received facially-valid documents, Malek had
“everything that he needed” to complete his investigation
of the traffic violation. The records and warrants checks,
and the additional detention that accompanied them,
thus constituted an independent investigation into other
wrongdoing that exceeded both the lawful duration and
scope of the stop.3 Defendant proposes, as a rule, that,
unless the nature or condition of a driver’s documents
gives an officer a reasonable basis to believe that the driver
has committed another traffic violation in connection
with those documents, the officer lacks any justification
to detain the driver or to conduct further investigation.4
2
Defendant also argued that Malek lacked reasonable suspicion of criminal
activity even after smelling the marijuana and that the search of defendant’s
vehicle for an infraction quantity of marijuana could not be justified under the
automobile exception to the warrant requirement. Defendant did not advance
those arguments on appeal.
3
Defendant focuses his argument on the officer’s authority to seize him and
on the constitutional scope of that seizure. He does not explicitly and separately
argue that the records and warrants checks constituted searches that were
unsupported by probable cause. We therefore do not address that issue.
4
At oral argument, defense counsel clarified that he was not necessarily
arguing that officers lack the authority to run records and warrants checks on
Cite as 353 Or 768 (2013) 773
Defendant then argues that even if Malek’s detention of
defendant during the records and warrants checks was
constitutionally permissible, Malek engaged in “additional
shows of authority” that unconstitutionally extended the
scope of the initially lawful stop. Defendant argues that,
because the incriminating evidence was discovered either
during Malek’s illegally extended seizure of defendant or as
a result of his “illegally enhanced seizure” of defendant, that
evidence should be suppressed in order to restore defendant
to the position that he would have held but for the illegality.
The state counters that an officer’s records and warrants
checks always are reasonably related to the investigation of
a routine traffic violation or are justified under the officer
safety doctrine, and that Malek’s actions during the stop
did not rise to the level of an additional seizure because a
reasonable person would not have believed that his liberty
was restrained beyond what was entailed by the traffic stop
itself.5
Article I, section 9, of the Oregon Constitution
establishes the right of the people “to be secure in their
persons, houses, papers, and effects, against unreasonable
search, or seizure.”6 That provision imposes limitations on
searches and seizures “in order to prevent arbitrary and
oppressive interference by [law] enforcement officials with
the privacy and personal security of individuals.” State v.
Tourtillott, 289 Or 845, 853, 618 P2d 423 (1980) (quoting
United States v. Martinez-Fuerte, 428 US 543, 554, 96 S Ct
3074, 49 L Ed 2d 1116 (1976)).
drivers stopped for traffic violations. Rather, he argued that officers lack the
authority to detain drivers while they do so. That assertion is contrary to his brief,
in which he explicitly argues that the records and warrants checks themselves
must be supported by additional reasonable suspicion. Because the arguments
concerning the scope and the duration of the checks are interrelated, we address
both.
5
On review, the state does not argue that Malek had reasonable suspicion
that defendant had illegal drugs in his car that would have justified a stop of
defendant on that basis.
6
Article I, section 9, of the Oregon Constitution provides:
“The right of people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.”
774 State v. Watson
Police encounters with individuals generally fall
into one of three categories. State v. Fair, 353 Or 588, 593,
__ P3d __ (2013) (so explaining); see also State v. Holmes,
311 Or 400, 406-07, 813 P2d 28 (1991) (same). At one end
of the continuum are “non-coercive encounter[s]” between
an officer and an individual, which involve no restraint
of liberty and thus require no justification. Holmes, 311
Or at 407. At the other end are arrests, which involve
protracted custodial restraint and require probable cause
to believe that the person arrested has committed a crime.
Fair, 353 Or at 593. In between are “stops,” which involve
a temporary restraint on a person’s liberty through either
physical force or some other “show of authority.” State v.
Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010) (citing
State v. Rodgers/Kirkeby, 347 Or 610, 621-22, 227 P3d 695
(2010)). Although both arrests and stops are seizures for
constitutional purposes, an officer may stop an individual
based on reasonable suspicion of criminal activity—a lower
standard than the probable cause that is required for an
arrest. Fair, 353 Or at 593-94. An officer who lacks probable
cause to arrest but who has either reasonable suspicion of
criminal activity or probable cause to believe that a driver
has committed an unlawful but noncriminal act, such as a
traffic violation, may require the driver to pull over so that
the officer can investigate further.7 Such an interaction is a
stop and a seizure for Article I, section 9, purposes, rather
than a “non-coercive encounter,” because
“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 * * * and to interact
with the officer * * * and therefore is not free unilaterally to
end the encounter and leave whenever he or she chooses.”
Rodgers/Kirkeby, 347 Or at 622-23 (internal citations
omitted).
7
The requirement that an officer have probable cause to believe that a driver
committed a traffic violation is a statutory requirement. Whether that requirement
also is found in Article I, section 9, is a question that this court has reserved.
State v. Matthews, 320 Or 398, 402 n 2, 884 P2d 1224 (1994). We need not decide
that question in this case, because on review, defendant does not contest Malek’s
justification to effect the stop.
Cite as 353 Or 768 (2013) 775
In the case before us, Malek’s stop of defendant
was lawful at its inception. Although Malek lacked probable
cause to arrest defendant, he had probable cause to believe
that defendant had committed a noncriminal traffic
violation. Article I, section 9, permitted Malek to stop and
detain defendant briefly for the purposes of investigation.8
The central issue to which we now turn is the limits that that
constitutional provision places on police conduct during the
course of a lawful traffic stop and whether Malek’s activities
exceeded those limits.
This court has not often considered the constitu-
tional limits on police activity during lawful traffic stops
due,in part, to the role that Oregon statutory law has
played in its analysis. Soon after the United States
Supreme Court decided Terry v. Ohio, 392 US 1, 88 S Ct
1868, 20 L Ed 2d 889 (1968), in which the Court held that
police officers did not violate the Fourth Amendment to the
United States Constitution when they stopped and frisked
the defendant, the Oregon legislature enacted statutes
that were responsive to that ruling. Terry permitted officers
with reasonable suspicion that a person was involved in
criminal activity and might be armed or dangerous to
stop that person, make “reasonable inquiries,” and conduct
a limited “patdown” search for weapons. Id. at 30. In State
v. Cloman, 254 Or 1, 7, 456 P2d 67 (1969), this court
borrowed the reasoning from federal Fourth Amendment
juris-prudence and adopted it for the purposes of Article I,
section 9. See Fair, 353 Or at 602-03 n 7 (so explaining).
The court held that the limited detention of criminal
suspects based on particularized reasonable suspicion was
constitutional, recognizing that such stops were required
by the “practical necessities of effective law enforcement”
and emphasizing that a “brief, informal” detention for
purposes of on-the-scene investigation is a more limited
intrusion into a person’s liberty than an arrest. Cloman,
254 Or at 8-9. In 1973, the Oregon legislature sought
to codify the constitutional limitations that Cloman and
8
Although defendant contested Malek’s justification to effect the initial traffic
stop at trial, he does not renew that argument on review.
776 State v. Watson
Terry had articulated. ORS 131.615.9 See State v. Valdez,
7 Or 621, 624-26, 561 P2d 1006 (1977) (describing
origin of stop statutes); see also Fair, 353 Or at 602-03 n 7
(same).
Those statutes are still in effect.10 ORS 131.615
permits the police to stop a person based on “reasonable
suspicion” of criminal activity and make a “reasonable
inquiry.” ORS 131.615(3) provides that “[t]he inquiry shall be
considered reasonable if it is limited to * * * [t]he immediate
circumstances that aroused the officer’s suspicion” or
to “[o]ther circumstances arising during the course of
the detention and inquiry that give rise to a reasonable
suspicion of criminal activity[.]” ORS 131.615(2) provides
that “[t]he detention and inquiry shall be conducted in the
vicinity of the stop and for no longer than a reasonable
time.” ORS 810.410,11 which establishes police authority
to conduct traffic stops, make arrests, and issue citations,
includes similar provisions. ORS 810.410(3)(b) provides that
9
ORS 131.615 provides:
“(1)  A peace officer who reasonably suspects that a person has committed
or is about to commit a crime may stop the person and, after informing the
person that the peace officer is a peace officer, make a reasonable inquiry.
“(2) The detention and inquiry shall be conducted in the vicinity of the
stop and for no longer than a reasonable time.
“(3)  The inquiry shall be considered reasonable if it is limited to:
“(a)  The immediate circumstances that aroused the officer’s suspicion;
“(b)  Other circumstances arising during the course of the detention and
inquiry that give rise to a reasonable suspicion of criminal activity; and
“(c)  Ensuring the safety of the officer, the person stopped or other persons
present, including an inquiry regarding the presence of weapons.
“(4) The inquiry may include a request for consent to search in relation
to the circumstances specified in subsection (3) of this section or to search for
items of evidence otherwise subject to search or seizure under ORS 133.535.
“(5)  A peace officer making a stop may use the degree of force reasonably
necessary to make the stop and ensure the safety of the peace officer, the
person stopped or other persons who are present.”
10
Those statutes have been amended since their enactment, but not in ways
that affect our analysis in this case.
11
ORS 810.410 provides, in part:
“(3)  A police officer:
“* * * * *
“(b)  May stop and detain a person for a traffic violation for the purposes
of investigation reasonably related to the traffic violation, identification and
issuance of citation.
Cite as 353 Or 768 (2013) 777
an officer may stop and detain a person “for the purposes
of investigation reasonably related to the traffic violation,
identification and issuance of citation.” Officers may
take other unrelated actions only when they have safety
concerns, ORS 810.410(3)(d), or develop additional suspicion
of criminal activity, ORS 810.410(3)(c). Similarly, both ORS
131.615(5) and ORS 810.410(3)(f) allow use of force only to
the degree that is “reasonably necessary to make the stop
and ensure the safety of the police officer, the person stopped
or other persons present.” Thus, by statute, an officer’s
authority to detain a person based on reasonable suspicion
is limited to activities that are reasonably related to the
investigation of the suspected violation and reasonably
necessary to effectuate that investigation.
Following the enactment of ORS 131.615 and ORS
810.410, this court decided issues concerning police authority
during the course of traffic stops on statutory grounds. See,
e.g., State v. Toevs, 327 Or 525, 964 P2d 1007 (1998); State v.
Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995); State
v. Porter, 312 Or 112, 817 P2d 1306 (1991); State v. Farley,
308 Or 91, 775 P2d 835 (1989). Because this court analyzes
statutory issues before reaching constitutional ones, the court
evaluated the officers’ actions in those cases to determine
whether they had violated the applicable Oregon statutes
and often did not explicitly address their constitutional
dimensions. See Holmes, 311 Or at 404 (“Before reaching
defendant’s state and federal constitutional claims, we
first examine whether the deputy sheriff acted lawfully
under proper authorization by a politically accountable
lawmaker.”). Then, in 1997, the legislature enacted ORS
“(c)  May make an inquiry into circumstances arising during the course of
a detention and investigation under paragraph (b) of this subsection that give
rise to a reasonable suspicion of criminal activity.
“(d)  May 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.
“(e) May request consent to search in relation to the circumstances
referred to in paragraph (c) of this subsection or to search for items of evidence
otherwise subject to search and seizure under ORS 133.535.
“(f) May use the degree of force reasonably necessary to make the stop
and ensure the safety of the police officer, the person stopped or other persons
present.”
778 State v. Watson
136.432, which provides that courts may not exclude evidence
obtained in violation of any statutory provision unless
exclusion is required by the federal or state constitutions
or certain rules of evidence.12 See Rodgers/Kirkeby, 347 Or
at 621 (describing statute). Once that statute took effect,
defendants who sought to exclude evidence obtained during
traffic stops asserted constitutional arguments in support of
their motions to suppress, and courts were required to reach
those arguments.
Since 1997, this court has decided two cases
that address the limits that Article I, section 9, places
on temporary seizures, or stops. The first of those cases
was Rodgers/Kirkeby, in which the court held that,
under Article I, section 9, as under ORS 810.410(3)(b),
“[p]olice 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.”
347 Or at 623. The court determined that police officers had
violated the constitutional rights of the defendants because,
after completing their investigation of the traffic violations
at issue, the officers had continued to detain the defendants
and had questioned them about unrelated criminal activity
without reasonable suspicion that they had engaged in such
activity. The court held that Article I, section 9, “permits the
police to stop and briefly detain motorists for investigation
of noncriminal traffic violations.” Id. at 624 (emphasis in
original). Police conduct during a noncriminal traffic stop
does not further implicate Article I, section 9, the court
explained, “so long as the detention is limited and the police
conduct is reasonably related to the investigation of the
noncriminal traffic violation.” Id. (emphasis added). Thus,
under Rodgers/Kirkeby, it is the justification for the stop—
12
ORS 136.432 provides that
“[a] court may not exclude relevant and otherwise admissible evidence
in a criminal action on the grounds that it was obtained in violation of any
statutory provision unless exclusion of the evidence is required by:
“(1)  The United States Constitution or the Oregon Constitution;
“(2) The rules of evidence governing privileges and the admission of
hearsay; or
“(3)  The rights of the press.”
Cite as 353 Or 768 (2013) 779
the probable cause to believe that a driver has committed
a traffic infraction and the state’s interest in investigating
that potential infraction—that delineates the lawful bounds
of the traffic stop:
“Police authority to perform a traffic stop arises out of
the facts that created probable cause to believe that there
has been unlawful, noncriminal activity, viz., a traffic
infraction. 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.”
347 Or at 623 (emphasis in original).13
More recently, in Fair, this court addressed the
constitutional limits on police authority to temporarily
detain or stop a person in a different noncriminal context. In
Fair, law enforcement officers temporarily seized a woman
whom they reasonably believed was a material witness or
a victim of a recent or ongoing assault. After paying “due
regard” both to “the practical necessities of effective law
enforcement” and to the liberty interests protected by the
constitution, the court held that the stop and on-the-scene
detention of a likely material witness will be constitutional
if
“(1) the officer reasonably believes that an offense involving
danger of forcible injury to a person recently has been
committed nearby; (2) the officer reasonably believes that
the person has knowledge that may aid the investigation
of the suspected crime; and (3) the detention is reasonably
necessary to obtain or verify the identity of the person, or to
obtain an account of the crime.”
Fair, 353 Or at 609. With that principle in mind, the court
explained that the officers’ warrants check and their
questions concerning the defendant’s arrest history did
not “exceed the permissible scope of the stop,” because
those actions were reasonably related to the purpose of
13
Whether that principle extends to inquiries during the course of a stop is a
question that we do not address in this case. We also do not address the extent to
which Rodgers/Kirkeby answers that question.
780 State v. Watson
the detention. Id. at 614. Because the defendant lacked a
driver’s license or other form of identification, the officers’
check for outstanding warrants was reasonably related to
the purpose of determining the defendant’s identity. When
dispatch reported only that it had had “some form of contact”
with a person with the defendant’s maiden name, the
officers’ subsequent questions concerning the defendant’s
arrest history were reasonably related to their investigation
of the crime of assault; specifically, the questions assisted
the officers in ascertaining that the defendant did not have
a prior history of domestic violence, thereby providing
support for the officers’ decision to arrest the defendant’s
husband as the assailant. Id. at 614.
Similar principles also are evident in this court’s
discussion of the limitations that Article I, section 9,
imposes on officers’ authority to search persons whom they
have seized. For instance, in State v. Owens, 302 Or 196, 202,
729 P2d 524 (1986), this court held that Article I, section
9, permits officers to search without a warrant when the
search is incident to arrest, but limits such searches to those
related to the arrest “in time, space and intensity.” The court
explained that,
“[u]nder the Oregon Constitution, a search incident to
arrest is valid when it relates to a crime which there is
probable cause to believe the arrestee has committed, and
when it is reasonable in all the circumstances. *  * This
*
probable cause requirement properly limits the objects to
be sought in searches incident to arrest, and thus limits the
intensity of the search.”
Id. at 204 (citing State v. Caraher, 293 Or 741, 653 P2d 942
(1982)).
An officer’s authority to search in the interest of
officer safety is similarly constrained. When an officer
develops a reasonable suspicion that a person may pose an
immediate threat of serious physical injury to the officer or
to others then present, the officer may search that person
without a warrant without violating Article I, section 9. See
State v. Bates, 304 Or 519, 524, 747 P2d 991 (1987). How-
ever, the scope of the search is limited to its constitutionally
permitted purpose and must be reasonably necessary to
Cite as 353 Or 768 (2013) 781
effectuate that purpose. See State v. Rudder, 347 Or 14,
23, 217 P3d 1064 (2009) (explaining that the protective
measures that police officers take must be “proportionate” to
any threat that the officers reasonably perceive). In Rudder,
an officer who had reasonable suspicion to believe that the
defendant might be armed and dangerous attempted to
conduct a patdown and opened and inspected the contents
of the defendant’s pocket. The court explained that the
patdown “was the type of limited search that this court
generally has approved when officer safety concerns arise
in the course of a lawful police stop” because, although a
patdown constitutes an intrusion into the privacy interests
of an individual, the intrusion is limited to what is reason-
ably necessary to “identify those objects that are relevant
to * * * safety concerns.” Id. at 24. A “more intrusive” search
would require “something more[,] * * * either probable cause
or some greater justification than was present here.” Id. at
25.
Thus, 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.
In applying the above principles to the facts of this
case, we first note that Malek was constitutionally justified
in stopping defendant. Malek had probable cause to believe
that defendant had committed a noncriminal traffic infrac-
tion; therefore, Article I, section 9, permitted Malek to stop
defendant and to investigate whether defendant had in fact
committed that infraction. Defendant does not disagree. He
contends, however, that not all of Malek’s activities were
reasonably related to that investigation. Defendant argues
that, because Malek decided not to issue defendant a citation
and did not doubt defendant’s identity as it appeared on
the face of defendant’s driver’s license, Malek exceeded the
limits of Article I, section 9, by detaining defendant for 10
minutes to conduct records and warrants checks and an
782 State v. Watson
unrelated criminal investigation pertaining to defendant’s
drug use.
We take each of the actions that defendant
challenges in turn, beginning with the records check. As
defendant recognizes, an officer’s determination of a person’s
identity generally is reasonably related to the officer’s
investigation of a traffic infraction. Contrary to defendant’s
position, however, verification of a person’s identity and the
issuance of a citation are not the only activities that may
be reasonably related to the investigation. An officer who
stops a driver also may release the driver, and a reasonable
investigation may therefore include a determination of
whether the driver has valid driving privileges, as required
by ORS 807.010.14 As the Court of Appeals has noted, “When
police officers detain a person on probable cause of violating
a traffic law, it is reasonable to determine whether the
person is licensed to continue on his or her way after the
encounter ends.” State v. Hall, 238 Or App 75, 79, 241 P3d
757 (2010).15 Because Malek conducted the records check
with the purpose of verifying defendant’s driving privileges,
Malek’s detention of defendant to conduct that check did
not violate Article I, section 9, unless the detention was
unreasonably lengthy. See Rodgers/Kirkeby, 347 Or at 623
(“Police authority to detain a motorist dissipates when the
14
ORS 807.010 provides, in part:
“(1)  A person commits the offense of operating a vehicle without driving
privileges if the person operates a motor vehicle upon a highway or premises
open to the public in this state and the person does not have an appropriate
grant of driving privileges from this state in the form of a license, driver
permit, endorsement or statutory grant of driving privileges allowing the
person to engage in the particular type of operation.
“* * * * *
“(4) Except as provided in subsection (5) of this section, the offense
described in subsection (1) of this section, operating a vehicle without driving
privileges, is a Class B traffic violation.”
15
Police authority to verify records incident to “routine traffic stops” has been
consistently approved and upheld by both federal and state courts. See, e.g., United
States v. Shabazz, 993 F2d 431, 437 (5th Cir 1993) (“[W]e have no doubt, that in a
valid traffic stop, an officer can request a driver’s license, insurance papers, vehicle
registration, run a computer check thereon * * *.”); United States v. Digiovanni, 650
F3d 498, 507 (4th Cir 2011); United States v. Villa, 589 F3d 1334, 1339 (10th Cir
2009); State v. Lee, 263 Neb 663, 658 NW 2d 669, 676 (2003); Fender v. State, 2003
WY 96, 74 P3d 1220, 1225 (Wyo 2003).
Cite as 353 Or 768 (2013) 783
investigation *  * is completed or reasonably should be
*
completed.”) (emphasis added).16
Malek testified that his records and warrants checks
generally take between four and 10 minutes and that, in this
case, the checks took approximately 10 minutes. Although
defendant contends that verifying driving privileges can
take much longer than simply determining whether a license
is facially valid, we have concluded that Malek was entitled
to verify defendant’s driving privileges, and defendant
does not contend that 10 minutes was an unreasonably
long period of time given the particular circumstances
presented.17 We therefore conclude that Malek’s detention of
defendant to conduct the records check was not unreason-
ably lengthy.
Malek’s warrants check necessitates a different
analysis. In Fair, this court upheld a warrants check of a
material witness, because the officers were unable to confirm
her identity by means of a license check and because knowing
whether she had a prior history of domestic violence would
advance the officers’ investigation of the crime at issue. Fair,
353 Or at 614. In this case, Malek did not testify that the
warrants check was similarly related to the investigation
of the traffic infraction for which he stopped defendant.
Malek asked dispatch to conduct a warrants check because
that was his routine practice. Whether a warrants check
is reasonably related to the investigation or otherwise
constitutionally justified, for instance, to protect officer
16
The United States Supreme Court has similarly interpreted the Fourth
Amendment, holding that an investigative detention must be temporary and last
no longer than is necessary to effectuate the purpose of the stop. Florida v. Royer,
460 US 491, 500, 103 S Ct 1319, 75 L Ed 2d 229 (1983). In assessing the length of
the detention, the Court takes into account whether the police diligently pursued
their investigation. United States v. Place, 462 US 696, 709, 103 S Ct 2637, 77 L Ed
110 (1983). No rigid time limitation is imposed; rather, courts must consider the
law enforcement purposes to be served by the stop as well as the time reasonably
needed to effectuate those purposes, and “common sense and ordinary human
experience must govern over rigid criteria.” United States v. Sharpe, 470 US 675,
685, 105 S Ct 1568, 84 L Ed 2d 605 (1985). The question, as always, is whether the
police acted reasonably under the circumstances. Id. at 687.
17
See Wayne R. LaFave, The Routine Traffic Stop from Start to Finish, 102
Mich L Rev 1843, 1875 (2004) (routine records checks usually take a matter of
minutes, although the time can vary from case to case); Shabazz, 993 F2d at 438
(noting officer testified that a “check can take anywhere from two to three to ten to
fifteen minutes”).
784 State v. Watson
safety, presents an important question, but one that we
need not decide here.
Incriminating evidence will be suppressed only
if the evidence was “a product of” an unconstitutional
act. State v. Juarez-Godinez, 326 Or 1, 9, 942 P2d 772
(1997). In this case, the warrants check did not lead to the
discovery of the evidence that defendant sought to suppress.
The warrants check came back clean, and although
incriminating evidence was discovered during the time
that it took to conduct the warrants check, Malek’s records
check, which was reasonably related to the investigation,
took the same amount of time. Malek requested the records
and warrants checks simultaneously and received the
results of those checks from dispatch simultaneously; the
record does not demonstrate that it took Malek longer to
conduct the warrants check than it would have taken to
conduct the records check alone. There is no indication that
the warrants check produced incriminating evidence or
extended the duration of the stop beyond the time that was
reasonably necessary to conduct the records check; thus,
even if the warrants check was not reasonably related to
the investigation, it was not a basis for suppression of the
incriminating evidence that the police discovered.
Finally, we consider defendant’s challenges to
Malek’s questioning of defendant concerning rumors of his
involvement with drugs, Malek’s requests for consent to
search, and Malek’s request that defendant exit his car. When
we consider those acts in context, we find it unnecessary to
determine whether they exceeded the constitutional scope
of the stop.18 Like the warrants check, those actions did not
lead to the discovery of the evidence that defendant sought
to suppress. Defendant denied selling drugs and denied
Malek’s request to search. Malek did not detect the odor
of marijuana as a result of his request that defendant step
out of his car; rather, it was Deputy Ruble’s detection of the
odor of marijuana coming from defendant’s car, an act that
defendant does not challenge, that launched the chain of
events that resulted in defendant’s arrest. After Ruble told
18
In this case, we do not address whether an officer’s inquiries made during
the pendency of a valid seizure implicate Article I, section 9.
Cite as 353 Or 768 (2013) 785
Malek that he smelled marijuana, Malek had the requisite
reasonable suspicion of criminal activity that permitted him
to investigate further. On investigation, Malek corroborated
the odor and obtained defendant’s admission that he was
in possession of marijuana, as well as the drug-detection
dog’s confirmation that there were drugs in defendant’s car.
Malek then had probable cause to believe that he would find
marijuana in the car and was constitutionally permitted to
search it.19 It was the series of acts that began with Ruble’s
detection of the odor of marijuana, and not Malek’s earlier
actions, that led to the discovery of evidence.
As we have explained, an officer may develop
reasonable suspicion or probable cause during the course
of a traffic stop that may justify activities that would not
have been permissible based on the original purpose of the
stop. That is exactly what occurred here. Malek developed
reasonable suspicion that defendant had marijuana in his
car, and that reasonable suspicion justified Malek’s further
investigation. Malek’s confirmation of the odor, further
questioning of defendant, and use of the drug-detection
dog were reasonably related to that investigation and gave
Malek probable cause to search defendant’s car.
We conclude that the trial court did not err in
denying defendant’s motion to suppress. Malek’s activities
either were reasonably related to the investigation of the
traffic infraction, did not lead to the discovery of the evidence
that defendant sought to suppress, or were justified by the
reasonable suspicion of criminal activity and probable cause
that Malek developed during the course of the stop.
19
Defendant challenged Malek’s probable cause to search at trial. He did not
advance that argument on appeal. At the time that Malek searched defendant’s
vehicle, two officers had smelled marijuana, defendant had admitted that there
was marijuana in the car, and a drug detection dog had indicated that there were
drugs in the car. Pursuant to the “automobile exception,” an officer who has stopped
a mobile vehicle may conduct a search without a warrant if the officer has probable
cause to believe that the vehicle contains evidence of a crime. See State v. Brown,
301 Or 268, 274, 721 P2d 1357 (1986) (describing exception). We accept the trial
court judge’s implicit finding that Malek had probable cause to conduct the search
as supported by the evidence in the record: The smell, admission, and drug-dog
detection were sufficient to create the requisite probable cause of criminal activity.
See State v. Foster, 350 Or 161, 170, 252 P3d 292 (2011) (alert by properly trained
and reliable drug-detection dog can provide probable cause for search).
786 State v. Watson
The decision of the Court of Appeals and the
judgment of the circuit court are affirmed.