State v. Maciel-Figueroa , 361 Or. 163 ( 2017 )

No. 13 March 2, 2017 163
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
ANTONIO MACIEL-FIGUEROA,
Respondent on Review.
(CC 11P3134; CA A148894; SC S063651)
En Banc
On review from the Court of Appeals.*
Argued and submitted May 9, 2016.
Susan G. Howe, Assistant Attorney General, Salem, filed
the brief for petitioner on review. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Paul L. Smith, Deputy
Solicitor General.
Ernest G. Lannet, Chief Defender, Salem, filed the brief
for respondent on review.
Elizabeth G. Daily, Portland, filed the brief for amicus
curiae Oregon Justice Resource Center. Also on the brief
was Corinne Fletcher.
NAKAMOTO, J.
The decision of the Court of Appeals is affirmed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
______________
*  Appeal from Polk County Circuit Court, Monte S. Campbell, Judge. 273 Or
App 298, 356 P3d 674 (2015).
164 State v. Maciel-Figueroa
Case Summary: Police officers responded to a phone call that a named man
was threatening to break things in a house, saw defendant walking away from
the house, and ordered him to stop and return for questioning. The officers sus-
pected that defendant was the man identified in the report and that he had
committed criminal mischief, menacing, or assault inside the house. Defendant
argued that the officers lacked reasonable suspicion to stop him, as required by
Article I, section 9, of the Oregon Constitution, and he moved to suppress evi-
dence obtained during that stop. The trial court ruled that the officers’ suspi-
cion was objectively reasonable; the Court of Appeals held that it was not and
reversed. Held: (1) “Reasonable suspicion” requires that an officer reasonably
suspect that a defendant has committed or is about to commit “a specific crime or
type of crime”; (2) an appellate court’s review of a criminal investigatory stop is
limited to the record made at the trial court concerning the officer’s actual belief
that the defendant may have committed a crime; and (3) the officers, in this case,
lacked reasonable suspicion to stop defendant, because they failed to articulate
sufficient facts to support an objectively reasonable inference that defendant had
damaged property or hurt or threatened to hurt someone inside the home.
The decision of the Court of Appeals is affirmed. The judgment of the cir-
cuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
Cite as 361 Or 163 (2017) 165
NAKAMOTO, J.
This criminal case concerns whether police officers
violated the prohibition against unreasonable seizures in
Article I, section 9, of the Oregon Constitution, when they
responded to a report that a named man was threatening to
break things in a house, they saw defendant walking away
from the house, and they ordered him to stop and return
for questioning. The trial court concluded that the officers
had reasonable suspicion to stop defendant to investigate
whether he had committed a crime; thus, it denied defen-
dant’s motion to suppress evidence resulting from the stop.
The Court of Appeals reversed. State v. Maciel-Figueroa, 273
Or App 298, 308, 356 P3d 674 (2015).
We allowed the state’s petition for review to consider
the state’s contention that the Court of Appeals erroneously
heightened the standard that the state must meet to establish
that an investigatory stop was supported by reasonable sus-
picion. In the state’s view, a police officer may stop any person
“if the officer reasonably believes that the person was either
somehow involved with, or a witness to, possible criminal
activity.” The state contends that the Court of Appeals instead
required the state to show that, before stopping defendant,
the police had confirmed that he had committed a crime.
As we explain, although there has been some
variation in this court’s articulation of the standard, the
established standard for reasonable suspicion supporting
an investigatory stop of a defendant is met when an offi-
cer can point to specific and articulable facts that give rise
to a reasonable inference that the defendant committed or
was about to commit a specific crime or type of crime. We
further conclude that the Court of Appeals correctly applied
the reasonable-suspicion standard to the facts established
at the suppression hearing, which concerned whether it was
reasonable for the officers to infer that defendant had com-
mitted a crime. Accordingly, we affirm the decision of the
Court of Appeals and reverse the judgment of the trial court.
I. BACKGROUND
We review a trial court’s denial of a motion to sup-
press for legal error, and we are bound by the trial court’s
166 State v. Maciel-Figueroa
factual findings if there is any constitutionally sufficient evi-
dence in the record to support them. State v. Ehly, 317 Or 66,
75, 854 P2d 421 (1993). When the trial court did not make
express findings and there is evidence from which the trial
court could have found a fact in more than one way, we will
presume that the trial court decided the facts consistently
with the trial court’s ultimate conclusion. Id. We take the facts
from the Court of Appeals opinion and the record of the sup-
pression hearing, viewed consistently with those standards.
Two Salem police officers, Officer Moffitt and
Corporal Welsh, responded to a report of a disturbance at a
home where a woman named Velek lived. Velek’s mother had
called the police and reported that she had just spoken with
her daughter, who “said that someone named * * * Wilson was
at her house and was threatening to break things.” Maciel-
Figueroa, 273 Or App at 299. “Velek’s mother reported that
she could hear a lot of yelling in the background when she
was speaking to her daughter, and she requested that the
police go to her daughter’s house.” Id. Moffitt knew Velek
from previous contacts at the residence, and he was familiar
with the layout of her house.
Ten minutes after Velek’s mother called the police,
Moffitt and Welsh each arrived by car to investigate the
disturbance. “They parked a few houses away and walked
on the sidewalk toward Velek’s home. When they were near
the home, they saw defendant walking down Velek’s drive-
way.” Id. at 300. Moffitt thought that defendant was walking
at a normal pace, but Welsh thought that defendant’s pace
“seemed a little bit rapid.” “Based on his knowledge of the
layout of Velek’s home, Moffitt was certain that defendant
had come from the home.” Id. Defendant, who did not appear
to see the two officers, “reached the sidewalk and turned in
the direction away from the officers.” Id.
Moffitt called out to defendant and asked to speak
to him. Defendant looked toward the officers, put his hands
in his pockets, and continued to walk away from them. At
that point, Moffitt stopped defendant by identifying himself
as a police officer and directing defendant to come back and
speak with them. Moffitt further instructed defendant to
take his hands out of his pockets. After defendant did that,
Cite as 361 Or 163 (2017) 167
“he began to walk a little bit faster back towards the house,
putting his hands in his pockets again.” Id. After Moffitt
called out to defendant at least three more times, defendant
stopped at the front porch of Velek’s house.
The officers approached, and Moffitt asked defen-
dant whether he had any weapons or drugs, which defendant
denied. Then, with defendant’s consent, Moffitt searched him.
The search immediately yielded a methamphetamine pipe.
After handcuffing defendant, Moffitt turned his attention
to the two other individuals outside Velek’s house, who were
then visible to Moffitt. One of them was Velek, and the other
turned out to be Wilson, the man identified in the disturbance
call from Velek’s mother. Eventually, the officers discovered
that defendant had given them a false name and possessed
an identification card containing the same false name.
After defendant was charged with unlawful pos-
session of methamphetamine, giving false information to
a police officer for a citation, identity theft, and tampering
with physical evidence, he moved to suppress all of the evi-
dence derived from Moffitt’s search. He argued that the offi-
cers had stopped him without reasonable suspicion that he
had committed a crime, thereby violating his rights under
Article I, section 9, of the Oregon Constitution.1
At the suppression hearing, both officers testified
about the circumstances that had led them to believe that
they had reasonable suspicion to stop defendant. The trial
court found their testimony to be credible.
Moffitt testified that he believed that defendant
“may have been involved with the disturbance” and “may
have been the one yelling and threatening to break things
at the home.” Moffitt disagreed with the prosecutor’s sug-
gestion that the call implied that there was a “domestic dis-
turbance,” explaining, “Well, there was a disturbance. It
was never titled as a domestic. It was a disturbance. That
there was somebody there, yes.” Moffitt did not specify what
1
Defendant also moved to suppress the evidence under the Fourth
Amendment to the United States Constitution. Defendant did not make a sep-
arate argument under the federal constitution, and, on review, only the state
constitutional provision is at issue.
168 State v. Maciel-Figueroa
crime he had believed that defendant had committed, but he
testified that, “most likely from the call,” he believed that
the officers “had a crime [that] had been committed in the
residence, and [he] initially believed [that defendant] was
[Wilson] walking away from the front of the house.” Moffitt
based that belief solely on the content of the disturbance call
and the fact that defendant was a male walking down the
driveway and away from the house.
Although Moffitt stated in his testimony that he
believed that defendant might have committed “a crime”
in the house, Welsh eventually specified possible crimes
that defendant might have committed. Welsh testified that,
when he arrived at the residence, he believed that “maybe
a crime had been committed” and that “there was probably
something going on.” He was responding to “an unknown-
type call, but clearly a disturbance” in Velek’s house. Welsh
explained that, when responding to a call “that there’s
somebody in there threatening to start destroying stuff,” he
would not know specifically what type of crime might have
been committed; “it could be anything at that point.” But in
response to a suggestion by the prosecutor, Welsh proposed
that possible crimes could include criminal mischief, men-
acing, and assault. He also testified that he had believed
that he had reasonable suspicion to stop defendant when he
saw defendant walking away from the house, because the
officers “didn’t know if [they] had a victim inside that was
assaulted or what * * * his involvement was at that point.”
The trial court concluded that, when the officers
had stopped defendant by directing him to return to the
house, they had “reasonable suspicion that a crime had been
committed, and it was reasonable to believe that [defendant]
was that person who committed it.” Accordingly, the trial
court denied defendant’s motion to suppress. Ultimately, the
trial court convicted defendant on all charges in a stipulated-
facts trial.
Defendant appealed the judgment of conviction and
assigned error to the trial court’s denial of his motion to
suppress. The Court of Appeals decided the case on the lack
of reasonable suspicion. The court concluded that “the facts
known to the officers at the time of the stop—including the
Cite as 361 Or 163 (2017) 169
information from Velek’s mother—were not sufficient to sup-
port an objectively reasonable conclusion that a crime had
occurred.” Id. at 305.
Focusing on the contents of the report from Velek’s
mother and what the officers had observed, the Court of
Appeals evaluated the facts known to the officers at the time
of the stop, in light of the elements of criminal mischief,
assault, and menacing—the potential crimes that Welsh
had identified during his testimony. Id. at 305-07 (relying on
State v. Moore, 264 Or App 86, 89-93, 331 P3d 1027 (2014),
for reasonable-suspicion analysis). Based on the record at
the suppression hearing, the court concluded that the offi-
cers could not have reasonably suspected that criminal mis-
chief, assault, or menacing had occurred or were occurring
inside Velek’s house, because the officers had not been aware
of facts that would have led a reasonable person to infer that
physical injury, property damage, or violence had occurred
or was occurring inside the home. Id. at 307; see also ORS
163.185 (person commits “assault” when he or she causes
“serious physical injury” to another); ORS 163.190 (person
commits “menacing” when he or she “intentionally attempts
to place another person in fear of imminent serious physical
injury”); ORS 164.345 - 164.365 (person commits “criminal
mischief” when he or she damages, interferes, or tampers
with another person’s property).
The Court of Appeals also rejected the state’s
argument that the police need not suspect a defendant of
a specific crime, as long as the officer reasonably believes
“that a crime of some sort ha[s] occurred or [is] about to
occur.” Id. at 307-08. Because the court concluded that the
officers lacked reasonable suspicion to stop defendant, and
the state failed to controvert that the evidence subsequently
discovered was the unlawful product of that unlawful stop,
the court concluded that the trial court should have sup-
pressed the evidence. Id. at 308-09. Accordingly, the Court
of Appeals reversed defendant’s convictions. Id. at 309.
II. ANALYSIS
Neither party disputes the trial court’s conclu-
sion that a “stop”—the kind of seizure of a person that is
170 State v. Maciel-Figueroa
a temporary detention for investigatory purposes, State v.
Holmes, 311 Or 400, 407, 813 P2d 28 (1991)—occurred when
the officers directed defendant to return to the house for ques-
tioning. The sole issue on review is whether that stop was
lawful under Article I, section 9, of the Oregon Constitution,
which provides, in part: “No law shall violate the right of
the people to be secure in their persons * * * against unrea-
sonable * * * seizure[.]” “Reasonable suspicion” is the term of
art that encapsulates the degree of justification that a police
officer must have before conducting a criminal investigative
stop under Oregon law. See, e.g., State v. Watson, 353 Or 768,
775-81, 305 P3d 94 (2013) (so explaining).
Whether the officers stopped defendant based
on reasonable suspicion depends on what the reasonable-
suspicion standard is and how it was applied in this case.
The state and defendant fundamentally disagree concern-
ing those matters. According to the state, the Court of
Appeals erred by reformulating the standard so that rea-
sonable suspicion now requires “an officer to (1) conclude
that a (2) crime had in fact been (3) committed.” (Emphases
in state’s brief.) In the state’s view, the proper standard for
“reasonable suspicion” is instead whether the totality of
circumstances provides a “moderate chance” that “crim-
inal activity” may be “afoot” and that the person stopped
was “somehow involved.” For that formulation of the stan-
dard, the state relies on Safford Unified School District
# 1 v. Redding, 557 US 364, 371, 129 S Ct 2633, 174 L Ed 2d
354 (2009), State v. Valdez, 277 Or 621, 626, 561 P2d 1006
(1977), and State v. Holdorf, 355 Or 812, 820, 333 P3d 982
(2014). Defendant, on the other hand, disagrees that an offi-
cer’s “generalized suspicions that ‘criminal activity may be
afoot’ and that the person might be ‘involved’ ” are sufficient
to justify a seizure of the person, and he contends that the
Court of Appeals correctly applied the reasonable-suspicion
standard as it has long been understood in Oregon.
A.  The Reasonable-Suspicion Standard
Because the state contends that the Court of
Appeals changed the reasonable-suspicion standard itself,
heightening the state’s burden, we review the foundation of
the reasonable-suspicion standard and this court’s historical
Cite as 361 Or 163 (2017) 171
formulations of that standard in detail. We conclude that,
although the state has accurately quoted phrases from a
number of cases to form its proffered reasonable-suspicion
standard, the state’s formulation is incorrect and so general
that it would undermine the ability of courts to review the
basis for an investigatory stop. We also conclude that the
Court of Appeals correctly applied the reasonable-suspicion
standard.
We begin with two foundational principles. First,
the term “reasonable suspicion” implements the prohibi-
tion in Article I, section 9, against “unreasonable” seizures,
by recognizing that, in some cases, it will not be constitu-
tionally unreasonable for the police to seize a citizen with-
out a warrant. See State v. Fair, 353 Or 588, 602, 302 P3d
417 (2013) (citing State v. Cloman, 254 Or 1, 7, 456 P2d 67
(1969)). The reasonable-suspicion standard balances “the
practical necessities of effective law enforcement,” Cloman,
254 Or at 8 (internal quotation marks and citation omitted),
with the need “to prevent arbitrary and oppressive interfer-
ence by [law] enforcement officials with the privacy and per-
sonal security of individuals,” Fair, 353 Or at 602 (internal
quotation marks and citation omitted). The standard was
developed with the recognition that a criminal investigative
“stop,” although less intrusive than an arrest, is still a con-
stitutionally significant seizure. See State v. Unger, 356 Or
59, 71, 333 P3d 1009 (2014). Consistently with the balanc-
ing inherent in Article I, section 9, “reasonable suspicion”
requires a degree of justification for a stop that is commen-
surate with the intrusiveness of the stop. Fair, 353 Or at
602.
Second, as appropriate, this court will borrow from
its decisions applying the reasonable-suspicion standard
contained in the statutes authorizing criminal investigative
stops, ORS 131.615 and ORS 131.605(6),2 when analyzing
the reasonable-suspicion standard that applies in cases
2
ORS 131.615(1) now provides that “[a] peace officer who reasonably sus-
pects 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.” ORS 131.605(6) defines “[r]easonably suspects” to
mean “that a peace officer holds a belief that is reasonable under the totality of
the circumstances existing at the time and place the peace officer acts.”
172 State v. Maciel-Figueroa
challenging the constitutionality of a stop under Article I,
section 9. Those statutes, initially enacted in 1973, repre-
sented the legislature’s determination of how to codify this
court’s interpretation of Article I, section 9, in Cloman, 254
Or at 7, and the United States Supreme Court’s interpreta-
tion of the requirements of the Fourth Amendment to the
United States Constitution in Terry v. Ohio, 392 US 1, 88 S
Ct 1868, 20 L Ed 2d 889 (1968). As this court has noted, the
Commentary to the criminal procedure code explains that
the provision codified as ORS 131.615 was intended to give
“ ‘the courts leeway to interpret the protean situations that
arise” and to give “ ‘the officer limited “stopping” powers.’ ”
Valdez, 277 Or at 625 (quoting Commentary to Criminal Law
Revision Commission Proposed Oregon Criminal Procedure
Code, Final Draft and Report § 31, 26 (Nov 1972)).
The legislature did not enact ORS 131.615 exactly
as the Criminal Law Revision Commission had proposed.
Valdez, 277 Or at 625 n 4. More limited than the rule in
Terry, which had involved a stop based on suspected immi-
nent criminal activity, the legislature’s initial statutory for-
mulation required that a police officer reasonably suspect
that a person “has committed a crime” before stopping the
person for investigation; it did not authorize stopping a per-
son whom the officer suspected “is about to commit” a crime.
Id.; Or Laws 1973, ch 836, § 31. More than 20 years later, in
1997, the phrase “or is about to commit” a crime was added
to ORS 131.615(1). Or Laws 1997, ch 866, § 1.
Oregon case law concerning the reasonable-
suspicion standard has developed over the last half-century
based in part on an officer’s statutory authority to conduct a
criminal investigative stop and in part on the constitutional
limits that Article I, section 9, imposes on that authority.
See generally Watson, 353 Or at 775-81 (explaining evolu-
tion of the “reasonable suspicion” standard in Oregon). In
the first two decades that followed the enactment of the stat-
utes in 1973, this court addressed the statutory authority
for investigatory stops, rather than the limits of Article I,
section 9. Id. at 777; see, e.g., State v. Belt, 325 Or 6, 932
P2d 1177 (1997); Ehly, 327 Or 66; State v. Lichty, 313 Or
579, 835 P2d 904 (1992); State v. Kennedy, 290 Or 493, 624
P2d 99 (1981); Valdez, 277 Or 621. However, in 1997, the
Cite as 361 Or 163 (2017) 173
legislature enacted ORS 136.432, which limited the ability
of courts to exclude evidence as a remedy for violations of
statutes such as ORS 131.615. See Watson, 353 Or at 777-78
(so explaining). Since then, defendants who seek to exclude
evidence derived from stops based on reasonable suspicion
have invoked the prohibition against unreasonable seizures
in Article I, section 9. Id. A handful of those later cases
that concern the reasonable-suspicion standard have made
their way to this court for decision. See Holdorf, 355 Or 812;
Watson, 353 Or 768; Fair, 353 Or 588. But as a result of that
history, this court has decided relatively few cases since the
1969 Cloman decision that specifically address the constitu-
tional dimensions of the reasonable-suspicion standard.
While recognizing the statutory limitation in ORS
131.615(1) that permitted police officers to stop a person for
investigation only if they had reasonable suspicion that the
person had committed a crime, see, e.g., Valdez, 277 Or at 625
n 4 (so explaining under earlier version of ORS 131.615(1),
this court has stated that the analysis of a defendant’s statu-
tory rights “is substantially the same as analysis of his rights
under the search and seizure provisions of the Oregon and
Federal constitutions,” given that the purpose of the stat-
utes “is to protect interests of the kind which are protected
by the Fourth Amendment of the United States Constitution
and by Article I, § 9 of the Oregon Constitution.” Kennedy,
290 Or at 497 (a case involving the defendant’s consent to
a search after he was stopped at the airport based on sus-
picion that he was carrying illegal drugs). And in 2014, in
Holdorf, this court reiterated that principle in analyzing
whether Article I, section 9, required exclusion of evidence
derived from a stop in which the officer suspected that the
defendant, a passenger during a traffic stop, had committed
or was about to engage in drug crimes. 355 Or at 818-19.
We acknowledge that this court has articulated the
reasonable-suspicion standard slightly differently at times,
as the standard has evolved. As noted, the court’s first deci-
sion, in 1969, was Cloman. In that case, this court drew on
federal analysis of the Fourth Amendment to the United
States Constitution, starting with Rios v. United States, 364
US 253, 262, 80 S Ct 1431, 4 L Ed 2d 1688 (1960), to decide
for the first time as a matter of state constitutional law that
174 State v. Maciel-Figueroa
a temporary investigative stop by police must be grounded
on “reasonable suspicion.” 254 Or at 6. The court’s stated
holding concerning investigative stops was that “the police
can stop a car to determine the identity of the vehicle and
its occupants if they have a reasonable suspicion that the car
or its occupants have a connection with criminal activity.” Id.
(emphasis added). Although the court then quoted a number
of decisions of other courts, including one from the Ninth
Circuit, the court did not expand on their significance. See
id. at 7-9. This court explained that it was not “drastically
broadening” the power of officers to stop a person without
probable cause to arrest, given that an officer “must have
reasonable grounds” for the action. Id. at 9.
In Valdez, this court’s next decision concerning the
reasonable-suspicion standard, the court considered the
application of ORS 131.615, which had been enacted four
years earlier. The court emphasized that the record must
reflect information that can be objectively evaluated. The
court quoted extensively from the Commentary to the Law
Revision Commission Proposed Oregon Criminal Procedure
Code, Final Draft and Report, to determine the Commission’s
intent in proposing what became ORS 131.615 and “stat-
utory intent.” 277 Or at 625-26. Among other things, the
court noted that the Commentary stated that, to establish
reasonable suspicion, Terry required an officer to identify
“specific and articulable facts” that “indicate to the officer
that there is some type of criminal activity afoot and that this
particular person is somehow involved.” Id. at 626 (internal
quotation marks omitted; emphasis in Valdez).
This court in Valdez did not expressly state that
the Commission’s understanding of Terry was correct or
that those requirements—sufficient facts indicating that
(1) “criminal activity was afoot” and (2) the defendant was
involved—formed the standard for evaluating the reason-
ableness of an officer’s belief that the defendant “has com-
mitted a crime” as required by ORS 131.615. But the court’s
analysis implied it. The state’s evidence at the suppres-
sion hearing in Valdez was that (1) officers observed three
men in a high-vice area of northeast Portland approach a
car and the defendant put a brown paper bag in the trunk;
(2) one of the officers believed that the defendant, an African
Cite as 361 Or 163 (2017) 175
American, looked like “a typical [drug] pusher”; and (3) the
defendant was neatly groomed and well dressed. Id. at 623.
The court compared the “fund of suspicious activity” that the
officers had in Terry and Cloman with the evidence before
it that could be “objectively evaluated.” Id. at 627. While
acknowledging that experienced officers develop an instinct
about criminal conduct, the court cautioned that instinct
alone would not suffice to establish reasonable suspicion:
“[I]nstinct and experience cannot, however, form the entire
basis for ‘reasonable suspicion,’ because no practical control
can be exercised over police by courts if, in the absence of
any remarkable activity, the officer’s instinct and experi-
ence may be used as the sole reason to justify infringement
upon the personal liberty sought to be protected by the
statute.”
Id. at 628. The court concluded that the state had not estab-
lished reasonable suspicion as required by ORS 131.615,
reversed the Court of Appeals, and affirmed the trial court’s
decision to grant the defendant’s motion to suppress evi-
dence. Id. at 629.
This court’s next decision, Lichty, came 15 years
later in 1992 and, like Valdez, concerned the reasonableness
of a stop under the statute. In Lichty, the court expressly
stated the reasonable-suspicion standard, which it described
as an “ ‘objective test of observable facts,’ ” 313 Or at 584(quoting Valdez, 277 Or at 628), in terms of facts giving rise
to an inference that criminal activity was afoot, leaving the
defendant’s involvement implied:
“If a police officer ‘is able to point to specific and articulable
facts which give rise to the inference that criminal activity
is afoot, the officer has ‘reasonable suspicion’ and hence
can stop the individual for investigation.’ State v. Valdez,
* * * 277 Or at 626 (quoting the Commentaries from the
Commission of the Proposed Oregon Criminal Procedure
Code of 1972, which drafted ORS 131.615).”
Id. at 584 (emphasis added).
The following year, this court decided two cases
concerning the standard for reasonable suspicion under
ORS 131.615. In Ehly, when describing the standard, the
court explicitly clarified the requirement that the facts must
176 State v. Maciel-Figueroa
give rise to a reasonable inference that the person stopped
has committed a crime: “If a police officer is able to point to
specific and articulable facts that give rise to a reasonable
inference that a person has committed a crime, the officer
has ‘reasonable suspicion’ and hence may stop the person
for investigation.” 317 Or at 80 (emphasis added). In State v.
Jacobus, 318 Or 234, 239-41, 864 P2d 861 (1993), the court
reiterated that facts and reasonable inferences are required,
and then it returned to Lichty to finish its formulation of the
reasonable-suspicion standard: Reasonable suspicion exists
if “the facts known at the time of the stop, combined with the
inferences that the police officer reasonably drew from those
facts, were sufficient to give rise to ‘reasonable suspicion’ by
the officer that ‘criminal activity was afoot.’ ” Id. at 239 (quot-
ing Lichty, 313 Or at 584 (emphasis added)).
Four years later, in 1997, this court returned to the
statutory reasonable-suspicion standard in Belt. The court
explained in Belt that, in light of ORS 131.615(1), “the issue
of law presented is whether the information known to the
officer at the time of the stop was sufficient as a legal matter
to support a reasonable suspicion that defendant had com-
mitted the crime for which the officer stopped him for the
purpose of making inquiry.” 325 Or at 11. Reasonable suspi-
cion exists, the court stated, if “the evidence is legally suffi-
cient to support an inference that an officer holds a subjective
belief that is reasonable under the circumstances as to a spe-
cific defendant and crime.” Id. at 14 (emphasis added). And,
to address the reasonableness issue, a court must “review
the officer’s testimony at the suppression hearing” to deter-
mine “whether the officer pointed to specific and articulable
facts that are sufficient as a matter of law to give rise to an
inference that a reasonable officer would hold the required
subjective belief.” Id. at 12 (citing Ehly, 317 Or at 80). Thus,
in its formulation of the standard, the court in Belt reempha-
sized that the statute required suspicion that the defendant
had committed a crime.
Since 1997 and the enactment of ORS 136.432
(providing that, with exceptions, 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”), this court’s decisions concerning
Cite as 361 Or 163 (2017) 177
the reasonable-suspicion standard have addressed consti-
tutional challenges to stops under Article I, section 9. In
Fair, decided in 2013, the court addressed whether police
may stop a potential material witness and the standard that
must be met for doing so, which differs from the reasonable-
suspicion standard applicable to individuals whom the police
suspect of criminal activity. 353 Or at 609. Watson, the other
post-1997 case also decided in 2013, involved a traffic stop,
during which the officers developed reasonable suspicion
that the defendant had drugs in the car. 353 Or at 784-85.
This court explained the history of our cases concerning
ORS 131.615 and the limited case law concerning constitu-
tional limitations on police authority to stop a person under
Article I, section 9, 353 Or at 775-81, but the case focused
on whether actions taken by the police officers during the
traffic stop were reasonably related to their investigation of
the traffic infraction. Id. at 781-84.
As noted, Holdorf was decided in 2014 and is this
court’s most recent decision concerning the reasonable-
suspicion standard. In its constitutional analysis of the
reasonable-suspicion standard, this court in Holdorf con-
cluded that common principles underlie decisions such as
Valdez, Lichty, and Ehly and the constitutional limits on
police authority in Article I, section 9. It summarized the
common principles relevant to that case as follows:
“The people have a liberty interest to be free from unrea-
sonable searches and seizures that is protected by provi-
sions of the Oregon and federal constitutions. The standard
of ‘reasonable suspicion’ justifying a police intrusion on
that liberty interest when a person is stopped was intended
to be less than the standard of probable cause to arrest. A
stop is unlawful unless it meets an objective test of rea-
sonableness based on observable facts. Officer intuition and
experience alone are not sufficient to meet that objective
test. However, if an officer is able to point to specific and
articulable facts that a person has committed a crime or is
about to commit a crime, the officer has a ‘reasonable suspi-
cion’ and may stop the person to investigate.”
Holdorf, 355 Or at 822-23 (emphasis added).
In applying those principles concerning the
reasonable-suspicion standard, the court further explained
178 State v. Maciel-Figueroa
that the objective review of the basis for a stop “looks to the
totality of the circumstances confronting a police officer and
not just those circumstances that directly relate to a suspect
or are personally observed by the police officer stopping a
suspect.” Id. at 824; accord Belt, 325 Or at 13 (in determin-
ing whether an officer had “reasonable suspicion,” a court
must first look to the officer’s actual belief, and then evalu-
ate whether that belief was objectively reasonable under the
totality of the circumstances). Thus, in some circumstances,
a police officer may rely on information provided by others in
determining whether a stop is justified by reasonable suspi-
cion. Holdorf, 355 Or at 824-25.
The facts in Holdorf also raised the additional issue
of how to evaluate an officer’s testimony concerning his
experience as a police officer—in that case, experience with
methamphetamine use by criminal suspects. Id. at 826-27.
The court concluded, based in part on Valdez, Lichty, and
Ehly, that “a police officer’s training and experience may,
depending on the factual circumstances, * * * be given appro-
priate weight” by a court in its objective review of the basis
for an investigatory stop of the defendant. Id. at 829. But,
the court emphasized,
“a police officer’s training and experience, as relevant to
proving particular circumstances, is not presumed based
solely upon a police officer’s employment status. Rather,
that training and experience must be established, as it
was here, through admissible evidence of specific artic-
ulable facts that permit an officer to make a reasonable
inference based on the officer’s pertinent training and
experience.”
Id.
As that history of the case law establishes, the
variable parts of the standard for reasonable suspicion are
(1) the nature or specificity of the inference that justifies the
stop, both as to the kind of illegal activity suspected and the
defendant’s involvement in it, and (2) the kind and quantum
of evidence required to establish that inference. In this case,
the state expressly or implicitly challenges both parts of
the reasonable-suspicion standard as the Court of Appeals
articulated and applied it.
Cite as 361 Or 163 (2017) 179
In regard to the defendant’s suspected illegal con-
duct, the state argues that the Court of Appeals incorrectly
evaluated the officers’ suspicion of specific crimes, including
criminal mischief, menacing, and assault. The state argues
that the officers had reasonable suspicion because the total-
ity of the circumstances suggested that other, more gen-
eral, “criminal activity” could have occurred.3 We reject the
proposition that an officer need not subjectively suspect the
defendant’s crimes with any specificity, as the state’s argu-
ment suggests.
That position is inconsistent with the requirement
that an officer identify “specific and articulable facts” link-
ing the defendant to criminal activity, as well as the require-
ment that an officer’s belief be objectively reasonable so as to
prevent “arbitrary” intrusions into individual privacy. Fair,
353 Or at 602. An officer cannot articulate sufficiently spe-
cific facts to satisfy Article I, section 9, if the officer cannot
articulate, with at least some specificity, what type of crime
that the person stopped may have committed. See Valdez,
277 Or at 628 (an officer’s “instinct and experience cannot,
however, form the entire basis for ‘reasonable suspicion,’
because no practical control can be exercised over police by
courts if, in the absence of any very remarkable activity, the
officer’s instinct and experience may be used as the sole rea-
son to justify infringement upon the personal liberty sought
to be protected by the statute”). We have not identified any
case in which this court has held that an officer’s subjective
suspicion of generalized “criminal activity” was sufficiently
specific or objectively reasonable to satisfy Article I, section
9, for a stop of a particular individual. Although four of the
pre-1997 cases (Jacobus, Lichty, Valdez, and Cloman) state
that there must be an inference of “criminal activity” or
of criminal activity “afoot,” in all of those cases, the court
reviewed whether it was reasonable to infer that the defen-
dant had committed specific crimes or types of crimes. See
Jacobus, 318 Or at 241 (conspiracy or attempt to commit
robbery or theft); Lichty, 313 Or at 584-85 (possession of
3
On review, the state now argues that perhaps “criminal activity of a domes-
tic violence nature” was occurring, but the state did not make that argument
in the Court of Appeals. And, the record contains no evidence that the officers
suspected defendant of domestic violence.
180 State v. Maciel-Figueroa
cocaine); Valdez, 277 Or at 628-29 (drug crimes); Cloman,
254 Or at 10 (theft).
Thus, the better and specific formulation of the
required inference in a case based on the defendant’s ille-
gal conduct (as opposed to the defendant’s potential to be
a material witness, as discussed in Fair)—as provided in
Ehly, Belt, and Holdorf—is that the officers must reason-
ably suspect that the defendant has committed or is about
to commit a specific crime or type of crime. A specific type
of crime, for example, can be criminal mischief, assault,
theft, or kidnapping, with the differences in the degrees of
the crimes being immaterial to whether the officers have
reasonable suspicion. Another set of examples of a specific
type of crime is the possession or the delivery of a controlled
substance. In those cases, the difference between whether
the substance is cocaine rather than methamphetamine is
also immaterial to the analysis of reasonable suspicion.4
As for the inference concerning defendant’s involve-
ment, the state argues that the Court of Appeals erred by
concluding that the stop was justified only if the officers rea-
sonably concluded that defendant had committed a crime, as
opposed to perhaps witnessing criminal activity. Rather, the
state contends, reasonable suspicion requires only that the
officer reasonably believe that the defendant is “somehow
involved with whatever criminal activity may have been
occurring.” The state’s position is problematic on two fronts.
First, in this case, both officers testified that they
actually believed that defendant was Wilson and that he
had committed a crime—not that he was a potential wit-
ness to a crime.5 Accordingly, the Court of Appeals properly
focused on whether the officers reasonably suspected that
defendant at least had committed some type of crime.
4
We do not intend those few examples to constitute a limit on the types of
crimes that may be the focus of an officer’s stop.
5
The state relies on Fair, in which this court held that, “in appropriate cir-
cumstances, it is permissible under Article I, section 9, for officers to stop and
detain someone for on-the-scene questioning whom they reasonably suspect can
provide material information about a crime’s commission.” 353 Or at 608. The
state has raised the possibility that defendant could have been a witness to a
crime for the first time in this court, and we do not consider how that circum-
stance and the rule in Fair would apply, given the officers’ testimony about their
subjective beliefs about defendant’s involvement as a crime suspect in this case.
Cite as 361 Or 163 (2017) 181
Second, as with the state’s argument concerning
the specificity of the suspected illegal conduct required for
reasonable suspicion, the state’s position is inconsistent with
the rule that reasonable suspicion requires a showing of
“specific and articulable facts” justifying an officer’s intru-
sion into someone’s privacy, which in turn allows meaningful
judicial review of the reasonableness of the officer’s seizure
of that person. Although this court’s decisions have some-
times worded the requirement loosely, as the state notes by
citing Valdez, 277 Or at 626 (requiring an inference that
the person stopped “is somehow involved” in criminal activ-
ity), all the cases discussed above concerning a defendant’s
suspected perpetration of a crime consistently require that
the evidence must support an inference that the defendant
either has committed or is about to commit a crime. See,
e.g., Holdorf, 355 Or at 829-30 (suspicion that the defendant,
who was in a car with a known felon under investigation for
participation in a methamphetamine distribution ring, and
who appeared to be under the influence of the drug, pos-
sessed the drug); Ehly, 317 Or at 79-81 (suspicion that the
defendant, who was rummaging in a duffel bag, was a felon
in possession of a firearm).
Thus, we reject the state’s position that the officer
need not actually and reasonably suspect that the individ-
ual committed or is about to commit a specific crime or type
of crime—and need only suspect the individual of general
“criminal activity.” When an officer’s suspicion reduces to
that level of generality, such a rule would permit an officer
to stop an individual whenever the officer believes that the
person appears to be a criminal or that something about a
situation seems “criminal.” But this court has never con-
cluded that an officer had reasonable suspicion to stop an
individual based on nonspecific “criminal activity.” See,
e.g., Jacobus, 318 Or at 241 (officer reasonably suspected
that the defendant’s criminal activity included robbery and
theft); Lichty, 313 Or at 585 (officer reasonably suspected
that the defendant possessed cocaine and “therefore was
committing a crime”). Moreover, this court has specifically
rejected officer intuition alone as sufficient to establish rea-
sonable suspicion. Holdorf, 355 Or at 823; Valdez, 277 Or at
628.
182 State v. Maciel-Figueroa
In sum, the standard for “reasonable suspicion”
required to support the lawfulness of an investigative stop of
a person suspected of criminal conduct is well-established.
For police officers to make a stop, they must reasonably
suspect—based on specific and articulable facts—that the
person committed a specific crime or type of crime or was
about to commit a specific crime or type of crime. For a court
to determine that an investigative stop was lawful under
Article I, section 9, the court (1) must find that the officers
actually suspected that the stopped person had committed
a specific crime or type of crime, or was about to commit
a specific crime or type of crime, and (2) must conclude,
based on the record, that the officers’ subjective belief—their
suspicion—was objectively reasonable under the totality of
the circumstances existing at the time of the stop. See, e.g.,
Holdorf, 355 Or at 825; Ehly, 317 Or at 79-80.
Turning to the kind of evidence required to estab-
lish the lawfulness of a stop, because the officers in this case
believed only that defendant may have committed a crime in
Velek’s house, we limit our discussion to the evidence needed
to support an officer’s belief that the defendant may have
committed a crime. All this court’s cases after Cloman have
consistently required the state to establish the “specific and
articulable facts” that led the officer to actually and reason-
ably believe that the defendant may have committed a crime
or type of crime. The state agrees that an officer must be
able to point to “specific and articulable facts” giving rise
to the officer’s belief. But, the state emphasizes that a court
reviewing the lawfulness of a stop must consider whether
the “totality of the circumstances” suggested that criminal
activity was afoot and now relies on a theory that defen-
dant may have committed domestic violence crimes, backed
by cases from other jurisdictions concerning suspected
domestic violence crimes. In making that argument, the
state implies that an appellate court may review a stop for
whether there was any possibility that any crime may have
been committed. In other words, the state suggests that we
can affirm the trial court’s denial of defendant’s motion to
suppress apart from the officers’ testimony about the fac-
tual circumstances leading to the stop and the crimes that
they suspected that defendant had committed when they
Cite as 361 Or 163 (2017) 183
made the stop, which specifically did not include domestic
violence, and apart from the state’s arguments founded on
that evidence at the suppression hearing.
We reject the state’s suggestion. A court’s review
of a stop is based on the record made concerning the offi-
cer’s actual belief that the defendant may have committed a
crime, see Ehly, 317 Or at 79, and the basis for that belief—
the specific facts, articulated by the officer, that led him or
her to believe that the defendant may have committed a
crime, which we then review as a matter of law for objec-
tive reasonableness, see Belt, 325 Or at 12 (stating that, to
address reasonableness, a court reviews “the officer’s testi-
mony at the suppression hearing” to determine “whether the
officer pointed to specific and articulable facts that are suf-
ficient as a matter of law to give rise to an inference that a
reasonable officer would hold the required subjective belief”
(emphasis in original)).
Finally, as for the quantum or degree of certainty
required for the officers to reasonably suspect that the per-
son stopped has committed a crime, the state takes issue
with the Court of Appeals’ phrasing of its holding: “[T]he
facts known to the officers at the time of the stop * * * were
not sufficient to support an objectively reasonable conclu-
sion that a crime had occurred.” Maciel-Figueroa, 273 Or
App at 305 (emphasis added). “Reasonable suspicion,” the
state argues, does not require that an officer conclude with
certainty that a crime has occurred or is about to occur.
Rather, it argues, the officer must identify specific and artic-
ulable facts that support an inference of criminal activity.
See Lichty, 313 Or at 584 (reasonable suspicion exists when
police officer “is able to point to specific and articulable facts
which give rise to the inference that criminal activity is
afoot”) (internal quotation marks and citations omitted).
We agree that “reasonable suspicion” does not
require an officer to conclude that the defendant has com-
mitted a crime, in the sense that the verb “conclude” con-
notes reaching a final decision or judgment that something
is certainly true. The term “reasonable suspicion” itself con-
veys that nuance; in its ordinary usage, “suspicion” means
a feeling or belief that something is true, rather than an
184 State v. Maciel-Figueroa
objective certainty. However, an officer’s subjective belief
must be “objectively reasonable”; thus, as the state identi-
fies, the standard for “reasonable suspicion” requires that
the articulated facts that formed the basis for the officer’s
suspicion give rise to a reasonable inference that the defen-
dant has committed or is about to commit the crime that
the officer suspects. See Holdorf, 355 Or at 822; Ehly, 317 Or
at 80; Lichty, 313 Or at 584; Valdez, 277 Or at 626. In sum,
the state need not prove that the articulated facts give rise
to a conclusion with certainty that a crime has occurred or
is about to occur; instead, based on the specific facts known
and articulated by the officer, a reviewing court must con-
clude that the officer’s subjective belief could be true, as a
matter of logic. See Belt, 325 Or at 13.
B.  Application
As we emphasized at the outset, the record estab-
lishes that the only facts known to the officers at the time
of the stop were that defendant was a male whom they had
seen walking down the driveway from Velek’s home and
then walking away from the house; approximately 10 min-
utes earlier, they had received a “disturbance call”; and, the
information in that call was that Velek’s mother had reported
that a named man, Wilson, was inside Velek’s house, yelling
and threatening to break things. Two key factual inferences
are at issue in this case: (1) defendant was Wilson, the sub-
ject of the report, and (2) Wilson had committed a crime in
Velek’s house. Although the facts support the first inference,
they do not support a reasonable inference that Wilson had
committed the crimes that the officers suspected, as a mat-
ter of logic.
Initially, we conclude that the facts articulated by
the officers supported their belief that defendant could be
Wilson. Although the officers lacked identifying information
about Wilson from the call, the spatial and temporal con-
nection between defendant and the house where the distur-
bance occurred sufficed. Defendant was male and was walk-
ing down the driveway from Velek’s home minutes after the
report from Velek’s mother. Although defendant might have
departed the front of the house after approaching for an inno-
cent reason, without ever having been inside, the officers
Cite as 361 Or 163 (2017) 185
knew the layout of the house and reasonably inferred that
he had come from the front entrance and, therefore, that he
could have just come out of the house and been Wilson.
The officers articulated three crimes that they
believed that defendant might have committed. As noted,
Moffitt testified that he believed that defendant “may have
been involved with the disturbance” at Velek’s house, which
he believed may have been a crime related to “yelling and
threatening to break things at the home.” Welsh initially
testified that he believed, generally, that “maybe a crime had
been committed” and that “there was probably something
going on,” which “could be anything” related to “threatening
to start destroying stuff.” Later, Welsh’s testimony specified
that defendant’s possible crimes could have included crim-
inal mischief, menacing, and assault. Some of the officers’
testimony suggested that their suspicion mostly reduced to
their intuition that defendant had done something wrong.
But, to the extent that the officers did subjectively believe
that defendant had committed specific crimes, the Court of
Appeals properly tethered its analysis to the range of crimes
that the officers articulated. See Belt, 325 Or at 13.
In examining the evidence in the record, the Court
of Appeals reasoned that the lone fact that someone yelled
and threatened to break things did not give rise to a log-
ical inference that that person actually broke things, and
the officers did not hear anything or observe anything else
about defendant that suggested that he had been destroying
Velek’s property in her house. See Maciel-Figueroa, 273 Or
App at 307. And with no further information in the record,
the court explained that the facts that the officers articu-
lated were even less supportive of logical inferences that
defendant had physically harmed or threatened to harm
Velek or another person. Id. We agree with that analysis,
which, contrary to the state’s argument, does not place a
burden on officers to show conclusive proof of a crime at
the time of the stop, as the state contends. We emphasize
that the record was devoid of evidence concerning training
that police officers have concerning “disturbance” calls or
the officers’ experience responding to such calls, and so the
prosecutor could not argue that information of that type,
186 State v. Maciel-Figueroa
coupled with what the officers knew through the call and
their observations on the street, would support an inference
that defendant had assaulted or threatened to harm Velek
or had destroyed her property. Moreover, although the offi-
cers knew the house and Velek from previous contacts, no
testimony tied those contacts to any reasonable inference
they could have drawn relating to defendant. It is apparent
that the circumstances aroused the officers’ suspicion, but
the record did not contain sufficient specific and articulable
facts—evidence that can be objectively evaluated, Valdez,
277 Or at 626—that would support an inference that defen-
dant had committed a crime.
As we have reiterated in this opinion, “reasonable
suspicion” under Article I, section 9, requires that an officer
be able to point to specific and articulable facts that support
the officer’s belief that the person stopped may have com-
mitted or may be about to commit a specific crime or specific
type of crime, and the key question is whether the officer’s
subjective belief is objectively reasonable, given the facts in
the record. The Court of Appeals properly applied those set-
tled standards in this case.
The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.