State v. Watson

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.