State v. Maciel-Figueroa

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.