§ 2.3 The Stop

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 2.3 THE STOP

§ 2.3-1 General Rule

A stop is a "temporary restraint of a person's liberty." ORS 131.605(7). A stop, which requires reasonable suspicion, is distinguished from an arrest, which requires probable cause, and a mere conversation, which requires neither probable cause nor reasonable suspicion. Both arrests and stops constitute seizures under Article I, section 9, of the Oregon Constitution. State v. Ashbaugh, 349 Or 297, 308-09, 244 P3d 360 (2010).

Whether a seizure constitutes a stop depends on "(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred." Ashbaugh, 349 Or at 316 (emphasis and footnote omitted).

NOTE

Contrary to the federal rule enunciated in California v. Hodari D., 499 US 621, 626, 111 S Ct 1547, 113 L Ed 2d 690 (1991), "the Oregon Constitution does not require a submission to authority or the use of physical force for police action to constitute a seizure." State v. Puffenbarger, 166 Or App 426, 433, 998 P2d 788 (2000).

The person detained must be kept where stopped and only for a limited, that is, reasonable, time. ORS 131.615(2).

A lawful stop may become an unlawful arrest if the restraint of the detainee goes beyond the scope permissible for a stop. In State v. Morgan, 106 Or App 138, 142, 806 P2d 713, rev den, 312 Or 234 (1991), when a polite and cooperative detainee, for whom the police admittedly had no probable cause to arrest, was handcuffed and put in a patrol car, the lawful stop became an unlawful arrest, and the defendant's subsequent statements were suppressed. But see State v. Werowinski, 179 Or App 522, 528-29, 40 P3d 545, rev den, 334 Or 632 (2002) (officer did not convert a stop into an arrest by placing a suspect in back of a locked patrol car without handcuffs; the officer's action was consistent with the need to control the scene during investigation); State v. McKinney, 174 Or App 47, 52, 23 P3d 386 (2001), rev den, 333 Or 260 (2002) (officer's brief physical restraint of a person did not convert an otherwise legal stop into an arrest).

The federal rule is essentially the same. Stops and detentions are limited to the location where the reasonable suspicion arises. See Bailey v. United States, 568 US 186, 201-02, 133 S Ct 1031, 185 L Ed 2d 19 (2013); see also Michigan v. Summers, 452 US 692, 703-05, 101 S Ct 2587, 69 L Ed 2d 340 (1981) (stop of a person leaving a home that police were about to search pursuant to a warrant was held reasonable); Dunaway v. New York, 442 US 200, 212-13, 99 S Ct 2248, 60 L Ed 2d 824 (1979) (taking a person to a police station for questioning without probable cause to arrest was held unreasonable).

§ 2.3-2 Standards for a Stop

§ 2.3-2(a) Oregon Case Law

A seizure of a person occurs "(a) if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement; or (b) if a reasonable person under the totality of the circumstances would believe that (a) above has occurred" State v. Ashbaugh, 349 Or 297, 316, 244 P3d 360 (2010) (emphasis in original; footnote omitted). Thus, the reasonable belief of the person is a factor, but all the surrounding circumstances must be evaluated too.

What distinguishes a seizure (either a stop or an arrest) from a constitutionally insignificant police-citizen encounter is the imposition, either by physical force or through some "show of authority," of some restraint on the individual's liberty. The test is an objective one: Would a reasonable person believe that a law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement. Because of the diversity of potential police-citizen encounters, the inquiry necessarily is fact-specific and requires an examination of the totality of the circumstances involved.

State v. Beasley, 263 Or App 29, 32, 326 P3d 634, rev den, 356 Or 397 (2014) (quoting State v. Backstrand, 354 Or 392, 399, 313 P3d 1084 (2013) (citations and footnotes omitted)).

For a "show of authority" to give rise to a seizure, the circumstances must be such that a reasonable person would believe "that an officer is exercising his or her official authority to restrain." [Backstrand, 354 Or] at 401. "Explicitly or implicitly, an officer must convey to the person with whom he is dealing, either by word, action, or both, that the person is not free to terminate the encounter or otherwise go about his or her ordinary affairs." Id. at 401-02 (an officer's request for identification from the defendant, whom he thought was underage in an adult store, was not

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