Enlarging the Scope of a Detention

I’ve received a number of concerned inquiries asking about a new Oregon Supreme Court decision entitled State v. Arreola-Botello (Nov. 15, 2019) 365 Or. 695, where it was held that for purposes of Article I, section 9 of the Oregon Constitution, there are both “subject-matter and durational limitations” to the questioning that may occur during a traffic stop, thus making it unconstitutional for Oregon law enforcement officers to question a subject stopped for a traffic violation about any other possible criminal activity not related to the purposes of the stop, whether or not it unlawfully prolongs the traffic stop. Relax: This is not the rule in California, nor even in Ninth Circuit Court of Appeal’s geographical area of responsibility. Being an Oregon constitutional issue, Arreola-Botello applies only to Oregon. Oregon has the right—under the “Independent State Grounds” theory—to tighten up on the constitutional rules beyond what is already imposed by the U.S. Supreme Court. In contrast, both California and the Ninth Circuit both follow the U.S. Supreme Court’s rulings on this issue. California is required do so since passage of “Proposition 8:” (Cal. Const., Art I, § 28(d)) (passed in June, 1982), doing away with the Independent State Grounds theory in California. The Ninth and other federal Circuits have no choice but to follow the U.S. Supreme Court’s lead. The rule we have to follow, therefore, is quite clear: So long as a detention (traffic stop or otherwise) is not prolonged longer than the time it reasonably takes to handle the purposes of the detention itself (absent some newly developed reasonable suspicion of criminal activity justifying an extension of the detention), an officer may ask any questions he or she wants. (See Muehler v. Mena (2005) 544 U.S. 93, reversing the Ninth Circuit on this issue, which had held to the contrary.) “Even when law enforcement officers have no basis for suspecting a particular individual, they may pose questions, ask for identification, and request consent to search luggage— provided they do not induce cooperation by coercive means.” (United States v. Drayton (2002) 536 U.S. 194.) As noted above, California follows this rule. (People v. Brown (1998) 62 Cal.App.4th 493, 499-500; “Questioning during the routine traffic stop on a subject unrelated to the purpose of the stop is not itself a Fourth Amendment violation. Mere ....

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