A recent decision from the Oregon Court of Appeals could determine whether or not police are allowed to ask TriMet passengers for proof of fare.
In a January ruling, the appeals court reversed a 2017 Washington County Circuit Court decision that allowed evidence collected during an officer’s TriMet fare check to be used in court. The Washington County case centers on Ahmed Almahmood, a man who was stopped by a Tualatin police officer on a MAX train in 2017 during a random fare check.
The Tualatin officer was part of TriMet’s Transit Police Division, a group of police officers from different agencies in the Portland area that contracts with TriMet to provide security on the transit agency’s property. Since 2018, routine fare checks haven’t been a part of the division’s primary duties, but they do still have the authority to check for proof of fare and assist TriMet’s uniformed fare enforcers.
After Almahmood failed to show the officer proof that he’d paid for the ride, the officer ran his name through a police database, and found that Almahmood had previously been banned from riding TriMet. The officer then searched him, found he was carrying a pair of brass knuckles, and charged him with “felon in possession of a restricted weapon.”
In pre-trial hearings, Almahmood’s lawyers argued that the brass knuckles shouldn’t be considered evidence in trial, since they had been found during a random fare check—an interaction the lawyers said amounted to an unconstitutional search. The circuit court judge disagreed, and allowed the weapon to be referenced in the trial, which resulted in Almahmood being found guilty. Almahmood’s lawyers appealed the decision.
The Oregon Court of Appeals agreed that the police-enforced fare check violated the Oregon Constitution. In its ruling, the court argued that the police officer’s actions constituted an “unreasonable” search and seizure as defined by the Oregon Constitution, because a random fare check lacks any “reasonable suspicion” that a person had actually committed a crime. Additionally, because the fare check was carried out by a cop rather than an unarmed TriMet employee, the court wrote that “reasonable TriMet passengers would have concluded that officers conducting the fare check were significantly interfering with passengers’ liberty.”
In other words: Almahmood was forced to comply with an officer’s request despite no clear indication that he had broken a law, and he could reasonably conclude that there would be serious consequences if he didn’t comply.
Chris O’Connor, a defense attorney with Multnomah Defenders, told the Mercury the appeals court ruling could be interpreted to mean that police shouldn’t be conducting random fare checks on TriMet.
“I think [the ruling] allows a person sitting on a MAX train—they’re sitting there and a cop says ‘Hey, I need to check your fare.’ You can answer ‘No thank you, have a nice day,’” said O’Connor, who was representing himself and not advocating for any clients in his conversation with the Mercury. “And anything [the police] do after that would not be considered permissible in court.”
O’Connor added that it may still be permissible for police to check fares if they have reasonable suspicion to believe someone didn’t pay—the person didn’t tap their Hop Card before boarding a MAX train, for example. But if random, sweeping fare checks conducted by officers result in legal penalties against people, this Court of Appeals decision could be cited by their defense team.
It’s worth noting that TriMet has changed its fare check protocols since 2017, when this arrest occurred. In 2018, after being embroiled in another fare evasion case, TriMet decriminalized the penalty for fare evasion—meaning someone can’t be charged with a crime for not paying their fare. The agency also now relies largely on unarmed TriMet employees for fare enforcement instead of cops, which the Court of Appeals’ decision identified as a more constitutional way to do the job.
But transit police officers do still have the authority to check fares onboard TriMet vehicles. TriMet spokesperson Roberta Altstadt told the Mercury that the transit agency has no plans to change its fare check rules.
“Transit Police no longer routinely conduct fare checks as part of their regular work,” Altstadt wrote in an email. “That work is now done by TriMet fare and code enforcement staff, and TriMet is not changing our current protocols for fare inspections.”
Altstadt mentioned the changes made to TriMet policy in 2018. “Those changes… made clear that proof of payment requests (fare checks) are administrative searches like those done when a person enters a courthouse,” she wrote. “The opinion in the case only applies to the specific facts of that case, not to all fare evasion incidents.”
It’s unclear what will happen next. Lawyers arguing on behalf of the state could ask the Oregon Supreme Court to review the appellate court’s findings. If that doesn’t happen and the appeals court decision stands, O’Connor said it will likely start to be referenced by defense attorneys during trials.
“It doesn’t stop [police] from sitting on the train,” O’Connor said. “They can still intervene if they actually perceive a crime. The court is just saying, it’s not reasonable suspicion, sitting on the MAX, to assume you’re violating a fare requirement [and check your fare.]”