“Where are you headed?”
“Have any weapons on you?”
“Can I take a look inside your car?”
For decades, Portland police officers have been allowed to ask these kinds of questions to any driver they pull over for a minor traffic violation. Rarely are these inquiries related to the reason the driver was stopped, and rarely do drivers feel like they’re able to decline to answer.
More often than not, officers are simply using the premise of a petty traffic violation—like driving with a broken taillight or failing to signal before changing lanes—as an excuse to stop, question, and search someone they deem suspicious.
“Traffic stops have, historically, always been a part of police work,” says Lt. Jason Pearce, who’s been with the Portland Police Bureau (PPB) for 25 years. “We go out and look for cars. Bad guys drive cars.”
A recent decision by the Oregon Supreme Court, however, threatens to upend that practice. In November, the court ruled it was unconstitutional for officers to ask drivers any investigatory questions unrelated to the purpose of a traffic stop.
In Portland, recent data shows this policing tool is disproportionately used against people of color, meaning this ruling may begin to rectify the overrepresentation of Black people in the criminal justice system.
“Traffic stops have, historically, always been a part of police work. We go out and look for cars. Bad guys drive cars.”
—Lt. Jason Pearce, head of PPB’s Gun Violence Reduction Team
The Oregon Supreme Court’s ruling stems from the case of Mario Arreola-Botello, who in 2015 was pulled over by Beaverton police officer Erik Faulkner for failing to signal a turn. During the traffic stop, Faulkner asked Arreola-Botello if he could search his car. When Arreola-Botello agreed, the officer discovered a package of methamphetamine. Arreola-Botello was arrested on the spot.
Arreola-Botello’s lawyer argued that the search of his client’s car was unconstitutional because Faulkner offered no evidence to warrant a search.
State prosecutors and the Oregon Court of Appeals, however, said that Faulkner’s request to search Arreola-Botello’s car fell under Oregon’s “unavoidable lull” doctrine—a wonky 2008 Court of Appeals decision that allows officers conducting traffic stops to ask drivers investigatory questions unrelated to the stop during an “unavoidable lull” in the encounter. Those quiet periods can include the time during which a driver is searching for their insurance, or when an officer’s computer is running the car’s plates.
For the past decade, officers have relied on that loophole to get drivers to admit to other crimes or consent to a search of their vehicle.
But on November 15, the Oregon Supreme Court sided with Arreola-Botello, overturning the lower courts’ decisions. In doing so, the court ruled that since the Oregon Constitution protects Oregonians from “unreasonable search and seizure,” it also keeps officers from asking drivers questions during a traffic stop that go beyond the violation they’ve been pulled over for.
“Put simply, an ‘unavoidable lull’ does not create an opportunity for an officer to ask unrelated questions, unless the officer can justify the inquiry on other grounds,” wrote Justice Adrienne Nelson, Oregon’s first Black woman on its Supreme Court, in the final ruling.
Applying limitations to what officers can inquire about in these scenarios, she added, “ensures that officers do not turn minor traffic violations into criminal investigations without a constitutional basis for doing so.”
The court notes that if an officer finds enough justification to investigate another crime after a driver is pulled over—maybe they see stolen property on the passenger seat, or can tell the driver’s intoxicated—they can expand the scope of the investigation.
Since the Oregon Supreme Court has the final say on any decision regarding the state constitution, its ruling can only be appealed by another ruling out of its own court. That’s not expected to happen anytime soon.
The court’s decision applies to all future cases and all cases currently open in the state criminal justice system. It’s already unraveling past judgements: On December 10, the Jackson County district attorney’s office dropped charges against a man who had been arrested for drug possession after he agreed to a vehicle search after being pulled over for an unknown traffic violation.
Ten days after the court ruling, PPB released a report analyzing all traffic stops made by its officers in 2018. Perhaps unintentionally, the report illustrated how monumental the ruling might be for Black Portlanders.
A section of the PPB’s data-heavy report concerns how many of those who were pulled over in 2018 agreed to so-called “consent searches” of their car—searches that officers can conduct without justification, as long as the driver grants permission. (It’s not always made obvious, however—and not always known by the members of the public—that a driver pulled over for a traffic violation has the right to deny an officer permission to search their vehicle.) The bureau compared those encounters to searches based on probable cause—situations when an officer has enough evidence to suspect a crime. Probable cause searches don’t require driver consent.
The data showed that Black Portlanders—who make up 6 percent of the city’s population—were nearly three times as likely as white Portlanders to be pulled over and asked to consent to a search. It also found that, compared to other races, Black drivers were “significantly” more likely to be asked to consent to a search than to be searched based on probable cause—meaning officers rarely had evidence suggesting that a Black driver had done something criminal before deciding to search their vehicle.
Importantly, the report found that the racially motivated searches had the exact same results as other searches: While Black drivers were searched far more frequently than their white counterparts, race had nothing to do with the likelihood illegal contraband would be found in a car.
The Oregon Supreme Court’s ruling scuttles the concept of a consent search, because they aren’t based on any real evidence that would warrant a criminal investigation. And, since PPB’s own data shows Black Portlanders are disproportionately targeted by consent searches, some believe the decision will result in a drop in Black drivers baselessly searched by police.
“This ruling undercuts traffic stops which have largely targeted communities of color,” says Leland Baxter-Neal, an attorney with the ACLU of Oregon. “It’s groundbreaking.”
Oregon defense lawyers say that if the Oregon Supreme Court’s ruling had been in place earlier, it would have kept hundreds—if not thousands—of Portlanders out of the criminal justice system for misdemeanors.
“I can’t tell you how many people I’ve represented who were arrested for having drugs on them during a traffic stop,” says Chris O’Connor, an attorney with Metropolitan Public Defender Services.
“This ruling undercuts traffic stops which have largely targeted communities of color.”—Leland Baxter-Neal, attorney with the ACLU of Oregon
Had the ruling been made earlier, it also could have saved lives. At least three deaths of Black Portlanders at the hands of PPB officers began with a low-level traffic stop. For Kendra James in 2003, it was running a stop sign. For James Perez in 2004, it was failing to signal a turn. For Keaton Otis in 2010, it was ostensibly for failing to signal a turn—though PPB officers later said it was because Otis looked “like a gangster.”
Attorney Jesse Merrithew says that, if the officers in those cases knew that, without just cause, a traffic stop couldn’t morph into an investigation, they might have paused before turning on their sirens.
“Those people would be alive today if the reading of this law had been applied by PPB at that time,” says Merrithew, who represents several families of Portlanders who’ve been killed by PPB officers.
Merrithew believes there’s one PPB department in particular that’ll be most impacted by the ruling: the Gun Violence Reduction Team (GVRT).
Officers and detectives with the GVRT spend the majority of their time on two tasks: investigating gun-related crime scenes and tracking down people who might be connected to past or future gun-related crimes. While some of these interactions happen in bars or outside concerts, GVRT officers also use traffic stops to question people they believe are involved in gangs and to search for guns. Reports have found that, like the PPB as a whole, the GVRT has spent a disproportionate amount of time stopping Black Portlanders.
In 2018, a city audit of the GVRT (then called the Gang Enforcement Team) discovered that 59 percent of drivers pulled over by these officers were Black.
The PPB argues that its officers are simply focusing on patrolling communities that are disproportionately victimized by crime. In 2018, 18 percent of Black Portlanders were crime victims, despite only making up 6 percent of Portland’s total population. In comparison, 67 percent of white Portlanders (who make up 72 percent of the Portland population) were victims of crime in 2018.
Merrithew doesn’t buy this explanation.
“Driving around at night and looking for Black people they believe are gang members is a fundamental technique of the GVRT,” Merrithew says. “This ruling changes their entire model.”
While he calls the high court’s decision “very strong and incredibly clear,” ACLU’s Baxter-Neal is worried that the elimination of consent searches and other probing questions during a traffic stop might mean officers will only get more creative in how they define probable cause or officer safety.
“I could see officers pulling people over for a stop, with the hope that they’ll discover some kind of reasonable suspicion during that stop,” says Baxter-Neal.
Some officers with the GVRT also doubt the ruling will have a major effect on how they operate.
“Court rulings come up all the time, and we always find a way to navigate lawfully and continue,” says Ken Duilio, a PPB sergeant who’s been on the GVRT for 20 years. “I don’t think this is going to be super profound.”
Duilio says that’s because officers have a variety of other legal ways to question drivers they pull over. Maybe the driver matches the identity of someone who robbed a store earlier in the night, or perhaps they’re not following police orders to keep their hands on the wheel. Maybe something about the bulk in their jacket pocket makes an officer feel unsafe.
“There are certainly some stops that use that ‘unavoidable lull,’” says Duilio. “But that’s just one part. There’s so much information our uniformed people have to conduct traffic stops on.”
The Multnomah County Sheriff’s Office (MSCO) shares Duilio’s indifference to the ruling. In an email to the Mercury, MSCO spokesperson Chris Liedle writes that the court’s decision won’t reduce the number of traffic stops conducted by county deputies.
“There are still a number of legal avenues for deputies to develop probable cause to stop a vehicle, and tools they can use during the stop to lead to an arrest for criminal behavior,” Liedle wrote. “We don’t anticipate this will have wide-ranging effects.”
The Multnomah County District Attorney’s Office, which will determine how the new law is read by local prosecutors, declined to comment on the ruling’s potential impact.
Duilio says he’s confused why some members of the public are celebrating the ruling for purportedly taking power away from local law enforcement.
“I feel people are like, ‘Hey, we got the police!’” he says. “But a lot of people we stop are convicted felons. From my perspective, [the ruling] actually hurts public safety and hurts the community. It is just one more thing that makes [the job] harder.”
According to public defender O’Connell, that’s the point.
“The Bill of Rights was created to slow down government actions to protect Americans’ civil liberties,” he says. “It’s meant to make law enforcement more inefficient. This is just one more limitation created to protect ourselves from an overreaching government. I think sometimes law enforcement forgets that.”
It’s too soon to tell what, exactly, the outcome will be from the court’s ruling.
But if there’s one thing that’s clear, it’s that the ruling makes Oregon’s constitution one of the most protective in the country when it comes to privacy rights. No other states have laws that are intended to curb racial profiling in this manner.
Merrithew says Oregon’s been a consistent leader in making court decisions that strengthen constitutional protections. In the past, other state and federal courts, including the US Supreme Court, have used Oregon’s groundbreaking rulings as a blueprint to expanding their set of constitutional protections. Merrithew says this time is no different.
“Oregon is taking another step forward,” he says. “I don’t think it would be unreasonable for the US Supreme Court to consider doing the same.”