and Submitted June 27, 2018
review from the Court of Appeals. (CC 12CR1676FE, 12CR1963FE)
(CA A156431, CAA156432) [*]
J. Allin, Deputy Public Defender, Offce of Public Defense
Services, Salem, argued the cause and fled the briefs for
petitioner on review. Also on the briefs was Ernest G.
Lannet, Chief Defender.
C. Moan, Assistant Attorney General, Salem, argued the cause
and fled the brief for respondent on review. Also on the
brief were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Alexander A. Wheatley, Fisher & Phillips LLP, Portland,
fled the brief on behalf of amicus curiae Oregon Justice
Resource Center. Also on the brief was Justin Withem, Janet
Hoffman & Associates LLC, Portland.
Or. 92] Case Summary: Defendant, a passenger in a lawfully
stopped vehicle, moved to suppress evidence obtained during
that traffic stop after an officer made a statement regarding
trouble with her parole officer if she were untruthful with
him. The trial court denied defendant's motion and
convicted defendant of unlawful possession of methamphetamine
after a stipulated facts trial. The Court of Appeals affirmed
in a written opinion. Held: (1) a passenger in a
lawfully stopped vehicle is not stopped for purposes of
Article I, section 9, of the Oregon Constitution; but (2)
defendant was stopped when the officer told her during the
traffic stop that there would be trouble with her parole
officer if she were untruthful with him about another
decision of the Court of Appeals is reversed. The judgment of
the circuit court is reversed, and the case is remanded to
the circuit court for further proceedings.
Or. 93] KISTLER, J.
State v. Amaya, 336 Or. 616, 89 P.3d 1163 (2004),
this court stated that stopping the driver of a car does not
constitute a seizure of the passengers for the purposes of
Article I, section 9, of the Oregon Constitution. We allowed
review in this case to decide whether that statement
constituted part of the court's holding and, if it did,
whether we should overrule that part of Amaya. For
the reasons set out below, we conclude that our statement was
part of the holding in Amaya, and we adhere to it.
remaining question in this case is whether defendant (a
passenger in a van) was stopped without reasonable suspicion
at some point during a stop of the driver. The trial court
ruled that defendant was not stopped until an officer asked
her for consent to search her backpack, and it accordingly
denied her motion to suppress evidence discovered during the
search. The Court of Appeals upheld the trial court's
ruling but on a different ground; it determined that the stop
did not occur until after defendant had consented to a search
of her backpack. State v. Stevens, 286 Or.App. 306,
399 P.3d 1053 (2017). Because we hold that the stop occurred
before defendant gave consent and that the officer lacked
reasonable suspicion at that point, we reverse the Court of
Appeals decision and the trial court's judgment.
the facts from the hearing on defendant's suppression
motion and state them consistently with the trial court's
ruling. While on patrol, Officer Klopfenstein stopped a van
because one of its headlights was out. There were three
passengers in the minivan. After asking the driver for his
identification, the officer asked the driver about the
passengers, and the driver explained that he had just met
them. Klopfenstein returned to his patrol car to ask dispatch
to run a records check on the driver.
Klopfenstein waited for dispatch to get back to him, he
approached the van a second time. On coming back to the van,
Klopfenstein noticed that one of the passengers in the back
seat was acting as if he were extremely intoxicated.
Klopfenstein asked that passenger for identification. The
passenger responded that he did not have any [364 Or. 94]
identification on him but said that his name was Jonathan
Shaw. When Klopfenstein asked Shaw to spell his name, Shaw
gave multiple, inconsistent spellings of Jonathan.
Klopfenstein asked the driver if he could open the sliding
door to the back of the van so he could hear Shaw better. The
driver agreed, and Klopfenstein opened the door.
that proved unsuccessful, Klopfenstein directed his attention
toward defendant, who was sitting in the back seat next to
Shaw. Klopfenstein asked defendant for her name. Defendant
told him her name and added that she was on parole. When
Klopfenstein asked defendant if she knew Shaw, she said that
she had known him for a couple of years and that she had
always known him as Jonathan Shaw. With that information,
Klopfenstein returned to his patrol car to run a records
check on both Shaw and defendant.
records check confirmed that defendant was on parole, but the
photograph on file for Jonathan Shaw did not resemble the
person in the van. By this time, a second officer had
arrived, and Klopfenstein again returned to the van. He asked
Shaw to step out of the van. According to Klopfenstein, he
confronted Shaw with the fact that he did not resemble the
picture of Jonathan Shaw on file with the Department of
Transportation. As Klopfenstein testified, he kept
"going back to [defendant] and going back to [Shaw] and
going back" to defendant to find out Shaw's real
name. Klopfenstein explained that his interactions with
defendant were very friendly "other than initially me
coming back to her saying (-Inaudible-) you're on parole.
If [Shaw] has a warrant and you're telling me he's
Jonathan and he's Jimmy there's going to be trouble
for you * * * potentially through your P[arole]
O[fficer]." After Klopfenstein implied that he would be
speaking with defendant's parole officer, defendant told
him Shaw's real name-Jimmy.
point, a records check on Jimmy Shaw came back showing that
there were no outstanding warrants. While he was away from
the van and without defendant's knowledge, Klopfenstein
called defendant's parole officer. During that call, the
parole officer told Klopfenstein that she recently had found
a backpack with pills in it and that [364 Or. 95] she thought
that the pills belonged to Shaw. The parole officer explained
that defendant had been with Shaw when the pills were found
in the backpack and ...