OR: Oregon clarifies the reasonable suspicion standard

Oregon clarifies the reasonable suspicion standard. State v. Maciel-Figueroa, 361 Ore. 163, 2017 Ore. LEXIS 166 (March 2, 2017), aff’g State v. Maciel-Figueroa, 273 Ore. App. 298, 356 P.3d 674 (2015):

As that history of the case law establishes, the variable parts of the standard for reasonable suspicion are (1) the nature or specificity of the inference that justifies the stop, both as to the kind of illegal activity suspected and the defendant’s involvement in it, and (2) the kind and quantum of evidence required to establish that inference. In this case, the state expressly or implicitly challenges both parts of the reasonable-suspicion standard as the Court of Appeals articulated and applied it.

In regard to the defendant’s suspected illegal conduct, the state argues that the Court of Appeals incorrectly evaluated the officers’ suspicion of specific crimes, including criminal mischief, menacing, and assault. The state argues that the officers had reasonable suspicion because the totality of the circumstances suggested that other, more general, “criminal activity” could have occurred. We reject the proposition that an officer need not subjectively suspect the defendant’s crimes with any specificity, as the state’s argument suggests.

That position is inconsistent with the requirement that an officer identify “specific and articulable facts” linking the defendant to criminal activity, as well as the requirement that an officer’s belief be objectively reasonable so as to prevent “arbitrary” intrusions into individual privacy. Fair, 353 Ore. at 602. An officer cannot articulate sufficiently specific facts to satisfy Article I, section 9, if the officer cannot articulate, with at least some specificity, what type of crime that the person stopped may have committed. See Valdez, 277 Ore. at 628 (an officer’s “instinct and experience cannot, however, form the entire basis for ‘reasonable suspicion,’ because no practical control can be exercised over police by courts if, in the absence of any very remarkable activity, the officer’s instinct and experience may be used as the sole reason to justify infringement upon the personal liberty sought to be protected by the statute”). We have not identified any case in which this court has held that an officer’s subjective suspicion of generalized “criminal activity” was sufficiently specific or objectively reasonable to satisfy Article I, section 9, for a stop of a particular individual. Although four of the pre-1997 cases (Jacobus, Lichty, Valdez, and Cloman) state that there must be an inference of “criminal activity” or of criminal activity “afoot,” in all of those cases, the court reviewed whether it was reasonable to infer that the defendant had committed specific crimes or types of crimes. See Jacobus, 318 Ore. at 241 (conspiracy or attempt to commit robbery or theft); Lichty, 313 Ore. at 584-85 (possession of cocaine); Valdez, 277 Ore. at 628-29 (drug crimes); Cloman, 254 Ore. at 10 (theft).

Thus, the better and specific formulation of the required inference in a case based on the defendant’s illegal conduct (as opposed to the defendant’s potential to be a material witness, as discussed in Fair)—as provided in Ehly, Belt, and Holdorf—is that the officers must reasonably suspect that the defendant has committed or is about to commit a specific crime or type of crime. A specific type of crime, for example, can be criminal mischief, assault, theft, or kidnapping, with the differences in the degrees of the crimes being immaterial to whether the officers have reasonable suspicion. Another set of examples of a specific type of crime is the possession or the delivery of a controlled substance. In those cases, the difference between whether the substance is cocaine rather than methamphetamine is also immaterial to the analysis of reasonable suspicion.