Classroom Law Project
Civics Conference for Teachers December 4, 2015
State Capitol, Salem
State v. Jimenez July 9, 2015
Factual Background From his police car, State Police officer Borchers saw defendant Jimenez crossing the street at a busy Portland intersection despite a “DON’T WALK” sign. Jaywalking is a Class D violation under ORS 814.020(1) and (3). Jimenez was wearing “a ‘puffy’ black jacket over a ‘hoodie,’ oversized pants, and white tennis shoes—garb that Borchers thought might indicate gang affiliation. Borchers knew that the 122nd and Division intersection was in a high-crime area where gang activity was common.” Borchers drove to the bus stop where Jimenez was sitting. Initially Jimenez began to walk away until Borchers beeped his horn and directed Jimenez to stop walking and come back. Borchers got out of his car, approached Jimenez, and began a conversation with him. When asked why Jimenez had crossed against the light, Jimenez replied that he had seen others doing so. Borchers then asked Jimenez if he had any weapons. Borchers testified that he did so because he asks the same question “with all contacts on the street with pedestrians, just for – obviously for officer safety reasons.” Defendant replied that he had a gun in his right front pocket and, without being asked, he leaned forward and put his hands on the hood of Borchers’s car. Borchers handcuffed defendant and asked him if he had a license for the gun. Defendant replied that he did not. Borchers frisked defendant, took the gun, and transported defendant to the police station. Jimenez ultimately was chargedwith one count of unlawful possession of a firearm under ORS 166.250(1)(a) and was not cited for jaywalking. Question being decided Can police always ask a person about weapons during a traffic stop, because traffic stops are always potentially dangerous? The Oregon Constitution (Article 1, Section 9) provides: “No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.” It protects citizens against unreasonable searches and seizures by the police. But not all encounters between citizens and police are analyzed the same way. If the interaction is just a conversation – and the person is free to leave at any time – then no unreasonable search or seizure can usually be claimed. But “police conduct that involves physical restraint or a show of authority that restricts an individual's freedom of movement typically does implicate Article I, section 9.” There are special rules for traffic stops because, in a traffic stop, a person is not free to leave. “In contrast to a person on the street, who may unilaterally end an officer-citizen encounter at any time, . . . a motorist stopped for a traffic infraction is legally obligated to stop at an officer’s direction.” When Officer Borchers approached Jimenez, he was first Friday in December: Oregon Civics Day for teachers.
It’s the law!
Classroom Law Project
Civics Conference for Teachers December 5, 2014
State Capitol, Salem
conducting a traffic stop even though Jimenez was a pedestrian, because his purpose was to enforce a provision of the traffic code (against jaywalking). During a traffic stop, the officer’s authority to investigate anything unrelated to the stop is limited. He “may not launch an investigation into unrelated matters unless the inquiries are justified by reasonable suspicion of the unrelated matter, the inquiry occurred during an unavoidable lull in the citation-writing process, or some exception to the warrant requirement applies.” One such exception is concern for office safety. Under that exception, an officer is permitted to take “reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” Arguments for Defendant/Appellant (Jimenez) The encounter was a mere traffic stop, so Officer Borchers should have simply issued a citation for jaywalking and left it at that, since he had no basis for reasonable suspicion of any other crime. Jimenez had not behaved in a threatening or uncooperative way, or tried to flee. The question about weapons wasn’t posed during an “unavoidable lull” in the traffic stop, but rather, after it was or should have been concluded. Borchers’ evaluations of the neighborhood, and of Jimenez’ style of dress, were generalized and not evidence of any specific, credible threat. Thus, “under the totality of the circumstances, the officer-safety exception did not apply.” Arguments for Respondent (the State) The state concedes that Borchers had no reasonable basis for suspicion when he asked about weapons; it also concedes that the question wasn’t asked during an “unavoidable lull” in the traffic stop. Rather, the state relies entirely on the officer safety exception, arguing that the officer’s question was informed by his awareness of several facts: that the location was in a high-crime area with gang activity; that “gang members in the area wore baggy gray pants and white shoes, like the pants and shoes defendant wore”; that Jimenez’ clothing had plenty of room in which to conceal weapons; that Borchers was the sole officer in the vicinity; and that there were several bystanders nearby, and “the trooper did not know the relationship between defendant and those people, and the situation caused him to fear that he might be caught in the middle of a gang confrontation.” Even though these factors didn’t rise to the level of “reasonable suspicion of a crime,” they justified heightened caution. Holding (Court’s decision by Justice Martha Walters) The court decided in favor of Jimenez. Emphasizing that the stop occurred in “broad daylight, at a busy intersection in a commercial neighborhood in Portland” and that Jimenez was “neither uncooperative nor evidently hostile,” it concluded that “these facts are not sufficient to create in Borchers’s mind a reasonable suspicion that defendant presented a risk to Borchers’s safety.” first Friday in December: Oregon Civics Day for teachers.
It’s the law!
