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Oregon Court of Appeals: Acting squirrely can get you busted

From the desk of Jonathan Sarre.

On May 28, 2015, the Court of Appeals released an opinion in State v. McHaffie, a case out of Douglas County involving a passenger search of a stopped car. Mr. McHaffie had argued that he was unlawfully stopped and seized "without reasonable suspicion in violation of Article I, section 9, of the Oregon Constitution" when the officer "requested" that he empty his pockets. The Court of Appeals disagreed and held that the fact that Mr. McHaffie looked familiar to the investigating officer, admitted to prior arrests for possession of methamphetamine, appeared nervous and/or "on something" and engaged in a certain type of behavior called "indexing" (which we will get to) added up to reasonable suspicion, thus the subsequent search was lawful and the conviction for possession of methamphetamine was affirmed.

Oregon law requires that police have reasonable suspicion that a person has committed or is about to commit a crime before that person can be stopped or detained. ORS 131.605(5) defines reasonable suspicion on the part of a peace officer as holding; "a belief that is reasonable under the totality of the circumstances existing at the time and place of the stop." This stops the police from just rolling up on you or me on the street and ordering us to talk to them or turn our pockets out (although this does not stop the police from rolling up on you and engaging in some "mere conversation" as I've seen done before, typically in "high crime" or "gang" areas but that's another post for another day). Maybe it's counter-intuitive but our constitutional jurisprudence has historically not allowed stops based upon the officer's "hunch" that defendant is up to no good. ." See State v. Houghton, 91 Or.App. 71 (1988). Again, especially for law enforcement types, this line of reasoning is there to protect us all but I will concede that the cop's hunch is usually on the money, but most of them will be able to think of some reason to stop a perceived no-good-nik, such as what was one in this case: "a routine traffic stop."

"Routine traffic stops" are a great way for the police to interact with the public and more importantly search them or their stuff. Oregon law allows a police officer to stop your vehicle if the officer observes some sort of traffic infraction. ORS 810.410(3)(B). The vehicle code is full of things that you may not know are considered infractions (one classic is ORS 811.355 "Failure to Signal Prior to 100 Feet of Making a Turn" how many times have you done that?). If an officer follows you long enough, chances are he or she will see something. In our case here, driver (not eventual defendant) had broken tail lights and did not signal a turn (whoop whoop) and (maybe more importantly) registered owner (driver) was on probation for a meth-related charge. More bells go off when driver and Mr. McHaffie immediately get out of truck after stopping and appear to be nervous.

Sergeant Tilley of the Douglas County Sheriff's Office, not being a fool, has obviously figured he's going to find something here, then goes into super-cop mode. He thinks maybe he knows defendant from his previous experience as a jail deputy, defendant confirms he's been there before for meth, defendant is also nervous and appears to be under the influence of something and starts "indexing." Indexing, we learn, straight from the opinion is:

Specifically, defendant repeatedly touched his front right pants pocket and

several times placed his hand inside that pocket and then pulled it back out without removing anything from inside. Tilley had been an officer with the Douglas County Sheriff's office for more than 10 years, part of it as a narcotics detective, and had participated in "in depth training on apprehension, investigation and identification of controlled substances" and conducted many arrests relating to controlled substances in that time. In Tilley's training and experience, people who possess drugs often engage in those behaviors, which serve to "verify the location of the narcotics." Indeed, Tilley had conducted arrests of individuals engaged in that behavior on previous occasions and had located contraband in the area indicated by the "indexing" behavior.

I, for one, would love to know if that has any scientific validity whatsoever but hey it worked this time around because in McHaffie's coin pocket there's methamphetamine. The problem here is, didn't McHaffie just get stopped because, in cop's opinion, he's a druggie and druggie's usually have drugs on them? Isn't the Court of Appeals saying here that it's okay to stop this guy and get into his pockets because of his status as a drug-user? Let's not forget that being on drug isn't illegal in this state. Possessing them is. The same lousy logic that's applied against tweakers here can be applied against any one of us. Profiling is wrong and that is exactly what this is. Result-oriented opinions make bad law.

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