State v. Keller ( 2017 )

566 June 22, 2017 No. 33
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Petitioner on Review,
v.
JAMES EDWARD KELLER,
Respondent on Review.
(CC 110342882; A148749; SC S064353)
On review from the Court of Appeals.*
Argued and submitted March 9, 2017.
Doug M. Petrina, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Joshua B. Crowther, Chief Deputy Defender, Salem, argued
the cause and filed the brief for respondent on review. Also
on the brief was Ernest G. Lannet, Chief Defender, Office of
Public Defense Services.
Before Balmer, Chief Justice, and Kistler, Walters, Landau,
Brewer, Nakamoto, and Flynn, Justices.**
WALTERS, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.
______________
**  On appeal from Multnomah County Circuit Court, David F. Rees, Judge.
278 Or App 760, 379 P3d 545 (2016).
**  Baldwin, J., retired March 31, 2017, and did not participate in the decision
of this case.
Cite as 361 Or 566 (2017) 567
Case Summary: A Washington state trooper initiated a stop of defendant in
Washington, but the stop occurred just across the state border, in Portland. As a
result of the stop, Portland police officers obtained evidence that defendant had
committed the crime of driving under the influence of intoxicants (DUII), and
defendant was convicted of that crime. The Court of Appeals reversed, concluding
that, although the stop was supported by probable cause, it violated Article I, sec-
tion 9, because Thompson “acted without authority of law because, as an out-of-
state officer, he had no authority to act in Oregon.” State v. Keller, 278 Or App 760,
764, 379 P3d 545 (2016). Therefore, the court explained, the seizure was “just as
unreasonable as a traffic stop made without the requisite probable cause.” Id. at
765. In a unanimous opinion written by Justice Martha L. Walters, the Supreme
Court reversed the decision of the Court of Appeals and affirmed the judgment
of the circuit court. First, the Court concluded that, under State v. Davis, 313 Or
246, 834 P2d 1008 (1992), the trooper’s stop of defendant constituted state action
for purposes of Article I, section 9. The Court explained that holding otherwise
would not vindicate the individual rights afforded by Article I, section 9. Next,
the Court held that a lack of Oregon common-law or statutory authority does not
make a seizure per se unreasonable under Article I, section 9. The Court looked
to the totality of the circumstances in assessing the constitutionality of the stop.
It determined that the stop in this case passed constitutional muster because
(1) an Oregon officer making a stop under identical circumstances would have had
sufficient constitutional justification for the stop, and (2) the extrajurisdictional
aspect of the stop was reasonable, because the trooper’s actions were reasonable
at each step of his encounter with defendant. Therefore, the court concluded, the
evidence obtained as a result of the DUII investigation was not required.
The decision of the Court of Appeals is reversed. The judgment of the circuit
court is affirmed.
568 State v. Keller
WALTERS, J.
A Washington State Trooper had probable cause to
believe that defendant was violating Washington traffic laws
and initiated a stop in Washington; however, the trooper
did not complete the stop until both he and defendant had
travelled across the state line into Oregon. In a subsequent
prosecution for driving under the influence of intoxicants
(DUII), defendant moved to suppress the evidence obtained
as a result of the trooper’s stop, arguing that the trooper
had violated defendant’s right to be free from unreason-
able searches and seizures under Article I, section 9, of the
Oregon Constitution. We conclude that, although Oregon
law did not grant the trooper authority to stop defendant
in Oregon, the evidence was constitutionally obtained and
admissible. We reverse the contrary decision of the Court of
Appeals, State v. Keller, 278 Or App 760, 379 P3d 545 (2016),
and affirm the circuit court’s judgment of conviction.
I. FACTS
The parties agree on the facts. Thompson, a
Washington State Trooper, was driving southbound on
Interstate 5, in Washington, in an unmarked patrol car.
When he was just north of the Interstate Bridge, Thompson
saw, in his rearview mirror, a car driven by defendant
approaching at a high rate of speed. He measured defen-
dant’s speed at 25 miles per hour over the posted speed limit.
Thompson observed defendant’s car approach his patrol car
so closely that Thompson could no longer see the car’s head-
lights in his rearview mirror. Defendant then moved into
the left lane and accelerated past Thompson. Thompson
had probable cause to believe that defendant had commit-
ted the Washington traffic violations of speeding and fol-
lowing another vehicle too closely and decided to initiate a
traffic stop. He activated his emergency lights and began
following defendant while both were still in Washington.
Thompson intended to have defendant pull over near the
next freeway exit, the Jantzen Beach exit, which was across
the state border in Portland. When defendant did not stop,
Thompson activated his siren and air horn. Defendant
slowed down and moved into the right lane, but continued
driving. Thompson used his public address system, and
Cite as 361 Or 566 (2017) 569
defendant finally stopped on the shoulder of Marine Drive
in Portland.
Before exiting his patrol car, Thompson asked
Washington dispatch to contact the Portland police.
Thompson then approached defendant’s vehicle. He imme-
diately noticed that defendant smelled of alcohol and had
bloodshot, watery eyes, and slurred speech. Defendant told
Thompson that he had consumed three beers. Thompson
returned to his patrol car, requested the assistance of
Portland police officers, and waited in his patrol car for the
officers to arrive. Portland police officers arrived shortly
thereafter and arrested defendant for the crime of DUII.
Defendant filed a pretrial motion to suppress the
evidence obtained as a result of the traffic stop, arguing
that Thompson’s stop was not authorized by Oregon law
and violated defendant’s rights under Article I, section 9, of
the Oregon Constitution. The trial court denied defendant’s
motion and convicted him after a stipulated facts trial. The
Court of Appeals reversed, concluding that, although the
stop was supported by probable cause, it violated Article I,
section 9, because Thompson “acted without authority of law
because, as an out-of-state officer, he had no authority to
act in Oregon.” Id. at 764. Therefore, the court explained,
the seizure was “just as unreasonable as a traffic stop made
without the requisite probable cause.” Id. at 765. Chief Judge
Hadlock filed a dissenting opinion. Id. at 766. Relying on
State v. Davis, 313 Or 246, 834 P2d 1008 (1992), the dissent
argued that the pertinent question was whether Thompson’s
actions “would have violated ‘the standard of governmental
conduct’ or violated ‘the scope of [defendant’s] rights’ had
those actions been performed ‘by Oregon police in Oregon,’ ”
and that the correct answer was that they would not. Keller,
278 Or App at 768 (Hadlock, C.J., dissenting) (quoting Davis,
313 Or at 253). The dissent reasoned that an Oregon officer
who stopped a motorist with probable cause to believe that
the motorist was committing traffic offenses would not vio-
late Article I, section 9. Id.To consider those opposing views, we allowed the
state’s petition for review.
570 State v. Keller
II. ANALYSIS
Article I, section 9, of the Oregon Constitution pro-
vides, in part:
“No law shall violate the right of the people to be secure
in their persons, houses, papers, and effects, against unrea-
sonable search, or seizure.”
The state argues that Thompson’s stop did not violate
Article I, section 9, for either of two reasons. First, the state
argues that Article I, section 9, governs only the conduct
of in-state governmental actors and their agents, and that
Thompson was neither. The state acknowledges that, in
Davis, this court stated that Article I, section 9, applies more
broadly and prohibits the admission of illegally obtained
evidence, no matter “what governmental entity (local, state,
federal, or out-of-state) obtained it,” 313 Or at 254 (emphasis
removed), but the state asks that we limit Davis to its facts.
In support of its position, the state cites State v. Sines, 359
Or 41, 379 P3d 502 (2016), a case in which this court held
that the acts of a private citizen do not violate Article I, sec-
tion 9, unless the private citizen is acting as an agent of the
state.
Second, the state argues that, even if Thompson’s
stop implicated Article I, section 9, the question, under Davis,
is whether his stop would have met constitutional muster
had it been performed by Oregon officers. The state agrees
with the dissent in the Court of Appeals that Thompson’s
stop met that standard: Thompson had probable cause to
believe that defendant was committing a traffic violation
and, had an Oregon officer stopped defendant under the
same circumstances, the stop would have been lawful.
Because Davis is key to both of the state’s argu-
ments, it is with Davis that we begin. In Davis, Mississippi
law enforcement officers arrested the defendant at his
mother’s home in Mississippi. 313 Or at 248. After the defen-
dant’s arrest, Portland police officers, who were present in
Mississippi, questioned the defendant, who made incrimi-
nating statements. Id. The defendant filed a motion to sup-
press those statements, and the court considered whether
they were the product of an unconstitutional arrest. The
Cite as 361 Or 566 (2017) 571
trial court granted the defendant’s motion because the offi-
cers had entered the defendant’s mother’s home pursuant
to a fugitive warrant, but without a search warrant. Id. at
248-49. On the issue of whether the arrest warrant was suf-
ficient to justify the officer’s entry and subsequent question-
ing, this court reversed. Id. at 249. However, before reach-
ing that conclusion, the court also addressed a preliminary
question of significance here: whether Article I, section 9,
applied to the actions of the Mississippi officers who made
the arrest. Id. at 251-52.
In considering that question, the court noted, as
background, that, in Elkins v. United States, 364 US 206,
80 S Ct 1437, 4 L Ed 2d 1669 (1960), the United States
Supreme Court had abolished the so-called “silver platter
doctrine.” Davis, 313 Or at 252. That doctrine had permit-
ted the admission of evidence obtained by state officers in
violation of the Fourth Amendment because, prior to Elkins,
the Court had reasoned that the Due Process Clause did
not incorporate the Fourth Amendment, and, therefore, that
state police action was not subject to Fourth Amendment
scrutiny and sanction. Id. Elkins extended the protections
of the Fourth Amendment to the states and held that evi-
dence obtained in violation of the Fourth Amendment “is
not admissible in state or federal court, regardless of where
or by whom it was obtained.” Id. at 252; see also Ker v.
California, 374 US 23, 33-34, 83 S Ct 1623, 10 L Ed 2d 726(1963) (holding in “cases involving federal constitutional
rights, findings of state courts are by no means insulated
against examination”).
In Davis, this court declined to adopt a “state con-
stitutional replica” of the silver platter doctrine that would
require the admission of evidence obtained in violation of
Article I, section 9. 313 Or at 252 n 6. The court decided
that the introductory phrase of Article I, section 9, “[n]o law
shall violate,” defines the limits of governmental conduct
generally, and that, “[i]f that constitutional right * * * is to be
effective, it must mean that the government cannot obtain a
criminal conviction through the use of evidence obtained in
violation of a defendant’s rights under that provision.” Id. at
253.
572 State v. Keller
Consequently, the court concluded that, in deter-
mining whether an out-of-state governmental search by a
non-Oregon officer is unreasonable under Article I, section 9,
“[t]he standard of governmental conduct and the scope of
the individual rights protected by Article I, section 9, are
precisely the same as those that would apply to a search by
Oregon police in Oregon.” Id. The court explained its conclu-
sion as follows:
“If the government seeks to rely on evidence in an Oregon
criminal prosecution, that evidence must have been
obtained in a manner that comports with the protections
given to the individual by Article I, section 9, of the Oregon
Constitution. It does not matter where that evidence was
obtained (in-state or out-of-state), or what governmental
entity (local, state, federal, or out-of-state) obtained it; the
constitutionally significant fact is that the Oregon gov-
ernment seeks to use the evidence in an Oregon criminal
prosecution. Where that is true, the Oregon constitutional
protections apply.”
Id. at 254 (emphases in original).
The following year, in State v. Rodriguez, 317 Or
27, 35, 854 P2d 399 (1993), the court followed Davis and
held that Article I, section 9, applied to the acts of a federal
officer acting under the authority of federal law. The court
concluded that, like the defendant in Davis, the defendant in
Rodriguez was entitled to the “broad protection granted to
individuals under Article I, section 9.” Id.A.  Whether Article I, Section 9, Governs the Actions of Out-
of-State Officers
With Davis in mind, we return to the state’s first
argument in this case—that Article I, section 9, should not
govern the actions of an out-of-state officer unless, consid-
ering common-law agency principles, the officer was acting
as an agent of this state. The state recognizes that that
rule would place limitations on the applicability of that
provision that are not found in Davis. The state correctly
understands Davis to stand for the broader proposition
that, when evidence is offered in an Oregon criminal pros-
ecution, Article I, section 9, is applicable without regard to
“where [the] evidence was obtained (in-state or out-of state),
Cite as 361 Or 566 (2017) 573
or what governmental entity (local, state, federal, or out-
of-state) obtained it.” 313 Or at 254 (emphases in original).
However, the state asserts, that statement was not neces-
sary to the result that the court reached in Davis; the state
asks that we limit Davis to its facts and disavow its broader
statements. In Davis, the state observes, Mississippi officers
arrested the defendant on a fugitive warrant that was based
on Oregon arrest warrants, and, although Oregon officers
did not participate in the arrest, they were present when
it occurred. Id. at 248-51. Thus, the state contends, the
Mississippi officers seized the defendant with the involve-
ment of Oregon authorities, and the court could have relied
on common-law agency principles to hold that the actions of
the Mississippi officers implicated Article I, section 9.
Although the state may be correct in its analysis of
the facts of Davis, the consequence of adopting the rule for
which it advocates would be the creation of a state silver plat-
ter doctrine. If Article I, section 9, did not govern the actions
of out-of-state officers unless they were acting as agents of
this state, then nonagent officers could violate that provi-
sion with impunity, and the evidence that they obtained as a
result could be presented in an Oregon criminal prosecution
on a “silver platter” that Oregon courts could not reject.
That consequence would be acceptable to the state.
Rather than rejecting a state silver platter doctrine as
we did in Davis, the state suggests that we revive a case
decided before Davis—State of Oregon v. Olsen, 212 Or 191,
317 P2d 938 (1957). In Olsen, the question before the court
was “whether or not the police officers of a sister state mak-
ing an illegal search are to be treated as officers operating
under the Constitution of the [S]tate of Oregon or as pri-
vate individuals when appearing in a state court.” Id. at 195.
The court reasoned that the Washington officers who had
conducted a search in Washington should not be treated as
state officers, for purposes of the Oregon criminal prosecu-
tion, because
“[p]olice officers of the [C]ity of Spokane would have no
authority to make a search under the laws of the [S]tate
of Oregon or vice versa. The police officers of the [C]ity
of Spokane are not in any manner amenable to the laws
574 State v. Keller
of this state in arresting and searching a person in the
[S]tate of Washington.”
Id. Thus, the court concluded, the officers’ actions “were
done beyond the jurisdiction of this state and cannot be con-
sidered wrongful acts of the [S]tate of Oregon.” Id.After Olsen was decided, however, the United States
Supreme Court decided Elkins, and, as noted, abolished the
silver platter doctrine. That development, this court con-
cluded in State v. Krogness, 238 Or 135, 137-38, 388 P2d 120
(1964), deprived Olsen of its force.1 In Davis, the court did
not cite Olsen, and took the position that the question before
it was one of first impression:
“This court has never squarely addressed whether the pro-
tections of Article I, section 9, of the Oregon Constitution
apply in an Oregon prosecution that seeks to rely on evi-
dence obtained as a result of the actions of out-of-state law
enforcement officials while in another state, when those
actions would violate Article I, section 9, if committed by
Oregon law enforcement officials in Oregon.”
313 Or at 251-52. The court then considered whether “to
adopt a state constitutional replica” of the silver platter doc-
trine, and, mindful “of the historical fact that, during its
relatively brief life, [that] doctrine was widely criticized on
legal and policy grounds,” declined the opportunity. Id. at
252 n 6.
Instead, the court determined that the right to be
secure against unreasonable search or seizure is an individ-
ual right and that “[t]he standard of governmental conduct
and the scope of the individual rights protected by Article I,
1
The court apparently viewed Olsen as being decided based on the Fourth
Amendment. The court explained:
“The state argues that the illegality, if any, of the seizure cannot be a
ground for suppressing the evidence in an Oregon court because the evi-
dence was seized by police officers of the state of Washington. While this
argument might have required discussion in former times (see [Olsen, 212
Or 191]), the fruits of illegal police conduct may no longer be used as evidence
in state courts. [Ker, 374 US 23]; Mapp v. Ohio, 367 US 643, 81 S Ct 1684,
6 L Ed 2d 1081 * * * (1961). Such evidence is inadmissible whether seized by
Oregon officers or by police of another jurisdiction. Cf.  [Elkins, 364 US at
206].”
Krogness, 238 Or at 137-38.
Cite as 361 Or 566 (2017) 575
section 9, are precisely the same as those that would apply to
a search by Oregon police in Oregon.” Id. at 253. This court’s
reasoning in Davis parallels the United States Supreme
Court’s reasoning in Elkins that, to a defendant, “it matters
not whether his constitutional right has been invaded by a
federal agent or by a state officer.” 364 US at 215. The Court
explained that “[i]t would be a curiously ambivalent rule
that would require the courts of the United States to differ-
entiate between unconstitutionally seized evidence upon so
arbitrary a basis.” Id. We continue to find Davis persuasive,
and we decline to exhume Olsen and adopt the state’s sug-
gested rule—a rule that would not vindicate the individual
rights afforded by Article I, section 9.
We also disagree with the state’s contention that
this court’s decision in Sines requires us to limit applica-
tion of Article I, section 9, to officers of the state and those
who act as their agents. In Sines, a housekeeper seized evi-
dence of a crime in her capacity as a private citizen. 359
Or at 62. The court held that that evidence was not sub-
ject to suppression as the fruit of an unlawful governmental
search because the housekeeper was not acting as an agent
of the state. Id. “It is axiomatic,” the court explained, “that
Article I, section 9, applies only to government-conducted
or directed searches and seizures, not those of private citi-
zens.” Id. at 50. In making that statement, the court did not
specify that Article I, section 9, applies only to the conduct
of Oregon state officials. Instead, it distinguished between
“government-conducted or directed” searches and those
by private citizens. Id. We made clear in Davis that out-of-
state governmental conduct implicates Article I, section 9,
and Sines’s discussion of when private, nongovernmental
conduct also does so does not alter the conclusion that we
reached in Davis. Following Davis, we conclude, in this case,
that Thompson’s stop of defendant constitutes state action
for purposes of Article I, section 9.
B.  Whether Thompson’s Stop Violated Article I, Section 9
We turn, next, to the state’s second, alternative
argument—that, even if Thompson was a state actor, his lack
of authority does not render his stop unconstitutional. The
state concedes that Thompson lacked statutory authority to
576 State v. Keller
seize an Oregon citizen to enforce a noncriminal traffic vio-
lation, but contends that such a statutory violation does not
require the exclusion of evidence.2 The state explains that
ORS 136.432 precludes the exclusion of evidence for statu-
tory violations unless exclusion is required by the state or
federal constitutions, certain rules of evidence, or the rights
of the press.3 See State v. Rodgers/Kirkeby, 347 Or 610,
621, 227 P3d 695 (2010) (holding evidence obtained when
police exceed statutory authority not suppressible unless it
violates a constitutional rule); State v. Holdorf, 355 Or 812,
819, 333 P3d 982 (2014) (explaining that, after enactment of
ORS 136.432, statutory framework relating to permissible
scope of stop and frisk not at issue in determining whether
evidence should be excluded). The state argues that Davis
requires that we conduct our constitutional analysis as if
Thompson were an Oregon officer, and that, by that mea-
sure, his actions did not violate Article I, section 9.
We understand the state’s reasoning, but, when it
gets to Davis, the state stops a step too soon. In Davis, the
2
The state does not contend that Thompson had common-law authority
to stop defendant. At common law, out-of-state officers had authority to enter
another jurisdiction in fresh pursuit of a suspected fleeing felon. See, e.g., State v.
Barker, 143 Wash 2d 915, 921, 25 P3d 423 (2001) (noting common-law exception
for fresh pursuit). The state does not rely on that authority here because, the
state contends, common-law fresh pursuit authority has been superseded by stat-
ute. ORS 133.430(1) provides,
“Any member of a duly organized state, county or municipal peace unit
of another state of the United States who enters this state in fresh pursuit,
and continues within this state in such fresh pursuit, of a person in order to
arrest the person on the ground that the person is believed to have commit-
ted a felony in the other state has the same authority to arrest and hold such
person in custody as has any member of any duly organized state, county
or municipal peace unit of this state to arrest and hold in custody a person
on the ground that the person is believed to have committed a felony in this
state.”
Given the result that we reach in this case, we need not determine whether the
state is correct in that regard.
3
ORS 136.432 provides:
“A court may not exclude relevant and otherwise admissible evidence in a
criminal action on the grounds that it was obtained in violation of any statu-
tory provision unless exclusion of the evidence is required by:
“(1)  The United States Constitution or the Oregon Constitution;
“(2) The rules of evidence governing privileges and the admission of
hearsay; or
“(3)  The rights of the press.”
Cite as 361 Or 566 (2017) 577
Mississippi officers acted in Mississippi, with statutory
authority from the State of Mississippi. 313 Or at 248.
Therefore, the court did not confront the question whether
out-of-state officers would violate Article I, section 9, if
they acted in Oregon without Oregon statutory or common-
law authority. In Davis, the court’s inquiry was limited to
“whether the protections of Article I, section 9, of the Oregon
Constitution apply in an Oregon prosecution that seeks to
rely on evidence obtained as a result of the actions of out-
of-state law enforcement officials while in another state.” Id.
at 251-52 (emphasis added). In this case, Thompson was an
out-of-state law enforcement official who acted in this state
without authority to do so. This case requires us to deter-
mine whether that lack of authority made his seizure of
defendant unconstitutional under Article I, section 9.
Other courts have confronted similar questions
with differing results. Most courts approach this issue in
one of four ways. A number of jurisdictions hold that statu-
torily unauthorized arrests are per se unconstitutional. One
of those jurisdictions is the State of Washington. State v.
Barker, 143 Wash 2d 915, 25 P3d 423 (2001). In Barker,
an Oregon officer pursued the defendant into Washington
and detained him until a Washington trooper arrived and
arrested him for DUII. Id. at 918. The Washington Court of
Appeals held that, although the stop violated Washington
statutory law, it did not violate the Washington constitution
because the officer had probable cause to arrest. Id. at 919.
The Washington Supreme Court disagreed, holding that,
where an officer lacks statutory or common-law authority to
arrest, the existence of probable cause alone does not render
the stop constitutionally valid. Id. at 922. The court reasoned
that “Article I, section 7 * * * is not a source of authority of
law to arrest or stop and detain a person in Washington.
There must be some other source of authority of law for a
constitutional warrantless arrest.” Id. at 921; see also State
v. Cuny, 257 Neb 168, 173, 595 NW2d 899, 903 (1999) (hold-
ing stop of defendant in Nebraska by South Dakota officers
violated federal and state constitutions because officers
lacked Nebraska authority to stop); Com. v. Hernandez, 456
Mass 528, 532, 924 NE2d 709, 712 (2010) (holding exclusion
of evidence is “an appropriate remedy when a defendant is
578 State v. Keller
prejudiced by an arrest made without statutory or common-
law authority”).
The second approach that jurisdictions follow is
what may be termed the “private citizen” approach. Using
that approach, courts hold that police officers who conduct
extraterritorial searches and seizures should be treated as
private citizens. In those jurisdictions, the law pertaining to
citizens’ arrest determines the legality of the officer’s action.
If the officer, viewed as a private citizen, had statutory or
constitutional authority to make the arrest, then those
courts conclude that the arrest was constitutional. See, e.g.,
People v. Lacey, 30 Cal App 3d 170, 176, 105 Cal Rptr 72, 77
(1973) (holding United States marshal authorized, as a pri-
vate person, to arrest defendant); Williams v. State, 171 Ga
App 807, 809, 321 SE2d 386, 389 (1984) (holding arrest con-
ducted by DEA special agent without authority was a lawful
citizen’s arrest); State v. McDole, 226 Mont 169, 173, 734 P2d
683, 685 (1987) (holding police officer authorized to make
warrantless arrest of the defendant outside his jurisdiction
in capacity as private citizen).
A third group of jurisdictions applies a pure “con-
stitutional” analysis. Courts in those jurisdictions do not
consider violations of state statutes dispositive and instead
consider only whether the seizure or arrest was constitu-
tionally justified under federal or state constitutional law.
In such jurisdictions, the fact that the officer lacked stat-
utory authority is irrelevant to the constitutional analysis.
Thus, for instance, in State v. Mangum, 30 NC App 311, 313,
226 SE2d 852, 853 (1976), the defendant was arrested three
miles outside of the officer’s territorial jurisdiction. The
defendant moved to suppress the resulting evidence, and,
on appeal, the North Carolina Court of Appeals held that
a violation of the jurisdictional statute did not necessarily
require exclusion of the evidence. Id. at 315, 854-55. The
court concluded that the arrest was valid under the Fourth
Amendment because the officer had constitutionally justi-
fied probable cause to arrest the defendant. Id. at 314-15,
854; see also Virginia v. Moore, 553 US 164, 128 S Ct 1598,
170 L Ed 2d 559 (2008) (holding police officer does not vio-
late Fourth Amendment by making arrest supported by
Cite as 361 Or 566 (2017) 579
probable cause); State v. Smith, 154 NH 113, 116-18, 908
A2d 786, 789-90 (2006) (holding extrajurisdictional stop did
not violate state constitution where officers had reasonable
suspicion for stop and stop lasted no longer than necessary);
Madsen v. Park City, 6 F Supp 2d 938, 945 (ND Ill 1998)
(holding stop without statutory authority violates Fourth
Amendment only if it is “without probable cause or [the offi-
cer] violated some other constitutional prohibition”).
A fourth subset of jurisdictions has adopted a version
of the constitutional approach that requires an examination
of whether the extrajurisdictional aspect of the arrest was
itself reasonable. Some courts in those jurisdictions look to
whether the arresting officer was assisted by local officers.
Others consider whether there was a compelling reason for
the officer to conduct the arrest outside of his or her terri-
torial jurisdiction. For instance, in People v. Hamilton, 666
P2d 152, 156-57 (Colo 1983), the Colorado Supreme Court
held that an arrest, although carried out by officers acting
outside their jurisdiction, was not so unreasonable as to vio-
late the defendant’s constitutional rights because the arrest-
ing officers contacted the local authorities after detaining
the defendant, the warrant established constitutionally sig-
nificant probable cause, and, although the officers were not
in fresh pursuit, there was a possibility that the defendant
would have completed his business at the location reported
by an informant before the other officers arrived. As another
example, in State v. Baton, 488 A2d 696, 700 (RI 1985), the
Rhode Island Supreme Court upheld an extrajurisdictional
arrest because the arresting officer had probable cause and
conducted the arrest “under the aegis of” an officer with
authority to effectuate the arrest. That officer, the court
said, “was present at the scene and actively involved in the
search for defendant.” Id.Although neither the state nor defendant explicitly
addresses the differing approaches that other courts have
taken when confronted with an extrajurisdictional arrest,
the state seems to argue that this court should adopt the
pure “constitutional” approach. The state contends that
whether an out-of-state officer had authority to make a stop
is irrelevant to whether the stop was constitutional. Thus,
580 State v. Keller
in this instance, the state argues, the pertinent inquiry is
solely whether Thompson had the requisite constitutional
justification—probable cause—to stop defendant. Defendant,
on the other hand, argues that we should go the route of the
State of Washington and hold that, in addition to requiring a
sufficient quantum of suspicion, Article I, section 9, requires
that the out-of-state officer act with statutory or common-law
authority. In addition, defendant asserts, authority to stop is
a constitutional requirement. Thus, both parties recognize
that Davis provides a baseline for our Article I, section 9,
analysis. Under Davis, the actions of an out-of-state officer
meet the dictates of Article I, section 9, only if they would
satisfy the requirements of that provision if performed by an
Oregon officer. 313 Or at 253.4
The more difficult question, which Davis does not
answer, however, is whether Article I, section 9, includes an
additional consideration. When an out-of-state actor lacks
statutory or common-law authority, is that lack of author-
ity constitutionally irrelevant, as the state claims? Or is it
determinative, as defendant would have it? To answer those
questions, both parties rely on the text of Article I, section 9,
and its prohibition of unreasonable searches and seizures.
The state asserts that an out-of-state officer’s traffic stop is
reasonable if it would be so if performed by an Oregon officer,
and that the sole measure of the reasonableness of a traffic
stop is whether it is justified by probable cause. Defendant
asserts that no seizure, whether by an in-state or out-of-
state officer, is reasonable unless the officer is acting with
common-law or statutory authority. Citing State v. Atkinson,
298 Or 1, 8-9, 688 P2d 832 (1984), defendant contends that
the first step in analyzing the reasonableness of a seizure,
“is to determine the source of the authority for the custody.”
In support of that proposition, defendant also cites State v.
Bridewell, 306 Or 231, 239, 759 P2d 1054 (1988) (suppress-
ing evidence discovered when deputies entered defendant’s
premises without authority), and Nelson v. Lane County, 304
4
In making its first alternative argument that we limit Davis to its facts
and return to the reasoning of Olsen, the state would have us adopt the “private
citizen” approach that some courts have taken. In rejecting that argument, we
confirm that we view the actions of out-of-state governmental actors as if they
were the acts of in-state governmental actors, not as if they were private citizens.
Cite as 361 Or 566 (2017) 581
Or 97, 106, 743 P2d 692 (1987) (concluding plaintiff entitled
to declaratory judgment because administrative stop and
seizure not authorized).
We begin with defendant’s argument and reject it.
We are not convinced that a lack of Oregon common-law or
statutory authority makes a seizure per se unreasonable
under Article I, section 9. We acknowledge that this court
has adopted certain categorical rules defining unreasonable-
ness, for example, the rule that, “subject to certain specifi-
cally delineated exceptions,” warrantless searches are per se
unreasonable. State v. Bonilla, 358 Or 475, 480, 366 P3d 331
(2015). But the cases that defendant cites do not persuade
us that a lack of common-law or statutory authority is one
of those categorical rules. As noted, ORS 136.432 precludes
the exclusion of evidence for lack of statutory authority, and
none of the cases that defendant cites concern a lack of stat-
utory or common-law authority. Instead, all address the con-
stitutional authority of Oregon officers. As we explained in
Rodgers/Kirkeby, for such officers, constitutional “authority
to perform a traffic stop arises out of the facts that created
probable cause to believe that there has been unlawful, non-
criminal activity, viz., a traffic infraction.” 347 Or at 623. In
Bridewell, Atkinson, and Nelson, by contrast, neither a war-
rant nor another source of constitutional authority justified
the Oregon officers’ conduct. In Bridewell, the officers lacked
a warrant, and no exception to the warrant requirement
applied. Atkinson and Nelson both concerned the constitu-
tional justification necessary for an administrative search,
and the court explained that
“an administrative search conducted without individual-
ized suspicion of wrongdoing could be valid if it were per-
mitted by a ‘source of the authority,’ that is, a law or ordi-
nance providing sufficient indications of the purposes and
limits of executive authority, and if it were carried out pur-
suant to ‘a properly authorized administrative program,
designed and systematically administered’ to control the
discretion of non-supervisory officers.”
Nelson, 304 Or at 104 (citing Atkinson, 298 Or at 9-10). Those
cases do not demonstrate that Oregon courts have recog-
nized a categorical requirement of common-law or statutory
authority to render a stop constitutional.
582 State v. Keller
That does not mean, however, that an officer’s
unauthorized stop necessarily will meet the requirements
of Article I, section 9. That constitutional provision imposes
limits on searches and seizures “in order to prevent arbi-
trary and oppressive interference by [law] enforcement offi-
cials with the privacy and personal security of individuals.”
State v. Tourtillott, 289 Or 845, 853, 618 P2d 423 (1980) (cit-
ing United States v. Martinez-Fuerte, 428 US 543, 554, 96
S Ct 3074, 49 L Ed 2d 1116 (1976)). There may be scenarios
in which an officer acts without common-law or statutory
authority and that lack of authority could render the officer’s
actions arbitrary and oppressive and violative of Article I,
section 9. We often look to the totality of the circumstances to
determine whether a search or seizure was constitutionally
unreasonable, State v. Unger, 356 Or 59, 84, 333 P3d 1009
(2014), and we deem it appropriate to do so in this instance
as well. Because Article I, section 9, requires, in addition to
constitutional justification, that a stop be reasonable, we are
convinced that we should follow the lead of those jurisdic-
tions that require that the extraterritorial aspect of a stop
by an out-of-state officer be reasonable.
In this case, we conclude that Thompson’s stop of
defendant did not violate Article I, section 9. First, neither
party argues that the stop would have violated that provi-
sion had it been conducted by an Oregon officer. Thompson
had probable cause to stop defendant, and an Oregon officer
making a stop in that circumstance would have had sufficient
constitutional justification for the stop.5 Second, the extra-
jurisdictional aspect of the stop was reasonable. Thompson’s
actions were reasonable at each step of his encounter with
defendant. Thompson observed defendant commit traffic
violations in Washington and activated his emergency lights
to initiate the traffic stop when he and defendant were
just north of the state line, entering the Interstate Bridge.
5
At oral argument, defendant raised, for the first time, the argument that
the Washington trooper did not have probable cause to believe that defendant
had committed a traffic violation in Oregon. According to defendant, the record
establishes only that the trooper had probable cause to believe that defendant
had committed traffic violations in Washington. We do not address that argument
because it is unpreserved, but we note that there may be limitations, not reached
in this case, on the nature of the probable cause justifying a traffic stop by an
out-of-state officer acting in Oregon.
Cite as 361 Or 566 (2017) 583
Thompson stopped defendant at the earliest opportunity, just
over the Oregon border. After he had successfully stopped
defendant, but before exiting his patrol car, Thompson
asked Washington dispatch to notify the Portland police of
the stop. After Thompson contacted defendant and devel-
oped reasonable suspicion that defendant had committed
the crime of DUII, Thompson requested the assistance of
Portland police officers and waited in his patrol car for them
to arrive. The circumstances of the stop required Thompson
to either decline to pursue defendant, who had committed
multiple traffic violations, or stop defendant as close to the
Washington border as was feasible. Thompson did not act
unreasonably in pursuing the latter option. Furthermore,
Thompson quickly involved the Portland police and left the
DUII investigation for the local authorities.
The stop was one that an Oregon officer could have
effected without violating Article I, section 9, and the extra-
jurisdictional aspect of the stop was not unreasonable. The
stop did not violate Article I, section 9, and suppression of
the evidence obtained as a result of the DUII investigation
is not required.
The decision of the Court of Appeals is reversed.
The judgment of the circuit court is affirmed.