State v. Keller

Decision Date22 June 2017
Docket NumberSC S064353,A148749,CC 110342882
Citation361 Or. 566,396 P.3d 917
Parties STATE of Oregon, Petitioner on Review, v. James Edward KELLER, Respondent on Review.
CourtOregon Supreme Court

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.**


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 unreasonable 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 P.3d 545 (2016), and affirm the circuit court's judgment of conviction.


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 defendant'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 headlights in his rearview mirror. Defendant then moved into the left lane and accelerated past Thompson. Thompson had probable cause to believe that defendant had committed the Washington traffic violations of speeding and following 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 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 immediately 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, 379 P.3d 545. Therefore, the court explained, the seizure was "just as unreasonable as a traffic stop made without the requisite probable cause." Id . at 765, 379 P.3d 545. Chief Judge Hadlock filed a dissenting opinion. Id . at 766, 379 P.3d 545. Relying on State v. Davis , 313 Or. 246, 834 P.2d 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, 379 P.3d 545 (Hadlock, C.J., dissenting) (quoting Davis , 313 Or. at 253, 834 P.2d 1008 ). 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 violate Article I, section 9. Id .

To consider those opposing views, we allowed the state's petition for review.


Article I, section 9, of the Oregon Constitution provides, in part:

"No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable 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, 834 P.2d 1008 (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 P.3d 502 (2016), a case in which this court held that the acts of a private citizen do not violate Article I, section 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 arguments, 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, 834 P.2d 1008. After the defendant's arrest, Portland police officers, who were present in Mississippi, questioned the defendant, who made incriminating statements. Id . The defendant filed a motion to suppress those statements, and the court considered whether they were the product of an unconstitutional arrest. The trial court granted the defendant's motion because the officers had entered the defendant's mother's home pursuant to a fugitive warrant, but without a search warrant. Id . at 248-49, 834 P.2d 1008. On the issue of whether the arrest warrant was sufficient to justify the officer's entry and subsequent questioning, this court reversed. Id . at 249, 834 P.2d 1008. However, before reaching 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, 834 P.2d 1008.

In considering that question, the court noted, as background, that, in Elkins v. United States , 364 U.S. 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, 834 P.2d 1008. That doctrine had permitted 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 evidence 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, 834 P.2d 1008 ; see also Ker v. California , 374 U.S. 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 constitutional 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, 834 P.2d 1008. 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, 834 P.2d 1008.

Consequently, the court concluded that, in determining 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...

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  • Westra v. Iowa Dep't of Transp.
    • United States
    • Iowa Supreme Court
    • June 14, 2019
    ...invasions of privacy. There are no constitutional grounds present here to justify the suppression of evidence."); State v. Keller , 361 Or. 566, 396 P.3d 917, 925–26 (2017) (finding that an unauthorized stop by a Washington police officer that would have been legal if performed by an Oregon......

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