No. 13 March 2, 2017 163

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

ANTONIO MACIEL-FIGUEROA,

Respondent on Review.

(CC 11P3134; CA A148894; SC S063651)

En Banc

On review from the Court of Appeals.*

Argued and submitted May 9, 2016.

Susan G. Howe, Assistant Attorney General, Salem, filed 

the brief for petitioner on review. Also on the brief were Ellen 

F. Rosenblum, Attorney General, and Paul L. Smith, Deputy 

Solicitor General.

Ernest G. Lannet, Chief Defender, Salem, filed the brief 

for respondent on review.

Elizabeth G. Daily, Portland, filed the brief for amicus 

curiae Oregon Justice Resource Center. Also on the brief 

was Corinne Fletcher.

NAKAMOTO, J.

The decision of the Court of Appeals is affirmed. The 

judgment of the circuit court is reversed, and the case is 

remanded to the circuit court for further proceedings.

______________

* Appeal from Polk County Circuit Court, Monte S. Campbell, Judge. 273 Or 

App 298, 356 P3d 674 (2015).
164 State v. Maciel-Figueroa

Case Summary: Police officers responded to a phone call that a named man 

was threatening to break things in a house, saw defendant walking away from 

the house, and ordered him to stop and return for questioning. The officers suspected that defendant was the man identified in the report and that he had 

committed criminal mischief, menacing, or assault inside the house. Defendant 

argued that the officers lacked reasonable suspicion to stop him, as required by 

Article I, section 9, of the Oregon Constitution, and he moved to suppress evidence obtained during that stop. The trial court ruled that the officers’ suspicion was objectively reasonable; the Court of Appeals held that it was not and 

reversed. Held: (1) “Reasonable suspicion” requires that an officer reasonably 

suspect that a defendant has committed or is about to commit “a specific crime or 

type of crime”; (2) an appellate court’s review of a criminal investigatory stop is 

limited to the record made at the trial court concerning the officer’s actual belief 

that the defendant may have committed a crime; and (3) the officers, in this case, 

lacked reasonable suspicion to stop defendant, because they failed to articulate 

sufficient facts to support an objectively reasonable inference that defendant had 

damaged property or hurt or threatened to hurt someone inside the home.

The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further 

proceedings.
Cite as 361 Or 163 (2017) 165

NAKAMOTO, J.

This criminal case concerns whether police officers 

violated the prohibition against unreasonable seizures in 

Article I, section 9, of the Oregon Constitution, when they 

responded to a report that a named man was threatening to 

break things in a house, they saw defendant walking away 

from the house, and they ordered him to stop and return 

for questioning. The trial court concluded that the officers 

had reasonable suspicion to stop defendant to investigate 

whether he had committed a crime; thus, it denied defendant’s motion to suppress evidence resulting from the stop. 

The Court of Appeals reversed. State v. Maciel-Figueroa, 273 

Or App 298, 308, 356 P3d 674 (2015).

We allowed the state’s petition for review to consider 

the state’s contention that the Court of Appeals erroneously 

heightened the standard that the state must meet to establish 

that an investigatory stop was supported by reasonable suspicion. In the state’s view, a police officer may stop any person 

“if the officer reasonably believes that the person was either 

somehow involved with, or a witness to, possible criminal 

activity.” The state contends that the Court of Appeals instead 

required the state to show that, before stopping defendant, 

the police had confirmed that he had committed a crime.

As we explain, although there has been some 

variation in this court’s articulation of the standard, the 

established standard for reasonable suspicion supporting 

an investigatory stop of a defendant is met when an officer can point to specific and articulable facts that give rise 

to a reasonable inference that the defendant committed or 

was about to commit a specific crime or type of crime. We 

further conclude that the Court of Appeals correctly applied 

the reasonable-suspicion standard to the facts established 

at the suppression hearing, which concerned whether it was 

reasonable for the officers to infer that defendant had committed a crime. Accordingly, we affirm the decision of the 

Court of Appeals and reverse the judgment of the trial court.

I. BACKGROUND

We review a trial court’s denial of a motion to suppress for legal error, and we are bound by the trial court’s 
166 State v. Maciel-Figueroa

factual findings if there is any constitutionally sufficient evidence in the record to support them. State v. Ehly, 317 Or 66, 

75, 854 P2d 421 (1993). When the trial court did not make 

express findings and there is evidence from which the trial 

court could have found a fact in more than one way, we will 

presume that the trial court decided the facts consistently 

with the trial court’s ultimate conclusion. Id. We take the facts 

from the Court of Appeals opinion and the record of the suppression hearing, viewed consistently with those standards.

Two Salem police officers, Officer Moffitt and 

Corporal Welsh, responded to a report of a disturbance at a 

home where a woman named Velek lived. Velek’s mother had 

called the police and reported that she had just spoken with 

her daughter, who “said that someone named * ** Wilson was 

at her house and was threatening to break things.” MacielFigueroa, 273 Or App at 299. “Velek’s mother reported that 

she could hear a lot of yelling in the background when she 

was speaking to her daughter, and she requested that the 

police go to her daughter’s house.” Id. Moffitt knew Velek 

from previous contacts at the residence, and he was familiar 

with the layout of her house.

Ten minutes after Velek’s mother called the police, 

Moffitt and Welsh each arrived by car to investigate the 

disturbance. “They parked a few houses away and walked 

on the sidewalk toward Velek’s home. When they were near 

the home, they saw defendant walking down Velek’s driveway.” Id. at 300. Moffitt thought that defendant was walking 

at a normal pace, but Welsh thought that defendant’s pace 

“seemed a little bit rapid.” “Based on his knowledge of the 

layout of Velek’s home, Moffitt was certain that defendant 

had come from the home.” Id. Defendant, who did not appear 

to see the two officers, “reached the sidewalk and turned in 

the direction away from the officers.” Id.

Moffitt called out to defendant and asked to speak 

to him. Defendant looked toward the officers, put his hands 

in his pockets, and continued to walk away from them. At 

that point, Moffitt stopped defendant by identifying himself 

as a police officer and directing defendant to come back and 

speak with them. Moffitt further instructed defendant to 

take his hands out of his pockets. After defendant did that, 
Cite as 361 Or 163 (2017) 167

“he began to walk a little bit faster back towards the house, 

putting his hands in his pockets again.” Id. After Moffitt 

called out to defendant at least three more times, defendant 

stopped at the front porch of Velek’s house.

The officers approached, and Moffitt asked defendant whether he had any weapons or drugs, which defendant 

denied. Then, with defendant’s consent, Moffitt searched him. 

The search immediately yielded a methamphetamine pipe. 

After handcuffing defendant, Moffitt turned his attention 

to the two other individuals outside Velek’s house, who were 

then visible to Moffitt. One of them was Velek, and the other 

turned out to be Wilson, the man identified in the disturbance 

call from Velek’s mother. Eventually, the officers discovered 

that defendant had given them a false name and possessed 

an identification card containing the same false name.

After defendant was charged with unlawful possession of methamphetamine, giving false information to 

a police officer for a citation, identity theft, and tampering 

with physical evidence, he moved to suppress all of the evidence derived from Moffitt’s search. He argued that the officers had stopped him without reasonable suspicion that he 

had committed a crime, thereby violating his rights under 

Article I, section 9, of the Oregon Constitution.1

At the suppression hearing, both officers testified 

about the circumstances that had led them to believe that 

they had reasonable suspicion to stop defendant. The trial 

court found their testimony to be credible.

Moffitt testified that he believed that defendant 

“may have been involved with the disturbance” and “may 

have been the one yelling and threatening to break things 

at the home.” Moffitt disagreed with the prosecutor’s suggestion that the call implied that there was a “domestic disturbance,” explaining, “Well, there was a disturbance. It 

was never titled as a domestic. It was a disturbance. That 

there was somebody there, yes.” Moffitt did not specify what 

1 Defendant also moved to suppress the evidence under the Fourth 

Amendment to the United States Constitution. Defendant did not make a separate argument under the federal constitution, and, on review, only the state 

constitutional provision is at issue.
168 State v. Maciel-Figueroa

crime he had believed that defendant had committed, but he 

testified that, “most likely from the call,” he believed that 

the officers “had a crime [that] had been committed in the 

residence, and [he] initially believed [that defendant] was 

[Wilson] walking away from the front of the house.” Moffitt 

based that belief solely on the content of the disturbance call 

and the fact that defendant was a male walking down the 

driveway and away from the house.

Although Moffitt stated in his testimony that he 

believed that defendant might have committed “a crime” 

in the house, Welsh eventually specified possible crimes 

that defendant might have committed. Welsh testified that, 

when he arrived at the residence, he believed that “maybe 

a crime had been committed” and that “there was probably 

something going on.” He was responding to “an unknowntype call, but clearly a disturbance” in Velek’s house. Welsh 

explained that, when responding to a call “that there’s 

somebody in there threatening to start destroying stuff,” he 

would not know specifically what type of crime might have 

been committed; “it could be anything at that point.” But in 

response to a suggestion by the prosecutor, Welsh proposed 

that possible crimes could include criminal mischief, menacing, and assault. He also testified that he had believed 

that he had reasonable suspicion to stop defendant when he 

saw defendant walking away from the house, because the 

officers “didn’t know if [they] had a victim inside that was 

assaulted or what *** his involvement was at that point.”

The trial court concluded that, when the officers 

had stopped defendant by directing him to return to the 

house, they had “reasonable suspicion that a crime had been 

committed, and it was reasonable to believe that [defendant] 

was that person who committed it.” Accordingly, the trial 

court denied defendant’s motion to suppress. Ultimately, the 

trial court convicted defendant on all charges in a stipulatedfacts trial.

Defendant appealed the judgment of conviction and 

assigned error to the trial court’s denial of his motion to 

suppress. The Court of Appeals decided the case on the lack 

of reasonable suspicion. The court concluded that “the facts 

known to the officers at the time of the stop—including the 
Cite as 361 Or 163 (2017) 169

information from Velek’s mother—were not sufficient to support an objectively reasonable conclusion that a crime had 

occurred.” Id. at 305.

Focusing on the contents of the report from Velek’s 

mother and what the officers had observed, the Court of 

Appeals evaluated the facts known to the officers at the time 

of the stop, in light of the elements of criminal mischief, 

assault, and menacing—the potential crimes that Welsh 

had identified during his testimony. Id. at 305-07 (relying on 

State v. Moore, 264 Or App 86, 89-93, 331 P3d 1027 (2014), 

for reasonable-suspicion analysis). Based on the record at 

the suppression hearing, the court concluded that the officers could not have reasonably suspected that criminal mischief, assault, or menacing had occurred or were occurring 

inside Velek’s house, because the officers had not been aware 

of facts that would have led a reasonable person to infer that 

physical injury, property damage, or violence had occurred 

or was occurring inside the home. Id. at 307; see also ORS 

163.185 (person commits “assault” when he or she causes 

“serious physical injury” to another); ORS 163.190 (person 

commits “menacing” when he or she “intentionally attempts 

to place another person in fear of imminent serious physical 

injury”); ORS 164.345 - 164.365 (person commits “criminal 

mischief” when he or she damages, interferes, or tampers 

with another person’s property).

The Court of Appeals also rejected the state’s 

argument that the police need not suspect a defendant of 

a specific crime, as long as the officer reasonably believes 

“that a crime of some sort ha[s] occurred or [is] about to 

occur.” Id. at 307-08. Because the court concluded that the 

officers lacked reasonable suspicion to stop defendant, and 

the state failed to controvert that the evidence subsequently 

discovered was the unlawful product of that unlawful stop, 

the court concluded that the trial court should have suppressed the evidence. Id. at 308-09. Accordingly, the Court 

of Appeals reversed defendant’s convictions. Id. at 309.

II. ANALYSIS

Neither party disputes the trial court’s conclusion that a “stop”—the kind of seizure of a person that is 
170 State v. Maciel-Figueroa

a temporary detention for investigatory purposes, State v. 

Holmes, 311 Or 400, 407, 813 P2d 28 (1991)—occurred when 

the officers directed defendant to return to the house for questioning. The sole issue on review is whether that stop was 

lawful under Article I, section 9, of the Oregon Constitution, 

which provides, in part: “No law shall violate the right of 

the people to be secure in their persons * * * against unreasonable *** seizure[.]” “Reasonable suspicion” is the term of 

art that encapsulates the degree of justification that a police 

officer must have before conducting a criminal investigative 

stop under Oregon law. See, e.g., State v. Watson, 353 Or 768, 

775-81, 305 P3d 94 (2013) (so explaining).

Whether the officers stopped defendant based 

on reasonable suspicion depends on what the reasonablesuspicion standard is and how it was applied in this case. 

The state and defendant fundamentally disagree concerning those matters. According to the state, the Court of 

Appeals erred by reformulating the standard so that reasonable suspicion now requires “an officer to (1) conclude 

that a (2) crime had in fact been (3) committed.” (Emphases 

in state’s brief.) In the state’s view, the proper standard for 

“reasonable suspicion” is instead whether the totality of 

circumstances provides a “moderate chance” that “criminal activity” may be “afoot” and that the person stopped 

was “somehow involved.” For that formulation of the standard, the state relies on Safford Unified School District

# 1 v. Redding, 557 US 364, 371, 129 S Ct 2633, 174 L Ed 2d 

354 (2009), State v. Valdez, 277 Or 621, 626, 561 P2d 1006 

(1977), and State v. Holdorf, 355 Or 812, 820, 333 P3d 982 

(2014). Defendant, on the other hand, disagrees that an officer’s “generalized suspicions that ‘criminal activity may be 

afoot’ and that the person might be ‘involved’” are sufficient 

to justify a seizure of the person, and he contends that the 

Court of Appeals correctly applied the reasonable-suspicion 

standard as it has long been understood in Oregon.

A. The Reasonable-Suspicion Standard

Because the state contends that the Court of 

Appeals changed the reasonable-suspicion standard itself, 

heightening the state’s burden, we review the foundation of 

the reasonable-suspicion standard and this court’s historical 
Cite as 361 Or 163 (2017) 171

formulations of that standard in detail. We conclude that, 

although the state has accurately quoted phrases from a 

number of cases to form its proffered reasonable-suspicion 

standard, the state’s formulation is incorrect and so general 

that it would undermine the ability of courts to review the 

basis for an investigatory stop. We also conclude that the 

Court of Appeals correctly applied the reasonable-suspicion 

standard.

We begin with two foundational principles. First, 

the term “reasonable suspicion” implements the prohibition in Article I, section 9, against “unreasonable” seizures, 

by recognizing that, in some cases, it will not be constitutionally unreasonable for the police to seize a citizen without a warrant. See State v. Fair, 353 Or 588, 602, 302 P3d 

417 (2013) (citing State v. Cloman, 254 Or 1, 7, 456 P2d 67 

(1969)). The reasonable-suspicion standard balances “the 

practical necessities of effective law enforcement,” Cloman, 

254 Or at 8 (internal quotation marks and citation omitted),

with the need “to prevent arbitrary and oppressive interference by [law] enforcement officials with the privacy and personal security of individuals,” Fair, 353 Or at 602 (internal 

quotation marks and citation omitted). The standard was 

developed with the recognition that a criminal investigative 

“stop,” although less intrusive than an arrest, is still a constitutionally significant seizure. See State v. Unger, 356 Or 

59, 71, 333 P3d 1009 (2014). Consistently with the balancing inherent in Article I, section 9, “reasonable suspicion” 

requires a degree of justification for a stop that is commensurate with the intrusiveness of the stop. Fair, 353 Or at 

602.

Second, as appropriate, this court will borrow from 

its decisions applying the reasonable-suspicion standard 

contained in the statutes authorizing criminal investigative 

stops, ORS 131.615 and ORS 131.605(6),2

 when analyzing 

the reasonable-suspicion standard that applies in cases 

2 ORS 131.615(1) now provides that “[a] peace officer who reasonably suspects that a person has committed or is about to commit a crime may stop the 

person and, after informing the person that the peace officer is a peace officer, 

make a reasonable inquiry.” ORS 131.605(6) defines “[r]easonably suspects” to 

mean “that a peace officer holds a belief that is reasonable under the totality of 

the circumstances existing at the time and place the peace officer acts.”
172 State v. Maciel-Figueroa

challenging the constitutionality of a stop under Article I, 

section 9. Those statutes, initially enacted in 1973, represented the legislature’s determination of how to codify this 

court’s interpretation of Article I, section 9, in Cloman, 254 

Or at 7, and the United States Supreme Court’s interpretation of the requirements of the Fourth Amendment to the 

United States Constitution in Terry v. Ohio, 392 US 1, 88 S 

Ct 1868, 20 L Ed 2d 889 (1968). As this court has noted, the 

Commentary to the criminal procedure code explains that 

the provision codified as ORS 131.615 was intended to give 

“‘the courts leeway to interpret the protean situations that 

arise” and to give “‘the officer limited “stopping” powers.’” 

Valdez, 277 Or at 625 (quoting Commentary to Criminal Law 

Revision Commission Proposed Oregon Criminal Procedure 

Code, Final Draft and Report § 31, 26 (Nov 1972)).

The legislature did not enact ORS 131.615 exactly 

as the Criminal Law Revision Commission had proposed. 

Valdez, 277 Or at 625 n 4. More limited than the rule in 

Terry, which had involved a stop based on suspected imminent criminal activity, the legislature’s initial statutory formulation required that a police officer reasonably suspect 

that a person “has committed a crime” before stopping the 

person for investigation; it did not authorize stopping a person whom the officer suspected “is about to commit” a crime. 

Id.; Or Laws 1973, ch 836, § 31. More than 20 years later, in 

1997, the phrase “or is about to commit” a crime was added 

to ORS 131.615(1). Or Laws 1997, ch 866, § 1.

Oregon case law concerning the reasonablesuspicion standard has developed over the last half-century 

based in part on an officer’s statutory authority to conduct a 

criminal investigative stop and in part on the constitutional 

limits that Article I, section 9, imposes on that authority. 

See generally Watson, 353 Or at 775-81 (explaining evolution of the “reasonable suspicion” standard in Oregon). In 

the first two decades that followed the enactment of the statutes in 1973, this court addressed the statutory authority 

for investigatory stops, rather than the limits of Article I, 

section 9. Id. at 777; see, e.g., State v. Belt, 325 Or 6, 932 

P2d 1177 (1997); Ehly, 327 Or 66; State v. Lichty, 313 Or 

579, 835 P2d 904 (1992); State v. Kennedy, 290 Or 493, 624 

P2d 99 (1981); Valdez, 277 Or 621. However, in 1997, the 
Cite as 361 Or 163 (2017) 173

legislature enacted ORS 136.432, which limited the ability 

of courts to exclude evidence as a remedy for violations of 

statutes such as ORS 131.615. See Watson, 353 Or at 777-78 

(so explaining). Since then, defendants who seek to exclude 

evidence derived from stops based on reasonable suspicion 

have invoked the prohibition against unreasonable seizures 

in Article I, section 9. Id. A handful of those later cases 

that concern the reasonable-suspicion standard have made 

their way to this court for decision. See Holdorf, 355 Or 812; 

Watson, 353 Or 768; Fair, 353 Or 588. But as a result of that 

history, this court has decided relatively few cases since the 

1969 Cloman decision that specifically address the constitutional dimensions of the reasonable-suspicion standard.

While recognizing the statutory limitation in ORS 

131.615(1) that permitted police officers to stop a person for 

investigation only if they had reasonable suspicion that the 

person had committed a crime, see, e.g., Valdez, 277 Or at 625 

n 4 (so explaining under earlier version of ORS 131.615(1),

this court has stated that the analysis of a defendant’s statutory rights “is substantially the same as analysis of his rights 

under the search and seizure provisions of the Oregon and 

Federal constitutions,” given that the purpose of the statutes “is to protect interests of the kind which are protected 

by the Fourth Amendment of the United States Constitution 

and by Article I, § 9 of the Oregon Constitution.” Kennedy, 

290 Or at 497 (a case involving the defendant’s consent to 

a search after he was stopped at the airport based on suspicion that he was carrying illegal drugs). And in 2014, in 

Holdorf, this court reiterated that principle in analyzing 

whether Article I, section 9, required exclusion of evidence 

derived from a stop in which the officer suspected that the 

defendant, a passenger during a traffic stop, had committed 

or was about to engage in drug crimes. 355 Or at 818-19.

We acknowledge that this court has articulated the 

reasonable-suspicion standard slightly differently at times, 

as the standard has evolved. As noted, the court’s first decision, in 1969, was Cloman. In that case, this court drew on 

federal analysis of the Fourth Amendment to the United 

States Constitution, starting with Rios v. United States, 364 

US 253, 262, 80 S Ct 1431, 4 L Ed 2d 1688 (1960), to decide 

for the first time as a matter of state constitutional law that 
174 State v. Maciel-Figueroa

a temporary investigative stop by police must be grounded 

on “reasonable suspicion.” 254 Or at 6. The court’s stated 

holding concerning investigative stops was that “the police 

can stop a car to determine the identity of the vehicle and 

its occupants if they have a reasonable suspicion that the car 

or its occupants have a connection with criminal activity.” Id. 

(emphasis added). Although the court then quoted a number 

of decisions of other courts, including one from the Ninth 

Circuit, the court did not expand on their significance. See 

id. at 7-9. This court explained that it was not “drastically 

broadening” the power of officers to stop a person without 

probable cause to arrest, given that an officer “must have 

reasonable grounds” for the action. Id. at 9.

In Valdez, this court’s next decision concerning the 

reasonable-suspicion standard, the court considered the 

application of ORS 131.615, which had been enacted four 

years earlier. The court emphasized that the record must 

reflect information that can be objectively evaluated. The 

court quoted extensively from the Commentary to the Law 

Revision Commission Proposed Oregon Criminal Procedure 

Code, Final Draft and Report, to determine the Commission’s 

intent in proposing what became ORS 131.615 and “statutory intent.” 277 Or at 625-26. Among other things, the 

court noted that the Commentary stated that, to establish 

reasonable suspicion, Terry required an officer to identify 

“specific and articulable facts” that “indicate to the officer 

that there is some type of criminal activity afoot and that this 

particular person is somehow involved.” Id. at 626 (internal 

quotation marks omitted; emphasis in Valdez).

This court in Valdez did not expressly state that 

the Commission’s understanding of Terry was correct or 

that those requirements—sufficient facts indicating that 

(1) “criminal activity was afoot” and (2) the defendant was 

involved—formed the standard for evaluating the reasonableness of an officer’s belief that the defendant “has committed a crime” as required by ORS 131.615. But the court’s 

analysis implied it. The state’s evidence at the suppression hearing in Valdez was that (1) officers observed three 

men in a high-vice area of northeast Portland approach a 

car and the defendant put a brown paper bag in the trunk;

(2) one of the officers believed that the defendant, an African 
Cite as 361 Or 163 (2017) 175

American, looked like “a typical [drug] pusher”; and (3) the 

defendant was neatly groomed and well dressed. Id. at 623. 

The court compared the “fund of suspicious activity” that the 

officers had in Terry and Cloman with the evidence before 

it that could be “objectively evaluated.” Id. at 627. While 

acknowledging that experienced officers develop an instinct 

about criminal conduct, the court cautioned that instinct 

alone would not suffice to establish reasonable suspicion:

“[I]nstinct 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 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.”

Id. at 628. The court concluded that the state had not established reasonable suspicion as required by ORS 131.615, 

reversed the Court of Appeals, and affirmed the trial court’s 

decision to grant the defendant’s motion to suppress evidence. Id. at 629.

This court’s next decision, Lichty, came 15 years 

later in 1992 and, like Valdez, concerned the reasonableness 

of a stop under the statute. In Lichty, the court expressly 

stated the reasonable-suspicion standard, which it described 

as an “‘objective test of observable facts,’” 313 Or at 584 

(quoting Valdez, 277 Or at 628), in terms of facts giving rise 

to an inference that criminal activity was afoot, leaving the 

defendant’s involvement implied:

“If a police officer ‘is able to point to specific and articulable 

facts which give rise to the inference that criminal activity 

is afoot, the officer has ‘reasonable suspicion’ and hence 

can stop the individual for investigation.’ State v. Valdez, 

* * * 277 Or at 626 (quoting the Commentaries from the 

Commission of the Proposed Oregon Criminal Procedure 

Code of 1972, which drafted ORS 131.615).”

Id. at 584 (emphasis added).

The following year, this court decided two cases 

concerning the standard for reasonable suspicion under 

ORS 131.615. In Ehly, when describing the standard, the 

court explicitly clarified the requirement that the facts must 
176 State v. Maciel-Figueroa

give rise to a reasonable inference that the person stopped 

has committed a crime: “If a police officer is able to point to 

specific and articulable facts that give rise to a reasonable 

inference that a person has committed a crime, the officer 

has ‘reasonable suspicion’ and hence may stop the person 

for investigation.” 317 Or at 80 (emphasis added). In State v. 

Jacobus, 318 Or 234, 239-41, 864 P2d 861 (1993), the court 

reiterated that facts and reasonable inferences are required, 

and then it returned to Lichty to finish its formulation of the 

reasonable-suspicion standard: Reasonable suspicion exists 

if “the facts known at the time of the stop, combined with the 

inferences that the police officer reasonably drew from those 

facts, were sufficient to give rise to ‘reasonable suspicion’ by 

the officer that ‘criminal activity was afoot.’” Id. at 239 (quoting Lichty, 313 Or at 584 (emphasis added)).

Four years later, in 1997, this court returned to the 

statutory reasonable-suspicion standard in Belt. The court 

explained in Belt that, in light of ORS 131.615(1), “the issue 

of law presented is whether the information known to the 

officer at the time of the stop was sufficient as a legal matter 

to support a reasonable suspicion that defendant had committed the crime for which the officer stopped him for the 

purpose of making inquiry.” 325 Or at 11. Reasonable suspicion exists, the court stated, if “the evidence is legally sufficient to support an inference that an officer holds a subjective 

belief that is reasonable under the circumstances as to a specific defendant and crime.” Id. at 14 (emphasis added). And, 

to address the reasonableness issue, a court must “review 

the officer’s testimony at the suppression hearing” to determine “whether the officer pointed to specific and articulable 

facts that are sufficient as a matter of law to give rise to an 

inference that a reasonable officer would hold the required 

subjective belief.” Id. at 12 (citing Ehly, 317 Or at 80). Thus, 

in its formulation of the standard, the court in Belt reemphasized that the statute required suspicion that the defendant 

had committed a crime.

Since 1997 and the enactment of ORS 136.432 

(providing that, with exceptions, 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 statutory provision”), this court’s decisions concerning 
Cite as 361 Or 163 (2017) 177

the reasonable-suspicion standard have addressed constitutional challenges to stops under Article I, section 9. In 

Fair, decided in 2013, the court addressed whether police 

may stop a potential material witness and the standard that 

must be met for doing so, which differs from the reasonablesuspicion standard applicable to individuals whom the police 

suspect of criminal activity. 353 Or at 609. Watson, the other 

post-1997 case also decided in 2013, involved a traffic stop, 

during which the officers developed reasonable suspicion 

that the defendant had drugs in the car. 353 Or at 784-85. 

This court explained the history of our cases concerning 

ORS 131.615 and the limited case law concerning constitutional limitations on police authority to stop a person under 

Article I, section 9, 353 Or at 775-81, but the case focused 

on whether actions taken by the police officers during the 

traffic stop were reasonably related to their investigation of 

the traffic infraction. Id. at 781-84.

As noted, Holdorf was decided in 2014 and is this 

court’s most recent decision concerning the reasonablesuspicion standard. In its constitutional analysis of the 

reasonable-suspicion standard, this court in Holdorf concluded that common principles underlie decisions such as 

Valdez, Lichty, and Ehly and the constitutional limits on 

police authority in Article I, section 9. It summarized the 

common principles relevant to that case as follows:

“The people have a liberty interest to be free from unreasonable searches and seizures that is protected by provisions of the Oregon and federal constitutions. The standard 

of ‘reasonable suspicion’ justifying a police intrusion on 

that liberty interest when a person is stopped was intended 

to be less than the standard of probable cause to arrest. A 

stop is unlawful unless it meets an objective test of reasonableness based on observable facts. Officer intuition and 

experience alone are not sufficient to meet that objective 

test. However, if an officer is able to point to specific and 

articulable facts that a person has committed a crime or is 

about to commit a crime, the officer has a ‘reasonable suspicion’ and may stop the person to investigate.”

Holdorf, 355 Or at 822-23 (emphasis added).

In applying those principles concerning the 

reasonable-suspicion standard, the court further explained 
178 State v. Maciel-Figueroa

that the objective review of the basis for a stop “looks to the 

totality of the circumstances confronting a police officer and 

not just those circumstances that directly relate to a suspect 

or are personally observed by the police officer stopping a 

suspect.” Id. at 824; accord Belt, 325 Or at 13 (in determining whether an officer had “reasonable suspicion,” a court 

must first look to the officer’s actual belief, and then evaluate whether that belief was objectively reasonable under the 

totality of the circumstances). Thus, in some circumstances, 

a police officer may rely on information provided by others in 

determining whether a stop is justified by reasonable suspicion. Holdorf, 355 Or at 824-25.

The facts in Holdorf also raised the additional issue 

of how to evaluate an officer’s testimony concerning his 

experience as a police officer—in that case, experience with 

methamphetamine use by criminal suspects. Id. at 826-27. 

The court concluded, based in part on Valdez, Lichty, and 

Ehly, that “a police officer’s training and experience may, 

depending on the factual circumstances, * ** be given appropriate weight” by a court in its objective review of the basis 

for an investigatory stop of the defendant. Id. at 829. But, 

the court emphasized,

“a police officer’s training and experience, as relevant to 

proving particular circumstances, is not presumed based 

solely upon a police officer’s employment status. Rather, 

that training and experience must be established, as it 

was here, through admissible evidence of specific articulable facts that permit an officer to make a reasonable 

inference based on the officer’s pertinent training and 

experience.”

Id.

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.
Cite as 361 Or 163 (2017) 179

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.3

 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 Or 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 Or 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 Or at 241 (conspiracy or attempt to commit 

robbery or theft); Lichty, 313 Or at 584-85 (possession of 

3 On review, the state now argues that perhaps “criminal activity of a domestic violence nature” was occurring, but the state did not make that argument 

in the Court of Appeals. And, the record contains no evidence that the officers 

suspected defendant of domestic violence.
180 State v. Maciel-Figueroa

cocaine); Valdez, 277 Or at 628-29 (drug crimes); Cloman, 

254 Or 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.4

As for the inference concerning defendant’s involvement, the state argues that the Court of Appeals erred by 

concluding that the stop was justified only if the officers reasonably concluded that defendant had committed a crime, as 

opposed to perhaps witnessing criminal activity. Rather, the 

state contends, reasonable suspicion requires only that the 

officer reasonably believe that the defendant is “somehow 

involved with whatever criminal activity may have been 

occurring.” The state’s position is problematic on two fronts.

First, in this case, both officers testified that they 

actually believed that defendant was Wilson and that he 

had committed a crime—not that he was a potential witness to a crime.5

 Accordingly, the Court of Appeals properly 

focused on whether the officers reasonably suspected that 

defendant at least had committed some type of crime.

4 We do not intend those few examples to constitute a limit on the types of 

crimes that may be the focus of an officer’s stop.

5 The state relies on Fair, in which this court held that, “in appropriate circumstances, it is permissible under Article I, section 9, for officers to stop and 

detain someone for on-the-scene questioning whom they reasonably suspect can 

provide material information about a crime’s commission.” 353 Or at 608. The 

state has raised the possibility that defendant could have been a witness to a 

crime for the first time in this court, and we do not consider how that circumstance and the rule in Fair would apply, given the officers’ testimony about their 

subjective beliefs about defendant’s involvement as a crime suspect in this case.
Cite as 361 Or 163 (2017) 181

Second, as with the state’s argument concerning 

the specificity of the suspected illegal conduct required for 

reasonable suspicion, the state’s position is inconsistent with 

the rule that reasonable suspicion requires a showing of 

“specific and articulable facts” justifying an officer’s intrusion into someone’s privacy, which in turn allows meaningful 

judicial review of the reasonableness of the officer’s seizure 

of that person. Although this court’s decisions have sometimes worded the requirement loosely, as the state notes by 

citing Valdez, 277 Or at 626 (requiring an inference that 

the person stopped “is somehow involved” in criminal activity), all the cases discussed above concerning a defendant’s 

suspected perpetration of a crime consistently require that 

the evidence must support an inference that the defendant 

either has committed or is about to commit a crime. See, 

e.g., Holdorf, 355 Or at 829-30 (suspicion that the defendant, 

who was in a car with a known felon under investigation for 

participation in a methamphetamine distribution ring, and 

who appeared to be under the influence of the drug, possessed the drug); Ehly, 317 Or at 79-81 (suspicion that the 

defendant, who was rummaging in a duffel bag, was a felon 

in possession of a firearm).

Thus, we reject the state’s position that the officer 

need not actually and reasonably suspect that the individual committed or is about to commit a specific crime or type 

of crime—and need only suspect the individual of general 

“criminal activity.” When an officer’s suspicion reduces to 

that level of generality, such a rule would permit an officer 

to stop an individual whenever the officer believes that the 

person appears to be a criminal or that something about a 

situation seems “criminal.” But this court has never concluded that an officer had reasonable suspicion to stop an 

individual based on nonspecific “criminal activity.” See, 

e.g., Jacobus, 318 Or at 241 (officer reasonably suspected 

that the defendant’s criminal activity included robbery and 

theft); Lichty, 313 Or at 585 (officer reasonably suspected 

that the defendant possessed cocaine and “therefore was 

committing a crime”). Moreover, this court has specifically 

rejected officer intuition alone as sufficient to establish reasonable suspicion. Holdorf, 355 Or at 823; Valdez, 277 Or at 

628.
182 State v. Maciel-Figueroa

In sum, the standard for “reasonable suspicion” 

required to support the lawfulness of an investigative stop of 

a person suspected of criminal conduct is well-established. 

For police officers to make a stop, they must reasonably 

suspect—based on specific and articulable facts—that the 

person committed a specific crime or type of crime or was 

about to commit a specific crime or type of crime. For a court 

to determine that an investigative stop was lawful under 

Article I, section 9, the court (1) must find that the officers 

actually suspected that the stopped person had committed 

a specific crime or type of crime, or was about to commit 

a specific crime or type of crime, and (2) must conclude, 

based on the record, that the officers’ subjective belief—their

suspicion—was objectively reasonable under the totality of 

the circumstances existing at the time of the stop. See, e.g., 

Holdorf, 355 Or at 825; Ehly, 317 Or at 79-80.

Turning to the kind of evidence required to establish the lawfulness of a stop, because the officers in this case 

believed only that defendant may have committed a crime in 

Velek’s house, we limit our discussion to the evidence needed 

to support an officer’s belief that the defendant may have 

committed a crime. All this court’s cases after Cloman have 

consistently required the state to establish the “specific and 

articulable facts” that led the officer to actually and reasonably believe that the defendant may have committed a crime 

or type of crime. The state agrees that an officer must be 

able to point to “specific and articulable facts” giving rise 

to the officer’s belief. But, the state emphasizes that a court 

reviewing the lawfulness of a stop must consider whether 

the “totality of the circumstances” suggested that criminal 

activity was afoot and now relies on a theory that defendant may have committed domestic violence crimes, backed 

by cases from other jurisdictions concerning suspected 

domestic violence crimes. In making that argument, the 

state implies that an appellate court may review a stop for 

whether there was any possibility that any crime may have 

been committed. In other words, the state suggests that we 

can affirm the trial court’s denial of defendant’s motion to 

suppress apart from the officers’ testimony about the factual circumstances leading to the stop and the crimes that 

they suspected that defendant had committed when they 
Cite as 361 Or 163 (2017) 183

made the stop, which specifically did not include domestic 

violence, and apart from the state’s arguments founded on 

that evidence at the suppression hearing.

We reject the state’s suggestion. A court’s review 

of a stop is based on the record made concerning the officer’s actual belief that the defendant may have committed a 

crime, see Ehly, 317 Or at 79, and the basis for that belief—

the specific facts, articulated by the officer, that led him or 

her to believe that the defendant may have committed a 

crime, which we then review as a matter of law for objective reasonableness, see Belt, 325 Or at 12 (stating that, to 

address reasonableness, a court reviews “the officer’s testimony at the suppression hearing” to determine “whether the 

officer pointed to specific and articulable facts that are sufficient as a matter of law to give rise to an inference that a 

reasonable officer would hold the required subjective belief” 

(emphasis in original)).

Finally, as for the quantum or degree of certainty 

required for the officers to reasonably suspect that the person stopped has committed a crime, the state takes issue 

with the Court of Appeals’ phrasing of its holding: “[T]he 

facts known to the officers at the time of the stop *** were 

not sufficient to support an objectively reasonable conclusion that a crime had occurred.” Maciel-Figueroa, 273 Or 

App at 305 (emphasis added). “Reasonable suspicion,” the 

state argues, does not require that an officer conclude with 

certainty that a crime has occurred or is about to occur. 

Rather, it argues, the officer must identify specific and articulable facts that support an inference of criminal activity. 

See Lichty, 313 Or at 584 (reasonable suspicion exists when 

police officer “is able to point to specific and articulable facts 

which give rise to the inference that criminal activity is 

afoot”) (internal quotation marks and citations omitted).

We agree that “reasonable suspicion” does not 

require an officer to conclude that the defendant has committed a crime, in the sense that the verb “conclude” connotes reaching a final decision or judgment that something 

is certainly true. The term “reasonable suspicion” itself conveys that nuance; in its ordinary usage, “suspicion” means 

a feeling or belief that something is true, rather than an 
184 State v. Maciel-Figueroa

objective certainty. However, an officer’s subjective belief 

must be “objectively reasonable”; thus, as the state identifies, the standard for “reasonable suspicion” requires that 

the articulated facts that formed the basis for the officer’s 

suspicion give rise to a reasonable inference that the defendant has committed or is about to commit the crime that 

the officer suspects. See Holdorf, 355 Or at 822; Ehly, 317 Or 

at 80; Lichty, 313 Or at 584; Valdez, 277 Or at 626. In sum, 

the state need not prove that the articulated facts give rise 

to a conclusion with certainty that a crime has occurred or 

is about to occur; instead, based on the specific facts known 

and articulated by the officer, a reviewing court must conclude that the officer’s subjective belief could be true, as a 

matter of logic. See Belt, 325 Or at 13.

B. Application

As we emphasized at the outset, the record establishes that the only facts known to the officers at the time 

of the stop were that defendant was a male whom they had 

seen walking down the driveway from Velek’s home and 

then walking away from the house; approximately 10 minutes earlier, they had received a “disturbance call”; and, the 

information in that call was that Velek’s mother had reported 

that a named man, Wilson, was inside Velek’s house, yelling 

and threatening to break things. Two key factual inferences 

are at issue in this case: (1) defendant was Wilson, the subject of the report, and (2) Wilson had committed a crime in 

Velek’s house. Although the facts support the first inference, 

they do not support a reasonable inference that Wilson had 

committed the crimes that the officers suspected, as a matter of logic.

Initially, we conclude that the facts articulated by 

the officers supported their belief that defendant could be 

Wilson. Although the officers lacked identifying information 

about Wilson from the call, the spatial and temporal connection between defendant and the house where the disturbance occurred sufficed. Defendant was male and was walking down the driveway from Velek’s home minutes after the 

report from Velek’s mother. Although defendant might have 

departed the front of the house after approaching for an innocent reason, without ever having been inside, the officers 
Cite as 361 Or 163 (2017) 185

knew the layout of the house and reasonably inferred that 

he had come from the front entrance and, therefore, that he 

could have just come out of the house and been Wilson.

The officers articulated three crimes that they 

believed that defendant might have committed. As noted, 

Moffitt testified that he believed that defendant “may have 

been involved with the disturbance” at Velek’s house, which 

he believed may have been a crime related to “yelling and 

threatening to break things at the home.” Welsh initially 

testified that he believed, generally, that “maybe a crime had 

been committed” and that “there was probably something 

going on,” which “could be anything” related to “threatening 

to start destroying stuff.” Later, Welsh’s testimony specified 

that defendant’s possible crimes could have included criminal mischief, menacing, and assault. Some of the officers’ 

testimony suggested that their suspicion mostly reduced to 

their intuition that defendant had done something wrong. 

But, to the extent that the officers did subjectively believe 

that defendant had committed specific crimes, the Court of 

Appeals properly tethered its analysis to the range of crimes 

that the officers articulated. See Belt, 325 Or at 13.

In examining the evidence in the record, the Court 

of Appeals reasoned that the lone fact that someone yelled 

and threatened to break things did not give rise to a logical inference that that person actually broke things, and 

the officers did not hear anything or observe anything else 

about defendant that suggested that he had been destroying 

Velek’s property in her house. See Maciel-Figueroa, 273 Or 

App at 307. And with no further information in the record, 

the court explained that the facts that the officers articulated were even less supportive of logical inferences that 

defendant had physically harmed or threatened to harm 

Velek or another person. Id. We agree with that analysis, 

which, contrary to the state’s argument, does not place a 

burden on officers to show conclusive proof of a crime at 

the time of the stop, as the state contends. We emphasize 

that the record was devoid of evidence concerning training 

that police officers have concerning “disturbance” calls or 

the officers’ experience responding to such calls, and so the 

prosecutor could not argue that information of that type, 
186 State v. Maciel-Figueroa

coupled with what the officers knew through the call and 

their observations on the street, would support an inference 

that defendant had assaulted or threatened to harm Velek 

or had destroyed her property. Moreover, although the officers knew the house and Velek from previous contacts, no 

testimony tied those contacts to any reasonable inference 

they could have drawn relating to defendant. It is apparent 

that the circumstances aroused the officers’ suspicion, but 

the record did not contain sufficient specific and articulable 

facts—evidence that can be objectively evaluated, Valdez, 

277 Or at 626—that would support an inference that defendant had committed a crime.

As we have reiterated in this opinion, “reasonable 

suspicion” under Article I, section 9, requires that an officer 

be able to point to specific and articulable facts that support 

the officer’s belief that the person stopped may have committed or may be about to commit a specific crime or specific 

type of crime, and the key question is whether the officer’s 

subjective belief is objectively reasonable, given the facts in 

the record. The Court of Appeals properly applied those settled standards in this case.

The decision of the Court of Appeals is affirmed. 

The judgment of the circuit court is reversed, and the case 

is remanded to the circuit court for further proceedings.