No. 24 July 9, 2015 417

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

JOSEPH LUCIO JIMENEZ,

aka Joseph L. Jimenez,

Respondent on Review.

(CC 110241478; CA A148796; SC S062473)

En Banc

On review from the Court of Appeals.*

Argued and submitted March 12, 2015.

Anna M. Joyce, Solicitor General, Salem, argued the 

cause and filed the brief for petitioner on review. With her 

on the brief was Ellen F. Rosenblum, Attorney General.

Anne Fujita Munsey, Deputy Public Defender, Salem, 

argued the cause and filed the brief for respondent on review. 

With her on the brief was Peter Gartlan, Chief Defender, 

Office of Public Defense Services.

Elizabeth G. Daily, Federal Public Defender’s Office, 

Portland; Shauna M. Curphey, Curphey & Badger, PA, 

Portland; and Jordan R. Silk, Schwabe, Williamson & 

Wyatt, PC, Portland, filed a brief on behalf of amici curiae

Oregon Justice Resource Center and Oregon Criminal 

Defense Lawyers Association.

WALTERS, 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.

Kistler, J., concurred and filed an opinion in which Linder 

and Landau, JJ., joined.

______________

* Appeal from Multnomah County Circuit Court, Christopher J. Marshall, 

Judge. 263 Or App 150, 326 P3d 1222 (2014).
418 State v. Jimenez

Case Summary: Defendant moved to suppress evidence obtained when an 

Oregon state trooper stopped him for jaywalking and asked if he had any weapons. The trial court denied the motion and defendant was tried and convicted. The 

Court of Appeals reversed, holding that the facts of the case were not sufficient 

to create a reasonable suspicion in the trooper’s mind that defendant presented 

a risk to the trooper’s safety. Held: (1) A law enforcement officer is not permitted, 

under Article I, section 9, of the Oregon Constitution, to inquire into the presence 

of weapons during a traffic investigation as a matter of routine and in the absence 

of circumstances that indicate danger to the officer or members of the public; (2) 

However, when the officer has probable cause to detain an individual and conduct 

a traffic investigation, and the officer has reasonable, circumstance-specific concerns for the officer’s safety, the officer may inquire into the presence of weapons 

because the officer’s inquiry is reasonably related to the traffic investigation and 

reasonably necessary to effectuate it; (3) Here, the state did not meet its burden to demonstrate that the officer’s weapons inquiry was reasonably related to 

his traffic investigation and reasonably necessary to effectuate it because the 

trooper testified only that he routinely asks about weapons, and he did not testify 

that the facts known to him at the time of his inquiry gave rise to reasonable, 

circumstance-specific safety concerns.

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 357 Or 417 (2015) 419

WALTERS, J.

In this criminal case, an Oregon state trooper 

stopped defendant for jaywalking and asked him if he had 

any weapons on him. For the reasons that follow, we conclude 

that Article I, section 9, of the Oregon Constitution1

 does not 

permit a law enforcement officer to make such an inquiry 

as a matter of routine and in the absence of circumstances 

that indicate danger to the officer or members of the public. 

In contrast, when an officer has probable cause to detain an 

individual and conduct a traffic investigation, and the officer has reasonable, circumstance-specific concerns for the 

officer’s safety, the officer may inquire about the presence of 

weapons. In that instance, the officer’s inquiry is reasonably 

related to the traffic investigation and reasonably necessary 

to effectuate it, and therefore does not violate Article I, section 9. Because that standard was not met in this case, we 

affirm the decision of the Court of Appeals, State v. Jimenez, 

263 Or App 150, 326 P3d 1222 (2014), and reverse the judgment of the circuit court.

The following uncontested facts are taken from 

the trooper’s testimony at the hearing on defendant’s 

motion to suppress evidence that the trooper obtained 

during his encounter with defendant. The trooper drove 

by a busy Portland intersection and noticed that, after he 

did so, defendant crossed the street against a “Don’t Walk” 

sign—a Class D violation under ORS 814.020(1) and (3).2

1 Article I, section 9, of the Oregon Constitution provides:

“No law shall violate the right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and 

particularly describing the place to be searched, and the person or thing to be 

seized.”

2 ORS 814.020 provides:

“(1) A pedestrian commits the offense of pedestrian failure to obey traffic 

control devices if the pedestrian does any of the following:

“(a) Fails to obey any traffic control device specifically applicable to 

the pedestrian.

“(b) Fails to obey any specific traffic control device described in ORS 

814.010 [(Appropriate responses to traffic control devices)] in the manner 

required by that section.

“(2) A pedestrian is not subject to the requirements of this section if the 

pedestrian complies with directions of a police officer.

“(3) The offense described in this section, pedestrian failure to obey traffic control devices, is a Class D traffic violation.”
420 State v. Jimenez

The trooper turned his car around and drove to a position 

near defendant, who was sitting on a bench at a bus stop. 

When defendant saw the trooper’s car approach, he got up 

and began to walk away. The trooper honked his horn and 

motioned to defendant to come and talk to him, which defendant did.

The trooper knew that the intersection was in 

a high-crime area where a lot of recent gang activity had 

occurred. He observed that defendant was wearing an “oversized” or “puffy” jacket over a “hoodie sweatshirt,” “oversized 

baggy gray pants,” and “white tennis shoes,” and was carrying what could be a green lanyard—garb that the trooper 

thought might indicate gang affiliation.

The trooper got out of his car, approached defendant, and began a conversation with him. The encounter 

was recorded by a video camera in the trooper’s car, and the 

video recording, which was played for the trial court at the 

suppression hearing, confirms the following facts to which 

the trooper also testified. The trooper told defendant why he 

had stopped him and asked defendant why he had crossed 

the street against the light. Defendant replied that he had 

seen somebody else doing the same thing and “thought it 

was okay.” The trooper responded that he understood what 

defendant was saying but that the light was red and said 

“Don’t Walk.” Defendant indicated that he knew that but 

that someone else had crossed, so he “thought it was okay as 

well.”

At that point, the trooper asked “do you have any 

weapons on you?” Defendant “kind of sighed and closed his 

eyes and said yes.” The trooper asked defendant what he 

had, and defendant answered that he had a gun. Without 

being asked, defendant then separated his feet, leaned forward, separated his hands, and put his hands on the hood 

of the trooper’s car. The trooper put defendant in handcuffs, 

called for backup and continued to question defendant; however, the trooper did not ask additional questions about the 

jaywalking and did not cite defendant for jaywalking. The 

trooper frisked defendant, located the gun, and learned that 

defendant kept the gun for “protection” and that he was 

indeed a gang member. When backup did not arrive, the 
Cite as 357 Or 417 (2015) 421

trooper placed defendant in his patrol car and took him to 

the police station. Defendant ultimately was charged with 

one count of unlawful possession of a firearm3

 under ORS 

166.250(1)(a).4

Before trial, defendant filed a motion to suppress 

“all evidence * ** obtained during his illegal seizure and the 

illegal search of his person, as well as fruits derived from 

his illegal seizure and/or illegal search of his person.” He 

argued that the trooper had questioned him and discovered 

the gun during an unjustified extension of the traffic stop. 

The state maintained that the trooper’s questioning and discovery were justified by the officer-safety exception to the 

warrant requirement articulated in State v. Bates, 304 Or 

519, 747 P2d 991 (1987), and proffered testimony from the 

trooper that he had asked defendant about weapons “for officer safety reasons.” The trooper testified that he had asked 

defendant if he had any weapons on him, “which I do with all 

contacts on the street with pedestrians, just for—obviously 

for officer safety reasons.” The trooper explained that “[i]t

makes [it] a lot easier if we can stand and have a normal 

conversation if there’s no weapons on the person.” The trial 

court denied defendant’s motion to suppress, and defendant 

was subsequently tried and convicted.

Defendant appealed to the Court of Appeals, which 

reversed the circuit court judgment. Jimenez, 263 Or App 

at 161. The court reasoned that when a police officer stops 

an individual to investigate a noncriminal traffic offense, 

the officer “must proceed to process the traffic violation, 

and may not launch an investigation into unrelated matters unless the inquiries are justified by reasonable suspicion of the unrelated matter, the inquiry occurred during 

an unavoidable lull in the citation-writing process, or some 

exception to the warrant requirement applies.” Id. at 157. 

The court noted that the state had not argued on appeal 

3 Defendant also was charged with, and acquitted of, one count of possession 

of a loaded firearm in public.

4 ORS 166.250(1) provides, in part:

“Except as otherwise provided * ** a person commits the crime of unlawful 

possession of a firearm if the person knowingly:

“(a) Carries any firearm concealed upon the person.”
422 State v. Jimenez

that the trooper “had reasonable suspicion of criminal activity when he asked defendant about weapons, or that there 

was an unavoidable lull.”5 Id. at 158. Rather, the state had 

argued only that the trial court had been correct to conclude that the trooper’s inquiry was lawful under the officersafety doctrine articulated in Bates. Id. The court rejected 

that argument and reversed, concluding that the facts on 

which the trooper had relied were not comparable to those 

that justified a patdown search in State v. Miglavs, 337 Or 

1, 90 P3d 607 (2004), and therefore were “not sufficient to 

create in [the trooper’s] mind a reasonable suspicion that 

defendant presented a risk to [the trooper’s] safety.” Id. at 

160-61.

On review in this court, the state refines the argument that it made in the Court of Appeals and argues that, 

under State v. Watson, 353 Or 768, 305 P3d 94 (2013), a 

law enforcement officer who stops an individual to investigate a traffic violation is entitled to take actions reasonably 

related to the traffic investigation and reasonably necessary 

to effectuate it. The state’s argument is that a law enforcement officer’s inquiry about whether a detained individual 

possesses weapons always meets that standard because, 

the state contends, “[t]he inherent dangers to an officer in 

a traffic stop are undeniable.” The state urges us to adopt a 

blanket rule permitting such inquiries.

Because Watson is key to the state’s argument, we 

begin with a review of its facts and analysis. In Watson, the 

officer stopped a motorist to investigate whether the motorist had violated a noncriminal traffic law by crossing the 

yellow line that divided the north- and south-bound lanes of 

traffic. The officer questioned the motorist about his driving 

and also requested his driver’s license and verified his driving privileges. The court concluded that the latter actions 

were reasonably related to the officer’s traffic investigation 

and reasonably necessary to effectuate it, and therefore 

were lawful under Article I, section 9. Id. at 781-82.

The court also explained, however, that an officer who makes a traffic stop is not necessarily limited to 

5 The state also had declined to make those arguments in the trial court.
Cite as 357 Or 417 (2015) 423

investigating the traffic offense and related matters. If 

the officer has or develops a reasonable suspicion that the 

detained individual is engaged in unrelated criminal activity, the officer may investigate that activity. Id. at 785. In 

Watson, a second officer smelled the odor of marijuana coming from the defendant’s car and informed the first officer of that fact. The first officer then engaged in criminal 

investigatory activities that were unrelated to the traffic

investigation—confirming the odor, further questioning the 

defendant, and using a drug-detection dog. The court concluded that the first officer’s activities were constitutionally 

valid because he had developed a reasonable suspicion that 

the defendant was in possession of marijuana and the officer 

therefore had an independent, lawful justification to investigate that crime. Id.

An officer also has an independent, lawful justification to conduct a warrantless search for weapons when 

“the officer develops a reasonable suspicion, based upon specific and articulable facts, that [an individual] might pose 

an immediate threat of serious physical injury to the officer 

or to others then present.” Bates, 304 Or at 524. The “officersafety” doctrine is necessary because of the unique circumstances to which it applies:

“A police officer in the field frequently must make lifeor-death decisions in a matter of seconds. There may be 

little or no time in which to weigh the magnitude of a 

potential safety risk against the intrusiveness of protective 

measures. An officer must be allowed considerable latitude 

to take safety precautions in such situations. Our inquiry 

therefore is limited to whether the precautions taken were 

reasonable under the circumstances as they reasonably 

appeared at the time that the decision was made.”

Id. at 524-25.

In this case, the Court of Appeals concluded that 

the trooper’s weapons inquiry was unrelated to his traffic 

investigation and was not justified on either of those independent grounds. On review in this court, the state does 

not claim that the trooper’s inquiry was independently 

justified by reasonable suspicion that defendant was in 

violation of criminal laws pertaining to the possession of
424 State v. Jimenez

weapons.6 Nor does the state argue that the trooper’s inquiry 

in this case was justified by the officer-safety exception articulated in Bates. Rather, the state takes issue with the Court 

of Appeals’ preliminary conclusion that a weapons inquiry is 

an investigation of an unrelated matter.7

 The state argues 

that “questions about the presence of weapons are reasonably 

related to the safe investigation of a traffic violation.” (Italics 

in original.) The state contends that an officer’s inquiry 

about whether a detained individual has a weapon is reasonably related to a noncriminal traffic investigation because it 

ensures that the investigation of the traffic violation will be a 

safe investigation. As the state puts it, “Inquiries about weapons are not aimed at ‘launching’ a criminal investigation, as 

the Court of Appeals concluded, but rather [are] related to 

the processing of the traffic stop in a way that maintains the 

integrity of the safety of those involved.”

For reasons we will explain, we agree with the state 

that, in appropriate circumstances, an officer’s safety concerns may make the officer’s actions, including questioning 

about weapons, reasonably related and necessary to effectuate a traffic stop. The state’s argument, however, is that, 

regardless of whether an officer reasonably perceives an 

articulable danger, the officer always may inquire about 

weapons because “[t]he inherent dangers to an officer in a 

traffic stop are undeniable.” In support of that position, the 

state cites a United States Supreme Court case, Arizona v. 

Johnson, 555 US 323, 330, 129 S Ct 781, 172 L Ed 2d 694 

(2009), for two propositions: first, that “traffic stops are 

‘especially fraught with danger to police officers,’” Johnson, 

6 Several criminal statutes proscribe the possession of firearms and other 

weapons. For example, ORS 166.240 prohibits any person, except those provided 

in subsection (2), from carrying concealed weapons. ORS 166.250 prohibits the 

unlawful possession of a firearm. ORS 166.270 prohibits possession, ownership, 

or control of a firearm by any person who has been convicted of a felony.

7 As noted, the state did not argue in the trial court or the Court of Appeals 

that the trooper’s inquiry occurred during an “unavoidable lull” in the traffic 

investigation. In this court, the state assumes that the trooper’s inquiry did not 

measurably extend the duration of the traffic stop, but does not contend that that 

fact alone permitted the trooper’s inquiry. We therefore do not consider or decide 

the factual validity or legal significance of the state’s assumption, nor do we consider or decide whether an officer’s inquiries made during the pendency of a valid 

seizure implicate Article I, section 9. See Watson, 353 Or at 784 n 18 (reserving 

same issue).
Cite as 357 Or 417 (2015) 425

555 US at 330 (citing Michigan v. Long, 463 US 1032, 1047, 

103 S Ct 3469, 77 L Ed 2d 1201 (1983)); and second, that

“‘[t]he risk of harm to both the police and the occupants [of 

a stopped vehicle] is minimized *** if the officers routinely 

exercise unquestioned command of the situation.’” Id. (citing 

Maryland v. Wilson, 519 US 408, 414, 117 S Ct 882, 137 L Ed

2d 41 (1997)). In Long, the Court cited one study that indicated that approximately 30 percent of police shootings 

occurred when a police officer approached a suspect seated 

in an automobile. 463 US at 1048 n 13. In Wilson, the Court 

cited a report by the Federal Bureau of Investigation that 

showed that in 1994 alone, there were 5,762 officer assaults 

and 11 officers killed during traffic pursuits and stops. 519 

US at 413.

The state does not ask that we take judicial notice of 

those statistics, nor does it suggest another basis on which we 

can conclude that Portland police officers face equally dangerous risks when they patrol its streets. Furthermore, the statistics cited by the Court do not indicate the number of stops 

in which officers were assaulted by pedestrians,8

 nor do they 

include the total number of stops that the officers conducted 

or the number of stops that the officers conducted without 

8 Recognizing that the stops at issue in Johnson, Long, and Wilson were stops 

of motorists and not of pedestrians, the state asserts, in a footnote, that “parallel 

dangers inhere to officers stopping a pedestrian for a traffic violation,” citing 

Maryland v. Buie, 494 US 325, 334, 110 S Ct 1093, 108 L Ed 2d 276 (1990), for 

that proposition. Buie does not convince us that the United States Supreme Court 

would consider the dangers that police officers face in encounters with motorists to be equivalent to those they face in encounters with pedestrians. In Buie,

police officers relied on safety concerns to conduct an in-home search, and the 

state argued for a rule permitting such searches without requiring that there be 

an articulable reasonable suspicion of danger. The state asserted that “[o]fficers 

facing the life threatening situation of arresting a violent criminal in the home 

should not be forced to pause and ponder the legal subtleties associated with a 

quantum of proof analysis.” Id. at 334 n 2. Relying on its decision in Terry v. Ohio, 

392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), the Court rejected the state’s 

argument. The Court explained:

“[D]espite the danger that inheres in on-the-street encounters and the need 

for police to act quickly for their own safety, the Court in Terry did not adopt a 

bright-line rule authorizing frisks for weapons in all confrontational encounters. Even in high crime areas, where the possibility that any given individual is armed is significant, Terry requires reasonable, individualized suspicion before a frisk for weapons can be conducted. That approach is applied to 

the protective sweep of a house.”

Id.
426 State v. Jimenez

incident.9 We are therefore unwilling to base our decision in 

this case on the “legislative facts” to which the state points 

us, see State v. Lawson/James, 352 Or 724, 740, 291 P3d 673 

(2012) (court may take judicial notice of “legislative facts” to 

assist court in deciding legal issue), or on the conclusions that 

the Supreme Court reached based on those facts.

When an officer does not reasonably perceive a 

danger, we will not presume that such danger nevertheless exists or that the officer’s inquiry about weapons would 

address such danger. When an officer does not reasonably 

suspect that the officer’s safety or the safety of the public 

is threatened, safety concerns do not provide a connection 

between the officer’s traffic and weapons investigations, and 

therefore, the two investigations are not reasonably related 

under Watson.

Our conclusion that Article I, section 9, does not permit a routine weapons inquiry whenever an officer makes a 

traffic stop answers the state’s argument for a per se rule.10

However, the parties’ arguments do raise another question:

When an officer stops an individual to conduct a traffic 

investigation and does have cognizable safety concerns, 

does Article I, section 9, preclude the officer from asking the 

detained individual about weapons?

90 In his dissent in Wilson, Justice Stevens observed that “the number of 

stops in which an officer is actually at risk is dwarfed by the far greater number 

of routine stops.” 519 US at 418 (Stevens, J., dissenting). In this case, amici curiae

call our attention to a 2001 study analyzing the number of incidents of violence 

during traffic stops in relation to the millions of routine traffic stops that occur 

annually. According to the study, on average over a ten-year period, “the risk 

of homicide to a police officer during a traffic encounter was one in 6.7 million” 

stops and “the risk of assault to a police officer was one in 10,256 stops.” Illya D. 

Lichtenberg and Alisa Smith, How Dangerous Are Routine Police-Citizen Traffic 

Stops? A Research Note, 29 J Crim Just 419, 420 (2001). Amici caution against 

a per se expansion of police powers based on anecdotal evidence of dangers to 

police officers in the absence of scientific data supporting a need for wider police 

latitude. 

10 That conclusion also answers the state’s alternative argument that, even if 

an officer’s weapons inquiry is not always reasonably related to a traffic investigation, it is always “reasonable” under Article I, section 9, and therefore valid. The 

state posits that all weapons inquiries are constitutionally “reasonable” because 

they are brief, minimally invasive, and serve to protect officer safety. Because 

the state’s alternative argument depends on a conclusion that we reject—that 

a weapons inquiry invariably serves to protect officer safety—we do not find it 

necessary to consider the legal framework for which the state argues or its application in this case.
Cite as 357 Or 417 (2015) 427

The court answered that question affirmatively 

in State v. Amaya, 336 Or 616, 631, 89 P3d 1163 (2004),

explaining that an officer who has temporarily restrained 

an individual’s liberty and “seized” the individual under 

Article I, section 9, may make inquiries based on the officer’s “reasonable suspicion that [the detained individual] 

pose[s] an immediate threat of serious injury” to the officer 

under Bates. The Court of Appeals applied that principle in 

this case, but concluded that the trooper’s safety concerns 

did not meet the Bates standard. Jimenez, 263 Or App at 

161. In reaching that conclusion, the Court of Appeals compared the facts in this case to the facts that the Supreme 

Court held sufficient to satisfy the Bates standard and justify a police officer’s precautionary patdown of the defendant 

in Miglavs. Id. at 159 (citing Miglavs, 337 Or at 13). The 

Court of Appeals noted that, in this case, the encounter had 

occurred at mid-day and at a busy commercial intersection, 

whereas in Miglavs, the encounter had occurred at a late 

hour and in a darkened area where “[h]igh crime areas 

take on significance.” Id. The court also explained that, in 

Miglavs, the defendant’s clothing had created reasonable 

officer-safety concerns, not because it announced some possible gang affiliation, but because the defendant’s shirt bore 

the name of what the officer knew to be a local gang, and 

one of the defendant’s companions had what the officer recognized as a gang tattoo. Id. at 160. Those circumstances 

were not present in this case.11 Consequently, the Court of 

Appeals reasoned that, under Bates and Miglavs, the circumstances known to the trooper were insufficient to create 

a reasonable suspicion that defendant presented a risk to 

the trooper’s safety. Id. at 161. The state does not quarrel 

with that conclusion, and neither do we. Because the trooper 

did not have sufficient information to identify defendant as 

a gang member or a person who might be carrying a weapon 

for other reasons, the circumstances present in this case 

11 The Court of Appeals also declined to consider the bagginess of defendant’s 

clothing, reasoning that the trooper had developed a concern about the nature 

of defendant’s clothing only after he had learned, as a result of his inquiry, that 

defendant had a gun. Jimenez, 263 Or App at 161. It is true that, when the trooper 

was asked to explain why he put defendant in handcuffs, the trooper focused on 

the fact that defendant’s clothes were big and baggy and could contain more than 

one firearm. However, we do not read that exchange to mean that the officer had 

not observed the baggy nature of defendant’s clothing earlier in the encounter.
428 State v. Jimenez

were not sufficiently particularized to justify a search or 

patdown search under Bates and Miglavs.

That does not mean, however, that the trooper’s 

weapons inquiry was not reasonably related to and reasonably necessary to effectuate his traffic investigation, as 

Watson requires in this context.12 In Watson, the officer had 

probable cause to believe that the defendant motorist had 

committed a traffic violation and had authority to stop and 

seize the defendant. 353 Or at 781. Therefore, the officer 

acted within constitutional bounds when he investigated the 

traffic offense. The officer also acted within constitutional 

bounds when he requested the motorist’s license and verified 

his driving privileges, because those actions were reasonably 

related to his investigation of the traffic violation and reasonably necessary to effectuate it. Id. at 785. Under that reasoning, the question presented in this case is not limited to 

whether the particularity requirements of Bates and Miglavs

were met. The trooper did not search defendant or conduct 

a precautionary patdown search. Instead, the trooper asked 

defendant whether he had any weapons on him. As the state 

presents it, the question before us is whether the trooper’s 

inquiry was reasonably related to his traffic investigation 

and reasonably necessary to effectuate it.

In considering that question, we are cognizant that, 

although we cannot precisely determine the number of individuals who have guns and use them to assault officers who 

stop and detain them, such assaults do in fact occur and the 

resulting harm has been and can be tragic. Although Article I,

section 9, does not permit a blanket assumption that all 

encounters between police officers and detained individuals 

pose dangers that permit routine weapons inquiries, it also 

does not per se preclude all such inquiries. When an officer 

is legally conducting a traffic investigation, the officer is performing an official duty, and Article I, section 9, does not foreclose reasonable steps necessary to do so in safety. Although 

the particularity requirements of Bates and Miglavs must 

12 In Amaya, the court clarified that “some encounters between a police officer and a citizen are ‘mere conversation,’ involving no restraint on [a] citizen’s 

liberty,” and that such noncoercive encounters are not “seizures” under Article I, 

section 9. 336 Or at 626. In this case, we address the constitutionality of a weapons inquiry in the context of an acknowledged seizure of defendant.
Cite as 357 Or 417 (2015) 429

be met before an officer may conduct a search or a patdown 

search for weapons, those requirements do not apply when an 

officer has seized an individual and has a constitutional basis 

to continue to temporarily detain and question him or her. 

In that circumstance, if the officer’s weapons inquiry is reasonably related to and reasonably necessary to effectuate the 

officer’s traffic investigation, then, under Watson, it is lawful.

For a weapons inquiry conducted in the course of a 

traffic investigation to be reasonably related to that investigation and reasonably necessary to effectuate it, an officer 

must have reasonable, circumstance-specific concerns for 

the officer’s safety or the safety of other persons who are 

present. To justify an officer’s weapons inquiry, the officer’s safety concerns need not arise from facts particular 

to the detained individual; they can arise from the totality 

of the circumstances that the officer faces. However, if the 

officer does not have at least a circumstance-specific safety 

concern, then the officer’s weapons inquiry has no logical 

relationship to the traffic investigation. And, if the officer’s 

circumstance-specific safety concerns are not reasonable, 

then an officer who acts on those concerns violates Article I, 

section 9, which protects the people from an “unreasonable 

search, or seizure.”13

The remaining question is whether the trooper’s 

inquiry in this case met that standard. Again, the trooper 

was alone in a high crime area where recent gang activity had occurred. The trooper observed that defendant was 

wearing an “oversized” or “puffy” jacket over a “hoodie 

sweatshirt,” “oversized baggy gray pants,” and “white tennis shoes.” Defendant also was carrying what the trooper 

thought could be a green lanyard. Although the trooper was 

not certain that defendant was a gang member, the trooper 

also knew that gang members often will wear such pants 

13 ORS 810.410(3)(d) provides that a police officer “[m]ay make an inquiry 

to ensure the safety of the officer, the person stopped or other persons present, 

including an inquiry regarding the presence of weapons.” However, in this case, 

the issue that the lower courts addressed and that the parties raise on review is a 

constitutional one. See Amaya, 336 Or at 631 (considering whether officer’s valid 

inquiry under ORS 810.410(3)(d) nevertheless violated Article I, section 9). The 

parties do not address how our resolution of the constitutional issue that this case 

presents may affect the application of ORS 810.410(3)(d) in this or future cases, 

and we also decline to conduct such an analysis.
430 State v. Jimenez

and shoes, that the color green is associated with a specific 

gang, and that baggy clothing can conceal the presence of 

weapons. Given those facts, the trooper may have been concerned for his safety or the safety of others and may have 

determined that a weapons inquiry was a reasonable step 

to address those concerns. But we cannot presume that the 

trooper actually had those concerns or made that determination. To demonstrate that an officer’s weapons inquiry is 

reasonably related to a traffic investigation and reasonably 

necessary to effectuate it, the state must present evidence 

that (1) the officer perceived a circumstance-specific danger 

and decided that an inquiry about weapons was necessary 

to address that danger; and (2) the officer’s perception and 

decision were objectively reasonable. To determine whether 

that standard is met, a court must consider not only the factual circumstances that existed when the officer acted, but 

also the officer’s articulation of the danger that the officer 

perceived and the reason for the officer’s inquiry.

In this case, the trooper testified that when he got 

out of his car to talk with defendant, he conversed with him 

without asking about weapons and continued his conversation long enough to obtain defendant’s admission that he 

knew he had crossed the street against a “Don’t Walk” signal. The trooper then asked defendant if he had any weapons. The trooper testified that he did so because he asks the 

same question “with all contacts on the street with pedestrians, just for—obviously for officer safety reasons,” and that 

“[i]t makes [it] a lot easier if we can stand and have a normal conversation if there’s no weapons on the person.”

On that record, we conclude that the state did not 

meet its burden to demonstrate that the officer’s weapons 

inquiry was reasonably related to his traffic investigation 

and reasonably necessary to effectuate it. First, for reasons 

we have expressed, Article I, section 9, does not permit officers to make routine weapons inquiries in all traffic investigations. Second, the trooper explained that he routinely 

asks questions about weapons to make it easier to have a 

“normal conversation,” yet, in this case, the trooper made 

the weapons inquiry after he already had engaged in “normal conversation” with defendant. Although the facts known 

to the trooper at the time that he inquired about weapons 
Cite as 357 Or 417 (2015) 431

might have given rise to reasonable, circumstance-specific 

safety concerns, the trooper did not so testify.

An officer who stops an individual to conduct a 

traffic investigation and who has reasonable, circumstancespecific concerns for his or her safety is not required to ask, 

as the first question in the traffic investigation, whether the 

detained individual has a weapon. An officer may have reasonable safety concerns from the outset of a traffic investigation but decide, for various reasons, not to act on those 

concerns immediately. Or an officer may reevaluate the significance of existing facts or learn new ones that may give 

rise to reasonable safety concerns and reasonably necessitate 

a weapons inquiry. But we cannot infer those facts in every 

case or in this case in particular. Here, the trooper did not 

testify, for instance, that defendant’s demeanor or motions 

during the jaywalking investigation gave rise to safety concerns; or that, as he talked with defendant, the trooper considered the setting and the potential for gang violence and 

decided that, given the tasks that remained, he had safety 

concerns that could be addressed by asking about weapons.14

On this record, the state did not establish that the trooper’s 

weapons inquiry was reasonably related to his traffic investigation and reasonably necessary to effectuate it.15

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.

14 The trooper did testify that, after he learned that defendant had a gun and 

that defendant was indeed a gang member, he became concerned for his safety 

and the safety of others in the area. More specifically, the trooper testified that 

after he handcuffed defendant, he noticed that a number of people had come to 

the bus stop and he was afraid of being attacked or caught in crossfire. However, 

the record does not indicate that those safety concerns were present when the 

trooper made his weapons inquiry.

15 For similar reasons, we also reject the state’s argument that, even if the 

trooper’s inquiry was unrelated to his jaywalking investigation, it was nevertheless “reasonable” under Article I, section 9. The state posits that the trooper’s

inquiry was constitutionally “reasonable” because “[i]t was a single question asked 

at the outset of the traffic stop, and for the purpose of protecting the trooper’s

safety.” The state’s argument depends on a conclusion that the trooper made his 

inquiry based on constitutionally valid safety concerns. However, the record in 

this case does not support that conclusion, and we therefore do not find it necessary to consider the alternative legal framework for which the state argues or its 

application in this case.
432 State v. Jimenez

KISTLER, J., concurring.

During a traffic stop, an officer asked defendant if 

he had a weapon. The majority holds that the officer’s question was not reasonably related to the stop and, as a result, 

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

concur in the majority’s opinion but write separately for two 

reasons. First, whether the officer’s question was reasonably 

related to the stop matters in this case because, if it were 

not, then asking the question extended the stop in violation 

of the Article I, section 9. See State v. Rodgers/Kirkeby, 347 

Or 610, 227 P3d 695 (2010) (considering a similar issue). 

Second, the problem in this case is not that the evidence 

was insufficient to justify the officer’s question. Rather, the 

problem, as I understand the majority opinion, is that the 

officer testified that he asks the same question for officersafety reasons in every pedestrian stop without regard to 

the circumstances of stop, and he did not explain why the 

circumstances of this stop caused him to be concerned for 

his or anyone else’s safety. With that understanding, I concur in the majority’s opinion.

Throughout this litigation, defendant has argued 

that the officer’s question unconstitutionally extended the 

stop. The state, for its part, does not dispute that, as a temporal matter, the question did extend the stop, and it also 

does not dispute that extending a stop beyond the time reasonably necessary to complete it violates Article I, section 9. 

See Rodgers/Kirkeby, 347 Or at 627-28 (explaining that the 

officers’ questions in both cases extended the stops because 

their questions occurred after the traffic stops had been 

completed, were unrelated to the stop, and were not independently justified).1

 The state argues, however, that the officer’s question about a weapon was reasonably related to the 

stop and, as a result, did not extend it. Specifically, relying 

1 The Court of Appeals observed that Rodgers/Kirkeby is ambiguous as to 

when an unrelated question that occurs during a stop will extend the stop in 

violation of Article I, section 9. State v. Jimenez, 263 Or App 150, 154-55, 326 P3d 

1222 (2014). As I read the opinion in Rodgers/Kirkeby, it holds unsurprisingly 

that a stop will continue as long as the officer exercises authority over the suspect 

to detain him or her. 347 Or at 628. It also holds that, if an officer asks a question 

during a stop that is unrelated to the stop and thus extends the stop beyond the 

time reasonably necessary to complete it, extending the stop violates Article I, 

section 9. Id. at 627-28.
Cite as 357 Or 417 (2015) 433

on State v. Watson, 353 Or 768, 305 P3d 94 (2013), the state 

reasons that questions that are reasonably related to a stop, 

by definition, do not extend the stop in violation of Article I, 

section 9. See id. at 779-80 (describing reasoning in State v. 

Fair, 353 Or 588, 614, 302 P3d 417 (2013)). Rather, questions 

that are reasonably related to a stop are part and parcel of 

the stop.2

 It follows that this case does not require the court 

to decide, and the majority does not decide, whether unrelated questions that occur during the course of a stop but 

that do not extend it—unrelated questions that, as the Court 

of Appeals puts it, occur during an “unavoidable lull”—are 

permissible under Article I, section 9. Rather, all that the 

majority decides is whether the officer’s question was “reasonably related” to the stop. And, because the question was 

not reasonably related, it extended the stop in violation of 

Article I, section 9. See Rodgers/Kirkeby, 347 Or at 627-28.

In considering whether the officer’s question was 

reasonably related to the stop, I agree with the majority that 

questions regarding weapons that occur during a stop are 

not always reasonably related to the stop. Most stops end 

without incident, and many stops do not provide a basis for 

asking about weapons. In saying that, I do not discount the 

risks that officers face in approaching a stopped car whose 

occupants are unknown or in stopping pedestrians who 

may, for all the officer knows, pose a risk of harm. After all, 

a stop is an exercise of coercive authority, and a person who 

is stopped may respond aggressively (and unexpectedly) for 

that reason alone. The risk increases when the stop occurs at 

night, in an isolated place, or in a high-crime area. However, 

to say, as the state does, that every stop poses a sufficient 

risk of injury to ask about weapons without regard to the 

circumstances is a proposition that is difficult to sustain.

I also agree with the majority that an officer’s 

safety concerns need not be sufficient to justify a search for 

weapons under State v. Bates, 304 Or 519, 524, 747 P2d 991 

2 Of course, questions unrelated to a stop are permissible if the officer reasonably suspects that the suspect has committed another offense and asks about 

that offense. See Watson, 353 Or at 785. Additionally, if the encounter does not 

rise to the level of a stop, no justification is needed for an “unrelated” question. 

See State v. Ashbaugh, 349 Or 297, 308, 244 P3d 360 (2010) (no Article I, section 9,

implications for “mere conversation”).
434 State v. Jimenez

(1987), before an officer can ask a question about weapons. A 

question is not a search. To require the same justification for 

both, as defendant would, fails to recognize the difference. 

The issue accordingly reduces to when the circumstances 

of a particular stop will pose a sufficient risk of harm to 

the officer or others present for the officer to conclude that 

asking about weapons is reasonably related to the stop. The 

answer to that issue will vary with the facts and circumstances of each case. Ordinarily, a traffic stop on a freeway 

in broad daylight will not provide a reason for an officer 

to inquire, as part of the stop, about weapons. However, a 

driver may make a furtive gesture, reach under the seat, or 

pull over slowly so that the driver or a passenger can secrete 

something. See State v. Morgan, 348 Or 283, 290, 230 P3d 

928 (2010) (explaining that the officer reasonably seized and 

searched the passenger’s purse when she unexpectedly got 

out of the car, began acting nervous, and reached into her 

purse). Those circumstances can justify, at a minimum, a 

question regarding weapons when the officer explains what 

it was about the driver’s or passenger’s behavior that was 

concerning. See id.

In this case, the officer did not stop defendant while 

he was driving on the freeway. Rather, defendant was a 

pedestrian, and the stop occurred in a part of Portland—

SE 122nd and Division—that the officer testified is “a high 

crime area [where] there has been—recently over the past, 

there’s been a lot of gang activity,” an assessment that defendant himself confirmed.3

 Additionally, defendant’s clothing 

was “indicative” of gang affiliation, although the officer could 

not say “for sure” that that was case.4

 Finally, the baggy 

clothes that defendant was wearing were the sort of clothes 

in which weapons could be “easily concealed,” and defendant 

had taken steps to avoid the officer when he pulled his patrol 

3 When asked why he was carrying a gun, defendant replied that it “was for 

protection.” When asked why he needed protection, defendant said “something 

to the effect of the streets are very dangerous or the streets are crazy.” Those 

statements are relevant, not because the officer relied on them in assessing the 

danger that the area posed, but because defendant’s own statements confirmed 

the officer’s independent assessment of the danger.

4 The officer explained that he knew that “gang members often will wear a 

gray baggy pant and the white shoes,” as defendant was, and he saw “what [he] 

thought was a green lanyard, [and he] knew that also to be indicative of some 

faction of the Bloods gang.”
Cite as 357 Or 417 (2015) 435

car into a gas station next to the bus stop where defendant 

was sitting.5

In my view, those circumstances were sufficient to 

warrant asking defendant if he had a weapon and did not 

depend on impermissible stereotyping.6

 The majority does 

not hold otherwise. Rather, as I read its opinion, its holding rests on the absence of any explanation from the officer 

why the circumstances of this particular stop raised a safety 

concern and why the officer asked about weapons when he 

did. On that issue, the officer testified only that he asked 

defendant “if he had any weapons on him, which I do for all 

contacts on the street with pedestrians, just for—obviously 

officer safety reasons.”

The officer’s testimony is lacking for two reasons. 

First, not only did the officer not explain why the circumstances of this stop concerned him, but he explained that he 

always asks about weapons in every pedestrian stop without 

regard to the circumstances of the stop. Second, the officer 

testified that he asked the question “obviously for officer 

safety reasons.” “Officer safety” explains the nature of the 

officer’s concern. It does not identify the facts that, in his 

mind, gave rise to that concern.

As I read the majority’s opinion, it holds that, for a 

question regarding weapons to be reasonably related to a 

stop, an officer must explain why the facts or circumstances 

surrounding a stop caused the officer to have reasonable 

concerns for the officer’s or other persons’ safety.7

 I do not 

5 The officer testified that he saw defendant cross an intersection “on the 

Don’t Walk sign,” turned his car around, and approached a bus stop where defendant was sitting after having crossed the street illegally. The officer testified 

that, “[w]hen I pulled in [to the gas station next to the bus stop], he looked over 

at me, and immediately got up and began to walk away.”

6 Some commentators have noted that the line between profiling and reasonable officer safety concerns can be a fine one. See Caleb Mason, Jay-Z’s 99 

Problems, Verse 2: A Close Reading with Fourth Amendment Guidance for Cops 

and Perps, 56 St Louis U LJ 567, 577 (2012) (discussing officer’s question about 

weapons). In my view, the facts that the officer described in this case reasonably 

gave rise to legitimate concerns for officer safety. It may be that lesser facts also 

would be sufficient to justify a question concerning weapons, but this case provides no occasion to decide that issue.

7 In Watson, the court explained that, as a statutory matter, a question must 

be reasonably related to the stop and reasonably necessary to carry it out. 353 

Or at 777. If a question about weapons is reasonably related to a stop—if the 

facts give rise to a sufficient safety concern to ask about weapons—then it almost 
436 State v. Jimenez

disagree with that requirement, and I cannot say that, in 

light of the way that the parties argued this case before the 

trial court, the trial court’s implicit factual findings provide 

that link. On that basis, I concur in the majority’s opinion.

Linder and Landau, JJ., join in this concurring 

opinion.

automatically follows that the question also will be reasonably necessary to carrying out the stop.