The Oregon Supreme Court issued two unusual rulings in a pair of cases on January 10, 2013 that were pending before the Court. State v. Davis and State v. Lumpkinswere “affirmed by an equally divided court,” meaning that the original rulings were affirmed because the votes on the court were tied. This is a fairly rare occurrence and happens only when the seven member Court is short one member, creating the possibility of a tie vote.
Both Davis and Lumpkins dealt with the issue of whether or not the police could randomly run license plates from their computerized mobile data terminals to find criminal activity. These random license plate checks are a routine practice for almost all police agencies. The objective, as stated by the police, is to identify stolen vehicles, people who are driving while suspended and people who have outstanding warrants. In fact, the Portland Police and the Washington County Sheriff’s Office each have a special unit that uses license plate recognition technology. This technology allows the police to simply drive through a parking lot and run every plate automatically through DMV and the Law Enforcement Data System.
The attorneys for both Lumpkin and Davis moved to suppress all evidence gained in these stops based on random license plate checks. They advanced two arguments.
First, they argued that random license plate checks were searches that required a warrant or an exception to the warrant requirement under Article I, Section 9 of the Oregon Constitution and that these searches require probable cause or a reasonable suspicion that some violation of the law was occurring.
Second, they argued that these completely random searches violated the “privileges and immunities clause” of Article I, Section 20 of the Oregon Constitution. Both Davis and Lumpkin argued that by randomly and arbitrarily commencing a criminal investigation people were being singled out for investigation and treated differently from other members of the public. At the very least, they argued, the police should have some sort of systematic policy governing when license plates should be checked.
The ACLU filed a “friend of the court” brief. The ACLU pointed out that such practices raised grave concerns that people would be targeted by race or economic status. The police, they argued, could conduct these license plate checks simply because someone looked out of place or because their car looked like a “junker.” The ACLU argued that these checks need to be limited and controlled by some systematic policy in order to hold the police accountable if they used impermissible reasons for initiating a license plate check.
The State of Oregon argued that running a license plate is not a search and that people have no protected privacy interest in this information. Further, the State argued that there is no legal bar against a random license plate check and that there was no proof of any unequal treatment related to the random checks.
Both trial court judges in Davis and Lumpkin denied the Motions to Suppress. The Oregon Court of Appeals upheld the trial court rulings, although there was a dissenting opinion.
Because the Oregon Supreme Court could not produce a majority to affirm or reverse, the issue of the permissibility of random license plate checks remains unresolved. It may take several years for another case to rise from the trial court to the Supreme Court on appeal.
Until then, this issue will come up in Drug cases, DUII cases and all criminal cases which are based on a random license plate check.
As Portland criminal defense lawyers, we deal with many cases where the constitutionality of a traffic stop can be a critical issue. This is particularly true in cases involving drug charges and DUII. Mr. O’Rourke has been a Portland Oregon drug crimes defense lawyer since 1978.
By James F. O’Rourke Jr.
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