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Well, it doesn't matter what you think.

Imagine the following scenario: You and another person are passengers in your buddy's car as he drives across town. Your buddy is suddenly pulled over by the police. It turns out his tags were expired. The police ask if you have any outstanding warrants for your arrest. When you say no, the police officer asks you for ID which you produce and which he returns after writing down your information. The police officer returns to his police car while the three of you wait in your friend's truck. When the officer returns he asks your friend and the other passenger to get out of the car. He cuffs, searches and arrests the other passenger and gives your friend a ticket for driving while suspended. He is now going to impound and tow the car so he asks you to get out of the vehicle as well. You do as he asks. The officer then asks you if you have any weapons on you . When you tell him no he responds by asking if he can search you. At no point in this encounter has the officer told you that you were free to leave.

Most people would feel that they had, at some point in this encounter been "stopped" by the police. Most people that is except the judges who rule on such matters in a constitutional sense. Continuing what is now a long line of depressing cases after a 2010 sea change in the court's analysis of when a person is "stopped or seized in a constitutional sense," the Oregon Court of Appeals held today that the passenger above was not "stopped" by the police

Before 2010 art of the analysis involved determining whether or not in your encounter with the police you felt you were free to leave. No more.

Now apparently the only thing that matters is whether the officer has used physical force to restrain you or manifested a "show of authority" that intentionally and significantly restricts your liberty. And yet still many people would consider that their liberty had been significantly interfered under the facts outlined above. But again, no, not according to the Oregon Court of Appeals who happily concluded that just such a scenario was not a "constitutionally significant" restriction of liberty.

While paying lip service to the notion that the issue can only be decided based upon an examination of the "totality of the circumstances" at hand, the court continues to blithely disregard the implicit show of authority inherent in most of today's police and citizen encounters. Particularly with regard to the seemingly endless and shameful parade of Portland Police officers using extreme, excessive and unjustifiable force against people, one wonders how free we are to even ask the simple question "Am I free to leave?...

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Kohlmetz, Steen & Hanrahan, P.C.

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Portland, OR 97201
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