Police Can’t Ask If a Person is Armed Without Cause, Says Oregon Supreme Court

By Dean Weingarten via TheTruthAboutGuns.com

The Oregon Supreme Court has ruled that generic “officer safety” is not sufficient justification to ask individuals if they are armed. In a ruling this week, the court found that police officers may not simply ask someone if they have a weapon without sufficient probable cause . . .

From the ruling in State v. Jimenez (pdf):

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 Constitution 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.

Here is the relevant part of the Oregon Constitution:

“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.”

The case is similar to one that was settled in the Arizona Supreme Court in August of 2014. From aprevious Gun Watch article:

In the case of State of Arizona v. Johnathon Bernard Serna, the court makes it clear that two criteria must be met for a forced stop and frisk. First, the officer must have a reasonably articulable suspicion of criminal activity. Then, they must also have reason to believe the person is armed and dangerous. Both conditions must be met. Officers may ask people to consent to be disarmed; but the stop is not consensual if a reasonable person would believe that they would be allowed to leave the scene.

The Florida Supreme Court has similarly ruled that an anonymous tip that someone is armed isn’t sufficient reason so stop and search someone for weapons. From  Florida v. J.L. (2000) 529 U.S. 266:

Finally, the Court dismissed the state’s argument for a blanket “firearm exception” to the Terry reasonable suspicion requirement. Under such an exception, an undetailed and uncorroborated “tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.” (Id. at 272.) The Court reasoned that this would allow wrongdoers to engage in harassment of other individuals by falsely asserting that they were carrying firearms. (Ibid.) Moreover, there is no logical way to limit any such public policy exception merely to tips involving firearms; any exception would quickly be expanded to drug-related tips and beyond to any tip reporting dangerous or threatening criminal behavior. (Id. at 272-73.)

Perhaps a slight gain in the restoration of Second Amendment rights is occurring in Fourth Amendment jurisprudence.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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