Reexamining Reasonable Suspicion

'''Does ''Terry'' Really Apply to Completed Misdemeanors?'''

'''Does ''Terry'' Really Apply to Completed Misdemeanors?'''

Is reasonable suspicion always enough? In the decades since the United States Supreme Court decided ''Terry v. Ohio'', Oregon courts have held that so long as police reasonably suspect that a person is involved in criminal activity, Article 1, section 9, of the Oregon Constitution permits police to stop that person. The severity and recent nature of the crime suspected do not matter—a crime is a crime in Oregon.  

Is reasonable suspicion always enough? In the decades since the United States Supreme Court decided ''Terry v. Ohio'', Oregon courts have held that so long as police reasonably suspect that a person is involved in criminal activity, Article 1, section 9, of the Oregon Constitution permits police to stop that person. The severity and recent nature of the crime suspected do not matter—a crime is a crime in Oregon.  

However, not every state nor every federal jurisdiction has interpreted ''Terry'' so broadly, and arguably, neither should we. This article will explain what the United States Supreme Court and the federal circuit courts have held regarding the permissible bases for Terry stops, and how to raise challenges to reasonable suspicion stops for completed misdemeanors under the Fourth Amendment. Furthermore, this article will suggest that Oregon has not directly confronted the issue of whether reasonable suspicion of a completed misdemeanor justifies the same intrusion into a person’s liberty as suspicion of more severe or ongoing crimes, and that we have drawn our reasonable suspicion stop parameters too broadly.

However, not every state nor every federal jurisdiction has interpreted ''Terry'' so broadly, and arguably, neither should we. This article will explain what the United States Supreme Court and the federal circuit courts have held regarding the permissible bases for Terry stops, and how to raise challenges to reasonable suspicion stops for completed misdemeanors under the Fourth Amendment. Furthermore, this article will suggest that Oregon has not directly confronted the issue of whether reasonable suspicion of a completed misdemeanor justifies the same intrusion into a person’s liberty as suspicion of more severe or ongoing crimes, and that we have drawn our reasonable suspicion stop parameters too broadly.

A reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g. drunken and/or reckless driving), and any risk of escalation (e.g. disorderly conduct, assault, domestic violence). An assessment of the ‘public safety’ factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a ''Terry'' stop, along with the possibility that police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.<ref>''Grigg'', 498 F3d at 1081.</ref>

A reviewing court must consider the nature of the misdemeanor offense in question, with particular attention to the potential for ongoing or repeated danger (e.g. drunken and/or reckless driving), and any risk of escalation (e.g. disorderly conduct, assault, domestic violence). An assessment of the ‘public safety’ factor should be considered within the totality of the circumstances, when balancing the privacy interests at stake against the efficacy of a ''Terry'' stop, along with the possibility that police may have alternative means to identify the suspect or achieve the investigative purpose of the stop.<ref>''Grigg'', 498 F3d at 1081.</ref>

And, though the Oregon Supreme Court has never held that it is required, it is also arguable that Article 1, section 9, of the Oregon Constitution likewise limits the ability of police to stop a person for a minor crime. Balancing law enforcement interests against the personal interests of the defendant is consistent with Oregon’s exclusionary rule and not based on a deterrence rationale like the Fourth Amendment, but instead seeks to vindicate a defendant’s personal rights.<ref>''State v. Thompkin'', 341 OR 368, 143 P3d 530 (2006).</ref> Raising both state and federal constitutional arguments gives your client the best chances for suppression at trial and on appeal, and may help develop Oregon stop law consistently with the more protective approach taken under the Fourth Amendment.

And, though the Oregon Supreme Court has never held that it is required, it is also arguable that Article 1, section 9, of the Oregon Constitution likewise limits the ability of police to stop a person for a minor crime. Balancing law enforcement interests against the personal interests of the defendant is consistent with Oregon’s exclusionary rule and not based on a deterrence rationale like the Fourth Amendment, but instead seeks to vindicate a defendant’s personal rights.<ref>''State v. Thompkin'', 341 OR 368, 143 P3d 530 (2006).</ref> Raising both state and federal constitutional arguments gives your client the best chances for suppression at trial and on appeal, and may help develop Oregon stop law consistently with the more protective approach taken under the Fourth Amendment.

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{{wl-publish: 2014-02-08 13:51:21 -0800 | anewlincushing:Alice Newlin-Cushing }}

{{wl-publish: 2014-02-08 13:51:21 -0800 | anewlincushing:Alice Newlin-Cushing }}