§ 2.1 Introduction

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 2.1 INTRODUCTION

A stop is "a temporary restraint of a person's liberty by a peace officer lawfully present in any place." ORS 131.605(7). The purpose behind a stop is almost invariably for one of two reasons: to investigate someone suspected of committing a crime, see ORS 131.615(1), or to cite someone for committing a noncriminal violation, for example, a typical traffic stop, see ORS 810.410(3)(b). A frisk is "an external patting of a person's outer clothing." ORS 131.605(3). In this context, an officer conducts a frisk to determine whether a person temporarily detained is in possession of a weapon that could pose a danger to the officer or others. ORS 131.625(1).

In counterpoint, Article I, section 9, of the Oregon Constitution provides, "No law shall violate the right of the people to be secure in their persons . . . and effects, against unreasonable search, or seizure." A law enforcement officer's decision to stop or to frisk someone implicates, respectively, that person's rights to be free of unreasonable seizures (the stop) and unreasonable searches (the frisk). For the stop or frisk to be reasonable, and thus lawful, a law enforcement officer must have the requisite justification called for by statute and cases decided under the constitutional framework. Moreover, evidence directly obtained or derived from an unreasonable, thus unlawful, search or seizure of someone may be suppressed in the person's criminal prosecution to "restor[e] the parties to their position as if the state's officers had remained within the limits of their authority." State v. Davis, 295 Or 227, 237, 666 P2d 802 (1983). But see ORS 136.432 (limiting court's authority to suppress evidence). See generally ch 5 (remedies for unlawful search and seizure). Thus, the intersection of law enforcement officers' authority to stop and frisk a person and a person's constitutional rights to be free of unreasonable searches or seizures is a frequent subject of litigation in criminal cases.

§ 2.1-1 Scope of Chapter

This chapter discusses statutes and case law that govern stops and frisks—two significant interactions between law enforcement officers and citizens that, both statutorily and constitutionally, require justification. First, before shifting focus to state law, this chapter briefly describes the general scope and outlines of stops and frisks in the context of the Fourth Amendment to the United States Constitution. Then, the chapter explains that stops and frisks can take place...