Under Oregon search and seizure law, the nature of police contact with an individual is determined by the amount of authority that the police put on the individual. Such contact can be “mere conversation,” a “show of authority,” or an “arrest.” While “mere conversation” requires very little by way of constitutional justification for the stop, a “show of authority” and an “arrest” require progressively higher justification. Naturally, after the fact the police will want to characterize a stop as less intrusive while the person may characterize it as more restrictive. Interestingly the test to determine the level of the contact is “Would a reasonable person believe that the law enforcement officer intentionally and significantly restricted, interfered with, or otherwise deprived the individual of his or her liberty or freedom of movement.” That is, does the individual (not the officer) believe that the contact is something more than a conversation and has risen to a show of authority or a full arrest? State v. Backstrand, 354 Or 392 (2013).
At Barry W. Engle PC we are currently arguing that, in police contact with people of color, that the level of contact is heightened by the shadow of racial inequity and institutional racism. That is, that it is reasonable for a person of color to find police contact to be more coercive just because of the threat of racism, bias, police action against people of color, and the threat of being shot and killed by an officer who has racially profiled the individual he has stopped. That is, it might be less reasonable to consider a contact with a white person in Lake Oswego to be show of authority or an arrest than in the same stop of a Black or Brown person in Portland. Also, we are currently arguing that the well known factors that elevate a contact when police are contacting people of color: calling for backup, multiple cars and cops, hands on guns, “keep your hands where I can see them,” etc elevate what could be a conversation in other circumstances. Because of the heightened danger to people of color, we are arguing, on a case by case basis, that higher justification is needed.
If you have been contacted by the police and are now facing a criminal charge, hire a law firm that gets it. Contact Barry W. Engle PC. https://benglelegal.com/