The police state arrives in Oregon

"... in this day and age, requests for valid government issued identification are commonplace in ordinary dealings in society ..."

With those simple words, the Oregon Supreme Court has driven the final nail in the coffin of Oregon's constitutional protection against the unreasonable seizures of its citizens. The work begun in State of Oregon v. Ashbaugh in 2010 is now complete. In Ashbaugh, the Supreme Court rewrote the rules Oregon courts use to determine whether a person has been "stopped" or "seized" by police. That court overturned many years of prior analysis to hold that the crucial issue in determining whether the police had "stopped" a citizen was whether by word or force the officer manifested a show of authority that restricted the citizen's freedom of movement. Before Ashbaugh, this "reasonable person" test included a subjective component that took into account whether or not the person contacted by the police actually felt that their freedom or liberty was restricted during the encounter. The court in Ashbaugh reformulated the test, and Oregon's reasonable-person test now asks only whether a reasonable person would have felt that he or she was not free to leave.

The Backstrand opinion

On Thursday, Nov. 21, 2013, in State of Oregon v. Backstrand , the Oregon Supreme Court told us all that our objectively reasonable Oregonian would find it perfectly acceptable to be stopped on the street while going about our everyday business and forced to produce legally valid identification that the officer could take from us while he or she used it to check law enforcement database information on us. The scope of this decision and the subtlety by which it has been accomplished is breathtaking. We would venture a guess that the majority of Oregonians part ways with their aggregated doppelganger in that we do not feel it is a part of our normal daily lives to be stopped by the police for no reason at all and pressured by them to produce identification documents.

Police power

What would you say to some random stranger who approached you and demanded to see your "papers"? Now ask yourself what your response to the same demand from a police officer would be. We think many people might acquiesce to the latter and not the former. This highlights the inherently coercive nature of police interactions with everyday citizens. The very request for ID when made by a police officer is itself a sufficient show of authority to often override a person's otherwise natural inclination to say "no thanks." Ironically, it is the ever-growing security apparatus of the state that makes the encounter all the more coercive. The fact that ID checks are becoming more commonplace in our lives does not make them more socially acceptable, as the court states. To the contrary, it only serves to show the myriad and coercive ways government intrudes on our daily lives. Such intrusions should not be so blithely accepted by the courts when law enforcement is concerned.

First, we find unacceptable the courts position that a police officer's request or demand for identification does not "significantly interfere" with our freedom and liberty. Second, we find offensive the further holding that we have not been seized by the police when they take our identification papers from us and have us wait while our information is run through state and national government databases. The court must be aware that every contact with the police is documented and these now perfectly lawful identification checks themselves will become a part of a person's law enforcement database profile. "Well Mr. Johnson, what have you really been up to ... My computer shows three police contacts this year ..." Is this really an acceptable social interaction and nothing more? We think not.

Unreasonable seizure

Article 1, Section 9 of the Oregon Constitution has long provided that Oregonians shall be secure in their persons against unreasonable seizures. The legal test for when such a seizure has occurred remains whether or not there has been a significant and intentional interference with or deprivation of your liberty or freedom of movement. But as the Ashbaugh court simply erased consideration of how you may have felt about it, the Backstrand court has now told us all that it is a reasonable part of our everyday social intercourse to be stopped by police for almost any reason and forced to produce identification so that our information may be entered in and checked against law enforcement data.

In the context of citizen encounters with police, the Oregon Supreme Court has rendered the Oregon Constitution largely superfluous. The majority of criminal defense cases that arise in Oregon often involve a complex legal analysis of what seem relatively simple police-citizen encounters. As the trend to accept without question an increasing amount of police intrusion into our lives continues, it becomes ever more imperative that you consult with an experienced criminal defense lawyer who has the knowledge, skill and resources to keep abreast of this rapidly developing area of constitutional law.