LEGAL BRIEFS People's Police Report #42

Appeals Court Overturns Black Man's Conviction
Citing Tension Between Police and African-Americans in Portland

On June 19, the Ninth Circuit Court of Appeals overturned the conviction of a black Portland man, Bennie Washington, who consented to being searched and having his car searched. Their decision is instructive of the ability of officers to question an individual for "investigative purposes" and when an an investigative stop becomes a "seizure."

In November 2004, Portland police officer Darrell Shaw (#28923) parked behind Washington, who was lawfully parked and sitting in his car downtown. The officer asked if he could search Washington. Shaw asked Washington to step out of the car and walk to the officer's patrol car in order to be searched. As Washington was getting out of his car, a second officer, Troy Pahlke (#34490), arrived.

Police uncovered a handgun and suspected drug paraphernalia. Washington was convicted of being a felon in possession of a firearm and sentenced to 70 months.

The Ninth Circuit concluded that Washington's initial consent to be searched was voluntary. However, subsequent events turned the encounter into a "seizure" under the Fourth Amendment when it became apparent to Washington that he was not free to leave or refuse the officers' request to search his car. Under such circumstances, Washington's consent was not voluntary.

There is a "seizure" under the Fourth Amendment, and extra police powers come into play, when a reasonable person, under the totality of the circumstances, would not feel free to terminate the encounter and leave. Under this standard, an officer may approach an individual and ask him or her questions, even ask for consent to search, without running afoul of the Fourth Amendment. When the person is in a car, it is also reasonable for the officer to request the person to get out of the car once they have consented to a search.

However, the Ninth Circuit identified several factors pointing to the reality that Washington did not feel free to terminate the encounter: (1) the two officers outnumbered him, they were larger than him, and it was late at night on a dark street; (2) they did not inform him he had a right to terminate the encounter; (3) Washington got out of the car with his hands raised; (4) the officers required him to place his hands on the patrol car and ordered him to keep looking forward; and (5) the "tension in Portland between the African-American community and police officers in Portland in light of recent shootings" of Kendra James (PPR #30) and James Jahar Perez (PPR #32). The Court also referred to pamphlets issued by Portland Police, which advise the public to follow an officer's directions and to comply with a search, as a factor causing Washington to believe he had to comply with the officer's requests. The pamphlet was issued in cooperation with the Albina Ministerial Alliance to try to reduce tensions between African-Americans and police officers. But, it had the opposite effect, contributing to an atmosphere of coercion (Portland Tribune, July 6 and court documents).

Supreme Court Rules Police Ramming Vehicle in High-Speed Chase is "Reasonable Force"

On April 29, the U.S. Supreme Court ruled that it is an acceptable use of force to run a vehicle off the road during a high-speed chase, even if the driver of the fleeing car is seriously injured as a result.

In 2001, 19-year old Victor Harris was speeding in a 55-mph zone and driving with a suspended license in Georgia. He refused to pull over and a chase ensued, with speeds of up to 100 mph. Harris said he was scared when officers turned on their sirens and he did not want his car impounded.

The pursuing officer received permission to perform a "Precision Intervention Technique," where a patrol car rams the fleeing vehicle from behind causing it to spin out of control. As a result, Harris lost control of the car and went down an embankment, crashing into a pole. Harris ended up as a paraplegic.

Generally, an officer must show that a suspect poses a "significant threat of death or serious physical injury to the officer or others" before using deadly force, even the use of deadly force with a vehicle. The lower court ruled in the teenager's favor, stating that "The use of deadly force is not 'reasonable' in a high-speed chase based only on a speeding violation and traffic infractions where there was little, if any, threat to pedestrians or other motorists as the roads were mostly empty and Harris remained in control of his vehicle."

In an opinion by Justice Antonia Scalia, the Supreme Court disagreed with the Court of Appeals, stating that the car chase "posed substantial and immediate risk of serious physical injury to others," and that forcing Harris off the road was "reasonable." Justice John Paul Stevens, the lone dissenter said that the other justices got overly carried away by a videotape of the chase, which caused the Court to discredit the teenager's testimony as inaccurate. Stevens said that "less dramatic measures ... could have avoided such a tragic result" and Harris could have been arrested later at his home (CNN, April 30).

Supreme Court: Passengers Can Challenge Traffic Stop Searches

On June 18, the U.S. Supreme Court unanimously ruled that passengers in a vehicle, as well as the driver, have Fourth Amendment rights to challenge an officer's search and seizure during a traffic stop. The California Supreme Court had ruled that only the driver had been "seized" under Fourth Amendment principles, and only he had the right to challenge the stop and resulting search. The search of a passenger uncovered drugs on him but he was not allowed to challenge the constitutionality of the search (New York Times, June 18).

The passenger's lawyer argued that when an officer makes a traffic stop, "he seizes not only the driver of the car, but also the car, and every person and every thing in that car," so that anyone in the car may challenge the constitutionality of the stop. The Supreme Court agreed.

Naked Bike Rider Gets Off

This story is about Rev. Phil Sano, who was arrested during the "Naked Bike Ride" in Portland in June, 2006, and had charges dropped of disorderly conduct, criminal mischief and indecent exposure. What did you think it was about? Police harassment of bicycle activists is nothing new. What makes Sano's case so interesting is that prior to his arrest, the girlfriend of off-duty Portland Police Officer Chadd Stensgaard (#43480) deliberately ran into him with her SUV. After Stensgaard allegedly grabbed him, other bicyclists helped Sano get away. Stensgaard chased Sano down and tackled him, leading to the arrest--of the victim --by on-duty officers who arrived on the scene (Oregonian, June 27).

Drug Free Zones: Delay in Report Could Mean Another Extension

This spring when City Council extended the "Drug-Free Zones" by five months, to sunset on September 30 (PPR #41), they mandated a report be presented by July 30. Because the committee charged with writing the report self-destructed over the participation of a prosecutor and a defense lawyer, the report never came out. Consultant John Campbell, now hired to write the report, told PCW in mid-August he doubted a full report will be ready by early September when Council considers renewing the Zones. While the Zones should then automatically expire, it's more likely the Council will buy more time with another extension.

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