Oregon’s Stop & Frisk Laws
Stop and frisk law comes from the Fourth Amendment. It gives us the basic rules of search and seizure law:
You’re protected from unreasonable searches and seizures
Your person, house and other items are protected
The government needs probable cause for a warrant
Details of the place, person or things to be searched and seized are needed.
The Fourth Amendment doesn’t say warrants are required for all searches and seizures. Stop and frisk is one of many exceptions to the warrant requirement.
Stop and frisk is also an exception to the probable cause requirement. Probable cause is needed for a warrant, but not for all seizures. Other exceptions don’t require probable cause, either.
Controlling Law – Terry v. Ohio
In the Terry v. Ohio case, the US Supreme Court set out the “stop and frisk” law. First the Court found that a stop and frisk is a type of seizure and so the Fourth Amendment applies. This case defines a stop as an encounter in which police restrict a suspect’s freedom to walk away.
This case also set anew standard for searches and seizures. It’s called reasonable suspicion, which is less than probable cause but more than a hunch. “Terry stops,” a seizure type, came from this famous case.
To justify a Terry stop, police must point to specific facts, combined with rational inferences from those facts, leading to reasonable suspicion criminal activity may be afoot.
The Supreme Court defined a frisk as a carefully limited search for weapons, limited to someone’s outer clothing. To justify a frisk, an officer needs reasonable belief that the stopped person may be armed and dangerous.
Reasonable Suspicion to Stop
Once police officers have reasonable suspicion to suspect criminal activity, they may stop a person to investigate. Reasonable suspicion varies by case. Reasonable suspicion can be based on:
Facts seen and interpreted by police, light of training and experience
A profile, such as a drug courier or gang member profiles
Information shared by police departments
Presence in a high crime neighborhood
Unprovoked flight after seeing police
Information gathered during a voluntary encounter
Reasonable Suspicion to Frisk
For a frisk, reasonable suspicion must justify the stop,and that the suspect is armed and dangerous. The government must show two reasonable suspicion types for a frisk:
A reasonable suspicion criminal activity may be afoot before the stop
A reasonable suspicion someone may be armed and dangerous, before the frisk
What if the police officer lacks reasonable suspicion required to frisk? He can ask someone for consent to search. Consent does away with the need for the additional reasonable suspicion. The scope of the frisk is limited to what’s reasonable and needed to reveal guns, knives or other things that could be used to harm police.
THE AMERICAN PROSECUTOR’S
Role in a Three-Tier System
Law Enforcement Officer
As a minister of justice and not just an advocate, the prosecutor wears three hats. In the pre-arrest stage the prosecutor retains the law enforcement function of the schout. In the charging stage the prosecutor performs the judicial function of the inquisitorial system’s investigating magistrate, and in the post charging stage he performs the advocacy role of the inquisitorial prosecutor, seeking not just a favorable verdict but a fair one. As a law enforcement officer, the American prosecutor is just as concerned with the detection of crime and the arrest of criminals as the cop on the beat. In America, both court decision and statute recognize the prosecutor’s role as a law enforcement officer. In their role as law enforcement officers, proecutors can become involved in almost all aspects of the investigation of a case, and it is sometimes very easy for them to become too much the law enforcement officer and too little the minister of justice. Because the apprehension and arrest of suspected criminals can become a highly competitive endeavor, a prosecutor engaged in this highly competitive undertaking can easily lose the objectivity necessary to perform his other two functions.
While fulfilling the law enforcement role of collecting evidence to present a winnable case, the prosecutor simultaneously performs an adjudicatory role. While wearing the law enforcement officer’s hat, the prosecutor must simultaneously wear the hat of a judge. At the point in the proceedings when the prosecutor must make a determination whether to file charges, whom to file charges against, and what charges to file, the law enforcement hat comes off and he becomes purely a judge. From the diligent nose-to-the-ground bloodhound, he must shift to the impartial, discerning arbiter of fact. It is a difficult transformation to accomplish. Having worked hard to identify and apprehend a culprit, it is difficult to then say, “I don’t have enough evidence. I’ll have to let him go. Oh, well, better luck next time.” It is far more tempting to say: “The evidence is a little thin, but I think I can stretch it far enough to get a conviction.” The worth of a prosecutor is measured by how well he can make the shift from police officer to judge.
Once the filing decision is made, the prosecutor puts on the third hat—the hat of the advocate. But he never takes off the hat of the judge. Consequently, his advocate hat does not fit as comfortably as the advocate’s hat worn by privately retained counsel. His client is neither the victim nor the police. Better put, his client base includes more than the victim and the police. The client base includes all the people of the jurisdiction. “All the people of the jurisdiction” includes the defendant’s family—even the defendant himself. The prosecutor is the guardian of the rights of all the people, which means that his job is to get the right result for the right reason. If he gets the right result for the wrong reason, he has gotten the wrong result. Once again, the competitive drive impedes his ability to be impartial, and the need to be impartial impedes his ability to advocate. How can the prosecutor perform such a delicate balancing act? He must first come as near as humanly possible to discovering the whole truth of a matter. Having determined the truth, his job is then “to keep on the side of what he believes to be truth; and, avoiding all sophistry, to aim only at setting forth that truth as strongly as possible, * * * without any endeavor to gain applause for his own abilities.”
TRUTH VALUE IN THE ADVERSARIAL SYSTEM
- If both parties value the truth, then the adversarial system can work. All relevant evidence is fairly presented, the merits of the evidence are logically debated, the fact finder renders judgment in conformity with the equities. If one side values victory over truth, then the adversarial system becomes, not a contest between rival interpretations of the truth, but a war between truth and rival interpretations of the truth, but a war between truth and fiction. The nightmare scenario is two con artists trying to deceive the fact finder. Finding the truth in either of the latter two situations can cause premature greying of the fact finder’s hair. Do you wonder that Pilate asked “what is truth?” Bacon interpreted Pilate’s question as the question of a jaded cynic who cared little for anything except his own self-advancement. Others have read the question as the honest query of a bemused judge. If the second interpretation is correct, Pilate shares the company of along line of judges and jurors who have confronted dishonest litigants. If you cannot insure that both litigants are wedded to the truth, the second best situation is to have at least one litigant wedded to the truth. In a war between truth and fiction, you have at least a 50% chance of finding the truth and achieving a just verdict. The American prosecutor, as a minister of justice and not a plaintiff’s attorney, is the one litigant in the adversarial system whose express duty is not to achieve a favorable verdict, but to achieve a truthful one. What is truth? Many advocates posit that there is no truth beyond the authorized pronouncements of a duty constituted fact finder. The term “verdict” comes from the Latin phase vere dictum (truly said). A jury thus purportedly “speaks the truth” when it renders a verdict, but its verdict is really an interpretation of truth which my or may not have truth value.
Fact and Fiction.
- The prosecutor asserts: “Jack Ripper killed Elizabeth Stride.” It is a fact that the prosecutor makes this assertion, but is it a fact that Jack killed Elizabeth? The statement “Jack Ripper killed Elizabeth Stride” may or may not be true, but the English language has no name for an assertion of questionable truth value. The best we can do is calling it a “fact.” A colloquial attempt to separate assertions of questionable truth value from assertions that are true beyond peradventure is to talk about “facts” and “true facts.” The Enlightenment philosopher Wilhelm Leibniz gave “true Facts” the label “necessary truth.” We can borrow a convention from logic to make a monosyllabic distinction. Logic uses the terms “if” and “iff.” “Iff” means more than “if.” “Iff” means “if and only if.” We can adopt this convention and give “true facts” (or “necessary truth”) the label “ffacts.” Mere facts of questionable truth value (or “contingent truth”) we will call “facts.” Assertions can thus be divided into the trichotomy: ffact, fact, fiction. Few assertions are ffacts. Most are facts, and facts are almost always subject to being falsified and shown to be fiction.
- The Austrian philosopher Karl Popper taught that in the world of science, beyond ffacts like the assertion that a triangle has three sides, investigation can never result in knowing a proposition as a ffact. The best we can do is say that a fact has a high degree of truth value. Even if we assign facts a truth value of 99.99% probability, they can be (and often have been) shown to be false. For example, for more than 1.000 years Aristotle’s First Law of Motion, “nothing moves unless you push it,” was a ffact. This was a logical interpretation of all known data gathered by investigation, and it could not be refuted by any known data – until Galileo devised the concept of inertia, which Newton refined into his First Law of Motion – “Every object in a state of uniform motion tends to remain in that state of motion unless an external force is applied to it.” Popper taught that an assertion is not a scientific fact unless it is at least theoretically falsifiable by the discovery of inconsistent facts. If the assertion is not falsifiable, it is not a matter for science but faith
- Where does that leave us? In order to function in life, we seldom require ffacts. We can get by with facts – if we are satisfied the facts have a sufficiently high truth value. It may not be a ffact that the sun will come up tomorrow, but the proposition has sufficiently high truth value that you should set your alarm clock. As in everyday life, so also in the courtroom – we do not need ffacts, we simply need facts with a comfortably high truth value. It may not be a ffact that John Hinckley, Jr., shot President Reagan (it may have been Hinckley’s mysterious disappearing twin brother), but we can attach enough truth value to that fact to have kept Hinckley institutionalized for more than twenty years.
- The world of a criminal trial or hearing is an artificial world in which facts have to pass a number of tests before they will be considered – tests of relevancy, materiality, prejudicial nature, constitutionality, and admissibility. Each of these tests is designed to eliminate certain facts from evidence based upon various considerations as to the expediency of allowing the fact finder to consider them. These considerations sometimes have very little to do with the truth value of the facts involved. The verdict is thus based upon an artificial set of facts which may bear little resemblance to the real-world facts of the particular case.
Adversarial Prosecution and Real-World Truth.
- Suppose Elizabeth Stride disappears and Jack Ripper becomes a suspect. The police arrest him without probable cause and interview him without benefit of Miranda. Jack confesses that he dismembered Elizabeth and deposited her body parts in various dumpsters scattered throughout the town. He then leads the officers to all the body parts. The judge rules that the fact of Jack’s confession is inadmissible because the officers made an unlawful arrest and failed to read Jack his Miranda rights. The judge further rules that the fact that Jack led the officers to Elizabeth’s body parts is also inadmissible as fruit of the poison tree. The jury, being unaware of Jack’s confession and unaware that he showed to officers to Elizabeth’s body parts, finds Jack not guilty. The verdict bears no resemblance at all to the real-world facts of Jack’s case. In the real world we can attach a high degree of truth value to the assertion that Jack killed Elizabeth, but in the courtroom we can attach none.
- Although truth in the artificial world of the courtroom may bear little resemblance to real-world truth, you can sometimes have more certainty in a courtroom than you can achieve in real life. Ffacts are few and far between in the real world, but they can be quite common in a courtroom. Whatever the parties agree upon is a ffact – even real-world fiction. Suppose Jack Ripper committed an armed robbery but the parties strike a plea bargain allowing Jack to plead to unarmed robbery. It now becomes a courtroom ffact that Jack was not armed when he committed the robbery.
The Advocate’s Allegiance to Truth.
- Some lawyers seriously contend that if someone (usually a criminal defendant) says something is so, no matter how preposterous, it is evidence which can ethically be presented and argued. After all, what is truth? Who can ever know what really happened? Lawyers sometimes obtain suppression of evidence and then to trial and try to pretend that the suppressed evidence does not exist. g., In a DUI case, the defense gets the blood alcohol test results suppressed and then argues to the jury that the police did not test the defendant’s blood alcohol level. There are a number of ways to deal with the artificial facts that are introduced into evidence in a criminal trial.
- The artificial facts can be argued as true regardless of what the real-world facts are.
- The artificial facts can be argued as true only insofar as they comport with real-world facts, but it is fair game to draw reasonable inferences known to be contrary to real-world facts.
- The artificial facts can be argued as true only insofar as they comport with real world facts, and reasonable inferences can be argued only insofar as they comport with real-world facts.
- Method (1) is a sure fire method for getting disbarred. Advocates have a duty to try to make the artificial facts comport with real-world facts. You cannot knowingly offer perjured testimony and argue it as true. The key word is “knowingly.” Suppose you have a witness who will give your client an ironclad alibi. You know, but the prosecutor does not, that the witness is lying. Do you call the witness? It goes without saying that you should not call the witness. Suppose you don’t know, but have good reason to believe, that the witness is lying? Here is where win-at-all-costs advocates will emulate Pilate. What is truth? The witness said it, who is the lawyer to judge? Isn’t that what the jury is for? Setting aside the rhetorical consideration that you will ruin your credibility by arguing implausible facts, a lawyer should weigh the truth value of the facts, and only present those facts to which the lawyer can assign a sufficiently high truth value. “Counsel’s duty of loyalty to and advocacy of, the defendant’s cause is limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth.” 
- Method (2) is more problematical. Take the murder case in which the prosecution presented satisfactory proof that Aaron Johnson shot Mathew Lanatus, but came up short in proving that Lanatus was in fact dead. Defense counsel argued that Lanatus was still alive and hiding out in a distant city. For the sake of argument, we will assume that the prosecution’s failure to prove fact of death gives rise to a reasonable inference that Lanatus is still alive. Is it proper for a lawyer who knows beyond peradventure that Lanatus is dead to argue to the jury that Lanatus is still alive? Would it be proper to go further and argue that Lanatus is hiding out in a distant city? Everyone would agree that it would be improper for a prosecutor to argue as true reasonable inferences the prosecutor knew to be false. Isn’t sauce for the goose also sauce for the gander? In the case under discussion, the defense acted improperly in arguing that Lanatus was alive and well and living in a distant city.
- Method 3) is the proper method for prosecutors, but it is too restrictive for defense attorneys. Prosecutors are not just advocates, they are ministers of justice, and it is their duty to see to it that jury verdicts comport, not only with the artificial facts of the trial, but also with the real-world facts. Any advocate representing a party subject to a burden of proof should be constrained to method (3). Criminal defense attorneys, however, do not have a burden of proof. Their only burden is to point out the reasonable doubts to the fact finder. Returning to the case of Matthew Lanatus, adherence to method (3) would prevent the defense attorney from pointing out reasonable doubt. Although it would be improper for the defense to argue that Lanatus was still alive, the defense should be allowed to argue that the prosecution had not proved that Lanatus was dead and that therefore the reasonable inference that Lanatus was still alive gave rise to a reasonable doubt as to Aaron Johnson’s guilt. Thus, in the criminal justice arena, we must add a fourth method open to defense attorneys, but not prosecutors:
- The artificial facts can be argued as true only insofar as they comport with real world facts, but reasonable inferences contrary to real-world facts can be argued, not as fats, but as reasonable doubts arising from the evidence or lack of evidence.
- Because the public prosecutor should be less inclined than private prosecutors to press fiction as a basis for achieving a favorable verdict, there should be less need for deterrence with the threat of punishment for malicious prosecution. The law has recognized this lesser need to deter the public prosecutor from ill-advised prosecutions, and has given the American prosecutor protection in carrying out the duty to prosecute. The degree of protection the law affords varies depending upon which hat he wears. When acting as a law enforcement officer, he has the qualified good faith immunity from suit of the law enforcement office. Thus, when attending to those parts of the job that are not forensic in nature, he is immune from suit only insofar as he acts reasonable and from pure motives. When prosecutors perform their judicial function, however, they have the same absolute immunity that judges enjoy. Imblr v. Pachtman recognized this immunity, finding that it was of ancient vintage. Pachtman said that the first American case to address the question of prosecutorial immunity was Griffith v. Slinkard. The complaint charged that a local prosecutor without probable cause added the plaintiff’s name to a grand jury true bill after the grand jurors had refused to indict him, with the result that the plaintiff was arrested and forced to appear in court repeatedly before the charge finally was nolle prossed. Despite allegations of malice, the Supreme Court of Indiana dismissed the action on the ground that the prosecutor had absolute immunity from civil suit. Absolute immunity is a much better thing to have than qualified good faith immunity. The one completely bars suit while the other is an affirmative defense that must be proven. Pachtman observed, however, that prosecutors were not immune to bar disciplinary proceedings for misconduct, nor were they immune to criminal prosecution.
[1 ] Krischer v. D’Amato, 674 So.2d909 (Fla.App.4th DCA 1996); District Attorney for Norfolk Dist. V. Flatley, 419 Mass. 507, 509 n.3, 646 N.E.2d 127, 128 (1995); People v. Jackson, 192 Mich.App. 10, 15, 480 N.W.2d 283, 286 (1991); State v. Vitello, 377 N.J.Super. 453, 457, 873 A.2d 591, 594 (2005).
 West’s Fla.Stat.Ann. § 790.001(8)(f); New Jersey Stat.Ann.§ 2A:158-5.
 Whately, Richard, Elements of Rhetoric Comprising an Analysis of the Laws of Moral Evidence and Persuasion with Rules for Argumentative Composition and Elocution, Dessinger Publishing Company, Whitefish, Montana, 1854/2005,p. 167.
 Popper taught that the essence of scientific fact was falsifiability. This idea permeated his philosophy. For a good summary of his ideas, see Popper, Karl, Conjecture and Refutation, Routledge, New York, New York, 2002. ch. 1.
 A lawyer cannot knowingly be a party to a client taking the stand and committing perjury. A knottier problem arises when the client insists on taking the stand to tell an implausible story which the lawyer strongly suspects, but does not know, to be untrue. On of the benefits of being a prosecutor is that you do not have to confront this problem.
 Nix v. Whiteside, 475 U.S. 157, 158, 106 S.Ct. 988, 994 (1986).
 424 U.S. 409, 96 S.Ct. 984 (1976).
 146 Ind. 117, 44 N.E. 1001 (1896).
 A “nolle prosequi” is an instrument filed in court by the prosecutor stating that the prosecutor has abandoned the prosecution.