The Oregon Supreme Court has ruled that generic “officer safety” is not sufficient justification to ask individuals if they are armed. In a ruling this week, the court found that police officers may not simply ask someone if they have a weapon without sufficient probable cause . . .

From the ruling in State v. Jimenez (pdf):

In this criminal case, an Oregon state trooper stopped defendant for jaywalking and asked him if he had any weapons on him. For the reasons that follow, we conclude that Article I, section 9, of the Oregon Constitution does not
permit a law enforcement officer to make such an inquiry as a matter of routine and in the absence of circumstances that indicate danger to the officer or members of the public.

Here is the relevant part of the Oregon Constitution:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

The case is similar to one that was settled in the Arizona Supreme Court in August of 2014. From a previous Gun Watch article:

In the case of State of Arizona v. Johnathon Bernard Serna, the court makes it clear that two criteria must be met for a forced stop and frisk. First, the officer must have a reasonably articulable suspicion of criminal activity. Then, they must also have reason to believe the person is armed and dangerous. Both conditions must be met. Officers may ask people to consent to be disarmed; but the stop is not consensual if a reasonable person would believe that they would be allowed to leave the scene.

The Florida Supreme Court has similarly ruled that an anonymous tip that someone is armed isn’t sufficient reason so stop and search someone for weapons. From  Florida v. J.L. (2000) 529 U.S. 266:

Finally, the Court dismissed the state’s argument for a blanket “firearm exception” to the Terry reasonable suspicion requirement. Under such an exception, an undetailed and uncorroborated “tip alleging an illegal gun would justify a stop and frisk even if the accusation would fail standard pre-search reliability testing.” (Id. at 272.) The Court reasoned that this would allow wrongdoers to engage in harassment of other individuals by falsely asserting that they were carrying firearms. (Ibid.) Moreover, there is no logical way to limit any such public policy exception merely to tips involving firearms; any exception would quickly be expanded to drug-related tips and beyond to any tip reporting dangerous or threatening criminal behavior. (Id. at 272-73.)

Perhaps a slight gain in the restoration of Second Amendment rights is occurring in Fourth Amendment jurisprudence.

©2015 by Dean Weingarten: Permission to share is granted when this notice is included.
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65 Responses to OR Supreme Court: Police Can’t Ask If a Person is Armed Without Cause

    • Yeah, if I was a convenience store attendant that guy coming in would bump to at least orange for sure. It’d be hard for me to fault cops for having the same thoughts.

      • I’m glad that our rights are being restored a bit at a time. But amongst other reasons this guy is one that makes me want to carry.

        I’m not a cop so it’s perfectly allright for me to profile.

        • Everyone profiles.

          Our brains are hard wired to assess threats and danger based on physical and environment queues.

  1. Can we ask people if they’re mentally retarded without probable cause? Oh wait..I guess that picture *is* probable cause.

  2. A good rule of thumb is to avoid people with large frontal neck tattoos, especially if those tattoos spell something out. I have yet to see one that was not gang affiliated.

    • Neck tattoos used to mean, “Don’t f*ck with me!”

      But now, it could mean, “Can read you my poem about a vegan, tofo bicycle?”

      Thanks, hipsters.

  3. If the tattoos are specifically associated with a violent gang, would that not be probable cause to suspect he was armed?

  4. Just the sequence of events. I’d see freaky jaywalking dude, run him for warrants, and once I’d see the outstanding felony no bail, I’d search him for weapons incidental to arrest. If creepy dude actually didn’t have warrants, then I may have no legal right to search him.

    The thing is, people who look like that tend to have felony / misdemeanor warrants, probation, parole, or supervised release.

    • How do you know his name in order to run him for warrants since you don’t know his name and can’t look at his I.D.?

  5. As someone with full sleeve and leg tattoos my general rule was: nothing on the hands, neck, or face. I can put in a business suit and no one knows I have them.

    Only a few types of people have these tattoos: tattoo artists, bikers, or gang members (wannabe or otherwise). While I have a few friends with these types of tattoos (fall into first two categories), I generally don’t associate with people with that stuff.

    • Don’t leave out retards. My sister briefly dated a guy with “MMA” tattooed around his neck.
      Not a biker, not a gang member, not a tattoo artist not even practicing combat sports of any kind.

      Just a full-blown retarded dumbass that thought it looked cool.

    • Add people who’ve had neck surgery. I’ve known two gals who had neck tattoos, both to hide surgical scars. Of course, they didn’t look like that guy; the closest was the one with a Celtic weave design done in a red that nicely made the scar impossible to see, while the other was a set of mirror-image orchids. Anyway, I suppose someone might get a “mean-looking” tattoo to cover a neck scar as well.

  6. What?
    “Officer Safety” does not mean automatic “Carte Blanche” for Law Enforcement?
    800,000 LEOs and FLEAs (and thousands of Persecutors and local Judges) will be surprised to hear that.

    • I read the whole decision. It’s language is, to me at any rate, obscure enough to almost guarantee more cases will be required to make things clear for cops on the job.

  7. My rule is to inform the officer on contact, I don’t want any armed “misunderstandings” . The only response I’ve got is “thanks let’s keep them in our holsters okay?”

    • I had a conversation with a local police officer about this topic, and he said that basically if he wants to know, he’ll ask and/or run the check. If he doesn’t ask, then he doesn’t need to know, and bringing it up (esp. in the form of “officer, just so you’d know, I have a gun”) might actually make him more tense than before, because why would you mention it randomly like that? is it a veiled threat or something?

      • Exactly. We never used to bring it up unless the officer asked. Interestingly, they rarely asked. That was before 2005, before concealed handgun licensing in Ohio. Now, we have a duty under the CHL law to notify. It used to work so well. Now it is a tense mess in some situations. I’ve had officers tell me that the notify law is stupid and, in some situations, dangerous.

    • Was it appealed from the FL Supreme Court or a Florida Appellate court? Just curious if it specifically addresses Florida law or is addressing the issue in general because if it is the latter it could be applicable to more than just Florida.

  8. There are some interesting connections between these rulings. All reflect an attitude toward the public that is solidly in conflict with essential liberties that define what being an American citizen is all about. While I can see these kinds of questions as being routine in a place like Helmand Provence or Mosul they don’t belong here. This is America, the cops are not the military and we are not a suspect. occupied people. And, yet, this kind of behavior apparently persists. This says to me that the police have become militarized. Is what’s happening the result of so many returning vets becoming cops that they’ve transferred their military experiences and attitudes to police work with the result that cops are now unable to tell the difference between an adversary and a citizen?

    • the cops are not the military

      Maybe not, but so many cops these days are ex-mil that I can’t tell the difference.

  9. Excellent comment Garrison.

    I think the returning vets who have risen to positions of policy making would be the likely culprits versus the “cop on the street” type.

    • Policy makers are a bit older than the returning vets. The ones making policy now are the ones that were protesting all things American in the 60s and early 70s. The hanoi jane cheering section are the policy makers today.

      • Still mad you dumb animals got BTFO in Vietnam?

        As always, you volunteer to work for these “policy makers” but accept none of the responsibility for willfully following their orders. American fuhrerprinzip at its finest. 🙂

        • Then by your own argument you should instantly cease whining about “Hanoi Jane” and the anti-war protesters for making the Vietnam War politically impossible to continue, as your job is simply to enforce the will of the people and act in their name. And the people spoke out decisively against that war.

          That’s right, you’re still just a dumb animal who follows orders. 🙂

        • Trannysoreass/waco biker. Mighty tuff talk for a man that admits that he’s too much a coward to resist an evil .gov. What was your comparison of yourself? Like the non nazis loading the cattle cars full of jews, you would “go along to get along.” And you supported the murder and torture of pow’s as long as they were Americans.

          The internet, like alcohol, brings out the real you. And in your case it ain’t pretty. But you go ahead painting a vile picture of yourself and believing you’re some how winning an argument.

          Pathetic pud.

        • “Like the non nazis loading the cattle cars full of jews, you would “go along to get along.”
          “resist an evil .gov”

          Says the guy paid by said evil government to load the cattle cars and kill people for a living. 🙂

        • Wow, wacobiker/blaine cooper. You must be in demand at movie theaters. You’re such a projectionist.

          Do you even think of what you’re writing or just let it vomit out? Either way, I’m done with you for today. Talking with you is like teaching ballet to a pig. It achieves nothing and angers the pig.

          Later, piggie. 🙂

        • The irony of a pig accusing others of projection even as he calls other people pigs. I know the courts ruled cops must be below average in intelligence but you really took that ruling and ran with it. 🙂

        • Well, it is hard to distinguish between one government animal with another… 🙂

  10. Hmmm…contrast this with Chiraq as 2 young mens(sic) were shot by the po-leece(one dead)in the last 2 days and both were proclaimed to be “brandishing a gun”. I’m not saying they didn’t have a gun-just that there is no video or other witnesses except the word of the po-leece.No rioting or protests either… AS far as tats go my son has a half-sister COVERED in tats-face, neck, and body as well as a nose ring and various piercings EVERYWHERE. And yeah she works(or has worked) in a tattoo shop. Not a gang thing as far as I know…and Chiraq leads America in so-called “stop and frisk”…

  11. As a retired LE, I see both sides of this issue.
    If officers ask this question as a matter of routine to all contacts, it is invasive and unwarranted.
    When an officer asks “the” question “are you armed”, you have three choices if you are carrying (with or without a permit).

    If you answer “yes’, you give the officer probable cause to at least conduct a pat down for his / her safety without a warrant. This will include all your pockets and carried material (backpacks, purses, bags, suitcases etc). Anything found that is illegal is then admissible in court.

    If you lie, you commit a crime (false information to a police officer).

    If you stand mute, you will get a level of scrutiny and introspection that will almost always result in at least a pat down and probably a more intrusive search.

    There is no way out to protect your right to privacy.

    I can see the wisdom behind the decision.

    I never want to live in world where police officers can search anyone at anytime for any reason. Police are humans and can make mistakes that have life long consequences for citizens.

    The photo attached to this article is designed to illicit comments. A properly trained law enforcement officer can, through observations, build his legal, well documented foundation for securing his safety – a very easy case if the detained individual is displaying gang related tattoos.

    Officers can ask for permission to search you at anytime, but a negative answer, in and of itself absent any other cause, cannot be the reason for such a search.

      • “*elicit”

        Don’t you just hate grammar Nazis?

        Hey, is the ‘Daily Digest: Matt in Fl Edition’ ever going to return?

    • It’s the same as when they ask to search your car. If you say yes, they search your car. If you say no, they have probable cause to suspect you’re hiding something–so they cuff you, stuff you, THEN search your car.

    • How can answering a question give an officer cause to search me? Unless he has reason to believe I have a weapon illegally, he can keep his bloody hands to himself. Pawing at me just because I said I have a gun is no more justifiable by an officer than by a liberal politician or drug addict.

      If a cop started pawing at someone who said, “Yes, I’m armed” and got shot because of it, I would consider it justifiable homicide. A citizen’s person is sacred, and not to be manhandled without probable cause to believe a crime has been committed that requires a search of the citizen’s person.

      • +1

        A large contributor, some might say the only significant one, of our loss of individual liberty has been that we’ve allowed ourselves (the jury pool, judges, etc) to shy away from defending ourselves from unwarranted intrusion.

    • If you answer “yes’, you give the officer probable cause to at least conduct a pat down for his / her safety without a warrant. This will include all your pockets and carried material (backpacks, purses, bags, suitcases etc). Anything illegal found that is illegal is then admissible in court.

      Bull. Per Terry v Ohio, RAS must include two elements: armed, and dangerous. Admitting that one is atmed is not per se evidence that one is also dangerous – and in fact, can be considered as tacit evidence of exactly the opposite. By answering truthfully and admitting that one is (presumably lawfully) armed, one demonstrates willingness to cooperate with the officer.

  12. When being approached by any law enforcement officer, be polite but do not answer any questions. Say something like, “Officer, I know you’re just doing your job, but my attorney has told me to respectfully decline to answer any questions without contacting him first.”

    When cops are asking you questions they are trying to trick you or get you to incriminate yourself in some way so that they can make this encounter a “productive” one which means ending in an arrest, a citation or, preferably by many, a brutal bludgeoning.

    • One of the hurdles I had to learn to overcome was the notion that not answering was impolite. Over the years I noticed that officers, judges, attorneys, and private investigators will simply not answer a question that they do not want to answer. They stand mute. I suspect many others were, as I was, raised to see this as being impolite. I’ve since trained myself to STFU. It’s not impolite. It’s prudent.

      Ohio has ID law and CHL notification law. Below is how I have handled encounters. When I’m OCing with no CC backup, it is much more simple since I don’t have to notify that I am licensed and armed. I put the question of detention first because it seems to be a pretty big step that intelligent officers aren’t usually willing to jump to without reasonably clear suspicion that a crime has been committed, is about to be committed, or that the person is a witness to such.

      “Am I being detained?”
      If “Yes” -> CHL notify and verbally ID if required by law. “I consent to no searches and I invoke my right to remain silent.” Stand mute.
      If “No” -> “Am I free to go?”
      If “Yes” -> Leave immediately.
      If “No” -> CHL notify and verbally ID if required by law. “I consent to no searches and I invoke my right to remain silent.” Stand mute.

  13. Great looking tats, how would you like your daughter to go out with this guy to an all night gang party!

  14. I should think that the rule should be that a cop, like anyone else, can ask you anything… it just doesn’t mean he’s entitled to get an answer. Now, if the court had said that the cop couldn’t tell (or imply to) the citizen that he was required by law to answer the question, I’d be all behind that.

    • No!
      Cops have to be held to higher standards. They shouldn’t do anything that so much as hints at invasion of privacy.

  15. This isn’t as big a deal as some have suggested. Officers can’t routinely ask about weapons, but with an articulatable suspicion, can do so. Officer probably did two things wrong here. First, he admitted that he asked routinely. And second, he didn’t ask about weapons until he had discussed the traffic infraction first. That is fairly strong indicia that the officer was not actually in fear for his safety, because if he had been, he would addressed the safety issue first, and not last.

  16. Last time I was stopped, the officer asked if I had any weapons he should be worried about. I said no, because there was no reason he should have been worried about any of my weapons. A little later he changed the question, asking if he searched my vehicle if he would find any weapons. I told him I didn’t consent to a search, and that was all he needed to know. He seemed to think about that for a moment, then handed back my license and just left.

    My buddy figured that since I was stopped over something to do with the trailer I was pulling, the cop decided he had no reason to insist on searching my vehicle, and just gave up.

    I guess from now on I can just say that the Supreme Court said he’s not supposed to ask that.

  17. This case is not similar to the two other cases mentioned, which were terry issues. This guy was legally stopped for an independent reason, not suspicion of illegal weapons (i.e. terry stop). Then the officer, during the stop, made in inquiry (as opposed to patting him down or anything more invasive than a question).

  18. This is a bit too extreme. I definitely think police should stop harassing innocent people and shooting people in the back, but they can’t even ask somebody a question? In SC they can pat you down. I’m not condoning molesting every child and black man that walks by for a weapon, in fact I disagree with the policy, but at least asking is a reasonable, non-intrusive way of discerning whether the person you’re interacting with has a weapon. I sympathize with the police in this regard. Passing unreasonable laws like this does nothing but inflame the monster.

    Regardless, everybody has the right to free speech, and everybody has the right to refuse to answer any question. This is a fundamental natural right that is being washed away.

    I encourage everyone to know their constitution and understand why it included everything it did.

    • The issue isn’t whether police officers have the right to ask questions; rather, the issue is whether police officers have legal authority to compel an answer to his questions, and whether a particular answer to a specific question constitutes specific, reasonable, articulable suspicion to allow that police officer to conduct what would otherwise be an unlawful search.

  19. Rights aren’t just for law abiding citizens. ALL humans in the USA are entitled to protection against acts of coercion by the state or its agents or other free men. Criminals don’t stop having rights because they’re criminals and wastes of skin don’t stop having rights because they’re a poor use of skin. Felons should be able to possess weapons and every free man and woman should be at all times armed. Any behaviour issues that come as a result will, like the person displaying these behaviour problems, be very short lived.

  20. I still don’t understand how ASKING is not permitted. If an officer asked and said(or implied) that it was the rule of the law for the suspect to answer, that arrest should be thrown out. I’m not even sure why it’s the responsibility for the law enforcement officer to tell someone their rights either. Shouldn’t you know your rights just like it’s your responsibility to know laws? Charges aren’t thrown out because you can say that you didn’t know the applicable law(s)……..

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