Portland Police: Obey us and you won't get shot?
In U.S. v. Washington, the Ninth Circuit held that a defendant’s consent to a search was not voluntary, as he reasonably believed he had no choice by to permit the search. The state conceded the investigatory stop was not supported by reasonably suspicion, but had claimed the search of the defendant’s car, which yielded a gun, had been by consent. Reviewing the totality of the circumstances, the Court held Washington’s belief that he was not free to leave, and had no choice by to consent to the search, was reasonable.
Important factors in the defendant’s belief that he was not free to leave were the officer’s authoritative manner, as well as the city’s recent, highly publicized shootings of African American males during traffic stops. Following these incidents, the Portland, Oregon Police Department apparently created some pamphlets to advise its citizens, especially its African American citizens, how to avoid being shot by the police during a stop. Among the tips: “follow the officer’s instructions” and “if ordered, comply with the procedures for a search.”
Decision of the Day asserts that the opinion turned ordinary Fourth Amendment Analysis on its head, because it focused on the defendant’s safety, rather than the officer’s. I don’t agree that the Ninth’s analysis here was particularly out of the ordinary, as the focus of fourth amendment analysis is generally the reasonable belief of the defendant.
But I would agree that the Portland police’s views of protection and service seem quite skewed.
