SALEM — Determining that police need more than a “hunch” to stop citizens, the Oregon Supreme Court has reversed a man’s conviction of interfering with a peace officer.

The decision, issued last week, could affect encounters between police and the public as well as how courts respond to such interactions. The Supreme Court sent the case back to a lower court for further proceedings.

Right to stop

A new state Supreme Court ruling could limit police.

A majority of the seven-member court determined that orders by a Beaverton officer for a man to be handcuffed weren’t lawful because police didn’t have a constitutionally justified suspicion that he had or was about to commit a crime.

But a dissenting opinion from Justice Thomas Balmer and Justice Christopher Garrett argued that the majority’s opinion “muddies the standards” for police officers while “needlessly” undermining the ability for law enforcement to address physical threats.

Ofer Raban, a professor of law at the University of Oregon School of Law, described the court’s decision as “very technical and convoluted” and wasn’t sure how it would be applied in trial courts.

He said that the court’s decision wasn’t a “clear declaration” that people aren’t obligated to follow police orders.

“But it creates more uncertainty for when people can be held criminally liable for when they don’t follow,” said Raban. He added that the decision “muddies the water” for citizens.

According to court summaries, the case involved two Beaverton police officers who in 2014 stopped Eric L. Kreis as he was standing near parked cars in a restaurant parking lot. The parking lot had been closed for about 20 minutes and had been the site of frequent car thefts.

Officers stopped Kreis to see if he was preparing to break into cars or about to drive while intoxicated.

Both officers approached Kreis and asked him for his name, whether one of the cars in the parking lot was his and if he worked for the restaurant. Kreis didn’t respond and stepped away from the officers, one of whom told him he was not free to leave until their investigation was complete.

Kreis refused to answer questions. One of the officers noted that Kreis appeared angry and showed signs of intoxication. After other police arrived, officers again asked Kreis to answer questions. Kreis furrowed his brow, made fists, took a bladed stance and began shifting his weight back and forth while appearing to look for an escape route, according to the court summary.

An officer told Kreis that if he didn’t answer the questions he would be arrested. Kreis responded, “I am not going to be arrested.” Kreis resisted the officers as he was handcuffed and arrested. He was charged with interfering with a peace officer and resisting arrest.

At trial, Kreis’ lawyer argued that the officer’s order wasn’t legal because police had no reasonable suspicion that he had committed or was about to commit a crime.

Prosecutors argued that police had reasonable suspicion that Kreis was about to drive impaired or commit theft. They further argued that even if the stop was unlawful the officer’s order for Kreis to be handcuffed was justified out of concerns for officer safety.

The jury found Kreis guilty of interfering with a peace officer but acquitted him on resisting arrest. Kreis appealed the conviction to the Court of Appeals, which ruled against him, and he took the case to the Supreme Court.

Under state law, someone commits the crime of interfering with a peace officer if they refuse a lawful order made by an officer. In its decision, the Supreme Court noted that it had previously defined a lawful order as an order that is “authorized by, and is not contrary to, substantive law.”

Marc Brown, deputy public defender from the Office of Public Defense Services, represented Kreis before the Supreme Court. Brown argued the officer’s order to handcuff him was unlawful.

According to the court’s opinion, Christopher Perdue, assistant attorney general, argued that police have broad authority to issue orders that are only illegal “when they direct a person to commit a crime or to refrain from statutorily or constitutionally protected activity.”

However, the Supreme Court ruled that the Beaverton officer didn’t have a “reasonable belief” that Kreis was about to drive while under the influence. The court’s opinion noted that an officer must have “specific and articulable facts” to lead them to believe an individual has committed or will commit a crime.

The court said that a “‘hunch’ based on training and experience is, by itself, insufficient to form a basis for reasonable suspicion.”

The court also rejected the state’s arguments that the officer gave Kreis a lawful order. The court reasoned that a police order is illegal when it interferes with a person’s freedom from unreasonable searches and seizures.

The Oregon Capital Bureau is a collaboration between EO Media Group, Pamplin Media Group and Salem Reporter.

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(2) comments

Barry Plotkin

The title of this article is mis-leading. "Hunches" are judgment calls, and police make judgment calls all the time. That is part of their job and part of their training. In this particular case, the police officers would have had to have been fully-trained constitutional lawyers to have made the "correct" decision in the eyes of the Oregon Supreme Court. In fact, even that might not have been enough inasmuch as two of the Supreme Court justices dissented with the majority opinion. But in reading the details of this case, which turned on a constitutional question of unreasonable search and seizure vs. a lawful police order, there is no suggestion that the police acted unreasonably in any way.

John Price

Complete BS. The police are responsible for understanding the case law around the 4th Amendment, as well as the letter of the law. They must establish probable cause before detaining a suspect. No lawful order can be issued without probable cause. Such probable cause requires an articulatable suspicion that a crime has been, or is about to be committed. Merely being present in a public place does not reach that level of suspicion. No order issued on such a hunch is a lawful order.

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