Me vs. Beaverton Police

[m1gunr]

I Oregon if you are going to record a conversation in public - you MUST tell the person the conversation is being recorded- doesn't matter if you are a LEO or a citizen. if you don't do that you can be arrested.. Over the phone is much different..

!! WRONG !!

The 9th Circuit panel has said the police "do not have had any reasonable expectation of privacy" in a public setting...

 

[sweetbeard]

I think people forget that LAW ENFORCEMENT is just that, enforcement. Meaning they should know the laws they are enforcing.

assuming that makes you basically retarded..
so you want po-po to spend 10 years in law school before hitting the streets?

 

[Karma]

assuming that makes you basically retarded..
so you want po-po to spend 10 years in law school before hitting the streets?

Of course I don't expect a police officer to know the law. That would be rediculous. Retarded some might say. I want a officer to have unlimited power, and to just run around and screw with people if they do something that offends him in any way. If he doesn't like the color green and I am wearing a green shirt, that's my bad.

LOL. I want a officer to know basic laws that he is to enforce. If the officer doesn't know the law how in the **** can he enforce it? Does he just make bubblegum up as he goes? If he doesn't know the law, he damn well better find out what it is from someone who does know, or a book.

I had a cop recently tell me that my little brother who is 18 couldn't have a rifle for gods sake! He told me he would arrest him if he saw him up target practicing because you have to be 21 to own a firearm! Imagine some idiot acting on what he assumes is the law! I made him look it up in his little booklet while he protested. All he said is "I'll be damned."

There are far too many nitpicky laws for a officer to know all of them. Do you think a lawyer knows every law written because he went to law school? Nope.

 

[KomradRazvan]

I Oregon if you are going to record a conversation in public - you MUST tell the person the conversation is being recorded- doesn't matter if you are a LEO or a citizen. if you don't do that you can be arrested.. Over the phone is much different..
-

Man... now i have to educate* you guys some more. Thank you criminal justice degree.

So here you go guys, some more helpful info for you.

165.540 Obtaining contents of communications. (1) Except as otherwise provided in ORS 133.724 or 133.726 or subsections (2) to (7) of this section, a person may not:

(a) Obtain or attempt to obtain the whole or any part of a telecommunication or a radio communication to which the person is not a participant, by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, unless consent is given by at least one participant.

(c) Obtain or attempt to obtain the whole or any part of a conversation by means of any device, contrivance, machine or apparatus, whether electrical, mechanical, manual or otherwise, if not all participants in the conversation are specifically informed that their conversation is being obtained.

.......

(6) The prohibitions in subsection (1)(c) of this section do not apply to persons who intercept or attempt to intercept with an unconcealed recording device the oral communications that are part of any of the following proceedings:

(a) Public or semipublic meetings[1] such as hearings before governmental or quasi-governmental bodies, trials, press conferences, public speeches, rallies and sporting or other events;

(b) Regularly scheduled classes or similar educational activities in public or private institutions; or

(c) Private meetings [2] or conferences if all others involved knew or reasonably should have known that the recording was being made.

[1] So first of all, you can see that it is illegal to record oral communications between two people (ORS 165.540 subsection (1)(c))if they do not give consent. But then the law goes on to give exceptions. As you can see in subsections (6)(a) and (6)(c) that if you are using an unconcealed recording device it is ok to record "Public or semi-public meetings" without obtaining consent then it gives EXAMPLES saying "such as". That does not mean that the examples listed are the only things that fall under that. One can then deduct that an on-duty police officer in uniform and displaying a badge acting within the scope of their duties who is talking to someone, like the OP in this case, is engaged in a "public or semi-public meeting." At that point he is also a public official as defined by:

244.020 Definitions
(14) "Public official" means any person who is serving the State of Oregon or any of its political subdivisions or any other public body as defined in ORS 174.109 as an elected official, appointed official, employee or agent, irrespective of whether the person is compensated for the services.

And police officer is defined here:

181.610 Definitions
(14) "Police officer" means an officer, member or employee of a law enforcement unit who is employed full-time as a peace officer commissioned by a city, port, school district, mass transit district, county, county service district authorized to provide law enforcement services under ORS 451.010, Indian reservation, the Criminal Justice Division of the Department of Justice, the Oregon State Lottery Commission or the Governor or who is a member of the Department of State Police and who is responsible for enforcing the criminal laws of this state or laws or ordinances relating to airport security or is an investigator of a district attorney's office if the investigator is or has been certified as a peace officer in this or any other state.

and therefore as a public official, while conducing a field interview, which is what occured with the OP, there is no expectation of privacy. There are currently no state or federal laws defining "expectation of privacy" but it is covered in case law... Mainly in Katz v United States.

Justice Harlan gave his concurring opinion saying that the two-part test later adopted by the U.S. Supreme Court as the test for determining whether a police or government search is subject to the limitations of the Fourth Amendment: (1) governmental action must contravene an individual's actual, subjective expectation of privacy; (2) and that expectation of privacy must be reasonable, in the sense that society in general would recognize it as such.

To meet the first part of the test, the person from whom the information was obtained must demonstrate that they, in fact, had an actual, subjective expectation that the evidence obtained would not be available to the public. In other words, the person asserting that a search was conducted must show that they kept the evidence in a manner designed to ensure its privacy.

The first part of the test is related to the notion "in plain view". If a person did not undertake reasonable efforts to conceal something from a casual observer (as opposed to a snoop), then no subjective expectation of privacy is assumed.

The second part of the test is analyzed objectively: would society at large deem a person's expectation of privacy to be reasonable? If it is plain that a person did not keep the evidence at issue in a private place, then no search is required to uncover the evidence. For example, there is generally no search when police officers look through garbage because a reasonable person would not expect that items placed in the garbage would necessarily remain private. Similarly, there is no search where officers monitor what phone numbers an individual dials, although the Congress has enacted laws that restrict such monitoring. The Supreme Court has also ruled that there is no objectively reasonable expectation of privacy (and thus no search) when officers hovering in a helicopter 400 feet above a suspect's house conduct surveillance.

Justice Stewart wrote, "One who occupies [a telephone booth], shuts the door behind him, and pays the toll that permits him to place a call is surely entitled to assume that the words he utters into the mouthpiece will not be broadcast to the world." Certain details, such as shutting the door on the telephone booth, help determine if a person intends for a conversation to be private. Thus, private conversations can be made in public areas.

Justice Harlan's Concurring opinion summarizes the essential holdings of the majority: "(a) that an enclosed telephone booth is an area where, like a home, and unlike a field, a person has a constitutionally protected reasonable expectation of privacy...

This covers both the OP and the officer.

Biggie- He did not attempt to conceal his weapon so even though it is his right to open carry, the police can still stop him and question him as long as they are not removing his right to open carry.

Officer - The conversation took place in public, in plain view of the public, and there was no attempt to prevent the conversation from being overheard (or atleast thats the way it seems by the story Biggie provided us) and as such, there is no expectation to privacy.

[2] Now, some people may still try and claim that the conversation was private. Well if you look back to 165.540 you can see that the recording of "Private meetings" is ok if those involved in the conversation "reasonably should have known that the recording was being made." How would someone reasonably know? Easy. The person recording is holding an unconcealed recording device (like a cellphone) pointed towards the participants in the conversation. Which brings me to my next link, which is a statement from the Beaverton Police Chief Geoff Spalding.

Spalding's Statement in the Oregonian


*I am not a lawyer, judge, or any government official. I'm just a college student who has a degree in Criminal Justice. All this information was obtained through my schooling (especially in PCC's Constitutional Law and Arrest Search and Seizure classes) and through research conducted by me on the internet and through the Oregon Revised Statutes 2009 edition. Nothing I have said or will say is legal advice, and should not be construed as such. This is just information that is useful, and I am providing my personal interpretation of it. There's my disclaimer.

 

[KomradRazvan]

Wow... took me a while to write up my last post that I did not see any of the new ones... time to reply.

!! WRONG !!

The 9th Circuit panel has said the police "do not have had any reasonable expectation of privacy" in a public setting...

Can you provide the case for this? Any sort of citation?

I can only add that sometimes people who insist on open carry (just because they can) are often not too good at calm and civil communication with LEOs. They, for some odd reason tend to be a bit on the antagonistic side.

In the case of the OP, trust me, you are making an understatement.

One has to consider that LEOs must assume the worst may happen when they get a call, ("man with a gun...") and have to approach a man on the street w/ a gun. Therefore, it is easy to see that they may already be amped up as it were with stress.

Correct. Also, receiving calls of a man carrying a gun (and knowing the OP personally - his description doesnt help), walking towards a convenience store, screams probable cause to the officer that a crime may occur. So it is only logical and prudent that the officers respond.

One thing this sort of action by open carriers will do is feed fuel to the anti-gun politicos in your state to pass a bill outlawing all open carry.

In Washington State if you have a conceal carry permit, you may only carry concealed.

Look... I truly understand the premise, "A Right Un-exercised is a Right Lost".
Nonetheless, why do we need to do it?
On a whole, what positive purpose does it serve the firearms community?
Conceal carry would seem to be a better option.

Discuss

This is all subjective. It is your opinion. It is OUR RIGHT to bear arms and OUR RIGHT to open carry, and in doing so, we effectively become reprsentatives of the gun owners/2A supporters/open carriers community. So when dealing with law enforcement or people who may be opposed to open carry, one should take into consideration what repercussion their actions may have down the road. Something the OP obviously has no ability of doing.

 

[python287]

!! WRONG !!

The 9th Circuit panel has said the police "do not have had any reasonable expectation of privacy" in a public setting...

Sorry but this is State Law - not Federal law - Oregon Law states that if you want to record a conversation in person you must advise the other party - asdk ay Police officer - even they must do that..

 

[KomradRazvan]

Sorry but this is State Law - not Federal law - Oregon Law states that if you want to record a conversation in person you must advise the other party - asdk ay Police officer - even they must do that..

have you been reading all the posts? You do not have to advise the other party, read Post #148... and if you wish, i can also provide you with ORS that shows that police officers DO NOT have to do advise you either.

Just as I said to m1gunr: Do you have any sort of citation for this info?

I think it would be well-advised for people to actually cite their claims/facts. It will help everyone out in the long run.

 

[ApronAmy]

Do you by chance have an ORS for that? The only one I could find was 807.570 - Failure to Presnet or Carry License, but according to the ORS is only applicable while operating a motor vehicle.

Based on the ten minutes of research I did, I believe that the only people required to carry identification at all times are non-citizens, and that is based on Federal law.

As far as I can tell there is nothing in the Oregon statutes that says Joe Schmoe walking down the street has to carry or produce any form of identification when stopped by the police. He just shouldn't lie about who he is 'cuz that will create all kinds of new problems if he is arrested.

Any more precise information would be appreciated - this is something I have often wondered about even without the open carry/CHL issue coming into play.

 

[m1gunr]

In Washington State if you have a conceal carry permit, you may only carry concealed.

Please post the RCW that makes this requirement..... Washington State follows British legal tradition. Basically if there are no laws against then it is construed as legal. Soooo, show me the RCW that says I have to conceal with my CPL....

 

[iopencarry]

i am not a lawyer.......

First of all let me tell everyone that just carrying your gun on your hip in a legal manner is not grounds for an illegal terry stop. They cannot i repeat cannot stop you for the mere presence of a legaly carried firearm, for that matter they cant ask for id, you dont have to show them any, just tell them your name, no license required to openly carry so you don't have to show them your CHL either, unless your in a public building or a banned city. A man with a gun call, yes they can come and politely ask you anything that's there right, but you don't have to produce anything for them, ask them if you are being detained and if your free to go. If they say no your not being detained then you say have a nice day and walk away, if they say you are being detained then don't consent to thier searches, if they search you anyways let them. because they just commited a crime and violated your 4th amendment based on an illegal stop of your 2nd amendment. Then it's grounds for a lawsuit which you probably going to win. Based on Oregon laws.

 

[m1gunr]

Sorry but this is State Law - not Federal law - Oregon Law states that if you want to record a conversation in person you must advise the other party - asdk ay Police officer - even they must do that..

Try again.....
Alford v Haner
<broken link removed>

III. Conclusion
Defendants arrested Alford for tape recording a public conversation, but the law clearly prohibits only the recording of private conversations. Probable cause to arrest for other crimes does not cure the defendants' violation of Alford's rights. Gasho, 39 F.3d at 1428 n. 6.

The facts and the law clearly established that the traffic stop was public. There was no evidence that Alford had violated the Privacy Act or that the encounter was private. No objectively reasonable officer could have concluded that taping an officer during a traffic stop on a public thoroughfare was barred by the Privacy Act.


Too bad a few officer are running their own agenda and not being objective....

 

[KomradRazvan]

All subjective?

I never said it was not our "right"
.....

Sorry about that. I should have been more clear on what i was calling subjective.

One thing this sort of action by open carriers will do is feed fuel to the anti-gun politicos in your state to pass a bill outlawing all open carry. - It is your opinion and a valid POSSIBILITY but not a fact. So... subjective.

In Washington State if you have a conceal carry permit, you may only carry concealed. - I have no clue as to what it's like in washington. Since the incident occured in Oregon, I responded with the knowledge I have. I am sure that someone in texas can probably come and trump all of us with their awesome laws on firearm ownership/carrying/castle doctrine.

Look... I truly understand the premise, "A Right Un-exercised is a Right Lost". - I guess this is a fact that you understand that premise.
Nonetheless, why do we need to do it? - A question. I guess neither fact nor opinion.
On a whole, what positive purpose does it serve the firearms community? - Same as above.
Conceal carry would seem to be a better option. - Once again, you're opinion. It is subjective to the purpose of you carrying openly or not.

Discuss Neither fact nor opinion. But a really good request.

There. Fixed it.

i am not a lawyer.......

First of all let me tell everyone that just carrying your gun on your hip in a legal manner is not grounds for an illegal terry stop. They cannot i repeat cannot stop you for the mere presence of a legaly carried firearm, for that matter they cant ask for id, you dont have to show them any, just tell them your name, no license required to openly carry so you don't have to show them your CHL either, unless your in a public building or a banned city. A man with a gun call, yes they can come and politely ask you anything that's there right, but you don't have to produce anything for them, ask them if you are being detained and if your free to go. If they say no your not being detained then you say have a nice day and walk away, if they say you are being detained then don't consent to thier searches, if they search you anyways let them. because they just commited a crime and violated your 4th amendment based on an illegal stop of your 2nd amendment. Then it's grounds for a lawsuit which you probably going to win. Based on Oregon laws.

So first of all, this incident being discussed happened in Beaverton. A city that has ordinances on loaded firearm carry. So from just looking at a person, there is no way to tell if they are "Legally" carrying a firearm on their hip. How do you determine if they can or cannot? With CHL. Which incidentally, is a form of State ID. Secondly, the officers received a call. They had to respond to that call. In so doing, that had to file a report as to what occured during their response. Identifiying the person they received the call about would be a part of that response. How do they know that the person is not an illegal alien with a firearm? They don't. Its not like they were out cruising looking for random people with handguns on their hips to stop. Which brings me to point 3: The 4th ammendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

"Probable" in this case may relate to actual statistical probability, or to a general standard of common behavior and customs. The context of the word "probable" here is not exclusive to community standards and does not predate statistics, as some have suggested. In other words, if it is not common behavior and customs to walk around with a gun on your hip, then there is probable cause.

But lets focus on more of the details on this. Lets look at what Oregon Law allows, shall we?

131.605 Definitions for ORS 131.605 to 131.625. As used in ORS 131.605 to 131.625, unless the context requires otherwise:
(1) "Crime" has the meaning provided for that term in ORS 161.515.
(2) "Dangerous weapon," "deadly weapon" and "person" have the meaning provided for those terms in ORS 161.015.
(3) "Frisk" is an external patting of a person's outer clothing.
(4) "Is about to commit" means unusual conduct that leads a peace officer reasonably to conclude in light of the officer's training and experience that criminal activity may be afoot.
(5) "Reasonably suspects" means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625.
(6) A "stop" is a temporary restraint of a person's liberty by a peace officer lawfully present in any place. [1973 c.836 &#167;30; 1997 c.866 &#167;2]


131.615 Stopping of persons. (1) A peace officer who reasonably suspects that a person has committed or is about to commit a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.
(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.
(3) The inquiry shall be considered reasonable if it is limited to:
(a) The immediate circumstances that aroused the officer's suspicion;
(b) Other circumstances arising during the course of the detention and inquiry that give rise to a reasonable suspicion of criminal activity; and
(c) Ensuring the safety of the officer, the person stopped or other persons present, including an inquiry regarding the presence of weapons.
(4) The inquiry may include a request for consent to search in relation to the circumstances specified in subsection (3) of this section or to search for items of evidence otherwise subject to search or seizure under ORS 133.535.
(5) A peace officer making a stop may use the degree of force reasonably necessary to make the stop and ensure the safety of the peace officer, the person stopped or other persons who are present. [1973 c.836 &#167;31; 1997 c.866 &#167;1]


131.625 Frisk of stopped persons. (1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and dangerous to the officer or other persons present.
(2) If, in the course of the frisk, the peace officer feels an object which the peace officer reasonably suspects is a dangerous or deadly weapon, the peace officer may take such action as is reasonably necessary to take possession of the weapon. [1973 c.836 &#167;32; 1997 c.866 &#167;3]

As you see, according to the Oregon Revised Statute 131.615, a police officer CAN stop you if he has "REASONABLE SUSPICION" that the person has committed or is about to commit a crime. ORS 131.605 establishes what reasonable suspicion is. Then under 131.625, the officer "may take any such action as is reasonable to take possession of the weapon."

The situation and the fact that Biggie was openly carrying already establishes that he is armed. His attitude will establish if he is dangerous or not. The responding officers had no reason to suspect he was, and the weapon was in "plain view", so there was no seizure of his property. The stop also remained within the vicinity, and Biggie was not placed in restraints or forcibly moved.

Some of you really need to look at the law before disiminating false information. The police were legally allowed to stop Biggie, and they proceeded as the law allowed. We really have no idea if the way Biggie presented the situation is true or not, since there are always three sides to everything: Side 1, Side 2, and the Truth. But based on the situation he described to us, nothing illegal occured and the police had every right to do what they did AND MORE (like taking possession of his weapon). That is the law. If this has been unclear to anyone, or if I have missed anything, or if i am incorrect, please say so and provide valid and citeable corrections, not just whining that the "popos" are out to get you.

 

[parallax]

Rule #1
never give the po-po a reason to mess with you.
you will always lose.(they have much better lawyers, they're lawyers are of no cost to them, your lawyer will cost you thousands, win or lose.)
they dont care about your rights. you will always lose.
much better strategy to avoid any initial contact in ALL situations.

 

[KomradRazvan]

Jeebus, man...
Get a grip!

lol. Just doin my part. That's all.

 

[TheHossUSMC]

Many of the response I read hear make me want to start drop kicking people in the kidneys. Those who would give up a single solitary inch to these low lifes in the city governments are worse than these crappy legislators that would take our rights from us. You know who you are and you shame those that defend the few liberties that we have left.

I open carry in Portland, and often the suburbs, every day. I am in construction and carry onto my job sites, which most often are public buildings. I also go to a coffee place in the morning where there always seems to be 3 to 4 cops sitting at one of the tables. I know for sure they have seen it because I have seen them watching me in my car mirrors when I leave. To date I have yet to have a single interaction with PPB. I have had many many people very interested in me carrying, but that is it. I even thought that they would toss me out of the lloyd center when I went to the book store, but nope.

I also open carried in Eugene when I lived there, and I had constant contact with the local police. They eventually just drove up saw it was me and drove away. The VERY FIRST thing you do when a police officer contacts you is to turn on a recording device, not make any sudden moves and state "I will consent with all lawful orders and refuse any and all searches" If he says anything else to you then refuse to answer questions without a lawyer. You are NOT required to show ID to anyone unless you are performing an act that requires a license. In that case you may be required to produce THAT license and that alone. Also carry an OC pamphlet and know the important laws by heart.

It is a dishonorable thing to conceal a weapon on your person. It is only in recent history that honorable men do it on a regular basis. Since this website is supposed to be an advocate for open carriers then I suggest that those who would ever encourage someone to ever conceal carry to respectfully shut up. I pledged my life to defend the republic and the liberties that we enjoy. When I come to a forum like this and read some of the crap I read, some days I'm sorry I did.

 

[SonicBlue03]

It is a dishonorable thing to conceal a weapon on your person.

Why is that?

 

[Wheeler44]

It is a dishonorable thing to conceal a weapon on your person. It is only in recent history that honorable men do it on a regular basis. Since this website is supposed to be an advocate for open carriers then I suggest that those who would ever encourage someone to ever conceal carry to respectfully shut up. I pledged my life to defend the republic and the liberties that we enjoy. When I come to a forum like this and read some of the crap I read, some days I'm sorry I did.

Good for you Hoss..Keep on keepin' on....W44

 

[TheHossUSMC]

Why is that?

Look back in history, only criminals conceal their weapons.

 

[SonicBlue03]

Look back in history, only criminals conceal their weapons.

Off duty police for many years carry concealed. I'm trying to understand what is a very broad generalization. It makes my line of thinking go a different direction and to a question about soldiering and tactics - is it your position that true soldiering occurs with face to face conflict and that ambush from cover (like the Taliban or insurgents use today) is cowardly?

Not passing judgement, just trying to understand your positions more fully before offering any thoughts on it.

 

[TheHossUSMC]

Off duty police for many years carry concealed. I'm trying to understand what is a very broad generalization. It makes my line of thinking go a different direction and to a question about soldiering and tactics - is it your position that true soldiering occurs with face to face conflict and that ambush from cover (like the Taliban or insurgents use today) is cowardly?

Not passing judgement, just trying to understand your positions more fully before offering any thoughts on it.

Warfare tactics is a totally different subject. By saying look at history I mean look at all of mankind. There honestly is no reason for good men to conceal a tool that one would use as a defensive weapon.

Sorry reply is from my phone I Matt expand my ideas later.