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Officer's suspicion not enough for probable cause

Jan 2, 2014


By NIGEL DUARA
Of the Associated Press

PORTLAND — Setting off alarm bells in the mind of an experienced police officer is not enough reason to compel a search, and it certainly isn't a good enough reason to arrest someone, the Oregon Court of Appeals said in a ruling Thursday.

The court threw out the conviction of a woman charged with violating a Portland municipal law that forbids acts that appear to encourage prostitution, such as someone lingering in a public place or a driver repeatedly circling a block. The ruling underscores the narrow line between what police suspect and what actually constitutes criminal activity.

“Evidence that a person is in a high-crime area, is engaged in ambiguous conduct, and appears to want to avoid police observation does not give rise to reasonable suspicion to stop the person,” wrote Associate Court of Appeals Judge Rebecca Duncan.

The ruling finds the officer's search was illegal, suppresses the evidence in the case and sends it back to Multnomah County Circuit Court.

A Portland police officer working the city's notorious 82nd Avenue corridor on March 8, 2010, saw a woman with a record of prostitution convictions walking along the sidewalk and occasionally looking over her shoulder. The section of the street on the east side of the city is considered a high-vice area and is home to many sex businesses.

The officer considered the woman's manner of dress important. She wore an above-the-knee skirt, heeled boots and a puffy jacket.

“Just coming out (to 82nd Avenue) and acting in a manner that (she) did, in my mind is a substantial step towards the act of prostitution,” the officer testified later.

A pickup truck passed her, pulled into a convenience store parking lot and stopped. The woman, Sharita Martin, also stopped, turned toward the pickup truck and adjusted her boot.

The officer pulled toward Martin and the pickup truck. At that point, the officer believed Martin knew that he was watching her. The pickup took off and the officer followed for three or four minutes, then decided the driver was not going to turn around and pick up Martin.

He returned to her area and saw that she was now walking the opposite direction on 82nd Avenue. She stopped and talked to a woman whom the officer knew to be a prostitute.

The officer stopped Martin, asked to see identification and told her he suspected her of attempting to commit prostitution. Martin refused to provide him with any identification, and the officer arrested her.

At trial, Martin's attorney argued that the stop was illegal. Multnomah County Circuit Judge Leslie Roberts ruled that the search was legal but the evidence “is just as close to the margin as I can recall,” and conceded that an appeals court could rule against it.

On Thursday, the appeals court did.

“The officer's experience is relevant to what inferences the officer may draw from the circumstances,” Duncan wrote. “But, an officer's experience cannot form the entire basis for reasonable suspicion.”

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Reach Nigel Duara at http://www.twitter.com/nigelduara .

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