APPEALS COURT OKS CITY'S RESTRICTIONS ON SUSPECTS

Portland Is Allowed To Ban Suspects From Drug- And Prostitution-free
Zones Before Trial

Portland police can go back to issuing orders that prohibit people
charged with drug or prostitution offenses from going into designated
parts of the city, according to an Oregon Court of Appeals ruling
issued Wednesday.

Without dissent, a three-judge panel reversed a 1997 lower court
ruling that said issuing a temporary exclusion order and prosecuting
someone for the same drug arrest violated the constitutional ban on
double jeopardy, or being punished twice for one crime.

"This is a victory for neighborhoods," said Jim Hayden, a deputy
Multnomah County district attorney.

Portland's drug-free and prostitution-free zones have continued to
function at least in part since 1997, but Wednesday's ruling restores
a key component that allowed police to exclude defendants from the
designated zones for 90 days before they went to trial.

Civil libertarians and criminal defense lawyers said they were
disappointed in the decision but that the ruling possibly left open
the door for another appeal.

Portland first adopted its drug-free zone ordinance in
1992.

The ordinance identified areas of the city with serious drug problems.
The boundaries have changed over time, but the city now has drug-free
zones in downtown, on East Burnside near the Willamette River and two
in North/Northeast Portland.

The ordinance covers anyone arrested on drug charges within one of the
zones. In addition to making the drug arrest, police also can issue an
exclusion notice that prohibits the person who has been arrested from
entering the drug-free zones for 90 days.

If they are convicted later of the charges, they face an additional
one-year exclusion.

Violation of that order carries a possible arrest on trespassing
charges.

Prostitution-free zones, begun in 1995, work similarly.

Hayden said the purpose of the exclusion is to keep offenders out of
the neighborhoods where they are causing grief.

"The pattern had been that they would come right back to the
neighborhood," he said.

In 1997 Robert J. James was arrested on charges of drug possession
within a drug-free zone and issued a 90-day exclusion notice. After
his indictment, James claimed the exclusion notice combined with the
criminal sanctions he faced amounted to double jeopardy.

Multnomah County Circuit Judge John A. Whittmayer agreed, basing his
decision on a 1989 U.S. Supreme Court ruling. Later that year,
however, the U.S. Supreme Court disavowed its ruling and set out a
seven-part test to examine whether a civil penalty on top of
prosecution adds up to double jeopardy.

The Oregon Court of Appeals found that -- on balance -- Portland's
drug-free zone ordinance passed the test. The 90-day exclusion did not
amount to the traditional punishment of banishment. Nor was it
designed for retribution.

The ordinance demonstrates "a concern for the quality of life in the
designated zones in general and not a desire to seek retribution
against individuals who commit crimes," wrote Judge Paul J. De Muniz,
the author of the opinion.

The panel also looked at the ordinance under the Oregon Constitution,
specifically whether the exclusion process, which has an avenue for
appeal, amounts to a second criminal prosecution, which also would be
double jeopardy.

De Muniz wrote that lawyers involved in the case analyzed the question
incorrectly. He suggested the proper analysis was to consider the
historical purpose of the drug-free zone ordinance.

David Fidanque, executive director of the American Civil Liberties
Union of Oregon, said the decision could be appealed or the analysis
suggested by De Muniz could be raised when the case goes back to Whittmayer.

A spokesman for the Oregon Department of Justice, which defended the
ordinance on appeal, said he did not think De Muniz' suggestion opened
much of a door.

Despite the 1997 ruling, Portland's drug-free and prostitution-free
zones have been partially in effect.

Drug possession cases, for example, are typically resolved quickly.
And in exchange for a shorter term of probation, most drug possession
defendants accept the one-year exclusion, Hayden said.

People charged with drug-dealing, however, have been able to avoid the
90-day pretrial exclusion. If convicted, they face the one-year exclusion.

One result of Whittmayer's ruling was the dismissal of several hundred
drug and prostitution charges against defendants who had been given
90-day exclusion notices. Gary Meabe, an assistant Multnomah County
district attorney, said the charges could be brought back, but the
decision would be up to District Attorney Michael Schrunk.

Hayden already had been planning to go to the City Council in June to
seek expansion of the drug-free zones. He said the ruling will give
him momentum.

"Not only can I tell you that drug-free zones are effective, but I can
tell you they are constitutional,"he said.