POLICE ACT CAUTIOUSLY WITH SEARCH LAW

Agencies approve policy for implementation, now are considering reporting
process

A new law that gives Oregon police agencies sweeping new powers to stop and
search suspects is in place, but agencies are moving cautiously to use it,
police officials say.

The first half of the law went into effect Oct. 4 and allows officers to
stop, question and search people they have reason to suspect might have
committed a crime or are about to commit a crime.

"This is a huge, a big change," Gresham Police Chief Bernie Giusto said.

Beginning July 1, the power expands to routine traffic stops, allowing
officers to search people they suspect are about to commit a crime and ask
any questions they think are necessary to ensure the safety of anyone
present.

Reasonable suspicion, according to the policy, is at the discretion of the
police officer and must be more than a hunch or feeling but may be less
than probable cause "necessary to make an arrest." In short, officers can
stop and frisk a suspected criminal based on their training and experience.

In justifying a stop, the law says, officers must be able to point to
specific facts, such as whether a person's clothing bulges, "in a manner
that suggests he or she is carrying a weapon."

The stop may not be motivated by "an officer's perception of the person's
race, color, sexual orientation or national origin."

Oregon law-enforcement officials say the law brings the state more in line
with laws nationwide.

"We're going to use it cautiously and specifically in places where there
are large gatherings and situations where crimes have been committed in the
past," Giusto said.

The law began as House Bill 2433, passing the House 39-20 and the Senate
20-9. Gov. John Kitzhaber approved it during the summer.

State Sen. Randy Leonard (D-Portland), past president of the Portland
Firefighter's Association, had been ready to vote against the measure but
decided to sponsor it in the Senate after Kenneth Bryan Shanafelt, 39, of
Vancouver, Wash., was shot and killed in June in downtown Portland.

"I had deep concerns about the bill and was leaning against it," Leonard
said. "I was afraid that it would be used to stop someone for `driving
while Hispanic.'¦"

Opponents said the law might let officers search people solely based on
skin color or appearance.

But Leonard said he has faith in police to act properly.

Police had stopped the man arrested in Shanafelt's shooting earlier that
night, before the shooting, as he walked with a group of other men.

But officers, operating under the old law, could not even ask whether he
was carrying a gun.

"Now they can," Leonard said. "Maybe this law would have saved Shanafelt's
life."

David Fidanque, executive director of the American Civil Liberties Union of
Oregon, said the law is ripe for the kind of abuses that can occur in civil
forfeiture cases, where drug money or property is seized from suspected
drug dealers.

"What we saw were large seizures of cash from people with Hispanic names,"
Fidanque said. "We looked at the records of six Oregon State troopers and
the civil forfeiture arrests they made during an 18-month period. What we
found is that if you were Hispanic, you were 20 times more likely to be
stopped and searched than white drivers - that's what we want to avoid."

Leonard said that if the law is abused, he'll be the first to see that it's
rescinded.

Part of the law required police agencies to adopt a written policy by Jan.
31 on how best to implement the law and to give officers strict guidelines.

The Governor's Public Policy Council examined the new law based on two
parts. First was the policy issue and how it was implemented, but it was
left up to the agencies to put specifics on paper.

Second was a system requiring each agency to submit reports to the
Legislature annually on how the law is implemented, including complaints or
grievances filed by citizens who were stopped to make sure the law is not
abused.

That process is under way.

Diverse Group

McMinnville Police Chief Rodney Brown is on the council with
representatives from the American Civil Liberties Union and civil rights
organizations.

"It's a diverse group of individuals, with more civilians than police
officers," Brown said. "We reviewed case law from around the country that
helped clarify and made formal what actions the officers could take in the
field."

Agencies will have until March 1, 1999, to make their first report to the
Legislature.

The collecting of data is going to be the hardest part of implementing the
new law, said Capt. Bill Bennington, head of the Portland Police Bureau's
internal affairs division.

"There are at least 1 million traffic stops a year in Oregon, and obviously
you can't collect data on all of them," Bennington said. "So the collecting
will be complaint driven . . . and we already have a complaint procedure in
place. Most agencies don't."

Christopher Williams, acting executive director for the Oregon Commission
on Hispanic Affairs, said the biggest issue concerning the new law is to
make sure that it's not being used inappropriately and that officers who do
abuse it are disciplined.

Complaints A Sticking Point

"We would rather have seen it not passed," Williams said. "The other
problem is the fiscal impact - if collecting the data is done correctly
it's going to be expensive, but funding it was not part of the law."

Williams, who is also on the council, said he has been pushing to enlist
the help of Latino groups statewide to act as liaisons for those who want
to complain to the police that the law was used unjustly. Police on the
board have resisted that effort.

"The trust level is not there," Williams said. "A sticking point is how to
get the complaints to the police . . . we're all holding our breath to see
how it comes out."

The written policy on how officers used the law was adopted three weeks ago
by police agencies statewide. In Gresham, officers have been trained in how
to implement the law and were briefed by members of the Multnomah County
District Attorney's office.

Portland officers have received in-service training on the new law, and at
least five general orders based on the new law are being changed,
Bennington said.

"For a large agency such as the Portland Police Bureau or us, it's a bit
easier to collect the data,"

Giusto said. "It's a matter of resources for the smaller agencies - they
don't have the money or the time to do it properly."

Marion County District Attorney Dale Penn, as a member of the Oregon
District Attorneys Association, was instrumental in getting the bill before
the Legislature. Despite the concerns, he sees it as a way to avert
dangerous situations on the streets.

"It's a tool to stop crime before it starts," Penn said.