# State v. Kennedy

> Court of Appeals of Oregon · April 14, 1980 · 45 Or. App. 911

URL: https://www.frixlaw.com/law-library/cases/9628186

## Case

- **Full name:** STATE OF OREGON, Appellant, v. LEROY FRANKLIN KENNEDY, Respondent
- **Court:** Court of Appeals of Oregon
- **Decided:** April 14, 1980
- **Citations:** 45 Or. App. 911; 609 P.2d 438; 1980 Ore. App. LEXIS 2618
- **Precedential status:** Published
- **Opinion:** Dissent by Tanzer
- **Judges:** Thornton, Tanzer, Tempore, Campbell, Schwab, Gillette
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Reversed on other grounds by State v. Kennedy, 290 Or. 493 (1981).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9628186

## Opinion text

TANZER, J., Pro Tempore,
dissenting.
I regard the contact to have been of the third type categorized in State v. Warner, 284 Or 147, 161 , 585 *921 P2d 681 (1978): "questioning without any restraint of liberty (mere conversation), requiring no justification.” Police are as free as others to ask people to speak to them. Only when request becomes command, does the Fourth Amendment come into play. State v. Evans, 16 Or App 189 , 517 P2d 1225 (1974). The police conduct in this case was consistently in terms of request rather than command and there is no objective basis upon which to find that defendant could not leave. This contact did not involve a use of authority of sufficient magnitude as to be a stop or detention within the meaning of Terry v. Ohio, 392 US 1 , 88 S Ct 1868 , 20 L Ed 2d 889 (1968).
Schwab, C. J., and Gillette, J., join in this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9628186. Public record. Not legal advice.