# State v. Miglavs > Court of Appeals of Oregon · February 19, 2003 · 186 Or. App. 420 URL: https://www.frixlaw.com/law-library/cases/9796384 ## Case - **Full name:** STATE OF OREGON, Respondent, v. DANIEL PAUL MIGLAVS, Appellant - **Court:** Court of Appeals of Oregon - **Decided:** February 19, 2003 - **Citations:** 186 Or. App. 420; 63 P.3d 1202; 2003 Ore. App. LEXIS 256 - **Precedential status:** Published - **Opinion:** Dissent by Edmonds - **Judges:** Deits, Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Kistler, Brewer - **Cited by:** 9 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9796384 ## Opinion text EDMONDS, J., dissenting. There is much in the majority opinion with which I agree. In my experience as a prosecutor, I had the opportunity to ride with police officers who conducted investigations involving potentially dangerous people in dark places in the middle of the night. I am fully cognizant of the dangers that they regularly face under such circumstances, and I agree that we, as a court, should avoid second-guessing an officer’s life-or-death judgments in the field, if possible. Having said that, I believe that it is also important to recognize that the constitution protects the right of association. All citizens, whether they belong to the local church or synagogue or to an urban gang, are protected from unreasonable searches and seizures by the government, and for good reason: we are a society governed by the rule of law. Without adherence to the constitution, we become a lawless society. There is no exception to the constitutional protections against unreasonable search and seizure applicable only to those who belong to gangs, wear baggy gang-related clothing, or identify with groups known to be violent. As we said in *436 State v. Baldwin, 76 Or App 723, 729 , 712 P2d 120 (1985), rev den, 301 Or 193 (1986), “[p]eople are entitled to be evaluated on their individual behavior, not that of groups to which they belong. See Reid v. Georgia, 448 US 438 , 100 S Ct 2752 , 65 L Ed 2d 890 (1980) (that a person fits a ‘drug courier profile’ does not create reasonable suspicion justifying a stop in the absence of particular suspicious conduct by the person) [.]” Rather, regardless of his dress or affiliation, defendant’s conduct must be evaluated by the objective standard of particularized reasonable suspicion that the constitution imposes for determining if the officer’s frisk was lawful. 1 After the officer in this case finished her investigation of defendant and after he was free to leave, the only additional fact that could have caused the officer an objective concern that defendant might pose an immediate threat of serious physical injury to her or others was that he remained at the scene while she continued her investigation. Significantly, she did not tell him that he could leave, nor did she request that he "stand back” or depart the scene. Moreover, defendant did not refuse to leave or act in a threatening manner toward the officer at any time. It necessarily follows from those circumstances that the purported threat to safety that defendant posed was no greater at the end of the investigation that it was at the beginning. Except for his apparent gang affiliation, he was like any other citizen who was lawfully present at the scene and about whom there was no reasonable suspicion of any criminal activity after the officer ended her investigation of him. The officer who conducted the patdown did so only because of the officer’s previous experience with gang members, the gang’s reputation for carrying weapons, and defendant’s apparent affiliation with that gang. Thus, under the majority’s decision, any person dressed in gang attire and present in a mall or other public *437 place is subject to a police patdown even in the absence of individualized suspicion. Rather, the patdown may be based on nothing more than circumstances under which a weapon could easily be concealed and the individual’s apparent association with a particular gang whose members are known by an officer to commonly carry weapons. In my view, such a rule does not pass muster under either the state or federal constitution because it fails to acknowledge the requirement that there must be “a reasonable suspicion that defendant specifically was armed and presently dangerous.” Baldwin, 76 Or App at 727 (emphasis in original). I dissent for that reason. Brewer, J., joins in this dissent. That objective standard is that an officer may take reasonable steps to protect himself or herself or others, “if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present.” State v. Bates, 304 Or 519, 524 , 747 P2d 991 (1987). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9796384. Public record. Not legal advice.