In June 2021, we asked the Oregon Supreme Court to consider a person’s race and language when analyzing whether a reasonable person would feel free to leave a police encounter.
Petitioner, Saul Reyes-Herrera, is an Hispanic man and native Spanish-speaker. Mr. Reyes-Herrera was approached by a Hillsboro police officer and told in English that he was free to leave. The officer later asked petitioner in broken Spanish "no drogas?," to which petioner said "no." The officer then gestured to try to ask him if he could search the petitioner and defendant said "sí". The officer found methamphetamine in petitioner's pocket. Petitioner asked the court to exclude that evidence under Article I, section 9, of the Oregon Constitution, arguing that the officer seized him without reasonable suspicion. The trial court allowed the evidence, so the petitioner appealed. The Court of Appeals affirmed without giving an opinion explaining why, so Mr. Reyes-Herrera petitioned the Oregon Supreme Court to review the decisions.
The ACLU of Oregon filed an amici brief with partners at OJRC, DRO, and IMIrJ to support Mr. Reyes-Herrera in this case. In our brief, we ask the court to reverse the previous decisions because Mr. Reyes-Herrera was stopped in violation of Article 1, section 9, of the Oregon constitution. Like the Fourth Amendment, Article I, section 9 prohibits unreasonable searches and seizures. To determine whether a seizure has occurred, the court looks at whether an objectively reasonable person would think they were free to leave in the totality of the circumstances. In particular, we urged the Oregon Supreme Court to evaluate this case in light of social science research demonstrating the inherently coercive nature of police-civilian encounters, particularly when the civilian is a person of color and a language barrier exists. In doing so, we ask the Oregon Supreme Court to adopt a rule of law that considers a person’s race and language in the totality of the circumstances analysis and objective reasonable person test as to whether a person is seized under Article I, section 9, of the Oregon Constitution.
December 9, 2021 Update:
While the court did not need to make a rule in this case about the relevance of race and language, it also made explicit that our argument is not off the table. We are pleased that the court protected Mr. Reyes-Herrera’s constitutional rights, and will continue to ensure that courts think about and account for race and language when making its decisions.
This case is a great reminder to Know Your Rights and how to protect them when encountering police.