LawyersUSA

A police officer lacked reasonable suspicion to search a suspect for a concealed weapon after seeing the suspect carrying an identifiable weapon, the Oregon Court of Appeals has ruled in reversing a trial court.

The defendant was riding his bicycle in a rally to promote bicycling as an alternative means of transportation. A police officer assigned to patrol the rally on bicycle rode next to the defendant and saw several inches of a sword handle protruding from behind the defendant's neck. The police officer inquired about the object, the defendant responded that it was a "ninja sword," and removed the sword from a sheath that was wedged between his back and a backpack. As he removed it, the officer saw that it was a double sheath containing a second sword with its handle on the opposite end.

The officer arrested the defendant for carrying a concealed weapon. The defendant appealed his conviction, arguing that the police officer lacked reasonable suspicion to stop him and that because the sword was visible, it was not a concealed weapon.

The court agreed.

"In light of the plain meaning of the statutory language and prior cases interpreting similar statutes, we conclude that a person violates [state statute] by carrying on his person a weapon that is either not readily identifiable as a weapon or by attempting to obscure the fact that he is carrying a weapon his person.

"Here, [the officer] could readily identify the sword as a sword based on the visible portion of it. The state did not contend to the trial court that defendant had unsuccessfully attempted to hide the sword, and there is no evidence in the record to support that contention. There is also no evidence in the record to support a finding that [the officer] believed that the sword was concealed when he directed [the defendant] to pull over… Because [the officer] lacked reasonable suspicion to believe that defendant was carrying a concealed weapon at the time that he motioned for defendant to pull over, he unlawfully stopped defendant," the court said.

Oregon Court of Appeals. State v. Turner, No. A131309. Aug. 13, 2008. Lawyers USA No. 99310618. Click here for the full text of this opinion.