In State v. Miglavs, 337 Ore. 1, 90 P.3d 607 (Or. 2004), the Oregon Supreme Court has also addressed the issue of whether gang membership provides reasonable suspicion that a person poses a risk to an officer's safety and thus permits a frisk for weapons under the Oregon constitution.
In that case, a police officer stopped three individuals she suspected of violating a curfew. Because the officer was alone and the stop occurred in a dark parking lot, she requested assistance. 90 P.3d at 608.
Two backup officers arrived and the police determined two of the individuals were free to go. However, they remained while the officer continued to investigate the third person for a possible curfew violation. Id. at 609.
The officer became concerned for her personal safety because the individuals were wearing distinctive clothing that identified them as members of a specific urban gang, and members of that gang were known to carry weapons. Id.
The Oregon court concluded the police had reasonable suspicion to frisk for weapons. Id. at 611-13. In reaching its conclusion, the court stated that neither a person's appearance alone nor "clothing that announces a gang affiliation" provides the individualized suspicion required to conduct a frisk for weapons. Id. at 613.
The court emphasized that it was the officer's training and experience with the particular gang to which the defendant belonged and her knowledge of the weapon-carrying propensities of that gang, together with the circumstances of the detention, that provided the particularized suspicion sufficient to support the frisk. Id. at 613-14.