State v. Albertsen
590 P.2d 235
Or. Ct. App.
1978
Check Treatment

*1 26, 1978, petition for review December August affirmed Argued 15, 1979, May 286 Or 435 denied OREGON, Respondent, OF STATE ALBERTSEN, Appellant. EUGENE JOHN 10723) (No. CC77-566, CA Avera, Dallas, L. the cause for Sally argued appel- Avera, her the brief was Avera and lant. With Dallas. Salem, General, Smith,

Allison Assistant Attorney the brief With him on argued respondent. the cause for General, Walter and Redden, Attorney A. James were General, Salem. Barrie, Solicitor L. Thornton Schwab, Judge, Chief

Before Tanzer, Judges.

SCHWAB, C. J.

SCHWAB, C. J. for the seeks conviction Defendant reversal ORS 487.560. while felony suspended. was insufficient "reason- Defendant contends there operating. able the car he had been suspicion” We and affirm. disagree, along

An while observed highway, parked defendant) (the with being a car a man pass driven his marked woman The officer passenger. pulled car onto the same patrol highway heading car, Almost in the officer’s immediately direction. words, stopped.” "swerved to the shoulder and over The had not to be slowing car officer appeared down to onto the pulled high- before the officer car, way. passed The officer traveled á stopped down pulled parked. mile or more off and highway, A minutes few later the same officer passed with riding the woman and the man as a The passenger. highway back onto pulled and followed the car *3 a mile. The male passenger about times. turned and looked the officer The at several violation,” suspecting "license-type stopped Investigation car. the defendant’s revealed that driver’s license had under suspended been This followed. prosecution influence intoxicants. and the con- Defendant relies ORS 131.615 1, Ohio, 88 S Ct stitutional v. 392 US Terry doctrines of (1968), 1868, 20 L Ed 2d for the proposition rules, we have Under these stop unlawful. merely motor be to stopped held that vehicles cannot v. the driver’s State verify license. (1976). 599, The state contends

Or 554 P2d 194 App v. on State that, erroneously relied holding, in so we 1, authority, as Cloman, 254 Or 456 P2d 67 "we are not the court in stated because Cloman the driver’s to examine passing upon right be. But may n That license.” 254 Or at 2. operating Court we how the Supreme fail to see the fact that we establishes regards as unresolved question wrong Johnson, in Wesson. were our own resolution Supreme guidance In the absence of further from Court, Johnson, also State v. we adhere to Wesson.See (1978); (1978); Carter/Dawson, 34 Or Brister, 579 P2d 863 State State v. Or Tucker, Thus, probable there must be cause to believe a being license offense is jus committed —which would tify and immediate arrest or citation in lieu of arrest —or reasonable to believe a license being offense is justify committed —which would an investigative stop inquiry. and further There is no probable question cause issue in case; this is the reasonableness of the officer’s assessing suspicion, In the reasonableness of it is appropriate quantity quality to consider what conceivably information could officer. be available to an probably always law, There is no violation of public, possible committed with as few outward manifestations as the crime of while sus pended and related license offenses. against yardstick

Measured of what facts can conceivably suspicion, imagine create it is difficult stronger suspecting case for a license offense was being Upon seeing police pull committed. a marked him, onto the road behind defendant "swerved” off the stopped. passenger road and Defendant and his ex changed places. again When the officer followed the driving, kept glanc car defendant had been defendant justified ing Terry-type If is not backward. relating facts, to driver’s of statutes these enforcement ancillary investigation only possible licenses will be perhaps *4 accidents, infractions, of other traffic the We conclude roadblocks or the like. reasonable.

Affirmed.

[682] THORNTON, J., concurring.

I concur. I would here and now Additionally, adopt the rationale of the cases cited in the margin,1 and would declare that under provisions of ORS 482.040(2)(b)2 a police may a vehicle to identity driver, check the of the driver’s motor vehicle or operator’s license the motor vehicle registra tion without of first necessity establishing reasonable doing before so that the driver had committed a See, Johnson, crime. State v. 10 Or 499 P2d rev den with the agree view expressed cited cases to hold otherwise would in effect prevent proper enforcement of our traffic laws.

As the United States Court Supreme recently ob served in United States v. Martinez-Fuerte, 428 US 543, 561, 96 CtS 49 L 1116, 1130 Ed 2d another automobile case: "* * * [0]ne’s expectation privacy of in an auto-

mobile and of freedom in operation its are significantly different from the traditional expectation of privacy and * * *” freedom in one’s residence. "* * * practice [T]his of stopping briefly automobiles for questioning long history has a evidencing utility its and is accepted by motorists as incident to highway use.” 428 US at 561 n 14.

It follows from the necessarily above that I would overrule our decision in State v. (9th States, 1965); 1 Lipton v. United 348 F2d Cir Patmore United (DC

States, 1972); Holmberg, 290 A2d 573 194 Neb State v. 1973). (Tex (1975); State, NW2d 672 Leonard v. Cr SW2d 482.040(2)(b) provides: ORS possession immediate "The licensee shall have such license vehicle, display it and shall all times when a motor at deputy peace or justice peace, or a field demand of any charge this under inspector the division. It is defense operator’s or charged produce person in court an that the so subsection valid at the to him and was license that had been issued chauffeur’s time of his arrest.” *5 similar (1976), and any effect. to the same this court previous expressions TANZER, J., dissenting. the majority opinion except

I all the agree with of I that the observations paragraph. last would hold to constitute reasonable the officer are not sufficient suspicion. only the

As in the majority opinion, indicated suspicion facts which a reasonable objective upon his car are that the defendant pulled be based might shortly in of the officer sight the shoulder the over to him, that driving the behind began after trunk, that and his opened defendant out of his car got the with thereafter woman was shortly seat, the defend- and that defendant in the passenger the officer his looked toward ant turned head and times. several do not find that majority,

Unlike the I "* * * for stronger case imagine it to is difficult being committed.” a license offense was suspecting defendant, the sight All was that the happened that drivers, there- over, changed of the pulled easily I him. can police after at the car behind looked to and, unless we were cases imagine stronger several all, to I find it difficult no facts at suspicious require articulable case. The imagine requirement weaker has facts a reasonable objective justifying I reason, dissent. met. For that not been of the the additional rationale disagree I also with that ORS is ground The first concurring opinion. 482.040(2)(b), possess requires a licensee which it to display a motor vehicle license when police for offi- demand, authority blanket gives upon license operator’s his any motorist to check cers to Most of reasonable necessity without hold, including two of found, so cases I have which are based concurring opinion, relied cases upon an express provision statute analogous which authorizes to make such police stops.1 Conversely, in those states where the statute does not expressly authorize for most stops inspection, courts have refused to read stops authorization for into statute.2 agree with view we read should not into a statute an authorization to detain police persons where the statute has no words to effect. 482.040(2)(b) ORS requires display motorist operator’s license upon demand, but it does not au *6 a thorize police officer motorist for stop purpose making Therefore, such demand. regard less of any problem, constitutional there is no statuto ry basis in Oregon for without reasonable stop

Furthermore, the decision of the United States Supreme Court Martinez-Fuerte, United v. States 428 543, 3074, US 96 S Ct 49 L Ed 2d 1116 relied on in the concurring gives no cause to opinion, overrule our decision in State v. 26 (1976). 599, 554 App P2d 194 That was holding expressly limited to "fixed as at the checkpoint” stops, border, 428 atUS 559. This is not such case.

Because I cannot agree that there was sufficient objective justification on stop suspi- reasonable cion and because agree cannot is statutory there 1 Blackwelder, 352, (1970); App v. State 34 SE2d v. NC 238 190 State 337, 231 14, Benson, Holmberg, (1975); 194 672 Neb NW2d State v. 198 Neb State, (1977); 251 NW2d 659 cert 434 576 den US 833 Leonard v. 496 SW2d (Tex (Tex 1973), State, App 1976); App Cr Faulkner v. 549 1 SW2d Cr State Allen, 503, v. 282 194 9 NC SE2d 2 (DC 1977); Montgomery, People United States v. 561 F2d 875 v. (Del Prouse, McPherson, (1976); Supr v. 550 P2d 311 State 382 A2d 1359 1978); Ruud, 647, (1977); Mestey, People v. 402 State v. 90 NM 567 496 577, 107, (1978); Swanger, 61 AD2d 777 Commonwealth v. Pa NYS2d 453 James, (1973); People 300, 88, App v. Ill 358 A2d 875 Ill 3d 3 Dec (1976); (1978); Bonds, 130, v. v. NE2d State Haw 577 P2d 781 State (1976). Contra, Ochoa, State, Az 2d 544 P2d 1097 Kinard v. 335 So (Ala othergrds, 335 So 2d on remand335 2d 927 rev’d So Crim (DC 1976); States, 1972); City United 290 A2d 573 Palmore v. Sandy, (1978); Lipton 2d Overland Park v. Kan (9th 1965). States, Cir United 348 F2d 591 of reasonable absence for a

authorization suspicion, unauthorized I conclude suppress the evidence the motion and that law sup- been have should from which resulted Accordingly, reverse. pressed. I would