Defendant was convicted of robbery in the first degree and, pursuant to ORS 166.230, given an enhanced penalty for committing a felony while armed with a concealable weapon, and appeals. He first assigns as error the denial of his motion to suppress evidence.
At 1:45 a.m. on November 21, 1975, the defendant and another 1 robbed a Circle K market in Albany at gunpoint and departed. The clerk immediately called the Albany Police Departmеnt and officers arrived at the scene before she had hung up the telephone. Policemen were ordered to deploy themselves at several intersections along the most likely routes of flight from the grocery store.
At 1:48 a.m., Officer Zucker was directed to proceed to the intеrsection of Queen and Pacific Boulevard, both of which are commonly-used routes leading from the Circle K market. He was told that the robbery hаd just occurred and that there were two suspects, one tall, one short, and that they were possibly of Spanish origin. He was also informed that they had been disguised with masks and were armed with a pistol. Officer Zucker took approximately three minutes to reach the intersection. There was nо traffic at that time except that he immediately observed a 1964 Rambler approach the intersection. He saw that two men occupied the automobile and he fell in behind them. The car stopped for a red light and pulled out at a four to five mile per hour "crawl.” Officer Zucker observed that one occupant was tall and one short. The short one turned for a "sneak peek” at the officer’s car. The overly сautious manner of driving was more exaggerated than that of motorists who normally tend to drive more cautiously when they notice that they are within pоlice observation.
Based upon those observations, Officer Zucker *458 ordered the automobile to stop. The driver got out immediately and the officer then noticed that he had a Spanish оr Mexican appearance.
The store clerk was brought to the scene five or ten minutes later and she identified the suspects as the robbers by their builds, by the clothing they were wearing, and by the presence of an orange ski cap which was visible in the automobile. The suspects were thеn arrested. The car was searched. Weapons and distinctive clothing were seized in plain sight and currency was found under the floor mat and it is this evidence which defendant moved to suppress.
The issue is whether the original stop of the automobile was based on sufficient police knowledge to justify a reasonable suspicion that the defendant was connected with a crime. The standard for such a suspicion was recently analyzеd in
State v.
Valdez,
The quantum of knowledge constituting cause in this case is minimal. The police knew that a grocery store had been robbed some six minutes before by twо men, one short, one tall, of probable Spanish or Mexican origin, and that a car containing two such men was proceeding alone in the sparse traffic of the early morning hours down a major street leading away from the grocery store within six minutes’ travelling time from the grocery store.
If this were a general inquiry into the possibility that a crime might have been committed, then the observations of the defendant and his companion would be insufficient to justify a stop.
State v. Johnson, Wesson,
"* * * In the more usual case, however, the police are called to the scene of a just-сompleted crime and are able to obtain only a general description of the offender. Experience has shown that when the victim or witness cannot name the offender his apprehension is unlikely unless he is immediately found in the area, so the police response in these сases is to broadcast the general description and bring as many officers as possible into the area to search for a person or persons fitting the description. However, courts have generally taken the position — and this is the most striking illustration of the 'more probable than not’ test — that an arrest may not be made upon a general description when the circumstances, including the lapse of time and size of the areа being searched, are such that more than one person would likely fit that description.
"In such a situation, as even many who oppose stop and frisk in other contexts would likely admit, the police must have some authority to freeze the situation. If it is inherent in the circumstances that no one рerson can be singled out as the probable offender, then it should be permissible to detain briefly every person in the area who fits the generаl description. Clearly, only one can be guilty, but as to each of the suspects there exists a substantial possibility of guilt. Common sense, of course, suggеsts that whether the possibility is substantial will depend upon the size of the area in which the offender might be found (which in turn depends upon how recently the crime was committed and whether the offender fled on foot or in a car), the number of persons now in the area, and the extent to which the general description affords some basis for selection. If, for example, a robbery occurred some fifteen minutes earlier and the only repоrt is that the robber wore brown shoes, and there are several hundred people on the streets in the area, no one would seriously suggest that аll those with brown shoes should be stopped.” (footnotes omitted). LaFave, 'Street Encounters” and the Constitution, 67 Mich L Rev 40, 79-81 (1968).
*460
We need not go so far as the comment suggests to uphold the stop whеre, as here, there was reason to suspect that the defendant and his companion could be the persons involved in the immediately reсent robbery.
State v. Jones,
Defendant also assigns as error his enhanced three-year sentence for committing a crime while armed with a concealаble, unlicensed firearm, in addition to his seven-year sentence for armed robbery. The Attorney General concedes that this issue was decided favorably to the defendant in
State v. Howe,
While his argument also has some logic, we believe our construction in Howe of the Criminal Code is more in harmony with the intent of the revision, particularly of the portion restructuring sentences for criminal offenses, ORS 161.505 to 161.685. Therefore we adhere to Howe and the sentence must be vacated.
Remanded for resentencing.
Notes
See State v. Chiago,