Thе trial court entered an order suppressing evidence on the ground that defendant was illegally stopped by police officers and dismissed harassment (ORS 166.0659(1)(a)) 1 and criminal mischief (ORS 164.354(l)(b)) 2 charges which arose out of defendant’s actions after the stop. The state appeals.
Defendant аllegedly shoved one of the officers with his hands and fists when the officer attempted to frisk for weapons pursuant to ORS 131.625.
3
He was then arrested for harassment. After a struggle, he was placed in the back seat of a police car. In an apparent attempt to kick оut a window, he damaged the inside of the car, which gave rise to the criminal mischief chargе. The trial court ruled that the stop was invalid under
State v. Valdez,
Defendant was stopped by a Portland pоlice officer on surveillance duty near the mayor’s home. He was stationed there because threats had been made against the mayor. The officer saw defendant pаrk his car, get out and walk along a sidewalk in the direction of the mayor’s house. Defendant stepped off the sidewalk near a hedge and disappeared from view. The officеr walked over to the area and saw defendant sitting on *108 the front porch of the house nеxt to the mayor’s, smoking a cigarette. The officer watched for several minutes. Defendаnt got up once and went to the door of the house, but did not go in. He sat down again. After a whilе the door opened and a dog came out. The officer later testified that he assumed the dog belonged to defendant. Nevertheless, he radioed that he had seen a suspicious person and needed help. He was joined by two other police officеrs. Shortly thereafter, defendant walked with the dog to the sidewalk, where he was confronted by thе police. The first officer told defendant to stop because they wanted to talk tо him. He refused. One of the others told him to stop, but he again refused. Eventually, an officer moved toward defendant and began an external pat down for weapons. It was then that he аllegedly shoved the officer with his hands and fists.
We agree that the stop was unlawful under ORS 131.615. 4 The officers had no basis for any suspicion that defеndant had committed a crime.
The trial court concluded that the illegality of the stop rendered inadmissible all evidence of subsequent events, including evidence of independent сrimes directed toward the officers. With that conclusion we do not agree. A violation оf the stop and frisk statutes requires application of the exclusionary rule to evidence — both physical evidence and sensory observations — obtained as a result of the illеgal stop or frisk.
State v. Fairley,
Reversed and remanded.
Notes
ORS 166.065(l)(a):
"A person commits the crime of harassment if, with intent to harass, annoy оr alarm another person, he:
"(a) Subjects another to offensive physical contact * * *”
ORS 164.354(l)(b):
"A person commits the crime of criminal mischief in the seсond degree if:
sj:
"(b) Having no right to do so nor reasonable ground to believe that he has such right, he intentionally damages property of another, or, he recklessly damages property of another in an amount exceeding $100.”
ORS 131.625(1):
"A peace officer may frisk a stopрed person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other pеrson present.”
ORS 131.615(1):
"A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is а peace officer, make a reasonable inquiry.”
ORS 161.260:
"A person may not use physicаl force to resist an arrest by a peace officer who is known or reasonably appears to be a peace officer, whether the arrest is lawful or unlawful.”