*1 May 12, denied Argued reconsideration affirmed March July 1, 18, petition for review denied June v. SHANNON OREGON, Appellant, STATE OF GIBBONS, LEE (No. 16-910) Respondent. Attorney Burgess, General, Sa- Assistant John W. argued appellant. him on the the cause With lem, *2 Attorney and W. General, brief Lee were Johnson, Salem. General, Gillette, Michael Solicitor argued Gary Babcock, Defender, Salem, D. Public respondent. and filed the brief for cause Judge, and and Before Chief Lee, Fort Schwab, Judges. LEE, J. activity being criminal indicted for
After suppress drugs, defendant moved 167.207, OBS following her seized from her car evidence ac- of criminal vehicle without reasonable tivity. judge on the motion the basis The trial allowed “subjective suspicion” insuf- was of the officer appeals pursuant justify The state ficient to 138.060(3). to OBS July 2 a.m. on essential facts are: At about po- city Tillamook of the
5, 1974, White, Officer department, parked in a car near the lice (Highway 101) First streets intersection of Main city. de- the car driven He observed along turn north fendant street then travel First city proceed Highway approximately 2 101 and vicinity of a drive-in. The car then turned blocks to the southerly along proceeded in a direction around and Highway where it turned 101, back to First street disappeared minutes west and view. A few from reappeared travelling east on later, the same vehicle Highway First 101 where street to the intersection southerly right proceeded it di- made a turn approximately y2 rection distance of blocks light before officer it with the red of his patrol car.
The defendant had violated no traffic laws. Washington plate car had a license and was not known nothing to the officer. There was nnnsnal about the operated. manner in which the car was However, at suppression hearing, Officer White stated de- “appeared fendant to be confused” and he testified further as follows: just “I felt that she wasn’t familiar with the
city, might something wrong and there this late morning: strange and unusual hour car, of the Washington patrolling license, back streets, streets, off of main street.” stopping Officer White testified that after de- operator’s fendant’s vehicle, asked for her license (while conversing through the car window which she down) had rolled and he could smell “a moderate odor *3 of alcohol on her breath a and moderate odor of mari- (later
huana in the vehicle” described as “burnt mari- huana”). Within the vehicle he also four bot- noticed paper tles in a coming sack and the odor of marihuana from the sack which defendant handed to him. Ex- “green vegetable amination of the sack revealed ma- appeared terial” that to be marihuana.
The officer then asked defendant if he could look “yes” opened the trunk and she said the trunk pack- which contained two full bottles of beer and a sack with a 35 millimeter tin box which contained white pills pink pill, subsequently a identified as am- phetamines. placed Defendant was not under arrest discovery until of the tin box which contained after the contraband. The central issue raised this case is whether original stop justified. of the defendant’s car was dealing unmindful of with this issue we are not thorough police investigative work. the need for Crime prevention apprehension is of criminals as well as thereby sympathize with the aided. while we Yet, recognize agents, we also needs of law enforcement they operate This within the bounds of law. must compels against latter consideration us to find state in this case. applicable
There is both case and statute law to this case. We consider first the statute. ORS 131.615(1) states: reasonably suspects peace “A that per- officer who may stop person a has committed a crime informing a and, son after that he is
peace inquiry.” make a reasonable officer, (5) 131.605(4) and ORS state: “(4) ‘Reasonably peace suspects’ means officer that is reasonable under holds a belief totality existing at the time of the circumstances place and 131.625. he acts as authorized in 131.605 ORS “(5) ‘stop’ temporary of a A restraint person’s lawfully liberty by pres- peace officer any place.” ent in compelling the defendant officer’s squarely
at the within the stat side of the street fits utory 131.605(5) ), stop (ORS definition of a 131.615(1) bringing play thus and ORS into ORS 131.605(4). of Did the Our then becomes: reasonably suspect ficer had com defendant mitted a time the defendant? crime compels negative record answer. evidence every give To officer carte hold otherwise would *4 stop anyone unbridled chose, blanche to his own stopping discretion. Nor statute authorize does the just they may someone officer believes because the support just case cannot “lost.” facts of this suspicion had committed defendant reasonable that the community. The a vacation crime. Tillamook is visi- middle of when summer, time involved was the to label the de- context, tors are abundant. In this “strange” meaningless. lateness is fendant’s light of the date the hour also be viewed should July may ju- —July night 4. take or the after We July major na- dicial notice of fact that is holiday, accompanied frequently tional fireworks merrymaking (indeed, and other the defendant testi- companion fied that had been in Taft until she her p.m. about 11 there and were com- the fireworks nearby community ing to Tillamook via the Sand Lake). That a motorist from our sister state to the Oregon sojourn north chose to coast is not at on the surprising expected. things, all but rather to be These together change even taken with a of directions on the (legally accomplished) suggest street to a rea- do person sonable driver of the vehicle has com- convincing point mitted a crime. Most all this on testimony: the officer’s own — you you again: “Q But I’ll Did said ask
you suspect any engaged criminal she was activity at that time? — really say suspected, “A I I didn’t I can’t any signs because I didn’t. She didn’t show me * * *” any activity. criminal statutory authority The officer exceeded his in mak- ing
The Criminal Law Revision Commission’s Final Report Oregon Draft and on the Criminal Procedure (which here) Code includes the statutes considered commented the section under consideration as fol- lows:
“* * * [Reasonable that a has committed or is ‘about to commit crime’ is *5 344 any precedent of a interference to
the condition by peace person’s liberty officer. [*] # # # “* * * [W]hen unusual observes an officer reasonably in to conclude conduct which leads him activity
light experience is that criminal of his specific point able to afoot and when he is give inference to the articulable that criminal which rise facts activity ‘rea- has the officer afoot, is suspicion’ indi- hence can sonable investigation. vidual for
“* * * * supplied.) (Emphasis Oregon Proposed 26, Procedure Code Criminal Commentary, (1972). § 31 leads to case law statute, our Even without the same result. right to be where
If not have the the officer does objects sought to be he at the time he finds the is unjustified. the seizure is State used then evidence, (1973); 568 State Keller, 628, v. 510 P2d 622, App Sup Sagner, Ct 510, 12 506 P2d 459, 472, v. passage (1973). In this connection review denied Evans, 189, 16 from our decision in v. State is review denied P2d Ct 193, 1225, 517 relevant:
“* * # gave probable ihe observation while contraband, cause that defendant carried to believe only may upon support the search it if be relied vantage. a lawful from the observation occurred constitutionally imper not, then the search is If Wong States, missible. v. 371 US Sun United (1963); Corbett, L Ed 2d 441 S Ct [Sup (1973). rev Ct 15 Or iew denied (1974)].” right where officer’s case,
In the instant (and marihuana, he smelled at the time was, search) requisite ato cause hence have original justification for the turns pertinent found we most The case law find Evans where we said: “* * * person, holding matter no of the A meaning of arrest has within how is a seizure minor, though oc- no
Fourth Amendment even curred. As stated 88 S Ct Terry 1, 16, Ohio, 392 US (1968): L 2d Ed “ * * recognized that whenever It must be *6 police restrains an a officer accosts individual away, has his freedom to walk he “seized” * *’” * person. App 194. 16 Or at Terry 16, Ohio, 1, In Evans we v. 392 noted US (1968): 1868, S Ct L Ed 2d 889 “* * * specifically is there holds that where person a but an officer sees cause, may acting suspicious in a manner, he detain * * person App inquiry for a brief 16 Or at 195. quoted
In Evans we from Mr. Justice White’s concurring opinion Terry in as follows: “ * * nothing There is in Constitution prevents addressing ques- policeman which from anyone special tions to cir- on the streets. Absent person approached may
cumstances, not be may cooperate detained or and but frisked refuse to * * ” go way. App 196. his 16 Or In Evans we also stated that: police any right “The have no than other less approach inquiry make re- another and * * n * garding of The en- circumstances interest. subject
counter Fourth of becomes to the restrictions however, when the citizen’s Amendment, * * freedom of movement restricted App at 194. language suggests
This of distine- the crux tion in before us this case. We do not deal here sitting approached with a driver who while a ear is by police question. officer and asked In such a person inquired case the has in no sense been de- compelled anything. may, or if tained, do He ignore altogether. wishes, the officer distinguishing feature in this is that case signalled by police patrol the defendant was pull compliance stop; signal over and her with this cannot be viewed her as own choice. uncoerced She compelled was, in a real sense, to submit to the offi presence; cer’s she was detained. As we noted Evans, il* ** liberty Eestraint of either can arise physical authority, means or force show Terry supra, Ohio, 392 US at n. and the equally constraint of volition is real whether it by implication authority arises from the color of express or from their command.
* * *” at 196-97. What defendant was detained for this case perhaps accurately can most an in- described as vestigatory stop. Head, 321-22, 509 P2d Ct review denied we *7 justification stop investigatory stated the for an is a suspicion reasonable of a with criminal connection activity. Huddleston, To same effect is State App Sup 5 9, 13, 454, P2d denied Ct review (1971). clearly The record in this case shows stop, at the time of the reason- Officer White had no activity able of a with connection criminal —indeed the officer this admits himself. by support
The cases cited the State in of a contrary position distinguishable all are on their facts. App Sup In Lewis, State v. 10 Or 499 P2d 836, (1972), police Ct review denied were notified hospital may drug that the defendant have had and it, the car, spotted The overdose. let- to the hospital, to return agreed the defendant noticed drive. The police his ting companion she and “erratically” was companion driving after her driv- her about at the hospital, questioned arrived the steer- check permission ing. police asked found so, they In doing was ing ; permission granted. to this case, contrary In of a crime. evidence erratically, be driven one, the car was seen to (a) not detained was (b) being questioned the person the vehicle. stop there was no any way, (c) Smith, In 10 Or even was not the initial validity stop
(1972) In the defendant brief, his opinion. discussed the appeal but focused mentioned the issue obliquely and ar- cause to search the existence approached rest after officer had arresting that he defendant’s vehicle. The officer testified that a before defendant shortly stopping learned within at a store grab” reported “smash had been about a mile of the officer first noticed the where defendant’s car. State v. 526 P2d Walton, App 603, was Ct review denied (1974), of the vehicle
Sup involved. sheriff observed Rather, deputy in Port- Halsey vehicle three lanes of Street blocking per- land at 3 a.m. car were three intoxicated In the sons, removing all unable to walk. As the was deputy on the the third a hard was noticed occupant, object occupant’s person, which turned out to be a concealed weapon. The search that followed revealed illegal drugs. P2d Childers,
In State v. 622, 624, was no also Ct review denied there the vehicle of a stop. Again, presented — ramp a.m. on a boat at 1:20 already stopped *8 Rogue to 15 feet from the River. Prior to that time, slowly” park moving “very the car had been in state deputy approached area. to The sheriff the car ask point thought a. and at that he detected the odor of marihuana. The defendant also had slurred speech. deputy away taking The drove without then away further action. defendant also drove and Then, deputy deputy the followed. The then noticed that 483.406(2) (no the defendant was in violation of ORS light deputy stopped plate). over his rear license registration the defendant and his asked see vehicle replied which the defendant was lost. After defend- ant refused the the car, consent to search officers equipment an the conducted check of vehicle found Thereupon inadequate it had an hand de- brake. reg- fendant was arrested because of the absence of inadequate istration and hand brake. The car away inventory subsequent towed search illegal drugs of the vehicle, case, were found. this thought then, what was be the smell marihuana having stopped was detected without the officer or any way detained the defendant or his vehicle. When actually stopped, clearly the car was there was more than reasonable that a crime had been com- (no plate light). mitted license Bright, State v. again, already
concerned case where, car was stopped; occupant. furthermore, there was no midday car was discovered at on the shoulder of a unpopulated mountain road in an area. The vehicle plate. had an out-of-state license About two months before, officer had recovered a stolen vehicle alongside highway general the same same area. approached investigate, The officer car con- sidering possibilities the car was stolen or may key abandoned, that be a to someone in help, protection against need of or that the car needed looking for the damage course of *9 In the theft. or stolen registration officer discovered the certificate, goods. Clearly, detained. no one was
Cady Ct Dombrowski, 413 US no also involved L 2d Ed police Chicago stopping awas of a vehicle. Defendant driving he had after drunk man who was arrested for searching car the defendant’s In a accident. one-car police day revolver, next for defendant’s service of murder. of the crime found evidence except Childers, there cases, In all of these detaining stop in issue. a no a vehicle nor of of plate light “crimi- license Childers, In was the there stop. justified the nal connection” that Cloman, 254 Or cites The state also stop (1969). on the There the attack probable cause to lack the vehicle was based on explained Supreme that Court necessary stop make but also cause was not such held that * * “* stop [T]he a car to de- can occupants identity
termine the and its of the vehicle they suspicion have a reasonable if occupants or with criminal its a connection have activity.” (Emphasis supplied.) at 254 Or 6. Court found “* * * in had rea- this case The officers light-colored sonable 1959 Cadil- They light-colored knew had lac. been Cadillac stopped a truck was backed
observed where up garage a.m. un- a residence 4:00 loading something large quantities cop- per appeared to had been wire which be stolen immediately garage thereafter and found such copper reputations as wire some men who had a.m., about thieves were At 5:00 Cadillac. report, they an hour after the first observed a light-colored 1959 Cadillac about a mile from the place where the wire was found.” 254 at 9. Finally, Caproni, the state cites State v. (1974).
789,
In all of these cases where the of the upheld, right search had been the officer has had a to be where he was when the evidence was observed leading or the cause to a warrantless search came to the officer’s attention. In all the cases deal- ing stop with the of a vehicle, some reasonable sus- picion of criminal connection was established. principles place
These the instant case a dif- category. ferent In this the no case, officer had right detaining to be where he was and the of the suspicion defendant was without of criminal connec- testimony tion. The officer’s own shows there was the time of the criminal at no of connection making stop, stop. after the did, While the officer examine license, ask defendant’s driver’s this the purpose need not address the of the We validity purpose stop for and we here, of this expressly decline to do so.
Affirmed. dissenting. C.
SCHWAB, J., opinion cogently trial court’s identified issue in case: this original stop “The here Was the is: justified?
of the car White defendant’s Officer If it was, the fact that smelled Officer White emanating marijuana odor alcohol and burned talking from the car when he was to the driver through open window would have justified a warrantless search of the vehicle for marijuana. beverages both alcoholic stop “If the of the defendant’s car was not justified, resulting justified.” search was not stop I would hold defendant’s car to have been justified, respectfully disagree and thus with the trial majority’s contrary court’s and conclusion. writing
Were we on a blank slate, there would permit be much to said rule would law any enforcement officers motor vehicle us- ing Oregon highways any any time for reason. present unique use and abuse of motor vehicles contemporary problems, subject extensive at- *11 tempted legislative See, control. chs ORS 481-486. But attempted empty gesture much of the control is an example, if, the driver whose license has been suspended right has a constitutional not to be display using and asked to his license. Motorists our highways “long-arm” are deemed to consent to service process, of ORS 15.190; such statutes have been held
352
Pawloski,
352,
274
47 S
constitutional. Hess v.
US
using
(1927).
our
Ed
Motorists
632,
Ct
71 L
1091
highways
to
chemical
to
certain
are deemed
consent
seq;
statutes
tests,
et
such
483.634
intoxication
OES
Dept. Motor
constitutional. Heer v.
have been held
(1969).
it
Vehicles,
533
Could
455,
252 Or
450 P2d
using our
motorists
not
be concluded that
likewise
highways
consented momen
can be deemed
have
compliance
tary
with
detention sufficient
insure
Ingle,
People
L
17
traffic
v.
Cf.,
control laws?
Crim
April
1975).
Rptr
App
(NY
1,
2084
Ct
Cloman,
v.
254
But the slate is not blank. State
(1969),
law
Or
before
P2d
holds that
1, 6, 456
67
they
stop a
vehicle
enforcement officers can
motor
its
have
the car or
must
“reasonable
activity.”
occupants
criminal
have
connection with
Terry
L
2d
v.
392
20 Ed
Ohio,
1,
1868,
88 S Ct
US
substantially
(1968), adopts
gov-
889
same rule
erning police stops
pro-
I
Thus,
afoot.
of individuals
assumption
possible
regardless
that,
ceed on the
of the
drawing
merit
rule
the constitutional
distinction,
stops
applicable
stops
in-
to motor vehicle
and to
dividuals
is
not motor vehicles
the same.
applying
I
think it should first
rule,
clearly
established that an officer’s statement that
activity
personally suspect
not
did not
criminal
controlling.
regard
policeman’s
as
do
Just
we
grounds
as
statement
that he
to search
does have
necessarily controlling, e.g.,
Hughes,
v.
20 Or
State
App
(1975),
not necessar-
353 Temple, denied State v. 7 P2d (1973); 91, 488 Ct review denied cert denied 406 US Keith, State v. (1972); 465 P2d Sup Ct review denied (1970). See Clo also, man, supra. The test be: a reasonable should Would person, or law enforce knowledgeable experienced in ment, reasonably conclude from the perceived facts by the officer there was basis for a search or short, the test should be an one objective based on a rather than a reasonable-person standard, subjective one based on the conclusions of the individ ual officer. then becomes whether the facts con- an officer
fronting rise to give to search authority based on probable cause or to authority stop based on reasonable suspicion.
The facts are always almost of alterna- capable tive interpretations. For a driver example, going around the block late in a night residential neigh- borhood, as the defendant did in this case, could be looldng a house to or could be burglarize look- for an ing open gas station. And an individual walking back and forth on the sidewalk repeatedly looking Terry Ohio, a store window —the facts of supra— might be or planning robbery to meet a waiting friend. sayWe the facts need not criminality indicate beyond a reasonable doubt in order to establish prob- Dills, State v. able cause to search. Or App we (1974). say And reasonable suspicion authorizing stop is less than something Caproni, cause. State v. 529 P2d App 789, But (1974). defining authority search or stop by negation leaves to be something desired.
Remembering facts can be of al- capable ternative I think interpretations, the better way articulate the test is: if the (1) facts, evaluated ob- likely likely
jectively,, as or more indicate that it is possesses a crime and that a has committed probable cause crime, evidence of that this constitutes (2) ob- evaluated facts, arrest and if the search; possibility jectively, any there reasonable indicate *13 person com- committed or is about that a has momentary Terry-type crime, mit stop authorizes a a this an individual. of a motor vehicle or of Applying I here, half of that rule the second was a would conclude there think reasonable possibility a a was commit that defendant about stop of her car. Defend- this authorized the crime; ant couple Highway changed on directions of times a driving by punctuating excursions onto side, her very night. There It at residential streets. was late burglaries had area. been nothing majority un- “There was states, * * * [defend- usual about the manner which operated,” App ant’s] at car was Or * * * support a rea- “The facts cannot concludes, sonable had defendant committed Terry a tells law, at 343. On the crime,” possi- stop permitted me a based a reasonable bility a whether defendant was about to commit crime; possibility a committed” there was defendant “had incomplete is an the rule. crime On statement simply disagree “nothing I un- facts, there confronting usual” I think defend- here; officer late-night meandering through area ant’s residential burglaries sufficiently un- where had occurred was usual to authorize the of her vehicle. many think court,
I of the decisions this by majority, support my discussed tend to con- majority distinguishes clusion. prior those However, they po- decisions on the basis that involved stopped approaching vehicles, lice officers motor stopping whereas I of a this case involves the vehicle. produce persuaded should am this distinction Regardless a curacy theoretical ac- different result. of the majority’s occupants belief that by already approached when “ignore altogether,” officer are free to the officer looking 75 Adv Sh to the a “citizen’s realities, freedom of Evans, movement is State v. restricted,” supra, by equally being as momen- tarily stopped momentarily being prevented as starting. from
I would reverse and for trial. remand