*1 Jаnuary 11, September Argued affirmed and submitted February denied reconsideration (292 863) April Or petition for review denied OREGON, OF STATE Appellant, HENRY, RAY TIM Respondent. A20891)
(No. 1074t, CA Stephen Attorney Peifer, F. General, Salem, Assistant argued aрpellant. the cause for himWith on the brief were Frohnmayer, Attorney Gary, Dave General, and William F. *2 General, Solicitor Salem. Delapoer, Albany, argued James B.V. cause
respondent. Healy, With him on thе brief were F. James Long, Delapoer Albany. Post, Koos, P.C., & Presiding Judge, Joseph, Richardson, Before Chief Judge, Judge. Hoomissen, Van
RICHARDSON, P. J. opinion. dissenting HOOMISSEN, J., VAN RICHARDSON, P. J. the influ- under driving action for this criminal sup- order intoxicants, appеals pretrial the state
ence of is whether issue pressing evidence. was a in which defendant the vehicle
lawfully affirm. passenger.1 We taken dispute, in are from which are
the court’s written order: am, Linn Jеgglie, a approximately Wendell
“At 3:14 Sheriff, traveling on Grand County Deputy eastbound patrol. He vehicle Road on routine observed Prairie Road, roadway intersecting Grand parked Spicer deputy Prairie, engaged. The emergency its flasher with Spicer in a direction. proceeded onto Road northbound deputy approached the defendant’s vehicle the When the headlights disengaged, turned flashers were emergency on, rapidly. It is not and the defendant’s vehicle accelerated deputy first clear Court aware that when became parked facing the defendant’s vehiclе was north lane, but there reason to believe southbound no was not as the officer testified. There defendant *3 parked, in ditch to left of where the a vehicle the the parked. partially This defendant had been vehicle was patrol lights. illuminated the car’s The officer was able occupants to the or see into vehicle and did observe in a school in the area of the vehicle. Therе is individuals nearby. the area number of immediate and a residences information, any than “The officer did not have other made, accepted the he is in these observations which suspi- stopping findings. His reаson the vehicle was his cion been committed. At no time that have stopped any did that the of he indicate he vehicle because of traffic violation law.”2 that, police the concluded under these court a suspicion
officer not have that defendant reasonable 131.605(4).3 131.615(1), committed crime. ORS 1 defendant, vehicle, passenger in the does not contend as a The state that standing lacked contest the to of vehicle, After the officer concluded defendant under intoxicating liquor influence from made defen of and determined statements driving which the the ditch. dant that he had been the vеhicle officer observed 131.615(1) states: argues
The state the court erred in refusing uphold stop as a traffic stop, infraction because the officer observed defendant’s vehicle north in facing the southbound traffic lane. ORS 487.165. The argues: “If a traffic stop independently is and objectively justifiable for a violation committed in the presence, stop officer’s improper is not merely because the officer had other Tucker, It cites State v. motives for the stop.” Valdez, and State v. (1977). P2d 1006 disagree
We with the interpretation state’s “objective” applied standard to be in determining whether a Statе v. stop supra, proper. stopped officer car defendant’s after the defendant failed to use his turn but the signal, officer’s actual motive for stop was his suspicion drug activity. of The officer did аttempt justify stop stop, as a traffic ignored court also stop unreasonable, basis. The court found the to be applying “ objective standard requires which the officer point ‘to and articulable give facts which rise to activity inference that criminal is afoot.’ 277 Or at Tucker, supra, holding 626. This was clarified in where the officer was suspicious of the defendant watched him until he failed to at a stop sign. Thе officer violation, the defendant for the traffic but actual his motive for the was to investigate the defen- dant’s suspicious behavior. The court stated:
“Valdez says holds that when a although he observed а traffic he violation reason, entirely made for an different and was not laws, concerned with enforcement of the traffic the courts him will take at his word. It does not hold that when an violation, stops sеes and when he purpose violation, citing violator for the avowed for that *4 peace reasonably suspects person “A officer who that a has committed may stop and, person infоrming person the after the that he is a officer, peace inquiry.” make a reasonable 131.605(4) states: “ ‘Reasonably suspects’ peace means that a officer holds a belief that is totality еxisting reasonable under the of the circumstances at the time and place he acts as authorized in ORS 131.605 to 131.625.” the purposes of stop improper for the will hold the court had also the officer exclusionary if it concludes rule omitted.) (Footnote Or at stop.” the motives for other 94. applies “objective to the facts test” making upon is the The test the officer
relied applied entirety officer could have or the of facts that the rely upon. and chose not or failed to should have observed hindsight justification for allow a view would a The state’s stop suspicion. in fact on the оf mere the officer acted basis when provide bootstrap which the We decline to the prosecution may properly dis itself. The trial court hoist regarded possible justification as the traffiс infraction the rely stop; it. the himself did not for the noted, the for officer’s reason As court suspicion that a crime was his defendant’s vehicle analyzed justification be committed. This must have been to 131.625. under thе and frisk statutes. ORS 131.605 describing statutory Supreme standard, Court said: “ * * ‘* point he is able to [W]hen give to the inference that
articulable facts which rise afoot, activity has the officer a “reasonable criminаl investiga- suspicion” and can individual for hence Valdez, supra, Or at tion.’ 626. points following justifi- a The state facts as rapid upon stop: departure hour, late the for the cation apparently officer, abandoned vehicle arrival of parked presence ditch, in the an often-bur- glarized in the immedi- school and a number of residences argues, facts, ate area. On these reasonably suspect involved in defendant was could burglarized nearby stripping or had vehicle or residences. school support objectively, viewed may have involved
the inference that defendant been stripping There no evi- the car in ditch. stripped being or that dence that that car anything companion and his done defendant As at the vehicle. other than look burglary, justification suspecting the facts were *5 508
even
report
weaker. There was
no
that
school or
nearby
just
residences
been burglarized, which
would
marginal
greater
have allowed
facts to
sig
take
455,
nificance. See State v. Dеnny,
App
27 Or
been stop justified bewill on the basis of required fewer articulable facts than those where the officer general making inquiry the possibility into that a crime * * * might App been have committed. 43 Or at 668. present support facts of case a reasonable suspicion that defendant had committed a crime. Valdez, v. supra, compels
State us to conclude that the stop was unlawful.
Affirmed. HOOMISSEN, J., dissenting.
VAN The vehicle in which riding1 defendant was was stopped after officer observed and articulable evidence which would policeman lead а reasonable to con- clude that a traffic infraction had been committed Therefore, driver of the vehicle.2 ORS 487.165. the stop was justified. 484.350(4).
I the majority opinion take to that hold if the stopped hаd testified that one he reasons infraction, vehicle was he because observed traffic stop upheld, would have been but because the officer failed testify, so that that may infraction not sеrve as the basis for a valid and prosecution of a serious traffic infraction been compromised.3 has finds majority this result is dictated 561 P2d (1977). 1006 why It is not to me clear did not raise the issue of defendant’s
standing validity cоntest 2The trial court found that there was no reason to believe that defendant was illegally parked as the officer testified. The trial court found that the officer’s reason for the vehicle was his suspicion committed, that a crime have been at no time did the any officer indicate he the vehicle because of violation of law. Tucker, P2d 1364
In State Supreme Court said: “* * * Valdez presented both the Court of involving the of an Appeals this court as a case investigatory stop. not contend that The state did justified by infraction and we did not decide the traffic the case on that basis.” Tucker, that: Tоngue Justice observed
“Valdez says that when a holds he although he observed a traffic violation reason, entirely made a for an different and was not laws, the courts with enforcement of the traffic concerned *6 * * * added.) will take him at his word. (Emphasis 286 Or 494. at
Thus, together, appear taken Valdez and Tucker to estab- of an officer’s action will be propriety lish rule that officer’s motivation rather thаn judged subjective objective my opinion logical evidence. In such a rule is not or desirable. 479, 485,
In State Carter/Dawson, v. (1979), P2d the Supreme Court held that an officer’s are not question motives relevant of an justifiable stop.4 me, otherwise To this is reason- able and realistic. Applying to the facts Carter/Dawson here, I conclude allowing trial court erred in defendant’s motion to suppress. case,
This as wеll as Tucker and Carter/ Dawson, should be required reading every law enforce- ment officer in the state. Carter/Dawson, State the evidence deliberately placed indicated the officer the vehicle under there surveillance before primary investigation traffic violation. The officer’s interest was the burglaries recent in the area.