*1 6, 1983, July Argued circuit and submitted affirmed and remanded to court OREGON, OF STATE review, Respondent JACKSON, DARYL SCOTT Petitioner on review.
(Nos. 10-81-11077, 10-81-02508, A24955, A24956, 29473) CA SC Eugene, argued petitioner McCrea, Robert J. the cause for petition Morrow, on review. With him on the and brief was Eugene. Divita, P.C., McCrea & Attorney Barton,
Robert E. General, Salem, Assistant argued respondent the cause for on review. On the brief were Frohnmayer, Attorney Gary, Dave General, and William F. General, Solicitor Salem.
JONES, J. dissenting opinion
Lent, J., filed a in which Linde and join. Roberts, JJ.,
JONES, J. be the trial court should
The issue is whether by a evidence obtained suppression ordering reversed of the interior observation traffic officer’s infraction. for a traffic that he had motor vehicle findings: the trial court’s quote We from 20, 1981, February Defendant as the night “On the upon 11th Avenue from an operator a van entered East City Eugene, Ferry in the alley Mill and Streets between way signing but no 11th is a one street Oregon. East Avenue coming posted onto it from effect was for motorists way, wrong discovered alley Defendant turned the exited 11th he came to and the first intersection error at Eugene Police point. Tatum of the at that Officer Avenue stopped Defen- movements and Department observed these dant’s vehicle. and, plates bore California “Defendant’s vehicle officer, displayed a valid California
request Defendant registration. operator’s license and valid California resumed patrol unit and then “The returned to with Defendant. contact
<<* * * * * *3 proceeded then from some reason the officer “For side, passenger the van to the around the front of driver’s side positioned beside step beyond he was then and a two where or compart- egress from the sliding ingress and door used passenger’s seats. the driver’s and ment of the van behind sliding door light through the window at the flashed his thought might contain he two beer cans which and observed open law. of ‘the container’ and thus be violation alcohol dispute. The officer these cans is “The location of and between the driver they the console testified were on they were on a stool testified passenger seats. The Defendant have been probing search would A more those seats. behind recalled they if were where the officer necessary them to see they required had been been being than would have them by the Defendant. described the location the officer open beer cans motivated presence “The upon unrelated whereupon he came other enter the vehicle contraband.”1 1 open container to have an B traffic infraction makes it a Class ORS 487.843 upon compartment passenger liquor of a motor
containing in the alcoholic highway. possession Eventually, citations for defendant “was issued open an ounce and for container.” of less than felony charges of later indicted on The defendant was possession substances, i.e., LSD and unlawful of controlled cocaine, found the officer when he which were substances in the van. searched suppress court,
In the trial the defendant moved to ground that it the evidence obtained from his vehicle on unlawfully obtained because: “ (1) performed The searches and seizures were without a warrant;
“(2) existed; probable cause No
“(3) existed; exigent No circumstances “(4) consent; There was no valid “(5) The searches and seizures were not otherwise lawful justified.” subjoined He to his motion as authorities which he relied the Fourth and Fourteenth Amendments to the United States Oregon I, Constitution and Article Section Constitu- tion. appeal,
On the defendant contended that the officer unlawfully had ing detained defendant after all matters concern- “satisfactorily processed”
the initial had been visually that the officer “examined the interior of his vehicle during this detention.” He cited to the trial court State v. (1979), P2d Wight, support prevailed contention. Because the defendant the trial court issue, level on at trial this first his other contentions raised appeal.2 were not asserted in this suppress. arguments support Defen Defendant made other of his motion to ostensibly dant contended that the had entered his van because of violation of open they container law when their not determine “from observations could whether or not such containers would constitute violation.” Next, argued through tray that the had searched an ash through seizing areas of the van after two beer cans and without further other
probable cause. *4 through He also contended that the had searched his van and into closed being under arrest. containers without a search warrant and without the defendant Finally, arguments concerning made written his contention that other opened, searched and the contents seized without warrant and containers had been cause, prior probable without to his arrest. court, having findings quoted
The trial made the above, following came to the conclusions: opinion
“It is the and conclusion of this Court that wrong way having driving made the on a officer way having defendant was the one street and concluded that had, operator point, owner and of the vehicle at that lawful nothing suspicion him he before to arouse a reasonable inquiry inspection conduct further or or examination should Nothing him to of the contents of the vehicle. was before reasonably provoke opposite circling to the side of the van conducting spaces search into the interior of any point. vantage the van from that thought “The testified he he observed the Defen- bump or knock over the beer cans. This occurred before dant nothing he saw beer cans the vehicle. This Court discerns furtive, testimony suggest the movement was was done anything, to reach to conceal was an effort or conceal a weapon leading or was manner untoward or of a nature person suspect investigation further or search would be required. principles applied in State v.
“This Court concludes the wrongfully control and that evidence was However, suppressed. such of seized and should therefore be destroyed the evidence seized which is contraband must be rather than returned to the Defendant.” mentioned, the trial court found that the
As because beyond an what the trial court officer conducted Dawson, under State v. permissible concluded was Carter/ necessary to resolve the trial court did not find it supra, legal to other pertinent in the evidence that would be conflicts suppress. raised defendant’s motion to issues trial court appealed, contending The state holding” “rationale and of misapplied state, therefore, to reverse the asked to the and to remand the case suppression trial court’s order of disputes presented the factual trial court for resolution of legality for further consideration of the the evidence and items inside the vehicle. the “search and seizure” of Appeals, defendant, in his brief in the Court application the trial court’s defended *5 Wight, estab- supra, that that case and State v. contended not Fourth Amend- “Oregon dependent lished an rule” officer’s the argues circling ment law. that the shining flashlight passenger front of the van and into the side window was an intrusive invasion of his impermissibly privacy, stop by not other exigent necessitated traffic The defendant the officer an began circumstances. claims that stop to the unrelated traffic without artic- sensory perceptions ulable action. justify such The state urges that central is the of a permissible issue “duration a stop” for minor infraction. traffic Appeals Court of adopted argument the state’s
by concluding that the extension of the time of the stop that action the officer was “de minimis.” The Court Appeals stated: primary argument anything
“Defendant’s to be seems that that could be an ‘investigation’ termed unrelated to the stopped offense for which defendant was unlawful under Although ‘investigation’ weused the word Carter/Dawson.3 opinion, willing we are not to extend prohibit the officer’s actions here. agree We with the state ‘** * the holding require police of that case not does a officer to confine himself to the bare minimum of activities necessary to issue a traffic citation.’ Therefore the evidence improperly suppressed. was rely
“3. Defendant does not on the fact that a used, does nor he contend that the officer’s ” action was a ‘search.’ This brings us to of the consideration decision When argued was first before this court, question intrusiveness officer’s behavior was at issue. Our concern for this issue caused to us case; reargument however, order responded both sides only issue validity before this court was the stop Consequently, traffic itself. the intrusiveness issue was case, In present validity considered. of the traffic dispute. analyze is not in To issue, the intrusiveness we revisit the Court of in State Appeals decision v. Carter/ Dawson, App 21, P2d a car for a
In of licenses cursory examination After a speeding violation. questions asked check,” the officer of a “records running and a to look contents, permission to elicit attempted about the car’s parapher- related marijuana and and then observed in the car investiga- an that such concluded nalia. The Court impermissibly check was negative records tion after said: intrusive. The court may do germane to what an officer
“Two bodies of law are stop Oregon. is constitutional. making a traffic One after constitutionally, person of the may, search the An officer Florance, arrest, State v. Or to custodial driver incident [270 Krogness, (1974)], assuming but State cert den is still 388 P2d 377 US not, law, may constitutionally, the interior of the good search *6 solely stop a traffic offense. vehicle based on a for “Moreover, provides stop can be law that a constitutional by necessarily required objective than no more intrusive Evans, stop. App giving 16 Or reason rise to the codify appears den 131.615 P2d rev ORS limitation: constitutional jJj ‡ ifc iifc :Jc
‘(2) inquiry shall be conducted The detention and vicinity stop longer no than a reasonable and for time.
‘ only if (3) reasonable inquiry shall be considered circumstances that aroused limited to the immediate suspicion.’ officer’s time, subject- beyond place and inquiry “Detention components of 131.615—all limits codified ORS
matter ‘random an invalid we call ‘intrusiveness’ —constitute what liberty privacy person.’ State into the intervention Evans, 197. statutory. body solely ORS of law is
“The other relevant provides: 484.435
“ ‘(1) seizures otherwise authorized Searches and if authorized to an arrest shall not be law incidental B, D committing C or traffic charge a Class is on a arrest custody in which full arrest unless the arrest is a infraction lodged jail, and the decision person is to be arrested custody is full arrest person under place the arrested being justifying his specific facts articulable based as being given a traffic citation jail rather than lodged chapter provided in this and released. “ (1) ‘(2) shall be Nothing in of this section subsection deadly weap- dangerous for to forbid a frisk
construed ” to 131.625.’ under ORS 131.605 ons authorized App at 31-32. 131.615 contends ORS in the case bar
The state above) stops (quoted and on-the-scene limited to is investigations definition do crimes and that “crimes” present case, defendant was In the include traffic offenses. not wrong designated proceeding a in the direction on one-way way infrac- is a Class B traffic street. Such conduct 484.353(2)(b) provides: tion. ORS
“A officer: * * * *
it* “(b) May stop person a for a traffic infraction and detain purpose investigation reasonably for the related to infraction, identification and issuance of citation.” traffic 484.353(2)(b) was enacted some six months after the ORS challenged police conduct in this case. The occurred February 20,1981. 484.353(2)(b) applies ORS 131.615nor
Neither ORS stop. only stop to this ORS 131.615authorizes and detention person police reasonably suspects of a a crime. ORS has committed
484.353(2)(b) only applicable infractions, yet by Judge Schwab in but was effective. As stated 484.435(1) pref- expresses legislative Carter/Dawson, “ORS erence for of citations in lieu of custodial arrests and issuance *7 legislative enacts a limitation on searches of motorists * * stopped App Here, for traffic offenses at 32. we dealing Therefore, are not with a search of a motorist. none of analyzed applicable the three statutes in Carter/Dawson this case.
The ultimate conclusion reached in stop dealing the intrusiveness of the has not been with by Appeals concluded in addressed this court. The Court of that the officer’sbehavior was to be tested following standard: statutory single blends into a “The constitutional and law stops possible minimum intrusion rule: Traffic should be the 438 Oregon beginquestioning, motorists,
on searching and not an excuseto investigating or that is unrelated to the traffic stop.” reasonfor the 34Or at 32. quoted
We this statement in our review of expressly adopt 486, Or at but did not it. clearly
The officer’sconduct in the instant case is different than that of the in significant appears time for the duration of the in the case bar during
to be the brief time which the officer walked from the driver’s side theof van around the front of the van to passenger apparently point side. This is the critical of the agree Appeals defendant’s case. We with the Court of decision delay in this case that this “de minimis” and did not Oregon statute, constitute a violation of nor violate state right.3 or federal constitutional prevail interpretation here,
Were the defendant to an of the Court of once standárd would seem to dictate that operator’s an officer returns an license to the driver of a stopped abrupt vehicle, he or she must execute an about-face directly and march back to the vehicle. Such an inter- pretation lawfully would not be reasonable. An officer who has stopped any occupant’s rights a vehicle does not violate walking looking through around the vehicle and the windows plainly See, of the vehicle to observe that which can be seen.4 Louis, 57, hold that the We officer’s actions this case were illegally They intrusive. on an were not based excuse begin searching investigating or for contraband or other crime stop and, evidence unrelated to the traffic reason for the Oregon therefore, I, did not violate Article Section of the specific respondent’s The defendant cites no constitutional violation his brief However, mentioned, I, petition or for review. as the defendant did cite Article Section Constitution, Oregon and the Fourteenth Fourth and Amendments to original suppress United Constitution in his in the trial court. States motion to complaint flashlight makes was used to enhance no visibility night. Apparently plain the beer cans have been in view in the would daylight inspection Supreme interior of the van in a from the street. The Court of the Brown, _ US _, 1535, 75 L 2d Unites States Texas v. 103 S Ct Ed shining that an officer’s action in to illuminate the interior of a held right defendant’s car trenched no secured the Fourth Amendment. raised, accept interpretation reject Since the issue was not we do not this federal I, application Oregon to Article Section Constitution.
439 Caraher, 741, Constitution.
(1982). any States also find no violation of United
We or Fourteenth by secured the Fourth right constitutional Brown, _ US _, 103 S Ct Amendments. In Texas v. States Supreme L Ed 2d 502 United 75 during whether an officer’s actions car addressed the issue of the Fourth meaning constituted a search within the Amendment: “* * * Maples ‘changed fact that [T]he [the officer] position’ angle and ‘bent down at an so could see [his] [he] * * * is irrelevant to Fourth
what was inside’ Brown’s car analysis. general public peer Amendment could into angles; interior of Brown’s automobile from number of Maples precluded observing there no reason should be from entirely private as an officer what wouldbe visible to him as a expectation privacy, Katz v. legitimate citizen. There is no States, 361, 19 576, 88 supra, US, United L 2d S Ct Ed (1967) (Harland, J., Maryland, 442 concurring); Smith v. 735, 739-45, 61 220, 99 (1979),shielding L US that Ed 2d S Ct 2577
portion may of the interior of an automobile which be by inquisitive pas viewed from outside the vehicle either short, sersby diligent or In officers. the conduct that Maples enabled to observe the interior of Brown’s car and of open glove compartment was not a search within the (First ours.) meaning of the Fourth Amendment.” bracket _ 512-13). US at _(75 L Ed 2d at case, present similarly In the the officer observed He what he believed to be contraband or evidence of a crime. open testified he saw beer cans inside defendant’s upright lawfully stopped public van which had been on a street. The by officer was not constrained federal constitutional consid- stationary erations to remain near the driver’s door of defen- merely van the officer’s into the dant’s because Thus, traffic violation initial contact with the driver. involved to this case holding apply the rationale and of Texas v. Brown they impinge inasmuch as affirm that such activities do not protections. federal constitutional recognizable validly determined that the officer We have way one or side of the van. We cannot conclude passenger the beer cans made it the other that his observation of a violation of had occurred. “immediately apparent” that law See, Coolidge Hampshire, New 403 US 91 S Ct LEd 2d 564 words, judge’s trial
In other we cannot tell from the open upright whether the beer cans were as findings up empty sitting contended the state as merely defendant. The trial court referred to contended *9 the fact that the officer “observed two beer cans” which he might contain alcohol. No or conclusions thought findings provide made the trial court that would the answer to were of beer the issue whether the officer’s observation of the cans “immediately apparent” it that a of law had made violation occurred. record, recognized
As the interpret judge we the trial issue, findings but made the intrusiveness never relevant of the the fact on that issue because he felt that act of officer looking right the window of the side van through Appeals the in violated Court of decision Gladden, (1968), Ball 250 443 rule from Or P2d 621 and Hansen, 78, 82, 664 Or P2d 1095 that when the Court express findings the trial court does not make of in and court must that conflicts the Appeals presume this were resolved of fact that are consistent findings evidence court, inapplicable. the ultimate conclusion of the trial is with judge made the “imme The trial never conclusions about diately apparent” violation issue. capable the inter
We believe record is of different pretations open whether an container violation was “immedi ately apparent.”5 findings If the trial makes of fact that court position There was a in the to the of direct conflict evidence as location and the place his the vehicle. The beer cans when the officer observed them from outside they six behind testified were on the floorboard about inches or so the officer that passenger upright. and the cans were He testified that at front seat that get point passenger to he could look cans. He testified that he asked the out so at the open time he belief that container been violated. He that at that formed a the law had passenger got tipped over that when defendant reached over and the testified out cross-examination, testimony cans, spilling the the floor. the officer’s contents on On he could see the somewhat He conceded that from outside was different. they empty. testify open He were could have been did cans experience but empty they lying if He also that “those beer are are flat. testified cans sitting between the cans were down seats.” particular testimony diametrically opposed. He Defendant’s in this testified place the officer into the vehicle the that one cannot even see from where looked were. Defendant further swore that there area where the officer contended cans “immediately of law was a that a violation justify conclusion and seizure subsequent officer’s search apparent,” other light of the defendant’s must evaluated evidence be contentions. listed unresolved this decision is affirmed and
The Court proceedings. court further is remanded to circuit case J., LENT, dissenting. a for a Oregon making police
What might governed by do is statute. In traffic infraction now legislature codified as ORS enacted what now 484.353(2) (b), provides: which
“A officer:
s}c ;}: * “(b) May stop person and detain a for a traffic infraction reasonably purposes for the related to the infraction, traffic identification issuance citation.” statute, This case arose before the effective date of question of the the decision here concerns the rather narrow authority prior officer had under law to engage pas- of the interior of the flashlight enhanced observation all after he had obtained senger compartment a vehicle *10 necessary for the infraction. information issue citation
Despite the fact that the officer’s conduct 484.353(2) (b), governed by like now ORS and the instances is my are I shall note hardly picking, bones of this case worth prior state as to what was the disagreement majority with of the law. State
I
with the trial court that the decision in
agree
21,
(1978), governs
Or
The in his brief in Appeals, the Court of defended the trial application court’s and Wight, case and State v. contended that that 48 Or App established an “Oregon rule” depen- dent upon Fourth Amendment law. Furthermore, defendant argued that the officer’s actions in walking around the front and down the passenger’s side of the van so extended the duration of the stop unlawful, as to be although, as the Court Appeals, Or recognized, that was not defen- dant’s primary argument. Court of disposed of argument the last
by concluding that the extension of the time stop by that action of the officer was de minimis because that action took less questions time than the asked the traffic officer in Wight, supra. In that case the officer stopped a vehicle for changing lanes signal without and weaving: pulled
“The officer in behind the vehicle and activated his lights. overhead flasher stopped driver the car and the pulled driver, brother, behind. The got defendant’s out of the car and met the officer between the two vehicles. identification, The officer asked for produced the driver operator’s license and stated that the belonged to his brother, defendant, who was the passenger. There were no plates license on the vehicle. The officer informed the driver defendant that he had them for a traffic vio- lation, inquired why plates. the vehicle had no license As approached vehicle, he the front of the he noticed a valid temporary windshield, license affixed to the upon ques- tioning defendant, produced a bill of sale covering the vehicle. *11 they “The officer then if any asked marijuana beer or automobile,
in the produced partially empty light can of beer. The officer again asked if there was marijuana car, in the produced at which time the driver marijuana small amount glove compartment. from the Thereupon the officer advised the driver and the defendant of of the a full search rights and made their constitutional defendant, which of the driver the consent vehicle without quantity of hashish discovery of a small in the resulted men were then arrested.” LSD. Both decision ruled that The court App at 733-734. stating: dispositive, was Carter/Dawson license, registration cleared the driver’s “Once the officer automobile, ownership he could do no more and the the traffic violation and send the than write a citation for way.” their defendant and his brother on 734. purport did not analysis Wight, supra, in State v. fishing to but rather upon go the time that it took to be based impermissible. From the fishing on the fact that was stopped motorist who is standpoint of an otherwise innocent infraction, beyond it is the fact of the intrusion for a traffic infraction, fact of the necessary investigate not the legally The decision of the Court significant. duration that upon to turn the amount Appeals Wight purport did not investigation of extra time consumed the officer’s Rather, specifically matters other than traffic infractions. it officer extended the duration of upon turned the fact that the all than the purposes other traffic infraction. bar, in the then turned Appeals,
The Court of case at argument defendant’s based quickly struck it down: anything primary argument seems to be that “Defendant’s ‘investigation’ to the that could be termed an unrelated defendant was is unlawful under offense for which ‘investigation’in Although the word weused Carter/Dawson.3 opinion, willing are to extend we not agree the state prohibit actions here. We with the officer’s ‘** * require not holding of that case does the bare minimum of activities officer to confine himself to necessary citation.’ Therefore the evidence to issue a traffic improperly suppressed. was rely on the fact that a
“3. Defendant does used, the officer’s nor does he contend that ” action was a ‘search.’ *12 brings This me to consideration of the decision in Appeals The Court of has summarized the facts in that case as follows: “In speeding. a car for examining occupants After the licenses of the car’s and running car, ques- a ‘records check’ the officer asked car, permission tions about what in the asked to look in doing permission marijuana and so without saw and related paraphernalia.” Jackson, 9-10,
State v.
App
62 Or
To reach that the Court of Appeals first took many note of of this court’s and its own decisions and came to the first legal premise holding in that case:
“Moreover, provides stop constitutional law can be necessarily required by objective no more intrusive than reason Evans, giving stop. App rise to the 16 Or rev appears codify 517 P2d den ORS 131.615 [Emphasis the constitutional limitation: added] (( i* * * * *
“ ‘(2) inquiry The detention and shall be conducted vicinity in the longer and for no than a reasonable time.
“ ‘(3) inquiry only shall be considered reasonable if limited to the immediate circumstances that aroused the suspicion.’ officer’s inquiry time, beyond place subject-
“Detention and and components matter limits codified in ORS 131.615—all what we call ‘intrusiveness’—constitute an invalid ‘random liberty privacy person.’ State v. intervention into the Evans, App 197.” Thus, Appeals at 31. the Court of 131.615, drew attention to impact statutory ORS for its as law, but for its embodiment of constitutional law. This appears very also from the next sentence in which that court body solely statutory” stated that the “other relevant of law is premise and moved on to the second of its decision. The court 484.435(l)1 pointed accurately ORS characterized arrest, favoring legislatively imposed statute as limitation on search and seizure in traffic stops.
After those outlining premises, stated: statutory single “The into a constitutional law blends stops possible rule: Traffic on searching be minimum should intrusion motorists, Oregon begin questioning, and not an excuse to investigating is unrelated traffic added) stop.” (Emphasis reason The court concluded that after the back records check came *13 clear the officer could no than do more to write a citation and send way. defendants their begin
“He could
questioning
investigation
not
or an
that had
nothing
objective
to with
stop (speed-
do
for
reason
so,
ing). If he
stop
did
the officerextended the
duration the
legally
without
(Emphasis
sufficient articulated cause.”
added)
In its decision bar, in case at Appeals Court of purports distinguish its holding in I find the distinction to be invalid. In the instant case the Court of Appeals treats its decision in ifas it involved Carter/Dawson only It did questioning. not. It also involved the officer peering into the vehicle and thereby observing contraband. As I have above, noted Appeals the Court of stated that and “[detention inquiry” beyond the constitutional limits embodied in ORS 484.435(1) provided:
1 ORS by “Searches and seizures otherwise authorized law incidental to an arrest charge committing B, shall not be authorized if a the arrest is on C or D Class custody person traffic full infraction unless the arrest is in arrest which the lodged jail, place person is arrested to be in and the decision to arrested under custody upon specific justifying being full arrest is based articulable facts his jail lodged being given provided chapter in rather than in a traffic citation as this and released.” February, That subsection was still the law the this in 1981. at time was made It 1981, repealed by 47, 818, replaced by present was § Or Laws ch and ORS 484.353(2)(b), 818, which was Or § enacted Laws ch 18. reasoning 2This review court allowed but concluded that the Appeals investigation and decision of the on the issue of the officer’s farther See, 479, 488, was not before us. P2d “intrusiveness,” con- 131.615, by that court as subsumed liberty into the “random intervention stitute an invalid privacy person.” aof above, has Appeals the Court of
Also as noted holding in State applied affirmed and its case, held that when the Wight, In the latter that court supra. license, registra- operator’s his check of completed no than write a citation ownership, “he could do more tion defendant and the traffic violation and send the its distinguish way.” purports on their That court brother Wight “ques- involved Wight by explaining decision in case involves tioning” investigation, while this after the traffic on the side of the only peering into a window observation front seats.3 van behind the only Wight that after the “records check”
It true involved, initially developed but this soon questioning was search. by way of arrest and investigation into further lead Wight would Nothing in Carter/Dawson with oral only concerned one to believe that the court was it was inquiry or that the court believed questioning or key that was the the duration of unwarranted either decision. 3In Court of states: “Defendant does footnote used, rely action was nor does he contend that the officer’s on the fact that a ” respondent kept in was the It must be mind that was ‘search.’ investigation by holding defending the officer the trial court’s that the further *14 Appeals’ impermissible passenger’s under the Court of of the vehicle was the side As in his brief: decision in defendant said Carter/Dawson. just “Obviously, the citation and send the defendant investigation.1 he did more than write way. clearly, prohibited his as it was
on Just objects the term The court could to the court’s use of ‘search.’ “1. State investigation’ principle ‘flashlight remains the and the have called it stop.” activity illegally the extended the duration of same. It was U* * * * * in, shining nothing gains the from their contention “The State clearly in, The rule looking does have to be search. was not a search. It
or ‘investigation’ ‘questioning’ is sufficient.” states that concerning flashlight argument Perhaps of an would have made more defendant publication in v. decision State case followed our enhancement the instant Louis, P2d 708 I believe the decisions in those two cases were sound line,” applied They “bright and should be here. drew a one comparatively easy for the in the field to and for officer follow court, the the apply, though trial court to as trial not the officer, express did in this case. The trial court made no finding completed portions the officer had those necessary investigation to the traffic infraction and the issu- he suppression ance citation. He ordered on the basis that investigation found there had been further forbidden Gladden, must, We under v. Or Ball (1968), presume he made that for if finding, only he so did would he have found the rule of to require suppression.4
In our in v. supra, review State we did not reach issue the about which the trial in court this case was now, concerned. We do and I approve reasoning the holding of the decision of the Court of Appeals there and Wight, State v. supra. I would did recognize, as the Court of Appeals, what the here Oregon terms “the rule.” It the follows that defendant’s rights have been found to be protected statutory law, as a matter of state and constitutional and there is no reason to examine his further claim that he has been denied the State of due Oregon process of law under the Fourteenth Amendment to the federal constitution. say
What I have to plurality hereafter about the opinion Brown, _ US _, in Texas v. S L 103 Ct (1983), Ed2d 502 unnecessary is ato decision in the case at bar. I only discuss that case the vigorously because state has argued bar, that it on all with fours the case at and that we interpret should state being harmony law as with federal law, constitutional Fourth pro Amendment as Brown nounced. Brown is not on all fours.
The facts5 in
Brown were that
officer
car
part
defendant’s
as
of a routine and “nonrandom”
support
presumed finding.
4There is an abundance
to
of evidence
record
candidly
necessary
conceded that he had all information
to issue
traveling
wrong way
one-way
only
citation
street and
to return to
needed
get
any
his own vehicle
citation book
issue the citation. He did not articulate
reason whatsoever
to conduct
further
determine if the
van
Nevertheless,
window,
investigate by peering
contained
contraband.
he did
into
Louis,
supra.
opportunity by
flashlight.
and he did enhance his
use of a
Cf
State,
App,
take the facts from Brown
5I
Tex Cr
conducting
investigation.
it is some felt need for
a traffic
hand,
foreign
Sigmund
to me. On the other
be
Freud but seems
would
familiar to
See,
perhaps
explanation
the extensive discussion
lies in another direction.
Sevilla,
Exclusionary
Perjury,
Diego L
Rule and Police
San
similar conduct
Rev
863-875.
“Likewise,
position’
Maples ‘changed
the fact that
[his]
see
inside’
angle
and ‘bent down
an
so
could what was
[he]
car,
App,
J
to Fourth Amendment
Brown’s
irrelevant
analysis.
general public
peer
could
into the interior of
*16
any
angles;
of
is no
Brown’s automobile from
reason
number
there
observing
Maples
precluded
from
as an
should be
entirely
private
officer what would be
visible to him as a
expectation
privacy,
is
legitimate
citizen. There no
of
Katz v.
States,
supra,
361, 19 L
United
US at
Ed
88 S Ct
2d
(1967) (Harlan, J., concurring);
Maryland,
Smith
735, 739-745,
US
shielding
61 L Ed 2d
of the Fourth Amendment.”
_
US at _,
1541-1542,
The facts in the case at bar are significantly dis- officer, similar. In Brown the embarking while just upon his check for license, a valid driver’s saw the balloon which suspicions. aroused his In the case at bar officer the had completed license, his check of driver’s and registration ownership and records check. In the Brown officer made his key place observations from the expect one would to be utilized, namely, the window, driver’s during investigation the for which car Here, the had stopped. key been the officer’s observations were not made from the vantage point the traffic officer an and investigating asking pro- infraction for proper and licensing, duction were made after the infraction completed. was decision Brown does not us tell what nothing would be the if excite result to the suspicion during officer’s had occurred the driver’s license display check and if the driver had a valid license to to the officer. It certainly reasonable to assume the officer way. would have waived Brown on his Supreme The observation United States that officer no passerby saw more than curious might just stop have seen is not valid. Brown did not his vehicle of his own That was place volition. the car in a where any person only could observe its interior was because Brown obeying was the command of the officer to car stop his passerby stopped during license check. A curious
remain required did Brown do either. Neither have could not park his where a curious his volition or car Brown of own including any peer passerby, passing into officer, could nothing to indicate Brown would the interior. There is pocket produce a balloon for have fumbled about his compartment ordinary passerby opened glove his expose rummaged the other contraband about therein to Maples place able at the driver’s window was Officer from nothing have indicate that Brown would to see. There is ordinarily curious to allow the stood still one minute passerby window in the street to stand at the driver’s his vehicle. shine a into the interior of arguably, bar, saw no more
In the case at right passerby passerby from might hand side window than what a curious have seen in the vehicle. The curious opportunity cans, had the to see beer would not have however, for the vehicle remained where that observation only free could have been made because the *17 contemplated cita- to leave until the officer issued tion.7 be affirmed in
I conclude that the trial court should pre-1981 judgment suppressed evidence should its under the law destroyed. be contraband judgment be should reversed.
Finally, emphasize present does case I would that the presented by of a the officer’s use not decide the issue of the van. him see into the interior to enable presented majority opinion states that this issue was not Although disagree appeal I and on review. the defendant on day open procedural ruling, it leaves another with that capacity into to see the enhancement of officer’s whether light “stopped” by shining into the interior “plain into a warrantless search view” van turned casual Oregon purposes I, Constitution. section Article opin- dissenting join JJ., Roberts, in this Linde and ion. Brown, _ US may Texas v. be the ramifications the decision 7Whatever already
_, L I state court has S Ct 75 Ed2d 502 note one respect interpreting state decision with its own constitution. refused to follow the Ball, See State v. 471 A2d