*1 24, 7, Argued March reversed March OREGON, Respondent, STATE OF
v. Petitioner. VALDEZ, R. SIMON (No. 25052) 76-02-01802, 6270, C CA No. SC No.
[ HOLMAN, J.
Defendant
in
was
with criminal
charged
activity
drugs
violation
ORS 167.207. Prior
to trial
defendant
successfully
suppress
moved to
evidence
discovered
an
during
stopping of
automobile
which he was
riding.
state
the suppres-
appealed
order,
sion
and the
reversed,
Court of
27 Or
Appeals
(1976).
329,
About 5 o’clock in the afternoon two Portland police officers were an patrolling area in northeast part city a marked police They car. testified that from experience they knew to be this area one with high incidence of vice had made numerous drug prostitution arrests. There were many area, motels in the and one officer classified the *3 dealers, motels’ customers as mostly prostitutes, drug drivers, truck salesmen, and a few tourists. While near a driving Western Motel the officers saw defend- ant and two other men enter an old preparing yellow Buick in the automobile motel lot. When the parking men detected observed, that were they being they ceased what were and watched the officers. doing The officers testified that two of the men were dressed in "mod” unlike that who clothing, by persons worn usually were the of the area. One officers testified, them, in describing one of the
"[Suspect] looking had on a real nice blue leisure suit. The pants jacket and the the same color and shoes, material. He on a shiny had black had on lighter-colored blue shirt than the rest of his what Afro, leisure suit His hair done in an nicely was. was real mustache, neat. nicely He had a looked trimmed real sharp, like people pusher, other a to me.” typical —like The officers had never seen of the three men any before and knew of them. never seen nothing Having dress, the men before and of their being suspicious [623 area, the of found in typical persons which was the officers of their reaction to the officers’ presence, question decided to turn around and to stop men. their vehicle turning As officers were around, walk back to they observed defendant and, constantly looking trank Buick while a officers, trank and put toward the open slightly it. then entered bag brown into The three men paper A their vehicle and drove few blocks from away. motel the vehicle. One officer the officers stopped he observed testified that vehicle prior stopping for a signal of the fail to turn on his driver vehicle why turn, he that that was not left but said specifically he the vehicle. in the the officers found narcotics
Subsequently The facts how to discover vehicle. they happened this are not relevant because opinion, narcotics determining court took review the purpose in which defend- whether the vehicle stopping suspi- made with the reasonable riding ant was by cion statute. required interrogate
An authority stop officer’s crime his commission person concerning 131.615, is ORS which states: covered "(1) suspects that peace reasonably A officer who and, may stop person has committed crime person officer, informing peace that he is a person after inquiry. make a reasonable "(2) be conducted inquiry The detention shall than vicinity stop longer and for no reasonable time.
"(3) only inquiry shall considered reasonable be that aroused if limited to the immediate circumstances suspicion.” the officer’s following given "reasonably suspects”
The term *4 131.605(4): ORS meaning by " peace a officer suspects’ means that 'Reasonably of totality under the a belief that is reasonable holds as circumstances he acts existing place at the time and 131.625.” in ORS 131.605 to authorized [ 624] (5) by "stop” section: of the same A is defined liberty person’s "A of a 'stop’ temporary is restraint any place.” lawfully present in peace officer by (1) provides that of the same section Subsection meaning provided term for that has the word "crime” as "an a crime 161.515 defines 161.515. ORS ORS imprisonment is of for which sentence offense authorized.” Oregon Proposed 31 the 131.615 was Section of ORS by and was enacted Criminal Procedure Code of 1972 legislature in 1973.1 Of the commentaries Proposed Code, one which Commission drew particular pages at 26 is relevant to section report. find the its We there and 27 of official concerning by following intended remarks what was the Commission: (1) peace of the
"Subsection codification proposes Terry[2] ability stop as to the person officer’s close cloman[3] while giving and rationale as leeway situations protean interpret courts limited giving 'stopping’ powers.” the officer arise codify the rationales Since the statute was an effort to Terry proper Cloman, is for us examine it though making decision, we even those cases our by interpreting Any are a statute.4 comments Terry concerning interpretation Commission its statutory determining are relevant Cloman also following comments of The are some intent. Terry. interpretation on its Commission "* * * determination will The of reasonableness stop upon the circumstances depend explain- facts ability specific officer articulate ing these circumstances. 1973, 836,
1Oregon
§
Laws
ch
31.
2
(1968).
Ohio,
1,
1868,
Terry
20
v.
Ct
L Ed2d 889
392 US
88 S
3
(1969).
Cloman,
1,
State v.
254 Or
[ 625 *5 specific 'The and articulable facts that officer point justify stop to must to indicate to the should type activity officerthat there is some of criminal afoot particular person and that this is somehowinvolved. * * * * "* * * [W]hen an officer observes unusual conduct reasonably light which leads him to conclude of his experience activity that criminal afoot and when he is able point to to specific and articulable give which facts rise to the that criminal is afoot, the inference has ’reasonablesuspicion’and hence can stop the officer ours.) investigation.”(Emphasis
individual for The Commission concluded that court Terry intended "* * * stop objective the forefront an test words,
determination. In other the test shouldbe what a would think and reasonable this situation officer (Em- particular arresting thought.” what this phasis officer ours.) background, With this it will be informative to look at the factual situations in both for Terry and Cloman purpose making comparison a the facts with police with which we are here a concerned. In Terry patrolling detective was his beat in downtown Cleve- land when his attention was to attracted two men standing on street a He seen them comer. had never say brought before, and he was to first unable what except attention, them to his right "didn’t look [him].” observing men, to As he two he past group stores, saw one of them leave and walk pause particular into store, look one and then distance, continue on down the at street short point he turned around walked back his companion, having paused again into the same to look Upon companion proceeded return, store. his his to do thing. the same As man watched, the officer each went through procedure the same times. about six After trip each down back the two men would confer. As a result of these came to actions, the officer particu- "casing” conclusion that the two lar store for a were men stop holdup, proceeded and he [ 626 weapons and question them. He searched them upheld possession. The firearms in their court stop as well as search. at o’clock In were notified Cloman morning unloading from a tires that someone was Upon garage private residence. truck into the investigation police, light Cadillac colored parked truck, of which had been automobile and both garage. away lights on, their drove from without An officer pants its three occu- Cadillac, were known identified. All three men *6 past copper The thieves. have had records as wire given permission occupants and its Cadillac investigated away. then the officer drive The officer unloading private garage, had into which the large place, part it was filled taken and found that copper easily have been wire could with rolls mistaken for At on it the name tires. lease one roll had company. of an electric
Shortly whom all before 5 officer to a.m. a light this information had been radioed observed the truck Cadillac from where colored about a mile unloading. stopped and had been The vehicle was recognized defendant, to contain the who was resulting The the automobile and arrested. search of copper which was disclosed stolen wire. vehicle plate stopped as did number not bear same license reported apprehending officer, and it had been to the as had vehicle a two-door instead of four-door was been described Despite these to him over the radio. discrepancies, upheld stop and the court this resulting it determined vehicle, search of the because that it to assume that was reasonable for the officer under the circumstances such description mistakes could occur. apparent Terry Cloman
It that in both questioning who the defendants officers concerning activity greater fund a much criminal had suspi- suspicious activity objectively justify their
[ 627 activity cion of criminal than in the had officers present sug- case. Here there is insufficient evidence gesting activity objectively criminal which can be persons We evaluated. do not have who "didn’t look right” repetitively taking looking conferring turns surreptitiously store, into a have nor do we known copper unloading copper wire thieves wire into private garage night. in the middle of the In case persons right” putting we have who "didn’t look paper bag into the trunk an automobile —a too remarkable action. recognize statutory
We that standard for the stopping questioning concerning person of a his criminal less than intended to be probable the standard for cause arrest. We also recognize experienced police develop what amounts to an intuitive sixth sense about matters of * * * this kind. As testified, the officer "he looked real * * * sharp typical pusher, like a to me.” Such instinct experience cannot, however, form the entire basis suspicion,” practical for "reasonable because no con police by if, trol can be exercised over courts in the very any activity, absence remarkable the officer’s experience may instinct and sole be used as the reason justify infringement liberty upon personal sought protected by to be the statute. Needle scars on *7 may legitimately speak forearms of criminal drugs, sharp clothes, but shoes, shined neat people haircuts, "Afro” at who stand and stare say very setting officers do not in a where much —even usually present context, are not found. In the stop, we where must review the we reasonableness of disagree language Appeals’ with that in the Court of opinion, quoted App Evans, 189, from v. 16 State Or (1974),5 says, 193, "Indeed, P2d 517 1225 which police may effective work call for affirmative action outwardly circumstances which are Effec innocent.” police may stop, work tive call for a but in the context 5 State v. Evans tried the statute before the effective date of question here.
[ 628 talking, prohibits Thus, we are it. in which the statute reviewing stops, such trial court must determine suspicion has the standard been whether of reasonable by by objective facts, met reliance on test of observable special intuitions of the officer. aspect do not is one of this We There other case. always evidentiary exclusion evoke sanction of Valentine/Darroch, of a v. the violation statute. State (1972), 948, 54, denied, 504 P2d 412 US 264 Or 84 cert. (1973). However, the 3001, 37 93 S Ct purpose L Ed 2d 1000 present protect of of the is to interests statute by protected Amend the kinds which Fourth are § by I, Art. ment to United States Constitution Oregon only practical far, 9, of the So Constitution. protect rights which has of this method been devised to fruit of kind is exclusion of the is the evidence which be Otherwise, violation. ignored statute and will can Oregon impunity. recognized with such dealing proper this sanction as the of with method problem long Mapp 643, 81S Ct Ohio, before v. 367 US (1961). 1684, L Ed 2d 6
Since we have this case of ORS decided on the basis 131.615, need we not decide whether the actions of presently require- conformed to the enunciated ments of either the the United Fourth Amendment to § Oregon I, 9, States Constitution or to Art. Constitution. Appeals reversed. The decision of the Court dissenting. TONGUE, J., my view, In and circumstances the facts whole, sufficient case, considered as a when by satisfy requirements 131.615, of ORS legislature appears test more to have established States the United strict than test established require- satisfying Supreme purposes Court for Amendments Fourth and Fourteenth ments the Constitution of the United States.
[629] portion majority I also dissent from that opinion Oregon, now, and for the first time in "exclusionary beyond extends the rule” searches in rights violation of constitutional so as to include doing searches in violation of such statutes —and so only "exclusionary at a time when the rule” is increasing attack, under but at a time when the apparent Supreme trend of decisions Court extend, the United limit, States is to rather than to application of that rule. Bryson,
Howell, J., and J., concur in this dissent.
[