*2 passed officers, (a Sidney Lezak, I. Atty., Portland, U. S. female) male and a stared at the Or., for plaintiff-appellant. for what Deputy Erhardt testified had Howard Lonergan, Portland, R. Or., seemed to him to be an unusually long for defendant-appellee. They time. only observed one other Before CARTER, KOELSCH and Cir vehicle on the road since earlier that cuit Judges, ZIRPOLI,* District evening and that vehicle was Judge. appeared because it to contain family a (man, woman, children). OPINION At hearing, Detective Kaufman CARTER, Judge. M. Circuit JAMES testified that because of the time of night, the extremely unusual situation at appeals The Government nearby house being still searched, granting of the district and the fact that fugitive was still Holland’s mo- defendant for, unaccounted he Deputy told Erhardt suppress pur- tion to evidence obtained to check out the car if it stayed in the an investigatory stop suant to area. Erhardt testified that in County, Oregon Coos Sheriff’s Of- experience people unusual for fice. The court held that out an pay address to a “lacked sufficient and articulable social visit in that rural area at to create night. time of We reverse. After the defendant’s vehicle reached hearing The evidence at on the end, a dead slowly re-approached the suppress, motion to which is not in dis- officers, turned onto the intersecting dirt pute, evening indicated that on the road on which the house being searched January dep- Office Sheriff’s located, and then further slowed to uties, warrant, pursuant ato search dis- “walking speed.” guns, para- covered numerous narcotics methampheta- a batch phernalia, and only There were three houses on that process “being mine in the cooked” in dirt one on either side of the house narrow, small house frame located on each some distance rutted, dirt road in a rural area near apart. Although the officers thought Bandon, Oregon. They also searched that the vehicle probably heading for, find, fugi- but a white male did not for the searched and that California, Judge, sitting Zirpoli, District of Northern Alfonso J.
* Honorable designation. however, holding, the court might so occupants of the car language su misapplied the stalling to see if the officers would been area, give adequate consider pra, failing continued leave language italicized. The vehicle until it the defendant’s ation observe not whether proper house on the road and with inno car itself was “consistent feet from the house was less than 150 behavior,” but rather whether next house it would cent being searched—the *3 reasonable, all the were under of officers reach. circumstances, car believing in that the Erhardt then the vehi- or about occupants, were involved or its occupants and asked the for identifi- cle activity. in involved criminal to become produced they cation. After both Ore- 162, Ward, v. F.2d 488 licenses, he asked to see the gon driver’s 1973) (en banc). (9 Cir. 169 registration. could it, Deputy Erhardt then asked not find re Clearly, the officers were not (the defendant) if he the driver could rule out all of inno quired to the car and the defendant re- look in initiating before brief cent behavior Upon leaning Go ahead.” plied, “Sure. stop request for identification. The car, Deputy the Erhardt observed a into suspicion, probable is founded partly rifle stock covered sawed-off if it was equally probable Even cause. the lying between front bucket cloth its were occupants vehicle or that the shotgun It is this of the car. which seats any wrongdoing, police of offi innocent charges against for the forms the basis permitted to be act cers must defendant, suppressed was and which the belief is verified es reasonable their court. by the district of the harm it their cape or fruition stop “A (9 duty prevent.1 brief v. F.2d 412 In Wilson 361 individual, in order to deter 1966), suspicious this that Cir. court noted identity or to maintain the sta mine practical regard “due for the necessi- momentarily obtaining while quo tus of effective law enforcement re- ties information, may be most reasona more brief, quires validity that the infor- the facts known to the light of ble recognized detention be whenever mal Williams, the time.” Adams v. at officer appears totality of the cir- 146, 1921, 1923, 143, 32 92 S.Ct. 407 U.S. detaining cumstances (1972). 612 L.Ed.2d grounds have had reasonable for could States, This in Arnold v. United suspicion A action. their d (9 1967), 4 382 F.2 Cir. the indicated necessary, some all that is basis from in determining factors to be considered can that which the court determine validity investigatory stops: the arbitrary was not or ha- the detention added). rassing.” (emphasis Id. at 415 “The reasonableness of such on-the- standard, scene detention is determined Purporting apply this the the circumstances. The seriousness stop district court held that offense, degree of likelihood just car prior reaching defendant’s person that detained have was an searched unrea- witnessed or been involved fense, the of- sonable seizure because the defendant’s proximity and space in time with “consistent innocent crime, from the scene of the the ur- in that the defendant behavior” occasion, gency nature of past drive the house in have intended to extent, and its the detention question to other house connect- procedures employed by means and activity. ed with criminal suspicious investi- alert for States, Frye F.2d 494 315 1. In gate in- whenever these circumstances further Cir.), 375 U.S. denied cert. should do so. that the officers dicate (1963), noted this court 76 L.Ed.2d duty to peace local officer, presence circum- the defendant’s car was travel- suggesting stances ling harassment or a at a very de- slow (“walking”) speed, liberate effort to avoid the and the of the vehicle were of securing a warrant —these and oth- asked for identification. The initial stop er factors will be balancing relevant in public involved no embarrassment the need for physical limited and no on-the-scene de- contact. There was no tention inquiry against less the incon- intrusive means available to deter- indignity venience and to the mine the identity individu- occupants.2 al Id. at detained.” circumstances, then, Under all of the case, present the risk to the serious those officers still ness of the very offenses discovered the house and the likely limited nature place to take stop, included the initial that stop involvement with of was both illegal drug factory (still supported by “cooking” reasonable a founded when suspicion. house), arrived at the need not look for a “[W]e *4 firearms, reconstructed, an arsenal of stolen explanation and after-the-fact fugitive, armed what creating a risk to the have been nothing more at personal safety time of the occurrence than the in- still in the house. The officers knew stinctive reaction of one trained in the there was a male fugitive prevention in the . . crime. . We can- area who was connected with say that the circumstances of a car and from the making movements of the inordinately defend slow along ant’s reasonably believed street the small hours of the morn- that it had at least a ing 50% likelihood reasonably could not have aroused visiting and therefore becoming suspicions unavoid of a local officer alert to ably involved in activity going beat, on at the unusual within his and lead searched. The investigate.” car was him Wilson v. only 150 feet house at the time F.2d at 361 Jaime-Barrios, 415. See on a lightly-travelled dirt 494 F.2d 458 Cir. m., road at 1:00 a. and the occupants 1974). had stared at the officers for what they be The decision of the district court is lieved to be an unusually long time. reversed. Further, there were no ZIRPOLI, Judge (dissenting): or a deliberate suggesting harassment respectfully I dissent. judge The trial securing effort to avoid suffi- found that “the lacked until the The officers waited a warrant. to cre- articulate cient street, up and down car had driven ate a founded (Emphasis of the three houses added). Although might I have found was about to reach the dirt on differently had I been the judge, trial I initiat- my judgment now substitute ing stop. for his and absent a showing of clear error, none, nature of the I find such detention and the determina- means procedures judge tion of the trial employed should be conclu- by the officers were also sive. I would reasonable. affirm. Oregon law, Oregon
2. We note that under Rev.Stat. license and demand. duced registration required 482.300(2). pro- 481.230(4) materials are §§