State v. Black

• Citation: 80 Or.App. 12,721 P.2d 842
• Parties: STATE of Oregon, Appellant, v. Charlene Marie BLACK, Respondent. 85-2989-K; CA A36962.
• Decision Date: 18 June 1986
• Court: Court of Appeals of Oregon

Page 842

721 P.2d 842

80 Or.App. 12

STATE of Oregon, Appellant, v. Charlene Marie BLACK, Respondent.

85-2989-K; CA A36962.

Court of Appeals of Oregon.

Argued and Submitted Jan. 17, 1986.

Decided June 18, 1986.

Terry Ann Leggert, Asst. Atty. Gen., Salem, argued the cause for the appellant. With her on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Robert M. Burrows, Grants Pass, argued the cause for respondent. With him on the brief was Burrows, Hull, Mowrey & Thompson, Grants Pass.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

Defendant was charged with driving under the influence of intoxicants (DUII) in violation of former ORS 487.540. Before trial, she moved to suppress all evidence obtained after she was stopped by the police officer on the ground that the stop was unlawful under State v. Lindstrom, 37 Or.App. 513, 588 P.2d 44 (1978), Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. The trial court granted her motion, and the state appeals under ORS 138.060(3). We affirm.

The parties stipulated to the facts necessary to decide the motion. At 10:59 a.m. on Easter Sunday, the Oregon State Police received a telephone call from a woman in Selma, stating that a brown Ford Escort, traveling northbound on Highway 199, was speeding and weaving. The caller did not identify herself. A dispatcher radioed the information to a state trooper who, at 11:10 a.m., observed a car matching the description driving northbound on Highway 199 at Wonder, which is located approximately 11 miles from Selma. He did not observe any erratic driving, and he estimated the car's speed as "close to 55." He stopped the car, which defendant was driving, and subsequently arrested her for DUII.

The pertinent statutes provide:

"A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry." ORS 131.615(1).

"As used in ORS 131.605 to 131.625, unless the context requires otherwise:

" 'Reasonably suspects' means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place the peace officer acts as authorized in ORS 131.605 to 131.625." ORS 131.605(4).

The "stop and frisk" statutes, ORS 131.605 to 131.625, are the result of the legislature's effort to codify the rationales of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969). State v. Valdez, 277 Or. 621, 625, 561 P.2d 1006 (1977). In Terry, the Court held that a police officer who reasonably suspects that criminal activity is afoot may, consistently with the Fourth Amendment, briefly detain the suspect for further investigation and, if the officer believes that the person is armed and presently dangerous, conduct a limited search of that person for weapons. In Cloman, the court held that "police can stop a car to determine the identity of the vehicle and its occupants if they have a reasonable suspicion that the car or its occupants have a connection with criminal activity." 254 Or. at 6, 456 P.2d 67.

The standard of reasonable suspicion in ORS 131.615(1) is less stringent than the standard of probable cause to arrest. State v. Valdez, supra, 277 Or. at 628, 561 P.2d 1006. The question under that statute is whether a reasonable police officer, considering the totality of the circumstances, would have believed that the person stopped had committed a crime. See State v. Valdez, supra, 277 Or. at 625-26, 561 P.2d 1006; State v. Brown, 31 Or.App. 501, 505, 570 P.2d 1001 (1977).

Had the trooper personally observed the conduct described by the anonymous caller, he would have had an objective basis for reasonably suspecting that defendant had committed the crimes of DUII or reckless driving, or both. See former ORS 487.540; former 487.550. ¹ However, he did not personally observe any conduct which could have supported that belief. The critical question is whether he was justified in relying on the information received from the anonymous telephone caller.

As a preliminary matter, the record does not indicate whether the arresting officer knew that the dispatcher's information was from an anonymous telephone call. ² The analysis is the same in any event. In Whiteley v. Warden, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), the Court held that, although a police officer may act on the strength of a radio bulletin indicating that there is a warrant out for an individual's arrest and may assume that the officer who obtained the arrest warrant presented the issuing magistrate with facts sufficient to constitute probable cause to arrest. The arrest of the individual violates the Fourth Amendment if it turns out that there was in fact no probable cause to support the issuance of the warrant. "[A]n otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating officer to rely on fellow officers to make the arrest." Whiteley v. Warden, 401 U.S. at 568, 91 S.Ct. at 1037. The same rule applies when an officer makes a stop on the basis of a "wanted flyer" from another police department. United States v. Hensley, 469 U.S. 221, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985). See also 1 La Fave, Search and Seizure, A Treatise on the Fourth Amendment 621-31, § 3.5(b) (1978). Those federal cases reflect an interpretation that should be applied to the state statute.

It cannot be successfully argued that the trooper in this case could have reasonably suspected that defendant had committed a crime merely because he could have assumed that the dispatcher's information was based on a reliable source. The appropriate inquiry is whether the information possessed collectively by the trooper and the dispatcher gave rise to a reasonable suspicion that defendant had committed a crime. Were it otherwise, an agency or officer possessed with information insufficient to give rise to a reasonable suspicion to stop someone under ORS 131.615(1) could circumvent the statutory requirement simply by directing or asking another agency or officer to make the stop. See 1 La Fave, supra, 624, § 3.5.

We have upheld stops of persons under ORS 131.615(1) based on information from victims of or witnesses to crimes and confidential informants in several cases. See State v. Taylor, 62 Or.App. 586, 661 P.2d 569, rev. den. 295 Or. 297, 668 P.2d 382 (1983) (informant's tip that he had observed possession and sale of cocaine in car in which defendant was subsequently discovered); State v. Dickenson, 43 Or.App. 1023, 607 P.2d 754 (1979) (anonymous phone call and numerous complaints that the defendant was catching salmon out of season); State v. Lindstrom, supra (victim's complaint); State v. Fent, 29 Or.App. 249, 562 P.2d 1239, rev. den. 280 Or. 1 (1977) (apartment manager's tip that the defendant had entered an apartment in the absence of its tenant and left five to ten minutes later); but see State v. Odam, 40 Or.App. 551, 595 P.2d 1277 (1979), aff'd by iequally divided court 290 Or. 160, 619 P.2d 647 (1980) (invalidating stop based on informant's tip that illegal deer killing was occurring on certain property, when tip did not relate to any particular person or vehicle).

In State v. Lindstrom, supra, on which both parties rely, a man flagged down a police officer during an early morning patrol and reported that the driver of a yellow Ford pickup truck was driving recklessly and had nearly run him off the road. He also stated that he had argued with the driver and that the driver appeared intoxicated and had aimed a rifle at him. The complaining man declined to give his name, and the police officer was unable to record his license plate number. Shortly thereafter, and approximately one-half mile down the road, the officer observed the described truck proceeding in a normal manner. He stopped it and subsequently arrested the driver for DUII. We held that the stop was permissible under ORS 131.615(1). We expressly disapproved dictum in State v. Caproni, 19 Or.App. 789, 792, n. 1, 529 P.2d 974 (1974), which had indicated that, without corroboration, an anonymous tip could not create a reasonable suspicion that a crime had been committed. We concluded that the information received by the officer was of a "sufficient quantity and quality to give rise to a reasonable suspicion that defendant was committing an offense." 37 Or.App. at 516, 588 P.2d 44.

Those cases do not expressly state that a tip must have some indicia of reliability in order for the police to act on it in stopping an individual under ORS 131.615(1). However, the United States Supreme Court has addressed that question in the context of the Fourth Amendment. In Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972), the Court upheld a Terry stop based on a tip from an informant. It held that the police officer was justified in relying on the informant's tip, because the tip had adequate indicia of reliability. Those indicia were: (1) the informant was known to the officer and had supplied information to him in the past; ³ (2) the informant came forth personally and gave information that was immediately verifiable at the scene; and (3) the informant subjected himself to the possibility of an arrest for making a false report if the officer's investigation was fruitless. The Court stated that "[t]his is a stronger case than obtains in the case of an anonymous telephone tip." 407 U.S. at 146, 92 S.Ct. at 1923. It further stated:

"In reaching this conclusion, we reject respondent's argument that reasonable cause for a stop and frisk can only be based on the officer's personal observation, rather than on information supplied by another person. Informants' tips, like all other clues and evidence coming to a policeman on the scene,...