State v. Brown
| Decision Date | 07 November 1977 |
| Citation | 570 P.2d 1001,31 Or.App. 501 |
| Parties | STATE of Oregon, Respondent, v. Pamela Faye BROWN, Appellant. |
| Court | Oregon Court of Appeals |
Robert A. Sacks, Metropolitan Public Defender, Portland, argued the cause and filed the brief for appellant.
John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C. J., and RICHARDSON and JOHNSON, JJ.
Defendant appeals her conviction for the offense of Carrying a Concealed Weapon, a knife, ORS 166.240. The only issue is whether the weapon was obtained by a constitutionally impermissible search or in violation of Oregon's "stop and frisk" statutes, ORS 131.615 and 131.625. Evidence obtained in violation of these two statutes is subject to suppression. State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977).
Two uniform police officers in a marked police vehicle were patrolling an area of the city of Portland which they testified was a high crime area and an area frequented by prostitutes. They observed the defendant, whom they did not recognize, walking in this area. They approached and told her to get off of the streets as they did not want prostitutes walking in that vicinity. The defendant apparently made no response. The officers then left to conduct other police business and did not see whether the defendant, in fact, left. When they returned to the area, in approximately 45 minutes, they saw the defendant cross the street and begin talking to a female, who one officer testified was a known prostitute. They stopped the patrol car next to defendant and one officer approached her and asked for some identification. She was initially belligerent but produced the requested identification. The piece of identification was given to the other officer who ran a "routine record check" on the defendant via the police radio. He was informed there was an outstanding traffic warrant for her arrest. This process took from three to five minutes. During this interval the officer who confronted defendant talked to her about the problems the police experienced with crimes in the area. Defendant was arrested on the traffic warrant and subsequently searched and the knife was found.
The officer who confronted the defendant testified he suspected she was loitering to solicit for prostitution. He based his suspicions, he stated, on the fact she was in this particular high crime area, had been told to leave and did not, and that she was talking to a known prostitute. Additionally, he testified, in his experience only prostitutes walked the streets in this area and there was no other reason for defendant being on the street in this vicinity.
On appeal both parties have focused their attention on the stop of defendant as the dispositive issue. If the stop was not justified the inquiries and detention to make the record check were not authorized and the fruits of the stop must be suppressed. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); State v. Evans, 16 Or.App. 189, 517 P.2d 1225, Sup.Ct. review denied (1974); State v. Corbett, 15 Or.App. 470, 516 P.2d 487 (1973), Sup.Ct. review denied (1974).
The authority of a police officer to stop a person and make inquiries respecting commission of a crime is set forth in ORS 131.615:
The term "reasonably suspects" is given the following meaning in ORS 131.605(4):
" '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 he acts as authorized in ORS 131.605 to 131.625."
A "stop" is defined in ORS 131.605(5):
"A 'stop' is a temporary restraint of a person's liberty by a peace officer lawfully present in any place."
These provisions were enacted as a codification of the police officer's authority to stop a person similar to the rationale justifying a stop and frisk set out in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See, State v. Valdez, supra.
The "stop and frisk" statute was not enacted exactly as proposed by the Criminal Law Revision Commission. The legislature deleted the words "or is about to commit" which had been proposed by the Commission to define the authority of an officer to stop an individual. In this respect the statute adopts a rule different from the decision in Terry v. Ohio, supra. In that case the court held an officer could stop an individual if he had a reasonable suspicion the individual had committed or was about to commit a crime. Consequently, the Oregon statutory rule is more restrictive than the constitutional rule. An officer in Oregon may only stop a person if he reasonably suspects that person has committed a crime. It is not sufficient that the totality of circumstances would lead to a reasonable suspicion the person stopped was about to commit a crime.
The determination of reasonableness depends upon specific articulable facts that the officer can point to in justifying the stop. It is an objective test as to what a reasonable police officer would think in the situation and not a subjective analysis of what this particular officer thought. State v. Valdez, supra.
With the statutory framework in mind we turn to the contentions of the parties and an analysis of the facts to determine the validity of this stop. The state makes alternative contentions. First, that there was not a "stop" of the defendant in terms of the statute and second, if there was a stop it was justified by a reasonable suspicion the defendant had committed a crime. Defendant contends there was a stop which was not authorized by the statute or the United States or Oregon Constitutions.
The state first contends that the actions of the police officer in approaching defendant, asking her for identification and speaking to her while a record check was being completed, is not so intrusive an infringement as to constitute a stop under ORS 131.605(5).
In Terry v. Ohio, supra, the court, discussing the stop of an individual on the street, said:
" * * * It must be recognized that whenever a police officer accosts an individual and restrains his freedom to walk away, he has 'seized' that person. * * * " 392 U.S. at 16, 88 S.Ct. at 1877.
This is the sense of the statutory definition of a "stop" in ORS 131.605(5). The touchstone of analysis is whether the person accosted could refuse to cooperate and walk away. The restraint on a person's liberty can arise by means of physical force or a show of authority. As we said in State v. Evans, supra, "(t)he constraint of volition is equally real whether it arises by implication from the color of authority of the police or from their express command." Here there was no physical restraint by the police other than asking the defendant to stop and identify herself. However, in the context of the events as they unfolded it is unlikely the defendant would feel free to walk away. She was accosted by uniform police officers who approached in a marked patrol car. The same officers had ordered her to leave the area 45 minutes earlier. One officer testified they had seen the defendant cross the street in the middle of the block and she would have been arrested for jaywalking if she had refused to produce identification. This was clearly a stop cognizable under the stop and frisk statutes.
The state next argues, assuming the confrontation was a "stop" it was authorized since the officers had a reasonable suspicion the defendant was attempting to engage in prostitution or was loitering to solicit for prostitution.
A person commits the crime of prostitution if:
"He engages in or offers or agrees to engage in sexual conduct * * * for a fee." ORS 167.007(1)(a).
In order to be guilty of an attempt to commit prostitution the defendant would have to engage "in conduct which constitutes a substantial step toward commission of the crime." ORS 161.405(1). Nothing in the conduct of the defendant could be...
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