State v. Canape

• Decision Date: 02 June 1980
• Docket Number: No. DA,DA
• Citation: 611 P.2d 1190,46 Or.App. 453
• Parties: STATE of Oregon, Respondent, v. Kenneth CANAPE, Appellant. 170461/2-7905; CA 15729.
• Court: Oregon Court of Appeals

Page 1190

611 P.2d 1190

46 Or.App. 453

STATE of Oregon, Respondent, v. Kenneth CANAPE, Appellant.

No. DA 170461/2-7905; CA 15729.

Court of Appeals of Oregon.

Argued and Submitted Feb. 13, 1980.

Decided June 2, 1980.

Jenny Marlin Cooke, Portland, argued the cause and filed the brief for appellant.

James M. Brown, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol.Gen., Salem.

Before JOSEPH, P. J., RICHARDSON, J., and SCHWAB, C. J. ^*

JOSEPH, Presiding Judge.

Defendant appeals from his convictions for Unlawful Possession of a Weapon (ORS 166.250) and Carrying a Loaded Firearm (Portland City Ordinance No. 138210, § 14.32.010). He assigns as error the denial of his motion to suppress based on his assertion that his encounter with the police involved an unlawful stop. The only issue is whether what the police officers did constituted a stop, and, if it did, whether it was justified. ¹

On May 16, 1979, two Portland police officers were patrolling in uniform in a marked police car near S.E. 60th Ave. and Reedway in Portland at about 9:45 p.m. The officers were aware that there had been several daylight and mid-evening residential burglaries in the preceding two or three weeks in the area bounded by S.E. 44th to 46th Avenues and Reedway and Raymond Streets. The burglary suspect had been described by one victim by height, age and hair shade, that he wore a beard and mustache and was neatly dressed, although not wearing a suit.

Defendant was observed walking southbound on 60th approaching Reedway. The officers observed him cross the middle of the street halfway between Reedway and the first street north. They turned the car around and pulled up along where defendant was walking. The officer who testified at the suppression hearing stated that they first noticed defendant because he was approximately the right height, he had the same shade of hair, he wore a beard and mustache, and he was dressed consistently with the description of the burglary suspect.

At the intersection of S.E. 60th and Reedway, both officers left their car, identified themselves as officers and asked defendant what he was doing in the area and where he lived. Defendant responded that he lived in southwest Portland and was visiting a friend named "Don," who lived up the street. He indicated where Don lived, but did not know Don's last name. Defendant was told that he matched the description of a burglary suspect.

The officers then asked defendant whether he had any identification. He stated that he did. He reached into his back pocket and then said his identification was not there and that he must have left it in his car, which he indicated was parked approximately one-half block away and that he would go to his car to get it. The officers agreed. When defendant turned to walk toward his car and had taken two or three steps, one of the officers noticed that defendant's left arm was semirigid along his side while his right arm was swinging in a normal walking gait. The officer also observed a bulge under defendant's arm extending down his body about six to eight inches. He suspected that the bulge was a gun. The officer immediately told defendant to stop, walked up to him, reached under his coat and pulled the gun from a shoulder holster. Defendant was ordered to put his hands on his head. He was cooperative and told them he had another gun on his person. The second officer lifted up defendant's coat and removed a pistol from a belt holster inside his belt.

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."

That statutory provision was enacted as a codification of an officer's authority to stop a person similar to the rationale justifying a stop and frisk outlined in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). ² See State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977). In Terry, in describing a stop of a person on the street, the Court stated:

" * * * 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.

Not every preliminary inquiry of a person by a police officer is a stop within the statutory or Terry meaning. ³ In determining whether an encounter is a stop, we must ask "whether the person accosted could refuse to cooperate and walk away." State v. Brown, 31 Or.App. 501, 506, 570 P.2d 1001, 1003 (1977). In the beginning here there was no physical restraint of defendant. He was accosted, talked to briefly and then asked to identify himself. However, as we have previously noted in Brown and State v. Evans, 16 Or.App. 189, 517 P.2d 1225, rev. den. (1974), freedom of movement can be restricted by means other than physical restraint. In Evans, we stated that "the constraint of volition is equally real whether it arises by implication from the color of authority of the police or from their express command." 16 Or.App. at 197, 517 P.2d at 1229.

In Brown v. Texas, 443 U.S. 47, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979), the Supreme Court concluded that the appellant had been "seized" when a uniformed officer approached and asked him to identify himself and explain what he was doing in the particular place. Appellant refused and was arrested under a Texas statute making such a refusal a criminal act. ⁴ While the Court did not address the constitutionality of the statute, it held that the police action of stopping appellant solely to ascertain his identify and having no reasonable suspicion to believe that he was engaged in or had engaged in criminal conduct constituted a seizure under the Fourth Amendment.

In this case, defendant's encounter with the police commenced when two uniformed police officers approached him from their marked patrol car. They inquired as to his reason for being in the area and asked for identification. He was told that he resembled a burglary suspect. He was required to alter his course of conduct substantially; he was permitted only to get his identification. Under the circumstances, it is highly unlikely that defendant felt free to walk away. We conclude that the restraint placed on defendant's liberty was a stop.

Having concluded that the encounter was a stop, the remaining question is whether it was justified. ⁵ By statute an officer may stop and make relevant inquiry of a person if he "reasonably suspects" that the person has committed a crime. ORS 131.615 provides:

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

"(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer's suspicion."

ORS 131.605(4) provides:

" '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."

To justify a stop under the statute there must be specific articulable facts on which to base a reasonable suspicion that the subject has committed a crime. State v. Valdez, supra 277 Or. at 626, 561 P.2d 1006; State v. Brown...