State v. Carter

Decision Date02 October 1979
Citation600 P.2d 873,287 Or. 479
PartiesSTATE of Oregon, Respondent, v. William Dean CARTER, Petitioner. STATE of Oregon, Respondent, v. Marion Clay DAWSON, Petitioner. TC C 76-10-14543; CA 7902; SC 25965; TC C 76-10-14544; CA 7903; SC 25965. . *
CourtOregon Supreme Court

Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for petitioners. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Walter L. Barrie, Sol. Gen., Salem, argued the cause for respondents. With him on the brief were James A. Redden, Atty. Gen., and John W. Burgess, Asst. Atty. Gen., Salem.

TONGUE, Justice.

The defendants in these consolidated cases were charged by information with criminal activity in drugs (ORS 167.207). Defendant Dawson was also charged with unlawful possession of a weapon (ORS 166.250). Both defendants moved to suppress evidence seized from their automobile at the time of their arrest. The trial judge granted those motions. On appeal by the state, the Court of Appeals remanded the cases to the trial court for further proceedings and, in doing so, announced new rules governing the admissibility of evidence discovered by an officer who has stopped a car for a traffic violation. 34 Or.App. 21, 578 P.2d 790 (1978). We granted review of these cases, together with State v. Tucker, 286 Or. 485, 595 P.2d 1364 (1979), in order to consider some of the problems that arise when a police officer stops a vehicle after observing a traffic violation and, while the vehicle is stopped, discovers evidence of other offenses.

In Tucker we held that an otherwise authorized traffic stop is not rendered invalid simply because the officer is curious or suspicious about the possibility that the vehicle's occupants may be involved in criminal activity. In the present case we consider an additional question: the effect, if any, to be given to circumstances indicating that the officer deliberately kept the vehicle under surveillance before there was any violation at all.

The facts.

Early in the afternoon of October 14, 1976, Officer Miller of the Gresham police force was on routine patrol duty. His patrol took him past a utility installation located in a large field. Earlier that day a Multnomah County sheriff's deputy had told him that there was reason to suspect that two young men responsible for some recent burglaries in Gresham were camping in that field and that the suspects might try to hitchhike out of the area.

As he approached the field in his patrol car, Officer Miller saw a car coming from the opposite direction pull into a driveway there. He "couldn't see who got in, but it appeared like they picked up a hitchhiker." The car then went on its way. Officer Miller turned around and followed it. He testified that his purpose at that time was to observe the occupants of the car as he followed it and, if further investigation then seemed to be called for, to stop it.

Officer Miller testified that he caught up with the car "just before we got to the main core area of the city." Based on what he could see of the occupants, he decided not to stop the car. Shortly thereafter, he said, he noted that the car he was following was going forty miles per hour in an area where the posted speed was thirty miles per hour. Officer Miller did not immediately signal the car to stop because, he testified, there was no good place to pull over in the downtown area. He followed the car for a mile or more before signaling it to pull over. When the car stopped he learned that the occupants were these two defendants, who did not fit the descriptions of the two suspected burglars, and a young woman the hitchhiker who went on her way with Officer Miller's permission.

The sequence of events following the stop is not entirely clear. Officer Miller testified that when the car stopped, the driver defendant Carter got out of the car and met the officer "near the back of the vehicle." Officer Miller asked him for his driver's license and vehicle registration. Carter produced his license and went back to the car for the registration. He returned with it, meeting Officer Miller near the rear window of the car. At about the same time defendant Dawson, the passenger, got out of the car and came to the same spot. Dawson said that the car belonged to his father; the name on the registration was "A-1 Maintenance Company."

Officer Miller testified that Dawson appeared to be unsteady on his feet, that his eyes were bloodshot and his speech was slurred, although he spoke coherently. Dawson produced his identification at Officer Miller's request. The officer then checked by radio and learned that "both subjects were clear, and Carter's license was current and that the vehicle was not * * * reported stolen * * * ."

Continuing his testimony, Officer Miller said that he then walked along the side of the car to a point where he could see inside it, and that he saw a package of cigarette papers on the seat, some vegetable material which he thought was marijuana on the floor, and part of a hand-rolled cigarette in the ashtray. Then, he said, he asked Carter and Dawson if there was anything in the car that shouldn't be there, and they both said "no." He then asked if they objected to his looking inside and they told him to go ahead and look. We quote his testimony as to what happened next:

" * * * I opened the door of the vehicle, and then I turned back around. And I asked them again if there was anything in the vehicle. And then Mr. Dawson said he had a quantity of marijuana in there, but it was less than an ounce. And I asked him to take it out. And at that time he turned around, and I was standing behind him. He squatted down, and it appeared as though he reached under the front seat of the vehicle. He removed a small, clear plastic sandwich baggie containing a green substance which looked like marijuana. * * * Then I asked him if there was anything else in the vehicle, and he said there was a gun. * * * I asked him where it was and if it was loaded. He said, 'Yeah, I think it is loaded.' He said, 'It is under the front seat.' So then I reached in underneath the front seat and removed the gun and placed it on top of the car."

Other officers then arrived at the scene. A large quantity of marijuana was found in the back seat and trunk of the car. The details of the search that disclosed it are not important, as the defendants concede that a search of the car was justified if the preceding conduct by the officer was proper.

The defendants were arrested. Carter was cited for violation of the basic rule. Both defendants were charged with criminal activity in drugs. Dawson was also charged with unlawful possession of a weapon.

Officer Miller's written report was admitted into evidence at the suppression hearing. Although not as detailed as his testimony, it is consistent with what we have related above except in one particular. The report states that Officer Miller looked into the car and saw the cigarette papers, hand-rolled cigarette, and what appeared to be marijuana debris After, rather than before, he had asked the defendants about the contents of the car and asked for permission to look inside. The sequence described in the written report is the same as that described by Officer Miller at the preliminary hearing, a tape recording of which was introduced for impeachment purposes.

The stop after an observed traffic violation was proper.

In State v. Tucker we discussed the authority of a police officer to stop a vehicle when its operator has committed a traffic violation in his presence. What we said there would dispose of the question of the propriety of the stop in this case were it not for one additional fact. The officer, having noticed the automobile apparently picking up one or more hitchhikers in an area where he had been told two burglary suspects might be trying to hitchhike, followed the vehicle for some distance approximately two miles as we interpret the testimony before he saw the traffic violation which provided the basis for the stop. He testified that while he was following the car and before he observed the speeding violation, he had seen that there was only one passenger in the back seat. As a consequence, he testified, he had decided...

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    ...motives for an otherwise justifiable traffic stop are * * * not relevant to the question of its validity.’ State v. Carter/Dawson, 287 Or. 479, 485, 600 P.2d 873 (1979)."6 To the extent that defendant had argued that defendant was "immediately seized" before the dog's alert by stopping the ......
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