State v. Carter

• Decision Date: 08 May 1978
• Citation: 578 P.2d 790,34 Or.App. 21
• Parties: STATE of Oregon, Appellant, v. William Dean CARTER, Respondent. STATE of Oregon, Appellant, v. Marion Clay DAWSON, Respondent. *
• Court: Oregon Court of Appeals

Page 790

578 P.2d 790

34 Or.App. 21

STATE of Oregon, Appellant, v. William Dean CARTER, Respondent.

STATE of Oregon, Appellant, v. Marion Clay DAWSON, Respondent.

Court of Appeals of Oregon,In Banc ^*

Argued and Submitted Oct. 17, 1977.

Resubmitted in banc on Record and Briefs Feb. 23, 1978.

Decided May 8, 1978.

John W. Burgess, Asst. Atty. Gen., argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

No appearance for respondent Carter.

Chris P. Ledwidge, Portland, argued the cause and filed the brief for respondent Dawson.

SCHWAB, Chief Judge.

This is an appeal by the state from an order suppressing evidence. The issues presented involve the validity of the stop of an automobile in which defendants were riding, and the intrusiveness of the stop. These issues, in light of the trial court's findings, require us to reconsider the meaning of an often-used but never-defined term: a "pretext" stop.

I. The Facts

The record presents some problems, noted below. The following facts seem to be agreed upon, or at least not seriously contested.

The morning of October 14, 1976, Officer Miller was informed that some juveniles were suspects in recent burglaries and that they might be camped near a utility installation. That afternoon as he was driving near the utility installation, he saw a car with two young men inside pulled over, apparently picking up a hitchhiker. According to Officer Miller's subsequent report, he immediately decided to "check out the occupants of the vehicle" because of the reported burglaries.

Officer Miller followed the car for a considerable distance, apparently about three miles. When the posted speed limit dropped from 40 to 30 miles per hour, Miller "paced" the car for about five blocks at 40. Officer Miller turned on his overhead lights and stopped the car.

The driver, defendant Carter got out and met Officer Miller between their two vehicles. The officer asked him for his operator's license and vehicle registration. Carter gave Miller both documents. ¹ The passenger, defendant Dawson, also got out and Miller asked him for identification. Dawson complied. During an exchange between them, Dawson told the officer that the car belonged to his father. Subsequently, Officer Miller looked into the car. He saw a hand-rolled cigarette in the ashtray, green vegetable flakes, stems and seeds on the floor and a package of cigarette papers on the front seat. This led to a thorough search of the car during which officers found about 20 pounds of marihuana in the trunk.

There are conflicts and gaps in the record about what transpired between the time Officer Miller asked defendants for identification and the time he made the plain-view observation of marihuana and related paraphernalia. At one point during the suppression hearing, the officer testified that he looked into the Carter/Dawson vehicle shortly after asking them for identification a possible implication of this testimony being that he saw marihuana in plain view at that time.

Officer Miller's written report, introduced at the suppression hearing, tells a different story. It recites that after obtaining drivers' licenses and vehicle registration, the officer returned to his patrol car to make a "records check" by radio on Carter, Dawson and their vehicle. Miller learned, as his written reports puts it, "Both subjects were clear and the vehicle was clear." However, Miller wanted to make further inquiry because the radio report indicated the car was registered to the A-1 Maintenance Company, not in the name of Dawson's father as Dawson had implied. This testimony is difficult to understand; it seems obvious that Miller would have known who the registered owner was as soon as he saw the vehicle registration, which was before he ran the "records check."

Officer Miller's written report continues, stating that after receiving the radio report, he again approached the defendants, who were standing outside their car, apparently near the rear of the passenger side. Officer Miller asked, "Is there anything in the car that shouldn't be there?" or words to that effect. ² That defendants replied in the negative. The officer next asked permission to look inside the car. Defendants consented. Officer Miller then made the plain-view observations described above. The importance of these various versions of the facts of this plain-view observation is explained in Part IV, infra.

II. The Issues

There is some disagreement over the issues framed in the trial court. It is, of course, the obligation of the litigants to frame the issues in the trial court at the suppression hearing. State v. Miller, 269 Or. 328, 330-32, 524 P.2d 1399 (1974), citing State v. Johnson/Imel, 16 Or.App. 560, 519 P.2d 1053, rev. den. (1974), with approval. And the appellate courts cannot reach issues that were not raised by the parties in the trial court. State v. Hickmann, 273 Or. 358, 540 P.2d 1406 (1975).

As we interpret the record, the defendants conceded that Officer Miller had probable cause to search further after seeing what he had probable cause to believe was marihuana and related paraphernalia. Defendants' primary argument was that this plain-view observation was invalid because Officer Miller's stop of their car was invalid. The state's primary argument was that the stop was justified as a Terry -type ³ stop to investigate the recent burglaries. The state alternatively relied upon the speeding infraction as a justification for the stop. The defendants responded that the traffic infraction was merely a "pretext" to stop and alternatively that if the infraction justified the stop, what followed was too intrusive.

Contrary to the suggestion in Judge Thornton's separate opinion, this case was not treated in the trial court as a consent-search case. The thrust of the state's argument to the trial court was that it relied on plain view of contraband to justify a subsequent search rather than consent to search. Nor did the state ever argue in the trial court although admittedly it could have that Dawson's bloodshot eyes, etc., gave Officer Miller grounds to make inquiry beyond that properly incident to stop for exceeding a posted speed.

We turn to the issues as framed by the parties in the trial court: the validity of the stop and the intrusiveness of the stop.

III. The Stop

The trial court rejected the state's Terry contention, concluding the facts do not indicate any reasonable suspicion that the occupants of the car had any connection with criminal activity. The trial court was correct. State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977).

The trial court found Miller's testimony that defendants were speeding credible, but concluded the traffic infraction was merely a "pretext" for stopping defendants' car in order to conduct the questioning which led to the discovery of the marihuana:

"* * * (Officer Miller) was very straightforward and very candid in his testimony. In listening to him, I couldn't help but feel that he stopped the car, not because they were going 10 miles over the 30 mile an hour speed limit, but for other reasons. * * *" There is abundant evidence to support the trial court's latter finding. Officer Miller testified that defendants' car was traveling at the speed of traffic, was not being driven erratically, and that it was not unusual for cars to travel at 35 to 40 miles per hour in that area. There was no evidence that Miller said anything to defendants about having stopped them for speeding between the original stop and their subsequent arrest for criminal activity in drugs. It was only after the arrest on drug charges that Miller issued a citation to Carter for violation of the basic rule.

The trial court's findings compel confronting the law of "pretext" stops. Many cases using that term are collected in Annotation, 10 A.L.R.3d 314 (1966). In some cases the term is apparently used to mean that the stopped driver had, in fact, committed no traffic offense. We have held a stop on such facts invalid without using the label "pretext." State v. Johnson, Wesson, 26 Or.App. 599, 554 P.2d 194 (1976). But in most cases "pretext" is used when: (1) the stopped driver had, in fact, committed a traffic offense, usually minor in nature; and (2) the stopping officer had some additional reason, suspicion or ulterior motive not sufficient standing alone for making the stop. On such facts, many cases hold the stop to be invalid as a "pretext."

We think the question comes down to whether the proper test is objective or subjective. The trial court's findings, paraphrased, are that there was an objectively reasonable basis for stopping defendants' car (speeding), but that Officer Miller's subjective reason for doing so was something different. Is the objective reason or the subjective reason controlling?

In Oregon, the slate is remarkably sketchy and inconclusive. The Supreme Court upheld a pretext stop in an old case, State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935). An officer following a suspected bootlegger stopped him when he drove 27 miles per hour in a 25 mph zone. The Supreme Court saw nothing troublesome about the stop since a traffic violation had actually occurred. Evidence resulting from the officer's observations after the stop was held to be admissible.

The Supreme Court also upheld what it seems to have assumed was a pretext stop and arrest in State v. Allen, 248 Or. 376, 434 P.2d 740 (1967). "It is obvious from the record that the police were primarily interested in the defendant as a burglary suspect and that the traffic charge was used to obtain some measure of control over the defendant while the burglary investigation proceeded * * *." 248 Or. at 383-84, 434 P.2d at 743.

More recently, the Supreme Court in dicta expressed a more critical attitude toward pretext stops and arrests in State v. Florance, 270 Or. 169, 187-88, 527 P.2d 1202 (1974). Among...