State v. Hasan
Decision Date | 14 September 1988 |
Citation | 93 Or.App. 142,760 P.2d 1377 |
Parties | STATE of Oregon, Respondent, v. Dalya Lee HASAN, Appellant. DA 332813; CA A44707. |
Court | Oregon Court of Appeals |
Michael E. Kolhoff, Wilsonville, argued the cause for appellant. With him on the brief was Theresa M. Welch, Wilsonville.
Robert M. Atkinson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Defendant appeals the denial of her motion for judgment of acquittal and her conviction for resisting arrest. ORS 162.315. We affirm.
This case arises from an incident which occurred in the early morning hours of November 14, 1986, involving defendant, a 5'4", 102 lb black female, and Officer Esler, a 6'5", 300 lb white male. The trial court described the facts:
Defendant asserts two assignments of error. 2 In the first, she contends that the officer's use of force was unlawful--both as to the stop and the arrest--and that, therefore, she was justified in defending herself. In the second, she contends that she should have been acquitted because she did not "resist" within the meaning of the statute and that there was no evidence of intent to resist arrest or to be an accomplice.
We begin by addressing the officer's use of force to stop defendant. ORS 131.605(5) provides:
"A 'stop' is a temporary restraint of a person's liberty by a peace officer lawfully present in any place."
The initial stop was lawful. The officer's information was that a group composed of one white woman and three black women associated with a specific address had recently unlawfully attacked someone. Upon arrival at the residence, the officer saw a group matching that description. Accordingly, he could lawfully stop and make a reasonable inquiry of members of the group. ORS 131.615.
Regarding the officer's use of force in making the stop, defendant contends that police have no statutory authority to restrain a person forcibly unless the person is arrested, because neither the stop statute, ORS 131.615, nor ORS 161.235 3 authorizes the use of force in a stop. 4 Defendant is incorrect. The stop statute clearly contemplates that a person may be involuntarily stopped. ORS 131.605(5) defines a stop as a "temporary restraint of a person's liberty." ORS 131.615(2) characterizes the stop as "detention and inquiry." Indeed, the distinguishing feature of a stop is that "a person's liberty is restrained by either physical force or by a show of authority." State v. Kennedy, 290 Or. 493, 498, 624 P.2d 99 (1981); State v. Warner, 284 Or. 147, 162, 585 P.2d 681 (1978). We hold that the officer's use of force to restrain defendant was lawful.
Esler's actions did not otherwise exceed the lawful bounds of the stop. Arranging to have the victim, who was present at the scene, view defendant was within the scope of the reasonable inquiry allowed by the statute. Walker v. City of Portland, 71 Or.App. 693, 698, 693 P.2d 1349 (1985). Moving defendant from the yard to the police car also did not violate the statute. ORS 131.615(2) provides that "[t]he detention and inquiry shall be conducted in the vicinity of the stop * * *." Whatever the limits of the term "vicinity of the stop," see Walker v. City of Portland, supra, 71 Or.App. at 698, 693 P.2d 1349, they are not violated by moving a person several yards, as was the case here. Neither were the officers' actions unreasonable, given the volatile situation facing them. It appears that they intended to bring the victim to defendant until they were thwarted by defendant's attempt to get away. At that point, the officers apparently decided to leave the victim in the car and bring defendant to him. We hold that the officers' actions were lawful.
Turning to the arrest, defendant appears to contend that the force used during the arrest was unlawful because the arrest was unlawful. She contends that the arrest was unlawful because the use of force during the stop was unlawful. The argument is a bit circular. Because we hold that the use of force during the stop was lawful, and defendant does not otherwise challenge the lawfulness of her arrest, we reject her argument.
The final aspect of defendant's first assignment of error concerns her argument that she had the right to defend herself, because the use of force to detain her during the stop and arrest were unlawful. Because we hold that the use of force by the officer was lawful, defendant did not have the right to defend herself.
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