State v. Shankle, 81-07867

• Decision Date: 08 July 1982
• Docket Number: No. 81-07867,81-07867
• Citation: 647 P.2d 959,58 Or.App. 134
• Parties: STATE of Oregon, Respondent, v. Ronald James SHANKLE, Appellant. ; CA A22257.
• Court: Oregon Court of Appeals

Page 959

647 P.2d 959

58 Or.App. 134

STATE of Oregon, Respondent, v. Ronald James SHANKLE, Appellant.

No. 81-07867; CA A22257.

Court of Appeals of Oregon.

Argued and Submitted Feb. 17, 1982.

Decided July 8, 1982.

Robert N. Peters, Public Defender Services of Lane County, Inc., Eugene, argued the cause and filed the brief for appellant.

Virginia L. Linder, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P. J., and THORNTON and VAN HOOMISSEN, JJ.

RICHARDSON, Presiding Judge.

Defendant was convicted of misdemeanor driving while suspended. ORS 487.560. On appeal he contends that the trial court should have granted his motion to suppress evidence, because the stop of his vehicle by police officers was unreasonable under the state and federal constitutions. We affirm.

Defendant was driving his vehicle on a public highway when he was stopped by two police officers who were conducting an operator's license and vehicle registration inspection. Defendant was not suspected of having committed a crime or traffic infraction. The sole reason for the stop was that defendant's vehicle happened to be the next vehicle approaching the check point set up by the officers. The officers conducted the inspection in accordance with provisions of the Oregon State Police Policy Manual, which requires officers "from time to time (to) conduct on-site inspections to determine the status of motorists' operator's license and vehicle registration." The officers had selected a stretch of highway affording ample off-pavement parking space and an unobstructed view from either direction for a considerable distance, as required by the policy manual. The manual also requires that a police patrol vehicle be parked off the roadway and be clearly visible to oncoming motorists. ¹ Warning signs are not required by the policy manual, and none were used in this case. The officers stopped cars for inspection by means of hand signals. Prior to beginning the inspection, the officers decided on which one of three procedures listed in the policy manual for selecting vehicles for inspection they would use. The one used in this case is:

"3. The first passing vehicle will be stopped, with all other vehicles permitted to pass until the inspection is completed, at which time the very next vehicle must be stopped for inspection. This procedure is then repeated until the completion of the inspection." ²

The two officers conducted inspections at the check point for about two hours. They inspected a total of 40 vehicles. In only one inspection-defendant's-did the officers find a license or registration violation. ³

Defendant contends that this inspection procedure constitutes an unreasonable seizure under the Fourth Amendment of the federal Constitution and Article I, section 9 of the Oregon Constitution. ⁴ In determining whether the seizure was reasonable, we apply the balancing test expressed in State v. Tourtillott, 289 Or. 845, 618 P.2d 423 (1980), which in turn was based on Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979). The court stated in Tourtillott:

"The test is easily articulated. In determining the constitutionality of a particular government procedure, the promotion of the legitimate government interest at stake is balanced against the individual's right to have his or her privacy and personal security be free from arbitrary and oppressive interference. The Court has considered the following factors to be important:

"(1) the importance of the governmental interest at stake;

"(2) the psychologically and physically intrusive nature of the procedure;

"(3) the efficiency of the procedure in reaching its desired goals; and

"(4) the degree of discretion the procedure vests in the individual officers.

"No one factor is held to be determinative. As with any balancing test, its application to a particular set of facts may prove to be difficult." 289 Or. at 864-65, 618 P.2d 423.

In Prouse the Supreme Court found that the manner in which the police stopped a vehicle on a public highway for the purpose of checking the driver's operator's license and vehicle registration was unreasonable under the Fourth Amendment. The Court held that this discretionary spot check by a roving patrol was unreasonable but that

" * * * (t)his holding does not preclude the State of Delaware or other States from developing methods for spot checks that involve less intrusion or that do not involve the unconstrained exercise of discretion. Questioning of all oncoming traffic at roadblock-type stops is one possible alternative. We hold only that persons in automobiles on public roadways may not for that reason alone have their travel and privacy interfered with at the unbridled discretion of police officers. * * * " (Footnote omitted.) 440 U.S. at 663, 99 S.Ct. at 1401.

Defendant contends that the procedure used in this case is unreasonable because of the intrusive nature of the stop, the inefficiency of...