State v. Tourtillott, 10158

• Citation: 618 P.2d 423,289 Or. 845
• Decision Date: 21 October 1980
• Docket Number: No. 10158,10158
• Parties: STATE of Oregon, Respondent, v. Donna Lorraine TOURTILLOTT, Petitioner. ; CA 10998; SC 26660.
• Court: Supreme Court of Oregon

Page 423

618 P.2d 423

289 Or. 845

STATE of Oregon, Respondent, v. Donna Lorraine TOURTILLOTT, Petitioner.

No. 10158; CA 10998; SC 26660.

Supreme Court of Oregon.

Argued and Submitted Jan. 8, 1980.

Decided Oct. 21, 1980.

James E. Mountain, Jr., Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Karen Green, Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before DENECKE, C. J., TONGUE, HOWELL, LENT, LINDE and PETERSON, JJ., and TANZER, Justice Pro Tempore.

PETERSON, Justice.

The decision in this case turns on the applicability of ORS 131.615 and the requirements of the state and federal constitutions. Three issues are presented for our determination:

1. Do police game checkpoint stops violate ORS 131.615 when there is neither probable cause to believe nor reasonable suspicion that a crime has been committed?

2. Are game checkpoint stops violative of Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the Constitution of the United States when there is neither probable cause to believe nor reasonable suspicion that a crime has been committed?

3. If a police officer makes a valid checkpoint stop followed by an inquiry which would be permitted in connection with the purpose of the checkpoint stop, should the evidence obtained as a result of the inquiry be suppressed if the officer's purpose in making the inquiry was unconnected with the purpose for making the stop?

The defendant was convicted of a Class C felony, driving with a revoked license, ¹ and was sentenced to imprisonment for one year. Execution of the sentence was suspended and the defendant was then placed on probation. Alleging that the circuit court erred in denying her motion to suppress evidence obtained when she was stopped by an Oregon State Police game officer, she appealed the conviction. The Court of Appeals affirmed, 43 Or.App. 5, 602 P.2d 659 (1979). We accepted review to examine the legality of game checkpoint stops where there exists neither probable cause to believe nor reasonable suspicion that a game law, or any other law, has been violated.

The Facts

The defendant was stopped at a roadblock located on a highway between Powers and Agness, Oregon, just south of the Powers city limits. The roadblock, manned by an officer of the Oregon State Police Game Division, ² was set up to check hunters' compliance with the game laws, to check hunting licenses and to gather statistics on hunter success on the opening day of deer hunting season, October 1, 1977. According to the trial judge, the roadblock was established "on one of the most rural highways in the whole state of Oregon." A sign stating "Attention Hunters" and "All Vehicles Must Stop" was placed on the side of the road, and the police officer's vehicle, with a sign on its side indicating its ownership, was parked at a right angle to the road.

As automobiles approached, the officer, wearing a uniform and badge, stood in the center of the road and held out his hand to stop approaching vehicles. If the car contained older people or others who did not appear to have been hunting, the officer would sometimes permit them to continue after they slowed or stopped.

The defendant was driving a friend's car toward Powers. She stopped near the officer. The officer testified that he noticed nothing unusual about the manner in which the defendant operated the automobile, nor did he observe anything unusual about the defendant. After the defendant stopped, the officer asked for identification or a driver's license. The defendant responded that she was suspended and had no driver's license.

According to the officer, it was standard operating procedure to ask those stopped at game checks to produce a driver's license or identification if a hunting license was not produced.

Petitioner contends that the stop violated ORS 131.615, Article I, section 9, of the Oregon Constitution, and the Fourth Amendment of the United States Constitution ³ because the stop was "not based upon any reasonable suspicion that the defendant had been involved in criminal activity." She also contends that even if the stop was permissible, the officer's subsequent request for a driver's license or identification was impermissibly intrusive. We consider first the contention that the stop violated ORS 131.615. ⁴

I. Applicability of ORS 131.615

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."

An analysis of the legislative history of ORS 131.615 makes it clear that the legislature did not intend to limit all "stops" for law enforcement purposes to those permitted under ORS 131.615.

The Oregon Legislature created the Criminal Law Revision Commission in 1967 to revise Oregon law relating to crime and criminal procedure. Or. Laws 1967, ch. 573, § 2. Preliminary work on the Criminal Procedure Code began in 1970. The first preliminary draft of Article 5, relating to search and seizure, was presented in January, 1971.

The preliminary draft on search and seizure included a prohibition against searches or seizures ⁵ not specifically authorized in the Code. Section 2 of the draft, entitled "prohibition of unauthorized searches and seizures," provided:

"No search or seizure shall be authorized or executed otherwise than in accordance with the provisions of Article (stop and frisk provisions to be drafted, probably to be included in the Article dealing with investigation of crime presently covered in Article 2, Tent. Draft No. 2 of the MCP), ⁶ and sections 3 through 15 of this Article and Article 27 of the Oregon Criminal Code of 1972 (eavesdropping)." Criminal Procedure Code, Preliminary Draft No. 1, Part II. Pre-arraignment Provisions, Article 5, § 2 (January, 1971).

The commentary to the preliminary draft stated:

"This section prohibits all searches and seizures except those specifically allowed in other sections of this Article (e. g., searches and seizures pursuant to a warrant, incidental to an arrest), the provisions of the stop and frisk sections yet to be drafted and the electronic eavesdropping provisions presently included in Article 27 of the Oregon Criminal Code of 1971.

" * * *.

"No comparable provision exists in Oregon legislation on the general level of the proscription in this section. Like most other states the Oregon statutes in the search and seizure field (or lack of such statutes) leave to implication the prohibition of unauthorized searches and seizure. In a few instances ORS specifically authorizes seizures. See ORS 164.368 (stolen Christmas trees); 167.540 and 167.555 (gambling devices); 142.080 (vehicles used to transport stolen property). The silence of the legislature with respect to the kinds of searches and seizures which are permissible leaves the policy limits to be determined by the courts based on their notions of what is constitutionally permissible. Such a failure by the legislature has the effect of authorizing any search which the Constitution does not prohibit.

"Statutes should, as pointed out in the MCP commentary (Ten. Draft No. 3, p. 10), 'be so phrased as to leave a certain amount of judicial elbow room for the exercise of discretion. But it is believed that there should be a statutory basis for every search and that searches lacking such a basis should be explicitly prohibited.' " (Emphasis added.)

Substantially the same provision was retained in Preliminary Draft Number 3, submitted in May, 1972. On June 5, 1972, Subcommittee Number 2 of the Commission adopted the section. When the Commission considered it on June 16, 1972, however, Section 2 was deleted by a unanimous Commission. Professor George Platt, the Commission reporter, stated:

"I would certainly hope that this section be retained because it asserts again the legislature as the ultimate decision maker as to what search and seizure should consist of * * *. If there is no prohibition on searches not specifically authorized, then the police and the various agencies would have the flexibility, as they describe it, of being able to search, and I think that it ought to be a definite affirmative definition by the legislature as to whether they should search." Criminal Law Revision Commission (June 16, 1972), Tape 11, side 2, at 336. ⁷

Senator Anthony Yturri, Commission Chairman, then stated he believed that the section was "too restrictive and should be deleted." Id., Minutes at 37. After a discussion on this point, the section was deleted.

Five of the six legislators appointed to the Commission and present at the June 16 1972, meeting were members of the 1973 legislature, which adopted the Criminal Procedure Code without any provision prohibiting searches or seizures not authorized by the Code. Or. Laws 1973, ch. 836, §§ 81-121. One member, Senator John Burns, was a member of the Senate Judiciary Committee which held hearings on the Code. Testimony before the Judiciary Committee brought the deleted Section 2 to the committee's attention. See Hearings on SB 80 Before the Senate Judiciary Committee, 57th Or.Legis.Ass'y, Exhibits at 110-114 (Testimony of Jackson L. Frost). The provisions prohibiting searches and seizures other than those authorized by statute continued to be omitted.

The significance of this legislative history is that the Commission knowingly and explicitly rejected proposed provisions that the Code was intended to completely define the scope of permissible search and seizure. ⁸

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