State v. Tourtillott

• Decision Date: 05 November 1979
• Docket Number: No. 10158,10158
• Citation: 602 P.2d 659,43 Or.App. 5
• Parties: STATE of Oregon, Respondent, v. Donna Loraine TOURTILLOTT, Appellant. ; CA 10998.
• Court: Oregon Court of Appeals

Page 659

602 P.2d 659

43 Or.App. 5

STATE of Oregon, Respondent, v. Donna Loraine TOURTILLOTT, Appellant.

No. 10158; CA 10998.

Court of Appeals of Oregon.

Argued and Submitted Nov. 30, 1978.

Decided Nov. 5, 1979.

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

Karen H. Green, Asst. Atty. Gen., 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 SCHWAB, C. J., and JOHNSON, ^* GILLETTE and ROBERTS, JJ.

SCHWAB, Chief Judge.

While driving on a rural road, defendant was stopped by an officer attempting to detect possible game violations the first weekend of hunting season. The officer asked to see defendant's driver's license, which she was unable to produce. Defendant was subsequently convicted of driving while suspended and appeals, contending the stop of her vehicle was illegal.

Defendant acknowledges that under Delaware v. Prouse, 440 U.S. 648, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979), roadblock-type stops of motorists are constitutionally permissible, but argues the stop in this case was not in the nature of a roadblock. Defendant's argument necessarily raises the issue we recently noted but did not resolve in State v. Odam, 40 Or.App. 551, 595 P.2d 1277, Rev. allowed, 287 Or. 301 (1979) whether Oregon statutes permit roadblock stops to detect game violations. Finally, defendant contends that if the rationale for the stop was to detect game violations, the stop became impermissibly intrusive when the officer asked to see her driver's license.

We conclude that, as a factual matter, defendant was stopped at a roadblock; that Oregon statutes do not prohibit roadblock stops to detect game violations; and that a motorist stopped for any valid reason may be asked to display his or her driver's license. We therefore affirm.

I

The United States Supreme Court has defined and contrasted impermissible roving-patrol or random spot-check stops, on the one hand, with permissible roadblock or checkpoint stops, on the other hand, in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S.Ct. 3074, 49 L.Ed.2d 1116 (1976), and Delaware v. Prouse, supra. Roving-patrol or random spot-check stops involve an officer's singling out an individual motorist to stop based solely on the officer's "standardless," "unbridled" and "unreviewable" discretion. Delaware v. Prouse, supra, 440 U.S. at 658 and 662, 99 S.Ct. at 1398 and 1400, 59 L.Ed.2d at 672 and 674; Martinez-Fuerte, 428 U.S. at 559, 96 S.Ct. at 3083, 49 L.Ed.2d at 1129. By contrast, the usual motorist is advised he is approaching a roadblock or checkpoint stop by signs and/or stationary, marked police vehicles with flashing lights and/or a uniformed officer standing on the highway. Martinez-Fuerte, 428 U.S. at 545, 96 S.Ct. at 3077, 49 L.Ed.2d at 1121. Vehicles can be slowed at a roadblock or checkpoint while officers make a visual inspection of the vehicles and occupants, or brought to a complete halt and the occupants briefly questioned. Martinez-Fuerte, 428 U.S. at 545-46 and 557, 96 S.Ct. at 3077 and 3082, 49 L.Ed.2d at 1121-22 and 1128.

The "crucial distinction," Delaware v. Prouse, supra, 440 U.S. at 656, 99 S.Ct. at 1397, 59 L.Ed.2d at 669, is the likely subjective impact upon motorists. "* * * (T)he subjective intrusion the generating of concern or even fright on the part of lawful travelers is appreciably less in the case of a checkpoint stop" than in the case of a spot-check stop. Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083, 49 L.Ed.2d at 1116, quoted in Delaware v. Prouse, supra, 440 U.S. at 658, 99 S.Ct. at 1397, 59 L.Ed.2d at 669. "At traffic checkpoints, the motorist can see that other vehicles are being stopped, he can see visible signs of the officer's authority and he is much less likely to be frightened or annoyed by the intrusion." United States v. Ortiz, 422 U.S. 891, 894-95, 95 S.Ct. 2585, 2588, 45 L.Ed.2d 623 (1975), quoted in Martinez-Fuerte, 428 U.S. at 558, 96 S.Ct. at 3083, 49 L.Ed.2d at 1116, and quoted in Delaware v. Prouse, supra, 440 U.S. at 657, 99 S.Ct. at 1398, 59 L.Ed.2d at 670.

We previously applied the distinction between roving-patrol, spot-check stops and roadblock stops in State v. Odam, supra. In Odam a game officer patrolling a rural area intended to stop every motor vehicle he encountered to investigate possible game violations. Despite the officer's intent not to be selective, the subjective impact upon any given motorist stopped would be the same as if the officer were selective. We concluded the stop in Odam was not of the roadblock type.

We conclude the stop in this case was of the roadblock type. The officers had set up a sign on the highway that said something to the effect of "attention hunters" and "all vehicles must stop." A police car was parked along the road at an angle so that approaching motorists could see the official insignia on the side. An officer wearing a uniform and badge was standing in the middle of the highway holding up his hand to signal cars to stop.

Defendant makes much of the stopping officer's testimony that, if a car just slows down and contains older people or "it doesn't appear that they have been hunting or anything, we just normally let them continue on as long as we don't see anything obviously wrong." Defendant contends this amounts to stopping some vehicles and not others based solely on the officer's unbridled discretion. On the contrary, we find the practice of requiring traffic to slow without literally stopping followed by literally stopping some but not all vehicles for further inquiry to be fully consistent with the checkpoint operations approved by the Supreme Court in Martinez-Fuerte.

II

Two Oregon statutes may limit the constitutional authority to make roadblock-type stops to investigate possible game violations. ORS 496.660(1) applies specifically to enforcement of game laws:

"Any person mentioned in ORS 496.645 (game officers) may search any person, and examine any boat, automobile, aircraft, conveyance, vehicle * * * which they have reason to believe contain evidence of violations of the wildlife laws."

ORS 131.615(1) is general in nature:

"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."

Although ORS 496.660(1) speaks only to warrantless searches, in Odam we held: "The statutory authority to search a vehicle is inseparable from the authority...