State v. Tucker
| Decision Date | 05 June 1979 |
| Citation | 286 Or. 485,595 P.2d 1364 |
| Parties | STATE of Oregon, Respondent, v. Michael Anthony TUCKER, Petitioner. TC C 77-04-04696; CA 8748; SC 25963. |
| Court | Oregon Supreme Court |
Marianne Oswald Bottini, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Walter L. Barrie, Sol. Gen., Salem, argued the cause and filed the brief for respondent. With him on the brief was James A. Redden, Atty. Gen., Salem.
Before HOLMAN, P. J., and TONGUE, HOWELL, BRYSON, LENT and LINDE, JJ.
Defendant was found guilty of burglary and theft. He appealed, contending that his motion to suppress evidence should have been granted. The Court of Appeals affirmed. 34 Or.App. 203, 578 P.2d 803 (1978). We granted review in this case to consider the permissible scope of police activity in connection with traffic violations. Defendants have contended that a stop for a traffic violation was a subterfuge or pretext used by a police officer to create an opportunity for investigation of his suspicion of other crimes.
In this case we are concerned with two problems. The first is whether a police officer may stop and detain a traffic violator when his decision to do so is based on, or influenced by, a suspicion of criminal activity and that suspicion is based on circumstances which would not justify an investigative stop under ORS 131.615(1). 1 The second problem involves the circumstances under which an officer may take a traffic violator into custody after an authorized traffic stop.
The facts.
In this case the defendant and a companion were observed by two Portland police officers while the officers were on routine patrol duty in their car about 10:00 a. m. Defendant and his companion were riding bicycles. Defendant was carrying, on his handlebars, a laundry basket containing an object partially covered by a blanket. The officers noticed that the rear tire on one of the bicycles was somewhat flat. It appeared to the two officers that the bicyclists noticed the marked patrol car, and that when they did so they changed their direction of travel. The officers then saw the two bicyclists ride through a stop sign without stopping. The officers then signalled defendant and his companion to stop.
The trial court found as a fact that the officers' purpose in making the stop was to cite or arrest for the traffic violation. However, both officers testified, and the trial court made no finding to the contrary, that their reason for deciding to stop these two bicyclists for that purpose was that there was something suspicious or "out of the ordinary" about their appearance and behavior. The officers' conduct during the stop makes it clear that they were not solely concerned with the stop sign violation.
Officer Bell first asked defendant what he was carrying in the basket on his handlebars. Defendant showed him a television set in the basket. He told the officers that he had purchased the set for $75 about a month earlier. When the officers asked where they had been and where they were going, defendant and his companion gave answers that were inconsistent with their direction of travel at the time they were stopped.
Although the exact sequence of events is not clear, at some time during the questioning at the scene of the stop the officers obtained the serial numbers of the television and the two bicycles and checked by radio to determine whether they had been reported stolen. They had not. The officers also called other patrol cars in the area by radio to determine whether any burglaries had been reported. They learned of none. 2
Officer Bell, after he learned that defendant was carrying a television set, asked defendant his name and date of birth. Defendant answered that his name was Bobby Davis and that his date of birth was October 7, 1959. However, defendant's companion, when asked what defendant's name was, replied that it was Michael Tucker. Defendant, when asked by the officers, denied that his name was Michael Tucker. In response to further questioning, he also gave two different dates of birth, neither of which was October 7, 1959.
Defendant was then "arrested" for running a stop sign, a Class B traffic infraction whether committed in a motor vehicle or on a bicycle. ORS 487.120, 487.750. He and his companion were taken to the police detectives' office, where Officer Bell issued a traffic citation showing defendant's correct name and address. The record does not show at what time they arrived or when the citation was written. Defendant was, however, still in custody at about 12:30 p. m. when the police received information that the television set, the two bicycles, and other articles had been taken in a burglary that morning. At some time prior to 12:30 a police officer had spoken to defendant's mother at his home, obtaining information tending to confirm his identity as Michael Tucker. While detained at the station, defendant admitted that was his name.
Defendant was charged with burglary and theft of the television and a bicycle. He moved to suppress "all evidence, oral or tangible, obtained from the defendant" on the ground that both the initial stop and the custodial arrest were improper. The evidence which was the intended subject of the motion appears to consist of the false and evasive statements made by defendant during the stop at the scene, as well as the television set and bicycle which were seized when he was taken into custody. The motion was denied and defendant was found guilty upon an oral stipulation "to the facts sufficient for the court to enter a finding of guilty" on the burglary and theft charges.
The officers were authorized to stop defendant after seeing him commit a traffic violation.
Defendant and the Court of Appeals have characterized the stop in this case as a "pretext" stop. We have used that term in the past, although without defining its meaning.
In State v. Florance, 270 Or. 169, 527 P.2d 1202 (1974), we reexamined the question of the permissible scope of a search of the person incident to a custodial arrest in light of the then recent decision of the United States Supreme Court in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). In Florance we held (at 182-84) that Article I, § 9 of the Oregon Constitution 3 should not be construed to place greater restrictions on searches incident to arrests than does the Fourth Amendment to the Constitution of the United States as interpreted in Robinson. We overruled our prior decisions which placed greater limitations on such searches than did the Robinson rule.
The present case does not involve the validity of a search, and the Robinson rule itself, as adopted in Florance, has no application. However, in our opinion in Florance we indicated that further refinement might be required in a case involving what we described as a "pretext" arrest. 4
As the dissent in Florance pointed out, we did not undertake in that case to define a "pretext" arrest. There was no need to do so in Florance. We also see no need to define a "pretext" stop in this case. To attempt to define the term would suggest that it has independent legal significance and would invite the difficulties which attend the creation and labeling of a legal category. 5 We prefer simply to turn our attention to the factual situation before us, treating it as an example of similar factual patterns.
Specifically, we are faced first with the validity of the initial stop of a bicycle operator by police officers who had seen him violate a traffic law by failing to stop at a stop sign after the officers' attention had been attracted by behavior which was somewhat unusual, but which did not constitute grounds for a reasonable suspicion that the operator had committed a crime. More generally stated, the first issue before us is whether an officer may validly stop a person who has committed a minor offense in the officer's presence when the officer's curiosity or suspicion has first been aroused by other behavior which would not itself justify a stop. For purposes of analysis we will further assume that the officer might not have noticed the violation itself if his attention had not been attracted by the earlier behavior or appearance and that were it not for the curiosity or suspicion so aroused the officer would probably not have stopped the violator for the offense that he observed.
Stopping a vehicle and detaining its occupants is a "seizure" of the person within the meaning of the Fourth Amendment to the Constitution of the United States, "even though the purpose of the stop is limited and the resulting detention quite brief." Delaware v. Prouse, --- U.S. ----, ----, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660, 667 (1979). The decision to make such a stop may not depend solely upon the "standardless and unconstrained discretion" of the officer in the field. Id. at ----, 99 S.Ct. at 1400, 59 L.Ed.2d at 672.
A police officer's statutory authority to stop a person who has committed an offense in the officer's presence, although not expressed in terms of a "stop," is clear. ORS 133.310(1) provides that a peace officer may "arrest a person without a warrant if the officer has probable cause to believe that the person has committed" any offense in the officer's presence. 6 ORS 484.100(1) provides:
"A police officer may arrest or issue a citation to a person for a traffic offense at any place within the jurisdictional authority of the governmental unit by which he is authorized to act."
The authority to stop is a necessary part of the authority to arrest or to issue a citation.
Such a stop, clearly authorized by statute, is reasonable for constitutional purposes because based on probable cause when the offense has been committed in the officer's presence and no warrant or additional justification is required. See ...
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