State v. Wight
| Decision Date | 13 October 1980 |
| Docket Number | No. 6339,6339 |
| Citation | 617 P.2d 928,48 Or.App. 731 |
| Parties | STATE of Oregon, Appellant, v. Michael Dean WIGHT, Respondent. ; CA 16425. |
| Court | Oregon Court of Appeals |
William F. Gary, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were James M. Brown, Atty. Gen., Walter L. Barrie, Sol. Gen., and Robert C. Cannon, Asst. Atty. Gen., Salem.
Edwin N. Storz, Hermiston, argued the cause for respondent. With him on the brief was Dennis R. Ingram, Hermiston.
The state appeals from an order suppressing contraband seized from defendant's automobile, in which he was a passenger, following a valid stop for a traffic infraction. The question is whether the arresting officer's behavior following the stop was overly intrusive, thereby exceeding the permissible scope of inquiry relating to the traffic reason for the stop. The trial court held that it was; we agree, and affirm.
The events which gave rise to the seizure unfolded as an Oregon state police officer was patrolling U.S. Highway I-80 N. near Boardman at about 1 a. m. The officer was in the process of passing a pickup towing a camp trailer when defendant's vehicle, which was directly in front of the pickup, pulled from the right lane into the left lane without signaling. The officer slowed down to avoid overtaking defendant's vehicle, which was traveling at 50 miles per hour in a 55 mile per hour zone. Defendant's vehicle proceeded in the left lane and did a "little bit of weaving" within the lane, and also across the fog line once. The vehicle then changed from the left hand lane to the right hand lane, again without signaling its intention to do so.
The officer pulled in behind the vehicle and activated his overhead flasher lights. The driver stopped the car and the officer pulled in behind. The driver, defendant's brother, got out of the car and met the officer between the two vehicles. The officer asked for identification, the driver produced his operator's license and stated that the vehicle belonged to his brother, the defendant, who was the passenger. There were no license plates on the vehicle. The officer informed the driver and defendant that he had stopped them for a traffic violation, and inquired why the vehicle had no license plates. As he approached the front of the vehicle, he noticed a valid temporary license affixed to the windshield, and upon questioning defendant, defendant produced a bill of sale covering the vehicle.
The officer then asked if they had any beer or marijuana in the automobile, and defendant produced a partially empty can of light beer. The officer asked again if there was any marijuana in the car, at which time the driver produced a small amount of marijuana from the glove compartment. Thereupon the officer advised the driver and the defendant of their constitutional rights and made a full search of the vehicle without the consent of the driver or defendant, which resulted in the discovery of a small quantity of hashish and LSD. Both men were then arrested.
In State v. Carter/Dawson, 34 Or.App. 21, 578 P.2d 790 (1978), this court, sitting in banc, discussed at length the question here presented, and stated the following conclusion with respect to the permissible intrusiveness of a stop:
34 Or.App. at 32-33, 578 P.2d at 796.
On review, the Supreme Court accepted that view. State v. Carter/Dawson, 287 Or. 479, 600 P.2d 873 (1979). We think that conclusion is dispositive here. Once the officer cleared the driver's license, the registration and the ownership of the automobile, he could do no more than write a citation for the traffic violation and send the defendant and his brother on their way.
The state, however, contends that here the officer had an articulable basis for believing the driver of the automobile (not the defendant) might be driving under the influence of alcohol or drugs, because of the "weaving movement" of the automobile and the making of two unsignaled lane changes (the objective reason for the stop). Whatever the officer's conjecture may have been was quickly dispelled when the driver met the officer face to face, standing outside of his automobile, and evidenced no sign of being under the influence of anything.
The officer, however, testified at the suppression hearing that the fact that the driver got out of the automobile when stopped led the officer to suspect that the driver might have been attempting to prevent the officer from observing something in the car. In Carter/Dawson, the driver (Carter) also got out of the car after being stopped and met the officer near the rear of the stopped vehicle. Further, the officer in Carter/Dawson, while checking out the vehicle registration observed that defendant Dawson, the passenger, appeared to be unsteady on his feet, his eyes bloodshot, and his speech slurred. State v. Carter/Dawson, supra, 287 Or. at 482-83,...
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State v. Jackson
... ... Carter/Dawson, 287 Or. 479, 600 P.2d 873 (1979), and State v. Wight, 48 Or.App. 731, 617 P.2d 928 (1980), in support of that contention. Because the defendant prevailed at the trial court level on this first issue, his other contentions raised at trial were not asserted in this appeal. 2 ... [296 Or. 434] The trial court, having made the ... ...
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State v. Smith
...131.615(3), unless the officer has a legally sufficient articulated basis for extending the duration of the stop. State v. Wight, 48 Or.App. 731, 735, 617 P.2d 928 (1980). Officer McDonald stated that when he smelled fish he was suspicious because he knew there was no open season for fish i......
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State v. Flores
...his hand was overly intrusive. As defendant argues, furtive gestures alone do not give rise to probable cause. State v. Wight, 48 Or.App. 731, 734-35, 617 P.2d 928 (1980); State v. Hunt, 15 Or.App. 76, 79-80, 514 P.2d 1363 (1973), rev. den. (1974). However, such gestures combined with a sus......