State v. Zimmerlee, C78-09-15489

• Decision Date: 10 March 1980
• Docket Number: No. C78-09-15489,C78-09-15489
• Citation: 607 P.2d 782,45 Or.App. 107
• Parties: STATE of Oregon, Respondent, v. Terry Lee ZIMMERLEE, Appellant. ; CA 13241.
• Court: Oregon Court of Appeals

Page 782

607 P.2d 782

45 Or.App. 107

STATE of Oregon, Respondent, v. Terry Lee ZIMMERLEE, Appellant.

No. C78-09-15489; CA 13241.

Court of Appeals of Oregon.

Submitted on Record and Briefs Dec. 19, 1979.

Decided March 10, 1980.

Terry Lee Zimmerlee, filed the brief pro se for appellant.

James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and W. Benny Won, Asst. Atty. Gen., Salem, filed the brief for respondent.

Before JOSEPH, P. J., RICHARDSON, J., and SCHWAB, C. J. ^*

RICHARDSON, Judge.

Defendant was charged with robbery in the second degree but was found guilty by a jury of the lesser included offense of theft in the first degree, ORS 164.055. He appeals denial of his motion to suppress evidence obtained in a search of his person and of the automobile in which he was a passenger. Defendant's second assignment contends his motion for judgment of acquittal of the robbery charge should have been granted. The ground specified in the motion was that there was insufficient evidence that defendant represented he was armed with a dangerous weapon. That claim of error is rendered moot by the jury's verdict.

The evidence presented at the hearing on the motion to suppress disclosed the following sequence of events leading to defendant's arrest. At approximately 5:30 a. m. on September 12, 1978, Portland Police Officer Farris was patrolling his assigned area in a marked police vehicle. As he passed a Plaid Pantry Market he noticed a man walking back and forth in the parking lot in front of the store. Inside the store he saw a man he knew was a store employee standing outside of the checkout counter with his back to the front door. He also saw a man standing near the employee. The officer observed a white sedan, a "sixties model," parked on the street near the side of the store away from the window and entry door area. There were no vehicles in the parking area and the white vehicle had not been parked there when the officer drove by earlier that morning.

Officer Farris drove around the block and stationed his vehicle a short distance from the store. He saw the white sedan accelerate rapidly into a driving lane with its lights off. As the vehicle passed the police officer the driver looked at the officer. Farris followed the vehicle and saw that, in addition to the driver, there was a passenger in the front seat and a passenger in the rear. The front seat passenger leaned over the back of the seat and appeared to be stuffing something down between the seats. That passenger then threw something out of the vehicle's window. Farris activated his overhead lights and stopped the vehicle at 5:53 a. m. He testified he stopped the vehicle because it was being driven without lights. The officer radioed his position and the fact that he had made a traffic stop.

The officer approached the driver and asked for his operator's license. The driver stated he had a license but did not have it on his person. He produced an identification card. The officer and the driver walked to the rear of the vehicle where the officer told the driver he was stopped for driving without lights. The officer also told the driver that he did not intend to issue a citation for the violation. He asked the driver where he was going and the driver responded that the three men had left a party earlier and he was taking the two passengers home. The officer told the driver he was going to run a radio check on the driver's operator's license and a check on the two passengers.

The officer then approached the vehicle. Defendant was seated in the front passenger seat and the rear passenger was identified by the officer as the man he had seen walking in front of the Plaid Pantry Market. He asked defendant his name and where he was going. Defendant responded that his name was Terry Baker, that he had no identification and that he was hitchhiking and was picked up by the driver of the vehicle. He stated that he did not know the other two men in the car. The rear seat passenger gave his name and said he was also a hitchhiker and did not know defendant or the driver of the vehicle. Officer Farris returned to his vehicle and ran the radio check. He told the driver what the passengers had stated. The driver told the officer he knew both of the men and was taking them home from a party.

Approximately three minutes after the initial stop of the vehicle a second officer arrived and stood to the rear of the stopped vehicle. At 5:58 a. m., approximately five minutes after the vehicle was stopped, the officers received a radio report that a robbery had occurred a few minutes earlier at the Plaid Pantry Market. The report included a description of the assailant and the vehicle used. The vehicle was described as a white, sixties model, Plymouth sedan. The description of the robber fit defendant.

Officer Farris requested, by radio, that the victim of the robbery be brought to his location for the purpose of identifying the robber. The victim arrived by police vehicle at 6:10 a. m. and identified the defendant as the robber. All three men were arrested. Defendant was searched as was the vehicle. The items seized from defendant and from the vehicle are the subjects of the motion to suppress.

Defendant argues that the stop of the vehicle was an unlawful pretext stop because it was made on the officer's subjective desire to investigate what he considered suspicious circumstances at the Plaid Pantry Market. If the stop of the vehicle was lawful, defendant contends, there was no basis for stopping and detaining defendant, as opposed to the driver of the vehicle. It is further contended that if the stop was lawful the officer's...