State v. Holcomb , 203 Or. App. 35 ( 2005 )

125 P.3d 22 (2005) 203 Or. App. 35

STATE of Oregon, Respondent,
v.
Tamara Marie HOLCOMB, Appellant.

02CR0999FE; A120471.

Court of Appeals of Oregon.

Petition for Reconsideration October 26, 2005. Decided December 7, 2005.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Elizabeth A. Gordon, Senior Assistant Attorney General, for petition.

Before HASELTON, Presiding Judge, and ARMSTRONG and ROSENBLUM,^[*] Judges.

On Respondent's Petition for Reconsideration October 26, 2005.

HASELTON, P.J.

The state petitions for limited reconsideration of our opinion, State v. Holcomb, 202 Or.App. 73, 121 P.3d 13 (2005), asking that we modify one sentence in the opinion to forestall potential future misunderstanding. We allow the petition and adhere to our opinion as so modified.

Our original opinion includes the following sentence: "Here, Bradburn's [the officer's] conduct in obtaining defendant's identification effected a stop." 202 Or.App. at 77, 121 P.3d 13. We then cited State v. Hall, 339 Or. 7, 115 P.3d 908 (2005), in support of that conclusion. Holcomb, 202 Or.App. at 77, 121 P.3d 13. The state points out that, in Hall, the Supreme Court, in holding that a stop had occurred, noted both that the officer had taken the suspect's identification and that the officer had subsequently conducted a warrant check. See Hall, 339 Or. at 19, 115 P.3d 908. Indeed, in Holcomb, we so characterized Hall. See 202 Or.App. at 77, 121 P.3d 13 ("In Hall, the court held that taking a suspect's identification and calling dispatch to conduct a warrant check constitutes a stop."). Here, the state acknowledges that the officer who took defendant's identification did, in fact, subsequently conduct a warrant check while retaining defendant's identification. The state reasons that it is unnecessary for us to determine in the circumstances presented here whether "mere obtaining" of identification, without more, effected a stop—and that any suggestion or implication to the contrary is potentially misleading.

We agree with the state that this case does not present the issue of whether, or in what circumstances, "mere obtaining" of identification can effect a stop. Accord State v. Atkin, 190 Or.App. 387, 391-92, 78 P.3d 1259 (2003), rev. den., 339 Or. 230, 119 P.3d 790 (2005) (holding that officer's retention of identification for less than a minute effected a stop where, while retaining the identification, the officer "radioed headquarters to determine whether [the defendant] was a criminal, asked her if the purse she identified as hers contained weapons or drugs, and asked for consent to search the purse"). We further agree with the state that the single disputed sentence could be understood, at least implicitly, to decide that issue. Accordingly, we modify that sentence to read as follows: "Here, Bradburn's conduct in obtaining defendant's identification and retaining that identification while conducting a warrant check effected a stop."

Reconsideration allowed; opinion modified and adhered to as modified.

NOTES

[*] Rosenblum, J., vice Ceniceros, S.J.