State v. Albertsen , 37 Or. App. 679 ( 1978 )

590 P.2d 235 (1978) 37 Or.App. 679

STATE of Oregon, Respondent,
v.
John Eugene ALBERTSEN, Appellant.

No. CC77-566; CA 10723.

Court of Appeals of Oregon.

Argued and Submitted August 22, 1978. Decided December 26, 1978.

Sally L. Avera, Dallas, argued the cause for appellant. With her on the brief was Avera & Avera, Dallas.

Allison Smith, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, Chief Judge, and THORNTON and TANZER, Judges.

SCHWAB, Chief Judge.

Defendant seeks reversal of his conviction for the felony of driving while suspended. ORS 487.560. Defendant contends there was insufficient "reasonable suspicion" to stop the car he had been operating. We disagree, and affirm.

An officer, while parked along a highway, observed a car pass being driven by a man (the defendant) with a woman passenger. The officer pulled his marked patrol car onto the highway heading in the same direction. Almost immediately the car, in the officer's words, "swerved over to the shoulder and stopped." The car had not appeared to the officer to be slowing down to stop before the officer pulled onto the highway. The officer passed the stopped car, traveled a mile or more down the highway, pulled off and parked. A few minutes later the same car passed the officer with the woman driving and the man riding as a passenger. The officer pulled back onto the highway and followed the car about a mile. The male passenger turned and looked at the officer several times. The officer, suspecting a "license-type violation," stopped the car. Investigation revealed that the defendant's driver's license had been suspended for driving under the influence of intoxicants. This prosecution followed.

Defendant relies upon ORS 131.615 and the constitutional doctrines of Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968), for the proposition that the stop was unlawful. Under these rules, we have held that motor vehicles cannot be stopped merely to verify the driver's license. State v. Johnson, Wesson, 26 Or. App. 599, 554 P.2d 194 (1976). The state contends that, in so holding, we erroneously relied on State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969), as authority, because the court in Cloman stated "we are not passing upon the right to stop and examine the driver's operating license." 254 Or. at 6, n. 2, 456 P.2d at 69. That may be. But we fail to see how the fact that the Supreme Court regards a question as unresolved establishes that we were wrong in our own resolution in Johnson, Wesson. In the absence of further guidance from the Supreme Court, we adhere to Johnson, Wesson. See also State v. Carter/Dawson, 34 Or. App. 21, 578 P.2d 790 (1978); State v. Brister, 34 Or. App. 575, 579 P.2d 863 (1978); State v. Tucker, 34 Or. App. 203, 578 P.2d 803 (1978).

Thus, there must be probable cause to believe a license offense is being committed — which would justify a stop and immediate arrest or citation in lieu of arrest — or reasonable suspicion to believe a license offense is being committed — which would justify an investigative stop and further inquiry. There is no probable cause issue in this case; the question is the reasonableness of the officer's suspicion.

In assessing the reasonableness of suspicion, it is appropriate to consider what quantity and quality of information could conceivably be available to an officer. There is probably no violation of law, always committed in public, with as few possible outward manifestations as the crime of driving while suspended and related license offenses.

Measured against the yardstick of what facts can conceivably create suspicion, it is difficult to imagine a stronger case for suspecting a license offense was being committed. Upon seeing a marked police car pull onto the road behind him, defendant "swerved" off the road and stopped. Defendant and his passenger exchanged places. When the officer again followed the car defendant had been driving, defendant kept glancing backward furtively. If a Terry-type stop is not justified on these facts, enforcement of statutes relating to driver's licenses will only be possible ancillary to investigation of other traffic infractions, accidents, and perhaps roadblocks or the like. We conclude the stop was reasonable.

Affirmed.

THORNTON, Judge, concurring.

I concur. Additionally, I would adopt here and now the rationale of the cases cited in the margin,^[1] and would declare that under the provisions of ORS 482.040(2)(b)^[2] a police officer may stop a vehicle to check the identity of the driver, the driver's motor vehicle operator's license or the motor vehicle registration without the necessity of first establishing a reasonable suspicion before doing so that the driver had committed a crime. See, State v. Johnson, 10 Or. App. 353, 499 P.2d 348, rev. den. (1972).

I agree with the view expressed in the cited cases that to hold otherwise would in effect prevent the proper enforcement of our traffic laws.

As the United States Supreme Court recently observed in United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S. Ct. 3074, 49 L. Ed. 2d 1116, 1130 (1976), another automobile stop case:

"* * * [O]ne's expectation of privacy in an automobile and of freedom in its operation are significantly different from the traditional expectation of privacy and freedom in one's residence. * * *"

"* * * [T]his practice of stopping automobiles briefly for questioning has a long history evidencing its utility and is accepted by motorists as incident to highway use." 428 U.S. at 561 n. 14, 96 S.Ct. at 3084.

It follows necessarily from the above that I would overrule our decision in State v. Johnson, Wesson, 26 Or. App. 599, 554 P.2d 194 (1976), and any similar previous expressions by this court to the same effect.

TANZER, Judge, dissenting.

I agree with all of the majority opinion except the last paragraph. I would hold that the observations of the officer are not sufficient to constitute reasonable suspicion.

As indicated in the majority opinion, the only objective facts upon which a reasonable suspicion might be based are that the defendant pulled his car over to the shoulder in the sight of the officer shortly after the officer began driving behind him, that defendant got out of his car and opened his trunk, that shortly thereafter a woman was driving the car with defendant in the passenger seat, and that the defendant turned his head and looked toward the officer several times.

Unlike the majority, I do not find that

"* * * it is difficult to imagine a stronger case for suspecting a license offense was being committed."

All that happened was that the defendant, in the sight of the officer, pulled over, changed drivers, and thereafter looked at the police car behind him. I can easily imagine several stronger cases and, unless we were to require no suspicious facts at all, I find it difficult to imagine a weaker case. The requirement of articulable objective facts justifying a reasonable suspicion has not been met. For that reason, I dissent.

I also disagree with the additional rationale of the concurring opinion. The first ground is that ORS 482.040(2)(b), which requires a licensee to possess a license when driving a motor vehicle and to display it upon demand, gives blanket authority for police officers to stop any motorist to check his operator's license without the necessity of reasonable suspicion. Most cases I have found, which so hold, including two of the cases relied upon in the concurring opinion, are based upon an express provision in the analogous statute which authorizes the police to make such stops.^[1] Conversely, in those states where the statute does not expressly authorize stops for inspection, most courts have refused to read authorization for stops into the statute.^[2] I agree with the view that we should not read into a statute an authorization for the police to detain persons where the statute has no words to that effect. ORS 482.040(2)(b) requires a motorist to display his operator's license upon demand, but it does not authorize a police officer to stop a motorist for the purpose of making such a demand. Therefore, regardless of any constitutional problem, there is no statutory basis in Oregon for a stop without reasonable suspicion.

Furthermore, the decision of the United States Supreme Court in United States v. Martinez-Fuerte, 428 U.S. 543, 96 S. Ct. 3074, 49 L. Ed. 2d 1116 (1976), relied on in the concurring opinion, gives no cause to overrule our decision in State v. Johnson, Wesson, 26 Or. App. 599, 554 P.2d 194 (1976). That holding was expressly limited to "fixed checkpoint" stops, as at the border, 428 U.S. at 559, 96 S. Ct. 3074. This is not such a case.

Because I cannot agree that there was sufficient objective justification for a stop on reasonable suspicion and because I cannot agree that there is statutory authorization for a stop in the absence of reasonable suspicion, I conclude that the stop was unauthorized by law and that the motion to suppress the evidence which resulted from the stop should have been suppressed. Accordingly, I would reverse.

NOTES

[1] Lipton v. United States, 348 F.2d 591 (9th Cir.1965); Palmore v. United States, 290 A.2d 573 (D.C.App. 1972); State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (1975); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App. 1973).

[2] ORS 482.040(2)(b) provides:

"The licensee shall have such license in his immediate possession at all time when driving a motor vehicle, and shall display it upon the demand of a justice of the peace, a peace officer, or a field deputy or inspector of the division. It is a defense to any charge under this subsection that the person so charged produce in court an operator's or chauffeur's license that had been issued to him and was valid at the time of his arrest."

[1] State v. Blackwelder, 34 N.C. App. 352, 238 S.E.2d 190 (1970); State v. Holmberg, 194 Neb. 337, 231 N.W.2d 672 (1975); State v. Benson, 198 Neb. 14, 251 N.W.2d 659 cert. den. 434 U.S. 833, 98 S. Ct. 117, 54 L. Ed. 2d 93 (1977); Leonard v. State, 496 S.W.2d 576 (Tex.Cr.App. 1973); Faulkner v. State, 549 S.W.2d 1 (Tex.Cr. App. 1976); State v. Allen, 282 N.C. 503, 194 S.E.2d 9 (1973).

[2] United States v. Montgomery, 182 U.S.App. D.C. 426, 561 F.2d 875 (1977); People v. McPherson, Colo., 550 P.2d 311 (1976); State v. Prouse, 382 A.2d 1359 (Del.Supr. 1978); State v. Ruud, 90 N.M. 647, 567 P.2d 496 (1977); People v. Mestey, 61 A.D.2d 777, 402 N.Y.S.2d 577 (1978); Commonwealth v. Swanger, 453 Pa. 107, 307 A.2d 875 (1973); People v. James, 44 Ill. App. 3d 300, 3 Ill. Dec. 88, 358 N.E.2d 88 (1976); State v. Bonds, Haw., 577 P.2d 781 (1978); State v. Ochoa, 112 Ariz. 582, 544 P.2d 1097 (1976). Contra, Kinard v. State, Ala.Cr. App., 335 So. 2d 916, rev'd on other grds., Ala., 335 So. 2d 924, on remand 335 So. 2d 927 (Ala. Cr.App. 1976); Palmore v. United States, 290 A.2d 573 (D.C.App. 1972); City of Overland Park v. Sandy, 2 Kan. App. 2d 176, 576 P.2d 1097 (1978); Lipton v. United States, 348 F.2d 591 (9th Cir.1965).