State v. Houghton , 91 Or. App. 71 ( 1988 )

WARREN, J.

Defendant appeals his conviction of being an ex-convict in possession of a firearm. ORS 166.270. At issue is whether defendant’s detention and frisk were lawful.

On November 15, 1986, at about 3:20 p.m., Officer Carpenter was on patrol near Carver. He saw a woman in a car parked on the side of the road. Later, he saw a man walking in the direction of the car. Around a curve, the officer noticed two other persons in a car parked on the side of the road. He remembered that, a week earlier, he had stopped that car and arrested its driver for driving while suspended. He also recognized the driver and decided to arrest him again. The officer questioned him and learned that he had picked up defendant, who had been hitchhiking, and that the car had broken down. The officer then asked defendant, who was sitting in the front passenger seat, for identification. He testified that he wanted to know whether defendant could drive the car, if the arrested driver wanted to release it to him. Defendant presented the officer with a valid Oregon identification card. When the officer said that he would run a MVD check, defendant responded that there was no need to do so, because he had no driver’s license. Because of that statement and because of defendant’s nervous appearance and the odd posture in which he was sitting, the officer concluded that defendant had something to hide and ran the check anyway. The check showed that he had been convicted of robbery in the first degree in 1980. The officer ordered defendant out of the car. He started to get out by the passenger door, but the officer told him to come out on the driver’s side. Defendant placed his feet up on the seat and scooted out the driver’s side. The officer became suspicious that defendant might have a hidden weapon. He frisked him and found a loaded revolver tucked in his belt.

Before trial, defendant moved to suppress the seized gun as well as the statements that he had made after discovery of the weapon. The trial judge denied the motion and found defendant guilty of the charged crime in the subsequent trial to the court. Defendant asserts that the detention and frisk were unreasonable, because the officer had no grounds to believe that defendant had committed a crime or that he was armed and dangerous. The state argues that the detention was lawful and the frisk was justified to ensure the officer’s safety.

There are three general categories of street encounters between police and citizens: (1) an arrest, requiring probable cause; (2) a stop, justified by reasonable suspicion; and (3) mere conversation requiring no justification. State v. Warner, 284 Or 147, 161, 585 P2d 681 (1978). A stop occurs when an officer restrains a person’s liberty by physical force or a show of authority. State v. Kennedy, 290 Or 493, 498, 624 P2d 99 (1981); State v. Warner, supra, 284 Or at 162. To be lawful, a stop must be justified by a reasonable suspicion of criminal activity and is limited to making a reasonable inquiry. ORS 131.615(1). Mere conversation gives an officer no right to exercise any official authority. State v. Messer, 71 Or App 506, 510, 692 P2d 713 (1984).

Even if we assume that the officer was justified in his initial inquiry as to defendant’s identity and his ability to drive, the end of that inquiry came when defendant produced a valid identification card and responded that he had no driver’s license. At that point there were no articulable facts from which the officer could reasonably suspect that defendant had committed a crime. The crime for which the driver was arrested did not relate in any way to defendant. No crime had been reported in the area, and there was no indication of any criminal activity on the part of the woman in the parked car or the man walking on the road. There was no apparent relationship between them and defendant. Defendant’s nervousness and the fact that he seemed to be sitting at an odd angle did not justify a reasonable belief that he had committed a crime.

The officer supposedly only became concerned when he conducted a record check and found defendant’s previous conviction. The fact that a MVD records check disclosed that defendant had been convicted of a robbery about five years before did not justify a belief that he was then engaged in criminal activity or was armed and presently dangerous. The state contends that ORS 131.625,¹ which permits the frisk of a stopped person, justified this frisk. That argument, however, fails, because there had been no lawful stop of defendant. A stop occurred no later than when defendant was asked to step out of the car. Before a frisk may be conducted under ORS 131.625, there must have been a lawful stop under ORS 131.615. For the same reason, the state cannot rely on State v. Bates, 304 Or 519, 747 P2d 991 (1987), which is limited to lawful encounters.² Here, the officer acted on no more than intuition. Intuition or instinct, even of an experienced officer, cannot amount to reasonable suspicion. State v. Valdez, 277 Or 621, 628, 561 P2d 1006 (1977); State v. Butkovich, 87 Or App 587, 590, 743 P2d 752, rev den 304 Or 548, (1987). The evidence and defendant’s statements were obtained as a result of an unlawful stop and should have been suppressed.

Reversed and remanded for a new trial.

1 ORS 131.625 provides:

“(1) A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.

“(2) If, in the course of the frisk, the peace officer feels an object which the peace officer reasonably suspects is a dangerous or deadly weapon, the peace officer may take such action as is reasonably necessary to take possession of the weapon.”

2 In State v. Bates, supra, the Supreme Court held that an officer may take reasonable steps to protect himself or others if, during a lawful encounter with a citizen, the officer develops a reasonable suspicion that the citizen might pose a threat to the safety of the officer or others.