State v. Goodman

663 P.2d 422, 63 Or. App. 102, 1983 Ore. App. LEXIS 2773

• Court: Court of Appeals of Oregon
• Decided: May 11, 1983
• Docket: DA 219935-8109, DA 226564-8201; CA A23688
• Status: Published

Opinions

BUTTLER, P. J.

Defendant appeals from a judgment of conviction and sentence on merged charges of carrying a loaded firearm, Portland City Ordinance No. 138210, § 14.32.010, and unlawful possession of a weapon, ORS 166.250, contending that the court erred in denying his motion to suppress. We affirm.

On the afternoon in question, a Portland Police Bureau radio dispatcher reported that a shooting was taking place at a laundromat. The suspects were reported to be two black males; the victim was reported to be a white male. Officer Cordell, the first policeman to reach the scene, found the laundromat unoccupied. Shortly thereafter, two young women entered and were interviewed by Cordell. They told him that they had seen men pointing guns at other men. At about that time, Officer DeClercque arrived on the scene. Before Cordell had an opportunity to obtain descriptions of the suspects or to find out what had occurred, defendant drove up, parked and got out of his automobile. Upon seeing defendant, a white male, one of the women said, “[T]hat’s him,” and both women backed away from the officer, and, “scurrying around,” attempted to hide. Defendant walked toward the laundromat with what Cordell described as a “definite purpose” and was confronted by Cordell and DeClercque at the door. DeClercque stated that it was “obvious” that defendant “had an urgency to come to the building,” and that when he told defendant he could not go in because of the investigation, defendant told him he had been at the laundromat a short time before. Believing that defendant might have been involved in the incident under investigation and that he might be armed, Cordell stopped and frisked defendant but found no weapons. DeClercque testified that during the stop and frisk defendant was asked to turn around, refused to do so and “got a little physical,” whereupon he was handcuffed and placed in a police car. He was not formally arrested.¹

Cordell, having found no gun on defendant’s person, walked to defendant’s car to look for one. From a position outside he saw in plain view inside the car an open container of alcohol. Cordell then asked DeClercque to search the automobile. DeClercque first looked through the car window and saw the wooden stock of a revolver under the driver’s seat. He opened the car door and seized the weapon, a .38 caliber revolver, approached defendant, advised him of his Miranda rights and questioned him. Defendant admitted that he owned the gun and stated that he was carrying it for protection. The officers then arrested him for the gun violations.

Defendant contends that the trial court erred in denying his motion to suppress evidence seized from his car and his statements concerning the gun, contending that: (1) the stop was unlawful; (2) assuming that the stop was lawful, neither his arrest nor the search of his vehicle was reasonable, and (3) his statements were the result of the unlawful stop, arrest and search.

ORS 131.615 authorizes a police officer to stop a person whom he reasonably suspects has committed a crime, and to make a reasonable inquiry. The detention and inquiry must be “for no longer than a reasonable time.” Here, the officers were in the initial stage of an investigation of an incident involving guns and two black males and a white male. Given the immediate reaction of the two women when they saw defendant approaching the laundromat, the officers were justified in reasonably suspecting that defendant was one of the persons involved in the incident and that he would have a gun. The stop was not unlawful. State v. Ott, 54 Or App 309, 634 P2d 825, rev den 292 Or 334 (1981); State v. Bowcutt, 62 Or App 591, 661 P2d 565 (1983).

Having lawfully stopped defendant, the officers had the right to frisk him for their own protection. Because no gun was found on defendant’s person, and because the officers intended to permit defendant leave when the purpose of the stop was completed, they were entitled, at the least, to look through the windows of defendant’s car to see if there was a gun inside. See State v. McGregor, 57 Or App 78, 643 P2d 1315 (1982). When the officer observed the gun,² he was entitled to seize it rather than let defendant get back into the car where he would have ready access to it. Under the circumstances, they were just as entitled to seize it from defendant’s car as they would have been to seize it from his person.

We need not decide whether handcuffing defendant and placing him in the patrol car was justified under the circumstances.³ It is sufficient to point out, as the trial court found, that the detention of defendant was incident to the stop and that defendant had not been charged with a crime. Because there is evidence to support those findings, we are bound by them. Ball v. Gladden, 250 Or 485, 443 P2d 621 (1968). Given those facts, the police intended to release defendant after they had completed their investigation, and he would have been free to leave.

Once the officer had seized the gun, there was probable cause to believe that defendant had committed a crime. Accordingly, defendant was advised of his Miranda rights before the police questioned him, and his statements to the police were admissible. The trial court did not err in denying defendant’s motion to suppress the gun and the statements.

Affirmed.

1 ORS 133.005(1) provides:

“As used in ORS 131.655 and 133.005 to 133.381 and 133.410 to 133.450, unless the context requires otherwise:

“(1) ‘Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense. A ‘stop’ as authorized under ORS 131.605 to 131.625 is not an arrest.”

The line between an arrest and a “stop” is murky, at best. See State v. Groda, 285 Or 321, 591 P2d 1354 (1979). As noted in 3 LaFave, Search and Seizure, § 9.2:

“* * *To conclude that the officers’ conduct must be viewed as an arrest from the outset because the defendant’s restriction of liberty of movement was then complete and that no significant new restraint followed when the arrest was formally made, is to create a test which would cast doubt upon most stops. The typical stopping for investigation cannot be viewed as anything but a complete restriction on liberty of movement fora time, and if investigation uncovers added facts bringing about an arrest, the early stages of the arrest will not involve any new restraint of significance (especially if, as in [United States v.] Strickler, [490 F2d 378 (9th Cir 1974)] handcuffing is not deemed significant). A stopping for investigation is not a lesser intrusion, as compared to arrest, because the restriction on movement is incomplete, but rather because it is brief when compared with arrest, which (as emphasized in Terry [v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968)], ‘is inevitably accompanied by future interference with the individual’s freedom of movement, whether or not trial or conviction ultimately follows.’ ” (Emphasis supplied.)

2 The trial court specifically declined to rule on whether the officers’ observing the open container in the automobile justified a search for contraband. We note, however, that the officers did not have the right to detain defendant in order to make a general search for evidence of crime. See Florida v. Royer, 460 US 491, 103 S Ct 1319, 75 L Ed 2d 229 (1983).

3 It is not clear how much force may be used by the police in effectuating a Terry-type stop if the person refuses to stop. It may well be that the restraint of defendant here was an overreaction to defendant’s “getting physical” and was excessive. But as we view the case, that issue is a red herring, because the police had the right to detain defendant for a reasonable time for questioning and to find out if defendant had a gun on his person. If he did not, they were at least entitled to see if he had one in his car by looking through the windows.