State v. Jackson

755 P.2d 732, 91 Or. App. 425, 1988 Ore. App. LEXIS 995

• Court: Court of Appeals of Oregon
• Decided: June 8, 1988
• Docket: 10-87-01583; CA A44123
• Status: Published

Opinions

DEITS, J.

Defendant was charged with driving while suspended. ORS 811.175. The state appeals the court’s order granting defendant’s pretrial motion to suppress evidence gained as a result of an allegedly unlawful stop. We reverse and remand.

At approximately 8:40 a.m., Officer Walker, of the Springfield Police Department, in uniform and driving a marked car, observed defendant driving and looking nervously at him. Walker followed him for a few blocks. He saw defendant turn into an apartment complex parking lot, get out of the car and approach an apartment. As he made a U-turn to return to the parking lot, Walker momentarily lost sight of defendant. He then saw defendant crouched on the passenger side outside the car. Defendant got in the car and sat in the passenger seat. Walker parked his car, approached defendant and asked him what he was doing. He responded that he was waiting for a friend. Walker then asked if he could see some identification. Defendant gave him an identification card. Walker then asked defendant whether he had been driving earlier and why he had switched to the passenger seat. He replied that he had not been driving, because his license was revoked. Walker ran a records check and confirmed the revocation.

The trial court concluded that a stop occurred just before Walker obtained defendant’s identification. It suppressed all evidence gained from that stop, because Walker did not have the necessary reasonable suspicion that defendant had committed a crime to justify a stop under ORS 131.615. The state concedes that a stop was not justified but argues that the encounter between defendant and Walker was not a stop.

There are three generally recognized types of encounters between police and citizens: (1) an arrest based on probable cause; (2) a “stop” or temporary restraint of a person based on a reasonable suspicion that the person has committed a crime, ORS 131.615(1), or based on the commission of a traffic infraction or violation in the officer’s presence, ORS 810.410; ORS 153.110(3); ORS 133.072; and (3) questioning without restraint of liberty, that is, mere conversation, which requires no justification. State v. Painter, 296 Or 422, 676 P2d 309 (1984); State v. Warner, 284 Or 147, 161, 585 P2d 681 (1978). A stop occurs when a police officer restrains a person’s liberty by physical force or a show of authority. State v. Warner, supra, 284 Or at 162. A person is “restrained” when, in view of all the circumstances, a reasonable person would have believed that he was not free to leave. Terry v. Ohio, 392 US 1, 86 S Ct 1862, 26 L Ed 2d 889 (1968); State v. Spenst, 62 Or App 755, 662 P2d 5, rev den 295 Or 447 (1983). The question of whether a stop occurred must be determined in light of the facts of each case. State v. Kennedy, 290 Or 493, 624 P2d 99 (1981).

We conclude that Walker’s inquiry and request for identification was not a sufficient show of authority to constitute a stop. Defendant pulled into a parking lot and stopped on his own, not in response to any official action on the part of Walker. That is in contrast to State v. Penney, 87 Or App 357, 742 P2d 660 (1987), where we held that a stop had occurred when an officer pulled up and got out of his patrol car behind the defendant, whom he had been chasing through a pedestrian mall. Walker not did turn on his overhead lights. He got out of his car and approached defendant, who remained sitting in the car. Defendant was not required to alter his course and was not restrained from leaving. See State v. Canape, 46 Or App 453, 611 P2d 1190 (1980). Walker asked defendant what he was doing and for identification. Although he was not required to respond, defendant voluntarily did so by answering the question and giving Walker identification.

The request for and receipt of identification did not elevate the encounter to a stop. It is the retention of a license or identification card, usually for investigatory purposes, that restrains a person from leaving. See, e.g., State v. Painter, 296 Or 422, 676 P2d 309 (1984). It was immediately after Walker’s request for identification, and before he retained it for record check purposes, that defendant admitted that his license had been revoked. It was at that point, as the trial court found, that Walker had the necessary reasonable suspicion that a crime had been committed to justify a stop and probable cause to arrest defendant. Walker made his inquiry and request for identification without such show of authority that a reasonable person would believe he was being held against his will. The trial court erred in granting defendant’s motion to suppress.

Reversed and remanded.