State v. Koester

843 P.2d 968, 117 Or. App. 139, 1992 Ore. App. LEXIS 2332
CourtCourt of Appeals of Oregon
DecidedDecember 9, 1992
DocketCR90-0480; CA A68846
StatusPublished
Cited by17 cases

This text of 843 P.2d 968 (State v. Koester) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Koester, 843 P.2d 968, 117 Or. App. 139, 1992 Ore. App. LEXIS 2332 (Or. Ct. App. 1992).

Opinions

[141]*141DEITS, J.

Defendant was charged with unlawful possession of a firearm. OES 166.250. He appeals the trial court’s denial of his motion to suppress a gun taken from his car after he was stopped by the police. We affirm.

At about 10:35 a.m. on June 12,1990, Oregon State Police Officer Lewis and his partner were involved in a traffic stop on Interstate 5 south of Salem. Another motorist who was southbound on 1-5 stopped and reported to them that a person driving a silver-gray Honda had pointed a pistol at him, just north of Salem on 1-5! He told the officers that the person was a white male and was alone in the car. He gave them the license number and said that he thought that the car was now about three miles south of their present location. The motorist did not identify himself, and the officers did not ask his name or note the license number of his car. He told them that he would follow them and would stop if they found the car.

The officers immediately drove south on 1-5 at speeds of 85 to 90 miles per hour. As they were driving, they reported the situation to the Oregon State Police dispatcher. They were told that the registered owner of the car had a Corvallis address. The Benton County sheriffs office was also told what had occurred. Lewis and his partner did not locate the car. However, in response to the police bulletin, Deputy Sheriff Downing drove to the address of the registered owner. As he approached the residence, he saw a Honda matching the description and license number driving away. He stopped the car at 11:09 a.m. and called for the assistance of another officer.

Downing got out of his car, drew his gun and pointed it at the Honda. He told the driver, a white male who appeared to be alone, to turn off the car and to put both of his arms out of the window. When another officer arrived a few minutes later, Downing told defendant to get out of the car. He then frisked him, had him kneel on the pavement and handcuffed him. He told defendant that he was not under arrest but that he was handcuffed for their mutual protection. He told defendant of his Miranda rights and had him sit in the back seat of his patrol car. He also told him why he had been stopped and [142]*142asked if there was a gun in the Honda. Defendant said that there was a gun under the front seat. Downing asked if he could search the car, and defendant consented. He found a loaded pistol under the seat. He then told defendant that he was under arrest.

Defendant assigns error to the trial court’s denial of his motion to suppress the gun. He argues that Downing arrested him by handcuffing him, advising him of his Miranda rights and putting him in the back seat of the patrol car. He contends that the arrest was unlawful because, at that time, Downing lacked probable cause to believe that he had committed a crime.

Under ORS 133.005(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.” The question here is whether Downing’s actions constituted an arrest. The state contends that his actions were taken for safety purposes as a part of the stop of defendant and that defendant was not arrested until after the gun was discovered in the car. However, any immediate safety concerns dissipated after Downing had defendant get out of the car, frisked him and found no weapon. The other officer was available to watch the car and defendant was fully cooperative. We conclude that defendant was arrested when he was handcuffed and placed in the patrol car. See State v. Morgan, 106 Or App 138, 806 P2d 713, rev den 312 Or 235 (1991).

The next question is whether, at the time of the arrest, there was probable cause to believe that defendant had committed a crime. ORS 133.310(1). Probable cause exists if there is a substantial objective basis for believing that it is more likely than not that the person has committed an offense. ORS 131.005(11). In addition to an objective basis, the arresting officer must have a subjective belief that the person has committed an offense. State v. Owens, 302 Or 196, 204, 729 P2d 524 (1986).

Defendant contends that, at the time of his arrest, there was no substantial objective basis for believing that there was probable cause to arrest him. He argues that, because the pursuit and arrest were based on information [143]*143provided by an unnamed informant, the question of whether the facts constituted an objective basis for the officers reasonably to believe that a crime had been committed or that defendant had committed it should be analyzed under the Aguilar ¡Spinelli test1 and that neither the informant’s veracity nor the reliability of the information was sufficiently established.

Although the Aguilar ¡Spinelli test has been codified in ORS 133.545 and governs determinations of the sufficiency of an affidavit for a search warrant based on information supplied by unnamed informants, we have not used it to determine the sufficiency of an unnamed informant’s tip in situations not involving a warrant. As we explained in State v. Vanness, 99 Or App 120, 123, 781 P2d 391 (1989):

“[TJhere is no set formula to determine when an unidentified informant’s tip gives rise to a reasonable suspicion that a person has committed a crime. Rather, that determination rests on the particular circumstances in each case, because informant tips vary greatly in their value and reliability.”2

In evaluating an unidentified citizen’s tip, the veracity, reliability and basis of knowledge of the citizen are factors that are relevant, but those factors are not determinative and should be considered only under the totality of the circumstances.

The citizen informant had purportedly been the victim of a crime. As the trial court found, “Although the officer did not identify [the informant], the informant knowingly subjected himself to being identified. ’ ’ In view of the potential danger of the situation and the need for immediate action, the officers spent little time discussing the matter with him but immediately took off after the car. The motorist agreed to follow them and stop if the car was found. Nothing suggests that the citizen had any other motive than to report the crime and to prevent danger to other drivers. The circumstances suggest that the motorist’s report was worthy of belief. He [144]*144made his report on the basis of personal observation and provided a detailed description of the driver, the car, the incident, the time and the location. In addition, the car that Downing stopped in Corvallis matched the reported car in color, model and license number. As reported, it was being driven by a white male who was alone. The car was found at a time and location consistent with its having been on the freeway at the time and place of the reported incident. As the trial court found:

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State v. Koester
843 P.2d 968 (Court of Appeals of Oregon, 1992)

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Bluebook (online)
843 P.2d 968, 117 Or. App. 139, 1992 Ore. App. LEXIS 2332, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-koester-orctapp-1992.