State v. Olaiz

786 P.2d 734, 100 Or. App. 380, 1990 Ore. App. LEXIS 78

• Court: Court of Appeals of Oregon
• Decided: February 7, 1990
• Docket: 88-01-30523; CA A49378
• Status: Published

Opinions

ROSSMAN, J.

Defendant appeals his conviction for delivery of a controlled substance, ORS 475.992, assigning as error the trial court’s denial of his motion to suppress. He challenges the validity of the traffic stop that led to seizure of the evidence on the grounds that it was not authorized under ORS 810.410 and that it was a “pretext stop,” in violation of Article I, section 9, of the Oregon Constitution and the Fourth Amendment. We affirm.

We take the facts from the trial court’s findings. Ball v. Gladden, 250 Or 485, 487-88, 443 P2d 621 (1968). While police narcotics officers Anderson and Gray were conducting surveillance of a Portland motel room associated with drug dealing, they saw defendant and a passenger drive up and look in its window. When the two men drove away, the officers followed them, hoping to be led to the dealers who had been selling narcotics out of the room.

Defendant was driving. He entered 1-84, driving 10 to 15 miles over the speed limit much of the time. Leaving the freeway, he proceeded to a Gresham apartment, where he and his passenger spent about ten minutes, then came outside and drove away. Still following, the officers asked Multnomah County Sheriff’s Department uniformed officers to stop defendant for speeding so that they could identify him and his passenger and gather information.

Before the uniformed officers could make the stop, defendant and his passenger drove about two more miles to an apartment complex, parked and began to get out of their car. Stopping about ten feet behind them, Anderson and Gray also got out of their car, displaying their badges. Approaching defendant, Anderson identified himself as a police officer and said, “Hold on, we’d like to talk to you for a second.” Anderson testified that he asked defendant for his driver’s license and “told him he was going a little fast.” Defendant stated that he had no license and presented several traffic tickets to Anderson. At that point, Gray informed Anderson that defendant’s passenger was smoking marijuana.

Anderson asked defendant if he had any marijuana. Defendant replied that he had none and offered to let Anderson search the car. Anderson told Gray that they had permission to search the car and then conducted a pat down search of defendant for weapons, during which defendant reached into his pocket and handed him a baggie of marijuana. A search of the car produced approximately 2-1/2 grams of tar heroin, and Anderson arrested defendant for drug crimes.

Defendant first argues that the stop was not authorized by ORS 810.410, which provides, in pertinent part:

“(1) A police officer may arrest or issue a citation to a person for a traffic crime at any place within or outside the jurisdictional authority of the governmental unit by which the police officer is authorized to act as provided by ORS 133.235 and 133.310.

“ (2) A police officer may issue a citation to a person for a traffic infraction at any place within or outside the jurisdictional authority of the governmental unit by which the police officer is authorized to act when the traffic infraction is committed in the police officer’s presence.

“(3) A police officer:

“(a) Shall not arrest a person for a traffic infraction.

“(b) May stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation.”

He asserts that ORS 810.410(2) permits officers who act outside their own jurisdictions to make traffic stops only when infractions have been committed in their presence. Reasoning that, by requiring the infraction to be committed in the officer’s “presence,” the legislature contemplated that an officer would respond immediately, he argues that Anderson and Gray violated the intent of the statute when they waited fifteen minutes after witnessing the speeding infraction to stop defendant.

We can discern no basis for that conclusion. ORS 810.410(2) does not contain a limitation on the time within which an officer must cite an offending driver. Defendant committed a traffic infraction in the officers’ presence. Therefore, they were authorized to “stop and detain” him under ORS 810.410.

Defendant also argues that the stop violated ORS 810.410(3) (b), because the officers did not stop him “for the purposes of investigation reasonably related to the traffic infraction,” but rather for purposes of gathering information on drug dealing activities. However, the trial court found that the officer asked defendant for his driver’s license. Anderson also testified that he told defendant that he was driving too fast. Although Anderson may have had additional purposes for the stop, his actions were consistent with the acts of an officer investigating a traffic infraction. The statutory requirements for a traffic stop were satisfied.

Defendant’s second argument is that, because the officers had only one real motive for stopping the car — to investigate drug activity — the stop for the traffic violation was a pretext. He urges that, in testing the validity of pretext stops under the Fourth Amendment and Article I, section 9, we should adopt a standard of objective reasonableness. That is, we should ask whether a reasonable officer would have made the stop in the absence of an “improper” purpose. Because a reasonable officer in Anderson and Gray’s position would not have stopped defendant in the absence of a desire to gather drug intelligence, he argues, the stop violated Article I, section 9, and the Fourth Amendment.

The United States Supreme Court has not decided the validity of so-called “pretext stops” under the Fourth Amendment, and Oregon never before has considered the issue exclusively under Article I, section 9.¹ However, in considering defendant’s argument under the Fourth Amendment, the Oregon Supreme Court has rejected it as unworkable and undesirable.

In State v. Tucker, supra n 1, officers saw two bicyclists, one riding with an almost flat tire and carrying a laundry basket covered by a blanket. The bicyclists noticed the patrol car and changed direction; the officers stopped them after they ran a stop sign. Although the officers gave as their reason for the stop that there was something “out of the ordinary” about the bicyclists’ appearance and behavior, the trial court found that their purpose had been to cite or arrest them for the traffic violation. 286 Or at 488.

The Supreme Court held that a traffic stop is not invalid under the Fourth Amendment “simply because, in addition to probable cause to arrest for a specific offense (or to stop for purposes of issuing a citation), the officer also has a suspicion which contributes to the decision to make the stop.” 286 Or at 493. It explained:

“[We do not] believe that determining the validity of an otherwise authorized stop on the basis of the officer’s purpose, or primary purpose, in making it would be either practical or desirable.

‡ ;|c ‡ ‡

“[T]his approach would be unworkable. Any time evidence of criminal activity came to light during a routine traffic stop, trial courts would be called upon to decide whether the officer had noticed anything about the violator or the vehicle beyond the fact of the violation itself and, if so, whether he would have made the stop upon the hypothetical supposition that he had noticed nothing.” 286 Or at 493, 495.

In State v. Carter/Dawson, supra n 1, the court went further. That case presented an issue identical to the one before us: “whether a policeman who wants to get a closer look at a car or its occupants may follow it and, if the driver commits a traffic violation while the officer is following, may then stop it.” 287 Or at 485. The court first noted that police officers have the right to keep persons of whom they are suspicious under surveillance in public places, regardless of their reasons. It then stated:

“[The officer] thus had a right to be where he was when he observed the speeding violation. Because [his] continued observation of the car in which defendants were riding was proper under the circumstances, there are no grounds for holding that when he saw the car’s operator commit a traffic violation he could do nothing about it.” 287 Or at 485.

See also State v. Zimmerlee, 45 Or App 107, 607 P2d 782, rev den 289 Or 71 (1980).

That reasoning is as sound under Article I, section 9, as it is under the Fourth Amendment. Anderson and Gray may have had more than one reason for wanting to stop defendant and his passenger. Although the primary reasons may have been to gather information and to identify them, they also wanted to cite them for speeding. Anderson explained:

“For a traffic stop. Well, a combination of — as I said again, they were going too fast * * * and our observations of the locations that they had stopped at and intelligence gathering, to identify them.”

Whether the officers would have stopped defendant for speeding (or for a more serious infraction, had one occurred) without their desire to know more about the car’s occupants is irrelevant. They were doing proper police work in a place that they had a right to be and were present when defendant committed a traffic infraction. The fact that they were already suspicious of defendant could not prevent them from issuing him a citation for the infraction.

Contrary to defendant’s contention, section 9 does not require a different result. Its purpose is to protect citizens from unreasonable searches and seizures.² State v. Tanner, 304 Or 312, 315, 745 P2d 757 (1987). Whether a protected property or privacy interest has been violated depends on “whether the practice, if engaged in wholly at the discretion of the government, will significantly impair ‘the people’s’ freedom from scrutiny.” State v. Campbell, 306 Or 157, 171, 759 P2d 1040 (1988). (Emphasis supplied.) As the Supreme Court noted in State v. Tucker, supra n 1, “[a]n officer who stops a vehicle when he sees its operator commit a traffic violation does not interfere with the operator’s freedom of movement based only on the officer’s ‘standardless and unconstrained discretion.’ ” 286 Or at 492. Moreover, once the officer has made the stop, unless circumstances arise that give cause to inquire further, his activities are limited to ones related to the traffic stop. See State v. Carter/Dawson, supra n 1, 287 Or at 486. Permitting officers to do no more than stop an individual who has committed a traffic infraction and make reasonable inquiries related to that infraction does not constitute an unreasonable seizure under Article I, section 9.

Once the stop occurred, Anderson asked to see defendant’s driver’s license and told him that he had been speeding. At that point, Gray told Anderson that defendant’s passenger was smoking marijuana. This is not a case in which an officer used a stop as “an excuse to begin questioning, searching or investigating [matter] that is unrelated to the traffic reason for the stop.” See State v. Carter/Dawson, 34 Or App 21, 32, 578 P2d 790 (1978), mod and rem’d 287 Or 479, 600 P2d 873 (1979). Until circumstances arose to give him probable cause to believe that the crime of possession of a controlled substance was being committed, Anderson’s conduct was in fact limited to activities related to the. traffic infraction.

Affirmed.

1 Article I, section 9, provides:

“No law shall violate the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure; and no warrant shall issue but upon probable cause, supported by oath, or affirmation, and particularly describing the place to be searched, and the person or thing to be seized.”

In State v. Tucker, 286 Or 485, 490, 595 P2d 1364 (1979), and State v. Carter/Dawson, 287 Or 479, 485, 600 P2d 873 (1979), the Supreme Court purported to consider pretext stops under both Article I, section 9, and the Fourth Amendment. However, in State v. Flores, 68 Or App 617, 625, 685 P2d 999, rev den 298 Or 151 (1984), we concluded that the Supreme Court would treat cases decided after State v. Florance, 270 Or 169, 527 P2d 1202 (1974), which adopted the federal rule regarding searches incident to arrest, and before State v. Caraher, 293 Or 741, 653 P2d 942 (1982), which required independent analysis of the same question under the Oregon Constitution, as interpreting the Fourth Amendment only. Because Tucker and Carter/Dawson fall into that category, they are not dispositive of the issue of pretext stops under the Oregon Constitution.

2 A traffic stop is a seizure under Article I, section 9. See ORS 131.605(5); Nelson v. Lane County, 304 Or 97, 101, 743 P2d 692 (1987); State v. Tourtillott, 289 Or 845, 618 P2d 423, cert den 451 US 972 (1980).