State v. Tourtillot

618 P.2d 423, 289 Or. 845, 1980 Ore. LEXIS 1136
CourtOregon Supreme Court
DecidedOctober 21, 1980
DocketNo. 10158, CA 10998, SC 26660
StatusPublished
Cited by121 cases

This text of 618 P.2d 423 (State v. Tourtillot) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Tourtillot, 618 P.2d 423, 289 Or. 845, 1980 Ore. LEXIS 1136 (Or. 1980).

Opinions

PETERSON, J.

The decision in this case turns on the applicability of ORS 131.615 and the requirements of the state and federal constitutions. Three issues are presented for our determination:

1. Do police game checkpoint stops violate ORS 131.615 when there is neither probable cause to believe nor reasonable suspicion that a crime has been committed?

2. Are game checkpoint stops violative of Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the Constitution of the United States when there is neither probable cause to believe nor reasonable suspicion that a crime has been committed?

3. If a police officer makes a valid checkpoint stop followed by an inquiry which would be permitted in connection with the purpose of the checkpoint stop, should the evidence obtained as a result of the inquiry be suppressed if the officer’s purpose in making the inquiry was unconnected with the purpose for making the stop?

The defendant was convicted of a Class C felony, driving with a revoked license,1 and was sentenced to imprisonment for one year. Execution of the sentence was suspended and the defendant was then placed on probation. Alleging that the circuit court erred in denying her motion to suppress evidence obtained when she was stopped by an Oregon State Police game officer, she appealed the conviction. The Court of Appeals affirmed, 43 Or App 5, 602 P2d 659 (1979). We accepted review to examine the legality of game checkpoint stops where there exists neither probable cause to believe nor reasonable suspicion that a game law, or any other law, has been violated.

[848]*848The Facts

The defendant was stopped at a roadblock located on a highway between Powers and Agness, Oregon, just south of the Powers city limits. The roadblock, manned by an officer of the Oregon State Police Game Division,2 was set up to check hunters’ compliance with the game laws, to check hunting licenses and to gather statistics on hunter success on the opening day of deer hunting season, October 1, 1977. According to the trial judge, the roadblock was established "on one of the most rural highways in the whole state of Oregon.” A sign stating "Attention Hunters” and "All Vehicles Must Stop” was placed on the side of the road, and the police officer’s vehicle, with a sign on its side indicating its ownership, was parked at a right angle to the road.

As automobiles approached, the officer, wearing a uniform and badge, stood in the center of the road and held out his hand to stop approaching vehicles. If the car contained older people or others who did not appear to have been hunting, the officer would sometimes permit them to continue after they slowed or stopped.

The defendant was driving a friend’s car toward Powers. She stopped near the officer. The officer testified that he noticed nothing unusual about the manner in which the defendant operated the automobile, nor did he observe anything unusual about the defendant. After the defendant stopped, the officer asked for identification or a driver’s license. The [849]*849defendant responded that she was suspended and had no driver’s license.

According to the officer, it was standard operating procedure to ask those stopped at game checks to produce a driver’s license or identification if a hunting license was not produced.

Petitioner contends that the stop violated ORS 131.615, Article I, section 9, of the Oregon Constitution, and the Fourth Amendment of the United States Constitution3 because the stop was "not based upon any reasonable suspicion that the defendant had been involved in criminal activity.” She also contends that even if the stop was permissible, the officer’s subsequent request for a driver’s license or identification was impermissibly intrusive. We consider first the contention that the stop violated ORS 131.615.4

I. Applicability of ORS 131.615

ORS 131.615 provides:

"(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.
"(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.
[850]*850"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.”

An analysis of the legislative history of ORS 131.615 makes it clear that the legislature did not intend to limit all "stops” for law enforcement purposes to those permitted under ORS 131.615.

The Oregon Legislature created the Criminal Law Revision Commission in 1967 to revise Oregon law relating to crime and criminal procedure. Or Laws 1967, ch 573, § 2. Preliminary work on the Criminal Procedure Code began in 1970. The first preliminary draft of Article 5, relating to search and seizure, was presented in January, 1971.

The preliminary draft on search and seizure included a prohibition against searches or seizures5 not specifically authorized in the Code. Section 2 of the draft, entitled "prohibition of unauthorized searches and seizures,” provided:

"No search or seizure shall be authorized or executed otherwise than in accordance with the provisions of Article_ [stop and frisk provisions to be drafted, probably to be included in the Article dealing with investigation of crime presently covered in Article 2, Tent. Draft No. 2 of the MCP],[6] and sections 3 through 15 of this Article and Article 27 of the Oregon Criminal Code of 1972 (eavesdropping).” Criminal Procedure Code, Preliminary Draft No. 1, Part It. Pre-arraignment Provisions, Article 5, § 2 (January, 1971).

The commentary to the preliminary draft stated:

"This section prohibits all searches and seizures except those specifically allowed in other sections of this Article (e.g., searches and seizures pursuant to a warrant, incidental to an arrest), the provisions of the stop and frisk sections yet to be drafted and the [851]*851electronic eavesdropping provisions presently included in Article 27 of the Oregon Criminal Code of 1971.
* ‡ *
"No comparable provision exists in Oregon legislation on the general level of the proscription in this section.

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Bluebook (online)
618 P.2d 423, 289 Or. 845, 1980 Ore. LEXIS 1136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tourtillot-or-1980.