Summary
In State v. Anderson, 46 Or. App. 501, 612 P.2d 309 (1980), rev den 289 Or. 903, the defendant parked in a store lot at 1:00 a.m. and walked toward the front door of the obviously closed store.
Summary of this case from State v. MesserOpinion
No. C79-03-30869, CA 15722
Argued and submitted March 17, 1980
Affirmed June 9, 1980 Reconsideration denied August 21, 1980 Petition for review denied October 21, 1980 ( 289 Or. 903)
Appeal from Circuit Court, Multnomah County.
James Ellis, Judge.
Clint A. Lonergan, Portland, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Walter L. Barrie, Solicitor General, Salem.
Before Schwab, Chief Judge, and Joseph, Warden and Warren, Judges.
SCHWAB, C. J.
Affirmed.
Joseph, J. dissenting opinion.
Defendant was convicted of operating a motor vehicle in violation of a court order, ORS 484.740, and driving while suspended, ORS. 487.560. On appeal, he contends that the evidence of the fact that he did not have a valid driver's license in his possession should have been suppressed.
Defendant makes an additional assignment of error. It does not warrant discussion.
At about 1:00 a.m. on a Saturday morning, defendant was driving behind a police car. He turned into the parking lot of an automobile supply business and parked his automobile. He left his automobile and was approaching the front door of the building when he was stopped by the police officer. The business was closed. There were automobile parts located around the building and the officer was concerned that the defendant intended to commit burglary. The officer asked the defendant what his purpose was. Defendant stated that he was there to pick up some parts and that he had the owner's permission. The defendant was then asked to show the officer his operator's license. When he could not produce one, the officer detained defendant while he "ran a records check" and thereby discovered the suspension.
Relying on State v. Valdez, 277 Or. 621, 561 P.2d 1006 (1977), defendant argues that under ORS 131.615 the police officer had no right to stop the defendant when and where he did. We disagree. The actions of the defendant which took place in view of the police officer were sufficient to create a reasonable suspicion in the mind of the officer that the crime of larcency or burglary was underway. The stop being proper, the officer had the right to ask defendant to display a driver's license. State v. Brister, 34 Or. App. 575, 579 P.2d 863, rev den 284 Or. 521 (1978).
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.
"(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer's suspicion."
Affirmed.
Under ORS 131.615(1), the observable facts the majority says support a reasonable suspicion "that the crime of larceny or burglary was underway" were that the police observed a car enter into and stop in a parking lot beside an arterial street when the business was closed and the driver walk toward the well-lighted front door of a store. Aside from the (perhaps immaterial) fact that no crime had been "committed," it is plain to me that the police were operating on a good hunch. That is not enough to support the stop. State v. Fitzgerald, 36 Or. App. 473, 584 P.2d 785 (1978). Our recent case of State v. Canape, 46 Or. App. 453, 611 P.2d 1190 (1980), where the factual basis for suspicion was much stronger than here, was a close case. I do not believe this one is close, and I would reverse.