They included searches incident to arrest, State v. McDaniel, supra; State v. Quartier, 114 Or. 657, 236 P. 746 (1925); State v. Laundy, supra; State v. McDaniel, 39 Or. 161, 65 P. 520 (1901), and its permissible scope, Keeler v. Myers, 119 Or. 517, 249 P. 637 (1926); the requirements for a search warrant, State v. Flynn, supra; Nally v. Richmond, 105 Or. 462, 209 P. 871 (1922); Smith v. McDuffie, 72 Or. 276, 142 P. 558, 143 P. 929 (1914); and what constitutes probable cause. State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935); State v. Duffy, 135 Or. 290, 295 P. 953 (1931). To be sure, the specific holdings in most, if not all, of these cases, while generally consistent with federal and state law of the period, are significantly more generous concerning police authority than are post-1960 decisions based on federal law; the changes in federal law alone in the interim make it questionable whether the Oregon Supreme Court would still consider them good law under the Oregon Constitution.
For all practical purposes, Krogness and Russell as well as Hart were under arrest from that moment, if they had not been before. See Henry v. United States, 361 U.S. 98, 80 S Ct 168, 4 L Ed2d 134 (1959); and State v. Christensen, 151 Or. 529, 533-534, 51 P.2d 835 (1935), where it is said that the mere stopping of the motorist and placing him under the officer's direction constituted an arrest. See generally on the law of arrest, Remington, The Law Relating to "On the Street" Detention, Questioning and Frisking of Suspected Persons and Police Arrest Privileges in General, in Police Power and Individual Freedom 15-18 (Sowle ed 1962).
In Oregon, the slate is remarkably sketchy and inconclusive. The Supreme Court upheld a pretext stop in an old case, State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935). An officer following a suspected bootlegger stopped him when he drove 27 miles per hour in a 25 mph zone.
The state argues that State v. Mendacino, 288 Or 231, 603 P2d 1376 (1980), also includes a pertinent discussion of ORS 133.005(1), but we agree with defendant that the passing mention of the statute in that case is not helpful in this one. In reaching that result, the court quoted approvingly from an earlier case that had reasoned that " 'it is difficult to explain how the police can search an individual without arresting him, since any substantial detention without his consent would fit the definition of an arrest found in such criminal cases as State v. Christensen, 151 Or 529 [1935].' " Groda, 285 Or at 325 (quoting State v. Krogness, 238 Or 135, 146-47, 388 P2d 120 (1964)).
Earlier cases decided by this court are not helpful. In State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935) two members of the court thought the stop was justified by the possibility of a violation of the basic rule, but a majority relied upon probable cause to search the vehicle for evidence of a violation of the liquor laws. In State v. Allen, 248 Or. 376, 434 P.2d 740 (1967), both the majority opinion and the dissenting opinion by Justice O'Connell focused not on the initial stop but on the subsequent custodial arrest and its consequences.
This was the conclusion we reached in State v. Krogness, 238 Or. 135, 146-147, 388 P.2d 120, cert den 377 U.S. 992, 84 S Ct 1919, 12 L Ed2d 1045 (1964): "* * * As a practical matter, it is difficult to explain how the police can search an individual without arresting him, since any substantial detention without his consent would fit the definition of an arrest found in such criminal cases as State v. Christensen, 151 Or. 529, supra, and such civil cases as Lukas v. J.C. Penney Co., 233 Or. 345, 378 P.2d 717 (1963). * * *." A search of a person without a warrant is permissible as an incident to arrest and the search of the defendant was valid for this reason.
See, e.g., Weeks v. United States, 232 U.S. 383, 34 S Ct 341, 58 L Ed 652 (1913); United States v. Jeffers, 342 U.S. 48, 72 S Ct 93, 96 L Ed 59 (1951).See, e.g., State v. Rosser, 162 Or. 293, 349, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295 (1939); State v. Christensen, 151 Or. 529, 531, 51 P.2d 835 (1935); State v. Walker, 135 Or. 680, 683, 296 P. 850 (1931); but cf. State v. Lee, 120 Or. 643, 647-49, 253 P. 533 (1927).State v. Elkins, 245 Or. 279, 282, 422 P.2d 250 (1966)
See also ORS 133.535. To the same effect, see State v. Christensen, 151 Or. 529, 534, 51 P.2d 835 (1935); State v. James Johnson, supra; State v. Turner, 237 Or. 609, 390 P.2d 177 (1964); and State v. Krogness, supra. But see State v. Elkins, supra, and State v. O'Neal, supra at 166.
But cf., Edwards v. State, 319 P.2d 1021 (Okl Cr 1958); Stout v. State, 214 P.2d 271 (Okl Cr 1950). See also State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935). In State v. Johnson, 232 Or. 118, 374 P.2d 481 (1962) the defendant was arrested initially for violation of a city ordinance prohibiting registration under a false name. Evidence seized during the arrest led to a subsequent burglary conviction.
" ORS 133.250 states that an arrest is perfected by "an actual restraint of the person of the defendant or by his submission to the custody of the officer." In State v. Christensen, 151 Or. 529, 51 P.2d 835 (1935) we went so far as to hold that the mere signaling and stopping by a police officer of one committing a traffic violation amounts to an arrest. The facts of that case help to explain the result.