State v. Fortier

OPINION

KRUCKER, Judge.

This is an appeal by the State of Arizona from an order granting a motion to suppress. After reviewing the record and reading the briefs and citations carefully, we affirm.

At about 6:45 a.m. on January 16, 1975, when traffic was very light and there was little to do, the arresting officer decided to make a registration check on an automobile that had just passed him. At trial, when asked what called his attention to the automobile, the officer replied, “Okay, at 6:45 in the morning it is fairly — there is very little traffic out there; not having much to do, I just ran a registration check on a vehicle that had just passed me up.” The registration check revealed that the license number was assigned to a Pontiac. Because the officer mistakenly believed the car was an Oldsmobile, however, he stopped it. Aside from the officer’s mistaken belief concerning the make of the car, there was nothing that would reasonably have made him suspect that unusual activity related to crime was taking place. After stopping the defendant, the officer discovered that the car was in fact a Pontiac rather than Oldsmobile. He nonetheless asked for the keys and opened the trunk, where he found 79 kilo bricks of marijuana.

We believe the facts in this case are even stronger than those in State v. Ochoa, 23 Ariz.App. 510, 534 P.2d 441 (1975). In Ochoa the officers stopped certain cars that fit a stolen car profile. We held that forced stops of motor vehicles are only constitutional where there is a rational suspicion that some activity out of the ordinary is taking or has taken place, some in*110dication to connect the person under suspicion with the unusual activity, and some reason to believe that the activity is related to crime.

In the case at bench, there was no reason whatsoever for suspecting the vehicle to be connected with crime, no act on the part of the vehicle’s driver that indicated he was violating any law or that he was acting in a suspicious and unusual manner. We believe our reasons for sustaining the ruling of the trial court are even stronger than they were in State v. Ochoa, supra.

Division One of this court, in State v. Ream, 19 Ariz.App. 131, 505 P.2d 569 (1973), upheld a ruling denying a motion to suppress, but in that case the facts giving rise to suspicion were much stronger. In the instant case, the officer merely decided to make a check, which was an erroneous check, because he had nothing else to do and so admitted on the witness stand.

Affirmed.

JACK- G. MARKS, Superior Court Judge, Pima County, concurs.

NOTE: Judge JAMES D. HATHAWAY having requested that he be relieved from consideration of this matter, Judge JACK G. MARKS was called to sit in his stead and participate in the determination of this decision.