State v. Albertsen

*681SCHWAB, C. J.

Defendant seeks reversal of his conviction for the felony of driving while suspended. ORS 487.560. Defendant contends there was insufficient "reasonable suspicion” to stop the car he had been operating. We disagree, and affirm.

An officer, while parked along a highway, observed a car pass being driven by a man (the defendant) with a woman passenger. The officer pulled his marked patrol car onto the highway heading in the same direction. Almost immediately the car, in the officer’s words, "swerved over to the shoulder and stopped.” The car had not appeared to the officer to be slowing down to stop before the officer pulled onto the highway. The officer passed the stopped car, traveled á mile or more down the highway, pulled off and parked. A few minutes later the same car passed the officer with the woman driving and the man riding as a passenger. The officer pulled back onto the highway and followed the car about a mile. The male passenger turned and looked at the officer several times. The officer, suspecting a "license-type violation,” stopped the car. Investigation revealed that the defendant’s driver’s license had been suspended for driving under the influence of intoxicants. This prosecution followed.

Defendant relies upon ORS 131.615 and the constitutional doctrines of Terry v. Ohio, 392 US 1, 88 S Ct 1868, 20 L Ed 2d 889 (1968), for the proposition that the stop was unlawful. Under these rules, we have held that motor vehicles cannot be stopped merely to verify the driver’s license. State v. Johnson, Wesson, 26 Or App 599, 554 P2d 194 (1976). The state contends that, in so holding, we erroneously relied on State v. Cloman, 254 Or 1, 456 P2d 67 (1969), as authority, because the court in Cloman stated "we are not passing upon the right to stop and examine the driver’s operating license.” 254 Or at 6, n 2. That may be. But we fail to see how the fact that the Supreme Court regards a question as unresolved establishes that we *682were wrong in our own resolution in Johnson, Wesson. In the absence of further guidance from the Supreme Court, we adhere to Johnson, Wesson. See also State v. Carter/Dawson, 34 Or App 21, 578 P2d 790 (1978); State v. Brister, 34 Or App 575, 579 P2d 863 (1978); State v. Tucker, 34 Or App 203, 578 P2d 803 (1978).

Thus, there must be probable cause to believe a license offense is being committed — which would justify a stop and immediate arrest or citation in lieu of arrest — or reasonable suspicion to believe a license offense is being committed — which would justify an investigative stop and further inquiry. There is no probable cause issue in this case; the question is the reasonableness of the officer’s suspicion.

In assessing the reasonableness of suspicion, it is appropriate to consider what quantity and quality of information could conceivably be available to an officer. There is probably no violation of law, always committed in public, with as few possible outward manifestations as the crime of driving while suspended and related license offenses.

Measured against the yardstick of what facts can conceivably create suspicion, it is difficult to imagine a stronger case for suspecting a license offense was being committed. Upon seeing a marked police car pull onto the road behind him, defendant "swerved” off the road and stopped. Defendant and his passenger exchanged places. When the officer again followed the car defendant had been driving, defendant kept glancing backward. If a Terry-type stop is not justified on these facts, enforcement of statutes relating to driver’s licenses will only be possible ancillary to investigation of other traffic infractions, accidents, and perhaps roadblocks or the like. We conclude the stop was reasonable.

Affirmed.