State v. Albertsen

TANZER, J.,

dissenting.

I agree with all of the majority opinion except the last paragraph. I would hold that the observations of the officer are not sufficient to constitute reasonable suspicion.

As indicated in the majority opinion, the only objective facts upon which a reasonable suspicion might be based are that the defendant pulled his car over to the shoulder in the sight of the officer shortly after the officer began driving behind him, that defendant got out of his car and opened his trunk, that shortly thereafter a woman was driving the car with defendant in the passenger seat, and that the defendant turned his head and looked toward the officer several times.

Unlike the majority, I do not find that

"* * * it is difficult to imagine a stronger case for suspecting a license offense was being committed.”

All that happened was that the defendant, in the sight of the officer, pulled over, changed drivers, and thereafter looked at the police car behind him. I can easily imagine several stronger cases and, unless we were to require no suspicious facts at all, I find it difficult to imagine a weaker case. The requirement of articulable objective facts justifying a reasonable suspicion has not been met. For that reason, I dissent.

I also disagree with the additional rationale of the concurring opinion. The first ground is that ORS 482.040(2)(b), which requires a licensee to possess a license when driving a motor vehicle and to display it upon demand, gives blanket authority for police officers to stop any motorist to check his operator’s license without the necessity of reasonable suspicion. Most cases I have found, which so hold, including two of the cases relied upon in the concurring opinion, are based *685upon an express provision in the analogous statute which authorizes the police to make such stops.1 Conversely, in those states where the statute does not expressly authorize stops for inspection, most courts have refused to read authorization for stops into the statute.2 I agree with the view that we should not read into a statute an authorization for the police to detain persons where the statute has no words to that effect. ORS 482.040(2)(b) requires a motorist to display his operator’s license upon demand, but it does not authorize a police officer to stop a motorist for the purpose of making such a demand. Therefore, regardless of any constitutional problem, there is no statutory basis in Oregon for a stop without reasonable suspicion.

Furthermore, the decision of the United States Supreme Court in United States v. Martinez-Fuerte, 428 US 543, 96 S Ct 3074, 49 L Ed 2d 1116 (1976), relied on in the concurring opinion, gives no cause to overrule our decision in State v. Johnson, Wesson, 26 Or App 599, 554 P2d 194 (1976). That holding was expressly limited to "fixed checkpoint” stops, as at the border, 428 US at 559. This is not such a case.

Because I cannot agree that there was sufficient objective justification for a stop on reasonable suspicion and because I cannot agree that there is statutory *686authorization for a stop in the absence of reasonable suspicion, I conclude that the stop was unauthorized by law and that the motion to suppress the evidence which resulted from the stop should have been suppressed. Accordingly, I would reverse.

State v. Blackwelder, 34 NC App 352, 238 SE2d 190 (1970); State v. Holmberg, 194 Neb 337, 231 NW2d 672 (1975); State v. Benson, 198 Neb 14, 251 NW2d 659 cert den 434 US 833 (1977); Leonard v. State, 496 SW2d 576 (Tex Cr App 1973), Faulkner v. State, 549 SW2d 1 (Tex Cr App 1976); State v. Allen, 282 NC 503, 194 SE2d 9 (1973).

United States v. Montgomery, 561 F2d 875 (DC 1977); People v. McPherson, 550 P2d 311 (1976); State v. Prouse, 382 A2d 1359 (Del Supr 1978); State v. Ruud, 90 NM 647, 567 P2d 496 (1977); People v. Mestey, 402 NYS2d 577, 61 AD2d 777 (1978); Commonwealth v. Swanger, 453 Pa 107, 307 A2d 875 (1973); People v. James, 44 Ill App 3d 300, 3 Ill Dec 88, 358 NE2d 88 (1976); State v. Bonds, 59 Haw 130, 577 P2d 781 (1978); State v. Ochoa, 112 Az 582, 544 P2d 1097 (1976). Contra, Kinard v. State, 335 So 2d 916, rev’d on othergrds, 335 So 2d 924, on remand335 So 2d 927 (Ala Crim App 1976); Palmore v. United States, 290 A2d 573 (DC App 1972); City of Overland Park v. Sandy, 2 Kan App 2d 176, 576 P2d 1097 (1978); Lipton v. United States, 348 F2d 591 (9th Cir 1965).