dissenting.
The majority carefully slides by the crucial fact in this case: there is no evidence that, at the time the officer asked defendant for his driver’s license, the officer reasonably believed that defendant had committed a violation.1 Because the only statutory authority for the officer to stop defendant or to ask for his license requires that the officer have such a reasonable belief, the officer’s authority disappeared along with the belief. The trial court correctly suppressed all evidence that resulted from the unauthorized request. Because the majority holds otherwise, I dissent.
There are two potential statutory sources of authority for the officer to ask defendant for his license, ORS 153.110(3) and the combination of ORS 807.510 and ORS 810.410(3). Neither permits the officer to continue to detain a person or to request a driver’s license or other identification after any reasonable belief that a violation was committed has evaporated.
ORS 153.110(3) provides:
“Any person authorized to issue citations pursuant to this section may not arrest for violation of the infraction but may detain any individual reasonably believed to have committed a violation, or any employe, agent or representative of a firm, corporation or organization reasonably believed to have committed a violation, only so long as is necessary to determine, for the purposes of issuing a citation, the identity of the violator and such additional information as is appropriate for law enforcement agencies in the state.” (Emphasis supplied.)
It is questionable, as the majority notes, whether this statute even applies to officers making traffic stops. See 93 Or App at 727 n 2.2 Assuming that it does apply, it establishes clear *729limits to its grant of authority. As the emphasized portions show, the only reason an officer may detain a person to determine the person’s identity is in order to issue a citation. That restriction necessarily requires that the person be someone who the officer reasonably believes has committed a violation. If the officer does not believe that there was a violation, the officer has no authority to detain a person. If the officer’s original belief that there was a violation ceases to have a reasonable basis, the authority necessarily disappears. See State v. Flores, 68 Or App 617, 637 n 10, 685 P2d 999, rev den 298 Or 151 (1984).3 That is what happened in this case.
Once the officer saw the temporary vehicle permit, his authority to detain defendant or to request his driver’s license disappeared. It is hard to imagine how the legislature could more clearly have limited the officer’s authority than it did in ORS 153.110(3). The officer could ask defendant for identification only if he intended to issue a citation, which the officer clearly could not do after he discovered that the apparent violation was not, after all, a violation. Any other conclusion would permit the police to deprive persons of their liberty without legal authority for doing so. The majority provides no rationale to support its conclusion.
ORS 810.410(3) and ORS 807.570 do apply to traffic stops, whether or not ORS 153.110(3) does. The result under them is, however, the same: the officer has no authority if the officer does not believe that there was a violation. ORS 810.410(3) provides, in pertinent part:
“A police officer:
<<* * * * *
“(b) may stop and detain a person for a traffic infraction for the purposes of investigation reasonably related to the traffic infraction, identification and issuance of citation” (Emphasis supplied.)
ORS 807.570(1)(b) (A) provides that a person commits the *730offense of failure to carry a license or failure to present a license if the person fails to present and deliver the license when requested to do so “[u]pon being lawfully stopped or detained when driving a vehicle(Emphasis supplied.)
Under ORS 810.410(3), the purpose for the stop and detention must be reasonably related to a traffic infraction; the purpose of seeking identification is to issue the citation. If there is no infraction, there can be nothing reasonably related to it, and there can be no citation. There can also be no failure to present and deliver the license upon being lawfully stopped, because there is no lawful stop. Once the officer discovered that defendant had not committed an infraction, the officer should have allowed him to go his way. Any evidence he obtained thereafter must be suppressed. The majority wrongly holds otherwise, and I therefore dissent.
Warren, Newman and Graber, JJ., join in this dissent.The officer could not remember whether he asked for defendant’s identification before or after he discovered the temporary permit on the windshield. Since this was a warrantless search, the burden of proof that the officer made the discovery after asking for the license was on the state, and the officer’s testimony was insufficient to carry it. ORS 133.693(4).
The majority’s comments on the legislative history it describes are curious, to say the least. The issue is not whether ORS 153.110(3) restricts the authority of an officer making a traffic stop; rather, the question is whether it grants the officer any authority. If it grants authority, the grant is limited to that stated in the statute. Without a statutory grant of authority the officer would have none at all.
In State v. Flores, supra, the officer arrested the defendant for possession of a controlled substance. The probable cause for the arrest was primarily based on the officer’s reasonable belief that the defendant was holding a bag of marijuana concealed in his hand. We noted in dictum that if the officer, upon seizing the bag, had discovered that its contents were “an innocent substance” he would have lost the probable cause for the arrest and therefore would have had no authority to search further incident to the arrest. 68 Or App at 637 n 10.