dissenting.
I dissent from that portion of the decision which holds that the defendant’s demurrer was improperly sustained. I dissent for the reason that I am of the opinion that ORS 484.435(1) does not prohibit an officer from placing a person in jail for a minor traffic offense unless he has "specific articulable facts” to justify his action.
ORS 484.350(4) provides:
"A police officer may exercise the authority granted by ORS 133.310 and 484.100 to arrest an individual for a traffic infraction.”
ORS 133.310(1) provides:
"A peace officer may arrest a person without a warrant if the officer has probable cause to believe that the person has committed:
* * *
"(b) Any other offense in the officer’s presence.”
A traffic infraction is an offense. ORS 484.350.
For the purposes of ORS 133.310 arrest is defined:
"(1) 'Arrest’ means to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging him with an offense. A 'stop’ as authorized under ORS 131.605 to 131.625 is not an arrest.”
In my opinion these statutes authorize an officer to put an offender in jail for a traffic infraction unless another statute provides to the contrary. The majority contends ORS 484.435(1) does provide to the contrary.
ORS 484.435(1) provides:
"Searches and seizures otherwise authorized by law incidental to an arrest shall not be authorized if the arrest is on a charge of committing a Class B, C or D traffic infraction unless the arrest is a full custody arrest in which the person arrested is to be lodged in jail, and the decision to place the person arrested under full custody arrest is based upon specific articulable facts justifying his *706being lodged in jail rather than being given a traffic citation as provided in this chapter and released.”
The majority finds the provisions of this statute are "somewhat ambiguous” with which I agree, but not in the respects relevant to the issue in this case. The statute does not in any way limit the right to arrest; to the contrary, it is only applicable when an arrest of some kind is made on a charge of committing a Class B, C or D traffic infration; it appears to acknowledge that "a full custody arrest in which the person arrested is to be lodged in jail” can be made on the charge of committing a Class B, C, or D traffic infraction. The statute expressly provides that if a full custody arrest is made with the person lodged in jail, "searches and seizures otherwise authorized by law incidental to an arrest shall not be authorized * * * unless the arrest * * * is based upon specific articulable facts * * *.”
I do not read Judge Gillette’s testimony in support of the bill which became ORS 484.435 as being contrary to the conclusion I reach. The three court decisions he cites concern the scope of search and seizure, not arrest. In United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed2d 427 (1973), the defendant was arrested for a traffic offense, driving when his driver’s license had been revoked, and placed in jail. The holding was that "in the case of a lawful custodial arrest a full search of the person” is permitted by the Fourth Amendment. 414 US at 235. In Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed2d 456 (1973), the defendant was arrested for failure to have his operator’s license in his possession. The officer searched the defendant at the time of the arrest. Again, the holding of the court was that a full body search was permitted under the Fourth Amendment. In State v. Florance, 270 Or 169, 527 P2d 1202 (1974), the issues were "relating to the nature and scope of the search of a person as an incident to an arrest * * 270 Or at 173. We followed United States v. Robinson, supra, and Gustafson v. Florida, supra.
Lent, J., joins in this dissenting opinion.