State v. Carter

*36TANZER, J.,

dissenting.

I must dissent. I believe that the majority analysis (or misanalysis) of pretext stops fails to protect privacy and that its newly spun restrictions on police action following a stop either are illusory or, if effective, unnecessarily bar hitherto permissible police activity.

The majority correctly characterizes the state of Oregon case law as sketchy and inconclusive on this issue.1 There is only one case directly in point, State v. Christensen, 151 Or 529, 51 P2d 835 (1935), and the difference of opinion between the majority and me is crystallized by our differing approaches to that case. In Christensen, an officer, suspecting bootlegging, followed the defendant’s car until he drove 27 miles-per-hour in a 25-miles-per-hour zone, and stopped him for the traffic offense. The stop led to observations which led to an arrest and search, all of which the Supreme Court upheld.

I view Christensen as a constitutional anachronism; interesting as a historical curio, but philosophically obsolete. It is inconceivable that today’s Supreme Court would decide the case the same way as in 1937. The majority of this court, however, would decide as in 1937. By holding that the police may constitutionally interfere with liberty wherever there is suspicion or knowledge of an offense or crime, no matter how trivial, regardless of the actual police purpose, this court rescues Christensen from the juridical dustbin *37and restores it to full vigor as a statement of contemporary constitutional doctrine. The holding is inconsistent with the approach taken in recent Supreme Court cases and constitutionally unwise.

Recent Oregon Cases

The majority correctly identifies the language in State v. Florance, 270 Or 169, 188, 527 P2d 1202 (1974),2 as an expression by dicta of apparently accepted wisdom. Dicta or not, however, the language indicates a judicial disposition to view pretextual police action as morally bad and constitutionally intolerable. While one should not read too much into dicta, the predisposition of the Supreme Court on this issue is obvious.

State v. Cloman, 254 Or 1, 456 P2d 67 (1969), is the case most indicative of the Supreme Court’s approach. There the police had probable cause to arrest defendant for copper wire burglary, but, being unsure of their legal footing, they arrested him on an announced charge of being abroad after hours. The after-hours ordinance was thereafter declared unconstitutional. Judicial analysis was not constrained by the officer’s choice of charge. Rather, the court examined the underlying basis for the arrest, i.e., investigation of wire theft, and upheld the search as based on sufficient probable cause. The court stated that "if the officers had probable cause to arrest, the arrest made is not rendered illegal because the officers expressed another and improper cause for arrest.” 254 Or at 12. *38This statement does not purport to establish an entirely objective standard, free from motivational considerations, for searches and seizures which would automatically validate any search or seizure with a fact-based pretext. Rather, it indicates that court’s sympathy for the police who are uncertain as to which of two grounds of arrest is more secure and a corresponding judicial willingness to ignore the officer’s reliance upon a pretext charge of convenience.

The majority cites Cloman (34 Or App at 29) and a series of our opinions in support of its theory that the validity of the pretext must be evaluated objectively and the officer’s actual motivation is irrelevant. Cloman holds no such thing; indeed, Cloman holds the opposite. The issue in such cases is whether the validity of a search or seizure is determined from the pretext charge or from the actual underlying charge. The suspicion or probable cause must be assessed objectively for either charge. The decision in such cases is not whether to assess objectively, but which charge to assess. The implicit answer in Cloman is clear: the court will look objectively to the reality of the situation and particularly to the actual underlying police purpose regardless of the announced pretextual basis of a stop, search or arrest. The majority’s reliance upon Cloman, which upheld the arrest on the underlying charge, as authority for the upholding of a pretext stop is patently erroneous.

The Supreme Court followed the Cloman approach in State v. Valdez, 277 Or 621, 561 P2d 1006 (1977). They invalidated a search because there was no cause for reasonable suspicion regarding the criminal activity under investigation. The court gave no significance to the observed traffic offense. Were the rule advanced by the majority the law, then the Valdez search should have been upheld on the basis of an objectively extant traffic offense. Instead the Supreme Court disregarded the pretextual traffic charge and looked only to the actual motivation.

*39This court has generally followed the Cloman approach by looking to the underlying cause. See, State v. Brewton, 19 Or App 899, 901-02, 529 P2d 967 (1974) rev den, cert den 423 US 851 (1975), State v. Temple, 7 Or App 91, 96-7, 488 P2d 1380 rev den (1971) cert den 406 US 973 (1972), and State v. Johnson, Wesson, 26 Or App 599, 603, 554 P2d 194 (1976), which adopted the dissenting opinion of Schwab, C. J., in State v. Gibbons, 21 Or App 339, 353, 535 P2d 561 rev den (1975).3

Scratch Analysis

Absent controlling precedent from either of our Supreme Courts, we should now formulate a rule for application in this and subsequent cases, consistent with the Cloman approach, which will function best in light of the nature of the protection afforded by the Fourth Amendment, and the nature and gravity of the danger to that protection presented by pretext stops and arrests.

The purpose of the Fourth Amendment is to protect the individual from arbitrary official interference with his freedom and intrusion into the privacy of his possessions. The method of the Fourth Amendment is to bar any official intrusion as presumptively unreasonable unless the government can give reason justifying both the selection of the person, place or thing interfered with and the nature and intensity of *40the interference. State v. Evans, 16 Or App 189, 517 P2d 1225 rev den (1974).

The first alternative course, that chosen by the majority, is to unqualifiedly allow pretext stops and arrests whenever there are facts which justify the pretext. Such a per se rule, however, would reduce the shield of the Fourth Amendment to a sieve because one who lives in a complex and pervasively regulated society can hardly avoid occasional violations of law. In the course of criticizing the Robinson/Gustafson4 rule, Professor LaFave observed:

"* * * Given the fact that 'in most jurisdictions and for most traffic offenses the determination of whether to issue a citation or effect a full arrest is discretionary with the officer,’ and that Very few drivers can traverse any appreciable distance without violating some traffic regulation,’ this is indeed a frightening possibility. It is apparent that virtually everyone who ventures out onto the public streets and highways may then, with little effort by the police, be placed in a position where he is subject to a frill search. Nor is one put at ease by what evidence exists as to police practices in this regard; it is clear that this subterfuge is employed as a means of searching for evidence on the persons of suspects who could not be lawfully arrested for the crimes of which they are suspected.
"* * * After all, the 'paramount purpose of the fourth amendment is to prohibit arbitrary search and seizures as well as unjustified searches and seizures.’ * * *” (Footnotes omitted.) W. LaFave, The Robinson Dilemma, 1974 Sup Ct Rev 127, 152-53.

The mere existence of a 2-miles-per-hour violation of a speed limit, a burned out tail light, an unsignalled turn, standing off the curb before the walk signal turns on, or a meander over the bounds of a crosswalk, let alone loitering, disrespect to an officer or disorderly conduct, should not serve to make reasonable a search or seizure which would be unreasonable in the absence *41of a commonplace and often inadvertent law violation. If we are subject to official interference whenever there is factual justification for a suspicion or belief that we have offended any statute, ordinance or regulation, however minimally, then there is not much Fourth Amendment protection from arrest left in modem society. Indeed, what boy or girl is free from police investigative detention now that we have upheld a stop for failure of a bicycle rider to stop completely at a stop sign? State v. Tucker, 34 Or App 203, 578 P2d 803 (1978). I would conclude that a pretext stop or arrest is not constitutionally valid simply because a trivial offense is observed.

On the other hand, an absolute rule the other way is equally undesirable. If a policeman observes suspicious activity which would ordinarily cause him to take action, the fact that he suspects or is investigating a graver violation of law should not bar him from taking such action. Suspicion of greater crime should not immunize an individual from the consequences of a smaller crime. In other words, it is reasonable for an officer to act as he ordinarily would regarding a lesser crime even though he may suspect a person of more serious criminal activity. In that case, the stop, arrest or search regarding the lesser crime is not actually pretextual in character.

There is a course which would avoid the pitfalls of both per se mies and yet accomplish both the public and private purposes of the Fourth Amendment. It is arbitrary official selection that offends the Fourth Amendment. The prohibition of arbitrarily selective intrusion is also one of the express purposes of the codification upon which the majority relies in part. The Commentary to the Proposed Oregon Criminal Procedure Code at p. 25, § 30 (1972), explains the phrase "reasonably suspects”:

"* * * There must be some facts or circumstances that distinguish the conduct of the individual stopped from that of other individuals who are not stopped.”

*42Arbitrary selection can be protected against. If the stop or arrest would ordinarily have been made as a matter of policy or customary practice, regardless of whether other criminal activity is suspected, and the officer was acting pursuant to that policy or practice, then it should be regarded as reasonable and not pretextual. State v. Huss, 23 Or App 118, 541 P2d 498 rev den (1975), is such a case. If on the other hand the stop or arrest is pretextual, i.e., it would not ordinarily have been made, then we should continue to follow the approach of the Supreme Court in Cloman and this court in Brewton, Temple and Smith, Wesson. The court should look through the pretextual justification for the police action and examine instead for the existence of sufficient cause in light of the underlying criminal activity which the police officer is actually pursuing. Cloman presents the only realistic approach.

Although it may be a difficult task, it is within the competence of courts to determine after an evidentiary hearing whether the action of the officer in a given situation is pretextual or not. Generally, just as in this case, we may expect testimonial candor from the officers. In State v. Tucker, the officer admitted (as he could hardly have denied) that he does not ordinarily stop bicycle riders who fail to completely stop at a stop sign. Additionally, Professor LaFave has suggested that such determinations can be made from the circumstances of the individual case, e.g., whether the officer was assigned not to traffic or general law enforcement, but rather to enforcement of the drug laws, W. LaFave, The Robinson Dilemma, 1974 Sup Ct Rev 127, 155 n 129, or whether the defendant was arrested for a minor offense when the established practice is to merely give a ticket, W. LaFave, Search and Seizure: Course of True Law, 1966 U of Ill L F 255, 282. Moreover, the United States Supreme Court, in the course of upholding arrests, noted pointedly in United States v. Robinson, 414 US 218, 221, n 2, 94 S Ct 467, 38 L Ed 2d 427 (1973), that a traffic arrest was *43required by the manual of procedures of the police department, and in Gustafson v. Florida, 414 US 260, 265, 94 S Ct 488, 38 L Ed 2d 456 (1973), as in our approach in Huss, that the traffic arrest was consistent with customary procedure. The decision to stop is no less capable of judicial scrutiny than in the decision to arrest, as in Robinson and Gustafson. Such decisional circumstances enable courts to determine whether a stop or arrest is pretextual just as they make other Fourth Amendment determinations from evidentiary hearings.5

There may be close cases, but that is a reason for careful fact finding, not for a withholding of the protection of constitutional doctrine.

Dispositional Errors of the Majority

The majority and I agree that there was insufficient cause to constitute a reasonable suspicion of burglarious activity and that the stop cannot be justified on that basis. From that point on, however, the majority’s fallacy is twofold.

First, the majority holds that the scope of detention and inquiry permitted constitutionally and by ORS 131.615 where there is reasonable suspicion was exceeded. Neither the principle nor the statute are applicable in this case, however, because the police action was not based on reasonable suspicion. The police action regarding the traffic stop may be limited by whatever limitations apply to the traffic stop; the police action regarding burglary must be scrutinized in view of the Fourth Amendment. In neither situation, however, is ORS 131.615 applicable: the traffic offense was observed, not suspected; the burglary was not reasonably suspected. The statute on reasonable suspicion is immaterial as to either charge.

*44The doctrine created by the majority — limitation of police questioning to the pretext charge — is not only theoretically unsound, but practically unsound. The reason it will not work on the street is simple: The very reason that police make pretext stops is to create opportunity for investigative observations. State v. Tucker is such a case in which the stop for a bicycle riding offense is simply a device to freeze the situation for whatever investigative opportunities might be generated. Typically, this means making an otherwise unavailable vantage point for plain view observation. It is the marijuana seeds on the rear seat, the roach in the ashtray, the ski mask on the floorboard, that rob the majority doctrine of its intended surgical quality. Furthermore, the stop is the setting for observation of the bulge-in-the-jacket (which may look like a weapon but is almost invariably drugs) and the furtive gesture (all gestures beyond absolute immobility turn out to be furtive in a stop situation) which leads to stops and frisks which generally relate to the underlying suspicion rather than the pretext stop. In sum, it sounds appealing to limit police action to the pretext charge, but in reality the doctrine is illusory.

Second, the majority holds as a matter of constitutional law that the asking of a question by a policeman is itself an act constituting detention, i.e., that "[t]hese questions * * * extended the duration of the stop.” The novel concept of a question as a detention is fraught with unforeseeable implications. At the least, for example, it overrules sub silentio the rule that questioning upon a traffic stop is noncustodial, see, e.g., State v. Egger, 24 Or App 927, 547 P2d 643 rev den (1976), and State v. Henson, 23 Or App 234, 238, 541 P2d 1084 (1975) rev den (1976), a rule which, until now, was sufficiently beyond question that we applied it without opinion, State v. Flury, 27 Or App 123, 555 P2d 209 (1976). It bases this doctrine on State v. Evans, 16 Or App 189, 517 P2d 1225 rev den (1974), but that reliance is erroneous: In Evans, the stop itself was unjustified by cause; here the premise of the majority *45is that the stop was lawful. Fifth and Sixth Amendment considerations aside, the police, like anyone else, may lawfully ask questions of anybody, detained or not. It is seizure which the Fourth Amendment regulates. Thus our examination in pretext stop cases must relate to the lawfulness of the stop itself. Under the majority rule, however, which uniquely in the law and from whole cloth extends the Fourth Amendment to questioning, an officer would have to measure every word he utters against some new standard and that result is impracticable on the street. There may be merit in the idea that substantial incremental detention for the purpose of unrelated questioning is itself a seizure, but I see no reason to promulgate such a rule here.

Disposition

The resolution of this case need not be so complex or revolutionary. The stop cannot be justified on the basis of reasonable suspicion of burglary. The traffic stop was lawful (or non-pretextual) if it was and ordinarily would have been made under the facts presented pursuant to written or customary policy. It was not lawful if the stop was arbitrary. Although the policy issue was not contemplated at the initial hearing, the officer testified that he was not acting in reliance upon the traffic violation. Therefore the stop was constitutionally unauthorized and its fruits must be suppressed.

For these many reasons, I dissent.

Roberts, J., joins in this dissent.

Federal law is not much help either. In United States v. Lefkowitz, 285 US 452, 467, 52 S Ct 420, 76 L Ed 877 (1932), the United States Supreme Court stated in dictum: "An arrest may not be used as a pretext to search for evidence.”

In Amador-Gonzalez v. United States, 391 F2d 308 (5th Cir 1968), a traffic stop in a border situation was upheld as valid, but the incidental search was invalidated as a pretext. The rationale was never compelling and must be considered overruled by United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1973), and Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973).

In State of Montana v. Tomich, 332 F2d 987 (9th Cir 1964), a pretext arrest was held invalid per se, but there was no reasoning to support the conclusion. See also, Taglavore v. United States, 291 F2d 262 (9th Cir 1961).

"We do not sanction either the abuses condemned by Rochin or 'pretext’ arrests. Regardless of the rule of Robinson, there must be probable cause for an arrest * * *. There may also be other circumstances under which a search made by an arresting officer may be illegal, even though made as an incident to a lawful custodial arrest. These possibilities, however, including the possibility that some police officers, by 'pretext arrests’ or arrests without probable cause, may abuse their sworn duty to obey the law, as well as to enforce it, [don’t prevent us from adopting the Robinson rule].” State v. Florance, 270 Or 169, 188, 527 P2d 1202 (1974).

I find no instance where this court has dealt explicitly with the pretext arrest or stop issue. The closest we have come to meeting the issue was in State v. Huss, 23 Or App 118, 541 P2d 498 rev den (1975). There the officer had advance information regarding defendant’s car, but the nature of the officer’s underlying purpose, if any, was not stated. The officer noticed expired license plates on defendant’s car, followed it until an unsignalled turn was made, and then stopped it. The arrest and search were held to be "legitimate” over defendant’s contention that the arrest was a "pretext,” because the officer gave reasons to support his decision to arrest rather than to cite. The analysis, however, concerned itself solely with the objective basis for the traffic arrest and incidental search. The court did not deal with the pretext arrest contention except, perhaps, by silent implication. The approach is the converse of that later taken by the Supreme Court in State v. Valdez, 277 Or 621, 561 P2d 1006 (1977), and the dicta in State v. Florance, 270 Or 169, 527 P2d 1202 (1974).

United States v. Robinson, 414 US 218, 94 S Ct 467, 38 L Ed 2d 427 (1963); Gustafson v. Florida, 414 US 260, 94 S Ct 488, 38 L Ed 2d 456 (1973).

Professor LaFave has argued both ways. In arguing that the products of traffic stops and searches should not be available in the trial of greater crimes, he wrote, "I doubt whether it is within the ability of the trial and appellate courts to determine with any fair rate of success the uncommunicated intentions or expectations of the police officer.” W. LaFave, The Robinson Dilemma, 1974 Sup Ct Rev 127, 154.