State v. Davis

ROBERTS, J.,

concurring.

( I concur in the majority opinion but feel compelled to reply to the dissenting opinion. The dissent proposes a scheme whereby the officers could enter the premises of defendant and seize the gun lawfully. I am mindful of the dangers encountered regularly by police officers; however, the result reached by the dissent, though devoutly to be wished, is impossible of achievement under the dissent’s analysis.

The dissent would have us believe that all that is required in this admittedly difficult fact situation is an application of Terry v. Ohio, 392 US 1 , 88 S Ct 1868 , 20 L Ed 2d 889 (1968) and a grafting thereon of Chimel v. California, 395 US 752 , 89 S Ct 2034 , 23 L Ed 2d 685 (1969) in order to get the officers over the threshold into the motel room and then permit a search of the premises. It is not so easy as the dissent suggests.

In relying on Terry the dissent totally ignores the fact that Terry has been codified in Oregon. The dissent may have chosen to ignore that fact because the statute specifically prescribes the parameters of police action in stop and frisk situations.

ORS 13-1.615(1) provides:

“A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that he is a peace officer, make a reasonable inquiry.”

ORS 131.605(5) defines a stop:

“A ‘stop’ is a temporary restraint of a person’s liberty by a peace officer lawfully present in any place.”

ORS 131.625(1) provides:

“A peace officer may frisk a stopped person for dangerous or deadly weapons if the officer reasonably suspects that the person is armed and presently dangerous to the officer or other person present.”

*245 ORS 131.605(2) defines a frisk:

“A ‘frisk’ is an external patting of a person’s outer clothing.”

Under the statute the officer’s lawful presence is a prerequisite to a valid stop. Further, the authority to frisk is derivative of a lawful exercise of the stopping authority. If a stop and frisk analysis is to be used as the dissent suggests, it must resolve at the outset when and where the stop occurred, because the officers’ lawful presence at the scene of the stop is a prerequisite to the validity of any subsequent frisk.

Both physical restraint and show of force are seizures of the person for constitutional purposes. Terry, supra, 392 US at 19 n. 16; State v. Warner, 284 Or 147, 161-62 , 585 P2d 681 (1978). Both were used in this case. If the stop occurred when the police, while still outside, commanded defendant to come into view, the stop may be upheld because the officer’s presence outside the room is lawful. On the other hand if the stop took place after the police entered and physically restrained defendant in a wrist control hold the warrantless, nonconsensual entry must be independently justified.

It may be that the police had sufficient grounds to stop and question defendant, an assertion by the state which defendant does not challenge. Had this confrontation occurred on a public street, the locus of Terry , a challenge to a stop supported by the requisite reasonable suspicion could not be sustained. Here the investigation took the police to defendant’s threshold and the confrontation ensued through defendant’s partially open doorway. If the stop occurred at this initial confrontation when the police ordered defendant out from behind the door and he, in response to their threat of force and show of authority, complied, it could be concluded that the stop was valid because it was made from a place where the officers were lawfully present.

Neither the stopping provision nor the frisking provision can be read to confer authority to make nonconsensual, warrantless entries into constitutionally protected areas. The dissent argues nonetheless that the search of defendant’s motel room was a permissible extension of a frisk because it was reasonably necessary for the protection of the officers *246 both during the detention and during their departure from the area. This is the state’s position as well, bolstered by its contention that the search did not contravene the stop and frisk statute because that statute is merely permissive; by authorizing a patdown search of a person it does not necessarily prohibit a more intensive search which is otherwise reasonable. This same argument was raised and rejected in State v. Fairley, 33 Or App 271 , 576 P2d 38 , rev’d on other grounds 282 Or 689 , 580 P2d 179 (1978). The Court of Appeals wrote:

“Although the stop and frisk legislation originated as an attempt to codify the principles of Terry v. Ohio, supra, the provisions as enacted clearly depart from the standards set forth in that case. * * * With regard to the scope of the frisk allowed following a stop, the statute also departs materially from Terry . ORS 131.605(2) is not couched in broadly permissive terms. It defines ‘frisk’ as ‘an external patting of a person’s outer clothing.’ The state argues that ORS 131.605(2) should be qualified by reading it as if it said, ‘A frisk is an external patting of a person’s outer clothing or some other type of limited intrusion if it is more reasonable under the circumstances.’ The state concedes that the legislative history of ORS 131.605(2) is conflicting and does not support its position. This is a case squarely within the ambit of the express words used in the statute, and we are compelled to hold that the officer was not authorized to reach into defendant’s pocket.” (Footnotes omitted.) 33 Or App at 277 .

Legislative history reveals examination of the statute’s effect on the traditionally judicially controlled terrain of search and seizure law. Opponents of the legislature’s attempt to codify the law of stop and frisk testified that “[t]here is little reason that the law should be frozen in its present state * * *. The courts should be left free to either continue in a status quo or modify the rules they have made.” Testimony of Keith Kinsman, Deputy District Attorney before the Senate Judiciary Committee, Jan. 29, 1973, Exhibit F at 19. Other opponents argued that:

“[a]s a matter of social policy, I do not think it is wise to restrict the investigative power of the police to any greater degree than is necessary to insure constitutional rights to individuals. Therefore, whether or not a police officer has acted within his authority should be decided in a case by case situation on the basis of whether his actions violated individual *247 constitutional liberties.” Testimony of Philip Roberts, representing the Oregon District Attorney’s Association, Id., Exhibit C at 11.

It is further significant that ORS 131.605 to 131.625 did not adopt wholesale the caselaw it codifies. State v. Valdez, 277 Or at 621, 625, 561 P2d 1006 (1977). The foregoing indicates that legislators were apprised of the limits codification would impose on authority to stop and frisk. Enactment of the statute demonstrates an intent to define independently of the judiciary the investigative authority of the police and to prevent modification of the law through later judicial decisions, a fact the dissent has chosen to ignore.

It is my conclusion that our statute must be applied on its terms and provides the beginning point for an analysis of any stop and frisk situation. It has simply superseded Terry . Our statute contains no language authorizing full searches of the person or beyond, nor does it provide for alternative measures, reasonable or otherwise. Rather, the statute confines a reasonable search to an external patting of outer clothing of a lawfully stopped person. It represents a legislative determination that such a limitation strikes the appropriate balance between protection of police officers and preservation of citizens’ rights to be free from unreasonable searches or seizures in the sensitive sphere of confrontations between police and citizens initiated on less than probable cause. This court has recognized that species of searches or seizures not expressly authorized by law may be constitutionally permissible. State v. Tourtillott, 289 Or 845 , 618 P2d 423 (1980), cert denied 451 US 972 , 101 S Ct 2051 , 68 L Ed 2d 352 (1981), However, where a law exists authorizing a particular search or seizure, and that law is itself constitutional, our task is limited to assessing the legality of police conduct on those terms. And when an officer’s act exceeds his or her statutory authority we have no occasion to consider whether such conduct conformed with state or federal constitutional requirements. State v. Valdez, supra, 277 Or at 629 ; State v. Greene, 285 Or 337, 347 , 591 P2d 1362 (1979) (Linde, J. specially concurring). In this case, I believe the entry into and search of the room exceeded the permissible scope of a stop and frisk under the statute. The dissent should not pretend the statute does not exist in order to reach the result it wants.

I concur with the majority.