unjustified "stop" tainted consent to search, so resulting evidence must be suppressed
How later courts described this case
- unjustified "stop" tainted consent to search, so resulting evidence must be suppressed
Written by the judges who cited it.
The opinion
THORNTON, J.,
dissenting.
The majority concludes that the police did not have a reasonable basis for stopping defendant and his companion. I cannot agree.
As I see the facts presented here, the police did have reasonable basis for stopping defendant and his companion and making inquiries. I reach this conclusion wholly without reference to the so-called drug trafficker’s profile. I find the majority’s conclusion untenable and a serious and unwarranted handicap to the police in controlling drug traffic.
The communication from Florida included the following information: (1) a detailed physical description of defendant and his companion; (2) defendant arrived ten minutes before the flight and had only hand luggage; (3) one person bought both one way tickets, paying with cash; (4) defendant was carrying a "large amount” of cash; (5) they appeared nervous as if they were being watched; and (6) they left a phone number of a hotel with the clerk from whom they purchased the tickets and the detective, by inquiring at the hotel, *920 learned that no one by defendant’s name had been registered there during the past few days.
What constitutes a reasonable suspicion? In the language of ORS 131.605(4),
" 'Reasonably suspects’ means that a peace officer holds a belief that is reasonable under the totality of the circumstances existing at the time and place he acts as authorized in ORS 131.605 to 131.625.”
As we observed in State v. Evans, 16 Or App 189, 194 , 517 P2d 1225 , rev den (1974):
" * * * [T]he police may seize or search a person with such a degree of intensity as may be justified by the articulable quantum of knowledge they have and by the gravity of the police purpose to be served.”
Here, unlike Evans , the police did not choose to harass the defendant at random on the off chance that if they shucked enough oysters they would eventually find a pearl. Rather, they had a small quantum of information from which to suspect that defendant was committing a crime in their presence and, under Evans , that slight cause justified a slight intrusion. The police action here was minimal and they had sufficient cause to legally authorize it.
There is one final aspect of this case which the majority fails to mention: Defendant consented to this search.
The evidence that defendant consented to the search was unrebutted. The trial court’s finding of voluntariness of this consent is supported by the historical facts and is, therefore, binding on us. State v. Warner, 284 Or 147 , 585 P2d 681 (1978).
Accordingly, I would reverse and remand for trial.