The opinion
O’CONNELL, J.,
dissenting.
We have here another instance of a common police practice in which the officer, not having probable cause to arrest, search and detain a person for the commission of a crime, uses the pretext of arresting him for a minor traffic violation in order to obtain evidence or a confession sufficient to charge him with the suspected crime. ①
I shall assume for the purpose of considering this case that the police officer had the authority to stop the defendant on the highway and to require him to exhibit his operator’s license. ② I shall also assume that the search was lawful on the ground that the defendant consented to it, although it is doubtful whether the facts are sufficient to sustain the search on this basis. ③
After the search was made, the officer had to decide whether he was going to arrest and hold defendant on the charge of burglary or on the charge of violating *386 the traffic regulations. If the arrest was properly-made upon the basis of-the former charge, the conduct of the police following the arrest did not result in the violation of defendant's constitutional rights.
But the officer did not arrest defendant on the burglary charge; he elected to charge defendant with a minor traffic violation in “not having an Oregon operator's license.”
A violation of a minor traffic regulation does not subject a person in this state to the machinery of the criminal law. The Oregon statutes make this eminently clear. The statutes on arrest (ORS 133.310) and on traffic offense procedures (ORS 484.010 et seq.) distinguish between a “major traffic offense” and other traffic violations. ④ Thus, ORS' 133.310 provides that “[a] peace officer may arrest a person without a warrant * * * (3) [w]hen a felony has in fact been committed or a major traffic offense, as defined in subsection (3) of ORS 484.010 '* * *.” ⑤ (Emphasis supplied.)
*387 More to the point is ORS 484.150, which requires appearance in court in case of a major traffic offense but permits the violator of any other traffic offense to sign a plea of guilty on the traffic summons, mail it to the court together with a check or money order in the amount of the “bail” and thus avoid the necessity of appearing in court. There is nothing in the statute to indicate that this privilege to pay the traffic fine and proceed on one’s way was intended to be limited to persons who are free from police suspicion. ORS 484.120 authorizes an officer to take security for the appearance of a person arrested for a traffic offense, “if it appears to the officer that the arrested person might fail to appear in response to a citation * * But this statute should be construed to mean that security can be demanded only in those cases in which the legislature deemed it important that the violator be present in court, i.e., when there is a major traffic offense; not when the only purpose that could be served by the appearance would be the collection of a fine. If the police can keep a person in custody for the violation of a minor traffic offense while they look for evidence to establish his guilt, the requirement that an arrest and search be based upon probable cause would be meaningless because ihere would be few, if any, instances when the police, suspecting the driver of having committed a crime, could not charge him with the violation of a minor traffic violation.
In the present case it is patent that defendant was kept in custody for the purpose of giving the police time to gather evidence of his guilt. While he was in custody, his companion Snodgrass was interrogated and finally confessed to the burglary. The police then informed defendant of Snodgrass’ confession, whereupon defendant asked to see Snodgrass to verify the *388 reported confession and when defendant learned that the report was true he confessed. Thus the detention could have been a substantial factor in obtaining defendant’s confession.
Since the arrest and detention was unlawful, defendant’s confession which was a product of it should not have been received in evidence. ⑥
La Fave, Arrest—The Decision to Take a Suspect into Custody 187 (1965).
While it is generally conceded that police may at any time stop the driver of an automobile for the purpose of examining his driver’s license, authorities disagree as to the lawfulness of this practice when police have an ulterior motive in requiring the motorist to stop and exhibit his license. Compare Cox v. Tennessee, 181 Tenn 344, 181 SW2d 338 , 154 ALR 809 (1944) with Cameron v. State, 112 So2d 864, 868 (Fla 1959).
See People v. Zeigler, 358 Mich 355, 364 , 100 NW2d 456, 461 (1960).
ORS 484.040 (5) defines a major traffic offense as follows:
“(5) ‘Major traffic offense’ means a violation of any of the following provisions of law or a city ordinance conforming thereto:
“(a) Reckless driving, as defined in subsection (1) of ORS 483.992.
“(b) Driving while under the influence of intoxicating liquor, barbiturates or narcotic drugs, as defined in subsection (2) of ORS 483.992.
“(c) Failure to perform the duties of a driver involved in an accident or collision, as defined in subsections (1) and (2) of ORS 483.602 and ORS 483.604, which would be punishable under subsection (1) of ORS 483.990.
“(d) Operating a motor vehicle while the operator’s or chauffeur’s license is suspended or revoked, as defined in ORS 482.650.
“(e) Fleeing or attempting to elude a traffic or police officer, as defined in subsection (1) of ORS 483.049.”
Prior to the amendment in 1963 (Ch 448, Oregon Laws 1963), ORS 133.310 did not authorize an arrest without a warrant for the major traffic offense.
Wong Sun v. United States, 371 US 471 , 83 S Ct 407 , 9 Led2d 441 (1961).