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Oregon v. Johnson10/5/1988
COURT OF APPEALS OF OREGON
CA No. A43293
1988.OR.40777 ; 93 Or. App. 242; 761 P.2d 1343
October 5, 1988
STATE OF OREGON, RESPONDENT,
v.
HAROLD JOHNSON, APPELLANT
Appeal from District Court, Deschutes County. Joseph J. Thalhofer, Judge. No. CR6-1185-20.
Thomas J. Crabtree, Bend, argued the cause for appellant. With him on the brief was Crabtree & Rahmsdorff, P.C., Bend.
Jonathan H. Fussner, Assistant Attorney General Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Richardson, Presiding Judge, and Newman and Deits, Judges.
Richardson
Defendant appeals his conviction for driving under the influence of intoxicants. He assigns error to the trial court's denial of his pretrial motion to suppress evidence obtained as a result of two allegedly illegal stops. We affirm.
We summarize the facts from testimony presented at the suppression hearing. A Bend police officer was dispatched on a bicycle to patrol a commercial district that had been the scene of several burglaries during early morning hours. At about 4:30 a.m., he saw defendant in a parked car either leaning against the driver's window or slouched down in the front seat. The officer could not determine whether defendant was sleeping or trying to hide from him, and he decided to investigate. He approached the car and knocked on the window. Defendant opened the window, and they engaged in conversation for what the officer described as a "brief period." At some point during that conversation, the officer asked defendant for identification. Defendant handed the officer his driver's license and told him that he had had too much to drink that evening and had decided to sleep it off. The officer had thought at the outset of the conversation that defendant was "very intoxicated" and advised him not to drive. He also offered to call a taxi, but defendant refused. The officer returned defendant's identification and continued his patrol.
About two hours later, the officer saw defendant driving his car in downtown Bend. He rode the bicycle to the nearby police station and obtained a patrol car. He pursued defendant until he caught up with him, stopped him and arrested him for DUII.
The key to defendant's argument is the theory that his first encounter with the officer when he was parked on the street became a "stop" under ORS 131.615 when he was questioned and asked for his identification. Because there was no objective basis for the officer to believe that he had committed a crime, he contends that it was an unlawful stop which requires suppression of all information the officer obtained. The second stop, he argues, is unlawful, as well as is the subsequent arrest, because they were both based on illegally obtained information. See State v. Painter, 296 Or 422, 676 P2d 309 (1984).
In Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988), the court discussed the link between an allegedly unlawful stop and the validity of an attendant arrest. It said:
"A stop may produce the evidence which forms the basis for probable cause for an arrest. Accordingly, an unlawful stop may 'invalidate' an ensuing arrest, but only through the exclusion of evidence garnered from the stop." 306 Or at 52.
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