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Oregon v. Boyanovsky9/15/1987
--REF-->131.615. The legislature has seen fit not to change its statutory restrictions on this kind of police conduct in three legislative sessions since Tourtillott was decided. It has the power to do so. As presently written, ORS 131.615 does not render these roadblocks illegal.
2. The Search was Unlawful under the Oregon Constitution
Because the foregoing statutory analysis does not render roadblocks illegal per se, I address the constitutional question.
The state argues that the constitutional permissibility of roadblock stops was established in State v. Tourtillott, supra, 289 Or at 853-59. I disagree. As recognized by the lead opinion, Tourtillott is not really a case decided under the Oregon Constitution. While it mentions Oregon Constitution Article I, section 9, its analysis is conducted entirely in Fourth Amendment terms. This court began to back away from Tourtillott in State v. Caraher, 293 Or 741, 748-49 n 7, 653 P2d 942 (1982), the lead opinion is equally chary concerning it, 304 Or at 100-101, and I join in the retreat. The Oregon constitutional issue is an open one.
While open, the issue is not difficult. Warrantless searches and seizures are per se unreasonable, subject to certain well-recognized exceptions. State v. Miller, 300 Or 203, 225, 709 P2d 225 (1985). None of those exceptions apply here. What has occurred is, quite simply, the seizure of a car and its driver without any probable cause in the hope that, sometime during the ensuing detention, evidence of a crime will be discovered. If Article I, section 9, stands for any proposition, it surely stands for the proposition that such police activity is
unconstitutional. I would affirm the Court of Appeals on this basis.
Jones, J., joins in this specially concurring opinion.
PETERSON, C.J., dissenting.
I dissent for the reasons set forth in my dissenting opinion in Nelson v. Lane County, 304 Or 97, 743 P2d 692 (1987).
General Footnotes
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