Law School Case Brief
State v. Butkovich - 87 Or. App. 587, 743 P.2d 752 (1987)
The statutory standard for stopping is less than the probable cause standard for an arrest. However, intuition of an officer, without articulable facts indicating some likelihood of criminal activity, does not rise to a reasonable suspicion justifying a stop.
At 2:00 a.m. on August 9, 1986, an officer patrolling a business area of the town saw a car occupied by two persons parked in the drive-up lane of a closed fast food restaurant. Because he knew of some burglaries in the recent past in that area, he pulled up behind the parked car, got out and approached defendant's vehicle. As the officer walked toward the car, he saw a female passenger turn around. When she saw him, she got a "very surprised look on her face" and bent over for several seconds. It appeared to the officer that she was putting something underneath the seat. After a brief introductory conversation with defendant, who was sitting in the driver's seat, the officer told him in a "firm voice" to remove whatever was under the seat. Defendant responded, "It's not a gun, it's just coke." The officer did not draw his weapon, but conceded that, had defendant attempted to drive away, he would have stopped him. The officer ordered defendant and the passenger, defendant's wife, to step out of the car. He reached under the seat and found a razor blade and mirror with lines of white powder, which was cocaine. He then read defendant and his wife the Miranda rights and searched the car, with their permission. In a leather purse, he found more cocaine.
The trial court concluded that the officer's conduct constituted a stop and that it was justified because he had a reasonable suspicion that a crime was being committed. It therefore denied defendant's motion to suppress evidence seized in the car and convicted him in a stipulated facts trial.
Was the stop was justified, that is, was the officer's suspicion that the defendant or his wife was engaged in criminal activity reasonable?
A stop is a "temporary restraint of the citizen's liberty" justified by reasonable suspicion of criminal activity. A stop occurs when a police officer restrains a person's liberty by physical force or a show of authority. The appellate court noted that the officer had made a show of authority by ordering defendant to remove things from under the seat and to step out of the car. That was not "mere conversation" and defendant, as a reasonable person faced with the officer's demand, would not have felt free to ignore the command and leave. The appellate court agreed with the trial court that a stop had occurred.
When there is evidence that criminal activity has in fact just occurred, such a gesture may provide a basis for believing that the actor has participated in it. However, in the absence of any evidence of criminal activity, furtive gestures provide no basis for a stop. The Oregon Court of Appeals concluded that the stop was illegal and that the trial court should have suppressed the evidence seized from the car.
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