State v. Boyanovsky

¶1specially concurring.

¶2I concur in the disposition of this case made by the lead opinion. I cannot, however, accept the reasoning of that opinion.11 therefore write separately.

¶3The key to the lead opinion is this paragraph from Nelson v. Lane County, 304 Or 97, 103, 743 P2d 692 (1987):

*135“[S]ome procedures may invade the personal freedoms protected from government interference by the [Oregon] constitution. Roadblocks are seizures of the person, possibly to be followed by a search of the person or the person’s effects. For this reason, the authority to conduct roadblocks cannot be implied. Before they search or seize, executive agencies must have explicit authority from outside the executive branch.” (Emphasis supplied.)

¶4The balance of the lead opinion is devoted to development of this idea, which I shall call the “administrative search model.” The trouble is, none of the cases decided by the court today are administrative search cases, and the model — even if it were correct — is inapposite.

¶5In all three of these cases, the roadblocks were being conducted by police officers to satisfy four objectives: (1) to apprehend persons driving under the influence of intoxicants; (2) to deter persons from driving under the influence; (3) to promote personal safety of travelers on the highways, including the offender; and (4) to educate the public about the dangers of driving while under the influence of alcohol or drugs. If a stopped driver was found to be under the influence of alcohol or drugs, the driver was to be arrested and prosecuted. These were not administrative searches, calling for this court to begin to fashion a jurisprudence under Article I, section 9, of the Oregon Constitution, like that the United States Supreme Court has developed under the Fourth Amendment for administrative searches. See Donovan v. Dewey, 452 US 594, 101 S Ct 2534, 69 L Ed 2d 262 (1981); Marshall v. Barlow’s, Inc., 436 US 307, 98 S Ct 1816, 56 L Ed 2d 305 (1978); United States v. Biswell, 406 US 311, 92 S Ct 1593, 32 L Ed 2d 87 (1972); Colonnade Corp. v. United States, 397 US 72, 90 S Ct 774, 25 L Ed 2d 60 (1970); Camara v. Municipal Court, 387 US 523, 87 S Ct 1727, 18 L Ed 2d 930 (1967); See v. City of Seattle, 387 US 541, 87 S Ct 1737, 18 L Ed 2d 943 (1967); see also United States v. Martinez-Fuerte, 428 US 543, 96 S Ct 3074, 49 L Ed 2d 1116 (1976); United States v. Brignoni-Ponce, 422 US 873, 95 S Ct 2574, 45 L Ed 2d 607 (1975).

¶6Applying traditional criminal law concepts, I perceive two bases — one statutory, the other constitutional — under which the Court of Appeals should be affirmed.

¶7*1361. The Search was Unlawful under Pertinent Statutes

¶8As noted, one of the objectives of the roadblock stops in this case was to identify and to cause the arrest and prosecution of DUII offenders. Normally, stops of persons suspected of crime are governed by ORS 131.615, which provides:

“(1) A peace officer who reasonably suspects that a person has committed a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.

“(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

“(3) The inquiry shall be considered reasonable only if limited to the immediate circumstances that aroused the officer’s suspicion.”

¶9However clearly its language might appear to me to solve the question now before us, this court has interpreted ORS 131.615 not to be applicable to roadblocks for criminal violations. In State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980), this court was called upon to determine whether ORS 131.615 applied to so-called “game checkpoint stops.” This court held that it did not apply, explaining,

“[T]he language of ORS 131.615 limits its application to investigations of crime where reasonable suspicion of criminal activity has focused upon a particular individual. Checkpoint stops, or any other stop where there is no individualized suspicion of criminal activity, do not fall within this language.” 289 Or at 853 (emphasis supplied).

¶10Arguably, this statement in Tourtillott was too broad. It is certainly true that there are circumstances in which an officer may stop a car without individualized suspicion. For example, as suggested in Tourtillott itself,

“[an officer] may stop a motorist to warn of a washout ahead and learn, by looking into the car, of evidence leading to the arrest of the driver or an occupant … Id.

¶11Or, as Attorney General Frohnmayer argued in the present cases:

“[I]n police work every day there are benign stops, where there is a police officer telling a person that a dog has jumped out of the back of his pickup at the last intersection, to a *137police officer stopping because there is a wreck ahead, hazardous spills on the highway, escaped fugitives, hostages or kidnap victims.”

¶12But what of circumstances in which the officer stops the car precisely because he hopes to find evidence of a crime? If writing on a clean slate, I would think ORS 131.615 applies to all such cases. The existence of individualized suspicion thus becomes a part of the analysis under the statute, not the basis on which the statute is either applied or ignored. But stare decisis prevents our modifying the language in Tourtillott construing ORS 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.

¶132. The Search was Unlawful under the Oregon Constitution

¶14Because the foregoing statutory analysis does not render roadblocks illegal per se, I address the constitutional question.

¶15The state argues that the constitutional permissibility of roadblock stops was established in State v. Tourtillott, supra, 289 Or at 853-59.1 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.

¶16While 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 *138unconstitutional. I would affirm the Court of Appeals on this basis.2