State v. Hammond

¶1Defendant appeals his conviction for driving while suspended. ORS 811.175. He assigns as error the trial court’s denial of his motion to suppress. We affirm.

¶2These facts are undisputed and are substantially incorporated in the court’s findings. On July 31,1987, Officer Anderson of the Fish and Game Division of the Oregon State Police was at a public boat ramp on the Santiam River. It was his practice to check anglers to determine whether they were properly licensed. He had parked his police vehicle near the ramp. He approached defendant, who was loading a boat onto a trailer attached to a truck with Washington state plates. Anderson asked defendant whether he had been fishing. Defendant stated that he had, and Anderson asked to see his license.1 Defendant showed him a resident fishing license that stated that he had been an Oregon resident for eight months.2 Anderson became suspicious about the validity of the license because of the out-of-state plates. He arranged over the radio in his vehicle for a call to be placed to the residence listed on the fishing license. The court did not find whether Anderson retained the license during the inquiry. Defendant continued to load his boat onto the trailer. Anderson learned over the radio that defendant had lived at the residence for only a week or two.

¶3When defendant had finished loading his boat, Anderson saw him drive off the ramp to where Anderson was parked. He told defendant that he intended to cite him for a *296false application for a fishing license. Although the court did not make a finding on this point, defendant stated that he had just moved back to Oregon and did not realize that he was not supposed to have a resident license. While preparing the citation, Anderson asked whether he still had an Oregon driver’s license. Defendant replied that he did not, and Anderson made an inquiry over the radio to the Department of Motor Vehicles. Before Anderson received a response, defendant told him that he would find that his driver’s license had been suspended. The radio check confirmed that, and Anderson cited defendant for driving while suspended, leading to the conviction from which he now appeals.

¶4Defendant moved to suppress “all evidence in this case obtained through and subsequent to the stop of the defendant by a police officer on or about July 31,1987.” He argued that Anderson lacked reasonable suspicion necessary to support a stop,3 that the stop was without basis in statutory authority or administrative rule and that it violated Article I, section 9. He asserts that the court erred when it ruled that there was not a stop.

¶5A “stop” occurs when a police officer uses physical force or a show of authority to restrain a person’s liberty. ORS 131.605(5); State v. Kennedy, 290 Or 493, 498, 624 P2d 99 (1981); State v. Warner, 284 Or 147, 162, 585 P2d 681 (1978). “A person is ‘restrained’ when, in view of all of the circumstances, a reasonable person would have believed that he was not free to leave.” State v. Starr, 91 Or App 267, 270, 754 P2d 618 (1988). At the ramp, Anderson asked defendant whether he had been fishing. He then asked to see defendant’s fishing *297license. A police officer’s request to see, and subsequent retention of, a person’s driver’s license is sufficient to cause a reasonable person to believe that he is not free to leave. State v. Starr, 91 Or App 267, 270, 754 P2d 618 (1988). Even if Anderson had retained the fishing license, defendant would have been free to leave. Unlike a driver’s license, a person does not need a fishing license to drive away. Anderson’s actions at the ramp did not constitute a restraint of defendant’s liberty that would cause a reasonable person to believe that he was not free to leave. It was not a stop.4

¶6Anderson did stop defendant when, after defendant drove from the ramp to Anderson’s location, he cited him for a false application for a fishing license. At that time, however, Anderson had a reasonable suspicion that defendant had violated the wildlife laws by making a false statement on his application. ORS 497.400(3); ORS 496.992(1). The stop did not violate ORS 131.605 et seq or Article I, section 9.

¶7Affirmed.