State v. Fairley , 282 Or. 689 ( 1978 )

580 P.2d 179 (1978) 282 Or. 689

STATE of Oregon, Respondent,
v.
James Clifton FAIRLEY, Petitioner.

Supreme Court of Oregon, In Banc.

Submitted on Petition for Review April 20, 1978. Decided June 20, 1978.

Marianne Oswald, Deputy Public Defender, and Gary D. Babcock, Public Defender, Salem, for petitioner.

Catherine Allan, Asst. Atty. Gen., James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem, contra.

MEMORANDUM OPINION.

The opinion of the Court of Appeals, 33 Or. App. 271, 576 P.2d 38 (1978), is reversed for failure to suppress evidence seized in violation of ORS 131.625. State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977). There was insufficient evidence of danger to the police officer who made the seizure to justify failure to satisfy the statute.

The case is remanded with instructions to suppress the seized evidence.

TONGUE, Justice, dissenting.

I most respectfully dissent for the same reasons as stated in my dissenting opinion in State v. Valdez, 277 Or. 621, 629, 561 P.2d 1006 (1977), and because, in my opinion, the facts of this case are different than those in Valdez.

I am authorized to say that HOWELL, J., and BRYSON, J., concur in this dissent.