State v. Jensen , 102 Or. App. 323 ( 1990 )

BUTTLER, P. J.,

specially concurring.

The lead opinion decides a case that was not argued in the trial court. Defendant, in his motion to suppress, argued that he was stopped by the officer when he pulled over to the curb after the officer had followed closely behind him for several blocks. The state conceded that a stop occurred at that time but argued that the officer had a reasonable suspicion that defendant had committed the crime of theft.

The trial court, therefore, was not asked to decide when the stop occurred; it was asked only to decide whether the stop was supported by a reasonable suspicion. It found that it was. The evidence supports that finding. Although I might disagree with the parties and the trial court that a stop occurred at that time, the trial court did not err in concluding that the conceded stop was supported by a reasonable suspicion.

Contrary to the concurring opinion, I find no concession by defendant that, if there was a lawful stop, he loses.¹ Rather, defendant argues that, if the stop found by the trial court was valid, the officer exceeded the scope of his authority following the stop. In that, defendant is wrong. Immediately following the stop, the officer asked defendant for his driver’s license; defendant could not produce it or provide any identification. At that point, the officer had probable cause to believe that defendant had violated ORS 807.570 and was authorized to detain him as long as reasonably necessary to verify his identity. ORS 807.570(4). Apparently, before defendant’s identity was verified, the officer, still acting on a reasonable suspicion that defendant had committed theft, asked defendant if he could search his car. Defendant consented.

Defendant does not contend that the officer did not have authority to request his consent to search. He argues only that his consent was involuntary under the circumstances. It was not.

Accordingly, I would affirm for the same reasons given by the trial court.

1 At oral argument, most of the discussion related to the state’s new-found position that the stop did not occur until defendant admitted that he had no identification and Larkin had asked him to sit in the patrol car. Defendant’s attorney, in response to a question, said that if the stop was valid, he loses. The concurring opinion apparently interprets that to refer to the “stop” found by the lead opinion; I do not, because defendant’s position has been consistent that the stop occurred when he pulled his car over to the curb, as the state and he agreed in the trial court.