Chapter 131

 

      131.005

 

      See also annotations under ORS 133.010 in permanent edition.

 

NOTES OF DECISIONS

 

      Misdemeanors may be charged in circuit court pursuant to this section. State v. Jones, 30 Or App 873, 569 P2d 19 (1977), Sup Ct review denied

 

      Phrase “as otherwise authorized by law” applies specifically to an information charging a felony, which is authorized only if constitutional provisions are satisfied. State v. Jones, 30 Or App 873, 569 P2d 19 (1977), Sup Ct review denied

 

      Uniform traffic citation and complaint is “complaint” within meaning of this section. State v. Riggs, 35 Or App 571, 582 P2d 457 (1978), Sup Ct review denied

 

      Extradition case is “criminal proceeding” as defined by this section. State ex rel Roby v. Mason, 284 Or 427, 587 P2d 94 (1978)

 

      Where district attorney did not sign complaint in criminal action as statute requires, technical violation is inconsequential because prosecution of complaint to guilty verdict shows district attorney did not regard complaint as frivolous. State v. Holdner, 96 Or App 445, 772 P2d 1382 (1989), Sup Ct review denied

 

      Officer had probable cause to arrest defendant for unlawful entry of vehicle because defendant’s suspicious behavior, defendant’s inability to establish connection between defendant and car, defendant’s failure to identify person she was supposedly waiting for and officer’s knowledge of recent car prowls provided substantial objective basis for believing it was more likely than not defendant had committed crime. State v. Codr, 99 Or App 417, 782 P2d 442 (1989)

 

      Type of bag, bag’s obvious weight and sound made when bag was dropped gave officer probable cause to arrest defendant for carrying concealed weapon. State v. Anfield, 313 Or 554, 836 P2d 1337 (1992)

 

      Where officers observed what appeared to be drug deal, there was probable cause for arrest, not merely investigatory stop. State v. Mendoza, 123 Or App 237, 858 P2d 1350 (1993)

 

      1997 amendment of definition for “criminal action,” deleting reference to being tried for offense, is intended to allow collection of fees in criminal actions not concluded by trial and does not expand term to include proceedings other than those before trial court. State v. Meyers, 153 Or App 551, 958 P2d 187 (1998)

 

      To establish probable cause, state only needs to prove that, more likely than not, defendant had requisite mental state to commit crime. State v. Rayburn, 246 Or App 486, 266 P3d 156 (2011), Sup Ct review denied

 

LAW REVIEW CITATIONS: 7 WLJ 456 (1971)

 

      131.025

 

      See annotations under ORS 131.020 in permanent edition.

 

      131.035

 

      See annotations under ORS 131.030 in permanent edition.

 

      131.105 to 131.155

 

NOTES OF DECISIONS

 

      For purposes of time limitations, “prosecution” refers to criminal action itself rather than filing of accusatory instrument. Abbott v. Baldwin, 178 Or App 289, 36 P3d 516 (2001), Sup Ct review denied

 

      131.125

 

      See also annotations under ORS 131.110 in permanent edition.

 

NOTES OF DECISIONS

 

      Where warrant for defendant’s arrest for unlawfully obtaining public assistance was executed three years and four months from date of alleged offense and state offered no reason for delay, indictment should have been dismissed. State v. Barnes, 66 Or App 896, 676 P2d 344 (1984)

 

      Indictment containing two dates on which purportedly returned, one inside and one outside statute of limitations, does not satisfy statutory requirement that indictment show prosecution was commenced within period of limitation. State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), Sup Ct review denied

 

      Where defendant pleaded no contest to and was convicted of driving under influence of intoxicants in 1980 and in 1986 sought and was awarded post-conviction relief from that judgment, state’s subsequent decision to continue prosecution was not barred by statute of limitations. State v. Sisneros, 84 Or App 306, 734 P2d 355 (1987), Sup Ct review denied

 

      This section barred prosecution for theft completed more than three years before commencement of prosecution where state produced no evidence that defendant retained some form of interest in or control over the stolen property after possession was given to third-party purchaser, even though final payment was made by third party within three years of filing information. State v. Bailey, 94 Or App 767, 767 P2d 114 (1989)

 

      Where Oregon State Bar complained to court in 1985 and 1987 that defendant was violating injunction for unauthorized practice of law by activities beginning in 1981, some of Bar’s complaints may have been barred by laches since two years is presumptively reasonable period for initiating criminal contempt action for violations of court order. Oregon State Bar v. Wright, 309 Or 37, 785 P2d 340 (1990)

 

      1989 amendments that extended statute of limitations from three to six years for certain offenses did not operate retroactively to revive cases barred from prosecution by operation of prior law. State v. Tyler, 108 Or App 378, 815 P2d 1289 (1991); State v. Cookman, 127 Or App 283, 873 P2d 335 (1994), aff’d 324 Or 19, 920 P2d 1086 (1996)

 

      Amendment of this section that extended statute of limitations for certain misdemeanors from two to four years did not violate constitutional prohibition against ex post facto laws when applied to case where two-year period of limitations had not yet expired upon effective date of amendment. State v. Dufort, 111 Or App 515, 827 P2d 192 (1992)

 

      Listing of sexual offense by both description and current ORS number makes described offense charged under former ORS number subject to same statute of limitations as if charged under current ORS number. State v. Sharp, 151 Or App 122, 949 P2d 1230 (1997), Sup Ct review denied

 

      Reporting of offense does not occur until actual communication, through oral or written narration, of facts that form basis for offense. State v. Hutchison, 176 Or App 363, 31 P3d 1123 (2001); State v. Eladem, 290 Or App 212, 414 P3d 426 (2018)

 

      “Other governmental agency” means agency with investigative responsibility or having statutory duty to report sexual offense to agency with investigative responsibility. State v. Walker, 192 Or App 535, 86 P3d 690 (2004), Sup Ct review denied

 

      Where statute of limitations is extended before statute of limitations applicable at time of offense has expired, application of extended statute of limitations to offense does not constitute ex post facto law. State v. Harberts, 198 Or App 546, 108 P3d 1201 (2005), Sup Ct review denied

 

      Extended limitation period for commencing prosecution based on misconduct in office by public officer or employee applies only where limitation period under catch-all provision has expired. State v. Tannehill, 341 Or 205, 141 P3d 584 (2006)

 

      General three-year limitation period for charging felony applies to charge of attempted rape. Lamb v. Coursey, 238 Or App 647, 243 P3d 130 (2010), Sup Ct review denied

 

      131.135

 

      See also annotations under ORS 131.130 in permanent edition.

 

NOTES OF DECISIONS

 

      Where warrant for defendant’s arrest for unlawfully obtaining public assistance was executed three years and four months from date of alleged offense and state offered no reason for delay, indictment should have been dismissed. State v. Barnes, 66 Or App 896, 676 P2d 344 (1984)

 

      Indictment containing two dates on which purportedly returned, one inside and one outside Statute of Limitations, does not satisfy statutory requirement that indictment show prosecution was commenced within period of limitation. State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), Sup Ct review denied

 

      Where warrant was served on defendant two years and eight months after indictment was returned but defendant made no claim of prejudice based on oppressive pretrial incarceration, anxiety and concern, or impairment of ability to defend, trial court properly denied motion to dismiss indictment on basis of unreasonable delay. State v. Chinn, 115 Or App 662, 840 P2d 92 (1992)

 

      For purposes of time limitations, “prosecution” refers to criminal action itself rather than filing of accusatory instrument. Abbott v. Baldwin, 178 Or App 289, 36 P3d 516 (2001), Sup Ct review denied

 

      Where matter was resubmitted to grand jury and new indictment was issued under different case number prior to dismissal of identical earlier indictment, new indictment did not relate back to dismissed indictment. Abbott v. Baldwin, 178 Or App 289, 36 P3d 516 (2001), Sup Ct review denied

 

      Requirement that warrant be executed without unreasonable delay does not apply to probation violation proceeding. State v. Lindquist, 192 Or App 498, 86 P3d 103 (2004)

 

      For purposes of time limitations, “other process” does not include filing of accusatory instrument. State v. Williams, 232 Or App 303, 222 P3d 31 (2009)

 

      Prosecution commences when warrant or other process is issued, not when defendant receives actual notice that prosecution will commence. State v. Grierson, 245 Or App 195, 261 P3d 1269 (2011)

 

      131.205 to 131.235

 

      See annotations under ORS 131.210, 131.220 and 131.240 in permanent edition.

 

      131.215

 

NOTES OF DECISIONS

 

      Solicitation in Oregon of commission of offense in another jurisdiction is punishable under solicitation statutes if crime solicited is also offense in Oregon. State v. Self, 75 Or App 230, 706 P2d 975 (1985)

 

      131.305

 

      See also annotations under ORS 131.310 in permanent edition.

 

NOTES OF DECISIONS

 

      When an indictment charges that a criminal agreement was made in a certain county, a conviction cannot rest on proof that the agreement was made in a different county and only subsequent acts in pursuance of the agreement occurred in the county where the making of the agreement is alleged. State v. Roper, 286 Or 621, 595 P2d 1247 (1979)

 

      Where defendant escaped from confinement in work camp located in Tillamook County, venue was proper only in that county and prosecuting defendant in Marion County, where he had been confined prior to transfer, was improper. State v. Dillenburg, 49 Or App 911, 621 P2d 1193 (1980)

 

      Where traffic offense of DUII was prosecuted as misdemeanor for conviction of same offense within 5 years, thus creating a criminal prosecution, defendant had absolute right under Oregon Constitution Article I, Section 11 to change of venue to county where offense was committed. State v. Camp, 53 Or App 599, 633 P2d 12 (1981)

 

      Place of trial is established by statute and objections to place of trial are waived unless raised in trial court. State v. Jasper, 89 Or App 572, 750 P2d 498 (1988)

 

      Where record showed that judge heard answer establishing venue, inaudible nature of answer on tape recording of testimony did not require overturning conviction. State v. Post, 126 Or App 446, 868 P2d 1366 (1994), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 105 (1973)

 

      131.315

 

      See also annotations under ORS 131.340, 131.350, 131.360 and 131.370 in permanent edition.

 

NOTES OF DECISIONS

 

      Charging of entire criminal act in county where some events of criminal act occurred does not violate Article I, section 11. State v. Johnson, 6 Or App 195, 487 P2d 115 (1971), Sup Ct review denied

 

      Venue may be laid in county either in which conduct constituting a crime occurred, or in which the results of the alleged act were intended to occur. State v. Hall, 26 Or App 17, 552 P2d 272 (1976)

 

      When an indictment charges that a criminal agreement was made in a certain county, a conviction cannot rest on proof that the agreement was made in a different county and only subsequent acts in pursuance of the agreement occurred in the county where the making of the agreement is alleged. State v. Roper, 286 Or 621, 595 P2d 1247 (1979)

 

      Where jury was entitled to infer from evidence that defendant who was charged with rape in first degree subjected victims to “forcible compulsion,” one element of charged crime in or within one mile of Multnomah County, Multnomah County trial court did not err in rejecting defendant’s lack of venue argument and denying his motion or judgment of acquittal. State v. Sanarrita, 102 Or App 349, 794 P2d 457 (1990)

 

      Legislature may properly specify location of county boundaries for judicial purposes and provision of this section relating to venue of offense committed on boundary of two or more counties or within one mile thereof is constitutional. State v. McCown, 113 Or App 627, 833 P2d 1321 (1992), Sup Ct review denied

 

      As used in this section, “theft” does not include identity theft and therefore did not provide basis for venue in Multnomah County for prosecution of Clackamas County identity-theft charges where evidence showed that defendant stole personal identification of others from lockers in Clackamas County and those items of personal identification were recovered from defendant’s residence in Multnomah County. State v. Berndt, 282 Or App 73, 386 P3d 196 (2016), Sup Ct review denied

 

      131.325

 

NOTES OF DECISIONS

 

      Alternative venue provided by this section does not violate Article I, section 11 of Oregon Constitution. State v. Rose, 117 Or App 270, 844 P2d 194 (1992), Sup Ct review denied

 

      131.345

 

      See annotations under ORS 131.430 in permanent edition.

 

      131.355

 

NOTES OF DECISIONS

 

      Where there was no evidence, nor any suggestion, that trial was media circus such as would have prevented fair trial, denial of motion to change venue based on argument of prejudicial pretrial publicity was not abuse of trial court’s discretion. State v. Rogers, 313 Or 356, 836 P2d 1308 (1992)

 

      Where four jurors recalled reading newspaper articles about defendant but did not recall much detail from articles and jurors stated they could decide case based on evidence at trial and defendant passed each juror for cause and did not exhaust peremptory challenges, defendant obtained fair and impartial trial. State v. Langley, 314 Or 247, 839 P2d 692 (1992), on reconsideration 318 Or 28, 861 P2d 1012 (1993)

 

      131.375

 

      See annotations under ORS 131.430 in permanent edition.

 

      131.385

 

      See annotations under ORS 131.440 in permanent edition.

 

      131.395

 

      See annotations under ORS 131.450 in permanent edition.

 

      131.505 to 131.535

 

NOTES OF DECISIONS

 

      Defendant’s motion to dismiss the charge on the basis of double jeopardy after he had been tried and convicted was properly overruled since the double jeopardy clause does not attach at this stage of the proceedings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

 

      If the state must prosecute for only one charge because the defendant has voluntarily and unilaterally entered a plea of guilty on another charge, there can be no argument that the state has harassed the defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

 

      Where jury was properly instructed on theft, fact that defendant at one time misplaced or withheld property from 20 different victims was sufficient to constitute 20 separate theft offenses on each of which defendant could be sentenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

 

      Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dellman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

 

      Evidence that defendant took victim “from one place to another” for purpose of forcible rape was sufficient to support separate convictions for first degree kidnapping and rape. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

 

      Where one defendant, at same time and place, withholds property of two or more victims, there are as many offenses as there are victims; each indictment thus charges separate offense and verdict in trial of first indictment does not bar prosecutions under other indictments. State v. Gilbert, 281 Or 101, 574 P2d 313 (1978)

 

      Action charging offense and terminating in guilty plea was “prosecution for offense” for double jeopardy purposes. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

 

      Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipulation and conviction on lesser included offense, so retrial on greater offenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

 

      Where defendant fired one shot toward group of three persons, fact that he may have recklessly endangered everyone in vicinity was incidental to act of shooting one person and defendant could be sentenced for only one conviction of recklessly endangering another person in addition to sentence for assault. State v. Wilson, 64 Or App 764, 669 P2d 1179 (1983)

 

LAW REVIEW CITATIONS: 53 OLR 104 (1973); 59 OLR 346 (1980); 18 WLR 232 (1982)

 

      131.505

 

NOTES OF DECISIONS

 

      Defendant’s motion to dismiss the charge on the basis of double jeopardy after he had been tried and convicted was properly overruled since the double jeopardy clause does not attach at this stage of the proceedings. State v. Haycraft, 20 Or App 28, 530 P2d 528 (1975), Sup Ct review denied

 

      If the state must prosecute for only one charge because the defendant has voluntarily and unilaterally entered a plea of guilty on another charge, there can be no argument that the state has harassed the defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

 

      Where jury was properly instructed on theft, fact that defendant at one time misplaced or withheld property from 20 different victims was sufficient to constitute 20 separate theft offenses on each of which defendant could be sentenced. State v. Callaghan, 33 Or App 49, 576 P2d 14 (1978), Sup Ct review denied

 

      Where defendant pointed pistol at and obtained money from each of four bank tellers in succession there occurred four separate robbery offenses and defendant was properly sentenced on each conviction. State v. Dellman, 34 Or App 937, 580 P2d 567 (1978), Sup Ct review denied

 

      Evidence that defendant took victim “from one place to another” for purpose of forcible rape was sufficient to support separate convictions for first degree kidnapping and rape. State v. Strickland, 36 Or App 119, 584 P2d 310 (1978)

 

      Where one defendant, at same time and place, withholds property of two or more victims, there are as many offenses as there are victims; each indictment thus charges separate offense and verdict in trial of first indictment does not bar prosecutions under other indictments. State v. Gilbert, 281 Or 101, 574 P2d 313 (1978)

 

      Action charging offense and terminating in guilty plea was “prosecution for offense” for double jeopardy purposes. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

 

      Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipulation and conviction on lesser included offense, so retrial on greater offenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

 

      When trial court has accepted guilty plea, after informing defendant as required by statute and after determining that plea is voluntarily and intelligently made, prosecution of offense has terminated in conviction. State v. Taylor, 62 Or App 220, 660 P2d 690 (1983)

 

      Where defendant fired one shot toward group of three persons, fact that he may have recklessly endangered everyone in vicinity was incidental to act of shooting one person and defendant could be sentenced for only one conviction of recklessly endangering another person in addition to sentence for assault. State v. Wilson, 64 Or App 764, 669 P2d 1179 (1983)

 

      Where defendant filed motion to dismiss charge of possession of controlled substance contending that earlier guilty plea to firearms charge barred further prosecution because simultaneous possession of concealed weapon and controlled substance is part of “same criminal activity,” trial court did not err in denying defendant’s motion nor was it an abuse of discretion not to allow evidentiary hearing on motion to dismiss because prosecutor lacked knowledge of sufficient fact to prosecute defendant on drug charge at time defendant pleaded guilty to misdemeanor charge. State v. Lowery, 95 Or App 583, 770 P2d 923 (1989)

 

      Defendant’s refusals to testify were separate events during different types of hearings at different times and did not constitute “same offense.” State v. Nefstad, 99 Or App 12, 781 P2d 358 (1989), Sup Ct review denied

 

      Where each incident requires formation of discrete criminal objective, incidents closely linked in time, place and circumstances can comprise separate criminal episodes. State v. Sparks, 150 Or App 293, 946 P2d 314 (1997), Sup Ct review denied

 

      Where original criminal objective continues throughout duration of conduct, existence of additional criminal objective during part of conduct does not turn events closely related in time, place and circumstances into separate criminal episodes. State v. Kautz, 179 Or App 458, 39 P3d 937 (2002), Sup Ct review denied

 

      Where time, place and commonality of purpose for two offenses are intertwined such that one offense cannot be related without relating details of other offense, offenses arise out of same criminal episode. State v. Norman, 216 Or App 475, 174 P3d 598 (2007)

 

      Where defendant spanked one child then second child in turn, only one criminal episode occurred because defendant’s singular criminal objective was to spank children in one act of discipline. State v. Burns, 259 Or App 410, 314 P3d 288 (2013)

 

      Defendant, who killed first victim then killed second victim 12 hours later in order to take over victims’ drug business, committed murders in “same criminal episode.” Defendant’s acts were “continuous and uninterrupted” necessary components to achieving defendant’s overarching criminal objective. State v. Tooley, 265 Or App 30, 333 P3d 348 (2014), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 104 (1973); 59 OLR 346 (1980); 18 WLR 232 (1982); 70 OLR 112 (1991); 27 WLR 913 (1991)

 

      131.515

 

      See also annotations under ORS 135.900 in permanent edition.

 

NOTES OF DECISIONS

 

      “Same criminal episode” has same meaning as based on same transaction for purposes of charging under ORS 132.560. State v. Boyd, 271 Or 558, 533 P2d 795 (1975); State v. Shields, 280 Or 471, 571 P2d 892 (1977)

 

      When facts of each charge can be explained adequately only by drawing upon facts of the other charge, the charges are cross-related and must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

 

      Where circumstances upon which culpability rests is possession, simultaneous possession of two distinct types of contraband constitutes a unitary act or transaction with respect to which charges must be joined. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

 

      If state must prosecute for only one charge because defendant has voluntarily and unilaterally entered plea of guilty on another charge, there can be no argument that the state has harassed defendant. State v. Roach, 271 Or 764, 534 P2d 508 (1975)

 

      Where defendant opposed state’s motion to consolidate charges resulting from same conduct he waived double jeopardy protection, and two findings of guilty were properly merged into one conviction for sentencing. State v. Brissette, 31 Or App 1243, 572 P2d 1068 (1977)

 

      Guilty plea to lesser of two counts charging criminal activity in drugs, entered over objection of prosecution and with defendant’s expression of desire that state be put to its proof on other count, was express waiver of jeopardy protection as to other count. State v. Flaherty, 33 Or App 251 (1978), Sup Ct review denied

 

      Where, following dismissal of probation hearing charging violation by unlawfully possessing and controlling concealable weapon, state initiated second revocation proceeding based on conviction of being ex-convict in possession of firearm, which conviction arose from same incident alleged in first revocation proceeding, probationer was not placed in “jeopardy” because revocation proceeding is not criminal adjudication. State v. Eckley, 34 Or App 563, 579 P2d 291 (1978); State v. Maricich, 101 Or App 212, 789 P2d 701 (1990)

 

      Waiver of right to single prosecution of all charges under this section did not occur where state did not make timely motion for consolidation of charges. State v. Hagey, 38 Or App 487, 590 P2d 753 (1979)

 

      Where defendant was convicted of assault, double jeopardy barred trial on first offense of driving under influence of intoxicants ([former] ORS 487.540) arising out of same act or transaction. State v. Marquette, 39 Or App 519, 592 P2d 1062 (1979)

 

      When an indictment charges that a criminal agreement was made in a certain county, a conviction cannot rest on proof that the agreement was made in a different county and only subsequent acts in pursuance of the agreement occurred in the county where the making of the agreement is alleged. State v. Roper, 286 Or 621, 595 P2d 1247 (1979)

 

      Where jury’s inability to reach verdict was caused by bailiff’s improper remarks, defendant could not constitutionally be retried after mistrial. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

 

      Where, as result of same criminal episode, defendant was charged with violating Portland City Code and also with felony possession of controlled substance, defendant’s trial in district court on municipal ordinance offense did not bar subsequent circuit court trial on felony charge, because circuit court lacked jurisdiction to try ordinance violation. State v. Jones, 45 Or App 307, 608 P2d 572 (1980), Sup Ct review denied

 

      Where defendant was convicted of DUII in municipal court, this section did not bar subsequent circuit court prosecution for driving while suspended, arising out of same criminal transaction, because district attorney did not have control over prosecution of both offenses. State v. Ogle, 46 Or App 109, 610 P2d 1242 (1980)

 

      Where defendant, after having been put under arrest for DUII, admitted his role in burglary a few minutes earlier and about a mile and a half away, these crimes were not related to single criminal objective and separate prosecutions were not prohibited by this section. State v. Yock, 49 Or App 749, 621 P2d 592 (1980), Sup Ct review denied

 

      “Appropriate prosecutor” for purposes of preventing separate prosecution of offenses based on same criminal episode refers to district attorney of proper jurisdiction for prosecution of offense charged. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

 

      Requirement that second offense be “reasonably” known to prosecutor is designed to bar second prosecution only where sufficient evidence to prosecute second offense exists at time first offense is tried. State v. Knowles, 289 Or 813, 618 P2d 1245 (1980)

 

      State was barred by this section from prosecuting defendant on second charge, which was one of several offenses reasonably known to prosecutor at time of commencement of first prosecution, where the prosecution of second charge was delayed because state was unsuccessfully attempting to gather sufficient evidence to charge defendant with more serious offense. State v. Decoteau, 54 Or App 346, 634 P2d 832 (1981)

 

      Where state motion to consolidate charges for trial was not timely, defendant’s objection to motion on sole ground of untimeliness did not constitute waiver of defendant’s right to have all charges prosecuted in single trial and subsequent trial on charge arising out of same transaction constituted double jeopardy under this section. State v. Scovell, 54 Or App 391, 635 P2d 7 (1981), Sup Ct review denied

 

      Since reckless driving is distinct event, wholly unrelated to acts of possessing controlled substance or possessing concealed weapon, it could not constitute single criminal episode for double jeopardy purposes. State v. Paquin, 55 Or App 676, 639 P2d 694 (1982), Sup Ct review denied

 

      Where parties stipulated to the facts and defendant was convicted after trial to the court, jeopardy attached between time of fact stipulation and conviction on lesser included offense, so retrial on greater offenses was barred by former jeopardy. State v. Adams, 56 Or App 303, 641 P2d 647 (1982)

 

      Where locations of victims and objectives of homicide and kidnapping were different and there was 17-hour period between two offenses, crimes did not arise out of same episode. State v. Hunter, 58 Or App 99, 647 P2d 943 (1982), Sup Ct review denied

 

      Where deputy district attorney suspected defendant was involved in homicide, but did not feel he had sufficient evidence to go forward with prosecution until the defendant’s girlfriend came forward with evidence inculpating defendant, deputy district attorney did not reasonably know of homicide charge when defendant was indicted and convicted on first charge. State v. Hunter, 58 Or App 99, 647 P2d 943 (1982), Sup Ct review denied

 

      Trial court erred in dismissing indictment on grounds of former jeopardy where burglary, assault and criminal mischief charges in indictment and disorderly conduct charges for which defendant had been tried and convicted arose out of incidents occurring at different places and approximately forty to forty-five minutes apart, circumstances of two events were different and elements of the charges were different and details not cross-related. State v. Crumal, 62 Or App 156, 659 P2d 977 (1983)

 

      Where defendant was charged in district court with assault in the fourth degree and later was served with a uniform traffic citation in municipal court charging her with driving under the influence of intoxicants and both offenses arose out of the same episode, district court properly dismissed assault charge. State v. McGilchrist, 294 Or 473, 657 P2d 681 (1983)

 

      “Offense” under this section includes proceedings on contempt charges under [former] ORS 33.040 and thus, prosecution subsequent to contempt proceeding, for the same conduct, is barred. State v. Thompson, 294 Or 528, 659 P2d 383 (1983)

 

      Prosecution of unauthorized use of vehicle charge after defendant pleaded guilty to DUII is barred by this section where charges involved common element that defendant was driving. State v. Grant, 66 Or App 906, 675 P2d 1120 (1984)

 

      Driving under influence of intoxicants and unlawful possession of less than an ounce of marijuana do not constitute single criminal episode for purposes of statutory former jeopardy because none of elements of possession charge were necessary proof for DUII charge. State v. Williamson, 68 Or App 569, 681 P2d 1191 (1984)

 

      Where possession of cocaine charge was not reasonably known to district attorney when defendant appeared in justice court to plead guilty to criminal mischief charge and to accept diversion on DUII charge, trial on possession charge was not barred by former jeopardy. State v. Anthony, 68 Or App 718, 683 P2d 559 (1984)

 

      Where defendant pleaded guilty to misdemeanor of pointing firearm at another, subsequent prosecution for felony offense of ex-convict in possession of firearm arising from same incident is barred because burden of joinder is on state and defendant’s guilty plea did not waive double jeopardy defense. State v. Gardner, 71 Or App 590, 693 P2d 1303 (1984)

 

      Where defendant pleaded no contest to theft in first degree by deception but, before sentencing, further evidence was presented to grand jury which returned indictment charging defendant with four additional counts of theft in first degree by deception, defendant was not placed in double jeopardy under this section. State v. Blair, 75 Or App 12, 705 P2d 752 (1985), Sup Ct review denied

 

      Two deliveries of drugs separated by four-hour period are not “single criminal episode” just because agent who received drugs had initially ordered single quantity. State v. Hathaway, 82 Or App 509, 728 P2d 908 (1986), Sup Ct review denied

 

      Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant’s conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

 

      Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

 

      Where trial court granted mistrial after defense counsel proclaimed in presence of jury “the prosecution is hiding all the facts from the jury...and I’m trying to bring out the truth and nothing but the truth,” further prosecution on charge did not violate defendant’s right against twice being placed in jeopardy for same offense. State ex rel Wark v. Freerksen, 84 Or App 90, 733 P2d 100 (1987), Sup Ct review denied

 

      This section is not violated if defendant is tried in single proceeding under single accusatory instrument and is acquitted by jury of crime and then convicted by court of lesser included offense which jury cannot try. State v. Cuffee, 87 Or App 293, 742 P2d 637 (1987)

 

      Where defendants participated at restaurant in ongoing scheme to steal liquor sale proceeds from employer and thefts began in 1983 and continued until plan was discovered by employer in 1984, several felony theft and conspiracy indictments did not arise out of same criminal episode for purposes of double jeopardy statute. State v. Black/Tuttle, 89 Or App 359, 749 P2d 1185 (1988), Sup Ct review denied

 

      Defendant’s prosecution for traffic infraction did not statutorily bar prosecution for crime of driving while suspended. State v. Kambra, 93 Or App 156, 761 P2d 539 (1988), Sup Ct review denied

 

      Where defendant’s contempt sentence was based on same event as burglary charge, burglary prosecution constituted double jeopardy. State v. McIntyre, 94 Or App 240, 764 P2d 972 (1988)

 

      When defendant pleaded guilty on one count of criminally negligent homicide in indictment that contained four other counts, she waived her right to claim that subsequent trial on remaining charges constituted double jeopardy. State v. Schaffran, 95 Or App 329, 769 P2d 230 (1989)

 

      Where defendant filed motion to dismiss charge of possession of controlled substance contending that earlier guilty plea to firearms charge barred further prosecution because simultaneous possession of concealed weapon and controlled substance is part of “same criminal activity,” trial court did not err in denying defendant’s motion nor was it an abuse of discretion not to allow evidentiary hearing on motion to dismiss because prosecutor lacked knowledge of sufficient facts to prosecute defendant on drug charge at time defendant pleaded guilty to misdemeanor charge. State v. Lowery, 95 Or App 583, 770 P2d 923 (1989)

 

      Where defendant filed motion to dismiss first of two charges of driving under influence of intoxicants on ground of former jeopardy and two acts did not arise from “continuous and uninterrupted” conduct and constituted separate criminal episodes, trial court did not err in refusing to dismiss first charge. State v. Nguyen, 95 Or App 653, 771 P2d 279 (1989), Sup Ct review denied

 

      Where indictments for delivery and possession of controlled substances did not arise out of same “criminal episode,” defendant’s prior conviction for possession of controlled substance does not bar prosecution on double jeopardy grounds. State v. Smith, 95 Or App 683, 770 P2d 950 (1989), Sup Ct review denied

 

      Plea of guilty, where indictment alleged crime in May, barred subsequent prosecution where indictment alleged crime in January, when stipulated facts showed both prosecutions were for same offense. State v. Dane, 103 Or App 420, 797 P2d 1069 (1990)

 

      Where defendant resisted arrest on charge of criminal contempt for violation of restraining order, but was subsequently acquitted on criminal contempt charge, resisting arrest and violation of restraining order were not part of same criminal episode and trial court erred in allowing motion to dismiss charge of resisting arrest on ground of former jeopardy. State v. Stolz, 106 Or App 144, 806 P2d 715 (1991)

 

      No former jeopardy existed where all predicate offenses in Attorney General’s prosecution under ORS 166.720 were not included in counties’ earlier indictments. State v. Cooper, 107 Or App 183, 810 P2d 1343 (1991)

 

      Defendant’s guilty plea to theft does not bar subsequent prosecution of burglary when requirements of ORS 131.525 are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)

 

      Acquittal on indicted charge does not bar state from retrying defendant under ORS 131.525 on lesser included offense for which jury could not agree on verdict. State v. Perks, 118 Or App 336, 847 P2d 866 (1993), Sup Ct review denied

 

      Under exception provided in [former] ORS 153.585, defendant’s prosecution for traffic infraction of driving without license does not bar subsequent prosecution for crime of failure to carry or present driver license, even though both are part of same criminal episode. State v. Darlin, 122 Or App 172, 857 P2d 859 (1993)

 

      Where partially based on comments made during sentencing proceeding, determination that former jeopardy barred prosecution was not supported by appropriate record. State v. Delker, 123 Or App 129, 858 P2d 1345 (1993), Sup Ct review denied

 

      Prosecutor’s suspicion that other wrongful acts occurred did not mean that prosecutor had reasonable knowledge or that acts could have been known to prosecutor at time of first prosecution. State ex rel Juv. Dept. v. Nelson, 124 Or App 562, 863 P2d 497 (1993), Sup Ct review denied

 

      Hung jury exception in ORS 131.525 applies for all subsequent prosecutions, whether for same offense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied

 

      Finding of guilty on lesser included offense operates as acquittal only for greater inclusive offense charged in same count. State v. Warner, 200 Or App 65, 112 P3d 464 (2005), aff’d342 Or 361, 153 P3d 674 (2007)

 

      Where case is remanded for resentencing, empaneling jury to determine facts necessary to support sentence enhancement does not expose defendant to second prosecution for same offense. State v. Sawatzky, 339 Or 689, 125 P3d 722 (2005)

 

      Pretrial dismissal of charges with prejudice is not prosecution. State v. Norkeveck, 214 Or App 553, 168 P3d 265 (2007), Sup Ct review denied

 

LAW REVIEW CITATIONS: 53 OLR 101, 104, 105 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991); 27 WLR 913 (1991)

 

      131.525

 

NOTES OF DECISIONS

 

      The constitutional standard of “manifest necessity” and the statutory standard concerning impossibility to proceed without justice require at least that a trial not be terminated if any reasonable alternative action is possible under the facts of each case. State v. Embry, 19 Or App 934, 530 P2d 99 (1974)

 

      Where defense objected to continuance, unavailability of witnesses due to extraordinary circumstance could justify mistrial on basis of physical impossibility of proceeding. State v. Misten, 26 Or App 681, 554 P2d 584 (1976), Sup Ct review denied

 

      Termination of first trial of defendant because of illness of trial judge was termination for “physical necessity” under this section and did not subject defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

 

      Where jury’s inability to reach verdict was caused by bailiff’s improper remarks, this section could not be constitutionally applied to permit retrial of defendant. State v. Rathbun, 287 Or 421, 600 P2d 392 (1979)

 

      Where juror failed on voir dire to respond to question as to his ability to be impartial but later stated in camera to court and counsel that he could not impartially consider the case, juror was dismissed because of “false statement” within meaning of this section. State v. McFerron, 52 Or App 325, 628 P2d 440 (1981), Sup Ct review denied

 

      Defendant would be twice put in jeopardy if state were allowed to proceed with driving while suspended charge after defendant pleaded guilty to driving under influence of intoxicants charge because defendant’s conduct consisted of single forbidden act of driving. State v. Farley, 301 Or 668, 725 P2d 359 (1986)

 

      Where defendant appealed conviction of driving while suspended on grounds he previously had been placed in jeopardy when convicted of giving false name to police officer during same criminal episode, for constitutional purposes, giving false identification was separate offense from unlawful driving because acts did not occur simultaneously and were not in pursuit of single objective. State v. Ellison, 301 Or 676, 725 P2d 363 (1986)

 

      State is not prohibited from retrying defendant after conviction has been set aside because of procedural error in trial. State v. Mohler, 102 Or App 75, 792 P2d 1239 (1990), overruled on other grounds, 158 Or App 479, 974 P2d 783 (1999)

 

      Defendant’s guilty plea to theft does not bar subsequent prosecution of burglary when requirements of this section are met. State v. Wilson, 115 Or App 217, 836 P2d 1380 (1992)

 

      Granting defendant’s motion for judgment of acquittal during trial on sole ground that indictment did not state facts sufficient to establish crime, did not bar later prosecution. State v. Wolfs, 312 Or 646, 826 P2d 623 (1992)

 

      Where inability of jury to reach verdict is not result of prosecutorial or judicial misconduct, second prosecution does not violate double jeopardy prohibition. State v. Bannister, 118 Or App 252, 846 P2d 1189 (1993)

 

      Finding that jury has failed to reach verdict does not constitute finding that jury is unable to reach verdict as required to nullify attachment of jeopardy and permit retrial. State ex rel Turner v. Frankel, 322 Or 363, 908 P2d 293 (1995)

 

      Administrative order by presiding judge cannot deprive court of jurisdiction so as to render proceeding legally defective. State v. Allbritton, 145 Or App 373, 931 P2d 797 (1996)

 

      Failure to move to vacate prior plea of guilty or judgment waives claim of double jeopardy based on ORS 131.515. State v. Talbert, 153 Or App 594, 958 P2d 902 (1998)

 

      Exception to double jeopardy where jury is unable to reach verdict applies, even in absence of explicit finding by court, where: 1) record demonstrates jury was unable to reach verdict and further deliberation would be unavailing; 2) trial court discharges jury after confirming inability to reach verdict; and 3) record does not disclose any other plausible reason for court to discharge jury at that time. State v. O’Donnell, 192 Or App 234, 85 P3d 323 (2004)

 

      Hung jury exception applies for all subsequent prosecutions described in ORS 131.515, whether for same offense or based on new charges or theories. State v. Toste, 196 Or App 11, 100 P3d 738 (2004), Sup Ct review denied

 

LAW REVIEW CITATIONS: 27 WLR 913 (1991)

 

      131.535

 

      See also annotations under ORS 135.890 in permanent edition.

 

NOTES OF DECISIONS

 

      This section permits prosecution for two offenses arising out of the same transaction which may in fact be the same offense, if defendant is acquitted of the first charge on the ground of variance between the indictment and the proof. State v. Ayers, 16 Or App 655, 520 P2d 449 (1974), Sup Ct review denied

 

      Termination of defendant’s first trial because of the illness of the trial judge was termination for “physical necessity” under this section and did not subject the defendant to double jeopardy. State v. Cole, 286 Or 411, 595 P2d 466 (1979)

 

      Acquittal based on improper venue is analogous to one grounded on variance between accusatory instrument and proof so that reprosecution is not barred. State v. Garcia, 74 Or App 649, 704 P2d 544 (1985), Sup Ct review denied

 

      This section, in providing that acquittal on basis of variance between accusatory instrument and proof does not constitute acquittal for double jeopardy purposes, does not violate double jeopardy clauses of Oregon and federal constitutions. State v. Helander, 92 Or App 108, 758 P2d 359 (1988)

 

LAW REVIEW CITATIONS: 10 WLJ 30 (1973)

 

      131.605 to 131.625

 

NOTES OF DECISIONS

 

      Even assuming that defendant was lawfully stopped on reasonable suspicion of trafficking in narcotics, the warrantless seizure of the defendant’s bag for one hour and twenty minutes until a narcotics-sniffing dog was summoned was unlawful because these sections limit seizures in connection with a stop to dangerous or deadly weapons. State v. Dupay, 62 Or App 798, 622 P2d 736 (1983), Sup Ct review denied

 

      Exclusionary rule does not apply to evidence obtained following illegal stop when defendant, after stop, committed new crime justifying arrest. State v. Weiland, 72 Or App 25, 695 P2d 85 (1985), Sup Ct review denied

 

      131.605

 

NOTES OF DECISIONS

 

Reasonable suspicion

 

      Stop of only vehicle observed traveling in general area where crime had just occurred was reasonable. State v. Jones, 23 Or App 706, 543 P2d 1103 (1975); State v. Teal, 94 Or App 381, 765 P2d 827 (1988); State v. Nguyen, 176 Or App 258, 31 P3d 489 (2001)

 

      Where anonymous informant reported, inter alia, that operator of yellow Ford pickup had nearly forced him off road, had appeared very intoxicated and had pulled rifle on him during dispute, officer had requisite “reasonable suspicion” to detain driver; overruling State v. Caproni, 19 Or App 789, 529 P2d 974 (1974). State v. Lindstrom, 37 Or App 513, 588 P2d 44 (1978)

 

      When police officer sighted car similar to one listed on “hot sheet,” but did not know license number of stolen vehicle, sufficient basis for stop existed. State v. Worthington, 39 Or App 775, 593 P2d 1241 (1979), Sup Ct review denied

 

      Unusually slow speed of vehicle that only partially matched description of suspect vehicle did not provide reasonable suspicion justifying stop. State v. Ponce, 43 Or App 665, 603 P2d 1243 (1979)

 

      Where police officer, parked in front of police station, heard sound of breaking glass at about 3 a.m. and soon after saw defendant’s car come down alley from police parking lot, circumstances were sufficient to arouse suspicion that crime had been committed. State v. Schedler, 47 Or App 181, 614 P2d 591 (1980), Sup Ct review denied

 

      Where police officer knew that robbery had been committed five hours before, defendant’s car matched description of car involved in robbery and defendant sought to evade officer after officer began to trail him, reasonable suspicion existed to stop defendant. State v. Armstrong, 52 Or App 161, 628 P2d 1206 (1981), Sup Ct review denied

 

      Where police report mentioned two black men fleeing scene of robbery and where officer’s intuition led him to believe vehicle and third party were also likely involved, suspects’ direction of travel together with fact that they were only observed black men in predominately white neighborhood gave rise to reasonable suspicion to stop suspects pursuant to ORS 131.615. State v. Ott, 54 Or App 309, 634 P2d 825 (1981), Sup Ct review denied

 

      Where telephone call claiming caller planned to detonate bomb was traced to telephone booth, defendant’s conduct in nearby booth was peculiar and defendant took “hard look” at area known to be location of bomb, there was reasonable suspicion justifying stop of defendant. State v. Miller, 54 Or App 323, 634 P2d 1361 (1981), Sup Ct review denied

 

      Where crime being investigated had not occurred recently, general resemblance to suspects did not give officers basis for stopping defendants. State v. Hageman, 59 Or App 96, 650 P2d 175 (1982)

 

      Where further investigation of package was limited in intensity and scope, temporary detention of package required only reasonable suspicion that package contained contraband. State v. Kosta, 75 Or App 713, 708 P2d 365 (1985), aff’d on other grounds, 304 Or 549, 748 P2d 72 (1987)

 

      Stop of defendant was not based on reasonable suspicion where store was robbed by black man who fled on foot and three minutes later, on way to robbery scene in predominantly white area, officer met car occupied by two black men traveling in opposite direction and where as car approached, passenger turned head away from officer. State v. Hunter, 86 Or App 697, 740 P2d 234 (1987)

 

      In absence of any evidence of criminal activity, furtive gestures provide no basis for stop. State v. Butkovich, 87 Or App 587, 743 P2d 752 (1987), Sup Ct review denied; State v. Moya, 97 Or App 375, 775 P2d 927 (1989)

 

      Car’s “jerking back and forth” on highway supported reasonable suspicion that driver was influenced by intoxicants. State v. Wright, 94 Or App 468, 765 P2d 1251 (1988), Sup Ct review denied

 

      Officers lacked “reasonable suspicion” at time of stop where defendant was merely walking down street at night in “high crime” neighborhood carrying bag. State v. Anfield, 95 Or App 568, 770 P2d 919 (1989)

 

      Police had reasonable suspicion that defendant had committed crime of entering vehicle without consent of owner where security officers told police defendant had been working under dashboard of car with flashlight and there had been number of car prowls in that area, including one that day. State v. Codr, 99 Or App 417, 782 P2d 442 (1989)

 

      Citizen reporting crime is not required to be ambivalent about arrest of suspect in order for officer receiving report to have reasonable suspicion. State v. Shumway, 124 Or App 131, 861 P2d 384 (1993), Sup Ct review denied

 

      Whether officer had subjective reasonable suspicion may be inferred from conduct without direct testimony by officer regarding suspicion. State v. Belt, 137 Or App 440, 905 P2d 862 (1995), aff’d 325 Or 6, 932 P2d 1177 (1997); State v. Bickford, 157 Or App 386, 970 P2d 234 (1998), Sup Ct review denied

 

When encounter is stop

 

      Fact that police officer approached defendant’s vehicle in public parking lot and spoke to defendant did not constitute “stop,” and thus officer’s view into defendant’s car was from “lawful vantage” at time he observed marijuana in plain view on defendant’s floorboard. State v. Porter, 31 Or App 229, 570 P2d 111 (1977), Sup Ct review denied; State v. Porter, 38 Or App 169, 589 P2d 1156 (1979)

 

      Where police officer identified himself to defendant, showed his badge, and asked to speak with defendant, there was temporary restraint on defendant’s liberty constituting a “stop.” State v. Wilson, 31 Or App 783, 571 P2d 554 (1977), Sup Ct review denied

 

      Where officer prevented defendant and companion from leaving tavern and “asked” defendant to put ID on table, this constituted “stop” within meaning of this section. State v. Warner, 284 Or 147, 585 P2d 681 (1978)

 

      Where police officer parked patrol car in such position that defendant would have to maneuver around patrol car in order to depart, action of officer in so parking car did not restrain defendant’s liberty. State v. Porter, 38 Or App 169, 589 P2d 1156 (1979)

 

      Where off-duty state trooper stopped and questioned driver who was driving erratically, and where he was acting in capacity of citizen, there was no stop within meaning of this section. State v. Chaput, 43 Or App 831, 604 P2d 435 (1979)

 

      Where two uniformed police officers approached defendant from their marked patrol car, inquired as to his reason for being in area, asked for identification, and told him he resembled burglary suspect, defendant’s encounter with police constituted stop. State v. Canape, 46 Or App 453, 611 P2d 1190 (1980)

 

      Where officer following defendant’s vehicle did not have overhead lights on, defendant voluntarily pulled over, officer pulled up next to defendant and walked to his car in response to conversation initiated by defendant, encounter was not stop. State v. Spenst, 62 Or App 755, 662 P2d 5 (1983), Sup Ct review denied

 

      Where police officer had decided to restrain defendant’s liberty temporarily, not merely to ask him some preliminary questions with defendant free to leave if he chose, encounter that followed was stop, even though officer’s intent had not been communicated to defendant. State v. Goaid, 68 Or App 904, 683 P2d 129 (1984)

 

      Encounter was not “stop” where defendant, at his van in parking lot, agreed to talk to officers, who made no effort to restrain his freedom of movement and told him, when asked, that he was free to leave. State v. North, 72 Or App 1, 694 P2d 990 (1985), Sup Ct review denied

 

      Turning on patrol car overhead lights does not necessarily transform encounter into stop. State v. Dubois, 75 Or App 394, 706 P2d 588 (1985)

 

      Distinguishing feature of “stop” is that person’s liberty is restrained by either physical force or show of authority. State v. Hasan, 93 Or App 142, 760 P2d 1377 (1988)

 

      Where officer followed defendant into parking lot and made contact as defendant was getting out of car, officer did not restrain defendant’s liberty by approaching defendant’s car and speaking to him. State v. Eisenbarth, 93 Or App 384, 762 P2d 343 (1988)

 

      Officer’s request that defendant come out from behind bush and walk 15 feet to where officer was standing was show of authority that converted conversation into “stop.” State v. Johnson, 105 Or App 587, 805 P2d 747 (1991)

 

      Officer’s conduct did not constitute “stop” where officer approached defendant and asked defendant for hunting and driver licenses and defendant admitted that driver license was suspended. State v. Lunow, 114 Or App 239, 835 P2d 129 (1992), Sup Ct review denied

 

      Officer did not conduct stop when defendant pulled vehicle into his driveway, officer pulled in behind defendant but did not use car’s overhead lights or restrain defendant either by force or show of authority, and defendant got out of car, approached officer and initiated conversation. State v. Norman, 114 Or App 395, 835 P2d 146 (1992)

 

      Where defendant pulled onto shoulder of highway at place posted for emergency parking and police officer pulled in behind defendant to offer assistance, contact was not stop until officer acquired reason to inquire into defendant’s sobriety. State v. Miller, 120 Or App 349, 852 P2d 895 (1993)

 

      Officer’s approach of parked vehicle and request for identification did not constitute stop. State v. Gilmore, 123 Or App 594, 860 P2d 882 (1993), Sup Ct review denied; State v. Warner, 136 Or App 475, 901 P2d 940 (1995)

 

      Where school official’s action extends beyond restraint and investigation justified by compulsory attendance laws, stop requiring reasonable suspicion occurs. State ex rel Juvenile Dept. v. Rohlffs, 147 Or App 565, 938 P2d 768 (1997)

 

      Encounter becomes stop when restraint or interference with citizen freedom of movement is significantly out of ordinary. State v. Blair/Vanis, 171 Or App 162, 14 P3d 660 (2000), Sup Ct review denied

 

      Police officer’s physical restraint of person does not convert stop into arrest. State v. McKinney, 174 Or App 47, 23 P3d 386 (2001), Sup Ct review denied

 

      Where suspect is not handcuffed, restraint on suspect’s liberty consistent with officer’s need to control scene during investigation does not convert stop into arrest. State v. Werowinski, 179 Or App 522, 40 P3d 545 (2002), Sup Ct review denied

 

      Where person displays identification to officer, but officer is not in possession of identification, no stop has occurred. State v. Cohan, 227 Or App 63, 204 P3d 816 (2009), Sup Ct review denied

 

Frisks

 

      Where officers were told defendant carried gun, but not what type of gun, stop and frisk for concealed weapon was reasonable. State v. Bowcutt, 62 Or App 591, 661 P2d 565 (1983), Sup Ct review denied

 

      Where police officer would have discovered box even if he had not lifted defendant’s shirt, method of search used was not overly intrusive. State v. Bechtold, 99 Or App 593, 783 P2d 1008 (1989), Sup Ct review denied

 

      131.615

 

NOTES OF DECISIONS

 

In general

 

      Law enforcement officers have justification for temporarily seizing or stopping person to conduct investigation if officer’s activities are reasonably related to investigation and reasonably necessary to effectuate investigation. State v. Watson, 353 Or 768, 305 P3d 94 (2013)

 

Reasonable suspicion

 

      In general

 

      Where officer knows crime has been committed, question becomes whether reasonable possibility exists that person observed is connected to that crime, so factors that would otherwise be of marginal significance may justify stop. State v. Denny, 27 Or App 455, 566 P2d 719 (1976); State v. Ott, 54 Or App 309, 634 P2d 825 (1981), Sup Ct review denied; State v. Richards, 57 Or App 140, 643 P2d 1348 (1982)

 

      A stop must be justified by facts suggesting criminal activity which can be objectively evaluated apart from police instinct. State v. Valdez, 277 Or 621, 561 P2d 1006 (1977); State v. Carter/Dawson, 34 Or App 21, 578 P2d 790 (1978), aff’d 287 Or 479, 600 P2d 873 (1979); State v. Hoggans, 35 Or App 669, 582 P2d 466 (1978); State v. Scott, 59 Or App 220, 650 P2d 985 (1982); State v. Lichty, 313 Or 579, 835 P2d 904 (1992)

 

      Officer’s subjective suspicion concerning occupants of automobile does not invalidate stop based on objectively identifiable traffic violation. State v. Carter/Dawson, 34 Or App 21, 578 P2d 790 (1978), aff’d 287 Or 479, 600 P2d 873 (1979); State v. Tucker, 286 Or 485, 595 P2d 1364 (1979); State v. Zimmerlee, 45 Or App 107, 607 P2d 982 (1980), Sup Ct review denied; State v. Kolendar, 100 Or App 319, 786 P2d 199 (1990), Sup Ct review denied

 

      Where police officer observed vehicle weaving within its lane and had been informed through radio check that registered owner was wanted person, fact that radio report was mistaken did not make stop invalid. State v. Perry, 39 Or App 37, 591 P2d 379 (1979)

 

      Objective basis for stop is determined by facts actually relied on by officer, not facts officer could have chosen to rely on. State v. Henry, 55 Or App 503, 638 P2d 1167 (1982), Sup Ct review denied

 

      This section requires only that officer reasonably suspect person has committed crime before making stop, not probable cause. State v. North, 72 Or App 1, 694 P2d 990 (1985), Sup Ct review denied; State v. Lichty, 313 Or 579, 835 P2d 904 (1992)

 

      Police officer may stop vehicle he sees being driven on public roadway if he has probable cause to believe that registered owner of vehicle has suspended driver license, unless driver’s observable physical characteristics put officer on notice that driver is not vehicle’s owner. State v. Wright, 85 Or App 545, 737 P2d 646 (1987); State v. Panko, 101 Or App 6, 788 P2d 1026 (1990)

 

      Stop made solely pursuant to general community caretaking function does not support use of resulting evidence in criminal trial. State v. Lumsden, 93 Or App 604, 763 P2d 194 (1988)

 

      Where male member of group had offered to sell drugs to third party while separated from group, officer did not have reasonable suspicion to believe female defendant had committed crime simply because she was part of group. State v. Manss, 99 Or App 498, 783 P2d 24 (1989)

 

      Knowledge of several police officers may collectively establish reasonable suspicion that defendant has committed crime. State v. Walsh, 103 Or App 517, 798 P2d 262 (1990), Sup Ct review denied

 

      Officer’s conclusional statement that defendant was visibly intoxicated was sufficient communication of articulable facts supporting stop. State v. Wright, 112 Or App 567, 829 P2d 93 (1992), aff’d 315 Or 124, 843 P2d 436 (1992)

 

      Traffic infraction is not required for officer to have reasonable suspicion that driver is impaired. State v. Sulser, 127 Or App 45, 871 P2d 126 (1994)

 

      Whether officer had subjective reasonable suspicion may be inferred from conduct without direct testimony by officer regarding suspicion. State v. Belt, 137 Or App 440, 905 P2d 862 (1995), aff’d 325 Or 6, 932 P2d 1177 (1997); State v. Bickford, 157 Or App 386, 970 P2d 234 (1998), Sup Ct review denied

 

      Level of suspicion for making stop and level of suspicion required for expanding scope of investigation during course of traffic stop are identical. State v. Aguilar, 139 Or App 175, 912 P2d 379 (1996), Sup Ct review denied

 

      Fact that there are possible legal explanations for observed behavior does not negate reasonable suspicion of criminality. State v. Crites, 151 Or App 313, 948 P2d 757 (1997), Sup Ct review denied

 

      Whether suspicion is objectively reasonable is determined based upon totality of circumstances. State v. Hammonds/Deshler, 155 Or App 622, 964 P2d 1094 (1998)

 

      Questioning during lawful stop on matter unrelated to basis for stop does not require independent reasonable suspicion regarding unrelated matter. State v. Hendon, 222 Or App 97, 194 P3d 149 (2008)

 

      Based on tips or citizen reports

 

      Informant’s tip, parts of which were extrinsically corroborated, was sufficient to establish reasonable basis for suspicion that crime had been committed, so as to permit lawful stop. State v. Wilson, 31 Or App 783, 571 P2d 554 (1977), Sup Ct review denied

 

      Where anonymous informant reported, inter alia, that operator of yellow Ford pickup had nearly forced him off road, had appeared very intoxicated and had pulled rifle on him during dispute, officer had requisite “reasonable suspicion” to detain driver; overruling State v. Caproni, 19 Or App 789, 529 P2d 974 (1974). State v. Lindstrom, 37 Or App 513, 588 P2d 44 (1978)

 

      Where fish and game officer received information one week before stop that there had been illegal deer kills in area sometime in past and this information did not relate to specific persons or vehicles stopped, stop was improper under this section. State v. Odam, 40 Or App 551, 595 P2d 1277 (1979), aff’d 290 Or 160, 619 P2d 647 (1980)

 

      Anonymous tip that defendant was engaged in illegal fishing activities each night gave police reasonable suspicion to stop his truck. State v. Dickenson, 43 Or App 1023, 607 P2d 754 (1979)

 

      Anonymous tip possessing no indicia of reliability was not sufficient basis for police officer’s stop of defendant’s car on suspicion defendant had committed crime. State v. Black, 80 Or App 12, 721 P2d 842 (1986); State v. Tibbet, 96 Or App 116, 771 P2d 654 (1989)

 

      Tip from named citizen informant has sufficient indicia of reliability to support stop. State v. Faulkner, 89 Or App 120, 747 P2d 1011 (1987); State v. Lichty, 313 Or 579, 835 P2d 904 (1992)

 

      Where children told officer they thought van was following them, officer’s stop of van was illegal as information obtained from children was insufficient to give rise to reasonable suspicion defendant had committed crime. State v. Hyder, 90 Or App 317, 752 P2d 327 (1988)

 

      Whether unidentified informant’s tip gives rise to reasonable suspicion that someone has committed crime depends upon particular circumstances surrounding informant’s contact with police. State v. Vanness, 99 Or App 120, 781 P2d 391 (1989)

 

      Named citizen informant’s conclusional statement that bag of cocaine fell out of wallet was shorthand relation of objective observations upon which officer could rely to form reasonable suspicion substance was cocaine. State v. Lichty, 313 Or 579, 835 P2d 904 (1992)

 

      Based on presence in area

 

      Stop of only vehicle observed traveling in general area where crime had just occurred was reasonable. State v. Jones, 23 Or App 706, 543 P2d 1103 (1975); State v. Teal, 94 Or App 381, 765 P2d 827 (1988); State v. Nguyen, 176 Or App 258, 31 P3d 489 (2001)

 

      Notwithstanding that defendant was walking in area of high vice activity and talking to known prostitute, stop of defendant for suspicion of attempted prostitution was not reasonable. State v. Brown, 31 Or App 501, 570 P2d 1001 (1977)

 

      Where officer received police dispatch that burglary had been committed in last half hour within approximately three miles of place officer observed defendant’s car, and car was driven evasively, there was justification for officer to reasonably suspect criminal activity. State v. Bartosz, 34 Or App 123, 578 P2d 426 (1978)

 

      Where crime had just occurred in low traffic area at late hour, stop of nearby vehicle partially matching and partially contradicting description of suspect vehicle was justified. State v. Ragsdale, 34 Or App 549, 579 P2d 286 (1978), Sup Ct review denied

 

      Where police officer was guarding mayor’s home in response to threats against mayor, defendant’s visit to neighboring house did not provide grounds to stop and frisk. State v. Gaffney, 36 Or App 105, 583 P2d 582 (1978), Sup Ct review denied

 

      Where officer heard radio report that burglary was in process at certain address, was within eighth to quarter of mile from scene, and stopped vehicle coming from general direction of burglary, reasonable suspicion standard was not met. State v. Fitzgerald, 36 Or App 473, 584 P2d 785 (1978)

 

      Where defendant was stopped in general residential area of recent series of burglaries and closely fit description of burglary suspect, officers reasonably suspected the defendant had committed burglaries. State v. Canape, 46 Or App 453, 611 P2d 1190 (1980)

 

      Where defendant parked in parking lot of automobile supply business and approached front door of building at one a.m. on Saturday morning, officer had reasonable suspicion that crime was being committed. State v. Anderson, 46 Or App 501, 612 P2d 309 (1980), Sup Ct review denied

 

      Where police officer, parked in front of police station, heard sound of breaking glass at about 3 a.m. and soon after saw defendant’s car come down alley from police parking lot, circumstances were sufficient to arouse suspicion that crime had been committed and stop was proper. State v. Schedler, 47 Or App 181, 614 P2d 591 (1980), Sup Ct review denied

 

      Where telephone call claiming caller planned to detonate bomb was traced to telephone booth, defendant’s conduct in nearby booth was peculiar and defendant took “hard look” at area known to be location of bomb, there was reasonable suspicion justifying stop of defendant. State v. Miller, 54 Or App 323, 634 P2d 1361 (1981), Sup Ct review denied

 

      Where defendant and companion were sitting in parked truck at 3:45 a.m. in deserted parking lot and no other evidence of robbery or burglary existed, though facts made it reasonable for police officers to inquire further, they did not create reasonable suspicion that defendant or companion had committed crime. State v. Messer, 71 Or App 506, 692 P2d 713 (1984)

 

      That officer was aware from prior experience and training that downtown bus mall had reputation for weapons-carrying narcotics offenders did not, in absence of additional facts related to person in question, provide reasonable suspicion to believe that person stopped for possession of less than one ounce of marijuana was armed and dangerous. State v. Baldwin, 76 Or App 723, 712 P2d 120 (1985), Sup Ct review denied

 

      Stop of defendant was not based on reasonable suspicion where store was robbed by black man who fled on foot and three minutes later, on way to robbery scene in predominantly white area, officer met car occupied by two black men traveling in opposite direction and where as car approached, passenger turned head away from officer. State v. Hunter, 86 Or App 697, 740 P2d 234 (1987)

 

      Officer did not have reasonable suspicion for stop, where defendant’s vehicle was parked in unlit driveway next to drive up window of closed restaurant. State v. Butkovich, 87 Or App 587, 743 P2d 752 (1987), Sup Ct review denied; State v. Greer, 93 Or App 409, 763 P2d 158 (1988)

 

      Insufficient basis for stop existed where defendant was parked in area containing both legitimate businesses and hotel notorious for drug trafficking, had been seen in area before and was examining something in her hands which she concealed upon confrontation by police. State v. Moya, 97 Or App 375, 775 P2d 927 (1989)

 

      Stop was supported by reasonable suspicion where defendant, who was stranger, was present in driveway of residence when usual residents appeared to be away, front door was standing open even though it was rainy day in March and defendant’s vehicle was same make as others used in similar burglaries. State v. LaFrienier, 97 Or App 672, 776 P2d 1325 (1989)

 

      Police had reasonable suspicion defendant was cultivating marijuana because he was only person seen in vicinity of marijuana patch during two-day surveillance, was there for approximately two hours and carried tool that looked like clippers, so stop was lawful. State v. Brown, 100 Or App 204, 785 P2d 790 (1990), Sup Ct review denied

 

      Based on behavior, description or other

 

      Evidence that, upon seeing marked police car behind him, driver pulled off and exchanged places with passenger, and when officer again followed car, former driver kept glancing back, was sufficient “reasonable suspicion” for stop. State v. Albertsen, 37 Or App 679, 590 P2d 615 (1978), Sup Ct review denied

 

      Where officers heard CB transmissions allegedly concerning illegal fishing between defendant and others and observed furtive conduct there was sufficient grounds for stop under this section. State v. Pratt, 41 Or App 149, 597 P2d 842 (1979), Sup Ct review denied

 

      Unusually slow speed of vehicle that only partially matched description of suspect vehicle did not provide reasonable suspicion justifying stop. State v. Ponce, 43 Or App 665, 603 P2d 1243 (1979)

 

      Where police officer knew that robbery had been committed five hours before, defendant’s car matched description of car involved in robbery and defendant sought to evade officer after officer began to trail him, reasonable suspicion existed to stop defendant. State v. Armstrong, 52 Or App 161, 628 P2d 1206 (1981), Sup Ct review denied

 

      Officer’s knowledge that serious crime, robbery at credit union, had been committed, coupled with circumstances he had observed, made it reasonable to suspect that people in automobile were connected with crime and investigatory stop was therefore proper. State v. Ott, 54 Or App 309, 634 P2d 825 (1981), Sup Ct review denied

 

      That defendant matched description of burglar fairly closely raised reasonable suspicion justifying stop, and additional fact defendant turned and ran after voluntarily agreeing to accompany officer to burglary scene gave officer probable cause to arrest. State v. Battle, 58 Or App 224, 648 P2d 411 (1982)

 

      Where crime being investigated had not occurred recently, general resemblance to suspects did not give officers basis for stopping defendants. State v. Hageman, 59 Or App 96, 650 P2d 175 (1982)

 

      Police officer had reasonable, articulable basis for stop where: 1) he had observed exchange between defendant and another person; 2) his training and experience told him that what he saw was “hand-to-hand sale” of narcotics; and 3) defendant and other person were outside restaurant that had reputation as hangout for drug dealers and users. State v. Norman, 66 Or App 443, 674 P2d 626 (1984), Sup Ct review denied

 

      Where police officers saw two cars parked next to each other in somewhat secluded area and saw defendant walk from one car to the other carrying brown paper bag with something in it, they did not have objective reasonable suspicion that would justify stopping defendant. State v. King, 67 Or App 749, 680 P2d 10 (1984)

 

      Facts that defendant was in “ratty” car in upper-income neighborhood and that defendant apparently had trouble keeping pipe lit did not give officer reason to believe defendant had committed or was committing offense of either burglary or possession of controlled substance. State v. Chambers, 69 Or App 681, 687 P2d 805 (1984)

 

      Where defendant, driving car matching description of one present at time of burglary several days before, was near scene where burglary had occurred, police had reasonable suspicion to stop defendant. State v. Martin, 71 Or App 1, 691 P2d 154 (1984)

 

      Where defendant was driving 20-25 m.p.h. in 55 m.p.h. zone and followed “drive/stop/proceed” pattern, and where police officer knew from training and experience that those two circumstances often indicate that a person is driving while intoxicated, officer had reasonable suspicion to stop defendant. State v. Ratliff, 82 Or App 479, 728 P2d 896 (1986), aff’d on other grounds, 304 Or 254, 744 P2d 247 (1987)

 

      Officer did not have reasonable suspicion to stop defendant driver because he had flushed face and watery eyes and apparently did not react to pedestrian who stepped close to defendant’s moving vehicle. State v. Kimmel, 82 Or App 486, 728 P2d 894 (1986)

 

      Police officer was justified in stopping vehicle where immediately before stop, he observed vehicle parked unattended in area that had recently experienced criminal activity and car’s description matched car suspected of being used in prior robbery. State v. Wright, 85 Or App 545, 737 P2d 646 (1987)

 

      Police officer had reasonable suspicion that defendant had committed crime of driving under influence of intoxicants given defendant’s bloodshot eyes, fatigue, his being alone in car parked on shoulder of road with engine running and lights on and with faint odor of alcohol on his breath and, therefore, officer’s stop of defendant was justified. State v. Guerricagoitia, 89 Or App 163, 747 P2d 386 (1987), Sup Ct review denied

 

      Defendant’s nervousness and fact he seemed to be sitting at odd angle did not justify reasonable belief that he had committed crime or was armed and presently dangerous. State v. Houghton, 91 Or App 71, 754 P2d 13 (1988)

 

      Where officer’s suspicion was not based only on defendant’s looking out of place in neighborhood, but also on knowledge of previous burglaries in area and on information received regarding defendant’s conduct, suspicion was reasonable. State v. Wolfe, 93 Or App 401, 763 P2d 154 (1988), Sup Ct review denied

 

      Police had reasonable suspicion that defendant had committed crime of entering vehicle without consent of owner where security officers told police defendant had been working under dashboard of car with flashlight and there had been number of car prowls in that area, including one that day. State v. Codr, 99 Or App 417, 782 P2d 442 (1989)

 

      Where officers knew vehicle used in robbery was white van with California plates and van was proceeding along possible escape route, there was reasonable suspicion to support stop. State v. Umphrey, 100 Or App 433, 786 P2d 1279 (1990), Sup Ct review denied

 

      Where officer observed defendant experiencing difficulty walking, trying to avoid being seen driving on two occasions and then driving at inappropriately slow speed, reasonable suspicion existed that defendant was driving under influence of intoxicants. State v. Nelson, 109 Or App 97, 817 P2d 1344 (1991), Sup Ct review denied

 

      Where officer observed known prostitute entering defendant’s car and woman appeared to be engaging in sexual act with defendant, officer had reasonable suspicion that defendant had violated city ordinance and had authority to stop defendant’s car to make inquiry. City of Portland v. Spangler, 109 Or App 370, 819 P2d 754 (1991)

 

      Officer’s reasonable suspicion that defendant had supplied false name was not sufficient basis for stop. State v. Olson, 116 Or App 525, 842 P2d 424 (1992)

 

      Statement by automobile occupants overheard and reported by citizen, location of automobile and behavior of occupants when police drove past gave reasonable cause for stop. State v. Jacobus, 318 Or 234, 864 P2d 861 (1993)

 

      Under collective knowledge doctrine, officer may reasonably rely on fellow officer’s direction to stop vehicle for traffic violation when fellow officer has probable cause to believe traffic violation has occured. State v. Soldahl, 331 Or 420, 15 P3d 564 (2000)

 

      Evidence of recent drug use by person who is not currently intoxicated, without more, is insufficient to create reasonable suspicion that person presently possesses drugs. State v. Holcomb, 202 Or App 73, 121 P3d 13 (2005), modified 203 Or App 35, 125 P3d 22 (2005)

 

Detention and inquiry

 

      Circumstances

 

      Where, two hours after crime, uniformed officers observed defendant, who matched crime suspect’s description, in area two miles from crime, officers’ stop of defendant and inquiry as to his activities at time of crime were investigatory in nature, and did not constitute custodial interrogation which would require advising defendant of rights prior to making inquiry. State v. Mitchell, 35 Or App 809, 583 P2d 14 (1978), Sup Ct review denied

 

      Where traffic citation could be issued and defendant gave inconsistent answers concerning identity, transporting defendant to police station to establish identity did not transform stop into arrest. State v. Tucker, 286 Or 485, 595 P2d 1364 (1979)

 

      This section does not prohibit game check point stops, as legislature did not intend to limit all stops for law enforcement purposes to those permitted by this section. State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980)

 

      This section is not the exclusive authority for stopping of persons by police officers. State v. Morris, 56 Or App 97, 641 P2d 77 (1982), Sup Ct review denied

 

      Traffic infraction for which police officer could neither arrest or issue citation was not crime such as would justify detention and inquiry. State v. Painter, 296 Or 422, 676 P2d 309 (1984)

 

      Two-hour detention of occupants of premises secured by police, based on information inadequate for search warrant, was unreasonable where police used time only to try to develop independent additional evidence to justify warrant. State v. Wise, 72 Or App 58, 695 P2d 68 (1985)

 

      Where permission for search is obtained in absence of coercive factors, lack of basis for stop does not justify suppression of evidence. State v. Mercado, 105 Or App 582, 805 P2d 744 (1991), Sup Ct review denied

 

      ORS 810.410 and this section provided authority for officer to open door of motor vehicle when officer observed motor vehicle oddly parked and discovered defendant slumped in driver’s seat with driver’s door slightly open and engine running. State v. Rhodes, 315 Or 191, 843 P2d 927 (1992)

 

      Where two officers present did not draw weapons, did not use or threaten use of force, did not make promises or use other means of coercion, consent to search was voluntary. State v. Jacobus, 318 Or 234, 864 P2d 861 (1993)

 

      Scope of

 

      Detention and inquiry beyond time, place and subject-matter limits codified in this section, which are all components of “intrusiveness,” constitute invalid random intervention into liberty and privacy of a person. State v. Carter/Dawson, 34 Or App 21, 578 P2d 790 (1978), aff’d 287 Or 479, 600 P2d 873 (1979)

 

      Where display of wad of money at tavern had been explained to officer’s satisfaction, continuation of stop was not proper. State v. Warner, 284 Or 147, 585 P2d 681 (1978)

 

      Search of car was impermissible intrusion in traffic stop after defendant had been frisked, was outside car, and had cooperated with officers. City of Portland v. Poindexter, 38 Or App 551, 590 P2d 781 (1979)

 

      Where police officer had reasonable cause to stop vehicle, but ascertained that driver had no criminal record or outstanding process against him, further detention was unreasonable and evidence obtained after defendant’s proper identity was ascertained was properly suppressed. State v. Perry, 39 Or App 37, 591 P2d 379 (1979)

 

      Permissible scope of questioning was exceeded where defendant was questioned about possible presence of weapons in vehicle when immediate circumstance that aroused officer’s suspicion was that vehicle was apparently parked in violation of municipal ordinance. State v. Kennedy, 68 Or App 529, 683 P2d 116 (1984)

 

      Questioning concerning contents of bag was beyond scope of stop for suspicion of unrelated crime and unsupported by independent suspicion: consent to search based on admission of contents under above circumstances was not voluntary and evidence must be suppressed. State v. Smith, 73 Or App 287, 698 P2d 973 (1985)

 

      Where warrant check does not take inordinately long time to complete, process does not exceed legitimate scope of stop. State v. Smith, 73 Or App 287, 698 P2d 973 (1985)

 

      Where police checked vehicle passenger for valid driver license, continuation of stop of passenger after license check came back clear was unlawful. State v. Castrejon, 79 Or App 514, 719 P2d 916 (1986)

 

      Circumstances that aroused officer’s suspicion must still exist when officer begins inquiry and, where police officer asked defendant for driver license when circumstances arousing suspicion (initial belief defendant was someone else recently cited for driving while suspended) no longer existed, motion to suppress evidence obtained was proper. State v. Harris, 88 Or App 433, 745 P2d 813 (1987), Sup Ct review denied

 

      Where search occurred after and as result of arrest pursuant to outstanding warrant, even if stop preceding search was unlawful, arrest under warrant purged evidence of taint of illegality. State v. Carmickle, 97 Or App 269, 775 P2d 908 (1989), Sup Ct review denied

 

      Where police officer requested to search defendant’s purse and found controlled substance, search did not exceed permissible scope of inquiry which was to investigate whether she was involved in drug activity. State v. Olney, 97 Or App 310, 775 P2d 914 (1989)

 

      Police did not exceed permissible scope of inquiry by continuing inquiry after defendant produced documentation for car and explained defendant’s relationship to owner because documents did not connect defendant to car and police did not have to accept defendant’s explanation as true. State v. Codr, 99 Or App 417, 782 P2d 442 (1989)

 

      Odor of alcohol on breath of driver stopped for traffic infraction is objective, observable fact that permits officer reasonably to suspect intoxication and to administer sobriety tests. State v. Kolendar, 100 Or App 319, 786 P2d 199 (1990), Sup Ct review denied; State v. Anderson, 108 Or App 294, 814 P2d 190 (1991)

 

      Transport of suspect to scene of crime three blocks away violated requirement that detention and inquiry be conducted in vicinity of stop. Jasper v. Motor Vehicles Division, 130 Or App 603, 883 P2d 244 (1994)

 

      Officer may make any inquiry reasonably related to general investigation of matter prompting stop. State v. Strawn, 154 Or App 460, 963 P2d 34 (1998)

 

      Where police officer making stop for traffic violation has all information necessary to issue citation, delaying issuance of citation in order to engage in additional questioning without reasonable suspicion of criminal activity unlawfully extends duration of stop. State v. Rodgers, 219 Or App 366, 182 P3d 209 (2008), aff’d State v. Rodgers/Kirkeby, 347 Or 610, 227 P3d 695 (2010)

 

When encounter is stop

 

      Where defendant voluntarily complied with officer’s request to speak with him and defendant gave his identification card and volunteered information that there was discrepancy between his current address and that on card, defendant was free to walk away if he chose and there was no “stop.” State v. Hanna, 52 Or App 503, 628 P2d 1246 (1981), Sup Ct review denied

 

      Where officer approached suspect in parking lot and called out for suspect to wait, contact did not constitute stop. State v. Tracy, 52 Or App 945, 630 P2d 370 (1981), Sup Ct review denied

 

      Stop was invalid where defendant had pulled over voluntarily and stopped, officers had no reasonable suspicion to believe she had committed a crime and officers had turned on emergency overhead lights. State v. Walp, 65 Or App 781, 672 P2d 374 (1983)

 

      Turning on patrol car overhead lights does not necessarily transform encounter into stop. State v. Dubois, 75 Or App 394, 706 P2d 588 (1985), Sup Ct review denied

 

      Where defendant pedestrian was chased by police officer in car through pedestrian mall without any reasonable suspicion of having committed crime, illegal stop occurred and statements by defendant after additional officers had converged on scene was exploitation of illegal act. State v. Penney, 87 Or App 357, 742 P2d 660 (1987)

 

      Although request for identification may not transform encounter into stop, where officer requested and retained defendant’s license, there was sufficient show of authority to lead reasonable person to believe there was no freedom to leave. State v. Starr, 91 Or App 267, 754 P2d 618 (1988)

 

      Stop statute contemplates that person may be involuntarily stopped, and it was lawful for officer to use force to effect “stop.” State v. Hasan, 93 Or App 142, 760 P2d 1377 (1988)

 

      Retention of fishing license during inquiry is not sufficient restraint on ability to leave to transform encounter into stop. State v. Hammond, 99 Or App 293, 781 P2d 1243 (1989), Sup Ct review denied

 

      Where defendant engaged officer in conversation and reminded officer of earlier arrest for driving while suspended, request by officer after checking license that defendant also show vehicle registration did not constitute stop. State v. Quigley, 100 Or App 418, 786 P2d 1274 (1990)

 

      Where officer did not park in way that prevented defendant from leaving, patrol car’s headlights and spotlight did not transform encounter into stop, nor did request for license. State v. Calhoun, 101 Or App 622, 792 P2d 1223 (1990)

 

      Officer’s request for identification did not transform encounter into stop when defendant stopped on his own and was not restrained from leaving. State v. Jensen, 102 Or App 323, 794 P2d 448 (1990)

 

      Where officer requested and received driver license, stood by window of defendant’s vehicle and noted license information and immediately returned license, there was not sufficient show of authority to constitute stop. State v. Woods, 102 Or App 671, 796 P2d 1209 (1990)

 

      Encounter with police officer was not stop when defendant was free to leave, and officer merely stood by restaurant booth, asked what defendant was holding in his hand and shined flashlight on defendant’s hand. State v. Morelli, 109 Or App 589, 820 P2d 1369 (1991), Sup Ct review denied

 

      Where request made of passenger was consistent with alleged purpose of traffic stop, existence of other motive did not render request a “stop.” State v. Woods, 134 Or App 53, 894 P2d 511 (1995), Sup Ct review denied

 

      Retention of valuable property extends duration of stop whether or not retention impairs mobility of stopped person. State v. Bailey, 143 Or App 285, 924 P2d 833 (1996)

 

      Encounter becomes stop when restraint or interference with citizen freedom of movement is significantly out of ordinary. State v. Blair/Vanis, 171 Or App 162, 14 P3d 660 (2000), Sup Ct review denied

 

      Police officer’s physical restraint of person does not convert stop into arrest. State v. McKinney, 174 Or App 47, 23 P3d 386 (2001), Sup Ct review denied

 

      Where suspect is not handcuffed, restraint on suspect’s liberty consistent with officer’s need to control scene during investigation does not convert stop into arrest. State v. Werowinski, 179 Or App 522, 40 P3d 545 (2002), Sup Ct review denied

 

      Where person displays identification to officer, but officer is not in possession of identification, no stop has occurred. State v. Cohan, 227 Or App 63, 204 P3d 816 (2009), Sup Ct review denied

 

LAW REVIEW CITATIONS: 57 OLR 195 (1977)

 

      131.625

 

NOTES OF DECISIONS

 

      A visual search of the defendant’s person is less intrusive upon privacy than a frisk and it is therefore permissible if a frisk is permitted. State v. Fent, 29 Or App 249, 562 P2d 1239 (1977), Sup Ct review denied

 

      Where officer had made lawful stop of defendant pursuant to ORS 131.615, and had reasonable cause to suspect that defendant might possess dangerous weapons, officer was not required to make any inquiry prior to frisk of defendant. State v. Miner, 31 Or App 495, 570 P2d 998 (1977)

 

      Violation of this section by police officer, in frisking suspected armed robber, required exclusion from evidence of drugs found in suspect’s pocket, notwithstanding that frisking was good faith effort by officer to protect self and fellow officer from physical harm. State v. Fairley, 282 Or 689, 580 P2d 179 (1978)

 

      Where officer removed spiral notebook from defendant’s pocket in course of patdown, he did not have reasonable belief that “large, bulky object” was dangerous or deadly weapon. State v. Kurtz, 46 Or App 617, 612 P2d 749 (1980), Sup Ct review denied

 

      That defendant matched fairly closely description of burglar could not alone have given rise to probable cause for arrest; that and additional fact defendant turned and ran after voluntarily agreeing to accompany officer to burglary scene did; officer had probable cause to arrest and search was incident to arrest. State v. Battle, 58 Or App 224, 648 P2d 411 (1982)

 

      Where police had neither reasonable suspicion that defendant had committed a crime nor cause to place him under civil commitment hold or medical emergency, the frisk was unlawful, as were subsequent search and seizure. State v. Hampton, 59 Or App 512, 651 P2d 744 (1982)

 

      Even assuming that defendant was lawfully stopped on reasonable suspicion of trafficking in narcotics, the warrantless seizure of defendant’s bag for one hour and twenty minutes until a narcotics-sniffing dog was summoned was unlawful because this section limits seizures in connection with a stop to dangerous or deadly weapons. State v. Dupay, 62 Or App 798, 662 P2d 736 (1983), Sup Ct review denied

 

      That officer was aware from prior experience and training that downtown bus mall had reputation for weapons-carrying narcotics offenders did not, in absence of additional facts related to person in question, provide reasonable suspicion to believe that person stopped for possession of less than ounce of marijuana was armed and dangerous. State v. Baldwin, 76 Or App 723, 712 P2d 120 (1985), Sup Ct review denied

 

      Where defendant, passenger in automobile originally stopped for traffic violation, sought to suppress evidence seized during frisk by challenging stop and frisk, stop was proper under ORS 131.615 and same facts that justified stop necessarily justified reasonable suspicion that defendant was armed and dangerous, making frisk proper under this section. State v. Bowen, 88 Or App 584, 746 P2d 249 (1987), Sup Ct review denied

 

      Before lawful frisk may be conducted under this section there must have been lawful stop and mere intuition of officer cannot form entire basis for reasonable suspicion. State v. Houghton, 91 Or App 71, 754 P2d 13 (1988)

 

      Where police officers knew arrest warrant existed for owner of vehicle for manufacture and transportation of methamphetamines, saw equipment commonly used for such manufacture in back of vehicle and knew people involved in manufacture and transportation of methamphetamines commonly carry weapons, circumstances justified suspicion that defendant was armed and dangerous. State v. Bechtold, 99 Or App 593, 783 P2d 1008 (1989), Sup Ct review denied

 

      This section requires more than two generalized concerns to justify frisk; there must be particularized facts which give rise to reasonable suspicion that suspect poses immediate threat. State v. Matthys, 106 Or App 276, 808 P2d 94 (1991), Sup Ct review denied

 

      Where officer had reasonable and articulable basis for believing object might contain weapon, seizure of object was reasonable. State v. Lumpkin, 133 Or App 265, 891 P2d 660 (1995), Sup Ct review denied

 

      Belief that person has committed nonviolent crime does not, by itself, give rise to reasonable suspicion that person is armed. State v. Dyer, 141 Or App 6, 917 P2d 51 (1996)

 

      Statutory power to frisk does not act as outer limitation on permissible officer safety measures. State v. Rickard, 150 Or App 517, 947 P2d 215 (1997), Sup Ct review denied

 

      131.655

 

      See also annotations under ORS 133.037 in permanent edition.

 

NOTES OF DECISIONS

 

      Where plaintiff closely resembled suspected shoplifter and was wearing similar clothing but was found in opposite direction from where actual shoplifters fled and was not wearing baseball cap or carrying new tennis shoes, store employees did not have probable cause to stop and detain plaintiff. Wolf v. Nordstrom, Inc., 51 Or App 715, 626 P2d 953 (1981), aff’d 291 Or 828, 637 P2d 1280 (1981)

 

      In plaintiff’s action for malicious prosecution and battery arising out of plaintiff’s suspected shoplifting from defendant’s store, trial court erred in refusing to instruct jury that this section was defense to plaintiff’s battery claim. Dow v. Sears, Roebuck & Company, 84 Or App 664, 734 P2d 1387 (1987)

 

      When security personnel interviewed defendant for ten minutes, then detained defendant for additional hour before contacting police, the additional detention was unreasonable under this section. State v. Adams, 86 Or App 139, 738 P2d 988 (1987), Sup Ct review denied

 

LAW REVIEW CITATIONS: 55 OLR 285-290 (1976)

 

      131.675

 

      See annotations under ORS 145.020 in permanent edition.

 

      131.705 to 131.735

 

      See annotations under ORS 145.610 to 145.640 in permanent edition.

 

      131.805

 

      See annotations under ORS 148.010 in permanent edition.

 

      131.815

 

      See annotations under ORS 148.110 in permanent edition.

 

      131.855

 

      See annotations under ORS 148.150 in permanent edition.

 

      131.885

 

      See annotations under ORS 149.010 in permanent edition.