State v. Gerrish

RICHARDSON, P. J.,

concurring.

Because we call the officer’s activities in this case a “roadblock,” we are doomed to analyze it in terms of the cases about roadblocks. Those cases all deal with seizures of automobiles and the drivers where ORS 131.615 is not implicated. State v. Anderson, 304 Or 139, 743 P2d 715 (1987); State v. *588 Boyanovsky, 304 Or 131, 743 P2d 711 (1987); Nelson v. Lane County, 304 Or 97, 743 P2d 692 (1987); State v. Tourtillott, 289 Or 845, 618 P2d 423 (1980), cert den 451 US 972 (1981). They also deal with police activity of stopping vehicles to see what the drivers or passengers are doing at that moment with a purpose to prosecute any criminal activity discovered. In Nelson, the court suggested that seizure of persons at a roadblock for a purpose other than enforcement of a law by means of criminal sanctions could be constitutional and that the inquiry was whether the activity was specifically authorized. In Boyanovsky, the court held that the roadblock was used by the police to gather evidence for criminal prosecution of the driver and, because it was set up with no individualized suspicion of wrongdoing, it violated Article 1, section 9, and the evidence obtained had to be suppressed.

In each case, whether the stop was for criminal or non-criminal purposes, the physical activity of the police is identical: a vehicle and its occupants are seized. The purpose, rather than the action or result, is of paramount significance.

In this case, the purpose of the officer’s physical act of stopping all vehicles was two-fold: first, to see if any of the vehicles contained the assailant; and second, to ask occupants of the vehicles if they had any information regarding the robbery and shooting. The stop of the vehicles was not in the nature of a roadblock in the same sense as the stops and seizures involved in Anderson, Boyanovsky and Nelson. The officer here was not stopping each car to see what activity the occupants may be involved in either for criminal law enforcement or for some administrative purpose. He knew that a robbery and shooting had occurred about eight minutes earlier, and he had a reasonable basis in fact to conclude that the assailant was still at the lodge and would leave in a vehicle by the exit road. In other words, he had a reasonable suspicion, sufficient to satisfy ORS 131.615, that one of a relatively small group of cars located in a particularly defined area would contain a fleeing felon.

There may have been alternative reasonable conclusions from the information that the officer had: for example, that the robber had fled on foot or had simply hidden in the *589 lodge. But the fact that there might be other reasonable suspicions or explanations does not foreclose the officer’s proceeding on the particular suspicion he had. See State v. Villagran, 294 Or 404, 657 P2d 1223 (1983).

An equally valid basis for the stop was so that the officer could interview potential witnesses to the crime. That basis did not focus on the driver for the purpose of seeing if he was violating the law and hence to exact criminal penalties for enforcement. It focused on the individual driver as a source of information with no intented consequences in the nature of criminal penalties. The stop had a purpose of getting information, not finding offenders to punish. The stop of defendant was lawful in order to get information from him as a witness. The officer saw that defendant was intoxicated. That evidence, in plain view, was observed by the officer from a lawful vantage point.

The justification for the compelled stop is two-fold. Under ORS 131.615, the officer had a reasonable suspicion that a vehicle stopped would contain a fleeing felon. Secondly, although the stop was police activity in investigating a crime, the investigation was not directed at the drivers or occupants of the cars who were simply potential witnesses. The fact that defendant was intoxicated was discovered after a lawful stop and is not subject to suppression.