Appeal from Circuit Court, Josephine County. Samuel M. Bowe, Judge. No. 73-100-C.
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Richard K. Lane, Deputy District Attorney, Grants Pass, argued the cause for respondent. With him on the brief was Robert M. Burrows, District Attorney, Grants Pass.
Langtry, Presiding Judge, and Fort and Thornton, Judges.
Defendant was convicted on a trial to the court of criminal activity in drugs. ORS 167.207. The case was submitted on a stipulation of facts in which it was stated that defendant "knowingly had in his possession lysergic acid diethylamide, a dangerous drug * * *." The defendant saved for appeal his contention that the search which had turned up the drug was illegal. This presents the only question involved.
Police officers had been informed that prowlers were on certain private property adjacent to the highway. In answer to the call they went to that location and saw defendant and another man come over the fence from the private property onto an area along the highway where they allegedly solicited a ride. The officers arrested for illegal solicitation of a ride. ORS 483.218. When they asked for identification the information was refused by both suspects. The officers testified they originally had intended to give a citation for hitchhiking only but by the refusal of identification were faced with no alternative other than a custody arrest which they proceeded to make. They made a pat-down search which turned up the illegal drug.
Defendant's refusal to give identification left the officers no alternative, consistent with their duty, than to make the arrest. This being so they were entitled to make a pat-down search which, when it turned up the contraband, justified the instant prosecution. State v. Gwinn, 12 Or App 444, 449-51, 506 P2d 187, Sup Ct review denied (1973); State v. Swartsfager, 11 Or App 69, 501 P2d 1321 (1972); and State v. Sorgenfrei, 7 Or App 442, 490 P2d 1040 (1971), Sup Ct review denied (1972).
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