State v. Amell, 200620740.

• Decision Date: 12 August 2009
• Docket Number: 200620740.,A135199.
• Citation: 215 P.3d 910,230 Or. App. 336
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Jim Marvin AMELL, Defendant-Appellant.
• Court: Oregon Court of Appeals

215 P.3d 910

230 Or. App. 336

STATE of Oregon, Plaintiff-Respondent, v. Jim Marvin AMELL, Defendant-Appellant.

200620740.

A135199.

Court of Appeals of Oregon.

Argued and Submitted on December 30, 2008.

Decided August 12, 2009.

Carolyn Bys, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Legal Services Division, Office of Public Defense Services.

Matthew J. Lysne, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams. Solicitor General.

Before SERCOMBE, Presiding Judge, and BREWER, Chief Judge, and DEITS, Senior Judge.

SERCOMBE, P.J.

Defendant appeals from a judgment of conviction for unlawful possession of cocaine and carrying a concealed weapon. ORS 475.884; ORS 166.240. Defendant assigns error to the denial of his motion to suppress evidence. That evidence was seized following a patdown search of defendant for weapons during a traffic stop. We conclude that the search was not justified as necessary to protect the safety of police officers and that the evidence should have been suppressed. Accordingly, we reverse and remand.

We state the facts consistently with the trial court's explicit and implicit findings. State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993); Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We review the court's legal conclusions for errors of law. Ehly, 317 Or. at 75, 854 P.2d 421.

Early one morning, at approximately 1:00 a.m., Eugene Police Officer Williams observed defendant driving in excess of the speed limit in downtown Eugene. Williams stopped defendant's car and engaged in what he described as a "fairly routine nighttime traffic stop." Williams asked defendant what he was doing. Defendant was "cordial and friendly" and responded that the car belonged to his brother and that his California driver's license was in a wallet that he had left at a bar earlier. Dispatch advised Williams that defendant's Oregon driver's license was suspended.

While Williams was standing at the back of his patrol car writing the citations, Officer Mills arrived to provide backup. Mills positioned himself "towards the passenger side, front driver's door of Williams' car, just keeping an eye." Mills "noticed that [defendant] was reaching in between the driver's seat and the middle console, and it looked like he was digging in that area." Mills could see defendant "reaching down, to the point where the car was moving." Mills told Williams, who was occupied with writing the citations, about defendant's conduct. Williams later testified:

"I don't know if I felt threatened at that point, but it definitely raised a red flag as to officer safety. He had been — he'd been cordial and polite prior to that, so there wasn't an immediate red flag to me at that point, or prior to that. And so the movement was definitively the concern. But whether — whether I felt like I was in an immediate risk being that he was still in the vehicle at that point, I don't think so."

Williams finished writing the citations a few minutes later and began a conversation with defendant. Before giving defendant the citations, Williams "told him that [Williams] was somewhat suspicious as to what [defendant] was doing, what was going on in the car." Defendant responded that "there wasn't anything wrong." Then, Williams asked if he could "check the vehicle for anything illegal," and defendant consented to that search. Williams either asked or instructed defendant to leave the vehicle. After defendant emerged from the car, Williams performed a patdown search.¹ The patdown search of defendant uncovered a pocketknife in his back pocket (a "four inch blade butterfly knife") and a baggie containing a white powdery substance. Defendant was arrested and charged with carrying a concealed weapon and unlawful possession of cocaine.

In a pretrial motion, defendant moved to suppress all evidence obtained during the encounter, arguing that the evidence was the product of an unlawful search in violation of his rights under Article I, section 9, of the Oregon Constitution.² The trial court denied the motion, and defendant was convicted of both charges. This appeal followed.

On appeal, defendant assigns error to the denial of his motion to suppress evidence. Defendant contends that the patdown search was unlawful because Williams lacked reasonable suspicion that defendant posed an immediate threat to officer safety.³ Any evidence obtained as a result of the illegality, defendant argues, must be suppressed. The state responds that, under the totality of the circumstances, including defendant's "dramatic digging movements" in the vehicle, Williams reasonably believed that defendant might pose an immediate threat of physical injury so that the request for consent to search and the ensuing patdown were lawful. We conclude that defendant's movements in the vehicle, in the context of this case, did not provoke a reasonable suspicion of a present threat to officer safety. We therefore reject the state's argument that the patdown search was justified in the absence of a search warrant because the officers were entitled to take reasonable precautions to neutralize any threat to their safety.

We hesitate to second-guess the perception of threat by an experienced police officer. As noted in State v. Bates, 304 Or. 519, 524, 747 P.2d 991 (1987), a "police officer in the field frequently must make life-or-death decisions in a matter of seconds. There may be little or no time in which to weigh the magnitude of a potential safety risk against the intrusiveness of protective measures." Thus, police officers are entitled to "considerable latitude" in taking measures to protect their safety. Id. Nonetheless, when those measures intrude on the privacy interests protected by Article I, section 9, we review the sufficiency of the asserted officer safety rationale under the standards set out in Bates. Article I, section 9, is not offended by an officer who

"take[s] reasonable steps to protect himself or others if, during the course of a lawful encounter with a citizen, the officer develops a reasonable suspicion, based upon specific and articulable facts, that the citizen might pose an immediate threat of serious physical injury to the officer or to others then present."

Id. at 524, 747 P.2d 991. We limit our inquiry to "whether the precautions taken were reasonable under the circumstances as they reasonably appeared at the time that the decision was made." Id. at 525, 747 P.2d 991.

The trial court held that defendant's movement justified removing defendant from the car and subsequently patting down defendant while the car was searched:

"I think that when the defendant was observed moving around in a way that might have suggested either that he was hiding something or that there may have been a weapon present, that gave the officer the basis to ask for consent. I don't think he would have had that otherwise, given the basis for the stop. But I think once that movement occurred, there's valid reason for the officer to ask for consent to search the vehicle.

"The defendant did consent to that. And there was a valid officer safety concern at that point to remove the defendant from the vehicle and pat him down while the search was — of the vehicle was being conducted."

We accept the court's factual findings. But we disagree that those findings establish that Williams's suspicion of a threat to his safety was objectively reasonable under the totality of the circumstances known to him at that time.

When Williams asked about defendant's movements, the traffic stop was nearly completed; all that remained was to hand defendant the citations. The "specific and articulable facts" known to Williams at that time were as follows: (1) defendant had been cordial and friendly; (2) he had lied about his suspended Oregon driver's license; (3) he had been observed making a digging movement in the front of the vehicle out of the presence of the officers; and (4) he got out of the vehicle in compliance with the officer's request. Williams testified that he did not feel that there was "an immediate risk" of harm while defendant remained in the car. The state relies primarily on defendant's digging movements to suggest the officer's actions were reasonable precautions based on officer safety concerns.

We recognize that, in this area of search and seizure law, fact matching has its limitations. Whether a gesture or movement will give rise to a reasonable suspicion that a citizen poses an immediate threat of serious physical injury depends on the individual circumstances of each case. State v. Hannaford, 178 Or.App. 451, 458, 37 P.3d 200 (2001).

Nevertheless, the cases relied on by the state involve situations where the defendant made "furtive" movements during the interaction with the officers, often after being advised not to do so, or where the defendant made motions consistent with hiding or retrieving something. For example, in State v. Blevins, 142 Or.App. 237, 239, 920 P.2d 1131 (1996) the officer noticed that the defendant was "nervous" and "fidgeting" and "[he was] reaching into [his] pockets, between the seats, between their legs and under the seats." The officer was concerned, and the furtive movements continued despite the officer repeatedly instructing the defendant to keep his hands visible. Id.

In Hannaford, we upheld a warrantless search of the defendant's vehicle based on officer safety and explained:

"When [defendant] was asked to find evidence of insurance, he completely turned his back to the officer in an unusual way and concealed his hands from view. He began to thrust something further and further underneath the seat to the extent that a box became visible on the floor in the backseat. The box was large enough to contain a gun. All of those actions occurred in response to a question about insurance papers. When...